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https://www.courtlistener.com/api/rest/v3/opinions/1913898/ | 981 A.2d 331 (2009)
PLAKAS
v.
PLAKAS.
No. 549 MDA 2008.
Superior Court of Pennsylvania.
June 1, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899450/ | NO. 07-07-0448-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 20, 2009
______________________________
STEPHEN FINLEY,
Appellant
v.
JOLYN C. WILKINS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 2006-599,978; HON. PAULA LANEHART, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Pending before the court is an appeal of a final summary judgment. Through that judgment, the trial court concluded that limitations barred the legal malpractice action of Stephen Finley against Jolyn C. Wilkins. The former had sued the latter to recover $1800 (which represented the remainder of the $5000 fee Wilkins initially received from and then returned to Finley), interest, and attorney’s fees for representing himself
pro se
. We affirm the summary judgment.
Background
According to Finley, he hired Wilkins to “find whether and by what means a wrongful custody verdict in December 1997 could be corrected, reversed, reheard, or remedied by any other means available.” The two agreed to move for a new trial citing jury misconduct as basis for the relief.
(footnote: 1) The motion was timely filed, then denied on April 3, 1998. Thereafter, the trial court entered a final divorce decree incorporating the jury’s custody verdict in August of 1998. No appeal was taken from that final judgment.
Before the day of the hearing on the motion for new trial, Finley discovered that evidence of a jury’s deliberations was inadmissible. This caused him to question the viability of the motion since, for the most part, evidence of what occurred during those deliberations was pivotal to its success. The matter was broached with Wilkins or one of her employees. Within weeks of the motion being denied, Finley also spoke about it with several law professors who allegedly “expressed amazement that any attorney would file such a motion, since the doctrine of ‘jury sanctity’ . . . was very well-known and essentially inviolable.” They also allegedly told him that “there was no chance for the motion to succeed” or “that [it] was doomed from the time you guys started talking about it.”
By October of 1999, Finley had retained another attorney and petitioned to modify the custody provisions specified in the August 1998 decree. That petition was denied in 2002, and the decision to deny it was affirmed on December 9, 2004. Finley then initiated the current malpractice action on July 19, 2006, contending that “the motion [for new trial] was not pursued competently.”
Discussion
That a two-year period of limitations applies to legal malpractice claims is undisputed.
Tex. Civ. Prac. & Rem. Code Ann.
§16.003(a) (Vernon Supp. 2008);
Parsons v. Turley,
109 S.W.3d 804, 807-08 (Tex. App.
–
Dallas 2003, pet. denied). Similarly clear is that unless the statute of limitations was tolled, Finley’s suit against Wilkins was untimely. Thus, Finley proffered two theories which he believed tolled limitations. They consisted of the discovery doctrine and the application of the
Hughes
rationale. We consider the former first.
Normally, limitations begin to run when a cause of action accrues.
South Plains Switching, Ltd. Co
.
v. BNSF Ry. Co.,
255 S.W.3d 690, 707 (Tex. App. - Amarillo 2008, pet. denied). A legal malpractice cause of action generally accrues when facts come into existence that authorize a client to seek a judicial remedy for a legal injury.
Apex Towing Co. v. Tolin,
41 S.W.3d 118, 120 (Tex. 2001). At times, however, the period does not begin to run until the client discovers or through the exercise of reasonable diligence should have discovered the facts establishing the elements of a cause of action.
Id.
at 120-21. Given that the purported misfeasance of Wilkins involved the motion for new trial filed in his divorce proceeding, that Finley expressed doubts about the grounds urged in and the viability of the motion, and that he also spoke with two law professors about the matter and their purported comments confirmed his beliefs, we conclude, as a matter of law, that Finley knew or reasonably should have known about the facts giving rise to his claims before entry of the August 1998 divorce decree. So, his claim had accrued and limitations had begun to run before then.
As for the second
argument, we note that in
Hughes v. Mahaney & Higgins
, 821 S.W.2d 154 (Tex. 1991) our Supreme Court held that “when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim . . . is tolled until all appeals on the underlying claim are exhausted.”
Id.
at 157;
accord, Underkofler v. Vanasek
, 53 S.W.3d 343, 346 (Tex. 2001) (wherein counsel was changed while the trial remained pending and holding that limitations did not run until the trial resulted in a final judgment that went unappealed). To the phrase “until all appeals on the underlying claim are exhausted,” the court added “or the litigation is otherwise finally concluded” via its decision in
Apex Towing Co
.
v. Tolin
, 41 S.W.3d
at 119.
Here, the purported misfeasance occurred during the litigation of child custody issues that arose as part of Finley’s divorce. Custody had been awarded by a jury to the mother, and Finley did not want that decision to stand. So, in effort to overturn it, he and Wilkins filed the motion for new trial, which act Finley considered improper. Once that motion was overruled and the results of that litigation were incorporated into the August 1998 divorce decree, all question about which parent would have what conservatorship rights upon divorce were resolved. By that time, Finley had already discussed with others what he believed to be Wilkins’ deficient conduct. Given these circumstances, we hold that the underlying claim or suit, for purposes of
Hughes
, was the child custody dispute and litigation culminating in the final divorce decree entered in August of 1998. Since no appeal was taken from that judgment, the two-year limitations period began when it was signed.
It may well be that Finley and Wilkins spoke of petitioning for a modification of the custody provisions previously entered. It may well be that Finley also hired another attorney to pursue such relief once the August 1998 decree became final. Yet, just because the subject matter of those discussions and acts involved child custody, the modification proceeding did not become a part or continuation of the initial custody ruling and litigation. Nor did the similarity of topics somehow make the proceedings or claims asserted in each indivisible. The truth is quite the contrary since two distinct processes were involved. Indeed, before there could be a second (
i.e.
modifying the terms of a prior decree), the first (
i.e.
the execution of a prior decree) must have occurred; logically, one cannot modify something that never happened. Furthermore, to modify the terms of conservatorship mandated by the prior final divorce decree, a trial court would have had to find that the circumstances have materially and substantially changed since the date the decree was rendered.
Tex. Fam. Code Ann.
§156.101(1) (Vernon 2008);
Zeifman v. Michels,
212 S.W.3d 582, 589 (Tex. App.
–
Austin 2006, pet. denied);
Bates v. Tesar,
81 S.W.3d 411, 426-27 (Tex. App.
–
El Paso 2002, no pet.). This in turn means that the focal point of the modification process lies not on what existed before entry of the final judgment but rather on what occurred or arose
after
entry of that decree. In view of this, we cannot but consider the two matters as distinct suits or legal proceedings, even though they may have the same cause number. And, this leads us to conclude here that the modification suit subsequently prosecuted by Finley did not toll limitations, per
Hughes
, on any claims arising from the decision to file the motion for new trial.
In short, we cannot say that the trial court erred in granting summary judgment against Finley on the basis of limitations. That final summary judgment is affirmed.
Brian Quinn
Chief Justice
FOOTNOTES
1:The misconduct purportedly consisted of several jurors considering gender in reaching their verdict and in several jurors inaccurately answering questions propounded to them during voir dire. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2431229/ | 276 S.W.2d 356 (1955)
Ernest J. RISSMAN et al., Appellants,
v.
R. C. LANNING et al., Appellees.
No. 10289.
Court of Civil Appeals of Texas, Austin.
February 16, 1955.
*357 Robert B. Thrasher, Austin, for appellant.
John Ben Shepperd, Atty. Gen., W. V. Geppert, Marietta McGregor Payne, Asst. Attys. Gen., for all appellees except Augusta L. Wende.
Trenckmann & Trenckmann, Austin, for Augusta L. Wende.
GRAY, Justice.
This suit was brought by appellants to construe paragraphs 4 and 6 of the last will and testament of John C. Wende, deceased. It is the contention of appellants that said paragraphs are void for the reason that the trust created thereby is a perpetuity and not a charitable trust.
Appellants and appellees filed motions for summary judgments. Appellees' motion was granted and a judgment was rendered decreeing that the trust created by paragraphs 4 and 6 is a valid charitable trust.
The portions of paragraphs 4 and 6 of the will pertinent here together with paragraph 5 read:
"4. To the Board of Control of the State of Texas and its successors in office, in trust, for the State Orphans' Home now operated for the benefit of orphans of the State of Texas at Corsicana, Texas, or such other orphans home as may be operated by the State of Texas, and selected by the Board of Control, I give, devise and bequeath in trust for the use and benefit of said orphans and subject to the conditions herein set out, the use, rents and revenues and income of the following described tracts of land out of a tract of two and sixty-one hundredths (2.61) acres in the Isaac Decker League in the City of Austin, Travis County, Texas, to-wit:
"* * * the use, rents, revenues and income of said property being hereby willed for the benefit of said orphans forever and in perpetuity, it being my intention that said property shall not be sold but is to be used for the benefit of such orphans as the Board of Control and its successors may deem advisable and in perpetuity.
"5. All the rest and residue of my property and estate of any and all kinds, including all of my community estate, I give, devise and bequeath to my wife, Augusta L. Wende, so long as she may live, and together with the right to use, sell or dispose of any part of the corpus and principal of said property as she may desire.
"6. After the death of my said wife, Augusta L. Wende, all of said rest and residue of my property above mentioned not otherwise disposed of by her (except the property described in Clause 4, no part of which shall ever be sold) shall be sold and liquidated and put in the form of cash money by any executor hereinafter named, and all of said money, including the proceeds of the sale of all of said rest and residue, I hereby give, devise and bequeath to the said Board of Control of the State of Texas and its successors in office in trust for said orphans' home, or such other orphans' home as may be operated by the State of Texas and selected by the Board of Control, the said Board of Control and its successors are to keep said fund and monies invested for the benefit of said orphans' home, and the income of said fund to be used for said home in perpetuity, it being intended by this will to constitute said rest and residue of the property mentioned in Clause 5 above remaining after the death of my said wife and not otherwise disposed *358 of by her, as a fund for the benefit of said orphans' home."
The question presented is: Does the will create a charitable trust? If it does then the constitutional inhibition against perpetuities does not apply. Paschal v. Acklin, 27 Tex. 173, 174, 197; Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749.
Appellants say that the Orphans' Home named in the will is not a charitable institution because it is created and supported by the State; it is a ward of the State and cannot be considered a charity or charitable institution.
In Restatement of the Law of Trusts, Vol. 2, Sec. 368, p. 1140, it is said that:
"Charitable purposes include
"(a) the relief of poverty;
"(b) the advancement of education;
"(c) the advancement of religion;
"(d) the promotion of health;
"(e) governmental or municipal purposes;
"(f) other purposes the accomplishment of which is beneficial to the community."
and under "Comment a" it is stated:
"The common element of all charitable purposes is that they are designed to accomplish objects which are beneficial to the community."
The State has assumed the obligation to maintain and support its orphans. See Constitution, Art. 7, § 9, Vernon's Ann. St., and Arts. 3208-3211, Vernon's Ann. Civ.St. This obligation by the State must be discharged by the expenditure of public funds and a gift that relieves the whole citizenship of its burden to the extent of the gift is a gift to a public charity. Bell County v. Alexander, 22 Tex. 350, 351, 364; Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, 280. In this latter case the court said:
"The orphan has always presented a strong appeal to charitable impulse. If there was ever any question in Texas as to whether an orphan, regardless of his race, color or creed and irrespective of what church or organization claimed the membership of his parents, has an undeniable claim to public charity, we think the same was set at rest by the adoption in 1937 of sec. 51d, art. 3, of the Constitution, authorizing the legislature to appropriate as much as one million five hundred thousand dollars per annum to provide financial assistance to destitute children under fourteen years of age, the necessary funds, of course, to be raised by taxation. Relief of destitute children has thus been declared to be a matter of fundamental public policy and obligation. It follows, therefore, that any gift designed to sustain and nurture an orphan tends to discharge a public obligation, to lighten the public burden and to lessen taxes the citizen must pay, because a vast majority of the orphans admitted to homes such as the one described in Mrs. Hofstetter's will are destitute, else they would not be there."
The fact that the trust created by the will will work a benefit to the State and will inure to the benefit of an institution supported by the State does not change its charitable nature.
The judgment of the trial court is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1774823/ | 196 So. 2d 525 (1967)
Jeffery Lee KELLY, Minor by Miss Willie Thompson, Next Friend
v.
Lawrence KING.
No. 44278.
Supreme Court of Mississippi.
March 20, 1967.
*526 Bradford J. Dye, Grenada, William Liston, Winona, for appellants.
F. Kent Stribling, Jackson, for appellee.
INZER, Justice:
This is an appeal from a jury verdict in favor of defendant, Lawrence King, who was sued for the wrongful death of a man for whose death defendant is presently serving a life sentence in the state penitentiary. This verdict must be reversed because of errors in the trial court regarding admissibility of evidence.
Suit originally was brought in the Circuit Court of Montgomery County, under Mississippi Code Annotated section 1453 (Supp. 1964), by Jeffery Lee Kelly, a minor, son of the murdered man, William Lee Kelly. A jury verdict there against King was reversed by this Court, with directions to grant a change of venue and a new trial. King v. Kelly, 243 Miss. 160, 137 So. 2d 808 (1962).
This action was moved to the Circuit Court of the First Judicial District of Hinds County. A trial resulted in a jury verdict in favor of King, and a judgment was entered dismissing the suit.
Appellant assigns as error (1) the trial court's exclusion of King's plea of guilty to the charge of murder; (2) the exclusion of admissions made by King to Gwin Cole of the State Highway Safety Patrol; and (3) the failure to exclude testimony offered by Dr. Hernando Woodworth concerning a purported statement by Alex Morris. Morris earlier had pleaded guilty to the murder for which he and King were indicted.
I.
Appellant offered in evidence a certified copy of the judgment of the Circuit Court of Lauderdale County, wherein King had plead guilty to the charge of murdering Kelly. Appellee objected to the introduction on the ground that the plea of *527 guilty was not voluntary, and the trial judge sustained this objection.
This action of the trial court was error. The plea of guilty was admissible as an admission against interest. It is the contention of appellee that his plea of guilty was entered to avoid the hazard of a death sentence and thus was not voluntary.
A plea of guilty in a criminal case is admissible in a civil proceeding. Henry v. Toney, 211 Miss. 93, 50 So. 2d 921 (1951); Wagner v. Gibbs, 80 Misc. 53, 31 So. 434 (1902). Appellee's reasons for entering such a plea could then have been explained by him. See Henry v. Toney, supra.
An excellent statement of the rule is found in Race v. Chappell, 304 Ky. 788, 792, 202 S.W.2d 626, 628 (1947), wherein it was stated that:
* * * where the defendant in the criminal case pleaded guilty, and the record showing such plea is offered in evidence in a civil action against him, growing out of the same offense, the judgment is admitted, not as a judgment establishing a fact, but as a declaration or admission against interest that the fact is so. However, the defendant may testify as to the circumstances under which the plea was made and explain the reasons for such plea.
II.
Appellant assigns as error the action of the trial court in sustaining the objection to a question propounded to King relative to a statement that he made to Gwin Cole, special investigator for the Highway Patrol. King was called as an adverse witness, and he denied that he was involved in any way in the killing of Kelly or that he had hired Morris to kill Kelly. King was then asked whether he had had a conversation with Cole in which he stated to Cole that "I hired a Negro to kill William Lee Kelly."
At this point counsel for King requested that the jury retire. He then objected to any further testimony having to do with the conversation with Mr. Cole, for the reason that the alleged statement was in fact a confession which the Circuit Court of Lauderdale County had held was not freely and voluntarily made. The record of the proceedings had in the trial of the criminal case (which ended in mistrial) was not offered in evidence. The trial judge sustained the objection and would not let counsel for appellant pursue the matter any further after the jury returned.
The action of the trial judge in excluding the confession in the criminal case would not be conclusive of this question in this civil case.
Appellant was attempting to lay a predicate upon which later to impeach King. It is the general rule that a confession not shown to have been freely and voluntarily made cannot be used by the prosecution for the purpose of impeachment. Ladner v. State, 231 Miss. 445, 95 So. 2d 468 (1957).
Such is the rule in criminal cases, but this is a civil case and must be tried under rules applicable to such cases.
The question to be decided is whether a confession, claimed not to be freely and voluntarily made, is admissible in a civil proceeding as an admission or for impeachment purposes.
We hold that such is admissible, subject to explanation by the party witness as to the circumstances of the alleged confession.
As is stated in 3 Wigmore, Evidence section 815 (3d ed. 1940), at 229-230:
The policy and the history of the rule (against use of involuntary confessions) alike dictate its limitations; so that in civil cases no rule would be looked for which excluded the opposing party's acknowledgment of a debt or other claim because of its extortion by duress. Since admissions are never conclusive, but may *528 always be explained away and discredited by their maker as due to his inadvertence or mistake * * *, there is no necessity for an exclusionary rule based on theory of duress. All analogies suggest that the party's admission be received, subject to his proof of the threats or other circumstances of duress which may have extorted it. It would follow, then, that in a civil case the admissions of an opponent, when offered, are not to be tested or excluded by any rules of confession applicable to the accused in a criminal case.
III.
Appellant assigns as error the admission of the testimony of Dr. Woodworth relative to a statement made by Alex Morris. In the former trial of this case Morris testified that King hired him to kill Kelly. Thereafter Morris died in the hospital at the state penitentiary. Dr. Woodworth, who was in charge of the hospital, was allowed to testify over the objections of appellant that Morris told him shortly before his death that he had lied about Mr. King. By agreement of all parties Morris's prior testimony was introduced and read to the trial jury. In offering Dr. Woodworth's testimony regarding Morris's statement, appellee argues that the testimony was offered only for impeachment purposes to show inconsistent and self-contradictory statements of Morris.
In this state we have consistently followed the rule that in order to impeach the testimony of a witness by showing contradictory statements, a proper predicate must be laid unless waived by failure to object. The question to be decided is whether this rule applies where a witness has died since a former trial, thus making it impossible to lay the proper predicate. This question was considered by the Court en banc with the exception of Justice Rodgers, who took no part in this case.
The leading case on this issue is Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895), where it was held that declarations made after a former trial cannot be introduced for impeachment purposes at a later trial without a proper foundation being laid with the questioning of the witness, and that even if the witness is dead, the questioning is considered indispensable.
This is the rule followed in the majority of jurisdictions where this question has been considered.
The strongest condemnation of the rule in Mattox was set forth by the three judges who dissented in that opinion:
To press this rule so far as to exclude all proof of contradictory statements made by the witness since the former trial, in a case where the witness is dead, and the party offering the proof cannot, and never could, cross-examine him as to these statements, is to sacrifice substance of proof to orderliness of procedure, and the rights of the living party to consideration for the deceased witness.
According to the rulings of the court below, the death of the witness deprived the accused of the opportunity of cross-examining him as to his conflicting statements, and the loss of this opportunity of cross-examination deprived the accused of the right to impeach the witness by independent proof of those statements; and thus, while the death of the witness did not deprive the government of the benefit of his testimony against the accused, it did deprive the latter of the right to prove that the testimony of the witness was untrustworthy. By this ruling the court below rejected evidence of a positive character, testified to by witnesses to be produced and examined before the jury, upon a mere conjecture that a deceased witness might, if alive, reiterate his former testimony. (156 U.S. at 260-261, 15 S.Ct. at 346-347, 39 L.Ed. at 417).
*529 Although Mattox is a criminal case, the rule as applied there is applicable to civil suits as well. The majority of the court approved the trial court's refusal to permit the introduction of testimony of witnesses to impeach the testimony of one of the deceased witnesses upon the ground that the proper foundation had not been laid. The court said:
It is insisted, however, that the rule ceases to apply where the witness has died since his testimony was given, and the contradictory statements were either made subsequent to the giving of his testimony, or, if made before, were not known to counsel at the time he was examined; that, if such contradictory statements be not admitted, the party affected by his testimony is practically at the mercy of the witness; that the rule requiring a foundation to be laid is, after all, only a matter of form, and ought not to be enforced where it works a manifest hardship upon the party seeking to impeach the witness. The authorities, however, do not recognize this distinction. (156 U.S. at 246, 15 S.Ct. at 341, 39 L.Ed at 412).
Mattox cites the case of Craft v. Commonwealth, 81 Ky. 250 (1883), which held that:
* * * where the testimony of a witness, given upon a former trial, was reproduced, the witness having died, testimony to the effect that the witness, subsequent to the former trial, stated that the evidence given by him on that trial was false, was not competent. The rule is put upon the ground that, if the impeaching statements were admitted, there would be a strong temptation to the fabrication of testimony, by which important and true evidence might be destroyed. (156 U.S. at 249-250, 15 S.Ct. at 342, 39 L.Ed. at 413).
Noting that the enforcement of the rule might work an occasional hardship, the decision in Mattox emphasized that:
* * * [t]here is quite as much danger of doing injustice to one party by admitting such testimony as to the other by excluding it. The respective advantages and disadvantages of a relaxation of the rule are so problematical that courts have, with great uniformity, refused to recognize the exception. (156 U.S. at 250, 15 S.Ct. at 342-343, 39 L.Ed. at 413).
A majority of this Court is of the opinion that the majority rule is the better rule and the safest one to follow. However, Presiding Justice Gillespie and Justice Jones are of the opinion that the minority rule is the better rule and should be adopted by this Court. We hold that the objection to testimony of Dr. Woodworth concerning the statement of Alex Morris should have been sustained and that the trial court was in error in failing to so hold. The rule is that where testimony given on a former trial by a witness since deceased is properly introduced into evidence, it is incompetent to show that such witness had stated, since the trial, that such testimony was untrue. See Jones, The Law of Evidence in Civil Cases (3d ed. 1924) § 846.
For the reasons stated the judgment of the trial court is reversed and this cause is remanded for a new trial.
Reversed and remanded.
ETHRIDGE, C.J., and BRADY and SMITH, JJ., concur.
JONES, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611738/ | 82 Ariz. 211 (1957)
310 P.2d 830
William P. HAZARD, Petitioner,
v.
The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF PIMA, and Herbert F. Krucker, Presiding Judge thereof, Respondents, and Carl Shurtz, Real Party in Interest.
No. 6338.
Supreme Court of Arizona.
May 7, 1957.
*212 May, Lesher & Dees, Tucson, for petitioner.
Scruggs & Rucker and E.J. Valeski, Tucson, for real party in interest.
UDALL, Chief Justice.
Petitioner, William P. Hazard, instituted this original proceeding in certiorari against respondents, the superior court of the State of Arizona, in and for the County of Pima, and Honorable Herbert F. Krucker, presiding judge thereof, for the purpose of testing the legality of an order that, in effect, dismissed petitioner's appeal from the action of the Board of Adjustment of Pima County Zoning District No. 1, in granting a permit to one Carl Shurtz for the operation of a "sand and gravel pit". Shurtz was permitted to intervene as a defendant in the superior court proceeding, and he appears in this court as the real party in interest. For convenience the applicant for the writ will be designated petitioner, the court and judge will be styled respondents, and Carl Shurtz will be called by his surname.
The procedural steps giving rise to the instant petition for certiorari may be briefly yet comprehensively stated as follows: 1. Shurtz is the owner of certain patented ground in Sec. 27, Twp. 13 South, Range 14 East, of the G. & S.R.B. & M., which lies in and adjacent to the Rillito Wash that is north of the city of Tucson, and since the year 1950 a sand and gravel pit had been operated thereon. On July 26, 1954, Shurtz filed an application for a permit to operate a sand and gravel pit on the premises which, under the zoning ordinances of Pima County, were closed to such use except by special, conditional permit. The application was denied by the Zoning Inspector because under section 2404 of the County Zoning Ordinance it required a special permit from the Board of Adjustment, District No. 1, of Pima County.
2. Shurtz then appealed to the Adjustment Board for such special permit, which was granted on August 12, 1954.
*213 3. Certain persons affected appealed from the Board's action by filing a complaint on appeal in the Superior Court, naming the Board of Adjustment as defendant. Petitioner Hazard, a property owner in the area, was granted leave to intervene as a party plaintiff, and he thereafter filed a complaint in intervention which took the form of an appeal from the Board's action. The complaint also charged Shurtz with the maintenance of a public nuisance and sought injunctive relief on that basis. Shurtz was permitted to intervene, and he filed an answer to the Hazard complaint wherein, inter alia, it was alleged his activities in the area constituted "mining operations" that are specifically exempted from the provisions of the County Planning and Zoning Act of 1949, Sec. 16, Chap. 58, L. 1949, now A.R.S. § 11-830, subd. A (2).
4. A pre-trial conference was held before the respondent judge at which counsel for all of the parties participated; it was there stipulated and agreed that there were three basic law questions to be submitted for determination before proceeding further or considering questions of fact that might thereafter be stipulated to. These questions were: (a) In the light of the zoning ordinances as adopted by the board of supervisors of Pima County, does the law authorize the granting of a sand or gravel pit in an S.R. (suburban ranch) zone at all? (b) Is a sand and gravel pit, such as is being operated by Shurtz, "mining" within the concept or purview of the zoning Act of 1949, supra? (c) Is this particular operation, as carried on by Shurtz, a sand and gravel pit as contemplated by the law or is it a rock crushing or a processing plant?
All parties were further agreed that the respondent judge might personally inspect the premises where these operations were being carried on as it was thought this would be more enlightening than any oral testimony. However, for the benefit of the reader, we submit a short description of the operations as testified to by Shurtz:
"We have a silent drag line no motors electric, that pulls this sand from 600-foot angle in this river up this ramp into a hopper which feeds into this hopper, makes a right angle turn into this drum which washes this material with 150 gallons of water per minute. It goes over a screen which divides it into three different sizes. From there the coarsest goes into a crusher, it's crushed down to size and re-run over the belt back in to be graded into different bins. These belts take the material after the bins are full and takes them out and stockpiles them in piles to be used and hauled away."
Shurtz further stated, "We mine sand and gravel for public sale and for use in our (cement block) plant."
*214 The questions of law involved were thoroughly briefed by counsel and the court thereafter, on September 7, 1955, entered an order, the pertinent parts of which read:
"The first question namely, `Does the law authorize the granting of a sand or gravel pit in an SR zone at all?' need not be answered because the Court feels, and I think attorneys for both sides will agree, that the second question that is, `Is a sand and gravel pit mining?' should be answered in the affirmative.
"With this answer to the second question that is, `The operation is mining' then the operation of the sand and gravel pit in question is not subject to the zoning law at all and the proceeding before the Board of Adjustment is a nullity and of no effect.
"The third question need not be answered. This question is: `Is the operation by Carl Shurtz a sand and gravel pit as contemplated by the law?' If it is a mining operation the zoning law does not apply to it.
"The next question namely, `Is it a processing plant?' and/or, `Is it a rock crushing plant or something else?' need not be decided because the Court feels from reading the cases that crushing, grinding or sorting are all parts of mining the sand or gravel and incident thereto and, therefore, not subject to the zoning law."
After making these determinations the court concluded that the alleged maintenance of a public nuisance wherein injunctive relief and such damages as might be shown were sought, was the only issue remaining for trial. This issue was subsequently tried to the court, sitting with a jury; it found that the operations complained of did not constitute a public nuisance. In the judgment that was entered denying injunctive relief and damages to the plaintiffs the court's first finding was:
"1. That the sand and gravel extraction and processing operations of the defendant on the premises at 4300 East River Road are mining operations and thereby exempted from the operation of the zoning ordinances of Pima County."
This judgment is now before us on appeal in cause No. 6314. In determining this certiorari matter we are nowise concerned with the merits of that appeal; however, that court file is a part and parcel of the respondents' return to the certiorari writ.
The grounds stated in the petition, as a basis for issuing the writ of certiorari, are that:
(1) The respondent court, on the appeal then before it, neither affirmed nor reversed the action of the Board of Adjustment in granting Shurtz a special permit to operate *215 a sand and gravel pit, that instead the court ruled as a matter of law that Shurtz' operations heretofore outlined are "mining" and therefore exempt under the statute from the operation and effect of the Pima County zoning ordinance.
(2) In dismissing petitioner's appeal from the action of the Board of Adjustment the court ruled that the action of said Board was a nullity and that, hence, the appeal therefrom was a nullity.
(3) Respondents erred as a matter of law in making the above rulings and, therefore, in ordering a dismissal of the appeal, it is contended the court exceeded its lawful jurisdiction.
(4) Finally it is asserted the respondents erred as a matter of law in ruling that Shurtz' operations are "mining" within the purview of the statute.
At the outset we are confronted with a motion filed by Shurtz to quash the writ of certiorari heretofore issued and to dismiss these proceedings. It challenges our jurisdiction to issue certiorari in this matter, the basis for such contention being that the respondent court had jurisdiction (a) of the parties to the action, (b) of the subject matter, and (c) to enter the particular orders, rulings and determinations of issues set forth in the preceding paragraph. It is urged that all such rulings were
"* * * made and entered in the course of the proceedings before said court, were within the jurisdiction of said court to make and enter and were within the scope of the issues made by the pleadings then before said court in said action and were orders, rulings and determinations which could be legally rendered on the issues shown by the record before the court at the time of the ruling * * *."
In that connection it is interesting to observe from the reporter's transcript that at the pre-trial hearing after the three questions, supra, had been stated by Attorney Scruggs, this occurred:
"Mr. Scruggs: `* * * Now, have I covered it or do you want to add anything?'
"Mr. Frey: `I want to add this here: we also came to the understanding that all these parties were properly before the Court and that the Court did have jurisdiction to pass on this problem. Is that right?'
"Mr. Scruggs: `That is correct.'
"Mr. Lesher: `Yes.'"
We have concluded that the following is the primary question presented by the motion to quash or dismiss: May certiorari be used to test the correctness of the action of the respondent court in dismissing the appeal from the order of the Board of Adjustment?
Our statute, A.R.S. § 12-2001, provides that certiorari may be granted only *216 when the inferior tribunal has exceeded its jurisdiction and there is no appeal, nor, in the judgment of the court, any plain, speedy and adequate remedy. In the instant case the appeal statute, A.R.S. § 11-807, is silent as to any further review beyond the superior court in zoning matters. Thus, as the right of appeal exists only by force of statute, an appeal to this court would not lie; hence, this one requirement for certiorari is met. See, Him Poy Lim v. Duncan, 65 Ariz. 370, 371, 181 P.2d 357, and Duncan v. Truman, 74 Ariz. 328, 331, 248 P.2d 879. That leaves for determination only the narrow question as to whether the respondent court exceeded its jurisdiction in dismissing the appeal.
In the Truman case, supra, two pertinent pronouncements are made: (1) "by its very nature a writ of certiorari never issues to correct mere error committed by a lower tribunal * * *"; (2) "by definition jurisdiction is the power to hear and determine * * * irrespective of whether the case is decided rightly or wrongly" (74 Ariz. at page 331, 248 P.2d at page 882). Here petitioner contends that if the trial court were wrong in its determination that a sand and gravel pit processing plant was, under the statute, exempt from zoning, then it had no jurisdiction to enter the order of dismissal. In State ex rel. Andrews v. Superior Court of Maricopa County, 39 Ariz. 242, 245, 5 P.2d 192, we held that certiorari issues only to test jurisdiction and not to determine whether it was erroneously exercised. See also, Duncan v. Truman, supra.
From the pleadings aside from the nuisance angle it is apparent that the main issues before the respondent court were whether the Adjustment Board properly exercised its power in issuing Shurtz a permit to operate the sand and gravel pit, and, secondly, the basic question of whether such operations were by statute "mining" and, therefore, exempt from the zoning ordinance. By its order of September 7, 1955, supra, the court resolved both of these questions. Assuming, for the sake of argument, that the court incorrectly answered the basic question, that of itself would not deprive the court of jurisdiction as its power is not limited to making correct decisions.
We hold, on this record, the respondent court did have jurisdiction within the broad meaning of this term to do what it did and that it nowise acted in excess of its jurisdiction. This being true it is both unnecessary and improper for us in this certiorari proceeding to determine whether the trial court correctly resolved the "mining" question.
The writ of certiorari heretofore issued is ordered quashed.
WINDES, PHELPS, STRUCKMEYER and LA PRADE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611739/ | 181 Kan. 139 (1957)
310 P.2d 217
In the Matter of the Condemnation of Land for Kansas Turnpike Project, ELMER TINBERG and CLARA TINBERG, Appellees,
v.
THE KANSAS TURNPIKE AUTHORITY OF THE STATE OF KANSAS, Appellant.
No. 40,461
Supreme Court of Kansas.
Opinion filed April 6, 1957.
Donald C. Little, of Kansas City, and Thomas W. Cunningham, of Topeka, both argued the cause, and Robert M. Cowger, and Bruce Works, both of Topeka, were with them on the briefs for the appellant.
Lee E. Weeks, of Kansas City, argued the cause, and Arthur J. Stanley, Jr., J.E. Schroeder, Leonard O. Thomas, J.D. Lysaught, Robert H. Bingham, Richard Millsap, and Ervin G. Johnston, all of Kansas City, were with him on the briefs for the appellees.
The opinion of the court was delivered by
PARKER, C.J.:
This is an appeal from a judgment in a condemnation proceeding to condemn land for the Kansas turnpike project.
On June 1, 1955, the Kansas Turnpike Authority, as authorized by G.S. 1955 Supp., 68-2006, instituted a proceeding under the provisions of G.S. 1949, 26-101 et seq., in the district court of Wyandotte County, to condemn land, belonging to Elmer Tinberg and Clara Tinberg, for turnpike project purposes. Thereafter, and on October 22, 1955, the Authority instituted a second proceeding in the same court to condemn land from the same tract for further project purposes. Timely appeals, as permitted by G.S. 1949, 26-102, were taken from appraisements of these two tracts of land by both the Authority and the landowners, resulting in the filing of two separate cases in the district court of Wyandotte County.
On March 21, 1956, some ten months after its initial action, the Authority instituted a third eminent domain proceeding in the district court of Wyandotte County, to condemn land from the same tract for additional turnpike project purposes. After the award by appraisers in this proceeding the Authority, on April 9, 1956, perfected an appeal to the district court, which was filed and docketed as a separate action. On the same date, although the first two appeals had been set for trial on a day certain, the Authority filed a motion to consolidate all three actions for purposes of trial. After a hearing this motion was sustained as to the two cases that had been set for trial and denied as to the third.
*141 The trial of the consolidated cases commenced on April 16, 1956. It continued for approximately four days. At that time, all parties having introduced their evidence, the court gave written instructions, to which no objections were made. Thereafter the cause was submitted to the jury which, in due time, returned a general verdict in favor of plaintiffs in the sum of $13,715.00 together with its answers to special questions, submitted by the court, which read:
"QUESTION No. 1: What do you find to be the highest and most advantageous use of plaintiffs' entire tract consisting of 57 acres, as of June 30th, 1955? ANSWER: Subdivide into acreage tracts.
"QUESTION No. 2: What do you find to be the reasonable market value of the plaintiffs' entire tract consisting of 57 acres immediately prior to June 30, 1955? ANSWER: $28,500.00.
"QUESTION No. 3: What do you find to be the reasonable market value of the 13.02 acres taken by the defendant as of June 30, 1955? ANSWER: $10,415.00.
"QUESTION No. 4: Do you find there to be any reduction in market value of the remaining 44 acres of the plaintiffs' land immediately after June 30, 1955? ANSWER: Yes.
"QUESTION No. 5: If you answer Question No. 4 above in the affirmative, state:
"(a) The market value of the remaining 44 acres immediately prior to June 30, 1955. ANSWER: $22,000.00.
"(b) The market value of the remaining 44 acres immediately after June 30, 1955. ANSWER: $18,700.00."
Thereupon the trial court approved the general verdict and rendered judgment in accord therewith.
Following action, as heretofore indicated, defendant filed a motion to set aside finding No. 3; a motion for judgment on findings Nos. 2 and 5, notwithstanding the verdict; a motion to set aside the verdict and grant a new trial for lack of evidence to sustain the answer to special question No. 3; a motion to modify the general verdict to conform to the special findings of the jury; and a motion for a new trial, one ground of which charged that the general verdict and the answers to special questions were contrary and inconsistent, one with the other. Upon the overruling of all these motions defendant gave notice it was appealing from the judgment and the rulings on all motions, heretofore mentioned, thus bringing the cause to this court for appellate review.
At the outset, conceding that there were three separate appraisements from which there were a like number of appeals, that our statute (G.S. 1949, 26-102) provides that in eminent domain proceedings *142 the appeal from each appraisement shall be docketed and tried the same as other actions, and that there were three condemnation actions pending between the Authority and the involved landowners, appellant contends that because all three proceedings involved the same tract of real estate the trial court was required to consolidate such actions for trial, even though two of such actions had been set for trial before issues could be joined in the third, hence its action in refusing to do so was erroneous. Otherwise stated, appellant's position is that, regardless of the existing facts and circumstances, where two or more condemnation actions, involving the same tract of land, have been docketed in district court the trial court has no discretion whatsoever in assigning those actions for trial but must, as a matter of law, consolidate the actions for trial purposes where the condemner has requested action of that character.
The question thus raised has been decided contrary to appellant's position in one of our latest decisions which holds the rule followed in the consolidation of eminent domain cases for trial is not one of substance but one of procedure and that under such rule the trial court is not obliged as a matter of substantive law to consolidate appeals brought under provisions of the eminent domain statute. See Moore v. Kansas Turnpike Authority, (This day decided), 181 Kan. 51, 310 P.2d 199, where, in dealing with the subject and in rejecting a similar contention, we said:
"... In this jurisdiction the rule followed in consolidation of cases for trial is not one of substance but one of procedure. G.S. 1949, 60-765, provides:
"`Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no cause be shown the said several actions shall be consolidated. The order for consolidation may be made by the court or by a judge thereof in vacation.'
"One of the requirements of the consolidation statute is whether or not the actions could have been joined in the first instance. G.S. 1949, 60-601, provides:
"`The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of actions so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.'
"Motions for consolidation under these statutes are in the sound discretion of the trial court. (Railway Co. v. Hart, 7 Kan. App. 550, 51 P. 933; Rice & Floyd v. Hodge Bros., 26 Kan. 164; and Todd v. Central Petroleum Co., 153 Kan. 550, 112 P.2d 80.)" (p. 59.)
*143 In the face of the facts of record we have no difficulty in concluding the trial court did not abuse its discretion in refusing to consolidate the third of these condemnation actions with the two which it had previously set down for trial. Therefore, adherence to the rule announced in the case from which we have just quoted compels a conclusion the trial court committed no error in refusing to consolidate all three of such actions for trial.
Another question, raised by appellant in the court below and here subject to review, presents a far more serious issue than the one just decided and, for reasons to be presently disclosed, will be determined out of the order in which it is argued. It is that the special questions are inconsistent with each other and with the general verdict, hence the verdict and answers to such questions cannot stand and a new trial must be granted. If the record sustains the factual premise on which appellant bases its position on this point there can be no question regarding the law applicable to its disposition.
The rule of this jurisdiction, so well established as to hardly require a citation of the decisions supporting it, is well-stated in McCoy v. Weber, 168 Kan. 241, 212 P.2d 281, where it is held:
"Consistent special findings control the general verdict when contrary thereto but when they are inconsistent with one another some showing a right to a verdict and others showing the contrary the case is left in the condition of really being undecided and a new trial should be granted." (Syl. ¶ 2.)
For other decisions of like import, and without attempting to exhaust the field, see Willis v. Skinner, 89 Kan. 145, 130 P. 673; Berry v. Weeks, 146 Kan. 969, 73 P.2d 1086; In re Estate of Erwin, 170 Kan. 728, 228 P.2d 739; Denman v. Colorado Interstate Gas Co., 179 Kan. 180, 184, 294 P.2d 207; King v. Vets Cab, Inc., 179 Kan. 379, 385, 295 P.2d 605, and numerous other decisions therein cited.
With the rule established we turn directly to the question raised by appellant, noting as we do so, that where as here all the landowner in a condemnation proceeding is entitled to receive is compensation for the market value of the land taken and damages for the difference in value of the remainder of the tract before and after the appropriation (See, e.g., Smith v. Wyandotte County, 113 Kan. 244, 214 P. 104; Case v. State Highway Comm., 156 Kan. 163, 166, 131 P.2d 696; Mai v. City of Garden City, 177 Kan. 179, 277 P.2d 636; Simmons v. State Highway Commission, 178 Kan. 26, 30, 283 P.2d 392.) the extent of his recovery is limited, in any event, to the reasonable *144 market value, immediately prior to the appropriation, of the entire tract involved. In other words diminution in value of the land remaining after appropriation and the value of that taken in a condemnation proceeding can never exceed the market value of the entire tract involved, otherwise there would be a taking of the entire tract for all practical purposes of the condemnation.
Having reached the conclusion just announced it becomes apparent that in the instant case the jury was required to give consideration to three composite elements in order to determine the amount of the appellees' recovery, i.e., the market value of the land taken; diminution in value of that remaining, based on difference in value of the tract remaining, before and after the appropriation; and the market value of the tract remaining after the appropriation, the sum total of which three elements, when added together, could not exceed the market value of the entire tract immediately prior to the taking.
It appears from the answers to the special questions that, after determining the market value of the entire tract (See Questions Nos. 1 and 2), the jury gave consideration to all three of the elements to which we have heretofore referred. In the answer to special question No. 3 it found the reasonable market value of the tract taken was $10,415. By its answers to question No. 5 (a) and (b) it determined that the injury to and depreciation of the remainder of the tract, resulting from the appropriation, amounted to $3,300. And by its answer to question No. 5 (b) it found that the market value of the remaining 44 acres was $18,700. Thus, by the simple process of addition, it becomes obvious that the jury found that the sum total of the value of the land taken, damages to the remainder, and the market value of the remainder, amounted to $32,415, exceeding by $3,915, the amount fixed by it as the value of the entire tract immediately prior to the appropriation. Nor can it be said, as appellees suggest, that the special questions when considered, singly or collectively, are consistent with the general verdict. When the amount of the verdict ($13,715) is added to $18,700, the amount found to be the value of the land remaining, we arrive at a total of $32,715, which exceeds by $3,915, the value of the entire tract involved as fixed by the jury in its answer to question No. 2.
In our opinion what has been heretofore stated demonstrates beyond all doubt that the answers to the special questions are inconsistent with each other and with the general verdict. Therefore *145 application of the rule, to which we have heretofore referred, requires that the judgment be reversed and the cause remanded for a new trial.
We find nothing in contentions advanced by appellant to warrant a conclusion it is entitled to judgment on the special findings. Nor do we agree with appellees' position that the answers to special question No. 5 (a) and (b) are immaterial to the issues involved on appeal and for that reason should be disregarded. All other claims of error relied on relate to alleged trial errors which, since the case is to be retried in the court below, need neither be considered nor discussed.
The judgment is reversed and the cause remanded with directions to grant a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913928/ | 981 A.2d 914 (2009)
COM.
v.
CORREA.
No. 1298 EDA 2008.
Superior Court of Pennsylvania.
July 1, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326487/ | Lauriat, Peter M., J.
In this action, Lenders Title Services, Inc. (“LTS”) and Suzanne Accardo (“Accardo”) brought a third-parly claim against Bank of America, N.A. (“BOA”), seeking contribution pursuant to G.L.c. 23 IB, and for breach of an implied contract. Both claims arise from an alleged failure to discharge an open-ended home-equity line of credit mortgage given to BOA’s predecessor in interest.
BOA has now moved for summary judgment on LTS’s claims against it. For the following reasons, BOA’s motion for summary judgment is allowed.
BACKGROUND
The pleadings, affidavits, and memoranda set forth the following facts. Old Republic National Title Insurance Company (“Old Republic”) is a Minnesota corporation with its usual place of business in Andover, Massachusetts. SAA Group, LLC (“SAA”) is a Delaware limited liability company with its usual place of business in Woburn, Massachusetts. SAA is affiliated with the Ablitt Law Offices, P.C. (“Ablitt”) of Woburn, Massachusetts.
On or about June 27, 2002, Fleet National Bank (“Fleet”) filed an Open End Mortgage in the Bristol County Registry of Deeds on property at 415 Lindsey Street in Attleboro, Massachusetts (“the Property”), that was intended to secure a $120,000 home equity line-of-credit loan it had made to Ricky and Linda Greigre. In 2003, the Greigres decided to refinance that debt with a loan from the Washington Mutual Bank (“WAMU”), to be secured by a mortgage on the Property, in an amount greater than the Fleet loan. To protect its interest, WAMU purchased a title insurance policy from Old Republic, through its agent, Lenders *309Title Services, Inc. (“LTS”), whose presidentis Suzanne Accardo (“Accardo”).
In advance of the closing, LTS obtained from Fleet the pay-off amount of $ 120,899, for the Greigres’ then existing home equity loan. LTS conducted the closing of the refinancing on or about January 28, 2003, and in connection therewith, recorded WAMU’s mortgage in the Bristol County Registry of Deeds. On February 4, 2003, LTS delivered a check to Fleet in the amount of $120,899, in full payment of the Greigres’ home equity loan. Fleet, however, did not freeze or close the Greigres’ home equity loan account, and did not send LTS a discharge of its mortgage. Fleet’s failures apparently allowed the Greigres to re-borrow $120,000 against their home equity line-of-credit within days of the closing. At some point after February of2003, BOA acquired Fleet.
Late in 2005, the Greigres defaulted on their WAMU loan. WAMU engaged the Harmon Law Offices (“Harmon”) to foreclose on its mortgage. In conducting a title examination on the Property, Harmon noted that Fleet’s prior mortgage had not been discharged. On November 22, 2005, Harmon advised LTS of this encumbrance on the Property, and LTS in, turn, contacted BOA. On December 12, 2005, WAMU assigned the Greigres’ Note and mortgage to DLJ Mortgage Capital, Inc. (“DLJ”). In turn, DLJ engaged Select Portfolio Services, Inc. (“SPS”) to act as its attorney-in-fact and loan servicer in connection with the foreclosure of the WAMU/DLJ mortgage on the Property. SPS engaged the law firm of Ablitt & Charlton (“Ablitt”) to conduct the foreclosure proceedings on behalf of DLJ.
On January 31, 2006, in an apparent response to LTS’s inquiry, BOA executed a Discharge of Mortgage with respect to the Greigres’ 2002 Fleet home equity line-of-credit loan, and on February 14, 2006, that discharge was recorded in the Bristol County Registry of Deeds. On February 21, 2006, BOA executed a second Discharge of Mortgage with respect to the Greigres’ 2002 Fleet home equity line-of-credit loan, and on March 6, 2006, that discharge was recorded in the Bristol County Registry of Deeds. However, at the times that these mortgage discharge notices were filed, the Greigres still owed Fleet n/k/a BOA at least $120,000 on their home equity line-of-credit loan.
On March 29, 2006, BOA—asserting “clerical error and mistake”—executed a Revocation of Discharge of Mortgage, which was recorded in the Bristol County Registry of Deeds on June 30, 2006.
On November 15, 2006, BOA commenced a declaratory judgment action against the Greigres, DLJ, and another in the Bristol County Superior Court (“the Bristol Action”) seeking to void and revoke its discharge of the Fleet mortgage. On December 7, 2006, BOA recorded a Memorandum of Lis Pendens against the Property with the Bristol County Registry of Deeds. Although Ablitt and DLJ had become aware of the Bristol Action by not later than November 20, 2006, DLJ did not take any steps to defend itself in that case.
On January 4, 2007, Ablitt, representing DLJ, sent a claim letter to Old Republic informing Old Republic that “a recent title examination for the purpose of foreclosing on the said mortgage indicates that a senior mortgage exists in favor of Fleet National Bank in the principal amount of $120,000.” The letter did not disclose, mention or reference the Bristol Action. Old Republic acknowledged receipt of the claim letter the same day, and, as a matter of course, issued a Future Policy Indemnity Letter in which it agreed to “issue a new policy to the successful bidder at the foreclosure sale . . . without exception for this problem.”
On February 8, 2007, BOA secured a default judgment in the Bristol Action, thereby restoring its mortgage to first position, ahead of DLJ’s. Old Republic was not expressly informed of the Bristol Action by DLJ, SPS, Ablitt, or SAA until October 30, 2007. Moreover, Old Republic was not informed of BOA’s default judgment until December 12, 2007. Consequently, Old Republic was prevented from intervening in the Bristol Action and asserting a variety of viable defenses. Nonetheless, Old Republic informed DLJ that, should DLJ be successful in having the default judgment vacated, Old Republic would defend DLJ in the Bristol Action. DLJ, SPS, Ablitt, and SAA took no steps to remove the default judgment.
On or about April 15, 2008, BOA conducted a foreclosure of the Fleet Mortgage, thereby extinguishing the WAMU Mortgage. DLJ/SPS was the high bidder at the foreclosure sale and agreed to buy the property for $150,000. Ablitt paid both the bid deposit of $5,000, and the purchase price of $150,000 on behalf of DLJ in connection with the foreclosure sale.
On January 8, 2009, DLJ executed an Assignment of Claim in favor of SAA. SAA then sought indemnification under the Old Republic policy by virtue of this assignment. Old Republic refused, and the present action followed.
DISCUSSION
A motion for summary judgment shall be granted if admissible evidence “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass.R.Civ.P. 56(c). The moving party must affirmatively demonstrate that there are no genuine issues of material fact in dispute. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). “This burden... maybe satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Comm. Corp., 410 Mass. 805, 809 (1991). In response, the nonmoving party “must set forth sufficient facts showing that there is a genuine issue for trial.” Key Capital Corp. v. M&S Liquidating Corp., 27 Mass.App.Ct. 721, 728 (1989), quoting Mass.R.Civ.P. 56(e). A party may *310not rest on “conclusoxy statements, general denials, and factual allegations not based on personal knowledge” in opposing amotion for summary judgment. LaBrecque v. Parsons, 74 Mass.App.Ct. 766, 768 (2009).
I.Contribution
In its third-party complaint, LTS argues that if it is found to be liable to SAA, then BOA should be forced to contribute to any monetary judgment as a joint tortfeasor. General Laws c. 23IB, §1 states that:
Except as otherwise provided ... where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them even though judgment has not been recovered against all or any of them ... The right of contribution shall exist only in favor of a joint tortfeasor . . ,1
In Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648-49 (1978), the Supreme Judicial Court held that the equitable basis for permitting claims for contribution is to “remedly] . . . the unfairness of allowing a disproportionate share of the plaintiffs recovery to be borne by one of several joint tortfeasors.” The meaning of the phrase “liable in tort” should be accorded a broad interpretation and persons who qualify as tort-feasors should not be limited in scope. Id. at 649; McGrath v. Stanley, 397 Mass. 775, 781 (1986). In order for a defendant to assert a claim for contribution under G.L.c. 23IB, §1, the primary plaintiff need not have named the third-party defendant as a party in the original action. See McGrath, 397 Mass. at 781. Rather, all that is required is that “the party from whom contribution is sought could have been liable in tort.” Id.
BOA reasons that because G.L.c. 23IB, §1 applies only to claims involving “liability in tort,” then LTS’s third-party claim must fail because SAA does not assert a “tort-type” claim against LTS. Rather, SAA’s claim against LTS sounds only in contract. LTS disputes BOA’s characterization and points to SAA’s use of the language “breach of duty” in its complaint as evidence of a tort-based claim.
This court has already examined the issue of whether LTS’s negligent performance of its contractual duties provided a simultaneous and independent basis for relief in tort. In its Memorandum of Decision and Order granting SAA’s summary judgment motion against LTS, the court concluded that SAA did not assert a tort-type claim against LTS. Rather, SAA’s claim against LTS sounded only in contract. Thus, on the issue of contribution, BOA must prevail as a matter of law given that G.L.c. 23 IB, §1 applies exclusively to tort claims.2
II.Breach of Implied Contract
LTS next argues that BOA can be held liable for breaching an implied contract between the parties. “In the absence of an express agreement, an implied contract may be inferred from (1) the conduct of the parties and (2) the relationship of the parties.” T.F. v. B.L., 442 Mass. 522, 526-27 (2004) (citing W.A. Snow Iron Works v. Chadwick, 227 Mass. 382 (1917)). “An implied contract requires proof that there was a benefit to the defendant, that the plaintiff expected the defendant to pay for that benefit, and that the defendant expected, or a reasonable person should have expected, that he or she would have to pay for that benefit.” Id. “When the defendant was, or should have been, aware of the plaintiffs expectations in this regard, the defendant’s failure to object can create a contract." Id.
Here, no implied contract existed between BOA and LTS. Rather, the only contractual relationships that existed were between (1) LTS and SAA and (2) BOA and the Greigres. Thus, while LTS and BOA may have had business interaction with one another in light of their other contractual relationships, such behavior did not amount to an implied contract. Neither parly had a reasonable expectation that the benefit provided by their relationship would require return payment. To the contrary, BOA’s role in the transaction resulted from its contractual relationship with the Greigres, while LTS’s role in the transaction was the product of its contractual relationship with SAA. Because no implied contract existed between the parties, it is unnecessary to address the issue as to whether there was an implied indemnification agreement.
III.Indispensable Party
Finally, LTS asserte that BOA’s motion for summary judgment should be denied because BOA is an indispensable party within the meaning of Mass.R.Civ.P. 19. This Rule states that:
A person . . . shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action . . .
On this point, LTS’s argument fails because BOA is already a party to the action. “Joinder of additional parties is not necessary to accord complete relief among those already parties . . .” Commonwealth v. Town of Andover, 378 Mass. 370, 373 (1979). In other words, Rule 19 operates to join additional parties to an action in order to prevent inequity; however, Rule 19 does not preclude the court’s ability to eliminate a party from an action where equity does not require its involvement.
ORDER
For the foregoing reasons, Third-Party Defendant Bank of America’s Motion for Summary Judgment is ALLOWED.
Joint tortfeasors are defined as “two or more tortfeasors who contributed to the claimant’s injury and who may be joined as defendants in the same lawsuit.” Black’s Law Dictionary 1627 (9th ed. 2009).
Because BOA has prevailed on this point, the court does not address the parties’ arguments regarding the statutes of limitation. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2431243/ | 276 S.W.2d 912 (1955)
Joseph BROUSSARD, Appellant,
v.
AUSTIN ROAD COMPANY, Appellee.
No. 12817.
Court of Civil Appeals of Texas, Galveston.
March 17, 1955.
Walter E. Ressel, Galveston, for appellant.
Bondies & Flahive and Tom R. Hopkins, Dallas, for appellee.
HAMBLEN, Chief Justice.
This suit was originally filed by appellant in the County Court of Galveston County, to recover damages to his automobile alleged to have been sustained in a collision with an automobile owned by appellee. In the trial court appellee, in addition to a general denial pleaded an accord and satisfaction supported by a valuable consideration entered into between the parties to the lawsuit prior to the institution thereof. By supplemental petition, appellant tendered into court the sum of $100 which he admitted having accepted from appellee in settlement of the claim made the basis of the suit, but alleged a lack of authority to settle the same because of a previous assignment of such claim by him to National Automobile and Casualty Insurance Company by way of a subrogation agreement. Appellant further alleged knowledge of such assignment on the part of appellee at the time of the settlement, and that this suit was brought in the name of the appellant for the use and benefit of the assignee insurance company which had never released its claim. With the issues thus joined, appellee filed a motion for summary judgment, accompanied by the affidavit of Robert A. Fanning wherein on oath affiant stated that as a representative of appellee Austin Road Company he forwarded to appellant and to his attorney Walter E. Ressel, a draft in the sum of $100 incorporating a release of any and all claims against said appellee on account of the collision made the basis of this suit. Attached to the affidavit was a photostatic copy of the draft, incorporating the complete release, and *913 showing the endorsement of appellant and his attorney, and payment by the bank upon which it was drawn. The affidavit further recited that Walter E. Ressel, who is attorney for the appellant in this litigation, represented himself as attorney representing all parties at interest in the claim arising out of the collision here involved, and as being the attorney with whom the settlement was negotiated and consummated. This motion for summary judgment was answered by appellant by unsworn pleading asserting the existence of issues of fact as to (1) the identity of the real party plaintiff, (2) the fact of the assignment by appellant to National Automobile and Casualty Insurance Company, (3) the authority of appellant to execute the release pleaded, and (4) the authority of Walter E. Ressel to execute the release pleaded.
This appeal is from the action of the trial court in granting appellee's motion for summary judgment. The one point of error presented is premised upon the proposition that appellee did not discharge the burden of showing that there existed no genuine issue as to any material fact in that nowhere in appellee's motion or supporting affidavit is there any allegation or showing that the National Automobile and Casualty Insurance Company was not the real party at interest by way of subrogation, and that it had authorized, expressly or by implication, or by ratification, the release.
We overrule appellant's point. Aside from the fact that the same counsel represented the original claimant in the negotiation and consummation of the settlement pleaded, the party plaintiff in this litigation, and the asserted real party in interest and the imputed knowledge and authority to which that circumstance would necessarily give rise, we consider that the facts sworn to by appellee in its supporting affidavit, if taken as true, establish a complete defense to everything appellant alleged. We refer in particular to the sworn statement that $100 had been tendered and accepted by appellant in full payment of any and all claims against appellee on account of the collision made the basis of this suit. We further consider that upon the record here presented, that statement must be taken as true. It has been so held in the case of Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, 239 (Ref.N.R.E.). In discussing the applicability of Rule 166-A, T.R.C.P., to a fact situation similar to this, the San Antonio Court of Civil Appeals states as follows:
"Appellees' showing was supported by sworn factual statements sufficient upon their face to establish a complete defense to everything appellants alleged. The verity of those sworn statements was in no way challeged by counter-affidavits or other sworn statements. In the hearing to locate the dispute about genuine and material facts, all facts stood undisputed, unchallenged, uncontroverted. When such a condition exists, there are no facts to try, Fowler v. Texas Employers' Ins. Ass'n, [Tex.Civ.App.] 237 S.W.2d 373.
"To give effect to appellants' contentions we must hold that an unsworn petition in the complete absence of affidavits and sworn showing will supply the factual information sufficient to raise a fact dispute in a summary judgment proceeding. If this be the rule it is difficult to conceive a state of facts where a summary judgment would ever be useful except, perhaps, where one would already be entitled to judgment of dismissal or by default. Lindsey v. Leavy, 9 Cir., 149 F.2d 899; 3 Moore Federal Practice, pp. 3174, 3175; Note, 29 Texas Law Review 688. Such a holding will sound the requiem to a rule that has hardly been christened."
By virtue of representation by the same counsel, both the asserted nominal plaintiff and the asserted real party plaintiff were indisputably in a position to deny under oath any sworn statement which was untrue. Their failure to so deny amounts in effect to an admission of the truth of such sworn statement. Upon that admission, the judgment of the trial court properly rests, and is accordingly affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1458176/ | (2008)
THERASENSE, INC., Plaintiff,
v.
BECTON, DICKINSON AND COMPANY, Defendant.
and Consolidated Cases.
Nos. C 04-02123 WHA, C 04-03327 WHA, C 04-03732 WHA, C 05-03117 WHA.
United States District Court, N.D. California.
June 24, 2008.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
WILLIAM ALSUP, District Judge.
INTRODUCTION
After a bench trial, this order constitutes the findings of fact and conclusions of law. Both sides have submitted lengthy proposed findings and conclusions. Rather than address each and every proposal, this order will find its own way through the evidence and arguments. Any proposal that has been expressly agreed to by the opposing side, however, shall be deemed adopted even if not expressly stated herein. That a proposal has not been expressly covered herein does not necessarily mean it was rejected; it only means that the Court found it unnecessary to reach.
THE PROCEDURAL HISTORY OP THE CASE
Abbott Laboratories filed the first of these actions on May 28, 2004. Three subsequent actions were filed. All concerned four United States patents owned by Abbott and Therasense, Inc.[1] U.S. Patent No. 5,820,551 is the subject of this order. These actions were originally assigned to The Honorable Martin J. Jenkins. Judge Jenkins issued a first claim construction order for certain other patents and a separate claim construction order for the '551 patent. He also issued three separate summary judgment orders. The final one, dated April 3, 2008, involved all parties and all patents in suit. While the final summary judgment order did eliminate several infringement counts, several other claims were still viable. Immediately after issuing the final summary judgment order, Judge Jenkins left the federal bench, and all four cases came to the undersigned.
All four cases were subsequently consolidated and a trial date was set for May 27, 2008. All defendants were permitted to file one more round of summary judgment motions and each party was allowed motions in limine. A technology tutorial for the undersigned was also held. The motions for summary judgment and motions in limine were fully briefed. A first omnibus order ruled on the motions for which oral argument was not required. Argument was then heard for the remaining pending motions. In a second omnibus order, the final pending motions were decided. Defendant Roche Diagnostics Corporation subsequently settled on the eve of trial.
During this time, the Court and counsel also addressed the shape of the trial. It was decided that a trial on the '551 patent would be held first with all defendants and would be broken up into three separate phases: (i) invalidity and unenforceability; (ii) infringement (if needed); and (hi) willfulness and damages (if needed). All parties then stipulated that phase one of the '551 trial would be tried to the bench. Defendants raised four issues for phase one: inequitable conduct, obviousness, prosecution laches, and non-compliance with the written-description requirement.
When the trial on the '551 patent began, the remaining defendants were Bayer Healthcare, LLC, Becton Dickinson & Company, and Nova Biomedical Corporation (collectively "BD/Nova"). Before trial began, Abbott made a request to add Attorney Lawrence Pope as a live trial witness in its case-in-chief. During Attorney Pope's deposition, Abbott's counsel had on three separate occasions insisted to defense counsel that Attorney Pope would not appear in person at trial. This was said in aid of repeated instructions not to answer. Attorney Pope was, therefore, scheduled to appear only through video-deposition. Based on Abbott's insistence at deposition that Attorney Pope would not appear live at trial, Abbott's request to have Attorney Pope appear as a live trial witness was initially denied. This denial was on the ground that it would be unfair to defendants, who had relied on the deposition representations to their detriment in not bringing Rule 37 motions. During trial, however, Abbott renewed its motion to allow Attorney Pope to testify in person at trial. The Court then asked Abbott to submit a sworn proffer showing the proposed statement of Attorney Pope's testimony. Abbott submitted a declaration signed by Attorney Pope detailing the facts he would cover in his testimony. Because of the seriousness of the accusation against Attorney Pope, the Court relented and allowed Abbott to call Attorney Pope in its case-in-chief on those topics raised in his declaration.
After defendants closed their case-in-chief, Abbott moved for partial findings under Rule 52(c) that defendants had failed to meet their burden of proof with respect to their defense of prosecution laches. The motion was granted on the ground that defendants had failed to show any intent to delay prosecution of the '551 patent or that substantial prejudice resulted from any such delay. Abbott also moved for partial findings as to defendants' remaining invalidity defenses. These motions were all denied. Abbott rested its case-in-chief on June 2 and closing arguments were heard on June 3. This order now follows.
THE UNITED KINGDOM WORK
United States Patent No. 4,545,382 (and its European counterpart) is a decisive item of prior art in this decision. Here is its story. In the late 1970's and early 1980's, two research groups at the University of Oxford and the University of Cranfield in the United Kingdom were working on electrochemical sensors to detect the concentration of specific components in solutions. In particular, they were interested in developing electrochemical sensors that could be used to test glucose levels in human blood. Doctors Irving Higgins, Hugh Hill, and Elliot Plotkin were part of these research groups. In 1981, both groups teamed with a newly founded company, Genetics International, which was co-founded by James McCann. One goal was to create the first commercial electrochemical sensor for glucose.[2]
In 1981, the researchers filed their first patent application. This became the '382 patent in the United States and No. 0078,636 B2 in the European Patent Office. The specification taught an improved electrochemical sensor for use in various liquid mixtures. The sensor was an electrode coated with specified chemicals that generated a tiny but detectable flow of electricity in the presence of glucose. The technology itself will be described below. In brief, the chemicals coated onto the electrode combined with glucose or whatever other "substrate" was being tested to generate small currents of electricity, which could then be measured by an ammeter. The higher the concentration of substrate, the higher the electrical current, and the higher the meter reading. The patent disclosed certain ferrocene chemistry that allowed for fasting testing.
Although the United States '382 patent lived out its seventeen years without incident, its EPO counterpart (i.e., the '636) was eventually revoked based on a German prior-art reference that was cited by a third party in a European opposition proceeding. That was in the mid-1990's. The decision to revoke the patent was appealed, however, and the patent was eventually reissued by a technical board of appeal in the European Patent Office. Certain submissions made along the way by Abbott's predecessors, however, have turned out to be important in this proceeding by reason of their non-disclosure to the PTO during prosecution of the '551 patent in suit.
The research group continued its work on sensors for testing glucose levels in blood. Dr. Hill and his colleagues filed several additional patent applications, which were later combined to form a single United States patent application. All parties herein agree that the resulting U.S. Patent No. 5,820,551the patent in suit claims priority to May 1983. James McCann and Drs. Hill, Higgins and Graham Davis were listed as the inventors.
Originally, the claimed invention of the '551 patent was the development of a disposable electrode strip whose electrodes could be covered by a single drop of solution. These one-use strips would be inserted into a convenient unit for digital readout of the level of a target compound (like glucose) in a test liquid mixture (like blood). After a strip was used to generate a readout, it could be thrown away.
The '551 patent was in prosecution for over fourteen years. During this period, Genetics International changed its name to Medisense, Inc. Various claims were rejected twelve times by the PTO examiner, David Shay. Eleven out of the twelve rejections relied on the '382 patent or its European counterpart, the '636 patent. During this prolonged prosecution, Medisense amended the proposed claims several times to overcome rejections by Examiner Shayall without success. At times, Medisense also submitted declarations from persons of ordinary skill in the art to distinguish its claims from the prior art. None of the proposed amendments ever included a limitation for a sensor without a filter or a membrane.
In the meantime, several other companies, including defendants Bayer Healthcare, LLC, and Becton Dickinson & Company, had begun manufacturing and selling disposable electrochemical sensors for diabetic patients.
In 1996while the '551 patent was still pending before the PTOMedisense was purchased by Abbott Laboratories. After the acquisition, Abbott brought in one of its in-house patent attorneys to take over the prosecution of the '551. That attorney was Lawrence Pope. Attorney Pope worked in conjunction with several technical employees at Medisense, including Dr. Gordon Sanghera, to "brainstorm" various arguments regarding the patentability of the '551. Dr. Sanghera had worked at Medisense since 1990. As of 1997, he was its director of research and development in the United States. His responsibilities included running competitive analysis in conjunction with the marketing department and supervising Abbott's patent portfolio. Dr. Sanghera had also previously worked for Dr. Hill at his laboratory at Oxford University. He had researched electrochemical sensors, but he had not been involved in the research that led to any patents involved herein. Dr. Sanghera had, however, attended the European opposition hearings and had been active in crafting the submissions made in that appeal.
Dr. Sanghera and Attorney Pope struck upon a new point of possible novelty previously overlooked in the pending prosecution. The new point was that the specification disclosed a sensor for use in whole blood without any protective membrane. Trouble was, a passage in the earlier '382 patent already seemed to disclose membraneless sensors. That passage read' (col.4:63-66):
Optionally, but preferably when being used on live blood, a protective membrane surrounds both the enzyme and the mediator layers, permeable to water and glucose molecules.
To address this problem, Abbott decided to assert, as a matter of extrinsic fact, that in 1983 skilled artisans would have believed that a membrane was essential even in the face of the '382 disclosure, i.e., they would not have taken the quoted sentence literally.
Attorney Pope then held an interview with Examiner Shay on November 4, 1997. Examiner Shay summarized the interview as follows (TX 469):
Applicant indicated that he would like to submit claims specifically covering a compound specific electrode with the filtering membrane absent. The Higgins et al. ('382) disclosure was discussed especially] the paragraph spanning columns 4 & 5. It was determined that since Higgins et al. appear to require the membrane for use with whole blood (see example 8) an affidavit or other evidentiary showing that at the time of the invention such a membrane was considered essential would overcome this teaching.
As arranged in the interview, Attorney Pope submitted a declaration by Dr. Sanghera on December 3, 1997, along with amendments to the claims. The declaration stated in relevant part (TX 443):
THAT based on his historical knowledge he is confident that on the filing date of the earliest application leading to the present application on June 6, 1983 and for a considerable time thereafter one skilled in the art would have felt that an active electrode comprising an enzyme and a mediator would require a protective membrane if it were to be used with a whole blood sample. Therefore he is sure that one skilled in the art would not read lines 63 to 65 of column 4 of U.S. Patent No. 4,545,382 to teach that the use of a protective membrane with a whole blood sample is optionally [sic] or merely preferred.
The entire submission was aimed at overcoming the "optionally, but preferably" sentence in the '382 patent.
Attorney Pope submitted parallel remarks stating that those of ordinary skill in the art believed that the use of a protective membrane was "required" when testing whole blood and that they would have understood the sentence in question as mere patent phraseology, not a technical teaching. Based on Dr. Sanghera's declaration and Attorney Pope's remarks, Examiner Shay finally approved the proposed claims and the patent issued on October 13, 1998. The foregoing findings will be amplified with many details below.
INVALIDITY
In this action, the central axis of contention concerns membranes and, more particularly, their use as a permeable layer surrounding the chemistry coated onto the active electrode. Late in the fourteen-year prosecution, as stated, Abbott advanced the theory that the '551 specification revealed a sensor without a protective membrane. However, a key prior art referencethe inventors' own '382 patent had already stated that such membranes were optional and at most preferred in certain circumstances, as quoted above. This '382 sentence was raised by the examiner as having already taught that membranes were merely optional or preferred. In response, as stated, Abbott took the position (and still maintains) that the sentence would not have been understood in 1983 by those skilled in the art to have modified a supposed conventional wisdom that a membrane was necessary for testing in whole blood.[3] Defendants disagree. They point out that the '382 sentence expressly stated that even for live blood, a membrane was merely "preferred" and that for all other cases it was "optional." In no case was it said to be "required."
With this introduction of the central invalidity issue, this order will go back to square one. It will begin by setting forth the basic technology. It will then review the '382 patent, focusing on its entire disclosure, including the sentence in question, so as to place that sentence in full context, all from the point of view of one skilled in the art at the time of the alleged '551 invention (in 1983).
* * *
Although this summary of the technology is now stated in the present tense, this summary was all known in the prior art. The electrochemistry involves an electrode coated with an "enzyme" catalyst. The enzyme is particularly selected to react with glucose or whatever the test substance might be. Again, the substance being tested for is sometimes, as used by Medisense in the EPO proceedings, called a "substrate."[4] The enzyme-substrate chemical reaction generates electrons. The electrons are passed via yet another chemical called a "mediator," also coated onto the electrode, to the active electrode itself. The electrons then flow as a tiny but measurable electrical current down the active electrode through an ammeter and back to the other uncoated electrode. The blood droplet or other solution under test provides an electrical path completing the circuit between the electrodes. The word "sensor" is sometimes used interchangeably with the active electrode, i.e., the electrode painted with the active chemistry.
An analogy is to a battery. Battery chemicals generate electrons and thus electricity, which can then be used to do work, such as to drive a meter. In the technology at hand, the active chemistry is the glucose, enzyme, and mediator. Together, they generate the electricity.
Thus, when blood is placed between and across the electrodes, the chemicals coated onto the active electrode go to work, generating electricity or "signal." The electricity passes through an ammeter, which detects the current. The current will ideally be in proportion to the concentration of glucose. In this way, the meter can be calibrated to progressive concentrations of glucose. The user can then see when the glucose (or other substrate) is too low or too high. All of the foregoing was known in the prior art.
* * *
One of the contributions of the '382 patentwhich was concededly prior art to the '551 patentwas a faster-acting ferrocene mediator coated onto an active electrode along with an enzyme. Faster acting meant faster response times and quicker test results.
In the "Background of the Invention," the inventors stated that the '382 invention would have particular value for "in vivo measuring or monitoring of components in body fluids" (col.l:16-17) and said "the determination of glucose in a diabetic human subject" was a primary application (col.1:20-21). The background stated further that the invention lent itself to temporary or permanent implantation. Although "the provision of an implantable glucose sensor [was] a major object of the invention" the inventors noted that "other and broader objects [were] not hereby excluded" (col.1:23-26). A few columns later, for example, the specification called out home-testing kits with disposable sensors. After acknowledging that in vivo glucose sensors had already been proposed by others, the inventors stated that they had recently carried out in vitro studies.
Under "Summary of the Invention," the '382 inventors stated that they had come to realize that mediator compounds could be associated with the sensor electrode structure itself to make such electrodes available for use by in vivo methods. The '382 invention was then described as a sensor electrode composed of a combination of enzyme and mediator (col.1:60-63). Preferably, the electrode was designed to determine glucose in vivo (col.1:65-66). A long passage then described various mediators and enzymes (col. 2:1 to col. 4:55). Again, a significant contribution was the ferrocene chemistry that was faster acting than in the prior art, thus reducing response time.
At a few places in this passage, the inventors referenced membranes. For example, two paragraphs stated (col. 3:53 to col. 4:2):
In that form of the invention using polyviologens, as exemplified in the three modifications above, it is an objective to keep loss of active material (enzyme or mediator) to a very low level, i.e., by the surrounding membrane, co-immobilisation or covalent bonding. In a different form of the invention, however, still using glucose oxidase, a rather higher level of loss of active material is tolerated, giving a sensor electrode of reduced but still useful life, coupled with improve [sic] sensitivity and selectivity.
In this form of the invention the electrode is composed of particulate carbon mixed with a low molecular weight mediator disseminated throughout the electrode and glucose oxidase. Chloranil and/or fluoranil are useful mediator substances. It is envisaged to construct from such an electrode a replaceable sensor tip to a needle-type probe for projecting only into the dermis so as to allow ready replacement.
Put differently, after describing a membrane application, the "different form" of the invention dispensed with the membrane and thus "tolerated" a "rather higher level of loss of active material" (due to the absence of the immobilizing membrane). It was envisaged to have replaceable sensor tips for projecting into the dermis.
Another version called out ferroceneglucose oxidase as "particularly valuable" and stated "the enzyme layer is preferably immobilised at the surface of the underlying mediator, retained in a self-sustaining gel layer" or with "a retention layer thereover permeable to the glucose molecule" (col.4:13-16). "Immobilisation" was a reference to retaining the active chemicals on the electrode so that they would not fall away into the blood or other fluid. Then came the main sentence at the heart of this case (col.4:63-66):
Optionally, but preferably when being used on live blood, a protective membrane surrounds both the enzyme and mediator layers, permeable to water and glucose molecules.
This allowed water and glucose to pass through, kept in the chemicals, and kept out larger blood constituents like red blood corpuscles.
The "Summary of the Invention" then turned to various applications and specifically called out implanted glucose sensors, digital readout diabetic home-testing kits, devices to take a blood sample from the finger, place it on the sensor, amplify the signal, and give a digital readout, and a watch-type device for monitoring glucose interstitial fluid in the skin with disposable-sensor cartridges in the back, which would plug into the electrodes.
Next came a "Description of the Preferred Embodiments." In total, the '382 patent contained thirteen working examples of preferred embodiments of the invention. Some of the examples described various procedures for producing the working chemistry of the sensori.e., the enzyme and mediator. Other examples described possible configurations of electrodes and electrochemical sensors. Each was configured slightly differently depending on various test parameters, including the type of solution being tested. Some of the sensors included a membrane and others did not.
Examples 1 and 2 described purification processes for producing quinoprotein glucose dehydrogenasean enzyme used to catalyze the chemical reaction. Examples 3 and 4 explained the interaction between glucose oxidase (another enzyme) and ferrocenethe mediator which allowed for much faster and more linear testing than the prior art.
Example 5 described the construction of an in vitro sensor with a glucose oxidase enzyme and polyviologen mediator. A dialysis membrane was used. The purpose of the membrane was to block larger molecules from passing through to the working chemistry. The sensor was tested in a buffered electromechanical cell. As the amount of glucose in the test solution was increased, the current generated by the sensor grew, thereby indicating that the electrode was acting as a glucose sensor. This same construction was used in Example 6, except chloranil was used as the mediator.
Example 7 taught a sensor configured with a glucose oxidase enzyme and a dimethyl ferrocene mediator designed for use in interstitial fluidi.e., skin. Before the sensor was used for testing, the electrode, mediator, and enzyme were dipped into a solution of cellulose acetate, thereby creating a protective membrane over the working chemistry and electrode. The example went on to state: "The small size of such an electrode and its linear response over a large range of glucose concentrations makes it possible to use the electrode for in vivo glucose determination on both severely diabetic and normal individuals" (col.8:54-59).
Example 8entitled "In vitro sensor" was the most discussed embodiment at trial (col.8:63). The example began by describing the construction of a sensor with a glucose oxidase enzyme and a ferrocene mediator. No membrane was applied. The example then explained that the sensor was first tested in "nitrogen-saturated buffer solution" (col.9:15). The results for the test in buffer solution were then summarized. A cellulose acetate membrane was then applied to the sensor. The example went on to describe response times for that sensor in buffer and then, in a separate test, in blood. The exact language in the specification stated (col.9:26-33) (emphasis added):
With the same buffer, such an electrode modified by a cellulose acetate membrane coating (produced as in Example 7) gave response times of 36 seconds (2 mM) and 72 seconds (6 mM). With blood, this modified electrode gave response times of 36 seconds (blood with a known 2mM glucose content) and 72 seconds (blood at known 6mM glucose content).
The sensor constructed in Example 8 was thus tested in two solutions. The example first described was tested in buffer solution. At this point in the specification, no membrane was applied to the sensor. A membrane was then placed on the sensor. The response times of the sensor with a membrane were subsequently set forth for the same buffer solution and then, separately, for blood. It is Abbott's contention that this example shows that a membrane was in fact required by the invention of the '382 patent when testing in whole or live blood.
Example 9 taught the construction of an electrode with a glucose dehydrogenase enzyme and a ferrocene mediator. A dialysis membrane was used to cover the coated electrode. Examples 10 and 11 were minor variations of Example 9. Examples 12 and 13 described further configurations for an electrode with a glucose dehydrogenase enzyme and ferrocene mediator.
Finally, under the '382 claims, Claim 1 covered the sensor electrode coated with the enzyme and mediator. All agree that Claim 1 covered electrodes without limitation to either in vitro or in vivo use. All agree that Claim 1 covered versions with and without membranes. Indeed, dependent Claim 12 narrowed the claim to sensor electrodes having an outermost protective membrane permeable to water and glucose molecules.
In sum, the '382 disclosed the basic structure of an active electrode and a faster-acting chemistry, stating that the structure could optionally include a protective membrane as an outer layer and stating that such a membrane was preferable when used with live blood, although the examples involving blood employed a membrane.
* * *
Turning to the '551 patent in suit, its inventor group was virtually the same as for the '382, with slight adjustments.[5] It was directed to a home-testing kit and more specifically to a two-electrode strip (rather than a three-electrode strip) for one-time, disposable attachment to a handheld readout device. The electrodes were coated with enzymes and mediators ("preferably a ferrocene")as in the '382 patent. The strip was described as "elongated" for ready handling and assembly. As with the '382, the active electrode was "preferably formed of carbon." The inventors went on to say that carbon foil available commercially as GRAPHOIL or PPYEX was a valuable electrode material. Various "objects" of the invention were described, none of which related to a membrane or lack thereof. Many columns were devoted to construction of the electrodes.
The subject of membranes was mentioned only twice in the '551 application. Under "Membrane Cover for Electrode," the inventors said that "it may be found valuable to exclude the sensor from interfering contact with larger molecules or tissue fluid components" and that this could be done with a "surrounding membrane" (col.6:67-7:13). That passage briefly described how to make a membrane in situ. Later, a step-by-step constructional sequence was given for an electrode strip. Seven steps were listed. Adding a membrane was not listed as a step (col.8:35-51), an omission since given great weight by Abbott. A later, optional modification stated: "The electrode may then be covered, on both sides, with a semipermeable membrane of cellulose acetate (or polyurethane), not shown, to block large interfering species from contact with the electrode" (col.9:34-37).
Nowhere in the '551 specification or the original, claims was there any suggestion that treating the membrane as optional (or omitting it) was an inventive step. Nonetheless, this order appreciates that a legitimate invention may eventually be found lurking in a disclosure even though the inventors missed it themselves for over a decade. See Newman v. Quigg, 877 F.2d 1575, 1581 (Fed.Cir.1989). So this order accepts Abbott's contention, at least for purposes of argument, that the '551 specification disclosed an active electrode without a membrane for use with whole blood (as well as disclosing one with a membrane for use with whole blood). The decisive question remains whether or not the same group of inventors (with slight membership changes) had already disclosed in the '382 patent that a membrane was merely preferred for use with live blood and was optional in all other cases. This order now turns to resolving that question.
* * *
This order accepts Abbott's proposition that prior to the '382 patent, those skilled in the art typically employed a membrane on a sensor used with live or whole blood, although one exception was already in print.[6] That practice, however, was before the revelation in the '382 patent. The '382 patent expressly stated that a protective membrane was optional in all cases except for live blood, in which case it was preferred In no case did the '382 patent state that a protective membrane was required.
In context, it seems clear why this was so. The invention specified a faster-acting ferrocene chemistry. This allowed for shorter response times, i.e., measurement times. This, in turn, reduced the raison d'etre for any membrane. For example, the faster response times reduced the probability of the active chemicals being washed away in the bloodstream and reduced the time within which red blood corpuscles could locate and foul the electrodes. (Fouling refers to the larger red blood cells accumulating on the electrode and blocking the much smaller glucose molecules from reaching the sensor.) The indicated readings took about a minute, even less without any membrane. There was, therefore, less need for any membrane.[7]
As a matter of sentence structure, the sentence sets up two casesan optional case and a preferred case:
Optionally, but preferably when being used on live blood, a protective membrane surrounds both the enzyme and the mediator, layers, permeable to water and glucose molecules.
Italics have been supplied here to illustrate the structure. Ignoring the italicized preferred case, the sentence states: "Optionally,... a protective membrane surrounds both the enzyme and the mediator layers. ..." That is the general, optional case. The exception, i.e., the preferred case, is for live blood. That phrase is italicized. The trial record is clear and convincing that persons of ordinary skill in the art understood the words "optionally" and "preferably" in the same way as the rest of us. There is no doubt that those skilled in the art would have understood that the sentence was trying to say exactly what has been laid out in this paragraph.[8]
Abbott contends that skilled artisans simply would not have believed the sentence and would have had no reasonable expectation of reliance on it by reason of a prevalent view that membranes were essential when testing in whole blood. A revelation in a public disclosure cannot be erased from the prior art on the theory that it contradicted the conventional wisdom. The whole point of disclosures in patents is to reveal something new. See Atlas Powder Co. v. Ireco, 190 F.3d 1342, 1347 (Fed.Cir.1999).
Abbott has tied itself in knots contorting the grammar to come up with an alternative meaning. One example is Abbott's Proposed Finding No. 90, which reads:
Interpreted in light of the conventional wisdom at the time, the "preferably" language means that the membrane is optional when an in vivo sensor does not contact whole blood but that the membrane is required when the sensor contacts red blood cells in whole blood.
This contortion collapses on its own weight. The sentence in question meant just what it said and the ordinary artisan would have so understood it.[9]
Contrary to Abbott, Example 8 in the '382 patent was consistent with the plain meaning of this sentence. Example 8 was one of the preferred embodiments. It described a ferrocene-glucose oxidase electrode. In the experiment described in Example 8, the sensor was tested in a buffer solution with two different glucose concentrations, yielding response times of 24 and 60 seconds, depending on the concentration. Then a protective membrane was applied to the sensor. While still testing the buffer concentration, the response times went to 36 and 72 seconds, respectively. The same sensoragain with a protective membranewas tested in blood samples with the same concentration and 36- and 72-second response times were again obtained. It is true that when the sensor was used in blood a protective membrane was used and that a protective membrane was not used with the first buffer solution. Nothing in Example 8, however, stated that a membrane was required for use in blood. That a membrane was added seems to have been little more than a way to investigate the time effect of adding a membrane.
It is also true, as Abbott urges, that no test recited in the preferred embodiments included a test on blood without a membrane. There were, however, too few blood examples among the embodiments to warrant any inference from this happenstance. No doubt, the broad teaching of the sentence in question went beyond the specifics of the preferred embodiments. That is often true in patents. Broad teachings do not have to be supported by specific experimental examples in order to qualify as prior art.
The '382 sentence was then and remains correct, a fact that even Abbott does not challenge. Membranes were never part of the electrochemistry itself. Rather, they offered certain mechanical advantages, provoked by two different concerns. The first was human safety. For in vivo use, toxic materials might break away from the coated sensor and pollute the bloodstream. To protect against this possibility, a membrane immobilized the active ingredients, i.e., retained them in place and thus reduced the risk of breakaway. Reduced response times from faster chemistry, however, reduced the breakaway riskfor the sensor could be removed sooner than before. The second concern was the risk of "fouling." This was the risk that red blood particles would stick to the active electrode and prevent glucose from interacting with the chemicals coated onto the electrodes. If enough "fouling" occurred, the signal would be diminished below an acceptable level and an erroneous readout would occur. Fouling might occur in live blood or whole blood. In these proceedings, the supposed problem of fouling has been exaggerated by Abbott. After the faster chemistry disclosed in the '382 patent, the risk became more theoretical than practical, especially for one-use, disposable applications. Subsequent diabetic kits using the faster sensors have deleted the membrane with acceptable results. In sum, the '382 statement in question was then and remains correct.
Abbott's idea that skilled artisans would have read the sentence in question and disbelieved it in 1983 is not plausible on the trial record. Skilled artisans would have known that deleting the membrane would simply have deleted their mechanical advantages. They would have known, however, that the electrochemistry would still have worked. They would have known that the degree of fouling would have depended on how long the sensor was exposed to blood. They would have known that the risk of fouling would have been reduced for faster-acting chemistry and reduced even more for sensors used only once, i.e., disposable sensors with no accumulation of residue. They would have known that omitting the filter would have had the further advantage of speeding up the test time even more.
To be sure, in making these findings in the preceding paragraph, the Court has relied on trial testimony and materials outside the four corners of the patent and prior-art references. This, however, is because Abbott itself has resorted to extrinsic evidence and "conventional wisdom." That is, to overcome the '382 prior-art sentence in question, Abbott has resorted to extrinsic evidence, arguing that skilled artisans would not have understood the sentence in light of prevailing practices. Therefore, it is entirely appropriate for the other side to likewise resort to extrinsic evidence as to how those skilled in the art would have taken the '382 sentence in question.
Abbott next argues that one skilled in the art would have read the "optionally, but preferably" passage of the '382 as mere "patent phraseology." Notably, the passage in question stated that a membrane was preferable "when being used on live blood" (col.4:63-64). Defense Expert Turner testified that even today's implantable electrochemical sensors used for testing glucose in live blood would use a membrane to ensure that toxic materials were not released into the blood stream (Tr. 333). He even went as far as saying that the FDA would likely not approve an implantable sensor without a membrane for safety reasons, which was the reason a protective membrane was preferable for live blood. Unlike implantable sensors used to test live blood, however, one-time disposable sensors for in vitro testing (as disclosed in the '551 patent) had no such safety concerns. With in vitro testing, a membrane was motivated only by the potential of fouling the electrode. As to them, the '382 sentence in question taught that the membrane was merely optional.
The examiner was persuaded by Abbott's view as a result of two considerations. One was the presence or absence of a membrane in the '382 examples, particularly in Example 8. This argument is unpersuasive and rejected by this order, for the reasons stated above.
The other reason was based on an extrinsic evidentiary declaration without which the examiner said no allowance would be made. This was the now-controversial declaration of Dr. Gordon Sanghera. Although he was not a co-inventor, he had worked at Medisense and had become an Abbott employee at the time of his declaration. The entirety of his substantive statement to the examiner was as follows (TX 443):
3. THAT he is familiar with U.S. Patent No. 4,545,382 and with the history of the development of the technology disclosed in this patent. In particular he is familiar with the beliefs and concerns of those skilled in the art in 1981 when the first application leading to this patent was filed as well as in 1983 when the first application leading to the present application was filed.
4. THAT he is familiar with the teachings of U.S. Patent No. 4,987,173 to Nankai et al. and in particular with the teachings of Examples 3 and 4 with regard to the construction of sensors for use with serum and whole blood samples.
5. THAT based on his historical knowledge he is confiednt [sic] that on the filing date of the earlist [sic] application leading to the present application on June 6, 1983 and for a considerable time thereafter one skilled in the art would have felt that an active electrode comprising an enzyme and a mediator would require a protective membrane if it were to be used with a whole blood sample. Therefore he is sure that one skilled in the art would not read lines 63 to 65 of column 4 of U.S. Patent No. 4,545,382 to teach that the use of a protective membrane with a whole blood sample is optionally or merely preferred.
6. THAT Examples 3 and 4 of U.S. Patent No. 4,897,173 provide evidence that this concern about unprotected active electrodes for whole blood samples persisted until at least the June 21, 1985 filing date of the earliest application leading to this patent. The fact that the Example 3 teaching a sensor for use with serum samples has no protective membrane but Example 4 teaching a sensor for blood has a polycarbonate membrane is evidence that the authors of this technical disclosure still believed that active electrodes could not be directly exposed to whole blood samples.
With the exception of the '173 Nankai patent, the declaration was conclusory and unsupported. The '173 Nankai patent was more specific. It did, indeed, happen to use a filtration layer with whole blood and did not use one with serum, as Abbott states. The Nankai PCT filing date was June 19, 1986. Nankai did tend to support the "conventional wisdom" argument advanced by Abbott.
But Nankai was and remains subject to a very important and overriding caveat. The Nankai specification made no reference to the '382 patent and said nothing about the "optionally, but preferably" sentence. Nankai was silent on the key sentence. Nankai did not purport to construe it.
Although for obviousness purposes, the hypothetical person skilled in the art is presumed to have full knowledge of all prior art, that in no way means that we must presume Nankai knew of the '382 sentence in question. Nankai was simply one practitioner, not someone presumed to be omniscient. His patent in no way addressed the meaning of the key sentence. He may have been unaware of the key sentence, for all the record shows. By contrast, for our obviousness purposes, we must presume the hypothetical artisan knew all of the prior art, including the key sentence at issue. See Custom Accessories, Inc. v. Jeffrey-Allan Ind., Inc., 807 F.2d 955, 962 (Fed.Cir.1986).
The decisive fact remains that those skilled in the art, had they read it, would have understood the '382 sentence as stating that a protective membrane was preferred in the case of live blood and optional in all other cases. They would have understood it as disagreeing with any viewpoint that membranes were necessary when testing whole or live blood. The very purpose of a patent is to disclose new information to persons skilled in the art.
This order finds that the '382 patent taught those skilled in the art thatat least when faster chemistry was employed a protective membrane was optional in all cases except the case of live blood, in which case the protective membrane was preferredbut not required. The trial evidence and the plain language of the disclosure are clear and convincing on this point. Abbott's "conventional wisdom" evidence is rejected.
The foregoing is sufficient. To this, it must be said that the information withheld from the examiner, discussed momentarily, eviscerates any vestige of plausibility to Abbott's extrinsic evidence, for that information from the applicants themselves now shows that they knew full well the meaning of the very "optionally, but preferably" sentence at the heart of this suit. This evidence, revealed for the first time in these proceedings, also decidedly supports this order's invalidity conclusion. This order rejects the Sanghera declaration and its supposed conventional wisdom.
* * *
There is a different aspect to Abbott's entire theory that deserves comment. Deletion of a feature from a prior-art device with a corresponding deletion of its function is not an invention. For example, if the prior art already discloses a pencil with an eraser, one may not delete the eraser and claim an eraserless pencil as an invention. The reason is that the deletion of the eraser would also mean a deletion of its function. This would be true even if the conventional wisdom was that all pencils came with erasers. See Richards v. Chase Elevator Co., 159 U.S. 477, 486, 16 S. Ct. 53, 40 L. Ed. 225 (1895).
Similarly, deletion of the protective membrane was not inventive in the '551 patent because there was a corresponding deletion of its function. The loss of this function was tolerable because the chemistry was fast enough (at least by the time of the '382 prior-art disclosure) to obtain acceptable results without a membrane. But assuming arguendo that skilled artisans had uniformly believed that a membrane was necessary (despite the '382 patent), the mere deletion of the membrane with a corresponding loss of its functions would not warrant a patent.
It would be different if the '551 patent disclosed a specific configuration that preserved the membrane's function but without the membrane. Exactly what was disclosed in the '551 patent that compensated for the deletion of the membrane and guarded against fouling? The Court asked this question several times during the bench trial. Clearly, the '551 specification and prosecution history were totally silent on this point.
At the closing argument, Abbott's counsel arguedfor the first timethat the '551 disclosed use of certain materials for constructing the electrodes and that these materials were less sensitive to oxygen. Whereas the '382 patent had taught carbon as a preferred electrode, the '551 patent recommended carbon foil available commercially as GRAPHOIL or PAPYEX. The argument emerged that normally red blood cells (and their oxygen content) posed a noise hazard but that the electrodes specified in the '551 were less sensitive to oxygen. Thus, it was said, a membrane could be safely deleted from an electrode constructed from GRAPHOIL.
Nowhere in the specification, nowhere in the prosecution history, and nowhere in the trial evidence was this point made. It surfaced for the first time at closing argument. Still, the Court has fully considered it. It is easy to see why it has taken so long to invent this line of argument.
Both the '382 and '551 patents disclosed electrodes that exhibited immunity from oxygen. For example, the '382 specification stated that the electrodes exhibited "very low oxygen sensitivity." This would allow "omission of the dilution step involved in blood analysis in current instruments," the '382 specification said (col.5:20-22). For its part, the '551 patent stated that, for carbon foil, "oxygen interference is minimal, there being less than 4% change in signal between anaerobic and fully aerobic samples" (col.7:15-20).
Given that the '382 had already disclosed "very low oxygen sensitivity," the later statement in the '551 patent was no improvement on that score. The '551 statement was a passing comment on a design consideration (concerning oxygen sensitivity) that had been covered in the earlier patent and was covered again in the later patent. Since the earlier patent had already achieved "very low" oxygen sensitivity, it is far-fetched to argue that the later patent somehow solved that problem, much less solved it in a way that specifically dispensed with the need for a membrane, a nexus nowhere made until at closing argument in 2008.[10]
To return to the main point, the clear-cut fact remains that to the extent the '551 dispensed with the membrane, it also dispensed with its function and thus no invention was disclosed at all. This point would hold even if we indulged Abbott's view of the conventional wisdom about membranes at the time.[11]
* * *
The main invalidity issue is the no-membrane limitation. The foregoing resolves that key component. The inequitable-conduct issue is also anchored in the no-membrane limitation. This order, therefore, will now proceed directly to that issue for ease of reader convenience and return later to the less controverted limitations and complete the obviousness analysis.
INEQUITABLE CONDUCT
Turning to the defense of inequitable conduct, the "optionally, but preferably" sentence remains at center stage. When Abbott acquired the pending application that led to the '551 patent, its in-house lawyer, Lawrence Pope, took over the prosecution. That was in 1997. He replaced Fish & Richardson, who had been unsuccessful for twelve years in obtaining allowance of any claims. Examiner Shay had repeatedly rejected all proposed claims over the '382 patent.
Abbott "brainstorming" sessions were held to find a way to win claims on the '551 application. These sessions included Dr. Gordon Sanghera. The original inventors were not included. By this point, Abbott's competitors were beginning to sell diabetic home-testing kits in competition with the Exactech, the Medisense-Abbott product. Although Dr. Sanghera denied it at trial, this order finds that Dr. Sanghera and Attorney Pope were motivated, in part, by marketplace developments to find a claim to suppress competition. The very day the '551 patent issued, for example, Abbott asserted it in a patent-infringement action against a home diabetic kit made by Lifescan, Inc. There is, however, nothing wrong with seeking a patent in order to stifle competition, at least under the patent laws, so long as the patent is lawfully obtained.
The brainstorming sessions produced an argument never before advanced by the inventors or by prior counsel, namely that the '551 specification taught that a protective membrane was not necessary when testing whole blood. This argument was then presented to Examiner Shay in an oral interview by Attorney Pope in November 1997. With respect to novelty and the prior art, they expressly discussed the '382 sentence. For convenience, this now-familiar sentence is repeated:
Optionally, but preferably when being used on live blood, a protective membrane surrounds both the enzyme and the mediator layers, permeable to water and glucose molecules.
More specifically, the Interview Summary (TX 469) referenced the Higgins '382 and Pace '410 patents and stated:
Applicant indicated that he would like to submit claims specifically covering a compound specific electrode with the filtering membrane absent. The Higgins, et al. ('382) disclosure was discussed especially] the paragraph spanning columns 4 & 5. It was determined that since Higgins et al. appear to require the membrane for use with whole blood (see example 8) an affidavit or other evidentiary showing that at the time of the invention such a membrane was considered essential would overcome this teaching.
A box was checked stating that an agreement had been reached. In short, the examiner agreed to permit an evidentiary showing to overcome the presumed teaching of the "optionally, but preferably" sentence.
To this end, Attorney Pope prepared a sworn declaration for the signature of Abbott's Dr. Sanghera. Although he was skilled in the art by the time of the declaration, Dr. Sanghera had not been skilled in the art at the time of the invention (and, as stated, had not been one of the inventors). This, of course, was not a requirement for a declaration. Dr. Sanghera read, understood, and signed the declaration, knowing its purpose and knowing that it would be submitted to the PTO to overcome the presumed teaching of the sentence. The declaration is quoted above. In brief, it stated that Dr. Sanghera was sure that one skilled in the art at the time of the invention would not have read the sentence in question to teach that the use of a membrane with a whole-blood sample was optional or even preferred. To this end, Dr. Sanghera did not consult with any of the inventors to learn what had been considered optional, preferred, or essential despite the fact he still had a good relationship with at least Inventor Hill. He limited his research to literature.[12]
The declaration was filed for Examiner Shay along with an amendment and remarks by Attorney Pope. The amendment cancelled all prior claims and proposed new claims, soon allowed. The attorney's remarks (TX 470) are now set forth at length with italics on the passages of particular relevance:
At the interview the applicants' undersigned representative explained that a new set of claims would be presented which focus on the feature that the active electrode is directly exposed to a whole blood sample without the intervention of a barrier material such as a membrane or gel which filters out larger molecules or other blood components expected to interfere with the active electrode's operation. It was agreed that this embodiment was one of the options clearly disclosed in the present application. It was also agreed that the art generally taught the use of such protective barriers on the effective filing date of the present application.
* * *
The applicants' representative pointed out that U.S. Patent No. 4545,882 to Higgins et al teaches that active electrodes designed for use with whole blood require a protective membrane. He noted that the general teaching to this effect at lines 63 to 66 of column 4 of this patent was amplified and supported by the specific working examples. In each working example in which an active electrode was prepared for use with a whole blood sample it was provided with a protective membrane by either deposition of a cellulose acetate film or attachment of a dialysis membrane.
Example 8 at columns 8 and 9 was noted as being particularly instructive in this regard. An active electrode was constructed by successively coating the end of a carbon rod with ferrocene and then glucose oxidase. This unprotected active electrode was first tested in nitrogen saturated buffer and then in an air saturated buffer to establish the impact, if any, of oxygen on the reaction; the impact appears to have been minimal. Then at lines 22 to 33 the effect of a cellulose acetate membrane on response time was investigated when the sample was buffer and when it was blood. In both cases the response time appears to have increased by as much as 50%, e.g., from 24 to 36 seconds for a low level of glucose. Nevertheless all the succeeding examples utilized a protective membrane. The clear implication is that the use of protective membrane caused a slower response time but nonetheless was needed for a whole blood sample. The art continued to believe that a barrier layer for whole blood sample was necessary for a considerable period. For instance, U.S. Patent No. 4,897,173 to Nankai et al (copy accompanies this response), which claims priority from 1985, describes the production of electrodes for the measurement of glucose. In Example 3 at columns 4 and 5 an electrode structure for serum (see line 6 of column 5) is described which does not involve a protective membrane. In contrast Example 4 at columns 5 and 6 directed to an electrode for use with whole blood (see lines 61-62 of column 5) teaches a filtration layer 21 with a pore size of one micron.
One skilled in the art would not have read the disclosure of the Higgins patent (U.S.4,545,382) as teaching that the use of a protective membrane with whole blood samples was optional: He would not, especially in view of the working examples, have read the optionally, but preferably language at line 63 of column 6 as a technical teaching but rather mere patent phraseology. This is supported by the Declaration under 37 C.F.R. 1.132 of Gordon Sanghera which accompanies the present amendment.
* * *
The Examiner is respectfully requested to indicate the allowability of the currently pending claims and issue a Notice of Allowance. The applicants have established that a new claim limitation supported by the present application provides a patentable distinction over U.S. Patent No. 4,545,382, the key reference in the prosecution of the present application and its predecessors. There is no teaching or suggestion of unprotected active electrodes for use with whole blood specimens in this patent or the other prior art of record in this application. Furthermore, the present claims are patentably distinct from the claims of U.S. Patent No. 5,682,884. Therefore, this case is in condition for allowance.
In sum, Attorney Pope's remarks stated that the sentence in question would have been regarded as "mere patent phraseology" rather than a "technical teaching" and that the art believed that a membrane was "required" even for a considerable period after the '382 patent, closing with: "There is no teaching or suggestion of unprotected active electrodes for use with whole blood specimens in this patent or the other prior art of record in this application." In reliance on the submission, Examiner Shay allowed the new claims and the '551 issued.
* * *
At the time of the interview and the submission, Attorney Pope and Dr. Sanghera were well aware of previous representations based on the same "optionally, but preferably" sentence made by Medisense to the European Patent Office in 1994-95. Attorney Pope and Dr. Sanghera, however, made a conscious and deliberate decision to withhold disclosure to the PTO of these prior statements. This much is conceded. Abbott contends, however, that there was no duty to disclose the earlier statements and that there was no intent to deceive. On these latter points, the following was proven at trial by clear and convincing evidence.
The '636 patentthe European counterpart to the '382had been revoked in 1993 in an opposition proceeding based on a German prior-art reference called D1. In 1994, Medisense appealed, arguing that D 1 was distinguishable on two grounds. The centerpiece of Medisense's appeal relied on the very sentence in questionthe "optionally, but preferably" sentence. Overall, the '636 and '382 specifications were virtually identical. In both, the "optionally, but preferably" sentence and its immediate context were completely identical. Before the EPO, however, Medisense had an incentive to advance the sentence as an important teaching over the D1 reference. Medisense submitted that the "optionally, but preferably" sentence demonstrated that the '382/'636 invention did not need a membrane for measuring glucose in blood, whereas the D 1 device had required one.
Specifically, D1 had disclosed an enzyme electrode usable for glucose and covered by a semipermeable membrane. Before the EPO, Medisense argued that the D1 membrane was essential to the D1 invention. By contrast, Medisense stated that the '382/'636 membrane was merely optional. Medisense relied on the "optionally, but preferably" sentence as follows (TX 311 at AL54151):
10. The above object is solved by a glucose sensor as defined in claim 1 of the patent in suit ['382/'636]. Apart from the important feature of utilizing a ferrocene or ferrocene derivative as mediator, another important difference over D1 resides in that the claimed glucose sensorcontrary to that of D1 which requires a membranedoes not have and must not have a semipermeable membrane within the meaning of D1. Contrary to the semipermeable membrane of D1, the protective membrane optionally utilized with the glucose sensor of the patent [in] suit is not controlling the permeability of the substrate (as set forth above under IV.2), in the membrane of D1 the permeability for the substrate must be kept on a low value to achieve a linear relationship between the measures [sic] currency and the substrate concentration in the test solution. Rather, in accordance with column 5, lines 30 to 33 of the patent in suit:
"Optionally, but preferably when being used on live blood, a protective membrane surrounds both the enzyme and the mediator layers, permeable to water and glucose molecules."
See also claim 10 of the patent in suit as granted according to which the sensor electrode has an outermost protective membrane (11) permeable to water and glucose molecules. Finally, see Example 7 in column 10, lines 19 to 26 reporting that by using such a protective membrane the response time did not increase but from 24 to 60 sec. (without membrane) to 36-76 sec. (with membrane). Accordingly, the purpose of the protective membrane of the patent in suit, preferably to be used with in vivo measurements, is a safety measurement to prevent any course particles coming off during use but not a permeability control for the substrate.
The passage indented the "optionally, but preferably" sentence for emphasis, just as set out above. The bolded words were bolded by Medisense, just as set out above. The foregoing quotation is exactly the way it was made by Medisense in January 1994.
The "safety" purpose stated in the quotation helped to show, it deserves to be said, why a protective membrane was merely "preferred" for live blood, i.e., in vivo testing. It was optional in all cases but when placed in a human bloodstream, a membrane was advisable to retain the chemistry aboard the electrode and, thusly, prevent toxic particles from circulating within the patient.
In the same submission (TX 311 at AL54154), Medisense stated that D1 was "strongly teaching away from the subject matter as claimed [in the '382/'636] which not only does not require a membrane but must not have a membrane. In other words, with the claimed subject matter, rather than keeping the permeability for the substrate at a low level, there is free access of the substrate to the electrode without any permeability limitation."
In May 1995, Medisense further stated in the same EPO appeal, again referring precisely to the "optionally, but preferably" sentence (TX 315):
It is submitted that this disclosure is unequivocally clear. The protective membrane is optional, however, it is preferred when used on live blood in order to prevent the larger constituents of the blood, in particular erythrocytes from interfering with the electrode sensor. Furthermore it is said, that said protective membrane should not prevent the glucose molecules from penetration, the membrane is "permeable" to glucose molecules. This teaches the skilled artisan that, whereas the semipermeable membrane of D 1 must be constructed, for example by crosslinking, in such a way that the membrane will in fact control the permeability of the glucose at the required low value, the purpose of the protective membrane in the patent in suit is not to control the permeation of the glucose molecules. For this very reason the sensor electrode as claimed does not have (and must not have) a semipermeable membrane in the sense of D1. The fact that the same material (cellulose acetate) may be used both for the semipermeable membrane of D 1 and the protective membrane of the patent in suit is not relevant. The decisive feature is the modification (crosslinking) of said material to an extent so as to control the permeation of the substrate glucose. Finding the semipermeable membranes satisfying the requirements set forth on page 3, lines 24 to 56 of D1 is tedious and involves considerable trial and error work. Reproducability of such membranes is always a critical factor.
For the immediately quoted passage, italics have been added by this order to draw attention to a particular statement. The bolded words, however, were bolded in the original. Medisense won the EPO appeal, based on the very arguments described above.
The submissions made to the EPO were inconsistent with the submissions made to the PTO in at least two important ways:[13]
The PTO was told that The EPO was told that
the '382 required a under the '382 a protective
membrane for use with membrane was
whole blood and that merely preferred and
those skilled in the art not required when dealing
would not have understood with live blood and
the "optionally, specifically quoted the
but preferably" sentence "optionally, but preferably"
to teach to the sentence in support.
contrary.
The PTO was told that The EPO was told that
the "optionally, but the critical sentence
preferably" sentence was "unequivocally
would have been understood clear" and taught
by skilled artisans skilled artisans that
as "mere patent "the protective membrane
phraseology" and not as [was] optional,
a "technical teaching." however it is preferred
when used on live
blood...."
Dr. Sanghera had been much involved in the EPO appeal. He had helped develop the arguments and had even attended the oral argument before the EPO on June 20, 1995. He was completely familiar with the points made in the EPO appeal by Medisense. Dr. Sanghera disclosed all of the EPO submissions to Attorney Pope, who read and understood them.
Examiner Shay was focused on whether the '382 patent disclosed filterless devices for use with whole blood. This, in truth, was the overriding question. The "optionally, but preferably" sentence was the single roadblock to allowance. Attorney Pope and Dr. Sanghera knew this was so. Both decided to withhold the EPO materials from the PTO. Both knew that Dr. Sanghera's declaration would be submitted to the PTO without disclosing the EPO submissions to the "contrary. Both knew that the EPO materials made affirmative statements inconsistent with the declaration and the attorney remarks concerning the '382 sentence in question.
Inasmuch as the EPO submissions Centered on the same key sentence at issue in the PTO as well as the key issue before the PTO, a reasonable examiner would have plainly considered the EPO submissions to be highly material, given the contradictory teaching ascribed to the sentence.
* * *
In the United States, patent prosecutions are ex parte and non-public. This means that applicants and their counsel are the only ones able to make presentations to examiners. This one-sidedness persists until an allowance and grant, whereupon the patent is introduced to the public. In all proceedings leading up to a grant, therefore, there is no opponent to state the counter case. Examiners and the integrity of the entire process depend on the candor of counsel and applicants to disclose, if known, material adverse information. The duty of candor is codified at 37 C.F.R. 1.56. At the relevant time, it stated as follows (emphasis added):
§ 1.56. Duty to disclose information material to patentability,
(a) A patent by its very nature is affected with a public, interest. The public interest is best served, and the most effective patent examination occurs when, at the time an application is being examined, the Office is aware of and evaluates the teachings of all information material to patentability. Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section. The duty to disclose information exists with respect to each pending claim until the claim is cancelled or withdrawn from consideration, or the application becomes abandoned.
* * * * * *
However, no patent will be granted on an application in connection with which fraud on the Office was practiced or attempted or the duty of disclosure was violated through bad faith or intentional misconduct. The Office encourages applicants to carefully examine:
(1) prior art cited in search reports of a foreign patent office in a counterpart application, and
(2) the closest information over which individuals associated with the filing or prosecution of a patent application believe any pending claim patentably defines, to make sure that any material information contained therein is disclosed to the Office,
(b) Under this section, information is material to patentability when it is not cumulative to information already of record or being made of record in the application, and
(1) It establishes, by itself or in combination with other information, a prima facie case of unpatentability of a claim; or
(2) It refutes, or is inconsistent with, a position the applicant takes in:
(i) Opposing an argument of unpatentability relied on by the Office, or
(ii) Asserting an argument of patentability.
A violation of this rule, if proven in district court, can lead to a bar against enforcement of any claim in the patent. This is the defense of "inequitable conduct." The Federal Circuit has recently summarized the elements of proof for inequitable conduct in McKesson Info. Solutions, Inc. v. Bridge Med., Inc., 487 F.3d 897, 913 (Fed.Cir.2007):
A patent may be rendered unenforceable for inequitable conduct if an applicant, with intent to mislead or deceive the examiner, fails to disclose material information or submits materially false information to the PTO during prosecution. Digital Control, Inc. v. Charles Mack Works, 437 F.3d 1309, 1313 (Fed. Cir.2006).
* * * * * *
The materiality of information withheld during prosecution may be judged by the "reasonable examiner" standard. See id. at 1316. That is, "[materiality... embraces any information that a reasonable examiner would substantially likely consider important in deciding whether to allow an application to issue as a patent." Akron Polymer, 148 F.3d at 1382 (citations omitted). Moreover, "[information concealed from the PTO may be material even though it would not invalidate the patent." Li Second Family, 231 F.3d at 1380. "However, a withheld otherwise material [piece of information] is not material for the purposes of inequitable conduct if it is merely cumulative to that information considered by the examiner." Digital Control, 437 F.3d at 1319. "As this court has previously noted, the scope and content of prior art and what the prior art teaches are questions of fact." Id.
"The intent element of the offense is ... in the main proven by inferences drawn from facts, with the collection of inferences permitting a confident judgment that deceit has occurred." Akron Polymer, 148 F.3d at 1384. "However, inequitable conduct requires not intent to withhold, but rather intent to deceive. Intent to deceive cannot be inferred simply from the decision to withhold [information] where the reasons given for the withholding are plausible." Dayco, 329 F.3d at 1367. In addition, "a finding that particular conduct amounts to 'gross negligence' does not of itself justify an inference of intent to deceive; the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive." Kingsdown Med. Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876 (Fed.Cir.1988) (en banc in relevant part).
"The party asserting inequitable conduct must prove a threshold level of materiality and intent by clear and convincing evidence." Digital Control, 437 F.3d at 1313. "The court must then determine whether the questioned conduct amounts to inequitable conduct by balancing the levels of materiality and intent, 'with a greater showing of one factor allowing a lesser showing of the other.'" Id. (quoting Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d 684, 693 (Fed.Cir.2001)). "When, after a trial, the court has made factual findings as to materiality and deceptive intent, those factual findings are reviewed for clear error, and the decision of the ultimate issue of inequitable conduct is reviewed for abuse of discretion." Digital Control, 437 F.3d at 1313.
* * * * * *
ATTORNEY POPE
This order will consider the required elements first as to Attorney Pope and then as to Dr. Sanghera.
MATERIALITY
Contrary to Attorney Pope and Abbott, the submissions made to the EPO were not only material within the meaning of Rule 56, they were highly material. They were flatly inconsistent with the main point being made by Attorney Pope and Abbott to Examiner Shay. They centered on the precise sentence in question, its meaning, and what it taught. Inconsistency is called out by Rule 56 as a specific indicium of materiality (§ 1.56(b)(2)).
Contrary to Attorney Pope and Abbott, the EPO submissions were not cumulative. While the "optionally but preferably" sentence was, of course, already of record, the supposed issue was what it taught and even whether it constituted a teaching at all insofar as those skilled in the art were concerned. On that score, there was nothing already of record (or being made of record in the PTO) that duplicated the same points made in the EPO appeal or even came close to duplicating them. Thus, the examiner was led to believe that those skilled in the art would have had no reasonable expectation of success in trying to implement the guidance of the sentence in question by deleting a membrane in whole or live blood. The EPO submissions certainly pointed the other way.
This is unlike the situation where a reference is already before an examiner who can draw his or her own conclusions as to what it teaches and is able to discount spin offered by counsel. See Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1379 (Fed.Cir.2008). Although the key sentence itself was indeed before Examiner Shay, the inquiry had shifted to a point of extrinsic evidence. That is, Examiner Shay had acquiesced to Attorney Pope's request to resort to extrinsic evidence to show that the sentence would have been understood by skilled artisans differently than its words suggested. Having received permission to supply extrinsic evidence, Attorney Pope was duty-bound to present any inconsistent extrinsic information known to him. In the arena of extrinsic evidence, the examiner was unable to fend for himself. He had no way of knowing what, if any, contrary extrinsic information had been left out of the Sanghera declaration. He was completely dependent on Attorney Pope and Dr. Sanghera to fully disclose any extrinsic information, pro and con, known to them on the factual point covered by the submission.
Abbott contends that most or all of the key passages in the EPO appeal were, in effect, dicta that need not have been raised at all by Medisense before the EPO. Put differently, Medisense could possibly have prevailed in the EPO appeal had it stuck to just one distinction over D 1, namely that D 1 specified a different type of filter than did the '382/'636. It is true that the D1 needed a difusion-limiting filter whereas the '382/'636 referred to a blood-filtering membrane, which performed a different function. But the hard fact remains that Medisense did not so limit its appeal. It clearly submitted to the EPO that, in addition, the '382/'636 needed no membrane at all, invoking the very "optionally, but preferably" sentence at issue. Regardless of whether or not Medisense needed to make the second point in its EPO appeal, Medisense did make the point. Since that point was inconsistent with the PTO submission made later, Abbott was obligated to disclose it as part of its extrinsic-fact submission.
In sum, this order finds that the passages quoted above from the EPO submission were material within the meaning of Rule 56, such that their disclosure to the PTO was obligatory.[14]
INTENT
With respect to intent, Attorney Pope read the entire EPO appeal and made a conscious decision to withhold the contradictory material from the PTO. That is not sufficient to prove the intent requirement, of course, but there should be no doubt that conscious withholding occurred. Intent to deceive must be shown. The Court has carefully considered all of the facts and circumstances surrounding the decision to withhold. In this regard, Abbott has asserted the attorney-client privilege. Nonetheless, some direct testimony emerged as to Attorney Pope's rationale for non-disclosure. His stated reason was that the EPO information was cumulative, an argument this order has already solidly rejected. Without a doubt, Attorney Pope knew or should have known that the withheld information would have been highly material to the examiner, given the central question of what, if anything, the "optionally, but preferably" sentence taught those skilled in the art. There was no other information in the PTO record that came close to the clear-cut message of the withheld information.
Despite the insistence by Abbott (and Attorney Pope) during deposition and pre-trial that he would not be presented as a trial witness, the Court allowed Abbott to reverse field and to present him as a live trial witness. Abbott and Attorney Pope were relieved from this representation due to the seriousness of the misconduct charge and to give Attorney Pope every opportunity to explain his conduct. Attorney Pope did not prove to be a convincing trial witness. To the contrary, his trial explanation for his withholding was not plausible and he was not credible. When, for example, Attorney Pope was shown the EPO appeal language quoting the sentence in question and immediately stating that "[i]t is submitted that this disclosure is unequivocally clear," he testified that he had understood the "unequivocally clear" characterization to refer only to the last six words of the 26-word sentencethat is, to the concluding phrase "permeable to water and glucose molecules" and not to its other twenty words. Sadly, this order must find that Attorney Pope had no plausible reason for consciously withholding the EPO submissions and that he acted with specific intent to deceive Examiner Shay and the PTO. In making this finding, this Court has taken into account the demeanor of Attorney Pope during his trial testimony.
Attorney Pope testified that his motive was to obtain a strong patent. Therefore, he said he had no motive to conceal and to thus undermine the enforceability of the patent. This argument conveniently overlooks the fact that he consciously chose to withhold. Counsel who steer a course toward obtaining a strong patent should err on the side of disclosure, not nondisclosure. And, it must be said, after so many rejections over so many years, it seems clear that Abbott's primary goal was to eke out some claim, saving a fight over enforceability for a later day.
Attorney Pope also said that patent prosecutors often write specifications broadly so as to support broad claims, cutting back on their claims as they go along as necessary to avoid the prior art or as is otherwise necessary. Being aware of this alleged practice, he testified that he, therefore, read "optionally, but preferably" as an overblown way for a prior patent prosecutor to have said "optionally, but always." This is unconvincing. First, there is no authority for this secret-code theory. Words are supposed to mean what they say. Otherwise, our patent-disclosure system would collapse. Second, since the claims of the '382 covered membraneless sensors used in blood, as both sides agree, the specification must have been sufficient to support the membraneless sensors.[15]
Although Abbott has not advanced the point clearly, the Court has considered the possibility that Attorney Pope was confused over the difference between live blood and whole blood. At trial, he stated that he did not appreciate (until recently) that "live blood" referred to in vivo tests whereas "whole blood" referred to in vitro tests on blood removed from the body. Even if he had thought the two were synonymous, the materiality of the EPO statements would still have been manifest. In some ways, the EPO statements would have been even more material, for those EPO statements represented that a membrane was merely optional when used with blood. At all events, even if the sentence and the EPO statements had said that a membrane was preferred for both live and whole blood, the fact remains that "preferred" does not mean "required," which was a point made in the EPO appeal. In sum, this point of possible confusion offers no excuse.
BALANCING
Turning to the final step, this order must determine whether the questioned conduct amounts to inequitable conduct by balancing the levels of materiality and intent, with a greater showing of one factor allowing a lesser showing of the other, as set forth above. In doing so, the undersigned is very mindful that patent prosecutors must make judgment calls about what is and is not material. We must take care to respect their judgments without second-guessing them and to penalize only clear-cut violations of Rule 56.
The withheld extrinsic evidence here was richly material. And, intent to deceive, not just to withhold, was clearly in the mind of Attorney Pope, hard as it is to so conclude as to a professional. Both showings are strong. The balance is decidedly against Abbott. If concealment of extrinsic information as close to the heart of the prosecution as was involved here is allowed to pass, then we would in effect be issuing licenses to deceive patent examiners in virtually all cases. Having searched for any credible explanation for the conduct (and found none) and having taken into account all possible inferences of good faith (and found none), this order finds and holds that Attorney Pope and Abbott were guilty of inequitable conduct in advancing the Sanghera declaration and attorney remarks without also disclosing the inconsistent EPO submissions as to the meaning of the "optionally, but preferably" sentence. This has been proven by clear and convincing evidence.
DR. SANGHERA
The analysis is largely similar for Dr. Sanghera but differs in some ways from that for Attorney Pope.
MATERIALITY
For the reasons stated above, the non-disclosed items were material.
INTENT
Here, the intent analysis diverges somewhat from that for Attorney Pope, although it reaches the same conclusion. Once Dr. Sanghera disclosed the inconsistent EPO information to Attorney Pope, he ordinarily would have done all that Rule 56 required. A specific Rule 56 proviso stated that "[individuals other than the attorney, agent or inventor may comply with this section by disclosing information to the attorney, agent or inventor." Dr. Sanghera did so. He did disclose the EPO materials based on the very same sentence to Attorney Pope.
The problem is that he then made direct representations to the PTOrepresentations that were materially misleading by omission. He did not have to take this extra step. Having done so, he was obligated to avoid intentional deception. His sworn statements to the PTO about the meaning of the "optionally, but preferably" sentence were known by him to be inconsistent with his own company's statements to the EPOstatements he had himself helped craft. A declarant who makes a materially false and misleading statement under oath to the PTO cannot escape a charge of inequitable conduct on the theory that he advised the lawyer that the statement was misleading and why. (In this regard, no claim of good faith reliance on the advice of counsel was raised by Dr. Sanghera, a step that would have waived any assertion of the privilege.) In sum, given the fact that Dr. Sanghera made a positive submission to the PTO, he was himself duty-bound to avoid making an intentionally misleading submission, whether or not he told Attorney Pope about the inconsistency.
Although Abbott has not raised it, the Court has, on its own, considered the possibility that Dr. Sanghera somehow believed that Attorney Pope would disclose the EPO material in some other way and, thus, there was not a necessity for his declaration to do so. Dr. Sanghera testified at trial at Abbott's behest (despite the fact that much trial time was earlier spent on video excerpts from his deposition). His trial testimony was clear and convincing that he affirmatively participated in the group discussion not to disclose the EPO submission, i.e., that he knew all along that no one was going to disclose the EPO submissions (Tr. 757-58, 774, 776-78). As a trial witness, it must be said that Dr. Sanghera was impeached on substantive points with his prior inconsistent statements and exhibited an unconvincing demeanor (e.g., Tr. 764-67, 772-73).[16]
At trial, the only explanation Dr. Sanghera gave for his nondisclosure of the EPO proceedings and the arguments made by Medisense therein was that both he and Attorney Pope thought that they were all irrelevant (Tr. 777:23-778:10):
Q. It's your' position, is it not, Dr. Sanghera, that you had no responsibility to disclose to the U.S. Patent and Trademark Office anything about the European Patent Office proceedings?
A. It was my responsibility to disclose to the U.S. Patent Office everything that we deemed as a team, the technical people, the Abbott counsel, that was relevant to that case for the U.S. patent office. I don't know if that answers your question, but
. . .
Q. But you didn't disclose the information, correct?
A. We didn't disclose lots of nonrelevant information.
Q. And in particular, you did not disclose the European Patent Office proceedings to the U.S. Patent Office?
A. We did not disclose those, no.
As stated, however, the unambiguous and clear-cut statements made to the EPO were clearly relevant to the only issue before Examiner Shay, namely whether the "optionally, but preferably" sentence was a teaching and, if so, what it taught. It plainly should have been disclosed to Examiner Shay for his independent consideration.
Dr. Sanghera testified that he did think the statements made to the EPO and PTO were inconsistent. According to Dr. Sanghera, the statements made to the EPO were specifically directed at distinguishing the D1 reference on the sole issue of whether or not the '382/'636 patent required a diffusion-limiting membranea point not at issue with the '551 patent. As Dr. Sanghera stated (Tr. 777):
The European proceedings revolved around the use of a diffusion limiting membrane because we were making arguments about novelty and inventiveness over the La Roche prior art, and we discussed the first chemistry and the, therefore the lack of a requirement of a diffusion-limiting membrane. This the U.S. case. We were talking about blood separation membranes and filters and the two are completely separate pieces of technology.
Nonetheless, the statements made to the EPO regarding the '636 patent plainly went beyond this point of distinction and submitted that it was "unequivocally clear" that the '382/'636 needed no membrane at all for use with blood. Whether or not Medisense needed to make the point to the EPO, it did make the point. Dr. Sanghera knew the point had been made. His effort at trial to excise that part of the EPO proceeding and to pretend it never happened was disingenuous.
Taking into account all possible inferences of good faith, this order concludes that Dr. Gordon Sanghera had no plausible reason for concealing the inconsistent EPO submissions and that he consciously made sworn statements to the EPO that were deliberately misleading by reason of the omission of the inconsistent EPO submissions. His unconvincing trial demeanor has been a factor in this determination.
BALANCING
Once again, both materiality and intent have been proven on the strong end of the scale, so the overall balance is decidedly against Abbott and Dr. Sanghera. And, it should be said that sworn statements to the PTO ought to be regarded with a reasonable degree of reverence and candor rather than as an opportunity to tailor-make convenient extrinsic "facts" to assuage a key point of concern to the examiner.
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This Court is well aware that inequitable conduct has become a knee-jerk and often-abused response by those accused of patent infringement. Judges ought to view such defenses with skepticism, as has Judge Rader in a recent dissent. See Aventis Pharma. v. Amphastar, 525 F.3d 1334, 1349 (Fed.Cir.2008) (Rader, J.). We should insist on every inch of the clear-and-convincing standard. Here, however, that standard has been met. The present defense is not an abusefar from it. If the conduct here proven were blessed, then the duty to provide inconsistent information under Rule 56 would be a dead letter.
INVALIDITY CONCLUDED
To complete the obviousness analysis, this order now resumes with the remaining limitations, i.e., all limitations other than the no-membrane analysis. In brief, this order finds that the differences between the other limitations and the prior art were paper thin and readily apparent to skilled artisans at the time of the alleged invention.
CLAIM 1
Claim 1 is the only independent claim of the '551 patent. It recited (col.13:29-17):
1. A single use disposable electrode strip for attachment to the signal readout circuitry of a sensor to detect a current representative of the concentration of a compound in a drop of a whole blood sample comprising:
a) an elongated support having a substantially flat, planar surface, adapted for releasable attachment to said readout circuitry;
b) a first conductor extending along said surface and comprising a conductive element for connection to said readout circuitry;
c) an active electrode on said strip in electrical contact with said first conductor and positioned to contact said whole blood sample;
d) a second conductor extending along said surface comprising a conductive element for concentration to said readout circuitry;
e) a reference counterelectrode in electrical contact with said second conductor and positioned to contact said whole blood sample.
wherein said active electrode is configured to be exposed to said whole blood sample without an intervening membrane or other whole blood filtering membrane
and is formed by coating a portion of the first conductor with a mixture of or layers of an enzyme which catalyzes a redox reaction with said compound in whole blood and a mediator compound which transfers electrons from said redox reaction to said first conductor
to create a current representative of the concentration of said compound in said whole blood sample
and wherein said active electrode which is formed on a portion of said conductor is not in electrical contact with said reference counterelectrode but these electrodes are so dimensioned and positioned that they can be simultaneously completely covered by a single drop of whole blood' such that this drop provides an electrical path between these electrodes to support said current representative of the concentration of said compound in said whole blood sample.
These paragraphs are now considered in turn.
* * *
A single use disposable electrode strip for attachment to the signal readout circuitry of a sensor to detect a current representative of the concentration of a compound in a drop of a whole blood sample comprising:
a) an elongated support having a substantially flat, planar surface, adapted for releasable attachment to said readout circuitry;
U.S. Patent No. 4,225,410 (Pace) taught the use of a disposable-electrode cartridge that attached to readout circuitry to measure the levels of a target substance in a solutione.g., glucose in bloodby detecting current. The figures below are from the '410 patent.
The cartridge 10 shown in Figure 1 (an alternative design is shown in Figure 1 a) contained a matrix of sensors 14. Users would place their finger above the sensor matrix of the circuitry in cartridge 10 and dispense a drop of blood. The cartridge 10 could then be connected to the readout device shown in Figure 3 through a socket connection, and the results of the test could be read out across screen 33. After the test was complete, the user could take out the cartridge and throw it away. The cartridge was flat and elongated so as to more readily allow the user to connect and remove it from the readout device. The '410 patent further described the use of enzyme electrodes for detection of glucose in blood.
* * *
b) a first conductor extending along said surface and comprising a conductive element for connection to said readout circuitry;
This claim limitation merely referred to the actual conductive wires that connect the electrodes (where the electrochemistry occurs) to the readout circuitry. The wires carried electricity and simply allowed current to flow to the readout circuitry. Both the '410 and '382 patents readily disclosed this limitation. For example, the '410 specification stated (col.7:37-43):
The interconnectors each terminate in an electrical connection projecting from the end of the chip which is adapted to mate with a snap-in electrical connector disposed in a slot of [the readout circuitry]. The connection of the chip overhangs the tray ... and includes a slot for keying into connector of [the readout circuitry].
Likewise, the '382 patent disclosed conductive wires connecting an electrode to readout circuitry (col.8:35). It was elementary that no circuit could be completed without a conductor between the readout circuitry and the electrode.
* * *
c) an active electrode on said strip in electrical contact with said first conductor and positioned to contact said whole blood sample;
The term "an active electrode" has been construed herein to mean "an electrode that incorporates conductive material, and a mixture of or layers of an enzyme and mediator." The phrase "in electrical contact with said first conductor" was construed to mean "such that the active electrode is connected or positioned in such a way that electricity can flow between the active electrode and the first conductor." As stated above, the active electrode was essentially where all of the actual electrochemistry occurs in the sensor. A mediator and enzyme covered the electrode and collectively act to transfer electrons between the glucose molecules in blood to the active electrode to the conductors. A faster-acting chemistry that generated more electrons more quickly was, in effect, a principal invention in the '382 patent. The '382 specification recited (col.4:8-12):
In a particularly valuable form of the invention, however, the electrode comprises a carbon core, a layer of ferrocene or a ferrocene derivative at a surface thereof and a layer of glucose oxidase or glucose dehydrogenase at the surface of the ferrocene layer.
The '382 specification, among others, plainly already revealed active electrodes: a conductive material (i..e., a carbon core), an enzyme (i.e., glucose oxidase), and a mediator (i.e., ferrocene).
* * *
d) a second conductor extending along said surface comprising a conductive element for concentration to said readout circuitry;
For the same reasons set forth under element (b), this limitation was disclosed in both the '410 and '382 patents.
* * *
e) a reference counterelectrode in electrical contact with said second conductor and positioned to contact said whole blood sample;
At its simplest level, this limitation supplied the completion of the electrical circuit, the blood itself being the last link in the electrical path. There were no chemicals on the reference counterelectrode. Judge Jenkins construed the term "a reference counterelectrode in electrical contact with said second conductor and positioned to contact said whole blood sample" as follows:
an electrode that (1) is used to complete an electrical circuit with the active electrode during the glucose measurement; (2) is positioned or connected in such a way that electricity can flow between the second conductor and the electrode; (3) has a known potential relative to a standard; and (4) maintains its potential with only insignificant variation during the measurement.
The reference counterelectrode must thus meet four separate requirements. The first two requirements relate to the electrode's function to "counter" the active electrode and complete the circuit. The last two requirements relate to the electrode's function to serve as a "reference" to the active electrode by maintaining a known potential relative to a standard e.g., ground. The '551 specification described the reference electrode as a "coating applied to the elongated support ... formed by screen printing" and consisting of a silver-silver chloride layer (Ag/AgCl) (col. 2:6-11 and col. 4:57).
Although both the '410 and '382 patents disclosed the use of reference electrodes and counter electrodes, they only did so in the context of a three-electrode configuration: one electrode served as the active electrode, one electrode served as the counter, and one electrode served as the reference. For instance, the '382 patent stated that the "[active] electrode was connected to a potentiostat, together with a suitable counter electrode and calomel reference electrode and placed in a solution containing glucose" (col. 8:35-38). Accordingly, in the '410 and '382 patents there was no single electrode that served as both the reference and counter to the active electrode.
During the earlier stages of prosecution, Medisense argued that the two-electrode configuration in the '551 specification was a point of novelty over the prior art. Specifically, in an information disclosure statement received by the PTO on June 30, 1988, Medisense contended (TX 5):
Claim 1 now features a two-electrode strip in which the active current-measuring electrode is an enzyme deposit on the same strip that includes a second reference electrode. This two-electrode strip is far more convenient, and cheaper to make, than the prior art current-measuring devices. None of those devices discloses a simple dry two-electrode strip and nothing in those references would render such a simple strip obvious.
In the subsequent office action signed on October 28, 1988, Examiner Shay rejected this point of novelty:
ASAH, Kurita, Miyawaki, MITS, Huet et al, Smith et al, a Fromowitz et al, Takinishi et al, Brown et al, and Higgins et al all teach various electrode and/or amplifies [sic] configurations.
In fact, two-electrode configurations were common in the prior art. For instance, the Wingard reference (published in February 1983) disclosed a sensor with a platinum active electrode (i.e., the electrode coated with the enzyme) connected to a reference counterelectrode. As with the '551 patent, the reference counterelectrode was silver-silver chloride (Ag/AgCl). Wingard stated (TX 480):
The basic design of the amperometric glucose oxidase-oxygen electrode sensor for in vivo glucose determination is essentially that of Updike and Hick.... In the oxygen electrode an external potential is applied to hold the platinum cathode 0.6-.0.8V more negative than the silver-silver chloride anode and thus to produce a current that is related to the concentration of oxygen that reaches the platinum surface.
Defendants cited to other prior art references (including an undergraduate textbook) that contained similar disclosures. At trial, Dr. Turner persuasively testified that a person having ordinary skill in the art would have been motivated to combine the teachings of two-electrode systems with the sensors described in the '382 and '410 patents. This is not surprising given the strong overlap between the subject matter of the references.
Abbott argues that defendants have failed to show that the prior art cited aligns with Judge Jenkins' claim construction for a reference counterelectrode. Not so. As stated, the reference counterelectrode must primarily serve two functions: (i) to provide a reference voltage for the active electrode and (ii) to counter the active electrode and complete the circuit. It is clear from the language cited above from Wingard that its electrode served as a reference voltage to the active electrode "an external potential is applied to hold the platinum cathode 0.6-.0.8V more negative than the silver-silver chloride anode." As to the second function, the prerequisite to serve as a counter electrode was that the same current pass through it and the active electrode. The counter electrode (and the blood added by the user) collectively act to close the circuit so that current can thereby flow. The electrode in the sensor circuit disclosed in Wingard met this criterion. Current was passed from it to the active electrode to complete the circuit ("amperometric" as stated in Wingard).[17]
This order therefore finds that "a reference counterelectrode in electrical contact with said second conductor and positioned to contact said whole blood sample" was disclosed in Wingard. This order further finds that a person having ordinary skill in the art would have had a motivation to combine Wingard with the teachings of the '382 and '410 patents.
* * *
wherein said active electrode is configured to be exposed to said whole blood sample without an intervening membrane or other whole blood filtering membrane;
For the reasons set forth above and which will not be reviewed again here, the no-membrane limitation was taught by the '382 patent (col.4:63-66).
* * *
and is formed by coating a portion of the first conductor with a mixture of or layers of an enzyme which catalyzes a redox reaction with said compound in whole blood and a mediator compound which transfers electrons from said redox reaction to said first conductor;
For the same reasons detailed in the section above relating to the active electrode, this limitation was disclosed by the prior artin particular, the '382 patent.
* * *
to create a current representative of the concentration of said compound in said whole blood sample;
The '382 expressly taught this limitation. It recited (col. 8:41-42), "[a] current is produced which is proportional to the glucose concentration." This current was then measured and subsequently extrapolated to yield a measure of the amount of glucose in the target blood sample.
* * *
and wherein said active electrode which is formed on a portion of said conductor is not in electrical contact with said reference counterelectrode but these electrodes are so dimensioned and positioned that they can be simultaneously completely covered by a single drop of whole blood such that this drop provides an electrical path between these electrodes to support said current representative of the concentration of said compound in said whole blood sample.
This limitation required that the active electrode and reference counter electrode be positioned in such a manner so that a single drop of blood could cover both. The two electrodes, however, could not be in electrical contact with one another. As described above, the '410 patent disclosed a disposable cartridge comprising a matrix of sensors. The user would prick their finger and place a drop of blood over the cartridge. In so doing, the sensors in the matrix would be covered by the user's single drop of blood,
In addition, one of the preferred embodiments disclosed in the '382 patent was a needle electrode that could be used for tests within the bodyi.e., in vivo. This embodiment was as follows:
The user could prick themselves with the needle 16. Blood would then enter through the side windows 18 and come into contact with the electrodes in the device. In this way, current was generated and could subsequently be measured. In the same fashion, because the needle electrode was so small, the user could have easily applied a drop of blood to the side windows 18 outside of the body instead of placing the needle in the body. Dr. Turner testified that if a drop of blood were applied in this manner, the device would still function properly. Abbott has offered no evidence to the contrary.
CLAIM 2
Claim 2 stated: "The electrode strip of claim 1 wherein the compound is glucose and the enzyme is glucose oxidase or glucose dehydrogenase" (col.14:18-20). As previously discussed, there were multiple references and teachings in the '382 patent to testing glucose levels in blood using a glucose oxidase or glucose dehydrogenase enzyme (col.1:66-68) ("The enzyme is therefore preferably a glucose oxidase, or possibly a glucose dehydrogenase, for example a bacterial glucose dehydrogenase.")
CLAIM 3
Claim 3 stated: "The electrode strip of claim 1 wherein said conductive elements of the first and second conductors for connection to the readout circuitry are positioned toward one end of said elongated support and said active electrode and reference counterelectrode are positioned remote from said end" (col.14:21-25). Claim 3 required that the active electrode and reference counterelectrode both be positioned on the opposite end of the strip from the portion of the conductors that connect to the readout circuitry. As illustrated in Figure la of the '410 patent (shown above), the sensors 14 were placed on one end of the cartridge while the electrical connections 27 for the readout circuitry were at the other end. The '410 patent thus disclosed this limitation.
CLAIM 4
Claim 4 stated: "The electrode strip of claim 1 wherein said conductive elements of said first and second conductors are configured to allow reasonable attachment with a socket on a read out meter which carries said signal readout circuitry" (col.14:26-29). For the same reasons set forth above, the '410 patent disclosed this further limitation to claim 1 (col.7:37-43).
* * *
Under 35 U.S.C. 103, a patent may not be obtained if the differences between the claimed invention and the prior art would have been "obvious" at the time the invention was made to a person having ordinary skill in the art to which the patent is directed. The Supreme Court recently addressed the issue of obviousness in KSR Int'l Co. v. Teleflex Inc., ___ U.S. ___, 127 S. Ct. 1727, 167 L. Ed. 2d 705 (2007). There, the Supreme Court reversed the Federal Circuit's rejection of summary judgment of obviousness. In so doing, the Supreme Court emphasized that the obviousness inquiry is pragmatic and flexible: "A person of ordinary skill is also a person of ordinary creativity, not an automaton." Id. at 1742. The Supreme Court further stressed that if a person having ordinary skill in the art would have been able to implement a predictable variation of the prior art to yield the claimed invention, Section 103 would likely bar patentability. As the Supreme Court stated in KSR Int'l Co., 127 S.Ct. at 1740-41.:
Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.
Where there is "a design need or market pressure" to solve a particular problem and there are only a discrete number of predictable solutions that led to the anticipated success of the patent, "[the patent] is likely the product not of innovation but of ordinary skill and common sense." Id. at 1742.
Under this practical approach, this order finds all asserted claims of the '551 patent to be obvious in light of the prior art. All but one limitation was disclosed expressly by the '382 and/or '441 patents. The remaining limitation, implementing a two-electrode configuration, was well known prior to the '551 patent's priority date. Each reference relied on above to show obviousness was expressly aimed at the specific subject matter covered by the '551 patenti.e., construction of electrochemical sensors that could be used to measure glucose levels in blood. One skilled in the art would therefore have readily thought to combine these references.
* * *
The Federal Circuit has held that "secondary considerations, when present, must be considered in determining obviousness." Ruiz v. A.B. Chance Co., 234 F.3d 654, 667 (Fed.Cir.2000); see also Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed. Cir.1983) ("evidence of secondary consideration may often be the most probative and cogent evidence in the record. It may often establish that an invention appearing to have been obvious in light of the prior art was not. It is to be considered as part of all the evidence, not just when the decisionmaker remains in doubt after reviewing the art"). Originally, three factors were regarded as secondary considerations: commercial success, long-felt but unsolved needs, and failure of others. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17, 86 S. Ct. 684, 15 L. Ed. 2d 545 (1966). Since then, several additional factors have been taken into account by the Federal Circuit, including: copying by others, praise of the invention, unexpected results, disbelief of experts, general skepticism of those in the art, commercial acquiescence, and simultaneous development.[18]
Evidence of secondary considerations, however, only has probative value where there is "a nexus between the merits of the claimed invention and the secondary consideration." Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 306 n. 42 (Fed.Cir.1985). The burden of proof as to this connection or nexus resides with the patentee. Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed.Cir.1988).
Here, Abbott has primarily offered three grounds to support its showing of secondary considerations: (i) the commercial success of the Medisense-Abbott-Exactech product; (ii) a long-felt need for the Exactech product; and (iii) an alleged attempt to design around the '551 patent by a competitor.
Steven Scott, the former project manager for Abbott's Exactech, testified that over one billion test strips were sold over the lifetime of the Exactech product. He further testified that at the time the Exactech was released in September 1987, no other competitor had an electrochemical strip on the market. According to Abbott, before the Exactech product was released, diabetic patients had to use colormetric test strips that were far less convenient because they required the user to follow precise instructions that could easily be botched to produce inaccurate results.
This order assumes all of Abbott's representations regarding the Exactech product were true. Nonetheless, Abbott has failed to show that the success of the Exactech product was attributable to the '551 patent. Significantly, the Exactech product was released in September 1987two years after the '382 patent issued and over seven years before the '551 application was filed. Both Dr. Sanghera and Scott testified that Medisense marked the Exactech product packaging with the '382 patent before and after the '551 patent issued. Abbott's expert, Dr. Jay Johnson, admitted that the Exactech product was covered by claim 1 of the '382 patent (Tr. 552:15-18):
Q: But all these limitations that you see in the Claim 1 of the Higgins '382 patent are met by the Exactech strip. We just walked through them.
A. Yes.
Dr. Sanghera acknowledged on multiple occasions the novelty behind the invention of the '382 patentan invention for which Abbott received the full term of a patent. Nothing on the record demonstrates that the purported novelty behind the '551 patent contributed to the success of the Exactech product. Abbott has therefore failed to show the requisite nexus between the claims of the '551 patent and the Exactech product. The record instead demonstrates that the success of the Exactech product was more attributable to the fast-working chemistry disclosed in the '382 patent.
Abbott next proffers the testimony of James McCann (Genetics International's former founder) to support its showing of secondary considerations. McCann is currently employed at Cambridge Sensors Ltd., a company also engaged in the manufacture of glucose sensors. At his deposition, McCann testified that Cambridge Sensors redesigned one of its sensors in an attempt to design around the '551 patent by placing a mesh layer on the active electrode and moving the enzyme above the mesh layer. He stated (McCann Dep. 140-41):
Q. Was that version created in an effort to design around the '551 patent?
A. Yes.
* * * * * *
Q. Okay you made that redesign in an effort to avoid the claims of the '551?
A. Yes.
It is not clear exactly how much weight McCann's testimony should be given. Both parties have been unable to cite to any decision where such evidence was considered or discounted when assessing secondary considerations. . Cambridge Sensor's design-around efforts could show nothing more than its desire to avoid the threat of litigation, meaning it would shed little light on the validity or novelty of the '551 patent. On the other hand, the redesign may be relevant to show that the industry regarded the '551 patent as likely valid and enforceable. In any case, however, this evidence by itself is not enough to tip the scales. Given the absence of other factors weighing in favor of secondary considerations, it would be a far leap to preclude a finding of obviousness based on such scant evidence.
* * *
Many inventions seem obvious after the fact but that, of course, is not the test for invalidity:
It is difficult but necessary that the decision maker forget what he or she has been taught at trial about the claimed invention and cast the mind back to the time the invention was made (often as here many years), to occupy the mind of one skilled in the art who is presented only with the references, and who is normally guided by the then-accepted wisdom in the art.
W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1553 (Fed.Cir.1983).
A patent is presumed valid, and the burden of establishing invalidity as to any claim of a patent rests upon the party asserting such invalidity. 35 U.S.C. 282. Invalidity must be proven by clear and convincing evidence. Although not susceptible to precise definition, "clear and convincing" evidence has been described as evidence which produces in the mind of the trier of fact "an abiding conviction that the truth of [the] factual contentions are highly probable." Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed.Cir. 1988).
Viewing the prior art in whole, one skilled in the art would have deemed the '551 patent as a necessary and logical result of the teachings already a part of the public domain. The main claim elements at issue in trial were the deletion of the membrane and the implementation of a two-electrode system. On the former element, the '382 patent expressly disclosed that a membrane was optional but preferred on live blood. It was not required. On the latter element, two-electrode configurations were common and even disclosed in an undergraduate electrochemistry textbook. The remaining elements of claims 1^1 were not novel either; they were readily taught by the prior art. Those in the field would have appreciated that combining these elements was a predictable variation on the prior art.
WRITTEN DESCRIPTION
Pursuant to 35 U.S.C. 112 ¶ 1, a patent specification is required to "contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same." The written-description requirement and its corollary, the new-matter prohibition of 35 U.S.C. 132, serve to ensure that the patent applicant was in full possession of the claimed subject matter at the time the original application was filed. "To satisfy the written description requirement the disclosure of the prior application must convey with reasonable clarity to those skilled in the art that, as of the filing date sought, [the inventor] was in possession of the invention. " PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1306 (Fed.Cir.2008) (emphasis in original). Any disclosure relied on must be actual or inherent. In order for a disclosure to be inherent, "the missing descriptive matter must necessarily be present in the [original] application's specification such that one skilled in the art would recognize such disclosure." Tronzo v. Biomet, Inc., 156 F.3d 1154, 1159 (Fed.Cir.1998).
Defendants contend that the '551 specification fails to comport with the written-description requirement. In particular, defendants argue there was no adequate written description in the '551 specification to support the claim limitation "without an intervening membrane or other whole blood filtering membrane." It is true that the no-membrane idea was not expressly called out in the specification and, indeed, was at most lurking in its penumbra. Nonetheless, the relevant inquiry is whether those skilled in the art would have thought the inventors were in possession of an electrochemical sensor without a membrane for use in whole blood as of May 1983. Contrary to the defense, this order finds that those skilled in the art would have recognized such disclosure in the '551 specification. Plaintiffs Expert Johnson gave a detailed description of an embodiment disclosed in the '551 specification describing a membraneless sensor that could be used in whole blood (col.8:27-52). On direct examination, defense Expert Turner admitted that the '551 disclosed a glucose sensor without a membrane that could be used in blood (Tr. 249):
Q. Did you find anything in the '551 patent that specially adapted that sensor disclosed? And we've looked at Claim 1, but claims 1 through 4, is there anything in those claims that shows that these sensors are specially adapted for use with blood?
A. No. The '551 describes the same structures and approach, effectively, as here. So the '551 could be used with and without a membrane; the '382 could be used with and without a membrane.
Accordingly, this order finds that the '551 specification adequately disclosed the contested limitation.
That said, it is certainly true that the '382 specification had already announced a' description of a glucose sensor without a membrane for use in blood that was as good or better. After all, the '382 specification expressly recited, "[o]ptionally, but preferably when being used on live blood, a protective membrane surrounds both the enzyme and the mediator layers ..." (col.4:63-65). The only affirmative passage in the '551 specification on this specific point stated (col.6:66-7:2):
Although the enzyme electrode should be in electrical contact with the liquid, it may be found valuable to exclude the sensor from interfering contact with larger molecules or tissue fluid components. This can be done by a covering or surrounding membrane, depending on the electrode geometry.
As such, while the '551 patent adequately disclosed the membraneless limitation, it only did so after such disclosure in the '382 patent.
CONCLUSION
For the foregoing reasons, claims 1-4 are invalid as obvious and U.S. Patent No. 5,820,551 is unenforceable by reason of inequitable conduct in procuring its allowance. This order concludes all proceedings in the district court on the merits of the '551 claims. Before a Rule 54(b) judgment is entered, counsel shall advise the Court whether any further proceedings are needed. Please do so by NOON ON JULY 2, 2008.
IT IS SO ORDERED.
NOTES
[1] Therasense is a wholly-owned subsidiary of Abbott Laboratories, and the exclusive owner of two of the other patents in suit.
[2] Dr. Anthony Turner, the defense invalidity expert, was also involved in the initial research efforts that took place in the United Kingdom. He joined Dr. Higgins' team at the University of Cranfield in 1981 as a research officer. He later became a project director in 1983 after Genetics International began working with the group. Dr. Gordon Sanghera, as stated in more detail below, was also involved with the research efforts by the two groups.
[3] Live blood is inside the body and can only be tested in vivo. Whole blood is blood with all its constituent parts and can be in or 'outside the body. In vitro refers to tests outside the body, which must, in our context, be performed on whole blood, not live blood.
[4] The word substrate is used in the '551 patent in a second sense, namely to describe the base on which the electrode is formed (see, e.g., col. 2:27, 33; col. 3:23). This is a second, different meaning.
[5] Drs. Hill, Higgins, and Plotkin are listed as the inventors on the '382 patent. In context, McCann and Drs. Hill, Higgins, and Davis are listed as inventors on the '551 patent.
[6] U.S. Patent No. 4,388,166 (Suzuki) issued on June 14, 1983, and was filed on May 15, 1982. Although the various examples of electrochemical glucose sensors recited in the '166 all included some type of membrane, the '166 specification did expressly recognize that a glucose sensor (for blood) could be constructed without any membrane as long as the user could tolerate variations in measured values. The specification stated (col. 1:31-43) (emphasis added):
In the prior art electrochemical measuring apparatus, an enzyme electrode provided with a semipermeable-membrane indeed allows for a stable measurement, but the measurement takes a long time due to slow response. On the other hand, an enzyme electrode free of a semipermeable membrane makes a quick response, but has the drawback that measurement is accompanied with noise, resulting in noticeable variations in the measured values. Whether provided with a semipermeable membrane or not, the known enzyme electrode has the drawback that it loses stability during lengthy application.
The specification went on to explain that prior art glucose sensors (with and without membranes) could be used in "blood, serum, or urine," but with decreased sensitivity (col. 1:48).
[7] Abbott concedes that, for example, the D1 reference in the EPO appeal described below had a response time of five to fifteen minutes.
[8] The parties agree that in May 1983, a person of ordinary skill in the art would have had a doctoral degree or postgraduate experience working toward a Ph.D. Such a person would also have had some level of experience in actually constructing electrochemical sensors or would at least be familiar with them.
[9] This order also rejects Abbott's idea that the word "optionally" referred to use of a membrane as an alternative in lieu of some other type of whole-blood filtering member.
[10] Interestingly, the Exactech product (the same product Abbott contends embodies the '551 product for secondary consideration purposes) does not use GRAPHOIL as its electrode material, meaning whatever purported benefit that was captured as a result of the GRAPHOIL was not present in the Exactech product. In fact, the Exactech product used carbon paste as its electrode materialthe same material disclosed in the '382 patent (Tr. 780).
[11] Similarly, at the closing argument, Abbott's counsel argued that the '551 patent disclosed a method for placing the working chemistry onto the substratei.e., screen printingthat may have contributed to the purported success of the Exactech product. The only evidence on the record pertaining to this subject is the testimony of Dr. Sanghera, who stated that the Exactech's electrode was screen printed (Tr. 788). Other than that, there is no evidence indicating that screen printing helped eliminate the need for a membrane or that it was somehow novel over the prior art. Accordingly, counsel's argument is rejected.
[12] The Suzuki '166 patent, however, which had expressly discussed deleting the membrane in blood tests, was not included in the Sanghera declaration (see note 6, supra). This order assumes that Dr. Sanghera was unaware of Suzuki.
[13] Defendants have further made a plausible case that the two submissions were also inconsistent as to their use of Example 8 (Example 7 in the '636). This inconsistency requires extended argument to develop and, while plausible, is not as facially and directly inconsistent as the above two points of conflict. This order does not rely on the alleged Example 8 inconsistencies.
[14] The defense presented an experienced patent attorney and former examiner, Thomas Smegal, to explain why the EPO items were material. Abbott did not present a counter expert.
[15] Of course, it is true, as Abbott states, that specifications teach and claims claim. SRI Int'l. v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 n. 14 (Fed.Cir.1985) (en banc). Still, the specification must support the claims.
[16] Contrary to his trial testimony, at his deposition Dr. Sanghera tried to distance himself from the decision of what was disclosed to the PTO by repeatedly stating that he merely turned over to counsel all relevant information and let counsel decide what would be disclosed (Sanghera Dep. 60, 62, 360-61).
[17] In three-electrode configurations, no current would pass through the reference electrode. All the current would be shared between the active electrode and the counter electrode. The reference electrode was merely used to apply a known potential to bias the circuit. Where the parasitic resistance of the closed circuit or the current running through the closed circuit was small, however, a two-electrode configuration was more tolerable because of the small (and unwanted) voltage drop that would result from the parasitic resistance (i.e., Ohm's Law, voltage equals the product of current and resistance). The determination of whether a two-versus-three-electrode system was used therefore centered on whether the system could handle the decreased accuracy of a two-electrode configuration (TX 316).
[18] See Ecolochem, Inc. v. Southern California Edison Co., 227 F.3d 1361, 1379-80 (Fed.Cir. 2000); Monarch Knitting Mach. Corp. v. Sulzer Moral GmbH, 139 F.3d 877, 885 (Fed.Cir. 1998); Advanced Display Systems v. Kent State Univ., 212 F.3d 1272, 1285-85 (Fed.Cir. 2000); Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1144 (Fed.Cir. 1985); EWP Corp. v. Reliance Universal, Inc., 755 F.2d 898, 907 (Fed.Cir.1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876581/ | 247 S.W.3d 15 (2008)
Bonnie May DREPPARD, Respondent,
v.
Larry Dale DREPPARD, Appellant.
No. ED 89943.
Missouri Court of Appeals, Eastern District, Division Three.
January 29, 2008.
Rehearing Denied March 10, 2008.
Nathan S. Cohen, Clayton, MO, for appellant
Paul Martin, Mardi J. Montello, John Tajkowski, Clayton, MO, for respondent.
Before Roy L. Richter, P.J., Clifford H. Ahrens, J., and Glenn A. Norton, J.
ORDER
PER CURIAM.
Larry Dale Dreppard ("Father") appeals from the trial court's entry of judgment awarding fees in favor of Guardian Ad Litem, Mardi Montello ("GAL"), against *16 Father in the sum of $4,124.69. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2442412/ | 4 A.3d 193 (2010)
COM.
v.
BAKTH.
No. 780 WDA 2008.
Superior Court of Pennsylvania.
May 14, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610190/ | 485 P.2d 144 (1971)
94 Idaho 200
The STATE of Idaho, Plaintiff-Respondent,
v.
Ronald J. LAWS, Defendant-Appellant.
No. 10623.
Supreme Court of Idaho.
May 20, 1971.
Rudolf D. Barchas of Rayborn, Rayborn, Webb & Pike, Twin Falls, for defendant-appellant.
Robert M. Robson, Atty. Gen., and Martin R. Ward, Asst. Atty. Gen., Boise, for plaintiff-respondent.
McFADDEN, Justice.
Ronald J. Laws, the defendant-appellant, was found guilty by a jury of the crime of sale of drugs by unauthorized person (I.C. § 37-3302(b)), a felony, and was sentenced by the court to serve a term not to exceed five years in the state penitentiary. Following this judgment of conviction, the defendant moved for a new trial and for arrest of judgment. After an extended hearing on the motion, the court denied the defendant's motion, and the defendant then appealed from the judgment of conviction and from the order denying his motion.
The defendant makes two assignments of error: first, that the trial court erred in denying his motion for continuance, asserting *145 that the effect of such order was to deny him his right to effective counsel; secondly, that the trial court erred in denying his motion for a new trial and arrest of judgment.
It is defendant's contention that under the facts and circumstances surrounding his pre-trial motion for continuance, the trial court abused its discretion in not granting the motion to give defendant's counsel a reasonable time for the preparation of the defendant's case.
The record discloses that when the defendant was charged with the crime he asked for and was granted an attorney to represent him. A preliminary examination was held in early May, 1969, and the defendant was bound over to district court. An information was filed against the defendant in the district court, and his court-appointed counsel conferred with a representative of the prosecutor's office and also with a person from the sheriff's office. Defendant's court-appointed counsel testified that the substance of this conference was that the charges against the defendant would be dropped if the defendant cooperated in conviction of other narcotic peddlers. Defendant's counsel sought and was granted a continuance of the felony charge in the district court. His counsel further stated that under the assumption that this case would never come to trial, he did but little work in preparation for trial of the case.
In the latter part of August, 1969, this tentative "cooperation agreement" was cancelled and defendant's counsel stated that defendant did not wish him to continue with the case. Counsel then withdrew from the case with court approval. This request came because his appointed counsel during the summer of 1969 had married a young woman who was an attorney in the prosecutor's office with responsibility for this particular case. Also, the court-appointed counsel had engaged an investigator to work with him, but this investigator during the summer had become a full-time employee of the sheriff's office.
On September 23, 1969, the court appointed another attorney to represent the defendant and advised this counsel that the case was set for trial on October 2, 1969, only eight days later.
During the days prior to trial, the defendant was incarcerated in the county jail because of other charges and his inability to post a peace bond.
On the eve of the trial date, at 5:00 p.m., defendant's appointed counsel appeared in court seeking a two-week continuance of the case. The court minutes reflect that the prosecuting attorney and the defendant were present at the time defendant's counsel made the motion based on the following grounds:
"1. The chief witness for the defense cannot be located. His testimony will impeach the State's witness, Mr. Verl Bench.
2. Mr. Laws has been continuously incarcerated on a peace bond and would have been able to help in his defense had he been released for a short time.
3. The reason for the lateness of this motion is that counsel has made every attempt to prepare this matter in time for trial."
The prosecuting attorney objected to the continuance, and the trial court denied the motion for continuance.
On October 2, 1969, the day set for trial, after the jury was sworn to try the case, defendant's counsel renewed the motion for continuance, with the motion being supported by an affidavit of the attorney who had previously represented the defendant. According to counsel's statement, the only new information in this affidavit was that the defense counsel and affiant had unsuccessfully attempted to visit with the defendant the previous evening. The trial court denied the renewed motion for a continuance and the trial proceeded. The jury returned a verdict of guilty, and motion was made for a presentence investigation.
Before sentence was rendered, the defendant presented a motion for new trial and arrest of judgment. The grounds set *146 forth in this motion were that there was insufficient evidence for the jury to have returned a verdict of guilty, and that defense counsel did not have sufficient time in which to adequately prepare a defense, and further that because the defendant was improperly held (in jail) he was unable to aid the defense counsel in preparation of his defense.
The trial court denied the motion in arrest of judgment, judgment of conviction was entered, and the defendant was sentenced to serve a term not to exceed five years in the state penitentiary.
A two day hearing was held on the motion for a new trial, with numerous witnesses being sworn. Ultimately the trial court denied the motion for new trial.
On the state of the record, we affirm the trial court's order denying the defendant's motions for continuance, and the court's order denying the motion in arrest of judgment and also the court's order denying the motion for new trial.
The motion for continuance is addressed to the sound discretion of the trial court, and the action of the court will be upheld unless there has been a clear abuse of discretion. State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968); State v. Fleming, 17 Idaho 471, 106 P. 305 (1910). I.C. § 19-1909 provides:
"When an indictment is called for trial, or at any time previous thereto, the court may, upon sufficient cause, direct the trial to be postponed to another day of the same or of the next term."
Also I.C.R. § 10-109 has been held applicable to criminal actions. State v. Fleming, supra; State v. Cannon, 26 Idaho 182, 140 P. 963 (1914). That provision (now a rule of this court) states:
"A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may also require the moving party to state, upon affidavit, the evidence which he expects to obtain; and if the adverse party thereupon admit that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed."
It is to be recalled that at the time counsel was appointed for the defendant the case had already been set for trial. Yet even though appointed some days prior to the trial date, counsel waited until the eve of the trial before moving for a continuance. The reasons for his motion to the court at that time were that he could not locate a witness who was expected to impeach one of the state's witnesses, that the defendant had been incarcerated during the time and could not help in his defense, and that the motion was late because counsel had made every effort to prepare the matter in time for trial. The motion, as renewed after the jury was sworn, also brought out the fact that the defense counsel and another attorney were unsuccessful in visiting with the defendant the preceding evening.
The trial commenced following the denial of these motions. During the course of the trial defense witnesses testified in an effort to impeach a state's witness. These impeachment witnesses were purportedly the same ones defense counsel claimed to have been unable to contact at the time of the motions for continuance.
Generally it is held that unless an appellant shows that his substantial rights have been prejudiced by reason of a denial of his motion for continuance, appellate courts can only conclude that there was no abuse of discretion. State v. Wolfer, 241 Or. 15, 403 P.2d 715 (1965); Jones v. State, 94 Okl.Cr. 359, 236 P.2d 102 (1951); People v. McNabb, 3 Cal.2d 441, 45 P.2d 334 (1935); State v. Earley, 192 Kan. 144, 386 P.2d 221 (1963); see also State v. Dickson, 198 Kan. 219, 424 P.2d 274 (1967).
*147 Although the defendant's counsel asserted that he was unable to confer with the defendant on the eve of the trial, the record reflects that his counsel had seen him on three occasions during the day prior to trial. There is no explanation as to how the defense was prejudiced by being denied the evening meeting.
After examining the record we find no abuse of discretion by the trial court in denying these motions for continuance. There is nothing in the record disclosing how counsel would have conducted the defense differently or that there would have been a different result had the motions been granted. See: State v. Young, 463 P.2d 374 (Ct.App.Ore. 1970); State v. Derum, 76 Wash.2d 26, 454 P.2d 424 (1969).
As to the motion in arrest of judgment (which was joined with the motion for new trial), the trial court overruled this inasmuch as no demurrer to the information had first been interposed. I.C. § 19-2408 provides:
"A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a plea or verdict of guilty, or on a verdict against the defendant on a plea of a former conviction or acquittal. It may be founded on any of the defects in the indictment that are gounds of demurrer, unless the objection to the indictment has been waived by a failure to demur, and must be made before or at the time the defendant is called for judgment."
The trial court was correct in its ruling on this motion. State v. Scott, 72 Idaho 202, 239 P.2d 258 (1951).
The trial court noted that the grounds urged by the defendant on his motion for new trial with one exception did not constitute proper grounds for a new trial under I.C. § 19-2406.[1] The grounds set out in the motion for new trial were (1) there was a lack of sufficient evidence to sustain the verdict of the jury, (2) the defense counsel did not have sufficient time to prepare the defense, and, (3) that defendant was held improperly and thus unable to aid the defense counsel in preparation of his defense.
We concur with the trial court's evaluation of defendant's motion for new trial as set out in its memorandum opinion wherein the court stated it had difficulty in relating defendant's complaints to the statutory grounds for new trial set out in I.C. § 19-2406. Therein the trial court listed the various complaints of the defendant which were orally presented during the course of the hearing on the motion for new trial. These complaints went beyond the grounds for new trial set out in his motion for new *148 trial, adding: the denial of his motion for continuance of the trial; various complaints that defendant was denied the opportunity to consult with his attorney; actions of the peace officers and probate court in refusing to release the defendant from jail; failure to have another counsel represent him; and defendant's allegedly unlawful incarceration in the county jail prevented his counsel from finding witnesses which prevented the defendant from subpoenaing witnesses. Save for the ground of insufficient evidence, these grounds do not fall within I.C. § 19-2406.[2]
In the hearing following the trial defendant failed to argue the point concerning the sufficiency of the evidence; that ground was not assigned as error in the appeal and will not be considered.
The trial court did not err in denying defendant's motion for new trial. The judgment of conviction and the orders of the trial court denying the defendant's motions for continuance and new trial are affirmed.
McQUADE, C.J., and DONALDSON, SHEPARD and SPEAR, JJ., concur.
NOTES
[1] I.C. § 19-2406. Grounds for new trial. When a verdict has been rendered against the defendant the court may, upon his application, grant a new trial in the following cases only:
1. When the trial has been had in his absence, if the indictment is for a felony.
2. When the jury has received any evidence out of court other than that resulting from a view of the premises.
3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented.
4. When the verdict has been decided by lot or by any means other than a fair expression of opinion on the part of all the jurors.
5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial.
6. When the verdict is contrary to law or evidence.
7. When new evidence is discovered material to the defendant, and which he could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly-discovered evidence, the defendant must produce at the hearing in support thereof the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits the court may postpone the hearing of the motion for such length of time as, under all the circumstances of the case, may seem reasonable.
[2] In State v. Weise, 75 Idaho 404 at 410, 273 P.2d 97 at 100 (1954), this court stated:
"The grounds for a new trial are purely statutory. The court cannot provide any other ground. State v. Davis, 6 Idaho 159, 53 P. 678." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610193/ | 485 P.2d 1236 (1971)
In the matter of the Compensation of Clarence M. ANDERSON, Claimant, Deceased. Rachael M. Anderson, Appellant,
v.
STATE ACCIDENT INSURANCE FUND, Respondent.
Court of Appeals of Oregon, In Banc.
Argued and Submitted January 21, 1971.
Decided June 17, 1971.
Reargued and Submitted May 24, 1971.
Robert H. Grant, Medford, argued and reargued the cause for appellant. With him on the briefs were Grant & Ferguson, Medford.
Al J. Laue, Asst. Atty. Gen., Salem, argued and reargued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Argued and Submitted before Department 2 January 21, 1971.
FOLEY, Judge.
Claimant's husband died as the result of a heart attack. The hearing officer found the attack and the death to have been work related and compensable under Workmen's Compensation Law. The Workmen's Compensation Board reversed the hearing officer and the circuit court agreed with the Board. Claimant widow appeals to this court.
Decedent was a 56-year-old log truck driver. He had sustained a compensable heart attack previously, in June of 1961. That claim was closed in 1964. Thereafter he ran a service station for about a year, drove a fuel truck for approximately a year *1237 and then beginning in May 1967, became a log truck driver. He worked as such until Monday, July 8, 1968.
The preceding day, Sunday, decedent and his wife after going to church spent the day about their home, watching television and retired at 10:30 or 11:00 p.m. The wife testified that decedent made no complaint of physical discomfort of any kind. They arose at their regular early hour, approximately 4:30 a.m., the morning of the 8th. Decedent had his usual breakfast and left for work. He made no complaints and appeared to be his normal self.
Approximately three hours after leaving home, and just after attempting to throw a chain and hook (called gut wrapper) over his loaded log truck, he was observed by a fellow truck driver to be in physical distress. Decedent drove the 25 miles to the mill and thereafter was taken to Dr. Cleary in Trail, Oregon, who testified that decedent related that:
"* * * [W]hile driving a logging truck he developed a sudden severe attack of chest pain associated with profuse sweating; pain radiating to the back and both arms. He told me that he had a sense of feeling of weakness and some chest pain during the night. The patient was advised not to drive his logging truck home and to see his doctor upon arrival at home. * * *"
Decedent then proceeded to his treating doctor in Medford, Dr. Vorheis, who hospitalized him immediately under intensive care. He diagnosed decedent's condition as ventricular tachycardia and probable coronary occlusion with myocardial infarction. He related this condition to the decedent's work activity and recounted the history given by decedent
"* * * [July 8, 1968] was bringing in a load of logs and became ill, nausea and pressure type pain upper epigastrium followed by pain across upper shoulders and base of neck and back."
Dr. Vorheis did not indicate that decedent suffered any pain or symptoms the previous night. Furthermore, his report of July 22, 1968, contains the following question and answer: Is condition requiring treatment the result of this injury? Yes. He confirmed this conclusion in a letter of August 28, 1968, to the Director of the Claims Division of the State Compensation Department (now the State Accident Insurance Fund).[1]
Two other doctors were called as witnesses and gave testimony. Dr. Christian Hald, a general practitioner of 16 years' experience, testified unequivocally in response to hypothetical questions that in his opinion the most probable cause of decedent's death was a myocardial infarct or a coronary attack that occurred on the morning of July 8, when decedent was involved in throwing the chain over the logs. When asked about decedent's reported statement to Dr. Cleary that he had experienced a "feeling of weakness and some chest pain during the night" before the incident with the log chain, Dr. Hald stated that decedent, having previously had an acute coronary, would have been more "chest and heart conscious" than others and if he, in fact, had cardiac chest pains during the night he would not have eaten the reported breakfast and would not have gone to work. To quote Dr. Hald:
"Well, there are several assumptions one can make. Obviously chest pain can, in the light of argument here, it might mean that he had a coronary the night before. It might mean he had a gas bubble. It might mean he had pleurisy. Or it might mean he bumped himself on the side of the bed. I think to be perfectly candid with the thing, if you just say the man had chest pain last night, you really don't know what that particular *1238 term means as such. You can assume that maybe it meant that he had some little symptoms of a heart attack the night before. If we were to go that route then, and I've asked myself whether this might be the thing, then I would say, well, if that's so, how did the man get up and eat all this breakfast he's talking about and how did he, reportedly, appear all right for, from I can't remember whether you said anything about when the man gets up but I know enough about loggers, they have to get up pretty early to get up where they work. So that if the man had a coronary the night before, it seems logical to me that there should have been some symptoms in a closer time relationship to his ultimate breakdown, let's say, than there was and so I would assume while the man had chest pain, based on the hypothetical, I cannot honestly relate them specifically to a cardiac disease problem."
Dr. Ray L. Casterline, certified as a specialist in internal medicine, testified in response to a hypothetical question that in his opinion the work performed by decedent on July 8, 1968, was not a material contributing factor in the development of decedent's myocardial infarction. He based his answer on decedent's previous history of heart disease and the report of Dr. Cleary that decedent mentioned having had chest pain during the night of July 7. He concluded that the infarct occurred that night.
The hearing officer, after Dr. Casterline had responded to direct and cross-examination, redirect twice and recross twice, himself asked the doctor a number of questions and finally said:
"I've asked the questions and you've given the answers and I'm no better off than I was."
and later:
"Q [By hearing officer] Then you understood we weren't just talking about driving a log truck but also throwing a chain that weighed ten to fifteen pounds over a stack of logs nine or ten feet high?
"A That's not really very hard work. I throw chains over things. Fifteen pounds of chain, if you get it going, it's velocity. If I may interject a statement here, the classification of work is, I believe, if I may introduce this source as a basis for this, the classification of work is classified by the Department of Work as an individual doing sedentary work if he handles ten pounds, extremely light work when he handles twenty pounds.
"Q But that's carrying.
"A Carrying from place to place. But when you have to have chains, the velocity
"Q Of course, you are dragging a cable with it, too. I don't know how much the total weight would be, but this would have nothing to do with causing his infarct.
"A Causing his infarct?
"Q Yes.
"A In this particular case I believe the infarct occurred the night before."
Dr. Casterline in his testimony recognized the treating doctor, Dr. Vorheis, though not certified as an internist, as qualified by equal experience with himself in treatment of heart diseases:
"In years of experience, he and I are compatriots. We have virtually the same experience."
He stated that their offices were adjacent and they frequently consulted.
This court is required to review this matter de novo. Hannan v. Good Samaritan Hosp., Or. App., 90 Adv.Sh. 1517, 471 P.2d 831, aff'd on rehearing 91 Adv.Sh. 903, 476 P.2d 931 (1970), Sup.Ct. review denied (1971). There is no question of legal causation between decedent's employment and his heart attack. See Clayton v. Compensation Department, 253 Or. 397, 454 P.2d 628 (1969). Defendant Fund concedes, citing Fagaly, infra, that there was sufficient exertion involved in decedent's attempting *1239 to throw the "gut wrapper" over the logs to constitute the work-related exertion necessary to establish legal causation.
The question of medical causation is more bothersome. As we said in Mayes v. State Compensation Dept., 1 Or. App. 234, 461 P.2d 841 (1969):
"It must then be determined whether the work-related stresses or exertion were a material contributing factor in producing the heart attack. This is a question of medical causation. In any given case this is a question of fact." 1 Or. App. at 237, 461 P.2d at 843.
A summary of the medical evidence discloses the following: Dr. Vorheis, the treating doctor who had treated decedent for his 1961 heart attack and thereafter until decedent's death in October 1968, concluded that the July 8, 1968, heart attack was related to the work activity in which decedent was engaged at the time; Dr. Casterline, who recognized Dr. Vorheis as qualified by equal experience with himself in the treatment of heart diseases, concluded hypothetically that the heart attack was not work related; Dr. Hald, the general practitioner, concluded hypothetically that the heart attack was work related. Attaching some significance to the hearing officer's findings, Ryf v. Hoffman Construction Co., 254 Or. 624, 459 P.2d 991 (1969), and the treating physician's report, Lucke v. State Compensation Dept., 254 Or. 439, 461 P.2d 269 (1969), we conclude with the hearing officer that the evidence preponderates that decedent's heart attack of July 8, 1968, and subsequent death in October 1968, were compensable under the provisions of the Workmen's Compensation Law. See Clayton v. Compensation Department, supra; Mayes v. Compensation Dept., supra; Coday v. Willamette Tug & Barge Co., 250 Or. 39, 440 P.2d 224 (1968).
Arthur Larson in an article, The "Heart Cases" in Workmen's Compensation: An Analysis and Suggested Solution, 65 Mich. L.Rev. 441, 470 (1967), suggests a refinement in determining legal causation in heart attack cases. (Medical causation remains unchanged.) He suggests that where the workman has prior heart disease (a "personal risk factor"), legal causation should not be found unless "the employment contribution takes the form of an exertion greater than that of non-employment life." This court appears to have adopted this refinement in Fagaly v. State Acc. Ins. Fund, Or. App., 90 Adv.Sh. 1623, 471 P.2d 441, Sup.Ct. review denied (1970), and Svatos v. Pac. N.W. Bell Tel. Co., Or. App., 91 Adv.Sh. 1315, 478 P.2d 648 (1970), Sup.Ct. review denied (1971). However, this is at odds with the legal causation test set forth by the Oregon Supreme Court in Coday wherein the court said:
"In some jurisdictions that standard is described by the rule requiring claimant to show that he exerted unusual strain in carrying out his job. We have previously set a less rigid standard recognizing that the claimant's usual exertion in his employment is enough to establish the necessary legal causal connection. * * *" (Emphasis supplied.) 250 Or. at 48, 440 P.2d at 228.
This rule has not been changed although there was opportunity to do so in Grandell v. Roseburg Lbr. Co., 251 Or. 88, 444 P.2d 944 (1968), and Lorentzen v. State Compensation Department, 251 Or. 92, 444 P.2d 946 (1968). The adoption of Professor Larson's suggested refinement was not necessary in Fagaly and Svatos as application of either test would have reached the same result on legal causation. Only insofar as they adopted the Larson "personal risk" factor as applied to legal causation, those cases are overruled.
Reversed.
FORT, Judge (specially concurring).
I concur in the majority opinion except for that portion wherein the court expressly abandons the position taken by this court in Fagaly v. State Acc. Ins. Fund, Or. App., 90 Adv.Sh. 1623, 471 P.2d 441, Sup.Ct. review denied (1970), and Svatos v. Pac. N.W. Bell Tel. Co., Or. App., 91 Adv.Sh. 1315, *1240 478 P.2d 648 (1970), Sup.Ct. review denied (1971), adopting the personal risk factor doctrine enunciated by Larson[1] on the ground that "this is at odds with the legal causation test set forth by the Oregon Supreme Court in Coday [Coday v. Willamette Tug & Barge, 250 Or. 39, 440 P.2d 224 (1968)]."
In Fagaly, we discussed the problem at length and said:
"Larson, in his article, points out:
"`* * * [T]he causation issue can be solved by invoking the distinction which exists in compensation law between neutral-risk situations (where there is no obvious personal or employment element contributing to the risk) and personal-risk situations (where a personal risk contributes to the injury, although perhaps in a relatively small degree). * * *
"`In heart cases, the effect of applying this distinction between neutral-risk and personal-risk situations would be clear. If there is some personal causal contribution in the form of a previously weakened or diseased heart, a heart attack would be compensable only if the employment contribution takes the form of an exertion greater than that of non-employment life. Note that the comparison is not with this employee's usual exertion in his employment, but rather with the exertions present in the normal non-employment life of this or any other person. * * *' (Italics in original.) * * *." 90 Adv.Sh. at 1629-1630, 471 P.2d at 444.
We reiterated this in Svatos.
The personal risk factor doctrine in heart cases applies only where the decedent had "a previously weakened or diseased heart," not in a case where there has been no such prior weakness or disease. It is concerned with legal causation, not medical.
The court does not overrule Fagaly and Svatos because it has concluded that the personal risk factor doctrine is unsound or that the reasoning expressed therein is faulty. It does so solely because it concludes those cases are "at odds" with Coday.
Whether, as the majority contends, this doctrine is "at odds" with Coday, requires an examination of the latter.
Coday involved a workman who sustained and survived an on-the-job heart attack. The court there did not discuss the personal risk factor doctrine at all. On its facts no reason in my view appears why it should have. From their examination it seems abundantly clear that the work Coday was doing involved exertion greater than in nonemployment life. The court simply held that legal causation existed. It then considered the question of medical causation, found that it was not established, and denied recovery.
Nor can I conclude that the Supreme Court in Olson v. State Ind. Acc. Comm., 222 Or. 407, 352 P.2d 1096 (1960); Grandell v. Roseburg Lbr. Co., 251 Or. 88, 444 P.2d 944 (1968); Lorentzen v. State Compensation Department, 251 Or. 92, 444 P.2d 946 (1968), or Clayton v. State Compensation Department, 253 Or. 397, 454 P.2d 628 (1969), adopted or rejected the personal risk factor doctrine. In none of them was it necessary to discuss it, and in none of them did it do so.
Certainly in my view it is at least as reasonable to assume since the Supreme Court both in Fagaly and Svatos considered and denied a petition for review, that it did not consider either opinion "at odds" with Coday, as it is to assume, as the majority does here, that adoption by us in Fagaly and Svatos of the personal risk factor doctrine was contrary to the holding in Coday, which neither discussed nor required its consideration.
I agree, in short, that the Supreme Court has not adopted the personal risk factor doctrine, but I do not agree that it has rejected it either directly or by necessary implication. *1241 Under such circumstances this court has the right, and indeed the duty, to take its own position.
SCHWAB, Chief Judge (dissenting).
I agree with the opinion of the majority in so far as it sets forth the legal principles by which we must determine whether or not a heart attack is compensable. However, I believe that under the facts of this case the claimant has failed in her burden of proof.
On the day of the heart attack, Monday, July 8, the deceased told the first doctor he saw, Dr. Cleary, that "* * * [W]hile driving a logging truck he developed a sudden severe attack of chest pain * * *," and that during the previous night he had "* * * some chest pain." Apparently the deceased, in giving a history to the next doctor he saw, Dr. Vorheis, did not mention the pain he had experienced the previous night, but told the doctor only that he became ill while "bringing in a load of logs." Based on this testimony, Dr. Vorheis connected the decedent's heart attack with his work activity.
I do not believe that Dr. Hald's testimony is worthy of much weight. He says that in his opinion the heart attack was caused when the decedent was attempting to throw a chain over a load of logs at the "landing." There is nothing in the record to show that the attempt to throw the chain immediately preceded the onset of the decedent's heart attack. The only testimony is that when he was observed shortly after he attempted it, he was obviously ill. For all the record discloses, he might have been suffering from the heart attack long before he attempted it. Further, Dr. Hald says that since the decedent had a previous heart attack he would not have gone to work if he had suffered serious chest pains the previous night. The uncontradicted testimony is that regardless of when the decedent first suffered the onset of a heart attack he was seriously ill either before, at the time, or just after he attempted to throw the chain over the logs at the landing. Yet, he then proceeded to drive the loaded log truck for many miles before going to see a doctor.
I find nothing in the record by which we can do anything other than speculate as to when the ultimately fatal onset began or what caused it.
For the foregoing reasons I respectfully dissent.
NOTES
[1] Dr. Vorheis, the treating doctor, was not examined as a witness. At the conclusion of taking testimony, the hearing was continued by the hearing officer for seven days to allow the defendant Department to decide whether or not to cross-examine Dr. Vorheis on his letter reports. The option was not exercised and Dr. Vorheis was not cross-examined.
[1] A. Larson, The "Heart Cases" in Workmen's Compensation: An Analysis and Suggested Solution, 65 Mich.L.Rev. 441, 470 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610198/ | 15 Ariz. App. 29 (1971)
485 P.2d 853
Karl J. NIELSON and Georgia B. Nielson, husband and wife, Appellants,
v.
ARIZONA TITLE INSURANCE AND TRUST COMPANY, an Arizona corporation, Appellee.
No. 1 CA-CIV 1383.
Court of Appeals of Arizona, Division 1.
June 17, 1971.
Rehearing Denied July 21, 1971.
Review Denied October 5, 1971.
Leven B. Ferrin, Phoenix, for appellants.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Wilbert G. Anderson, Phoenix, for appellee.
HOWARD, Judge.
This is an appeal from a summary judgment entered against plaintiffs-appellants by the Superior Court of Maricopa County, Honorable Kenneth C. Chatwin, presiding.
The facts are as follows. On August 6, 1965, Arizona Title Insurance and Trust *30 Company, as trustee of 160 acres of land in Yavapai County, sold the property to defendant Capitol Investment Corporation under a sales agreement with annual payments to be made.
This agreement became Arizona Title Insurance and Trust Company escrow number 231953 and payments were to be made to defendant Arizona Title as trustee.
On July 12, 1965, defendant Capitol Investment sold 80 acres of the property involved herein to defendants H.T. and Mary B. Hoover under an agreement which became Arizona Title Insurance and Trust Company escrow number 234823.
On April 1, 1966, plaintiffs purchased the property which was the subject of escrow number 234823 from H.T. and Mary B. Hoover. Upon this conveyance the escrow number 234823 was closed.
On July 15, 1966, plaintiff paid to Arizona Title $4,444.57 which was the unpaid balance on escrow number 234823. This money was paid by Arizona Title to Capitol Investment. Capitol Investment then failed to discharge the underlying obligation to Arizona Title.
On December 2, 1966, Arizona Title sent to plaintiffs a forfeiture notice and all of plaintiffs' interest in the property which had been the subject of escrow numbers 234823 and 231953 was forfeited.
On November 1, 1968, plaintiffs amended their pending action against Capitol Investment and the Hoovers by adding Count IV and joining Arizona Title as an additional party defendant. Count IV of plaintiffs' complaint alleges:
* * * * * *
"That defendant ARIZONA TITLE INSURANCE & TRUST COMPANY by its negligent acts wilfully failed to properly apply the money plaintiffs paid to the proper trust and then wilfully and maliciously forfeited all of the plaintiffs [sic] rights in the property."
* * * * * *
In other words, the gist of plaintiffs' complaint against Arizona Title is that Arizona Title was negligent in not applying the funds paid to them, as trustee, to the underlying obligation owed to Arizona Title. The alleged basis of this requirement to discharge the underlying obligation before paying said monies to Capitol Investment is the wording requiring same in the two previously mentioned escrow agreements.
Defendant Arizona Title moved for summary judgment on the grounds that the statute of limitations of two years as provided in A.R.S. Sec. 12-542 had run since they paid the money over to Capitol in July of 1966 and the cause of action accrued at that time. Summary judgment was granted in favor of Arizona Title Insurance & Trust Company.[1]
In examining the complaint, motions and memoranda in support thereof we find that plaintiffs' complaint against Arizona Title is couched in terms of a negligent misapplication of funds. This alleged misapplication occurred on July 15, 1966. The suit against Arizona Title was brought on November 1, 1968.
It is however, the rule in Arizona, that under the statute providing that negligence actions shall be commenced and prosecuted within two years after the cause of action accrues, the legislature intended that a cause of action accrues when the plaintiff knew or should have known of defendant's conduct, and the statute of limitations begins to run at that time. A.R.S. Sec. 12-542; Mayer v. Good Samaritan Hospital, 14 Ariz. App. 248, 482 P.2d 497 (1971).
We perceive that there is an undecided factual issue in this case, i.e. when the plaintiffs knew[2] or should have known *31 of defendant's conduct. This precluded the granting, by the trial court, of a summary judgment.
Reversed.
KRUCKER, C.J., and HATHAWAY, J., concur.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. Sec. 12-120(E).
NOTES
[1] The plaintiffs' claims against Capitol Investment, the Hoovers and the Foxes are still pending. The summary judgment involved here has the requisite finality for appeal purposes as the A.R.C.P. Rule 54(b), 16 A.R.S. "express determination and direction" requirements were complied with.
[2] If the first time plaintiffs knew or should have known that Arizona Title had failed to apply the funds was on December 2, 1966, the date of the notice of forfeiture, then plaintiffs are not barred by the statute of limitations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610216/ | 207 Kan. 378 (1971)
485 P.2d 332
STATE OF KANSAS, Appellant,
v.
RONALD LYON, Appellee.
No. 46,106
Supreme Court of Kansas.
Opinion filed May 15, 1971.
K. Mike Kimball, County Attorney, argued the cause, and Kent Frizzell, Attorney General, and John Elting, were with him on the brief for the appellant.
Harold Jones, of Dighton, argued the cause and was on the brief for the appellee.
The opinion of the court was delivered by
FONTRON, J.:
This is an appeal by the State of Kansas from an order of the district court of Lane County resentencing the defendant, Ronald Lyon, and granting him probation.
The facts are not in dispute. On November 20, 1967, the defendant, appellee herein, was convicted of a felony, i.e., embezzlement by bailee, in violation of K.S.A. 21-547. On December 19, 1967, after evidence of two prior felony convictions was introduced, the defendant was sentenced to the Kansas State Penitentiary as an habitual criminal. On appeal, the judgment was affirmed in State v. Lyon, 203 Kan. 78, 452 P.2d 838.
Some two years later it was discovered, apparently as an aftermath of an action filed by the defendant pursuant to K.S.A. 60-1507, that the sentence set out in the journal entry was "for a term *379 of not exceeding fifteen (15) years", which would have been an invalid sentence, inasmuch as the statute (K.S.A. 21-107a) prescribes a penalty of not less than fifteen (15) years for a third-time felony offender. After the discovery was made, the state filed a motion in the criminal case for an order nunc pro tunc correcting the sentence to read "for a term of not less than fifteen (15) years" (as required by the statute) to conform to the sentence which the state alleged was actually pronounced.
Both the defendant's 60-1507 action and the state's nunc pro tunc motion were called for hearing April 8, 1970, at which time Mr. Lyon personally appeared with court appointed counsel. On this date the presiding judge was the Honorable Maurice A. Wildgen who had succeeded Judge Bert J. Vance, the sentencing judge, as a result of judicial redistricting.
At the inception of the hearing Judge Wildgen announced he would first take up the state's motion for an order nunc pro tunc. Thereupon the state introduced evidence in support of its motion as follows:
1. A certified transcript of the proceedings had in open court on December 19, 1967, wherein Judge Vance sentenced the defendant to "be confined at hard labor in the Kansas State Penitentiary at Lansing, Kansas, for a term of not less than fifteen years."
2. A photostatic copy of Judge Vance's trial notes found in the trial criminal docket showing that the defendant was "Sentenced to not less than 15 years Kansas State Penitentiary at Lansing."
3. Notice of appeal filed by defendant from "the judgment rendered and made in the above entitled action on the 19th day of December, 1967, whereby it was by the District Court of Lane County, Kansas, decided, ordered and adjudged that the defendant be confined in the Kansas State Penitentiary at Lansing, Kansas, for a period of not less than 15 years."
4. The first sentence of this court's opinion in State v. Lyon, supra, of which the trial court took judicial notice, reading as follows:
"The defendant, Ronald Lyon, was convicted by a jury of the crime of embezzlement by a bailee in violation of K.S.A. 21-547. He was sentenced to a term of not less than fifteen years in the Kansas State Penitentiary pursuant to K.S.A. 21-107a."
At the conclusion of the foregoing evidence, defense counsel asked to place his client on the stand to testify "for the Court's benefit in resentencing [Mr. Lyon]." Lyon's subsequent testimony did not pertain to the issue raised by the state's nunc pro tunc *380 motion nor did it tend in anywise to refute the evidence supporting the state's motion.
After hearing the defendant's testimony, Judge Wildgen found the sentence pronounced on December 19, 1967, was erroneous, irregular and therefore void and could not be corrected by a nunc pro tunc order. Accordingly the court, on April 8, 1970, overruled the state's motion to correct the journal entry to conform to the sentence and proceeded to impose a new sentence of imprisonment against Mr. Lyon "for a term of not less than fifteen (15) years."
Nearly two months later, and on June 3, 1970, Judge Wildgen entered an order probating Mr. Lyon for a period of not less than two nor more than five years upon various terms, conditions and restrictions.
The state, as we have already intimated, took exception to the trial court's action and has brought the matter here for review. It is the state's position that a valid sentence was imposed against the defendant on December 19, 1967; that the journal entry, through clerical error, erroneously reflected a different sentence, which was invalid, and hence the journal entry was subject to correction by means of an order nunc pro tunc; that a valid sentence having been pronounced on December 19, 1967, the trial court no longer had jurisdiction to sentence or to resentence the defendant on April 8, 1970; and that the purported sentence, pronounced by Judge Wildgen on April 8, 1970, together with the attempted order of probation dated June 3, 1970, were void and of no legal effect.
We are inclined to agree with the state's position. The record leaves no room for doubt that the defendant was correctly sentenced by Judge Vance on December 19, 1967. The state's evidence, which was not refuted in any way, discloses that Mr. Lyon was sentenced to a term of not less than fifteen years, rather than to a term of not more than fifteen years as the journal entry sets forth.
It is a well settled principle of law that a court possesses inherent power to enter judgments, orders and decrees nunc pro tunc for the purpose of correcting its records, and that where a journal entry fails to reflect accurately the judgment which was actually rendered, it becomes the duty of the trial court to make it speak the truth. (See cases in 3 Hatcher's Kansas Digest [Rev. Ed.] Judgments, § 11.) The reasoning behind this general rule has been applied both to civil and to criminal actions. (Ramsey v. Hand, 185 Kan. *381 350, 360, 343 P.2d 225; Tafarella v. Hand, 185 Kan. 613, 617, 347 P.2d 356; State v. Igo, 194 Kan. 550, 552, 400 P.2d 968.
Federal courts, as well as state, have come to grips with problems in this area. In Hill v. Wampler, 298 U.S. 460, 464, 80 L. Ed. 1283, 56 S. Ct. 760, the United States Supreme Court had this to say on the subject:
"Two of the questions certified to us ... make mention of a variance between the commitment and the sentence `orally pronounced.' If that were the only variance, we should deem it unimportant. The only sentence known to the law is the sentence or judgment entered upon the records of the court. [Citing cases.] If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth...."
See, also, United States ex rel. Sterling v. Pate, 403 F.2d 425 (1968); Accardi v. Blackwell, 412 F.2d 911 (1969).
The state's motion for an order nunc pro tunc correcting the journal entry to speak the truth was entirely proper, and should have been sustained. The record clearly refutes the trial court's finding that the original sentence was "erroneous, irregular, and therefore void." To the contrary, the journal entry itself was incorrect in its reflection of an invalid sentence.
The foregoing conclusion requires that the purported sentence imposed by Judge Wildgen on April 8, 1970, be vacated.
The great weight of authority in this country is to the effect that when a valid sentence has once been pronounced and put into execution, the trial court cannot modify, amend or reverse the same in any respect. (168 A.L.R. 706 Anno., Criminal Law-Changing Sentence.) Kansas adheres to this general principle of law. In Parks v. Amrine, 154 Kan. 168, 117 P.2d 586, it was held:
"When a valid judgment and sentence has been rendered in a criminal case the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and hear additional evidence and impose a new sentence, even though this be done at the same term of court." (Syl. ¶ 2.)
See, also, State v. Carte, 157 Kan. 139, 138 P.2d 429; Layman v. Hudspeth, 162 Kan. 445, 176 P.2d 527.
The purported sentence of April 8, 1970, being void, the court had no authority to grant probation to the defendant on June 3, 1970. It is true that under K.S.A. 1967 Supp. 62-2239 (now K.S.A. 1970 Supp. 21-4603) the trial court is empowered to modify a sentence within one hundred twenty (120) days after it is imposed. However, that period of time had long expired in this case, for the statutory *382 time commenced to run from December 19, 1967, the date on which the legal sentence was imposed and not from April 8, 1970, when the court purported to pronounce sentence anew.
The judgment is reversed with directions to sustain the state's motion for an order nunc pro tunc and to correct the journal entry in State of Kansas v. Ronald Lyon, No. 312, in accordance with the prayer of said motion; to vacate the judgment of April 8, 1970, finding the sentence of December 19, 1967, to be void; to vacate the purported sentence imposed against defendant April 8, 1970; to vacate the order of probation entered under date of June 3, 1970; and to proceed with the hearing of whatever matters may remain for determination in the defendant's action filed under K.S.A. 60-1507. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610233/ | 485 P.2d 689 (1971)
William H. Ameline, Plaintiff and Respondent,
v.
PACK AND COMPANY, Inc., a Corporation, Defendant and Appellant.
No. 11981.
Supreme Court of Montana.
Submitted May 10, 1971.
Decided May 26, 1971.
Murphy, Robinson, Heckathorn & Phillips, I. James Heckathorn argued, Kalispell, for defendant and appellant.
John M. McCarvel argued, Great Falls, for plaintiff and respondent.
CASTLES, Justice.
This is an appeal from a judgment after a motion for a new trial was denied. Plaintiff William H. Ameline brought the action to recover money due under an alleged one year contract of employment. The district court of the eleventh judicial district, Flathead County, sitting without a jury, entered judgment for the plaintiff, finding due the sum of $3,908.65 with interest, court costs, and $530 attorney fees.
Plaintiff filed his complaint alleging that he had been employed by defendant Pack and Company, a corporation, for a term of one year at an annual salary of $9,600. Plaintiff further alleged that: he worked continuously until he was terminated; he was paid $5,691.35; he was entitled to the balance of one year's salary plus paid vacation; and, damages for additional expenses of moving and wrongful termination of his employment.
An answer was filed consisting of a single defense that all payments due had been paid and denied the complaint as to the allegations of a year's contract. As noted above, the judgment found damages for the balance of wages or salary due but did not find damages for a paid vacation or for moving expenses. No crossappeal was filed.
Plaintiff was an experienced paver-operator. He lived with his family in Great Falls where he worked for various contractors, but mostly on a seasonal basis, the business being of that nature.
*690 One Bill Radovich of Great Falls was contacted by defendant and hired on an annual basis by defendant, but before he could start work he broke his leg and could not report. Radovich recommended plaintiff to defendant as a qualified operator. Radovich contacted plaintiff and advised him to accept year around employment rather than continue seasonal employment.
Plaintiff went to Kalispell, met with defendant and entered into an agreement. The agreement, according to plaintiff's testimony, was for a two week trial period afer which time, if both parties were satisfied, it would be binding on both.
Defendant was a corporation engaged in excavation and utility business and asphalt paving. Defendant entered the asphalt paving business in the spring of 1968. Equipment was purchased and personnel sought to operate the equipment. Plaintiff was hired. The trial court found that on May 11, 1968 plaintiff and defendant entered into a contract whereby defendant agreed to employ plaintiff for a period of one year, payment to be made in monthly payments of $800.
Plaintiff moved from Great Falls to Kalispell and began work on May 13, 1968. He was terminated without notice on December 2, 1968. Defendant's superintendent, Merrill Bates, handed him a termination slip, told him that defendant did not have any more work, was running out of money, and could not carry a crew through the winter. The first big snowfall of the year occurred that day and the weather stopped all asphalt work.
Plaintiff's position was that the employment was a contract for a year; defendant's was that it was from month to month or general and indefinite and plaintiff was discharged for cause.
The issue on this appeal is whether the trial court erred in finding a year's contract.
Defendant, appellant herein, contends the evidence supports the proposition that plaintiff's employment contract was a hiring by the month, for an indefinite period; and does not support the proposition that it was a contract for one year. Also, defendant insists the evidence demonstrates that plaintiff was discharged for cause; and thus under section 41-305, R.C.M. 1947, discharge for cause would make the term of hiring irrelevant.
The district court found that there was a year's contract but made no finding as to whether the plaintiff's discharge was for cause. At the pleading stage, the defendant did not allege discharge for cause, but rather, just answered by a general denial. As noted heretofore, Bates, the superintendent, did not, in terminating plaintiff, give any indication of good cause for the discharge. The timing of the lay off the first big snowfall, the fact that two other employees were terminated the same day, the silence as to reason other than that expressed, all tend to disprove good cause. But, we shall come back to this later.
The trial court found a year's contract. If there is substantial, credible evidence to support the trial court's findings, the findings will not be set aside on appeal. Firestone v. Bradshaw, Mont., 483 P.2d 716.
Bates, defendant's superintendent, testified that Ronald Pack, president of defendant corporation, told him plaintiff had been hired on an annual basis. Bates also testified that around Labor Day, Pack had Bates go to plaintiff and propose that the basis of his employment be changed from an annual basis to an hourly one. Plaintiff refused. Bates also testified that another employee did change to an hourly rate. He further testified that he, Bates, was on a $12,000 per year "guaranteed" salary. Yet, Bates went on to say that he could "quit" by giving two weeks' notice. There was conflicting testimony and versions of what a year's contract meant.
Appellant points out that even the plaintiff admitted that he was not contractually bound for a year. On cross-examination the following exchange occurred:
"Q. You felt, did you not, that on all the jobs that you have worked, you felt *691 that you have had a right to quit the job at any time you wanted to? A. Yes.
"Q. And there was nothing different about this job with Mr. Pack, you felt that after a month or two months or at any point in time you felt that you had the right to quit this job also, didn't you, if things weren't going the way you wanted them? A. Well, I'll tell you, I was going by the guaranteed salary and I had my children in school and I figured that I had planned on staying with Mr. Pack. I never had no intention of leaving him. I would have probably been here today yet.
"Q. But the point that I am making is even though you may have intended to stay and wanted to stay, you felt that you had the right to leave, did you not? A. It didn't enter my mind.
"Q. Well then, you didn't think conversely then you didn't feel that you were bound to stay either? A. Well no. I really didn't think anything about quitting or leaving, but I suppose if I had in mind, I would have, I would have talked it over. I think I would have talked it over with Ronnie. I think if I had any reason to want to leave, I think I would have went to him and talked with him and talked it over.
"Q. But the point that I'm making is that during this time you knew that you could leave if you wanted to? A. Well, I guess so."
However, plaintiff continued to insist that he had a "guaranteed" year's contract. He did admit that it depended upon his ability to do the job. Bates, the superintendent, testified that plaintiff did the job.
All of this discussion of the testimony adds up to the fact that, although the evidence was conflicting, there was substantial credible evidence to find as the trial court did.
We return now to the discharge. Defendant introduced evidence of drinking, hangovers, and other matters in an effort to establish cause for the discharge. Appellant cites section 41-305, R.C.M. 1947, which provides:
"Termination by employer for fault. An employment, even for a specified term may be terminated at any time by the employer in case of any willful breach of duty by the employee in the course of his employment, or in case of his habitual neglect of his duty or continued incapacity to perform it."
Section 41-307, R.C.M. 1947, provides:
"Compensation of employee dismissed for cause. An employee, dismissed by his employer for good cause, is not entitled to any compensation for services rendered since the last day upon which a payment became due to him under the contract."
Evidence was offered to establish the cause for the discharge under the statute. However, there was conflicting evidence. Bates, as pointed out heretofore, testified to the good work of plaintiff. He also testified that Pack instructed him to give reasons for the discharge the reasons being contrary to the provisions of the statute. Now, Pack would have this Court believe that this was not so; that, in fact plaintiff was guilty of willful misconduct. Again, there was conflicting evidence, and the trier of fact chose to believe one version.
We have commented that the trial court did not make a specific finding the discharge was not for cause. The finding, if necessary, would be implied. However, here, this was not made an issue except as an afterthought. No exceptions were taken to the findings, but we do not ground this opinion on that. The defendant had the burden of proof to establish the cause for discharge, if any there was, and simply failed to do so.
Finding that the evidence supports the trial court's findings, the judgment is affirmed.
JAMES T. HARRISON, C. J., and DALY, HASWELL and JOHN C. HARRISON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903714/ | 773 N.W.2d 127 (2009)
STATE of Minnesota, Respondent,
v.
Thomas Edward UTTER, Jr., Appellant.
No. A08-1667.
Court of Appeals of Minnesota.
September 15, 2009.
*129 Lori Swanson, Attorney General, St. Paul, MN; and Janelle P. Kendall, Stearns County Attorney, Joshua J. Kannegieter, Assistant County Attorney, St. Cloud, MN, for respondent.
Marie L. Wolf, Interim Chief Appellate Public Defender, St. Paul, MN, for appellant.
Considered and decided by LARKIN, Presiding Judge; ROSS, Judge; and SCHELLHAS, Judge.
OPINION
SCHELLHAS, Judge.
This appeal arises from the criminal conviction of appellant, who argues that the district court committed reversible error in admitting evidence of his unspecified prior conviction for impeachment purposes. Because the district court erred in admitting evidence of appellant's unspecified prior conviction for impeachment purposes under Minn. R. Evid. 609(a)(1), and this error was not harmless, we reverse and remand.
FACTS
In April 2005, L.S. received a call from appellant Thomas Edward Utter, Jr., who asked L.S. to meet him at a certain home-improvement store so that appellant could tell him a secret. L.S. met appellant at the store, and appellant asked L.S. whether L.S.'s wife was about to "have another man" and whether L.S. "was about to let her or what." L.S. subsequently realized that his wife was involved in a sexual relationship with appellant. L.S. testified that appellant made "a lot of phone calls," sent flowers, and sent letters. When L.S. answered appellant's phone calls, appellant would speak with L.S., then ask for L.S.'s wife, and L.S. would "put her through." By March 2007, L.S. had phone contact with appellant approximately 100 times and L.S. obtained a harassment restraining order prohibiting appellant from having any contact with L.S., including telephone contact.
On April 5, 2007, L.S. received a call from a pay phone. The phone conversation lasted about twenty minutes, during which the caller called L.S. an "old man" and a "loser." L.S. believed the caller was appellant and told him that he had a restraining order in place, but the caller replied that it would not stop him. After the phone call, L.S. contacted the police, who learned that the pay phone was located at a convenience store approximately two blocks from appellant's house. Respondent State of Minnesota charged appellant with violating a harassment restraining order.
Midway through appellant's trial, the prosecution informed the district court and appellant that if appellant testified at trial, it intended to impeach appellant with his May 20, 2005 conviction of violating an order for protection. Appellant objected to the admission of his prior conviction on the ground that it was prejudicial to him. The district court stated:
I do have some concern about telling the jury that [appellant's conviction] was for an order for protection violation simply because this is a charge of harassment restraining order violation. . . . [I]t's not exactly the same thing, obviously, but it's very similar, and I think there is some concern that the jury might believe he is guilty of that once he might be guilty of it again.
*130 I will allow the state to impeach [appellant] simply with the fact that he has a felony conviction dated May 20, 2005.
The trial resumed and, on direct examination, appellant acknowledged having a relationship with L.S.'s wife and testified that in April of 2007, the relationship consisted of "pretty much just conversations over the phone." Appellant also acknowledged having received the harassment restraining order. On cross-examination, appellant denied making approximately 100 calls to L.S.'s cell phone and denied making any calls to L.S.'s cell phone in 2007. On direct examination, appellant answered his counsel's questions about his prior conviction.
DEFENSE COUNSEL: You do have a prior conviction from 2005, is that fair to say?
APPELLANT: Yes.
DEFENSE COUNSEL: All right. That did that involve [L.S.] or anybody in his family?
APPELLANT: No.
During cross-examination, the prosecution clarified that the 2005 conviction was a felony conviction.
The jury returned a guilty verdict, and the district court sentenced appellant to 18 months' imprisonment, stayed, placed appellant on probation for five years, and ordered appellant to serve 90 days in jail and pay a $2,500 fine. This appeal follows.
ISSUE
Does a district court err when it admits evidence of a defendant's unspecified prior felony conviction for impeachment purposes under Minn. R. Evid. 609(a)(1)?
ANALYSIS
We review a district court's ruling on the admissibility of prior convictions for purposes of impeachment under a "clear abuse of discretion standard." State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006). Under Minn. R. Evid. 609(a)(1), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect. District courts have great discretion in determining what convictions are admissible under the balancing test of rule 609(a)(1). Minn. R. Evid. 609(a)(1); State v. Gassler, 505 N.W.2d 62, 67 (Minn.1993).
"[W]hen a witness is the defendant in a criminal proceeding, cross-examination as to the witness's prior convictions may ordinarily extend only to the fact of conviction, the nature of the offense, and the identity of the defendant." State v. Griese, 565 N.W.2d 419, 426 (Minn.1997). The purpose of admitting evidence about convictions is to assist the jury in assessing the credibility of the defendant. Swanson, 707 N.W.2d at 655. "[E]vidence of prior convictions generally has some impeachment value because it allows the jury to see the whole person and thus to judge better the truth of the witness's testimony." State v. Davis, 735 N.W.2d 674, 680 (Minn.2007) (quotation omitted). To determine if the probative value outweighs the prejudicial effect, we examine five factors:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the crime to impeach), (4) the importance of defendant's prior testimony, *131 and (5) the centrality of the credibility issue.
Swanson, 707 N.W.2d at 654 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)). "[A] district court should demonstrate on the record that it has considered and weighed the Jones factors," id. at 655, and "it is error for a district court to fail to make a record of its consideration of the Jones factors, though the error is harmless if it is nonetheless clear that it was not an abuse of discretion to admit evidence of the convictions," Davis, 735 N.W.2d at 680. When a district court fails to make a record of its consideration of the Jones factors, we review the factors as applied to the matter before us. Swanson, 707 N.W.2d at 655.
Here, the district court did not consider the Jones factors on the record but did express concern about the similarity of appellant's prior conviction to the charged offense. In an attempt to mitigate the prejudicial effect of the conviction, the court allowed only the admission of the fact of appellant's May 20, 2005 felony conviction. The question before us on appeal is whether the probative value of admitting evidence of an unspecified prior felony conviction outweighs its prejudicial effect so that the evidence is admissible under rule 609(a)(1). We answer this question in the negative.
Minnesota appellate courts have not addressed the issue of whether evidence of an unspecified prior conviction is admissible, and other jurisdictions are split on the issue. Michigan courts have long rejected the use of unspecified prior convictions to impeach defendants. See, e.g., People v. Van Dorsten, 409 Mich. 942, 298 N.W.2d 421, 421 (1980) ("It is improper to impeach a defendant by telling the jury only of the existence of unnamed prior felony convictions, without providing the names of the offenses. It is the nature, rather than the fact, of a prior felony conviction which the jury is to use in its evaluation of credibility."); People v. Garth, 93 Mich.App. 308, 287 N.W.2d 216, 219 (1979) ("Because many felonious activities have little if any relationship to veracity, a prior felony conviction is not in itself a reliable indication of lack of credibility. Without knowledge of the nature of the felony, the trier of fact has no probative evidence to consider, merely an amorphous suggestion that defendant's past is blameworthy."). But, in a 1990 Illinois case, a concurring judge observed that "Michigan [was] the only state that expressly disallow[ed] impeachment by an unspecified felony," and that Florida, Idaho, Kentucky, Montana, Nebraska, Nevada, New Mexico, Washington, and Wisconsin allowed the "mere fact" of a felony conviction to be admissible, while Alaska, Connecticut, Oregon, and South Dakota considered the issue a matter of the trial court's discretion. People v. Kunze, 193 Ill.App.3d 708, 140 Ill. Dec. 648, 550 N.E.2d 284, 301 (1990) (Steigmann, J., specially concurring).
Yet, since 1990, other jurisdictions have followed Michigan's rejection of the use of unspecified prior convictions for impeachment purposes, and, in 1999, the Illinois Supreme Court rejected what it called the "mere fact" rule, reasoning that "it is the nature of a past conviction, not merely the fact of it, that aids the jury in assessing a witness' credibility." People v. Atkinson, 186 Ill. 2d 450, 239 Ill. Dec. 1, 713 N.E.2d 532, 536, (1999). And, in 2000, recognizing that its holding placed it in the minority of jurisdictions, the Court of Special Appeals of Maryland held that impeachment by a defendant's "sanitized" prior felony conviction was reversible error. Bells v. State, 134 Md.App. 299, 759 A.2d 1149, 1155 (2000). In considering the admissibility of a "sanitized prior conviction for impeachment purposes," the court said:
*132 Maryland has not squarely faced the issue of whether using a sanitized conviction for impeachment purposes complies with our law and rules. Although a rule permitting a sanitized use of similar convictions has some appeal, we are disinclined to graft such an extension onto the existing rule. Here, the court properly found that, in this case, the use of the prior convictions would in balance be more prejudicial than probative. We do not believe that the sanitized version was any less so. . . . [W]e hold that the lower court erred in permitting sanitized prior convictions to impeach Bells.
Id. at 1152 (footnote omitted).
The admissibility of unspecified prior convictions of a criminal defendant has also been addressed by some federal courts. For example, the Fifth Circuit has discussed a federal district court's rejection of this method of impeachment favorably, noting the federal district court's reasoning that a jury might infer from the withholding of details about a conviction that the conviction was of a similar nature to the charged offense. United States v. Shaw, 701 F.2d 367, 385 (5th Cir.1983). And the Seventh Circuit has reasoned that jurors are unlikely to be able to properly evaluate a witness's credibility if they are made aware only of the fact that the witness has been convicted of a felony. Campbell v. Greer, 831 F.2d 700, 707 (7th Cir.1987).
In this case, we conclude that the district court abused its discretion in admitting evidence of appellant's unspecified prior conviction. As in Bells, the district court expressed concern about the prejudicial effect of appellant's prior conviction of violating an order for protection because of its similarity to the charged offense, at least implying that the court believed that the use of the prior conviction would be more prejudicial than probative. The court's concern was entirely proper under the third Jones factor, which recognizes that the greater the similarity between the prior conviction and the charged offense, the greater the reason for not permitting use of the prior conviction to impeach. Jones, 271 N.W.2d at 538. The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant "did it before, he most likely has done it again." But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense. See Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967); State v. James, 638 N.W.2d 205, 211 (Minn.App.2002), review denied (Minn. Mar. 27, 2002). By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.
In this case, appellant's credibility was a central issue in the case because his defense was based on the theory that he was not the party who made the phone call to L.S. on April 5, 2007, a defense supported only by appellant's testimony. A district court has "great discretion in determining what prior convictions are admissible under the balancing test of Rule 609(a)(1)." Gassler, 505 N.W.2d at 67. But,
[a] sanitized prior conviction is not merely "ill-defined," but totally undefined. A jury [is] completely unable to assess what, if any, impact a "prior felony conviction" has upon a witness's veracity. The fact finder is able only to speculate about the prior conviction, therefore jeopardizing the purpose of [the rule], which seeks to "prevent a *133 jury from convicting a defendant based on his past criminal record, or because the jury thinks the defendant is a bad person."
Bells, 759 A.2d at 1154-55 (quoting Jackson v. State, 340 Md. 705, 668 A.2d 8, 13 (1995)). We hold that the district court's admission of appellant's unspecified prior felony conviction for impeachment purposes was error. We recognize that our holding places Minnesota in the minority of jurisdictions, but we conclude that to allow the admission of unspecified prior convictions would render meaningless our long line of cases emphasizing the importance of admitting only those convictions that assist the factfinder in measuring a witness's credibility and veracity. See, e.g., Swanson, 707 N.W.2d at 655.
Having concluded that the district court erred in admitting evidence of appellant's unspecified prior conviction, we next consider whether the error was harmless. The erroneous admission of evidence is "harmless if there is no `reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.'" State v. Robinson, 718 N.W.2d 400, 407 (Minn.2006) (quoting State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994)); see also State v. Vanhouse, 634 N.W.2d 715, 721 (Minn.App.2001) (applying the Post standard to the erroneous admission of a conviction for impeachment), review denied (Minn. Dec. 11, 2001). The Minnesota Supreme Court has recognized that Minnesota caselaw is inconsistent about who should bear the burden of showing that the district court's error was harmless. State v. Shoen, 598 N.W.2d 370, 377-78 n. 2 (Minn. 1999). We also note that the supreme court has not yet "resolve[d] any discord in our prior case law," only noting "the apparent inconsistency in our previous cases and draw[ing] the attention of practitioners to it." Id. Similarly, for reasons stated below, we do not attempt to resolve any discord in prior case law in this opinion.
Here, as previously noted, the jury's determination of appellant's credibility was critical to the verdict in this case. The district court's admission of appellant's unspecified prior felony conviction compounded the prejudice against him because the jury's ability to make credibility determinations depends on the nature of a conviction. The admission of the unspecified prior conviction raised the possibility that the jury might assume the worst.
We cannot conclude that there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. We hold that, regardless of who should bear the burden of showing that the district court's error was harmless, the error in this case is reversible error. We therefore reverse appellant's conviction and remand for a new trial.
We further note that, in addition to instructing the jury on how to evaluate impeachment evidence, the district court issued instructions to the jury similar to 10 Minnesota Practice, CRIMJIG 3.16 (2006), which pertains to Spreigl evidence. The district court instructed the jury that:
The state has produced evidence of an occurrence on May 20th, 2005, at Stearns County. It was admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the complaint. The defendant is not being tried for and may not be convicted of any offense other than the charged offense. You are not to convict the defendant on the basis of any occurrence on May 20, 2005, at Stearns County. To do so might result in unjust double punishment.
We do not doubt that the district court instructed the jury on the use of crimes as both impeachment and Spreigl evidence *134 for the purpose of attempting to mitigate prejudice to appellant. But, although the language of the impeachment and Spreigl instructions are somewhat similar, compare 10 Minnesota Practice, CRIMJIG 3.15 (2006) with CRIMJIG 3.16, the reference to unjust double punishment may have led the jury to speculate that the unspecified conviction was similar to, or even identical to, the charged offense. We conclude that the court's instruction likely exacerbated, rather than mitigated, the prejudice against appellant.
DECISION
Because the district court erred when it admitted evidence of an unspecified prior felony conviction to impeach appellant and the error was not harmless, we reverse and remand for a new trial.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1594339/ | 896 F. Supp. 1415 (1995)
Luis VELASQUEZ-CAMPUZANO and Juana Chavez-Lujan
v.
MARFA NATIONAL BANK.
No. P-94-CA-011-F.
United States District Court, W.D. Texas, Pecos Division.
June 9, 1995.
*1416 *1417 Mike Barclay, Alpine, TX, John G. Minniece, III, Marfa, TX, for plaintiffs.
John B. Hemphill, San Angelo, TX, for defendant.
MEMORANDUM OPINION AND ORDER
FURGESON, District Judge.
Before the court are the Defendant's Motion for Summary Judgment, filed June 9, 1994, and Plaintiffs' Joint Cross Motion for Summary Judgment, filed June 15, 1994. For the following reasons, Defendant's Motion *1418 is granted and Plaintiffs' Motion is denied.
I. PROCEDURAL HISTORY
This cause was removed to this court from the 83rd Judicial District Court in Presidio County, Texas, on March 3, 1994 on the basis of federal question jurisdiction. Plaintiff Luis Velasquez-Campuzano ("Plaintiff Velasquez") and Plaintiff Juana Chavez-Lujan ("Plaintiff Chavez") filed their Amended Complaint on May 20, 1994, alleging (1) violation of the Federal Right to Financial Privacy Act ("RFPA"), 12 U.S.C. §§ 3401-3422; (2) violation of the Texas Banking Code of 1943; (3) breach of the constitutional right to privacy; (4) breach of the common law; (5) breach of the implied condition of confidentiality; and (6) defamation.
After filing a timely Answer, Defendant Marfa National Bank ("MNB" or "the Bank") moved for summary judgment on June 9, 1994. On June 15, 1994, the Plaintiffs responded with a Cross Motion for Summary Judgment.[1] This matter was heard at oral argument on July 11, 1994, and is now ripe for consideration.
II. BACKGROUND
The relevant facts are not in dispute. Plaintiffs, a husband and wife, are citizens of the Republic of Mexico, and live in Ojinaga in the State of Chihuahua. At the time in question, Plaintiffs were customers of MNB, having placed certain funds in a checking account and certificates of deposit.
This suit arises from a single transaction between the Bank and the Plaintiffs, which occurred on January 11, 1991. On that date, the Plaintiffs visited the offices of MNB in Marfa, Texas. In order to take advantage of relatively high rates of interest in Mexico, the Plaintiffs sought to withdraw funds from their account at MNB and place them in the National Bank of Mexico in Ojinaga. Once greeted by Glenn Garcia, a MNB employee, the Plaintiffs asked to redeem two certificates of deposit, pay off a loan, and make a cash withdrawal. The completion of these transactions meant that the Plaintiffs stood to leave MNB's offices with $18,500 in U.S. currency.
In compliance with federal law regarding cash withdrawals in excess of $10,000, Garcia asked the Plaintiffs for identification so that he could complete the required Currency Transaction Report.[2] Immediately after making this request, Garcia heard the Plaintiffs discuss alternative ways to arrange the transaction.[3] Garcia left the room for a few moments, but then returned to again ask the Plaintiffs for identification. The Plaintiffs told Garcia that they now wished to leave the bank with only $9000 in cash and asked why identification was needed. The Plaintiffs consequently revised their transaction such that they left MNB with $9000 in cash and a $50,000 cashiers check.
After leaving the Bank's offices in Marfa, the Plaintiffs traveled to the border town of Presidio, Texas. There, they exchanged the $50,000 cashiers check for four smaller checks. Three of these smaller checks were cashed on the same day, in amounts less than $10,000. The fourth smaller check was cashed shortly thereafter. Plaintiff Velasquez admitted in his deposition that the $50,000 was changed to smaller checks so that he could take less than $10,000 in cash across the Presidio border bridge into Mexico. Vel. Depo. at 40.
Both the transaction of January 11 and the later transactions which occurred in Presidio came to the attention of MNB's compliance officer, Clementine Bales. Bales suspected *1419 that the Plaintiffs had committed a structuring offense, and submitted a Criminal Referral Form to the appropriate federal offices.
In connection with the Bank's referral, Plaintiffs were indicted and tried on charges relating to illegal structuring of currency withdrawals. See United States v. Luis Velasquez-Campuzano, No. P-92-CR-036(01) (W.D.Tex.1992); United States v. Juana Chavez-Lujan, No. P-92-CR-36(2) (W.D.Tex.1992). The jury found Plaintiff Velasquez not guilty of one count of the indictment. However, he pleaded guilty to the remaining counts for (1) causing or attempting to cause a financial institution to fail to file a currency transaction report, 31 U.S.C. § 5324(a)(1); (2) illegal structuring of a transaction, 31 U.S.C. § 5324(a)(3); and (3) false statements, 18 U.S.C. § 1001.[4] The jury did not return a verdict against Plaintiff Chavez. She did not enter a plea, nor was she retried. The charges against her were later dismissed.
III. STANDARD FOR SUMMARY JUDGMENT
Summary judgment "shall be rendered forthwith" where the pleadings and evidence on file show that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). Rule 56 mandates the entry of summary judgment where the requirements of the rule are met. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265, 273-74 (1986). The threshold inquiry in analyzing a motion for summary judgment is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986). The initial burden is on the party moving for summary judgment to demonstrate that there are no genuine factual issues. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552, 91 L.Ed.2d at 273-74. However, the movant need not negate the elements of the nonmovant's case. It is sufficient that the movant point to an absence of evidence to support the nonmovant's case. If the movant fails to carry this opening burden, summary judgment is not appropriate, regardless of the nonmovant's response. Id.
If, however, the movant meets the initial required showing, the burden then shifts to the nonmovant to "come forward with evidence establishing each of the challenged elements of its case for which the nonmovant will bear the burden of proof at trial." Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.1992) (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273). The nonmovant may satisfy this burden only through competent evidence, such as depositions or affidavits. Topalian, 954 F.2d at 1131. Mere conclusory allegations will neither defeat nor support a motion for summary judgment. Id.
Factual controversies must be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). It is not appropriate for a court to assume that the nonmoving party could or would prove necessary facts, in the absence of actual proof of those facts. Id. If the nonmovant fails to meet this burden of proof, and there is no genuine controversy of fact, summary judgment must be rendered.
Here, both parties have moved for summary judgment. This circumstance alone does not render a trial unnecessary, nor does it mean that no fact issues exist. 10A CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2720 (2d. ed. 1983 & Supp. 1994). Rather, the Motion of each party must be considered independently. Id.
It should be noted here that while both parties have moved for summary judgment, only Defendant has provided this court with competent summary judgment evidence. Specifically, Defendant has provided this court with two sworn affidavits and excerpts *1420 from the depositions of both Plaintiffs. Since there is no sworn contradictory evidence, this court takes the facts to be noncontroverted and draws them from these documents. Plaintiffs cannot rely on the pleadings to show a fact issue, but must argue both Motions, if at all, on the basis of Defendant's submission. See FED.R.CIV.P. 56(e); Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.) (noting that nonmovant filing no countervailing evidentiary materials may still utilize evidence supplied by movant to defeat summary judgment), cert. denied, 488 U.S. 926, 109 S. Ct. 310, 102 L. Ed. 2d 329 (1988); John Hancock Mutual Life Ins. Co. v. Johnson, 736 F.2d 315, 316 (5th Cir.1984) (holding that nonmovant filing no countervailing evidentiary materials may not rely on pleadings to establish fact issue).
IV. DISCUSSION
A. Claims under federal law
1. Liability under the Right to Financial Privacy Act
Plaintiffs concede that the RFPA permitted the Bank to disclose a limited amount of account information to government agencies in the face of suspected criminal activity. Nonetheless, Plaintiffs argue that the Bank is liable under the RFPA for revealing too much detail regarding the suspected criminal transaction, including "an ethnic slur and comments on the deceitful nature of the Plaintiffs."
At this juncture, it is important to consider the overall purpose and origin of the RFPA. In United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976), the Supreme Court held that there was no constitutional right to privacy in banking records. In direct response to this decision, Congress chose to "provide protection of individual rights beyond that afforded in the Constitution," and enacted the RFPA. H.R.Rep. No. 1383, 95th Cong., 2d Sess. 33-34, reprinted in 1978 U.S.C.C.A.N. 9273, 9305-9306. But it was clear from the outset that the newly created statutory right to privacy in banking records would not be absolute. Rather, the RFPA "seeks to strike a balance between customers' right of privacy and the need of law enforcement agencies to obtain financial records pursuant to legitimate investigations." Id. Consequently, there are a number of exceptions to the requirements of the RFPA. Here, the issues for the court are whether MNB's disclosure falls within these exceptions, and if so, what effect this carries.
a. Compliance with mandatory federal statutes and laws.
The RFPA does not apply where federal laws compels disclosure. The Act provides in part:
Disclosure pursuant to Federal statute or rule promulgated thereunder
Nothing in this chapter shall authorize the withholding of financial records or information required to be reported in accordance with any Federal statute or rule promulgated thereunder.
12 U.S.C. § 3413(d). See also 12 U.S.C. § 3402 (providing that terms of Act apply "[e]xcept as provided by section 3403(c) or (d), 3413, or 3414.").
There can be no question that, on these facts, the disclosure made by the Bank was required by law. It is undisputed that MNB is a nationally chartered bank. As such, it is subject to the rules and regulations of the Office of the Comptroller of the Currency ("OCC"). 12 U.S.C. § 27(b)(2). OCC requires banks to file Criminal Referral Forms in the face of "known or suspected crimes involving national banks." 12 C.F.R. § 21.11(a).
The conduct exhibited by Plaintiffs on January 11, 1991 was sufficient to trigger the reporting requirement. The Bank's employees had good reason to suspect that the Bank was being used to facilitate the crime of structuring a transaction to evade a reporting requirement, 31 U.S.C. § 5324(a)(3).[5]*1421 The reluctance of the Plaintiffs to provide identification, the restructuring of the initial transaction, and the later transactions in Presidio all point to violation of this statute. Had the bank failed to file a referral, it would have been subject to civil money penalties. 12 C.F.R. § 21.11(i).
A nationally chartered bank, faced with suspected criminal behavior, does not satisfy its obligations under federal law by merely filing a referral. Rather, federal law also dictates the scope and nature of the referral. OCC rules provide that a bank which knows of or suspects criminal activity "shall file OCC Criminal Referral Form (CC-8010-08 or CC-8010-09) in accordance with the instructions on the form." 12 C.F.R. § 21.11(b) (emphasis added). Thus, a nationally chartered bank with knowledge or suspicions of criminal activity must (1) file a Criminal Referral Form; and (2) answer the questions on the Form responsively.
Here, MNB met both requirements. The Referral Form filed by the Bank is attached as an Appendix to this opinion. [Editor's Note: Appendix not included for purposes of publication] The answers MNB provided to the questions posed in the Referral Form are clearly responsive. Plaintiffs' argument that MNB improperly provided information in "great detail" does not float. The OCC, via the Referral Form, requires that a referring bank:
Give a chronological and complete account of the suspected violation (use continuation sheets if necessary.)
Relate key events to documents and attach copies of those documents.
Explain who benefited, financially or otherwise, from the transaction, how much and how.
Furnish any explanation of the transaction provided by the suspect and indicate to whom and when it was given.
Furnish any explanation of the transaction provided by any other person.
Furnish any evidence of cover-up or evidence of an attempt to deceive federal or state examiners or others.
Indicate where the suspected violation took place (e.g. main office, branch, other).
Suggest any further investigation that might assist law enforcement in fully examining the potential violation.
This language is followed by an explanation that "[t]his section of the referral is critical. It should be as detailed as circumstances permit." (emphasis added). Plaintiff thus cannot be heard to complain that MNB improperly furnished detailed information, since detailed information was exactly what the law required.
As MNB's disclosure was required by law and fits within the section 3413(d) exception, the provisions of the RFPA do not apply. Therefore, the RFPA does not afford Plaintiffs a cause of action.
b. Voluntary notification of government agency of suspected crime.
A separate exception to the RFPA is found in section 3403(c), which applies where a bank voluntarily notifies a government agency of the existence of financial records which point to criminal activity.[6] Banks acting *1422 within this exception are immune from all civil liability to customers resulting from the disclosure. 12 U.S.C. § 3403(c).
Plaintiffs apparently argue that section 3403(c) is the exclusive exception that operates to shield a bank from civil liability for disclosure. Thus, the argument goes, if MNB's referral exceeds the scope of disclosure permissible under section 3403(c), the Bank is amenable to suit under the RFPA and any other applicable cause of action. This court does not agree with this reasoning. As noted above, the RFPA does not apply where disclosure is mandated by federal law. 12 U.S.C. § 3413(d).[7] On this basis alone, MNB is not liable under the RFPA.
What remains to be seen is whether the RFPA provides MNB with a shield to liability for other causes of action. The importance of this question is quickly apparent. Voluntary disclosure within section 3403(c) preempts all civil liability to customers stemming from the disclosure. But no similar "safe harbor" provision is found in section 3413(d), which relates to disclosure mandated by federal law.
Defendants and various amici argue that the disclosure in this case meets the requirements of section 3403(c) so as to bar all of Plaintiffs' causes of action. It is important to recognize that the nature of information that may be disclosed under section 3413(c) is limited. Banks are allowed to notify the government that certain incriminating records exist. In providing such tips, banks may furnish only the name of the individual or entity and account involved, and the nature of the criminal activity.
The parties debate whether the information contained within the four corners of the MNB's Referral Form exceeds these limitations. What the parties, or at least the Plaintiffs, ignore is that MNB went beyond letting the government merely know of the existence of incriminating records. As an attachment to the Referral Form, MNB employees submitted actual records.[8] Section 3403 does not apply to the release of records. Frazin, 780 F.2d at 1465 n. 1; Whitty, 688 F.Supp. at 59. The cases cited by defendants are distinguishable on this basis. The referring banks either provided only information *1423 that fell within section 3403(c), Waye v. Commonwealth Bank, 846 F. Supp. 321 (M.D.Pa.1994), or provided both information protected by section 3403(c) and documents pursuant to subpoena. Waye v. First Citizen's National Bank, 846 F. Supp. 310 (M.D.Pa.), aff'd, 31 F.3d 1175 (3d Cir.1994).
Nonetheless, federal law requires the release of actual records via the Criminal Referral Form. We are thus left with the unhappy situation where financial institutions are vulnerable to suit for other non-RFPA causes of action when those institutions, in compliance with the criminal referral requirements of the OCC, disclose actual financial records. As pointed out by the United States as amici, after the occurrence of the transaction at issue here, Congress saw fit to remedy this situation by explicitly providing blanket immunity from civil liability for a bank's disclosure of information required by Federal law. See Annunzio-Wylie Anti-Money Laundering Act, Pub.L. 102-550, 106 Stat. 4059 (Oct. 28, 1992) (codified at 31 U.S.C. § 5318). This statute provides in part:
Any financial institution that makes a disclosure of any possible violation of law or regulation or a disclosure pursuant to this subsection or any other authority ... shall not be liable to any person under any law or regulation of the United States or any constitution, law or regulation of any State or political subdivision thereof, for such disclosure or for any failure to notify the person involved in the transaction or any other person of such disclosure.
31 U.S.C. § 5318(g)(3) (emphasis added). The United States takes no position as to the applicability of this statute to the case at bar. The parties have not briefed this issue, but it is fairly raised by the present posture and facts of this case.
Section 5318(g)(3) is relevant here, if at all, via retroactive application. The Supreme Court recently clarified the analysis by which courts are to determine whether such application is appropriate in Landgraf v. U.S.I. Film Products, 511 U.S. ___, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). The first step is to determine whether Congress has expressly resolved the retroactivity issue. Id. at ___-___, 114 S.Ct. at 1505, 128 L.Ed.2d at 261-262. Here, the statute itself provides no answer.
There is however, an interesting piece of legislative history found in the Congressional Record. In the term immediately following that in which the Act was passed, Congressman Stephen Neal remarked:
As this legislation was added during a House-Senate conference there was no legislative history. After adjournment the Honorable Frank Annunzio, who was both the chairman of the Financial Institutions Subcommittee and author of the bill was asked and responded to, a question by a major U.S. bank about the applicability of the new law to help clarify the meaning of this law....
139 CONG.REC. E57-02 (1993). With that, Congressman Neal asked that two letters be printed in the Record. The first letter is from an attorney for Chemical Bank and is addressed to Congressman Annunzio. The letter conveys the bank's "understanding that the `safe harbor' provision of [the Act] applies not only to disclosures made after the date of its enactment, but also to those disclosures made ... prior to enactment of the Act," and asks for Congressman Annunzio's comment on the subject. Id. The second letter is Congressman Annunzio's response. He states that it was his intent "as the author of the provision that it would apply to any such disclosure, regardless of whether the disclosure was made prior or subsequent to the date of the enactment of the Act." Id.
This court is thus presented with a potentially easy answer to the question of congressional intent regarding retroactive application of the Act. However, the Court in Landgraf cautioned against the use of such "frankly partisan statements" which "cannot plausibly be read as reflecting any general agreement." ___ U.S. at ___, 114 S.Ct. at 1495, 128 L.Ed.2d at 250. The Court also saw fit to quote the observation of veteran Senator Danforth that "a court would be well advised to take with a large grain of salt floor debate and statements placed in the CONGRESSIONAL RECORD which purport to create an interpretation for the legislation that is before us." Id. at ___, 114 S.Ct. at 1495, *1424 128 L.Ed.2d at 251 (citing 137 CONG.REC. S15325 (Oct. 29, 1991)).
As there is no overall congressional expression regarding retroactivity of the Act, this court turns to the "default" rules recognized in Landgraf. Landgraf is an attempt to reconcile two competing maxims of retroactivity; (1) that a court must apply the law in effect at the time it renders its decision and (2) that statutes are presumed not to apply retroactively. The court held that whether one maxim or the other was to be applied depended on the nature of the statute presented. For statutes, or provisions of statutes, which affect the substantive rights of the parties, application of the later maxim is appropriate. Conversely, for statutes in which only procedural rights are at issue, the former maxim should be followed. See also Hartford Cas. Ins. Co. v. F.D.I.C., 21 F.3d 696, 700-01 (5th Cir.1994) (interpreting Landgraf).
The "safe harbor" provision at issue here would clearly change the substantive rights of the parties were it to be applied retroactively. It cannot be fairly categorized within the alternative class of cases which enjoy retroactive application under Landgraf. This court therefore determines that the "safe harbor" provisions of the Annunzio-Wylie Anti-Money Laundering Act should not be given retroactive effect. Thus, while MNB's disclosure creates no liability under the RFPA, neither does it preempt liability under state law.
2. Liability for breach of the constitutional right to privacy
Plaintiffs assert that they are entitled damages for MNB's violation of their constitutional right to privacy in banking records. Plaintiffs cite no authority in support of this claim. This court is left to assume that Plaintiffs are asserting a Bivens cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Without concluding that other requirements of a Bivens action are met on these facts, this court rejects this claim on the basis that no constitutional violation has occurred. As noted earlier, the Supreme Court in Miller has declined to recognize a constitutional right to privacy in banking records. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71. Some courts have suggested that Miller does not preclude a civil action for damages for the improper release of financial information based on violation of a constitutional right to privacy. See Young v. Department of Justice, 882 F.2d 633, 642 n. 11 (2nd Cir.1989), cert. denied, 493 U.S. 1072, 110 S. Ct. 1116, 107 L. Ed. 2d 1023 (1990); Hunter v. Securities Exchange Commission, 879 F. Supp. 494 (E.D.Pa.1995). These cases, however, do not suggest that such an action may be maintained, where as here, a legitimate government interest namely prevention of money laundering counsels against finding a privacy right. Cf. Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. Unit B 1981) (allowing § 1983 cause of action for alleged violation of constitutional right to privacy where "no legitimate state purpose existed sufficient to outweigh the invasion into [the claimant's] privacy."). This approach is consistent with other arenas in which constitutional rights conflict with the need for legitimate enforcement of our nation's laws. The right to free speech, for example, does not prohibit the prosecution of insider trading. Thus, Plaintiffs have asserted no violation of a constitutional right sufficient to support a Bivens claim.
B. State law claims
Plaintiffs' remaining grounds of recovery arise from state law. Of course, these claims are properly before this court pursuant to its power to hear supplemental questions of state law. However, the exercise of this power is discretionary. The decision must be based on "considerations of judicial economy, convenience, and fairness to the litigants." United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218, 228 (1966); 28 U.S.C. § 1367(a). Given that this court has decided the questions of federal law raised here, it is at least arguable that this court should dismiss the remaining state law claims.
This court chooses to exercise its discretion to hear the remaining state law claims. This cause was originally filed in *1425 state court sixteen months ago. The Motions for Summary Judgment now before this court have been pending for nearly one year. Concerns of fairness and convenience counsel in favor of this court ready determination of the remaining claims. Further, while comity weighs heavily in this court's determination, there is no reason to believe that Texas courts would resolve the remaining state issues in a manner different than this court.
1. Violation of Article 342-705 of the Texas Banking Code
Plaintiffs assert that MNB's disclosure, via the Criminal Referral Form, violates the Texas Banking Code. However, the Texas Banking Code, like the RFPA, expressly does not apply where disclosure is compelled by law. The Banking Code does not pertain to:
disclosure or production of ... records of accounts and other financial institution records if the ... disclosure is made under or in substantial compliance with applicable federal law, including regulations.
TEX.REV.CIV.STAT.ANN. ART 342-705 § 5(a) (Vernon Supp.1995).
For reasons previously discussed, MNB's disclosure, in its entirety, was mandated by federal law. Therefore, Plaintiffs have no cause of action under Article 342-705 of the Texas Banking Code.
2. Breach of the common law and breach of an implied condition of confidentiality
Texas law is somewhat unsettled as it applies to the claims Plaintiffs raise here.[9] Nonetheless, this court's reading of Texas precedent cautions against recognition of the remedy Plaintiffs seek. Plaintiffs cite no law to support the existence of either of these causes of action. This court finds no authority in Texas law to support liability under these theories.
Common law supports a cause of action for a bank's unauthorized disclosure of financial information only in limited circumstances. Courts have allowed such claims on theories of (1) implied duty of confidentiality stemming from contractual relations with the bank; (2) fiduciary duty; and (3) a right of privacy. Robert E. Huhs, To Disclose or Not to Disclose Customer Records, 108 BANKING L.J. 30 (1991); see also Edward L. Raymond, Annotation, Bank's Liability, Under State Law, for Disclosing Financial Information Concerning Depositor or Customer, *1426 81 A.L.R. 4th 377 (1990 & Supp.1994). Each theory must be addressed in turn.
This court finds no Texas case recognizing an implied duty of confidentiality owed by a bank to its customer. Moreover, even in the first known decision recognizing such a relationship, coming to us from the England, the court observed that a bank's disclosure does not give rise to liability to the extent that it is mandated by law. Tournier v. National Provincal & Union Bank of England, 1 K.B. 461, 473 (1923) (noting four circumstances in which disclosure is proper). Even while disagreeing over the propriety of disclosure in other circumstances, courts in this country have followed this premise. See, e.g., Indiana National Bank v. Chapman, 482 N.E.2d 474 (Ind.Ct.App.1985) (observing that voluntary response by bank to legitimate law enforcement inquiry does not breach confidentiality); Suburban Trust Co. v. Waller, 44 Md.App. 335, 408 A.2d 758 (1979) (recognizing that disclosure where required by law does not violate duty of confidentiality). There is every reason to assume that if Texas recognized an implied duty of confidentiality, it would do so with the same strictures.
A breach of fiduciary duty theory of relief is similarly unpromising. In Texas, the relationship between a bank and its customers is generally not fiduciary in nature. Berry v. First National Bank of Olney, 894 S.W.2d 558, 560 (Tex.App. Fort Worth 1995, n.w.h.). Further, the existence of a fiduciary relationship is generally a fact issue. Id. Here, Plaintiffs have pointed to no facts which suggest a fiduciary relationship.
Finally, while Texas has recognized a claim for breach of the common law right of privacy, Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), claimants seeking to extend this right to improper disclosure of banking or credit records have fared poorly. See Cullum v. Gov't Employees Financial Corp., 517 S.W.2d 317, 318 (Tex.Civ.App. Beaumont 1974, writ ref'd n.r.e.) (finding no cause of action where lender's financial institution sent letter to lender's employer seeking assistance in collection); Palmatier v. Beck, 636 S.W.2d 575, 577-78 (Tex.Ct.App. Fort Worth 1982, no writ) (holding that no claim for breach of right privacy existed where bank released account balance information to landlord of depositor's son). Both Cullum and Palmatier suggest an important limitation to an actionable privacy right in Texas true statements of a customer's or creditor's account made without hype are not actionable. Distinguishing earlier recognition of a privacy right in Billings, the courts in both Cullum and Palmatier noted that the disclosures before them were not "inflammatory, humiliating, or misleading statements." Cullum, 517 S.W.2d at 317; Palmatier, 636 S.W.2d at 577-78 (citing Cullum). This same limiting factor defeats Plaintiffs' claims here. MNB's disclosure amounts to no more than a rather pedestrian recitation of facts which correctly suggested suspicious conduct on the part of the Plaintiffs.
Plaintiffs' generalized assertions of common law liability fail. Regardless of the label of the theory as breach of confidentiality, breach of fiduciary duty, or breach of the right of privacy this court cannot fathom that any Texas court would sanction a common law cause of action on the facts present here. MNB's disclosure was required by law, made in good faith, and served a legitimate law enforcement purpose.
3. Defamation
Finally, Plaintiffs allege that MNB's filing of the Criminal Referral Form is defamatory. However, in order to be actionable, a defamatory statement must be false. Cain v. Hearst Corp., 878 S.W.2d 577, 580 (Tex.1994). As Plaintiffs bear the burden of proving the elements of defamation at trial, Hardwick v. Houston Lighting and Power Co., 881 S.W.2d 195, 198 (Tex.App. Corpus Christi 1994, writ denied), they may not simply rest on the pleadings, but must come forward with facts that show that the Criminal Referral Form contains false statements.
Plaintiffs have not carried this burden. To the contrary, the evidence before this court suggests that the Criminal Referral Form contained only true statements. This court also observes that Plaintiff Velasquez pleaded guilty to illegal structuring, along with other offenses, and may well be collaterally *1427 estopped from relitigating the facts which underlie his conviction. In any event, Plaintiffs' claim for defamation fails.
V. Conclusion
No cause of action lies under the RFPA where a bank discloses information as required by federal law. But neither does the RFPA preempt state causes of action. Nor do the safe harbor provisions of the Annunzio-Wylie Money Laundering Act apply retroactively so as to defeat Plaintiffs' state law claims.
This court does not believe, however, that this Opinion should sound an alarm bell for financial institutions which provide information or documents to government agencies as required by law. While state causes of actions for disclosures prior to 1992 are not preempted by federal law, it is unlikely that the common law of Texas, or indeed any state, could be interpreted so as to hold a bank liable for disclosing to government agencies no more than it is required to do by law. This court is unaware of any such decision in any jurisdiction, whether based on common law or state statute or regulation.
Accordingly, it is ORDERED that Defendant's Motion for Summary Judgment is GRANTED.
It is further ORDERED that the Plaintiffs' Cross Motion for Summary Judgment is DENIED.
NOTES
[1] This court has also received and considered amicus briefs from the United States, the Independent Bankers Association of Texas, the Texas Bankers Association and the American Bankers Association.
[2] Federal law requires that banks file a currency transaction report with the Treasury Department for cash transactions in excess of $10,000. 31 U.S.C. § 5313; 31 C.F.R. § 103.22(a)(1). Further, a bank may not complete such a transaction without verifying the identification of the customer. 31 C.F.R. § 103.28(a)(1).
[3] By Defendant's concession, it is disputed whether Garcia overheard Velasquez make a remark to Lujan about the currency transaction report. Def.Mtn. for Summ.J. at 2. However, this dispute is ultimately irrelevant to the determination of the Motions before this court.
[4] The court (Bunton, J.) initially sentenced Velasquez-Campuzano to three years probation and a $5000 fine, but on April 22, 1994, the court discharged the balance of his probation term.
[5] In 1991, the law was that to convict under this offense, the government need only show that (1) the defendant knew of the bank's obligation to report transactions in excess of $10,000 and (2) acted with the purpose of defeating that requirement rather than for an innocent purpose. United States v. Beaumont, 972 F.2d 91 (5th Cir. 1992). It should be noted in passing that the law has since changed. See Ratzlaf v. United States, ___ U.S. ___, 114 S. Ct. 655, 126 L. Ed. 2d 615 (1994) (holding that to prove illegal structuring, government must make additional showing that accused knew his conduct was illegal).
Of course, not all criminal activity is subject to reporting under OCC rules. See 12 C.F.R. § 21.11(b). In this case however, the transaction at issue fell within the Bank's obligation to report "[a]ny known or suspected criminal violation ... of any section of the United States Code ... involving a financial transaction conducted through the bank and involving ... $1000 or more in bank funds or other assets, where the bank believes, in good faith, that ... [it] was used to facilitate a criminal transaction, and the bank has a substantial basis for identifying a possible suspect or group of suspects." 12 C.F.R. § 21.11(b)(4). Persons who cross a United States border with an amount of cash that exceeds $10,000 must notify the government that they are doing so. 31 U.S.C. § 5316.
[6] Section 3403(c) of the RFPA states:
Notification to Government authority of existence of relevant information in records
Nothing in the chapter shall preclude any financial institution ... from notifying a Government authority that such institution ... has information which may be relevant to a possible violation of any statute or regulation. Such information may include only the name or other identifying information concerning any individual, corporation, or account involved in and the nature of any suspected criminal activity. Such information may be disclosed notwithstanding any constitution, law, or regulation of any state or political subdivision thereof to the contrary. Any financial institution ... making a disclosure of information pursuant to this subsection shall not be liable to the customer under any law or regulation of the United States or any constitution, law, or regulation of any state or political subdivision thereof, for such disclosure or for any failure to notify the customer or such disclosure.
[7] Plaintiffs cite numerous cases as authority for the proposition that the filing of a Criminal Referral Form "is per se violation of the RFPA beyond the scope of the information allowed." Plf.Mem. in Support at 3.
This court takes a different reading of this authority. First, these cases all involve voluntary disclosure as opposed to the mandatory disclosure this case presents. Second, this court finds no mention of a Criminal Referral Form in any of the cases cited by Plaintiffs. Third, in no case that Plaintiffs cite is the § 3413(d) exception for mandatory disclosure even raised. See Neece v. IRS, 922 F.2d 573 (10th Cir.1990) (rejecting assertion of § 3413(c) exception in wake of voluntary disclosure); Liffiton v. Keuker, 850 F.2d 73, 79 (2d Cir.1988) (refusing to find § 3403(b) exception where bank disclosed more information than subpoena required); Duncan v. Belcher, 813 F.2d 1335, 1337 (4th Cir.1987) (holding that allegation of voluntary and improper disclosure of credit card records stated right of action under RFPA); United States v. Frazin, 780 F.2d 1461, 1465 n. 1 (9th Cir.) (rejecting application of § 3403(c) exception for voluntary disclosure), cert. denied, 479 U.S. 844, 107 S. Ct. 158, 93 L. Ed. 2d 98 (1986); United States v. Whitty, 688 F. Supp. 48, 59 (D.Me.1988) (rejecting assertion of § 3404(c) defense where informal government policy was to request disclosure). In sum, the cases Plaintiffs provide state the obvious: where a bank's voluntary disclosure exceeds the quantum of information section 3403(c) allows, the bank is liable. In no way do these cases suggest that where disclosure is mandated by federal law, a bank may be held liable under the RFPA to the extent that such disclosure exceeds what is permissible under section 3403(c). Rather, this line of authority lends credence to the view of this court that mandatory disclosure, § 3413(d), and voluntary disclosure, § 3403(c), operate as independent exceptions to the requirements of the RFPA.
[8] Again, this conduct was mandated by federal regulations. The Criminal Referral Form requires a referring bank to "[r]elate key events and attach copies of those documents."
[9] At least one federal court has been faced with a similar quandary. In Young v. United States Department of Justice, 882 F.2d 633 (2d Cir. 1989), the Second Circuit was presented with a customer's claims of violation of the RFPA against a bank, as well as (what were then called pendent and now called supplemental) state law claims for breach of a confidential relationship. The Second Circuit affirmed the trial court's dismissal of the RFPA claims, and proceeded to address the state law claims.
After a thorough discussion of available precedent, the court concluded that state law did not answer the question of whether plaintiff's breach of confidentiality claim was viable. Recognizing that its own decision based on state precedent "would be little more than a guess," the court of appeals held that abstention was appropriate, citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). Young, 882 F.2d at 643-44. The court dismissed the state law claims against the bank without prejudice with leave to refile in New York state court.
Young seems somewhat limited in precedential value as abstention under Colorado River is traditionally associated with dismissal of an action to allow resolution of a similar action pending in state court. See CHARLES A. WRIGHT, LAW OF FEDERAL COURTS § 52 at 335 (1994) (explaining confines of Colorado River abstention). The Young decision makes no mention of any similar pending claim in state court.
It is the view of this court that, in this case, the unsettled nature of Texas law justifies abstention, if at all, via certification. See Lehman Bros. v. Schein, 416 U.S. 386, 94 S. Ct. 1741, 40 L. Ed. 2d 215 (1974). However, the Texas certification procedure is not available to a district court. See TEX.R.APP.P. 114(a). In the absence of a certification procedure, abstention on the basis of difficulty in determining state law is governed by the Supreme Court's decision in Meredith v. City of Winter Haven, 320 U.S. 228, 64 S. Ct. 7, 88 L. Ed. 9 (1943). CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, 17A FEDERAL PRACTICE AND PROCEDURE § 4246 at 106 (2d. ed. 1988). In Meredith, the Court held that the uncertain nature of state law alone does not permit a federal court to decline to exercise jurisdiction in a case properly before it. 320 U.S. at 235, 64 S.Ct. at 11, 88 L.Ed. at 13-14. Consequently, this court will proceed to address the difficult issues of state law this case presents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2361957/ | 770 A.2d 1158 (2001)
167 N.J. 285
LAMORTE BURNS & CO., INC., a Delaware corporation, Plaintiff-Appellant,
v.
Michael A. WALTERS, Nancy Nixon and The Walters Nixon Group, Inc., a New Jersey corporation, Defendants-Respondents.
Supreme Court of New Jersey.
Argued March 12, 2001.
Decided May 14, 2001.
*1160 Stephen H. Roth, Hackensack, for appellant (Mr. Roth, attorney; Mr. Roth and Michele M. DeSantis, on the briefs).
Bruce D. Greenberg, Newark, for respondents (Lite DePalma Greenberg & Rivas, attorneys).
*1159 The opinion of the Court was delivered by LaVECCHIA, J.
In this case, we consider whether an employee has incurred liability for activities undertaken to plan and prepare for future employment in a newly created business entity established by the employee to compete directly with his current employer. Plaintiff, Lamorte Burns & Co. (Lamorte), filed suit against two of its former employees, Michael Walters and Nancy Nixon, in connection with their conduct in establishing a competing business. Plaintiff's complaint charged that Walters breached the restrictive covenant clauses of his employment agreement, and that both Walters and Nixon breached their duty of loyalty, tortiously interfered with Lamorte's economic advantage, misappropriated its confidential and proprietary information, and competed unfairly.
The trial court granted plaintiff's motion for summary judgment as to liability only. After a hearing, the trial court awarded $232,684 in compensatory damages and an additional $62,816.23 in punitive damages covering counsel fees and costs. In an unpublished opinion, the Appellate Division agreed that Walters had breached his employment contract, but reversed that part of the decision that granted plaintiff summary judgment on its tort claims. The court reasoned that there were disputed facts concerning the confidential and proprietary nature of the information defendants *1161 had taken from plaintiff, as well as issues concerning whether defendants' conduct was acceptable competitive behavior or malicious and in violation of the "rules of the game" of the parties' business. We granted certification, 165 N.J. 605, 762 A.2d 219 (2000), and now reverse, in part, and reinstate the trial court's judgment sustaining plaintiff's tort claims.
I.
A.
We regard the facts as not significantly in dispute. Where they are, we accord all inferences in favor of defendant as this matter is before us on an appeal from a motion for summary judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995). Lamorte has been in the business of investigating and adjusting claims for both marine and nonmarine liability insurers, their associations, and owners, in the United States and abroad since 1938. Incorporated in Delaware, Lamorte has its principal place of business in Wilton, Connecticut, and maintains a New Jersey office in Clark. The Clark office opened in 1986 chiefly to handle two types of marine insurance claims: protection and indemnity claims (P & I claims) consisting essentially of personal injury claims and federal longshore and harbor workers' compensation claims.
Walters met Nixon in the Clark office, where they both worked on P & I claims. When Walters arrived at Lamorte in 1990, Nixon had already established herself at the company. Walters, on the other hand, was recruited from out of state by Lamorte's President, Harold J. Halpin, to manage the Clark office, handle P & I claims, and supervise other employees, including Nixon. Walters, an attorney, had experience in the field. He previously had been employed in the P & I division of St. Paul Fire & Marine Insurance Company in Ohio, and before that, in the admiralty department of a Florida law firm.
Lamorte entrusted Walters with substantial responsibility. Lamorte introduced Walters to many of its existing clients, but expected him to locate, establish, and maintain new clients. Because of his prior work, Walters knew many insurance carriers and P & I associations that offered P & I coverage. As it turned out, Walters proved successful at soliciting and establishing new business; he claims to have brought in thirty new clients to Lamorte.
Approximately one month after Walters's arrival at Lamorte, Halpin asked him to sign an employment agreement. The relevant paragraphs of that agreement stated as follows:
2. You agree to devote your full time and best efforts to the performance of your duties for the Company and not to engage in any other business activities without the prior written consent of the Company.
4. You agree to maintain in confidence all proprietary data and other confidential information (whether concerning the Company, or any of its affiliated companies, or any of their respective clients or cases being handled for clients) obtained or developed by you in the course of your employment with the Company. Such information and data shall include, but not be limited to, all information covering clients and cases being handled for clients. All such information and data is and shall remain the exclusive property of the Company and/or affiliated companies. In addition you assign to the Company all right, title, and interest in and to any and all ideas, inventions, discoveries, trademarks, trade names, copyrights, patents and all other information and data of *1162 any kind developed by you during the entire period of your employment with the Company and related to the work performed by you for the Company.
You covenant and agree that upon termination of this Agreement for whatever reason, you will immediately return to the Company any and all files, documents, records, books, agreements or other written material belonging to or relating to the Company or its affiliated companies and any of their respective clients, together with all copies thereof in your possession or control....
Your obligation under this paragraph shall survive any termination of your employment.
5. Employee agrees that so long as you are an employee of the Company, and for a period of twelve (12) month after your termination, whether voluntary or involuntary, you will not solicit or accept any claim, case or dispute which is being handled or directed by the Company or any of its affiliated companies during the term of your employment with the Company. You agree that you will not solicit or accept any such claim, case or dispute directly in your individual capacity, nor indirectly as a partner of a partnership, and as an employee of any other entity nor as an officer, director, or stockholder of a corporation, a joint venturer, a principal or in any other capacity.
You further agree not to solicit or induce any employee of the Company or any of its affiliated companies to leave its employ, nor to hire or attempt to hire any such employee....
Walters signed the contract, but he never believed it was enforceable against him. He reasoned that because he was an at-will employee, the employment contract lacked consideration for its restrictive covenant clauses. Also, the agreement was never signed by Lamorte. A Florida attorney privately corroborated his view. Walters never expressed his beliefs to anyone at Lamorte, however, out of fear that he would be fired.
In the Spring of 1996, Walters quietly began entertaining the idea of resigning and starting a competing business. By that time, Halpin had informed defendants that Lamorte would be de-emphasizing P & I work and increasing the workers' compensation area of the practice. For Walters, that constituted the impetus for his decision to start a competing business. Also about that time, two other employees departed the P & I department because there was not enough work to support the staff.
Walters spoke only with co-employees Nixon and John Treubig about his idea of starting a competing business. Walters showed Nixon some financial estimates he had developed, suggesting that she would improve her position if she were to join in his enterprise. Eventually, Walters lost interest in Treubig. Soon after, Halpin directed Walters to fire Treubig based on allegations that Treubig had tried to solicit a Lamorte client for his private benefit.
On July 17, 1996, Walters incorporated the new business, "The Walters Nixon Group" (WNG). Thereafter, even while Walters and Nixon attended to their duties at Lamorte, they secretly worked on the commencement of their new business venture. Each time they worked on a Lamorte P & I claim file, they added to a target solicitation list they were compiling using information from their employer's client files. That information included client names, addresses, phone and fax numbers, file numbers, claim incident dates, claim contact information, and names of the injured persons. In total, the list included approximately thirty of Lamorte's clients, all but one or two of the *1163 company's P & I clients. As that information was gathered, it was transferred to Walters's home computer.
Walters testified that he did not believe the names of Lamorte's clients and information concerning pending claims was Lamorte's proprietary and confidential information. He reasoned that the information, although not generally available to the public, was not secret. He asserted that the discrete information could be obtained by calling directly and inquiring of insurance companies and vessel owners. Further, other than the reference to "confidential and proprietary information" in his employment agreement that Walters believed was unenforceable, he never had been told by Lamorte that any of the specific information he was gathering in connection with his P & I work was confidential and proprietary. Halpin, himself, never discussed the confidentiality of the information. During Walters's deposition, however, he answered "No" to the following question:
Would you have given that information to a competitor if he walked in the door and said, I want to go after your customers [?] Give me a complete listing of their files, reference numbers, adjusters and fax numbers and I will use that to solicit them. You would have given that information to them?
In September 1996, Halpin confronted defendants concerning rumors that they were thinking of leaving to start a competing business. They reassured Halpin the rumors were untrue. Walters testified that he feared he would be fired if Halpin knew the truth. The truth was that Walters and Nixon were well on their way to establishing a competing business. By October 1997, they signed a three-year lease to commence December 1, 1997 for office space in Cranford, New Jersey. As December approached, they purchased office equipment, leased computers, and obtained telephone and fax lines for the new WNG office. They agreed that they would resign on the weekend of December 20-21, 1997, a date selected so that each would be eligible to collect Christmas bonuses from Lamorte. They planned that over the same weekend they would send to Lamorte's clients solicitation letters and forms directing the transfer of claim files.
Just prior to resigning, Walters was asked by Halpin to sign a new and more restrictive employment agreement. The proposed agreement included a clause prohibiting him from working for any of plaintiff's customers for a full year, no longer just prohibiting him from working on claim files with which he was actively involved at Lamorte. Nixon also was asked to sign a corresponding employment agreement. Defendants avoided signing those agreements before their resignations.
On Thursday and Friday, December 18 and 19, 1997, Walters called in sick. In fact, Walters was at WNG's office installing computers, setting up furniture, and preparing to activate the business solicitation plan over the coming weekend. Telephone records showed that on December 19, 1997, calls were placed to several of Lamorte's clients from WNG's office. Walters, however, denies that during those conversations he informed Lamorte's clients that he was about to resign and denies that he attempted to solicit any of them.
At 9 a.m. on Saturday, December 20, Walters and Nixon telephoned Lamorte's Clark office and received no answer. They then drove to that empty office and spent two or three hours "putting away files and removing their personal belongings." At 2:56 p.m., Walters and Nixon faxed their respective resignation letters to Halpin's private office in Wilton, Connecticut. Because they thought that Halpin *1164 often worked Saturdays, they believed there was a possibility that the letters would be received that day. They also knew that once they resigned, Lamorte would be without a P & I claims adjuster in its Clark office.
On Sunday morning, December 21, Walters and Nixon began to fax solicitation letters and transfer authorization forms to all but one of Lamorte's P & I clients, thirty-three in all. On that first day, defendants exclusively targeted Lamorte's clients from whose files they had taken the client information noted earlier. A typical letter notified the client that defendants, who had been handling that client's claim file, had resigned from Lamorte and started a new business. It stated "Our fee structure will be less than Lamorte Burns' fee structure for 1998." The client was told that it had absolute discretion in deciding whether to continue with Lamorte or to have its claim files in progress transferred to WNG or to any other firm. The letter was accompanied by a transfer request form. The form included "a list of open files we have been handling for you." (emphasis added). In addition to the client's file number, the transfer form included the client's name, the name of the injured person, and the accident date. The client was instructed simply to mark an "X" next to each listed file that it wished to have transferred from Lamorte to WNG.
By Monday, December 22, 1997, ten of Lamorte's clients returned to WNG signed transfer authorization forms instructing Lamorte to transfer their active P & I claims to WNG. By January 7, 1998, all forms were returned and all thirty-three of Lamorte's P & I clients requested transfer of their active claim files to WNG, totaling a transfer of 116 individual Lamorte P & I claims. By the time the summary judgment motion was heard, 153 of Lamorte's 350 active P & I claim files had been transferred to WNG. According to Walters, the clients that had requested a transfer included clients he had brought into Lamorte, as well as clients that had been existing Lamorte clients when he arrived at the company. Walters conceded that "[he] had people faxing from up and down the Eastern Seaboard and from overseas within an hour or less of getting his sudden announcement." Customers were sending their congratulations.
B.
Upon consideration of the summary judgment record, the trial court concluded that defendants had breached their duty of loyalty, tortiously interfered with an economic advantage, misappropriated confidential and proprietary information, and competed unfairly. The court accepted for purposes of the motion that defendants had not solicited any of plaintiff's clients prior to resignation. It also found that defendants removed only personal belongings from plaintiff's office and took no physical files, documents, Rolodex cards, or floppy disks, nor did they delete any of plaintiff's computer files. Nevertheless, the court found uncontroverted evidence sufficient to sustain plaintiff's motion. Specifically, the court focused on the nature of the information defendants took, including clients' names, addresses, telephone and fax numbers, file numbers, accident dates, details concerning the individual P & I claims, and billing rates. The court concluded that that information was shared between Lamorte and its clients; Lamorte's competitors did not have knowledge of it. The information was confidential, and defendants were not at liberty to take it for their own business purposes.
The court also addressed the specific manner in which defendants proceeded to *1165 use the information in connection with their newly created, competitive business:
In this instance, the solicitation was not limited to such things as, look, we're a new company, we're going to now compete with Lamorte, we'd be interested in your business. The solicitation was far more specific than that; and, admittedly, based upon information that was confidential.... If you examine the solicitation, you will see that they didn't just ask generally for a customer's business. They asked for the work that was specifically being handled by the plaintiff, and on a case-by-case basis specifically mentioning the name of the claimant.... Effectively, what they said to the customer that they were soliciting is, look, we're dealing with the following cases right now for Lamorte, and we want them ... [T]his was information [defendants] would not have generally known but for their employment with plaintiff. They wouldn't have known the specific file, the accident date.... And there isn't any dispute that that information came from the plaintiff.
The court noted that Walters admitted that the information gave him an advantage in soliciting the clients, that Halpin would not have authorized him to give the information to a competitor, and that he himself would fire any of his employees for divulging such information to a competitor. The court's conclusion that the information was confidential and proprietary led to its decision that defendants' use of it amounted to a breach of the duty of loyalty and tortious interference with plaintiff's economic advantage. Specifically, the court found that
there was a deliberate plan on the part of defendants to cause damage to plaintiff through the diversion of its customers, through stealth and deceit, at a time when defendants caused plaintiff to be most vulnerable, by soliciting plaintiff's customers over the weekend, while plaintiff had no idea that defendants had resigned until, at the very earliest, the following Monday morning ... In furtherance of that plan, defendants then systematically and admittedly took detailed information known only to plaintiff's company, which this court has deemed proprietary for such purposes.
On appeal, the Appellate Division determined that there were material facts in dispute and reversed. The court emphasized the fact-sensitive nature of evaluating whether an employee's conduct in planning and preparing for future employment constitutes a breach of the duty of loyalty and whether the client claim information taken by defendant from Lamorte was confidential and proprietary. The Appellate Division's conclusion was founded on defendants' assertions that they were never told that the information was confidential and proprietary, and that although the information was not generally available, it could have been obtained simply by sending out letters of solicitation to all of Lamorte's clients asking permission to have all files transferred, not just those files defendants were working on. The Appellate Division panel thus concluded that a more fully developed record was needed to determine whether the information was proprietary, "whether their manual copying of the customer account information while still employed was a violation of their duty or `mere preparation,' and whether the manner in which they resigned and immediately undertook to solicit their employer's customers was impermissible competition in our current economic environment of `free enterprise.'"
II.
A threshold issue common to our analysis of plaintiff's tort claims concerns *1166 whether the client claim information taken from Lamorte by defendants was legally protectable. Defendants admit to gathering, while employed, information from plaintiff's P & I claim files, including clients' names, addresses, phone and fax numbers, claimant names, accident dates, details concerning the accidents, and file numbers, for the sole purpose of soliciting, once they resigned, those very clients they had been handling for plaintiff. With respect to Walters, the gathering and use of that information was directly contrary to the terms of his employment agreement. Even in the absence of an agreement, however, the law protects confidential and proprietary information.
In New Jersey, customer lists of service businesses have been afforded protection as trade secrets. See AYR Composition, Inc. v. Rosenberg, 261 N.J.Super. 495, 504, 619 A.2d 592 (App.Div.1993) ("Where a service company is concerned, the names and addresses of its customers `are not open to and ascertainable by everyone; they are private information and property' of the company.") (quoting Abalene Exterminating Co. v. Oser, 125 N.J.Eq. 329, 332, 5 A.2d 738 (Ch.1939)); see also 1 Milgrim, Milgrim on Trade Secrets § 2.09 (1995) (stating that information relating to customers, merchandising, costs, and pricing may be considered trade secrets); 30 C.J.S. Employer-Employee § 126b (1992) (stating that customer list may be protected if treated in confidential manner, and time and money have been used in creating list); K.H. Larsen, Annotation, Former Employee's Duty, in the Absence of Express Contract, Not to Solicit Former Employer's Customers or to Otherwise Use His Knowledge of Customer Lists Acquired in Earlier Employment, 28 A.L.R. 3d 7, 185 (1969) (listing cases in which insurance companies' customer lists have been held confidential and proprietary). In all instances, a substantial measure of secrecy must exist in order for information to be treated as a trade secret. See Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 636, 542 A.2d 879 (1988) (listing factors for determining whether information is a trade secret).
Importantly, however, information need not rise to the level of a trade secret to be protected. In Platinum Management, Inc. v. Dahms, 285 N.J.Super. 274, 295, 666 A.2d 1028 (Law Div.1995), the court held that to be legally protected, the information need not constitute a trade secret, and indeed, may otherwise be publicly available. The key to determining the misuse of information is the relationship of the parties at the time of disclosure and the intended use of the information. Ibid. (citing Zippertubing Co. v. Teleflex, Inc., 757 F.2d 1401, 1407-10 (3d Cir.1985)) (citing Kamm v. Flink, 113 N.J.L. 582, 175 A. 62 (E & A 1934)). In Platinum, plaintiff sued its former employee for breach of the duty of loyalty, claiming that its former employee discussed its customers with his new employer. Defendant argued that the information was not protectable because it was publicly available. Ibid. The court disagreed, and found that the information the plaintiff sought to protect went beyond mere names, but also included buying habits, mark-up structure, merchandising plans, projections, and product strategies. Ibid. The court stated that the customer's names may have been listed in readily obtainable trade directories, but the fact that they were the plaintiff's customers was not. Ibid. The court concluded that the identity of the customers is "entitled to protection when divulged in confidence to a key employee ... where [defendant] is a party to a covenant not to compete." Ibid.
Other jurisdictions also have held that information not technically meeting the strict requirements of trade secrets may *1167 be protected as "confidential information" and may serve as the basis for a tort action. See Roboserve, Ltd. v. Tom's Foods, Inc., 940 F.2d 1441, 1456 (11th Cir. 1991)("[I]tem may be considered confidential in the context of a business relationship without rising to the level of a trade secret. A confidential relationship is distinguished by the expectations of the parties involved, while a trade secret is identified through rigorous examination of the information sought to be protected."); Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466-67 (9th Cir.1990) (quoting Faris v. Enberg, 97 Cal.App.3d 309, 158 Cal.Rptr. 704, 712 (1979)) (stating that idea, whether or not protectable, offered to another in confidence is not to be used by offeree for purposes beyond limits of confidence without offeror's permission); Sandlin v. Johnson, 152 F.2d 8, 11 (8th Cir.1945) (stating that business information not technically trade secret can be protected); Crocan Corp. v. Sheller-Globe Corp., 385 F.Supp. 251, 254 (N.D.Ill.1974) (same); see generally Robert Unikel, Bridging the `Trade Secret' Gap: Protecting `Confidential Information' Not Rising to the Level of Trade Secrets, 29 Loy. U. Chi. L.J. 841 (1998) (surveying ways employers protect information that does not constitute trade secrets, including claims for breach of duty of loyalty and unfair competition).
Those cases follow the philosophy expressed in the Restatement (Second) on Agency, which states that "[u]nless otherwise agreed, an agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent, in competition with or to the injury of the principal...." Restatement (Second) of Agency § 395 (1958). The comment to the Restatement adds that an agent must not take "unfair advantage of his position in the use of information or things acquired by him because of his position as agent or because of the opportunities which his position affords." Id. § 387 comment b.
We disagree with the Appellate Division's conclusion that a trial is needed to determine whether the information secretly gathered by defendants was legally protected. Although we are persuaded that the facts show that plaintiff's information should be entitled to trade secret protection, certainty in that regard is not essential to our decision. The specific information provided to defendants by their employer, in the course of employment, and for the sole purpose of servicing plaintiff's customers, is legally protectable as confidential and proprietary information.
The information surreptitiously gathered by defendants from plaintiff was not generally available to the public, but was shared between plaintiff and its clients. Defendants would not have been aware of that information but for their employment. The information went beyond the mere names of plaintiff's clients. It included specific information concerning the clients' claims, such as the name of the injured party, and the type and date of injury. Defendants admitted that that information gave them an advantage in soliciting plaintiff's clients once they resigned. But, the information was available to defendants for their use in servicing clients on behalf of Lamorte only.
The record is clear that defendants also knew that Lamorte had an interest in protecting that information. Walters signed an agreement that so stated, and both Walters and Nixon declined to sign a later agreement that sought to afford further protection to the information. Walters acknowledged that he would not have given *1168 such information to a competitor if requested, and he would not have permitted a Lamorte employee to do so. Also, Walters and Nixon both were aware that their co-employee John Treubig had been fired because of his attempt to privately solicit Lamorte's customers. We conclude, therefore, that the client claim file information taken by defendants was confidential and proprietary information belonging to plaintiff.
III.
A.
Having concluded that plaintiff's client claim file information is legally protectable, resolution of plaintiff's breach of the duty of loyalty claim is relatively straightforward. Loyalty from an employee to an employer consists of certain very basic and common sense obligations. An employee must not while employed act contrary to the employer's interest. Chernow v. Reyes, 239 N.J.Super. 201, 204, 570 A.2d 1282 (App.Div.), certif. denied, 122 N.J. 184, 584 A.2d 245 (1990) (citing Auxton Computer Enters., Inc. v. Parker, 174 N.J.Super. 418, 425, 416 A.2d 952 (App. Div.1980)). And, during that period of employment, an employee has a duty not to compete with his or her employer. Cameco, Inc. v. Gedicke, 157 N.J. 504, 517-18, 724 A.2d 783 (1999); Subcarrier Communications, Inc. v. Day, 299 N.J.Super. 634, 644-45, 691 A.2d 876 (App.Div.1997); United Bd. & Carton Corp. v. Britting, 63 N.J.Super. 517, 524, 164 A.2d 824 (Ch. Div.), aff'd, 61 N.J.Super. 340, 160 A.2d 660 (App.Div.1960), certif. denied, 33 N.J. 326, 164 A.2d 379 (1960). Consistent with our approach to this common-law duty, the Restatement (Second) Agency provides that "[u]nless otherwise agreed, an agent is subject to a duty not to compete with the principal concerning the subject matter of his agency." Restatement (Second) of Agency, § 393 (1958). Comment e to that section further states:
[B]efore the end of his employment, [the employee] can properly purchase a rival business and upon termination of employment immediately compete. He is not, however, entitled to solicit customers for such rival business before the end of his employment nor can he properly do other similar acts in direct competition with the employer's business.
[Id. § 393 comment e.]
In Cameco, supra, 157 N.J. at 517, 724 A.2d 783, the Court held that an employer may prove a prima facie case of an employee's breach of the duty of loyalty not only by showing that the employee directly competed with the employer while employed, but also by showing that the employee while employed assisted the employer's competitor. In evaluating an employee's conduct under the breach of the duty of loyalty standard, the employee's level of trust and confidence, the existence of an anti-competition contractual provision, and the egregiousness of the conduct are important factors to consider in the analysis. Id. at 516-18, 521, 724 A.2d 783. The analysis is not susceptible to "mechanical applications of abstract principles of law." Id. at 516, 724 A.2d 783. We commented on the varied contexts that give rise to claims of employee disloyalty and emphasized the fact-sensitive nature of their resolution. Id. at 516, 724 A.2d 783 ("In general, the adjudication of such claims summons rules of reason and fairness.").
Defendants maintain that they did not compete with Lamorte while employed essentially because no solicitations of Lamorte clients occurred until the day after they transmitted their resignations to plaintiff. They contend that they were doing no more than planning and preparing *1169 the establishment of a competing business for their future employment during the time they remained in Lamorte's employ. It is true that in New Jersey
[a]n employee who is not bound by a covenant not to compete after the termination of employment, and in the absence of any breach of trust, may anticipate the future termination of his employment and, while still employed, make arrangements for some new employment by a competitor or the establishment of his own business in competition with his employer.
[Auxton Computer Enters. Inc., supra, 174 N.J.Super. at 423, 416 A.2d 952.]
But, although an employee has the right to make preparations to start a competing business, the employee may not breach the undivided duty of loyalty he or she owes to his or her employer while still employed by soliciting the employer's customers or engaging in other acts of secret competition. Platinum, supra, 285 N.J.Super. at 303, 666 A.2d 1028 (citing Auxton Computer Enters., Inc., supra, 174 N.J.Super. at 423, 416 A.2d 952). Many jurisdictions have held that an employee's taking of legally protected information from his or her employer, in order to seek a competitive advantage upon resignation, constitutes a breach of the duty of loyalty. See, e.g., Abbott Redmont Thinlite Corp. v. Redmont, 475 F.2d 85, 89 (2d Cir.1973) (stating that employee cannot "utilize specific information he obtained during his employment to deprive his ex-employer of customers with whom he knows deal is in process of completion"); Tlapek v. Chevron Oil Co., 407 F.2d 1129, 1133 (8th Cir. 1969) (finding that employee has duty not to use confidential information acquired in course of employment for own benefit and to detriment of former employer); Bull v. Logetronics, Inc., 323 F.Supp. 115, 133 (E.D.Va.1971) (stating that employee's duty "does not cease when employment ends. He has a duty not to reveal confidential information obtained through his employment, and not to use such confidential information after he has left his employment."); United Ins. Co. of Am. v. Dienno, 248 F.Supp. 553, 557 (E.D.Pa. 1965) (stating party who develops or possesses confidential information belonging to his employer should not be allowed to terminate his association and then use information to undercut former employer); see also Unikel, supra, 29 Loy. U. Chi. L.J. at 862 (stating strict fiduciary obligations imposed on employees prohibit them from using or disclosing to detriment of employer confidential information imparted to them in course of duties).
B.
Based on the evidence in this record, we agree with the trial court that defendants breached their duty of loyalty. Defendants' conduct while employed was clearly contrary to the interests of their employer. We recognize the right of an employee to plan and prepare for future employment, but defendants' extraordinary actions were without question outside the rubric of that right. Accord Sun Dial Corp. v. Rideout, 16 N.J. 252, 260-61, 108 A.2d 442 (1954) ("There is undoubtedly ... an important policy which encourages employee [sic] to seek better jobs from other employers or to go into business for themselves.... But there is also a policy which is designed to protect employers against improper disclosures of information which their employees have received in confidence.") (internal citations omitted).
An employee's duty of loyalty to his or her employer goes beyond refraining from privately soliciting the employer's customers while still employed. The duty of loyalty prohibits the employee *1170 from taking affirmative steps to injure the employer's business. Defendants purloined protected information from plaintiff's P & I claim files while still employed, for the sole purpose of effecting an advantage in competing with plaintiff immediately upon their resignation and the commencement of their new competitive business. Unlike the defendant in Auxton Computer Enterprises, Inc., supra, 174 N.J.Super. at 425, 416 A.2d 952, defendants here intentionally began a process of subverting their employer's business while still employed. That process included gathering by stealth plaintiff's legally protected information admittedly to seek an advantage in competing with plaintiff once they resigned. Obviously those actions were contrary to plaintiff's interest, and in the case of Walters, directly conflicted with the terms of his employment agreement as well, as the courts below held.
IV.
A.
Plaintiff also claims that defendants tortiously interfered with its economic advantage. An action for tortious interference with a prospective business relation protects the right to pursue one's business, calling, or occupation, free from undue influence or molestation. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 750, 563 A.2d 31 (1989). Not only does the law protect a party's interest in a contract already made, but it also protects a party's interest in reasonable expectations of economic advantage. Ibid. To prove its claim, plaintiff must show that it had a reasonable expectation of economic advantage that was lost as a direct result of defendants' malicious interference, and that it suffered losses thereby. Baldasarre v. Butler, 132 N.J. 278, 293, 625 A.2d 458 (1993). Causation is demonstrated where there is "proof that if there had been no interference there was a reasonable probability that the victim of the interference would have received the anticipated economic benefit." Ideal Dairy Farms, Inc. v. Farmland Dairy Farms, Inc., 282 N.J.Super. 140, 199, 659 A.2d 904 (App.Div.), certif. denied, 141 N.J. 99, 660 A.2d 1197 (1995) (quoting Leslie Blau Co. v. Alfieri, 157 N.J.Super. 173, 185-86, 384 A.2d 859 (App.Div.), certif. denied sub nom., Leslie Blau Co. v. Reitman, 77 N.J. 510, 391 A.2d 523 (1978)).
The tortious interference cause of action has a long history in New Jersey law. In Van Horn v. Van Horn, 56 N.J.L. 318, 28 A. 669 (1893), the Court stated that
while a trader may lawfully engage in the sharpest competition with those in like businesses by holding out extraordinary inducements, by representing his own wares to be better and cheaper than those of others, yet when he oversteps that line and commits an act with the malicious intent of inflicting injury upon his rival's business, his conduct is illegal, and, if damage results from it, the injured party is entitled to redress.
[Id. at 323, 28 A. 669.]
Malice is not used here in its literal sense to mean "ill will;" rather, it means that harm was inflicted intentionally and without justification or excuse. Ideal Dairy Farms, Inc., supra, 282 N.J.Super. at 199, 659 A.2d 904. It is determined on an individualized basis, and the standard is flexible, viewing the defendant's actions in the context of the facts presented. Ibid. Often it is stated that the relevant inquiry is whether the conduct was sanctioned by the "rules of the game," for where a plaintiff's loss of business is merely the incident of healthy competition, there is no compensable tort injury. Ibid. The conduct must be both "injurious and *1171 transgressive of generally accepted standards of common morality or of law." Harper-Lawrence, Inc. v. United Merchants and Mfrs., Inc., 261 N.J.Super. 554, 568, 619 A.2d 623 (App.Div.), certif. denied, 134 N.J. 478, 634 A.2d 525 (1993) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J.Super. 244, 255, 128 A.2d 281 (App.Div.1957)). The line clearly is drawn at conduct that is fraudulent, dishonest, or illegal and thereby interferes with a competitor's economic advantage. Ideal Dairy Farms, Inc., supra, 282 N.J.Super. at 205, 659 A.2d 904.
Although competition may constitute a justification, a defendant claiming a business-related excuse must justify not only its motive and purpose, but also the means used. Id. at 199, 659 A.2d 904. Conduct admittedly spurred by spite and ill-will is not necessarily sufficient to sustain an action for tortious interference with an economic advantage. In Ideal Dairy Farms, Inc., the plaintiff, a dealer and distributor of dairy products, terminated its relationship with Farmland and started a relationship with Farmland's competitor, Tuscan. Id. at 151-52, 659 A.2d 904. Farmland, upset with this new arrangement, canvassed Ideal-Tuscan's customers and offered to sell them milk at prices substantially lower than Ideal's prices. Id. at 152, 659 A.2d 904. As a result, Ideal lost customers, and those that it retained purchased milk at substantially lower prices. Ibid.
The Appellate Division reversed the trial court's finding that Farmland had tortiously interfered with Ideal's economic advantage. Id. at 155, 659 A.2d 904. The court was unpersuaded that the defendant had acted with malice even though it had been shown that Farmland had targeted Ideal's customers by setting prices so low as to be unprofitable. Ibid. The evidence showed rivalry and rank animosity between the two companies, but not conduct that transgressed the rules of the game. Ibid. The court explained:
[T]here was also a valid business justification supporting Farmland's conduct. Farmland had lost a significant amount of sales after Ideal switched suppliers to Tuscan. Faced with excess plant capacity, and a decline in sales, there was a legitimate business reason to `target' Ideal customers and attempt to regain what Farmland lost the previous year (1985) regardless of any other motivation.
[Id. at 200-01, 659 A.2d 904.]
On the other hand, not all sanctioned conduct or customs of a specific industry will be immune from claims for tortious interference. In Wear-Ever Aluminum, Inc. v. Townecraft Industries, Inc., 75 N.J.Super. 135, 182 A.2d 387 (Ch. Div.1962), Wear-Ever claimed that Townecraft tortiously pirated approximately thirty-five members of its sales force, and therefore interfered with Wear-Ever's contractual and advantageous relationship with its employees. Id. at 139, 182 A.2d 387. Townecraft had called a meeting and invited Wear Ever's sales force in an attempt to persuade them to work for Townecraft. Id. at 141, 182 A.2d 387. The defendant contended that its conduct was prevalent in the trade. Id. at 146-47, 182 A.2d 387. In ruling for the plaintiff, the court stated that
even if the defendant had established that the custom in the trade was to pirate salesmen from competitors, this court would not permit such a custom to justify and legitimatize what otherwise would be tortious conduct. The role of the court is to raise the standard of business morality and care, not judicially to sanction tortious activities. Higher standards benefit and protect both the *1172 innocent member of the industry and the general public.
[Ibid.]
B.
Walters and Nixon gathered and used Lamorte's protected information to effect a surprise weekend coup, secretly soliciting Lamorte's clients at a time when Lamorte's knowledge of their competition was delayed, to put a best light on the tactic. That confidential and proprietary information was provided to defendants only for the purpose of servicing clients on behalf of Lamorte, not to solicit those clients away from Lamorte.
At the time of defendants' "weekend surprise," plaintiff enjoyed a relationship with over thirty P & I clients. Those clients were obtained on Lamorte's time and at its expense. Lamorte's clients were then solicited and acquired by defendants' secretive taking of plaintiff's protected client information, and their ensuing strategically timed resignation and solicitation campaign. Those acts clearly indicate malice. Defendants' conduct was not only unethical, but also unlawful in that it constituted the wrongful taking of Lamorte's property.
We respect the principles of free competition, but defendants' taking of plaintiff's confidential and proprietary property and then using it effectively to target plaintiffs' clients, is contrary to the notion of free competition that is fair.
V.
For the reasons expressed herein sustaining plaintiff's claims of breach of the duty of loyalty and tortious interference with an economic advantage, and as expressed in the trial court's opinion, we conclude that plaintiff is entitled to summary judgment on its other tort claims, namely that defendants misappropriated plaintiff's confidential and proprietary information and committed unfair competition. Under the facts here, all proofs essential to those latter two claims are subsumed in the proofs required to support the claims for breach of loyalty and tortious interference with an economic advantage. Accordingly, the judgment of the Appellate Division is reversed, in part, and the judgment of the Chancery Division sustaining plaintiff's tort claims is reinstated.
For reversal in part and reinstatementChief Justice PORITZ and Justices STEIN, COLEMAN, LONG, VERNIERO, LaVECCHIA and ZAZZALI7.
OpposedNone. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610225/ | 5 Wash. App. 99 (1971)
485 P.2d 631
THE STATE OF WASHINGTON, Respondent,
v.
TIMOTHY GUY IDDINGS, Appellant.
No. 346-41657-3.
The Court of Appeals of Washington, Division Three.
June 8, 1971.
William L. Dowell, for appellant (appointed counsel for appeal).
Henry Dunn, Prosecuting Attorney, for respondent.
MUNSON, C.J.
Defendant, Timothy Guy Iddings, appeals from convictions on three counts of first-degree kidnapping, three counts of second-degree assault, one count of robbery and one count of grand larceny. All charges arose out of the same incident and were tried at the same time as a result of a consolidation of informations.
Defendant's assignments of error may be grouped into three categories: (1) whether the trial court properly consolidated two informations for the purpose of trial; (2) whether certain evidence was properly admitted; and (3) *100 whether the accumulation of alleged errors and prosecutorial misconduct deprived defendant of a fair trial.
Defendant allegedly abducted one woman and two men at gunpoint, forced them to drive him around Longview, Washington, demanded and was given the men's wallets, fired several shots through the windshield of their car and struck one of the men about the head with a revolver. Shortly after forcing the three abductees out of the car, defendant abandoned the vehicle and fled on foot. At the time of defendant's arrest the arresting officers had a general description of the culprit, as well as information[1] which indicated the robber-abductor may have been an associate of one Gary Holcomb whom they had arrested earlier in connection with these crimes. Defendant, an associate of Holcomb whose description matched that of the abductor, was seen walking along the street in the vicinity of the abandoned car and in the general area where the victims had been released. He was stopped and frisked. A credit card belonging to one of the victims was found in his hand, visible to the arresting officers. His testimony explaining his possession of this card must have been rejected by the jury.
At trial a 9-shot, .22 caliber revolver with a barrel approximately 5 inches in length was introduced. Defendant objected that no foundation had been laid for its introduction. Foundation testimony was given by Holcomb who stated it was similar to one belonging to defendant and which defendant had in his possession immediately prior to the robbery. Furthermore, one of the abductees testified that the weapon with which he was assaulted was a revolver with a 5-inch barrel.
In defense, defendant testified he had been in the vicinity *101 of the crime to see an old girl friend. In rebuttal, the state introduced certain photographs which contradicted defendant's description of the area where he allegedly waited to see her.
WHETHER THE COURT ERRED IN CONSOLIDATING THE INFORMATIONS
[1] Consolidation of informations for trial lies within the sound discretion of the trial court. While numerous crimes are set forth in the consolidated informations, they arose out of one incident. The record clearly discloses defendant was not embarrassed or prejudiced by the consolidation. Therefore, we find no abuse of discretion by the trial court. State v. Smith, 74 Wash. 2d 744, 446 P.2d 571 (1968); State v. Hunter, 3 Wash. App. 552, 475 P.2d 892 (1970).
WHETHER CERTAIN EVIDENCE WAS PROPERLY ADMITTED
[2] We find probable cause existed to justify defendant's arrest. State v. Todd, 78 Wash. 2d 362, 474 P.2d 542 (1970); Evalt v. United States, 359 F.2d 534, 539 (9th Cir.1966). The credit card and sweater introduced at trial were found in a search incident to that arrest and are consequently admissible. Hill v. California, 401 U.S. 797, 28 L. Ed. 2d 484, 91 S. Ct. 1106 (1971).
[3] Objects offered in evidence have relevancy if they are connected either with the offense or the defendant. Many times they will be connected with both, but such is not necessary. They are relevant so long as they pertain to any issue involved. State v. Westphal, 62 Wash. 2d 301, 382 P.2d 269 (1963); 1 H. Underhill, Criminal Evidence § 115 at 114 (5th ed. P. Herrick Supp. 1970). Consequently, the two wallets identified as those taken from the victims on the night of the crime were properly admitted into evidence.
The revolver, based upon the testimony of Gary Holcomb, was properly admitted as a weapon similar to the one used in the commission of the crime. As stated in Liakas v. State, 161 Neb. 130, 143, 72 N.W.2d 677 (1955), *102 cert. denied, 351 U.S. 924, 100 L. Ed. 1454, 76 S. Ct. 780 (1956):
[W]here an accused is identified as having been at or near the scene of a crime about the time of its commission evidence showing that he owned, possessed, or had access to any articles with which the crime was or might have been committed is competent.
[4] In rebuttal the admission of three photographs of the general area described by defendant in his alibi was proper. The admissibility of same is within the discretion of the trial court and we find no abuse thereof.
WHETHER THE ACCUMULATION OF ERRORS AND PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL
An examination of the record indicates no prosecutorial misconduct. As for the cumulative effect of alleged errors, there is no indication they precluded defendant from receiving a fair trial. The evidence of either Gary Holcomb or the victims, if believed by the jury, would be sufficient to support defendant's conviction and the weight of their combined testimony is overwhelming in that regard. State v. Martin, 73 Wash. 2d 616, 440 P.2d 429 (1968); State v. Stewart, 2 Wash. App. 637, 468 P.2d 1006 (1970).
Judgment affirmed.
GREEN and EVANS, JJ., concur.
Petition for rehearing denied June 28, 1971.
Review denied by Supreme Court July 26, 1971.
NOTES
[1] The abductor had paid peculiar attention to a white Thunderbird automobile during the abduction trip. A police officer had observed the Thunderbird in the area on two occasions during the time these crimes were being committed. On stopping the Thunderbird it was learned it was driven by Gary Holcomb. Defendant and Holcomb were known to the local police from previous criminal activities. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610228/ | 207 Kan. 640 (1971)
485 P.2d 1318
VICTOR J. DOLAN, Appellant,
v.
H.W. STEELE, d/b/a STEELE OIL COMPANY, and UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellees.
No. 46,328
Supreme Court of Kansas.
Opinion filed June 12, 1971.
George E. McCullough, of McCullough, Parker, Wareheim, LaBunker and Rose, of Topeka, argued the cause and was on the brief for the appellant.
James P. Mize, of Clark, Mize, Graves, Linville and Miller, Chartered, of Salina, argued the cause and was on the brief for the appellees.
The opinion of the court was delivered by
HARMAN, C.:
This is an appeal from a district court's denial of a workmen's compensation claim for disability based on cerebrovascular injury.
Claimant-appellant, Victor J. Dolan, fifty-three years of age, had been for about twenty years in the employ of respondent-appellee, H.W. Steele, a Texaco oil distributor in Salina, Kansas. Claimant's principal job was to make deliveries by truck of gas, oil and grease. He also unloaded freight cars of oil products when they were shipped to respondent's bulk plant. Respondent's only other employee was a female bookkeeper.
Claimant testified that on the morning of July 6, 1967, he unloaded a freight car and set up fifteen or twenty fifty-five gallon drums of oil products, which was heavy work. After unloading the car claimant made several deliveries; while en route to another delivery that afternoon he sustained a stroke, went off in the ditch with his truck, and was hospitalized; his duties were primarily making small deliveries; he would help unload carloads of oil whenever *641 they came in; Mr. Steele frequently helped out but claimant often handled the barrels alone; about once a month claimant would help unload freight cars. A restaurant owner testified she recalled seeing claimant unloading a car the same day upon which he was later hospitalized.
A general medical practitioner testified on claimant's behalf: He had examined claimant but had not treated him; claimant could have had a cerebral vascular accident as a result of the exertion of unloading the freight car and that would be a logical assumption; claimant's work probably precipitated his condition; what he was really saying was there was a possibility claimant's unloading work precipitated the accident.
On respondent's behalf documentary evidence from the Union Pacific railroad was produced indicating the freight car in question was unloaded prior to July 6, 1967, the car having been "spotted" on that company's tracks for unloading; records from the Santa Fe railroad, which had had the car brought in and against whom claim for freight damage had been made, also indicated the car was unloaded prior to July 6, 1967. Respondent Steele testified the freight car was not on the siding on that date.
Mr. Steele also testified that in June, 1967, claimant had delivered about six or seven thousand gallons of oil; claimant frequently loaded and unloaded thirty or fifty-five gallon drums of oil, principally the latter size; claimant unloaded oil drums from freight cars two or three times per month; he delivered barrels of oil to respondent's customers.
The physician who treated claimant, Dr. Weber, was a specialist in internal medicine. He first examined claimant when he was hospitalized July 6, 1967. He testified claimant had a preexisting arteriosclerosis; claimant had sustained a cerebral thrombosis; the cerebral thrombosis was not related to claimant's work; claimant's exertion did not have any effect upon his disease.
The workmen's compensation examiner found that claimant's pre-existing disease was precipitated into a disability by "work more than claimant performed on a day to day basis" and he awarded compensation.
Upon review the workmen's compensation director likewise awarded compensation, finding that claimant's exertion in unloading the freight car was more than his usual work in the course of *642 his regular employment and further that his cerebral vascular accident was causally related to the exertion of the work he was performing for respondent.
Upon respondent's appeal the district court denied compensation and entered the following order:
"The claimant sustained a stroke on July 6, 1967, while making a delivery of petroleum products for the respondent. He had for 20 years been employed as a delivery man for the respondent and was the only employee other than a woman bookkeeper.
"Respondent is the Texaco bulk station operator in Salina. Claimant's day to day work was delivering gasoline and petroleum products to customers. The respondent routinely received railroad freight car deliveries of barrels of oil and petroleum products at irregular intervals. The claimant unloaded the freight cars at such times as the needs of the business required, approximately once a month over the years.
"There is a dispute as to the exact work performed by claimant on July 6, the day of his stroke. He claims to have unloaded barrels of oil from a freight car in the early morning. A disinterested witness supports claimant's allegation that he unloaded barrels from the car the day of his stroke. Claimant claims this is exertion of work more than his usual work in the course of his regular employment since it is not his day-to-day work but done only about once a month.
"The 1967 amendment of KSA 44-501 provides:
"`Compensation shall not be paid in case of coronary or coronary artery disease or cerebrovascular injury unless it is shown that the exertion of the work necessary to precipitate the disability was more than the workman's usual work in the course of the workman's regular employment.'
"The Court has no cases decided under this amendment, nor even under similar statutes, for it's guidance. It is a statute intended to limit recovery in cases of cerebrovascular injury. To support an award of compensation the cause must be exertion of work more than that of usual work in the regular employment.
"Claimant interprets the statute to include a day-to-day element in the usual work and regular employment.
"The Court finds that it was `usual work' for this employee to unload barrels from a freight car and that it was work in the course of his regular employment though performed at irregular intervals as the routine of business required. The statute contains no day-to-day standard so far as this court can ascertain.
"In addition to these considerations as to the nature of the exertion expended by the claimant on July 6 the Court gives great weight and credit to the testimony of Dr. Weber, the claimant's own treating physician. His clear and unequivocal opinion is that the exertion of claimant's work was not a significant causative factor in the claimant's injury.
"The Court finds that the claimant has failed to sustain his burden of proof and that award of compensation should be and is denied."
*643 Claimant's sole contention of error presented to this court in his statement of points is:
"This District Court erred in construing K.S.A. 1967 Supp. 44-501 pertaining to cerebrovascular injuries. The Court strictly construed the meaning of the term `usual work' in said amendment against the injured workman in violation of the Kansas Workmen's Compensation Act's rule of liberal construction, which provides that all provisions of the Act shall be liberally construed in favor of the workman, in order to award compensation where reasonably possible to do so."
Claimant argues that legislative intent in enacting the 1967 amendment to K.S.A. 44-501, expressing the obligation under the workmen's compensation act, must have been to define the term "usual work" as used therein to mean "standard regular day-to-day work." In presenting his contention for reversal and remand claimant would have us disregard the trial court's statements respecting the medical aspect of the case. We are unable so to do. Actually the trial court made two separate findings, either of which, if proper, would preclude award of compensation. First, the court found under the evidence that it was "usual work" for claimant to unload barrels from a freight car. This finding was not in harmony with those made by the examiner and director, which latter findings embody standards of statutory interpretation claimant would have us adopt on appeal. However, as indicated, the trial court did not stop with the nature of the work aspect but it found, additionally, that giving credit to the testimony of the treating physician, the exertion of claimant's work was not a significant causative factor in claimant's injury. This amounted to a positive finding which we may not with propriety ignore, supported as it is by the clear and unequivocal opinion of Dr. Weber that claimant's work had no effect upon his disease and the cerebral thrombosis was not related to his work.
Our law has always been that whether a heart attack is causally related to the employee's work is a question of fact (see Hanna v. Edward Gray Corporations, 197 Kan. 793, 421 P.2d 205). Nothing in the 1967 amendment has eliminated this element of causation in fact, essential for disability to become compensable. Under the amendment the causal relation of the exertion to the cerebrovascular injury remains a question of fact. With respect to this issue of causation the usualness of the exertion is irrelevant. This was the import of our recent holding in Muntzert v. A.B.C. Drug Co., 206 Kan. 331, 478 P.2d 198, in which compensation was sought by *644 the widow of a workman who died from a heart attack shortly after leaving his place of employment. Upon conflicting medical testimony the district court found there was no causal relation between the decedent's employment and the coronary occlusion which caused his death. On appeal the claimant's argument was directed toward a finding of the district court that the evidence did not establish any "unusual activity" on decedent's part within the contemplation of the 1967 amendment to 44-501. Appellant there contended that the term "unusual activity" has a dissimilar connotation than the phrase "more than the workman's usual work" as used in the statute, arguing that "unusual" implies a greater variation from the norm than "more than usual". Appellant there sought, as does claimant in the case at bar, to have this court declare a particular standard applicable to the work aspect of the case. In response this court stated:
"Whatever might be the semantic basis for the appellant's claim, we believe it would be fruitless for us at this time to engage in learned discussion as to what, if any, practical distinction exists between `unusual' and `more than usual.' We simply do not reach the point of construing the 1967 amendment. The trial court found, on what we deem sufficient evidence, that there was no causal relationship between the decedent's employment and the coronary occlusion suffered after he left work, and that the occurrence did not arise out of and in the course of the decedent's employment. Thus, whether the decendent's work on the day in question was more than his usual work becomes entirely irrelevant, and we need not now become involved in the thicket of semantics." (p. 333.)
We see no reason to depart from this approach.
The factual findings on causation is supported by substantial competent evidence and under the familiar rule may not be set aside upon appellate review.
The judgment is affirmed.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611751/ | 15 Cal. 2d 507 (1940)
THE PEOPLE, Respondent,
v.
DeWITT CLINTON COOK, Appellant.
Crim. No. 4273.
Supreme Court of California. In Bank.
May 20, 1940.
Frederic H. Vercoe, Public Defender, and William B. Neeley for Appellant. *509
Earl Warren, Attorney-General, and Frank Richards, Deputy Attorney- General, for Respondent.
THE COURT.
The defendant herein was charged with the crime of murder as set forth in the first count of an indictment that had been returned against him. In the same indictment he was charged with the commission of other offenses which consisted of two several counts of assault with a deadly weapon with intent to commit murder, one count of robbery, one of rape and three several counts of burglary,--to each of which charges he pleaded guilty. When the case was called for the taking of evidence by the trial court in the matter of fixing the degree of the crime of murder, defendant refused to testify. Thereupon the trial court of its own motion set aside the plea of guilty to the first count of the indictment and entered a plea of not guilty thereto on behalf of defendant. After trial was had by a jury on the charge of murder, defendant was convicted of the crime of murder in the first degree, without recommendation. Thereafter, a motion for a new trial was made and denied. Following pronouncement of judgment and the imposition of the death penalty, this appeal from the judgment and order denying a new trial was automatically presented to this court. (Sec. 1239, Pen. Code.)
The facts in this case, which in part were supplied from the confessions and extra-judicial statements voluntarily made by defendant, appear to be substantially as hereinafter related.
At approximately 9 o'clock on the evening of February 24, 1939, at the campus of the Los Angeles City College, defendant, a young man twenty years of age, struck a young woman named Anya Sosoyeva on the head with a piece of two-by-four. A few hours after the assault was committed, she died from the effects of the blow.
In the evening of the day on which the offense was committed, defendant, who was married and living with his wife and mother, left his home at about 7 o'clock, which was the usual time of his departure on occasions when he worked at night as a printer. However, he did not go to work that evening but, instead, he went to the campus grounds of the Los Angeles City College, and looked around the adjoining neighborhood with a view to burglarizing a house. As he did not *510 locate a house suitable for that purpose he thereupon decided to seize a purse instead, and he began to search for some object with which to strike his intended victim. Underneath a bench which was located beside a walk leading to the administration building on the campus grounds, he noticed a piece of two-by-four, which he picked up and carried with him while he resumed his walk around the neighborhood. A short time later he returned to the campus grounds and to the vicinity of the bench. After he had walked back and forth about forty-five minutes he observed a young woman, who was later identified as Miss Sosoyeva, coming toward him along the walk. After she had passed him, proceeding in a direction opposite to that pursued by defendant, he turned and followed her a few feet and then, wielding the piece of two-by-four by the use of both hands, he struck her a blow on the head, which caused her to fall to the ground. Immediately, defendant partly dragged, partly carried her to a tree--a distance of from eight to fifteen feet from the paved walk--for the reason, as asserted by defendant, that had she been left lying where she had fallen she might have been observed if anyone came along the walk. He attempted to stifle outcries which she made by placing his hand over her mouth, but as she was "making lots of noise" he became frightened and fled the scene--without taking her purse, however,--and made his escape through a portion of the campus grounds known as the Shakespearian Gardens.
According to the testimony of a police officer, who, shortly after 9 o'clock P. M., was called to the scene of the attack, Miss Sosoyeva was then seated beside a desk in a room of the administration building. Her head was cradled in her arms which were lying on the desk. He testified that there was blood on her face, that she was moaning, and that her only intelligible words were, "Oh, he hit me." Soon thereafter, she was removed to an emergency hospital where she received medical treatment. The doctor and nurse who attended her testified that at the time of her arrival Miss Sosoyeva was in a semi-conscious condition; that she was bleeding from her left ear; that there was blood on her face and head; and that an examination revealed a traumatic injury to the back of her head. She was then transferred to another hospital where, as a result of her injuries, she died at about 1:20 o'clock on the following morning. Before her death she was identified by a *511 young woman with whom she had shared an apartment which was located near the college campus. According to the testimony of her roommate, it appeared that Miss Sosoyeva was about twenty-seven years of age; and that when she was last seen by the witness at their apartment at approximately 6:30 P. M., on the evening of the assault, Miss Sosoyeva was dressing and making preparations for taking part in a theatrical performance which was to be held that night in the administration building of the Los Angeles City College.
The testimony of Police Captain D. R. Patton revealed that about 2:30 o'clock on the morning following the assault on and death of Miss Sosoyeva he visited the portion of the college campus where the attack had occurred, and on the making of an examination of the ground in that vicinity, he found leaning against a tree a section of two-by-four, to one end of which adhered some strands of blonde hair. He also found a comb, a glove for a man's right hand, which glove was stained with blood, and several spots of blood on the walk and on the ground a few feet therefrom. The left glove which was found in the Shakespearian Gardens, through which defendant had fled after the assault, also was marked with blood as well as with lipstick stains. On the taking of evidence it appeared that the blonde hairs found on the piece of two-by-four were of the same color and texture as the hair of the deceased, and that the lipstick marks found on the left glove were of the same color and chemical content as lipstick which had been found in the handbag of the deceased. Furthermore, by his extra-judicial statements and confessions it was established that the gloves had been identified by defendant as being the same gloves that he had secured in a burglary theretofore committed by him and which he admitted having worn on the occasion of the assault in question, in order to avoid leaving fingerprints.
Some months after the assault was committed and on August 28, 1939, defendant was taken into custody for questioning by the police in connection with certain burglary and other charges. While defendant was being taken to the police station in the police car it appeared that a piece of two-by-four, approximately eleven inches long, was found on the rear seat of the automobile where defendant was riding, and that when he observed it he was said to have remarked, "My God, not that!" However, it did not appear that the said section *512 of two-by-four was taken from defendant, nor was either of the accompanying police officers able to account for its presence in the automobile,--although it later was shown that it was not the same piece of two-by-four which defendant had used in committing the assault on Miss Sosoyeva. On the following morning, while he was being questioned specifically with regard to the "campus" crime, defendant made a full and complete confession of his connection therewith. Later he repeated the same confession before the members of the grand jury, which body returned the indictment against defendant.
At the trial of the case, in addition to the confession of defendant, a sound motion picture was presented in evidence which depicted a purported reenactment by defendant of the several incidents which related to the assault. Defendant declined to offer any evidence whatever in his own behalf.
Appellant's principal contention on this appeal is that the jury should have found that his crime amounted only to murder of the second degree. He argues that, independent of his confessions and extra-judicial statements, the evidence established only the fact that he committed the homicide. He contends that the following circumstances tend to show lack of premeditation: That at the time when the assault was committed appellant did not even know the deceased; that the blow was struck by an immature youth who would not have fully appreciated the consequences which might have resulted from the use of the weapon employed; that one seeking to take life would not have embarked unarmed on such an errand, and then have adopted and used for that purpose an instrument which chance placed in his hand near the scene of the assault; and that a person who had sought to take a human life would not have contented himself with a single blow while his intended victim still lived.
Appellant also argues that, apart from his extra-judicial statements and confessions, the evidence is positive that the homicide was not committed by him in perpetration of or attempt to perpetrate any of the crimes specifically enumerated in section 189, Penal Code, and, therefore, that in the absence of proof of premeditation on the part of appellant, the homicide amounted to no more than murder of the second degree. He argues that premeditation may not be presumed or inferred, but that it must be proved the same as any other element *513 of the offense; that the degree is an essential element of the corpus delicti of the crime and cannot be established by admissions and confessions of the defendant; and that where the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder, but that in such case the verdict should be murder of the second degree and not murder of the first degree (citing People v. Howard, 211 Cal. 322, 329 [295 P. 333, 71 A.L.R. 1385]).
[1] Murder is defined as the unlawful killing of a human being with malice aforethought. (Sec. 187, Pen. Code.) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature, and it is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart. (Sec. 188, Pen. Code.) [2] All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration of or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. (Sec. 189, Pen. Code.) [3] Where homicide occurs in the course of the commission of any of the crimes of arson, rape, robbery, burglary, or mayhem (as enumerated in section 189, Penal Code), intent need not be proved. But where death otherwise results, wilfulness, premeditation and deliberation must be established in order to constitute the crime of first degree murder.
[4] With regard to the crimes specifically mentioned in section 189, Penal Code, it appears to have been the theory of the prosecution that appellant intended to commit the crime of rape when he made the assault and that (excluding the confessions and admissions of the defendant) the facts and circumstances surrounding the commission of the assault were sufficient to show that he intended to commit such offense. However, aside from the extra-judicial statements and confessions of appellant, from a review of the record herein it does not appear that there was any direct evidence to show either the perpetration of or the attempt to perpetrate the crime of robbery, rape, or any of the other offenses particularly named in the code section,--even though it was apparent *514 that appellant had the opportunity for the commission of such offenses. But even if there was no evidence apart from the confessions and extra-judicial statements of the defendant to show that the crime was committed in an attempt to perpetrate any of the offenses enumerated in the code section, the jury would have been entitled to infer the existence of premeditation in the commission of the homicide, if it appeared that such a conclusion was warranted from a consideration of all the facts and circumstances connected with the assault. (People v. Owens, 27 Cal. App. 2d 606, 611 [81 PaCal.2d 429]; People v. Wells, 10 Cal. 2d 610, 624 [76 PaCal.2d 493]; People v. Spinelli, 14 Cal. 2d 137, 142 [92 P. 1017]; People v. Campos, 10 Cal. App. 2d 310, 315 [52 PaCal.2d 251]; People v. Johnson, 203 Cal. 153, 164 [263 P. 524].)
In the case of People v. Owens, 27 Cal. App. 2d 606, 610, 611 [81 PaCal.2d 429], it was said: " '... It is settled that "malice may always be inferred from the circumstances in the case--the evidence presented and considered by the jury." (People v. Glover, 141 Cal. 233, 243 [74 P. 745].) ... The circumstances that were shown to have surrounded the homicide, including the character of weapon used, the nature of the wound inflicted, the fact that the deceased displayed no weapon of any character and was unarmed, the acts and conduct of the accused, furnished ample justification for the indulgence by the jury in the inference that appellant entertained a deliberate purpose to kill the deceased. This properly supported inference warranted the return of a verdict convicting appellant of murder in the first degree. (People v. Mahatch, 148 Cal. 200 [82 P. 779]; People v. Bennett, 161 Cal. 214 [118 P. 710]; People v. Peete, 54 Cal. App. 333, 342 [202 P. 51].)' " There it was further said, quoting from the case entitled People v. Fleming, 218 Cal. 300 [23 PaCal.2d 28]: " '... this court has said on innumerable occasions that in order to prove premeditation in one charged with murder it is not necessary to show that any appreciable space of time elapsed between the intention to kill and the act of killing. ... Where one assaults another violently with a deadly weapon and takes his life the presumption is that the assailant intended death or great bodily harm. (13 Cal.Jur., p. 683.) And where, as in this case, the assault was made in a manner that was reasonably certain to produce death, and which actually did cause death, the only rational presumption *515 to be drawn therefrom is that the assailant intended to take the life of the person assailed.' "
And in the case of People v. Wells, 10 Cal. 2d 610, 624 [76 PaCal.2d 493], it was said: "... with respect to the issue of whether the offense was that of murder in the second degree: It was the exclusive province of the jury to determine from the evidence whether the killing was the 'wilful, deliberate and premeditated' act of defendant. In that connection, in the case of People v. Mahatch, 148 Cal. 200, 203 [82 P. 779], in part it was said: 'The jury, having found that the only extenuating circumstance which he interposed had no existence in fact, and no claim of any circumstances of mitigation, justification, or excuse for the killing being advanced, had a right to infer, from the character of the weapon used, the nature of the wound inflicted, and the acts and conduct of the accused, the existence of a deliberate purpose on his part to kill the deceased when the fatal blow was struck, and, so inferring, were warranted in returning a verdict therefrom for murder in the first degree. This is the general, it may be said the universal, rule. If a different one prevailed, secret murders could rarely be punished by the infliction of the highest penalty. It is exclusively the province of a jury to determine the degree of crime when there is any evidence in the case which will support the determination.' " (Emphasis added.)
Also, in the recent case of People v. Spinelli, 14 Cal. 2d 137, 142 [92 PaCal.2d 1017], it was said, quoting from People v. Johnson, 203 Cal. 153 [263 P. 524], that " '... section 1105 of the Penal Code provides that "the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable". The defendant offered no proof to meet the burden which the law casts upon him and as there was no claim of justification or excuse offered for the killing of decedent or pretense that the proof tended to show that the crime committed only amounted to manslaughter, the crime was murder of the first degree'."
As hereinbefore has been indicated, at the close of the case for the prosecution, appellant rested. He produced no evidence *516 on his own behalf, nor any which tended to show mitigation, excuse or justification for the commission of the crime with which he was charged. His confessions and extrajudicial statements were introduced in evidence upon stipulation of counsel and without objection on his part, nor were they or any of them challenged by him as having incorrectly reflected a true recital of the several statements and admissions which were therein attributed to him.
[5] From the authorities hereinbefore cited it is apparent, therefore, that in the present case it was for the jury to determine the question of the presence of premeditation or lack thereof on the part of appellant in the commission of the crime, from a consideration of the type of weapon employed and the manner of its use; the nature of the wounds suffered by the deceased; the fact that the attack was unprovoked and that the deceased was unarmed at the time of the assault; the conduct of her assailant in refusing or neglecting to aid her at a time when by his own statement he had formed the impression she was trying to call for help, and his immediate flight thereafter from the scene of the assault. However, appellant contends that "the very nature of the instrument which in this case did in fact cause death would negative a plan to take life, for it is difficult to believe that one would choose such a weapon to accomplish that intent". [6] The instrument employed by appellant, from the use of which Anya Sosoyeva met her death, was a piece of two-by-four about two feet long. She was struck on the back of her head, the blow having been delivered by the use of both hands of her assailant. Although perhaps it may not be said that such an instrument is one which is inherently dangerous or deadly, nevertheless it is obvious that such a weapon may become so if used in a particular manner or if the blow be inflicted on certain portions of the body. (People v. Valliere, 123 Cal. 576 [56 P. 433].) In the last-cited case, it was ruled (syllabus) that "if the testimony shows that the question whether the instrument used was such as would be likely to produce death depends upon the manner of its use and the portion of the body upon which it was used, it becomes a mixed question of law and fact whether it was a deadly weapon, which the jury must determine under proper instructions from the court". (Emphasis added.) Also, in the case of People v. Raleigh, 128 Cal. App. 105, 108, 110 [16 PaCal.2d 752], the *517 court pointed out the distinction between instrumentalities which are "weapons" in the strict sense of the word, such as guns, dirks, etc., and those instrumentalities which are not weapons in that sense, such as canes, hammers or other heavy objects. With reference to the latter classification the court said, "When it appears ... that [such] an instrumentality ... is capable of being used in a 'dangerous or deadly' manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a 'dangerous or deadly weapon' may be thus established, at least for the purposes of that occasion." And it was held in that case that, if "from all the facts and circumstances the jury is convinced beyond a reasonable doubt that the instrumentality was one which, in the hands of the perpetrator of the robbery, was capable of being used in a 'dangerous or deadly' manner and that the perpetrator of the robbery intended to use it as a 'weapon' should the circumstances require, then the character of the particular instrumentality is established as a 'dangerous or deadly weapon' ..." (Emphasis added.) Therefore, under all the facts and circumstances of the instant case the questions of the nature of the weapon and the manner of its use in their relation to the crime committed were for the determination of the jury. (People v. Lee, 23 Cal. App. 2d 168 [72 PaCal.2d 572]; People v. Valliere, 123 Cal. 576, 579 [56 P. 433].)
[7] Appellant also contends that prejudicial error was committed by the trial court in its refusal to give to the jury the following instruction:
"The law presumes a man to intend what he does, but the law does not presume a killing with premeditated design. It is like every other element of murder in the first degree and must be proved beyond a reasonable doubt before the jury would be entitled to find the defendant guilty."
Appellant asserts that the refusal of the court to give that instruction was rendered particularly injurious to his rights by reason of two instructions which the court gave and which were substantially as follows:
"A person is presumed to intend to do that which he voluntarily and wilfully does in fact do, and must also be presumed to intend all of the natural, probable and usual consequences of his own acts. Therefore, if you are satisfied to a moral *518 certainty and beyond a reasonable doubt that the defendant did assault, on the date mentioned, one Anya Sosoyeva violently with a dangerous weapon, likely to kill, and which did in fact destroy the life of said Anya Sosoyeva the natural presumption is that such assailant intended death or great bodily harm, and in the absence of evidence to the contrary this presumption must prevail."
One of those instructions contained the following additional statement that "The wilful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent."
With regard to the first portion of the instructions that were given, to which appellant has objected, he argues that the language therein expressed in effect told the jury that the mere proof of a felonious assault which resulted in death would ipso facto constitute proof of intent to kill and thus establish the premeditation embraced in the definition of first degree murder. Appellant contends that those instructions should have included the further advice that the deliberation and premeditation embraced in the definition of first degree murder were not to be presumed or inferred, but that the existence of those elements had to be proved to the same degree as any other element of the offense. However, from that which has been said hereinbefore, it is apparent that an objection to the two instructions on that ground is without merit. Moreover, in the case of People v. Jones, 160 Cal. 358, 370 [117 P. 176], it expressly is held that the rule contended for by appellant is without application to homicide cases. Other authorities to the same effect need not be cited.
With reference to that part of the instruction which advised the jury that "the wilful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent", it appears that the jury was not specifically instructed that it was the province of the jury to determine whether the weapon employed by appellant herein constituted a "deadly" weapon, nor was it instructed that "a deadly weapon is one likely to produce death or great bodily harm". (26 Cal.Jur., p. 573; see, also, People v. Valliere, 123 Cal. 576 [56 P. 433].)
[8] However, in considering claimed errors in the giving of or refusal to give certain instructions, it becomes the duty of an appellate court to consider the entire cause, including *519 all the evidence, for the purpose of determining whether a miscarriage of justice has resulted (People v. Fleming, 166 Cal. 357 [136 P. 291, Ann. Cas. 1915B, 88]; People v. Hoffman, 195 Cal. 295 [232 P. 974].) [9] In the present case, aside from any other evidence, the extra-judicial statements and confessions of appellant indicated that when he went to the campus grounds on the night of the assault he intended to commit the crime of robbery. By that admission it is apparent that a consideration of the evidence in its entirety shows a violation by appellant of that portion of section 189, Penal Code, which provides that where a homicide occurs in the course of the perpetration of or attempt to perpetrate the crime of "arson, rape, robbery, ..." the crime committed is murder of the first degree.
No prejudicial error appearing in the record herein, it is ordered that the judgment, and the order by which defendant's motion for a new trial was denied, be, and they are, affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611753/ | 39 Cal. App. 2d 62 (1940)
J. E. ROBERTSON, Respondent,
v.
ALYS LYON SUMMERIL, Appellant.
Civ. No. 2251.
California Court of Appeals. Fourth Appellate District.
May 10, 1940.
Joseph Anderson, Francis Gill and Howard E. Gawthrop for Appellant.
Edward Brody and Harvey, Johnston & Baker for Respondent. *63
Marks, J.
Plaintiff brought this action to establish that defendant held title to certain property in Bakersfield, California, as trustee in trust for him, and to compel defendant to execute the trust by conveying the property to him. Judgment went for plaintiff and defendant has appealed.
Plaintiff and defendant are brother and sister. They were the son and daughter of Alice L. Robertson. Defendant, a widow with two children, lived with Mrs. Robertson until shortly before the death of the latter in March, 1933. Defendant and her children were supported by her mother for a number of years out of income principally furnished by plaintiff.
Mrs. Robertson was left a widow in 1922 or 1923, She received an income from the estate of her deceased husband until about 1926, by which time the administrator had misappropriated all the assets of the estate. Thereafter she was dependent on her children, principally plaintiff, for her support.
Plaintiff was operating manager for a motor freight line which kept him on the road constantly. He was on twenty-four hour service each day. He tried to make it a practice to send his mother a check for her living expenses on the first of each month but occasionally failed to do so until later in the month by reason of being called away. This caused Mrs. Robertson financial embarrassment.
The property here in question was owned by plaintiff and was leased to an oil company on a long term lease. The rental, $100 per month for the first five years, and $125 per month for the last five years of the term, was made payable on or about the first of each month. Plaintiff discussed with his mother the question of providing her with a regular monthly income so that she might not be embarrassed by his failure to send her his checks promptly. He offered to deed the Bakersfield property to her if she would agree to reconvey it to him if and when the administrator repaid the $15,000 which he had misappropriated, or, if that money was not repaid, to see that the property was reconveyed to him at the time of her death. Mrs. Robertson agreed to these terms and the Bakersfield property was conveyed to her. The administrator made no restitution and Mrs. Robertson received the rents until her death and retained title to the property until *64 March 3, 1933. She paid plaintiff nothing for the property. Defendant was fully informed of all these facts within a short time after December 30, 1931, the date of the deed conveying the property to Mrs. Robertson.
On March 3, 1933, Mrs. Robertson was seriously ill in a hospital. She died on March 21, 1933. On March 3d defendant took a deed to the hospital and had Mrs. Robertson execute it. This deed conveyed the Bakersfield property to defendant. It was recorded on March 11th and defendant received the rents from the property, at least until this action was instituted.
After defendant had possession of this deed she told plaintiff that Mrs. Robertson had deeded the property to her. Plaintiff then told defendant: "There is nothing I can do about it. The condition my mother is in is more important to me and we will talk about that later." Plaintiff paid his mother's doctor and hospital bills and funeral expenses.
Shortly after Mrs. Robertson's death plaintiff asked defendant to convey the Bakersfield property to him. Defendant replied that she hoped plaintiff would permit her to keep the property for a time so that she and her children would have some means of support; that she expected to receive $10,000 from a Mr. Comer and asked to keep the property until that sum was paid her. Her request was granted. She received the money from Mr. Comer in March, 1935, and plaintiff again asked her to convey the property to him. The record shows that defendant replied; "that she wanted to wait if I would let her until she could get a little more money, until she would actually make a reconveyance, and she said 'I feel it is right around the corner.' Q. And what did you say to that? A. I said if it will help you a little while longer, but please get busy and let us bring it to a close."
Between March, 1935, and May, 1937, plaintiff frequently asked defendant to reconvey the property to him. She found various excuses to postpone the actual conveyance but at no time asserted her ownership of the property and upon each request agreed to reconvey upon the happening of some future event. Several of these conversations were had in the presence of disinterested witnesses who detailed them during the trial. In May, 1937, defendant for the first time claimed the property as her own and refused to convey it to plaintiff. This action was commenced on June 23, 1937. No *65 written evidence of the trust was signed by either Mrs. Robertson, defendant or plaintiff.
[1] Defendant urges two principal grounds for reversal of the judgment: That the trust is void because it was not evidenced by a writing (sec. 852, Civ. Code; Barr v. O'Donnell, 76 Cal. 469 [18 P. 429, 9 Am. St. Rep. 242]; Tillaux v. Tillaux, 115 Cal. 663 [47 P. 691]; Smith v. Mason, 122 Cal. 426 [55 P. 143]; Sheehan v. Sullivan, 126 Cal. 189 [58 P. 543]); and that plaintiff's cause of action is barred by the statute of limitations.
The cited authorities support the proposition that there can be no express trust created by a parol agreement. Those authorities are not controlling here because we are not concerned with an express but with a constructive trust. Such a trust is created by operation of law and may have its origin in parol and need not be supported by a writing. In a factually similar case the Supreme Court said:
"The subject of involuntary trusts, defined as a trust created by operation of law (sec. 2217), usually called constructive trusts, is again dealt with in section 2224 of the Civil Code. Its provisions show clearly that trusts by operation of law are left untouched by sections 847 and 857 and clauses one and two of section 852 (Civil Code). Section 2224 describes the involuntary trust comprehensively as follows: 'One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.' If the intention had been to prevent involuntary trusts where the violation of an express promise to convey constitutes the foundation, the fraud by which the thing is gained, the last clause should have been written: 'for the benefit of the person from whom it was gained.' As it stands, it means the person who would have had it, but for the fraud or other wrongful act whereby it was gained. In cases of involuntary trusts such as that here involved, the fraud consists of the betrayal of confidence by refusing to carry out the parol trust induced by that confidence. (Brison v. Brison, 90 Cal. [323] 335 [27 P. 186].) If the confidence by which the thing was gained had not been betrayed, the person to whom the promise ran, the one who was to receive it ultimately, would be the 'person who would *66 otherwise have had it.' It necessarily follows that the mere fact that the broken promise, constituting one of the elements whereby an involuntary trust is created, is a promise to convey land, either to the original owner or to a third person, is not a valid objection to the recognition and enforcement of such involuntary trust at the suit of the person who was intended by the donor to be the beneficiary. No conditions other than those stated in section 2224 are necessary. If those conditions exist, the involuntary trust arises, although the transaction was entirely oral and consequently void as an express trust under sections 852, 1091, and 1624 (Civil Code), and although the means of gaining the thing was the making of an oral or written promise to convey to some other person, or reconvey to the donor." (Lauricella v. Lauricella, 161 Cal. 61 [118 P. 430]. See, also, Hayne v. Hermann, 97 Cal. 259 [32 P. 171]; Taylor v. Morris, 163 Cal. 717 [127 P. 66]; Cooney v. Glynn, 157 Cal. 583 [108 P. 506]; Smith v. Lombard, 201 Cal. 518 [258 P. 55]; Allen v. Meyers, 5 Cal. 2d 311 [54 PaCal.2d 450]; Hillyer v. Hynes, 33 Cal. App. 506 [165 P. 718]; Taylor v. Bunnell, 77 Cal. App. 525 [247 P. 240].)
[2] While defendant contradicted much of the evidence which we have summarized, the conflict thereby created was resolved against her. There is ample evidence supporting the findings, and under the rules announced in the cases we have cited, that evidence supports the conclusion that defendant held the property under the terms of a constructive trust with plaintiff as the beneficiary and should execute that trust by conveying the property to him.
[3] There is no merit in the argument that plaintiff's cause of action is barred by the statute of limitations. The action was started in about one month from the time defendant repudiated her trust and for the first time claimed the property as her own, and well within five years from the time she acquired title to it. Under these circumstances the action was not barred by the statute of limitations. (Bradley Bros. v. Bradley, 20 Cal. App. 1 [127 P. 1044]; Hillyer v. Hynes, supra; Cohn v. Goodday, 191 Cal. 615 [217 P. 756].)
The judgment is affirmed. The attempted appeal from the order denying the motion for new trial is dismissed.
Barnard, P. J., and Griffin, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1271699/ | 199 Va. 589 (1957)
RAILWAY EXPRESS AGENCY, INCORPORATED
v.
COMMONWEALTH OF VIRGINIA.
Record No. 4742.
Supreme Court of Virginia.
December 2, 1957.
Thomas B. Gay (Robert J. Fletcher; William H. Waldrop, Jr.; H. Merrill Pasco; Hunton, Williams, Gay, Moore & Powell, on brief), for the appellant.
Present, All the Justices.
1. Appellant Delaware corporation conducted an exclusively interstate business in Virginia, having been denied a franchise to conduct intrastate business. When appellant failed to supply information as to what part of its receipts for 1956 were derived from business passing through, into, or out of Virginia, the Corporation Commission determined this amount to be $6,499,519 and the franchise tax due under Code 1950, section 58-547 to be $139,739. Appellant sought refund of this tax on the ground, first, that section 170 of the Constitution, which permits the levy of a state franchise tax in lieu of taxes on other property of transportation companies, applies only to domestic corporations. This contention was held to be without merit, for no such limitation is expressed in the section or is properly inferred in view of the legislature's general and plenary powers.
2. Nor was appellant's further contention acceptable; that it, as a company doing only an interstate business, was not covered by the terms of section 58-546, levying the tax permitted by section 170 of the Constitution.
3. The method used by the Commission in computing the tax (after appellant's failure to supply the required information) was authorized and legal.
4. The tax imposed under section 58-546 was not an invalid tax on the privilege of conducting an interstate business, but a tax on the company's intangible property; which if not thus taxed would under the existing statutory scheme, and contrary to constitutional mandate, go untaxed.
5. The Commission committed no error in failing to make a valuation of the going concern value of appellant's tangible property in Virginia instead of assessing on the basis of the gross receipts calculated to have been derived from business in Virginia. The burden was on appellant to show how and to what extent the assessment made by the Commission was excessive.
6. The Commission was warranted in classifying appellant's automotive equipment and trucks as rolling stock, local taxation of which under section 58-546 was replaced by the franchise tax.
7. It was not reversible error for the Commission to reject certain offered exhibits whose materiality to the questions at issue was remote.
Appeal from an order of the State Corporation Commission. The opinion states the case.
Frederick T. Gray, Special Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General; Williams, Mullen, Pollard & Rogers, on brief), for the Commonwealth.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
This is an appeal from an order of the State Corporation Commission which denied the application of the appellant made under | 58-672 of the Code for correction and refund of the franchise tax assessed against it by the Commission for the year 1956, pursuant to amended Article 4, Chapter 12, Title 58, | 58-546 through | 58-555 of the Code, as amended by Acts 1956, ch. 612, p. 964. The Code sections material to this controversy appear below. [1] In its opinion *591 filed in support of its order, as required by | 156(f) of the Virginia Constitution, the Commission held that the tax imposed by these sections was a property tax on intangible property of the appellant, in lieu of other property taxes, and not prohibited by the United States Constitution.
"| 58-547. Amount of franchise tax. -- The franchise tax shall be equal to two and three-twentieths per cent of the gross receipts derived from operations within this State. If its operations are partly within and partly without this State, the gross receipts derived from operations within this State shall be deemed to be all receipts on business beginning and ending within this State and all receipts derived from the transportation within this State of express transported through, into, or out of this State."
"| 58-548. Annual report. -- Each express company shall report annually on or before the fifteenth day of April to the Commission on forms furnished by the Commission the facts called for on the forms to enable the Commission to assess the annual franchise tax and the value and location of its real estate and tangible personal property other than rolling stock belonging to it as of the beginning of the first day of January preceding."
"| 58-549. Assessments by Commission. -- The Commission shall, after thirty days' notice previously given by it to the company, assess the franchise tax and the value of the real estate and tangible personal property other than rolling stock. Should any company fail to make the report required by this article on or before the fifteenth day of April the Commission shall make the assessments upon the best and most reliable information that it can procure. In the execution of such duty the Commission shall be empowered to take testimony, summon and compel the attendance of witnesses and send for persons and papers."
"| 58-553. No other taxes on express companies; exceptions. -- The taxes imposed by this article and authorized to be imposed shall be in lieu of all other taxes and of all licenses, State, county and municipal, upon such companies, except that nothing herein contained shall exempt the companies from the payment of any motor vehicle license or any motor vehicle fuel tax, heretofore or hereafter imposed by law, or the annual registration fee."
In its Annual Report for 1956, required by the Commission pursuant to | 58-548, the appellant, in response to the inquiry on the form furnished it by the Commission as to what receipts were by it "earned in Virginia on business passing through, into or out of this State," answered "None", and attached a statement saying, in part, "This Company does solely an interstate express business in Virginia and has no way of determining what part of the receipts derived by it from such business was earned "in business passing through, into or out of this State'.""
The Commission thereupon, as directed by | 58-549, proceeded to "make the assessments upon the best and most reliable information that it can procure". By a method of calculation shown in the record it determined the appellant's gross receipts from business passing *592 through, into or out of Virginia by computing on a mileage basis the proportion which its receipts from express transported by it over six railroads (omitting ten others because de minimis
) and five airlines operating in Virginia bore to the total receipts from express transported by the appellant over the entire lines of these carriers. The amount so ascertained as gross receipts earned in Virginia was $6,499,519, to which the 2.15% rate fixed by | 58-547 was applied, resulting in the tax of $139,739.66 assessed by the Commission against the appellant, of which it now complains.
The appellant, which will sometimes be referred to herein as the Delaware Company, was incorporated in Delaware in 1928, and does an express business in all of the States of the Union, interstate in all, and intrastate in all except Virginia. Because of the provisions of | 163 of the Virginia Constitution it was denied a certificate to engage in intrastate express business in this State. [2] The Delaware Company has a contract with 68 railroads which own its entire capital stock, and 109 non-stockowning railroads which gives it the exclusive right and privilege to conduct express transportation business over their lines, including those operating in Virginia.
In 1931 the Delaware Company caused to be chartered and organized under the laws of Virginia the Railway Express Agency, Incorporated, of Virginia, for the purpose of conducting a purely intrastate express business in Virginia. The Delaware Company owns all the stock of the Virginia Company and in 1932 entered into a contract with it by which the Virginia Company agreed to conduct the intrastate business in Virginia on the lines of the railroads named by the Delaware Company, and to perform the obligations of the latter company with its contracting carriers concerning intrastate operations in Virginia. The contract provided for joint use by the two companies of real and personal property, equipment and employees.
On the hearing before the Commission it was stipulated that the Delaware Company "conducts an express business in interstate commerce and intrastate commerce in each of the states of the United States with the exception of Virginia, in which it conducts only an interstate business," and that the Virginia Company "conducts solely an intrastate business in the State of Virginia".
Under its assignments of error on this appeal the appellant contends: *593 (1) that | 170 of the Virginia Constitution does not authorize the imposition of this tax; that | 58-546 does not impose it; that | 58-547 provides no adequate method for determining gross receipts from interstate commerce and does not authorize the method employed by the Commission; (2) that the tax imposed is not a property tax as held by the Commission, but a tax levied upon the privilege of doing an interstate business in Virginia and hence invalid; (3) that the Commission should not have classified appellant's automotive equipment and trucks as rolling stock; and (4) that the Commission erred in rejecting as immaterial some of appellant's offered exhibits.
First. Section 170 of the Virginia Constitution provides that the General Assembly "may impose State franchise taxes," and may "make the same in lieu of taxes upon other property, in whole or in part, of a transportation, industrial, or commercial corporation". Appellant's argument is that this should be construed to mean only domestic transportation corporations and not applied to the appellant which as a foreign corporation has been denied authority to do intrastate express business in Virginia. We do not agree. Section 170 authorizes the imposition of a franchise tax on transportation companies. The appellant is a transportation company, so defined by | 153 of the Constitution. It owns property and does an interstate express business in Virginia. Section 158 of the Constitution says that all property, except as in the Constitution provided, shall be taxed. Certainly no exception of foreign transportation companies is in terms made in | 170 nor do we think that such an exception can be fairly inferred. Limitation on the power of the legislature to impose the tax would have to proceed from a prohibition in the Constitution, not from absence of conferred authority. The powers of the legislature are plenary except as restrained by the Constitution. 4 Mich. Jur., Constitutional Law, | 31, p. 114. We cannot say that our constitutional and statutory provisions were not intended to and do not apply to the appellant, as was said in State Plantation Pipe Line Co., 265 Ala. 69, 89 So. 2d 549, to be true of the provisions of the Alabama Constitution and laws under former decisions to the effect that a foreign corporation doing an exclusively interstate business in Alabama does not "do any business in this state." [3]
Section 58-546 provides that "Each express company" doing business in this State shall pay a franchise tax in lieu of taxes on other intangible property and in lieu of property taxes on its rolling stock. Appellant is an express company doing business, interstate at least, in this State. Section 58-547 fixes the rate and provides that where operations are partly within and partly without the State, the gross receipts from operations in the State shall be all receipts on business beginning and ending within the State and all receipts from the transportation within this State of express transported through, into, or out of this State. Appellant argues that in order for an express company to be subject to these provisions it must do either an intrastate business, or both an intrastate and interstate business, and since it does only an interstate business the statute does not apply to it. We are not impressed by the argument. Section 58-546 describes the corporations which must pay the tax, and | 58-547 only fixes the rate and provides how the gross receipts to which it applies shall be identified. We detect no purpose in the statute to exempt the appellant because it earns only one kind of the receipts referred to.
Section 58-547 does not undertake to prescribe the method of ascertaining the amount of these gross receipts. Sections 58-548 and 58-549 do that. The primary method is for the express company to report what these receipts are. Nobody else could as easily obtain that information. The secondary method is not needed unless the express company fails to furnish the information, which happened here. In that event the Commission is required to make the assessment on the best and most reliable information it can get. It did that by the method above stated. It is a method frequently resorted to in the fields of Federal and State taxation and doubtless necessary in the administration of tax laws. As a method it is obviously *595 authorized and seems generally considered legal.
Second. Is the tax imposed by amended sections 58-546 ff. a property tax as held by the Commission and contended by the Commonwealth, or is it only a tax on the privilege of conducting an interstate express business in Virginia as contended by the appellant?
In the cases of Commonwealth Baltimore Steam Packet Co. and Commonwealth Norfolk, Baltimore and Carolina Line, Inc., 193 Va. 55, 68 S.E.2d 137, we held that the gross receipts tax imposed on the steamship companies pursuant to what was then | 58-575 of the Code was a property tax. We so held although the statutes there involved denominated the tax a license tax levied for the privilege of doing business in this State, and in addition to the annual registration fee and property tax levied by other statutes. We there reviewed a number of Supreme Court decisions and concluded therefrom that the tax so assessed was not invalid as being a tax upon the privilege of carrying on an exclusively interstate business, but one fairly apportioned to the business carried on within the State, and was in its derivation and substance a tax on an element of value of the physical properties not otherwise taxed. Appeals from that decision were dismissed by the Supreme Court. Baltimore Steam Packet Co. Commonwealth, 343 U.S. 923, 72 S. Ct. 763, 96 L.ed. 1335; Norfolk, Baltimore and Carolina Line, Inc. Commonwealth, 343 U.S. 923, 72 S. Ct. 764, 96 L.ed. 1335.
Afterwards, in Railway Express Agency, Inc. Commonwealth, 347 U.S. 359, 74 S. Ct. 558, 98 L.ed. 757, the Supreme Court in a five to four decision reversed the holding of this court, 194 Va. 757, 75 S.E.2d 61, that what was then | 58-547 of the Code, which imposed what that statute termed a license tax "for the privilege of doing business in this State, in addition to the annual registration fee and the property tax as herein provided," to be measured by the gross receipts from operations in this State, was a constitutionally valid property tax measured by the gross receipts from business done in Virginia.
The Supreme Court, in the majority opinion, said that the legislature had given a "trinity of characterizations to the tax," naming it "an annual license tax," "in addition to" the property tax levied by what was then the preceding | 58-546, and laid "for the privilege of doing business in this State," and "we can only regard this tax as being in fact and effect just what the Legislature said it was -- a privilege tax, and one that cannot be applied to an exclusively interstate business". *596
The dissenting Justices were of the opinion that the name given the tax by this court "meshes with the state's taxing scheme," and was "perfectly consistent with its earlier expressions on the subject". The majority opinion said the court had sustained and would sustain the power of the State to tax, without discrimination, all property within its jurisdiction, and to include in its assessment "or to assess separately" the value added by the property's assemblage into a going business, "even if that business be solely interstate commerce".
In the present case we are dealing with statutes different from those before the Supreme Court in the former Railway Express Agency case. Present | 58-546 imposes only "a franchise tax which shall be in lieu of taxes upon all of its other intangible property and in lieu of property taxes on its rolling stock" (emphasis added). Section 58-547 provides that this franchise tax shall be equal to 2.15% of gross receipts derived from operations in this State. Section 58-551 permits the locality to impose a tax on real estate and tangible personal property other than rolling stock on the basis of the assessment thereof made by the Commission for that purpose and at the same rate as imposed by the locality on the same kind of property. Section 58-553 provides that the taxes so imposed and authorized shall be in lieu of all other taxes and of all licenses on such companies, except the motor vehicle license or fuel tax prescribed by law or the annual registration fee.
As we pointed out in the Steamship cases, supra, our constitutional and statutory provisions furnish a uniform plan for the assessment and taxation of all public service corporations, providing for the imposition by local authorities of ad valorem taxes on tangible property on the basis of valuation fixed by the State Corporation Commission, and the imposition of a franchise tax measured by gross receipts for the support of the State government; and that in making the assessments of the tangible property for local taxation, the Commission must exclude such franchise value as may be inherent therein, with the result that only the "bare bones" value of such property is taxed by the localities, leaving the intangible or "going concern" value to be taxed by the State for the protection and services rendered by it. The statutes now under consideration fit into and "mesh" with that scheme, and make plain, we think, the legislative intent, in keeping with the constitutional intent from which the legislation proceeded, that the franchise tax now imposed is in fact and effect a tax on intangible property of the company, of great *597 value, which except for this franchise tax would be immune from the payment of any tax.
As stated by the Commission in its opinion, it has been the policy of Virginia since the adoption of its present Constitution in 1902 to impose franchise taxes measured by gross receipts instead of income taxes on public utilities. The Constitution itself (| 177) imposed the tax on railroads and the tax on other companies was left to the legislature. When the proposed system was submitted to the Convention which formulated the Constitution, its Committee on Taxation and Finance reported in part:
"* * * The system which we hope to see adopted in this State would be a system of franchise taxes by which all the property and capital of corporation would be gotten at; * * *. * * * If that be done, if you get at all of the property, its personal property and its real estate, its tangible, invisible property, like franchises, then you have gotten at every dollar of value that the corporation owns. When you have arrived at that, you ought not to put another tax on the same property. We are suggesting a system of taxation by which the entire property of a corporation would be gotten at and that being arrived at, we say it would not be fair to tax the stock of the companies in the hands of the individual owner. * * *" Debates, Constitutional Convention, 1901-2, Vol. II, p. 2857.
Consonant with the Committee's purpose, | 170 of the Constitution adopted by the Convention provides that the General Assembly "may impose State franchise taxes, and in imposing a franchise tax may, in its discretion, make the same in lieu of taxes upon other property". (Emphasis added.)
The fact that a franchise tax based on the gross receipts of a corporation is a tax on its intangible property was not created by the framers of the Virginia Constitution. More than six years before that Constitution was adopted the Supreme Court of the United States had held to that effect in the case of Adams Express Co. Ohio, 165 U.S. 194, 17 S. Ct. 305, 41 L.ed. 683, and (on petition to rehear) 166 U.S. 185, 17 S. Ct. 604, 41 L.ed 965. The Ohio statute required express companies to file a return and to include therein "a statement of their entire gross receipts, from whatever source derived," and in taxing the value of the property in the State the assessing board was directed to be guided "by the value of the entire capital stock of said companies, and such other evidence and rules" as would lead to the true *598 value of their property within the State, in proportion to the entire property of the companies, as determined by the value of the capital stock thereof and the other evidence and rules. The assessing board fixed the value of the property of Adams Express Company to be taxed in Ohio at $533,095.80. That company had reported the value of its real estate in Ohio at $25,170 and its personal property, including moneys and credits, at $42,065; its gross receipts from all sources within the State at $282,181 and its 120,000 shares at $140 to $150 a share. The company contended that the market price of its shares afforded no reasonable basis for estimating the value of its property and that the scheme of taxation was illegal, was a tax on interstate commerce and a denial of Due Process and Equal Protection.
The court held that the value of the property of the company was not limited to its tangible items, but included its "unit of use and management," and that its horses, wagons, and furniture, its contracts for transportation facilities and the capital necessary to carry on the business, whether represented in tangible or intangible property in Ohio, "possessed a value in combination and from use in connection with the property and capital elsewhere, which could as rightfully be recognized in the assessment for taxation in the instance of these companies as the others," referring to railroad, telegraph and sleeping car companies. The court said:
"* * * The taxation is essentially a property tax, and, as such, not an interference with interstate commerce."
In the opinion denying a rehearing, 166 U.S. 185, 218-19, 17 S. Ct. 604, 605, 41 L.ed. 965, 977, the court said in reply to the contention of the express companies that they had in the State only certain tangible personal property which must be valued as other like property and upon such value alone the assessment must be made:
"But this contention practically ignores the existence of intangible property, or at least denies its liability for taxation. * * * Now whenever separate articles of tangible property are joined together, not simply by a unity of ownership, but in a unity of use, there is not infrequently developed a property, intangible though it may be, which in value exceeds the aggregate of the value of the separate pieces of tangible property. Upon what theory of substantial right can it be adjudged that the value of this intangible property must be excluded from the tax lists, and the only property placed thereon the separate pieces of tangible property?"
Again it was said: "If a statute, properly construed, contemplates *599 only the taxation of horses and wagons, then those belonging to an express company can be taxed at no higher value than those belonging to a farmer. But if the state comprehends all property in its scheme of taxation, then the goodwill of an organized and established industry must be recognized as a thing of value." 166 U.S. at 221, 17 S.Ct. at 606, 41 L.ed. at 978.
"* * * Do not these intangible properties -- these franchises to do -- exercised in connection with the tangible property which it holds, create a substantive matter of taxation to be asserted by every state in which that tangible property is found?" 166 U.S. at 225, 17 S.Ct. at 608, 41 L.ed. at 979.
Great Northern Ry. Co. Minnesota, 278 U.S. 503, 49 S. Ct. 191, 73 L.ed. 477, involved a Minnesota statute which imposed a tax, measured by gross receipts, upon all railroad companies, "in lieu of all taxes upon all of their property within the state". Of it the court said: "The tax thus levied is a property tax based on the gross earnings fairly attributable to the property of the railway company within the state." See also Maine Grand Trunk Ry. Co., 142 U.S. 217, 12 S. Ct. 121, 35 L.ed. 994; United States Exp. Co. Minnesota, 223 U.S. 335, 32 S. Ct. 211, 56 L.ed. 459; Western Live Stock Bureau of Revenue, 303 U.S. 250, 58 S. Ct. 546, 82 L.ed. 823, 115 A.L.R. 944;
Canton R. Co. Rogan, 340 U.S. 511, 71 S. Ct. 447, 95 L.ed. 488.
The appellant contends that if the franchise tax be considered a property tax the amount of it is out of proportion to its property in Virginia and reflects the value of property outside of Virginia, and it complains that the Commission made no dollars and cents valuation of the intangible or going concern value of the company's property. The appellant says that it reported the value of its real and tangible personal property in Virginia for 1956 at $458,565.16, and instead of determining the going concern value of that property, the Commission assessed a franchise tax on its gross receipts calculated to have been derived from business in this State.
It is to be remembered, however, that the appellant owns under its contract the exclusive express privileges on 177 railroads of the country, as well as on truck lines, airlines and steamboat lines. From these contract privileges it earned in 1955, according to its Annual Report to the Commission, in gross operating revenues the sum of $387,854,479, and paid to the carriers the net sum of $146,522,248. Part of this operating revenues was earned in Virginia. These *600 earnings added a large intangible value to the tangible value of the separate items of tangible properties in Virginia which were valued by the appellant at $458,565.16. Based on the proportion of Virginia mileage to system mileage, as ascertained by the Commission, these express privileges on six railroads and five airlines in Virginia earned $6,499,519 in 1955. Said the Supreme Court in Adams Express Co. Ohio, supra:
"The first question to be considered therefore is whether there is belonging to these express companies intangible property -- property differing from the tangible property -- a property created by either the combined use or the manner of use of the separate articles of tangible property, or the grant or acquisition of franchises or privileges, or all together. To say that there can be no such intangible property, that it is something of no value, is to insult the common intelligence of every man." 166 U.S. at 219-20, 17 S.Ct. at 605-6, 41 L.ed. at 977.
The going concern value of a business, as said by the Commission in its opinion, "depends on the value of the business as a going concern and not on the value of the land, machinery, equipment and tools used in the business." And it added:
"In the case before us the Delaware Company would have the same business it has now even if it did not own a penny's worth of tangible property in Virginia. The Delaware Company owns all the stock of the Virginia Company. The two companies do all their business in the same places in the same vehicles with the same employees. If the parent company should transfer title to all the property used in the business to the local company, it would own no tangible property in Virginia but the going concern value of the business would not be affected in any way. The Railway Express Agency is the only big business in America that has an absolute nationwide monopoly. Counsel says that this vast monopoly has no going concern value because all its earnings go to the railroads who own it. Railway Express Agency was incorporated by the railroads and owns the monopoly as a separate entity, and it is taxable as separate entity like any other corporation. Such a monopoly built up over the years by the expenditure of millions of dollars is not the sort of property that is bought and sold in the market place, but it is nevertheless a thing of great value. It is a unique kind of property, but the fact that it is unique is not a reason for holding it to be exempt from taxation. The fact that the value of that unique property *601 cannot be appraised in dollars and cents like a piece of real estate is a reason for measuring the tax by gross receipts."
The legislature, in the statutes set out above, provided that the tax should be equal to 2.15% of the gross receipts from operations in this State and in lieu of all other taxes on intangible property and in lieu of property tax on rolling stock. For years prior to 1954 the appellant reported to the Commission the amount of its gross receipts or agreed to the amount fixed by the Commission. For 1956 it reported, as stated, that it had no way of determining its gross receipts from interstate business in Virginia and that it kept no books from which it could ascertain such gross receipts and the cost of doing so would have been prohibitive, but without any supporting evidence to explain how much and why. The Commission thereupon ascertained in the best way it could the amount of these gross receipts to be $6,499,519. If that was too much and if there was included in the calculation, as appellant contends, the value of property outside of Virginia, it was the duty of the appellant to present evidence to show what reduction should be made, or to have explored the possibility of an agreement about it as in prior years ( Railway Express Agency, Inc. Commonwealth, 194 Va. 757, 75 S.E.2d 61).
There is no evidence in the record as to the relation between the Company's property and its revenues in other States. Code | 58-672 and | 58-1122 provide ample means for correcting excessive assessments. Clearly the burden was on the appellant to produce evidence to show in what way and to what extent the assessment made by the Commission was too much. It did not do so but centered its attack on the constitutionality of the taxing statute. We take the finding of value by the Commission as prima facie correct, Constitution | 156(f). It is not incredible that a property which produced gross earnings of $6,000,000 in one year would have a value of that much.
In Adams Express Co. Ohio, supra, the court said it was suggested that the company might have "bonds, stocks, or other investments which produce a part of the value of its capital stock, and which have a special situs in other states or are exempt from taxation. If it has, let it show the fact. * * * It is called upon to make return of its property, and if its return admits that it is possessed of property of a certain value, and does not disclose anything to show that any portion thereof is not subject to taxation, it cannot complain if the state treats its property as all taxable." 166 U.S. at 222-3, 17 S.Ct. at 607, 41 L.ed. at 978. *602
Third. Appellant contends that the Commission, contrary to its former practice, classified its automotive equipment and trucks as rolling stock rather than as tangible personal property, thereby making the franchise tax displace a property tax on a larger value of the company's properties. As stated, | 58-546 provides that the franchise tax is "in lieu of property taxes on its rolling stock" as well as in lieu of taxes on all intangibles. The appellant argues that its automotive equipment and trucks should still be treated by the Commission as tangible personal property as in former years, to be taxed by the localities. Section 171 of the Constitution provides that tangible personal property "except the rolling stock of public service corporations" shall be subject to local taxation only. The result of the Commission's action is to relieve appellant's automotive equipment and trucks of local taxation and also of State taxation except as their value is reflected in the franchise tax. This value is stated to be $262,719.63.
The Commonwealth says that this question is collateral to the issue here because this is a statutory proceeding to correct an erroneous assessment, not a proceeding to compel an assessment to be made. This is true, but considering the point on its merits we think the Commission was warranted if not required by the amended statutes to classify the automotive equipment and trucks as rolling stock. Under the Constitution, | 171, supra, the legislature has the right to impose a State tax on rolling stock. East Coast Freight Lines Richmond, 194 Va. 517, 74 S.E.2d 283. It seems logical to classify the automotive equipment and trucks used by the appellant in transporting express as rolling stock. The legislature so classified similar property in Article 11, Chapter 12, Title 58 of the Code, which requires the Commission to assess the rolling stock of motor vehicle carriers, "which shall include all busses, trucks tractor trucks, trailers and semi-trailers and all other equipment which it is reasonably proper to class as rolling stock * * *." Having the right to tax rolling stock, the legislature clearly directed in | 58-546 that this type of tangible property should be relieved of any other taxation than that imposed by the franchise tax to be paid by the company.
Fourth. Appellant's remaining contention is that the Commission erred in rejecting as immaterial its Exhibits 1 and 5 and so much of 3, 4 and 6 as did not relate to the year 1956.
Exhibit No. 1 was appellant's agreement with the railroads, offered to show that appellant's gross receipts were paid to the railroads *603 after paying operating expenses and maintenance charges. Its annual report filed in the evidence showed that. No. 6 was a statement of the assessments and taxes of the Virginia Company, not the appellant, on its tangible and intangible property involved in its intrastate business from 1933 through 1956. No. 3 showed the gross receipts of the appellant from 1931 through 1956, except for 1954 and 1955, as determined by the Commission, together with other intangibles and tangible property and the tax imposed thereon for those years; No. 4, its tangible property, including automotive equipment and trucks, and the local taxes paid thereon for the years 1931-1956; No. 5, the number, cost and market value of its automotive equipment in the cities of the State for 1956. Appellant says these last three were material to its contention, dealt with in "Third" above, that its automotive equipment and trucks should have been assessed in 1956 as tangible property and not as rolling stock.
We agree with the Commission that these offered exhibits were immaterial on the issue to which they were claimed to relate, i.e., whether the franchise tax for 1956 imposed by amended | 58-546 was unconstitutional. While the exhibits might well have been received as information, and are in the record before us and have been referred to in argument so far as considered useful, yet any materiality to the questions raised is remote if at all existent, and it was not reversible error to refuse them.
For the reasons stated we hold that the franchise tax in question is a property tax, not prohibited by the Commerce Clause or other clauses of the Constitution of the United States, and validly imposed by the amended sections of the Code referred to. The order of the State Corporation Commission appealed from is accordingly
Affirmed.
NOTES
[1] "| 58-546. Franchise tax on express companies. -- Each express company doing business in this State shall, on or before the first day of June of each year, pay to the State a franchise tax which shall be in lieu of taxes upon all of its other intangible property and in lieu of property taxes on its rolling stock."
[2] Railway Express Agency, Inc. Commonwealth, 153 Va. 498, 150 S.E. 419, aff'd, 282 U.S. 440, 51 S. Ct. 201, 75 L.ed. 450.
[3] Commonwealth Appalachian Elec. Power Co., 193 Va. 37, 68 S.E.2d 122, not referred to in argument by either party in the present case, does not control decision here. That case involved the interpretation of | 58-602 of the Code imposing a tax on the money of "every corporation doing in this State" an electric utility business. The question was whether the legislature meant to tax the money of such corporation on deposit in another State and derived solely from and used in connection with operations in such other State. It was held that in view of the legislative history of the statute; the administrative practice, long undisturbed by the legislature, of not taxing such money; and the legislative intent expressed in cognate statutes, particularly the statute limiting the tax on money earned by railroad companies to the part earned in this State, it was not the purpose of | 58-602 to tax money earned and kept in another State. The sentence in that opinion, "Since section 163 of our Constitution forbids a foreign corporation to do a public service business in this State, the statute looks only to Virginia corporations which conduct a utility business in Virginia", is to be taken in its setting and confined to the statute there construed. It does not serve to change the meaning of the clear language and purpose of the Code sections now under review. *594 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1327532/ | 213 Ga. 713 (1957)
101 S.E.2d 197
STOCKHAM VALVES & FITTINGS, INC.,
v.
WILLIAMS, State Revenue Commissioner.
19838.
Supreme Court of Georgia.
Argued September 12, 1957.
Decided November 8, 1957.
Rehearing Denied November 26, 1957.
*718 John Izard, Jr., William K. Meadow, Spalding, Sibley, Troutman, Meadow & Smith, White, Bradley, Arant, All & Rose, for plaintiff in error.
Sutherland, Asbill & Brennan, Crenshaw, Hansell, Ware & Brandon, Moise, Post & Gardner, Arnall, Golden & Gregory, Smith, Kilpatrick, Cody, Rogers & McClatchey, Bird & Howell, Alston, Sibley, Miller, Spann & Shackelford, Jones, Williams, Dorsey & Kane, Powell, Goldstein, Frazer & Murphy, for parties at interest not parties to record.
Eugene Cook, Attorney-General, William L. Norton, Jr., Assistant Attorney-General, Ben F. Johnson, Jr., Deputy Assistant Attorney-General, contra.
HAWKINS, Justice.
(After stating the foregoing facts.) That the decision of the questions here presented is not without difficulty, is pointed out by the Supreme Court of the United States in the recent decision in Freeman v. Hewit, 329 U.S. 249, 252 (67 Sup. Ct. 274, 91 L. ed. 265), where it is said: "The history of this problem is spread over hundreds of volumes of our Reports. To attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. Suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts." In Leloup v. Port of Mobile, 127 U.S. 640, 648 (8 Sup. Ct. 1380, 32 L. ed. 311), the Supreme Court stated the fundamental limitations of the commerce clause on State taxation as follows: "In our opinion such a construction of the Constitution leads to the conclusion that no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, and the reason is that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to Congress." In Forrester v. Culpepper, 194 Ga. 744, 748 (22 S.E.2d 595), this court quoted with approval from Interstate Bond Co. v. State Revenue Com., *719 50 Ga. App. 744, 751 (179 S.E. 559), the following: "The general view is that an income tax is not a property tax, but more in the nature of an excise tax." In Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 218 (45 Sup. Ct. 477, 69 L. ed. 916, 44 A. L. R. 1219), a Massachusetts excise tax, based on the proportion of a company's assets employed in the State and the proportion of its net income derived in the State, was held unconstitutional as applied to a taxpayer engaged exclusively in interstate commerce. The taxpayer maintained a branch sales office in Massachusetts, which was used as headquarters by its traveling salesmen. It owned office equipment there, and its local manager handled petty cash items for the company through a bank account maintained in his own name. The court found that all of the taxpayer's activities were an integral part of interstate commerce, and therefore held the excise unconstitutional. The court said: "The local business of a foreign corporation may support an excise measured in any reasonable way, if neither interstate commerce nor property beyond the state is taxed. Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, approved such an excise measured by income reasonably attributed to intrastate business; but nothing there said was intended to modify well established principles. It must be read with the essential facts in mind. Local business was a sufficient basis for the excise, and there was no taxation of interstate commerce or property beyond the state." In Speetor Motor Service v. O'Connor, 340 U.S. 602, 609 (71 Sup. Ct. 508, 95 L. ed. 573), it is said: "This Court heretofore has struck down, under the Commerce Clause, state taxes upon the privilege of carrying on a business that was exclusively interstate in character. The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state."
From the foregoing statement of facts it appears without dispute that the plaintiff was engaged exclusively in interstate commerce in so far as its activities in Georgia are concerned; and in Atlantic Lumber Co. v. Commissioner of Corporations and Taxation of Massachusetts, 298 U.S. 553, 555 (56 Sup. Ct. 887, 80 L. ed. 1328), it was held: "If appellant did nothing but transact interstate business, the tax would constitute a burden upon that commerce, and could not stand under the commerce clause of the Constitution."
*720 Counsel for the defendant contend that a tax on net income does not stand upon the same basis and is not the equivalent of a license, occupation, franchise, or privilege tax on interstate commerce; but, as previously pointed out, we have held that an income tax is in the nature of an excise tax, and in the footnote added to the dissenting opinion written by Mr. Justice Reed in Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 677 (69 Sup. Ct. 1264, 93 L. ed. 1613), it is said: "Since we perceive no difference for the purposes of this case between franchise, privilege, and excise taxes, insofar as they are exacted for the privilege of doing or the doing of interstate business, we have treated them as identical as far as their validity under the commerce clause is concerned. In Ozark and Anglo-Chilean Nitrate the taxes were called franchise taxes; in Alpha it was labeled an excise tax." In Dennison Mfg. Co. v. Wright, 156 Ga. 789 (3b) (120 S.E. 120), this court held: "Where a foreign corporation rents and maintains an office in this State, with a stock of samples and force of office employees and traveling sales-men, merely to obtain orders in this State and other States, subject to approval by its home office, for its goods to be shipped directly to its customers from its home State, such an arrangement is part of its interstate commerce, and not subject to a local excise tax."
We are also of the opinion that the income-tax statute here under consideration, as applied to the plaintiff, violates the due-process clause of the Federal Constitution. We take it that no one will question the fact that a State may not tax activities carried on outside its borders without violating this provision of the Constitution. The question in every such case is whether such a connection exists between a business and the taxing State as to permit the imposition of a general income tax on a portion of the net income of the business; and in Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (61 Sup. Ct. 246, 85 L. ed. 267), the Supreme Court said: "That test is whether property was taken without due process of law, or, if paraphrase we must, whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state. The simple but controlling question is whether the state has given anything for which it can ask return." See also Miller *721 Brothers Co. v. Maryland, 347 U.S. 340, 344 (74 Sup. Ct. 535, 98 L. ed. 744), where the foregoing rule was applied to facts quite similar to those in the instant case. There the court said: "The question here is whether this vendor, by its acts or course of dealing, has subjected itself to the taxing power of Maryland or whether it has afforded that State a jurisdiction or power to create this collector's liability." After referring to its previous decisions, that court said: "Our decisions are not always clear as to the grounds on which a tax is supported, especially where more than one exists; nor are all of our pronouncements during the experimental period of this type of taxation consistent or reconcilable. A few have been specifically overruled, while others no longer fully represent the present state of the law. But the course of decisions does reflect at least consistent adherence to one time-honored concept; that due process requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax."
This court, in Redwine v. Dan River Mills, 207 Ga. 381 (61 S.E.2d 771), held that activities more extensive than those carried on by the plaintiff did not constitute "doing business" within the meaning of the income-tax act then in effect; and in Suttles v. Owens-Illinois Glass Co., 206 Ga. 849 (59 S.E.2d 392), it was held that accounts growing out of similar activities in Georgia did not have a tax situs in Georgia. See also Norton Co. v. Department of Revenue of Illinois, 340 U.S. 534 (71 Sup. Ct. 377, 95 L. ed. 517).
We hold, therefore, that as applied to the plaintiff the Georgia Income Tax Act violates both the commerce and due-process clauses of the Federal Constitution, and the trial court erred in rendering judgment against the plaintiff. The cases mainly relied upon by the defendant, namely, U. S. Glue Co. v. Town of Oak Creek, 247 U.S. 321 (38 Sup. Ct. 499, 62 L. ed. 1135); Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113 (41 Sup. Ct. 45, 65 L. ed. 165); Atlantic Coast Line R. Co. v. Doughton, 262 U.S. 413 (43 Sup. Ct. 620, 67 L. ed. 1051); Memphis Natural Gas Co. v. Beeler, 315 U.S. 649 (62 Sup. Ct. 857, 86 L. ed. 1090); West Publishing Co. v. McColgan, 27 Cal. 2d 705 (166 P.2d 861), and others, are clearly distinguishable on their facts. In those cases the taxpayers were either residents *722 of the taxing State, or were carrying on within the State extensive interstate as well as interstate business, or else the statements therein made which would seem to conflict with the rulings here made were obiter. In Freeman v. Hewit, 329 U.S. 249, 255 (67 Sup. Ct. 274, 91 L. ed. 265), the Supreme Court of the United States recognized that the taxing power permitted by the U. S. Glue Company case, supra, was applicable only to residents of a State. It was said: "It [a State] can tax the privilege of residence in the State and measure the privilege by net income, including that derived from interstate commerce." The Underwood Typewriter decision, supra, was explained and limited in Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 218 (45 Sup. Ct. 477, 69 L. ed. 916, 44 A. L. R. 1219), where the court said: "The local business of a foreign corporation may support an excise measured in any income reasonable way, if neither interstate commerce nor property beyond the state is taxed. Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, approved such an excise measured by income reasonably attributed to intrastate business; but nothing there said was intended to modify well established principles." The dictum in the Beeler case, supra, was expressly disapproved as such by the Supreme Court in Spector Motor Service v. O'Connor, 340 U.S. 602, 609 (footnote) (71 Sup. Ct. 508, 95 L. ed. 573), in the following language: "Any suggestion in that opinion as to the possible validity of such a tax if applied to earnings derived wholly from interstate commerce is not essential to the decision in the case."
As already pointed out by the United States Supreme Court, its decisions dealing with the problem here presented are spread through hundreds of volumes of its reports, and all of its pronouncements are not consistent or reconcilable. To attempt to harmonize all that has been said, would neither clarify what has gone before nor guide the future, and to undertake here to point out the distinguishing features of each of the numerous decisions would only consume unnecessary time and space.
Judgment reversed. All the Justices concur, except Head., J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913930/ | 981 A.2d 909 (2009)
ALTIERY
v.
ALTIERY.
No. 1679 MDA 2008.
Superior Court of Pennsylvania.
July 28, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/685929/ | 43 F.3d 1466
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Johnny Frank GODFREY, Petitioner Appellant,v.STATE of North Carolina; Buncombe County, North Carolina,Respondents Appellees.
No. 94-6735.
United States Court of Appeals, Fourth Circuit.
Submitted November 17, 1994.Decided December 13, 1994.
Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Richard L. Voorhees, Chief District Judge. (CA-94-31-1)
Johnny Frank Godfrey, Appellant pro se. Clarence Joe DelForge, III, Office of the Atty. Gen. of North Carolina, Raleigh, NC; Keith Spurling Snyder, Buncombe County Attorney's Office, Asheville, NC, for Appellees.
Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Johnny F. Godfrey appeals the dismissal of his 28 U.S.C. Sec. 2241 (1988) petition. The case was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1988). The magistrate judge recommended dismissal of the petition and advised Godfrey that failure to file timely objections to this recommendation could result in waiver of appellate review of a district court order based upon the recommendation. Despite this warning, Godfrey failed to timely object to the magistrate judge's recommendation. The district court adopted the report and recommendation of the magistrate judge and dismissed the action.
2
The timely filing of objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Godfrey has waived appellate review by failing to file timely objections after receiving proper notice. Accordingly, we deny a certificate of probable cause to appeal and dismiss. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
DISMISSED | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2434172/ | 968 N.E.2d 221 (2008)
383 Ill. App. 3d 1151
360 Ill. Dec. 142
PEOPLE
v.
MARTINEZ.
No. 2-06-1106.
Appellate Court of Illinois, Second District.
August 13, 2008.
Aff'd as mod. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913945/ | 981 A.2d 312 (2009)
COM.
v.
GRAY, H.
No. 315 WDA 2008.
Superior Court of Pennsylvania.
June 9, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2568484/ | 110 F.Supp.2d 514 (2000)
In re the State of TEXAS.
No. 5:00 CV 118.
United States District Court, E.D. Texas, Texarkana Division.
August 15, 2000.
*515 William Andrew Taylor, Attorney General Office, Austin, TX, for State of Texas.
David Grant Kaiser, Kaiser & Morrison, PC, Houston, TX, Michael E. Tigar, Jane Blanksteen Tigar, Tigar Law Firm, Washington, DC, for Real Parties, Real Parties in Interest including Walter Umphrey, John O'Quinn, John Eddie Williams, Wayne Reaud and Harold Nix.
MEMORANDUM OPINION AND ORDER
FOLSOM, District Judge.
Before the Court is the State of Texas's (the "State") "Emergency Motion to Remand," (Dkt. No. 16). The State argues that this Court lacks jurisdiction over a state-court proceeding initiated to investigate the conduct of several private attorneys. After consideration, the Court concludes that it does have jurisdiction over the instant proceeding. The State's motion to remand is therefore denied.
BACKGROUND
I
The genesis of this matter is a March 22, 1996 agreement between then-Texas attorney general Dan Morales and several private attorneys (hereinafter "Private Counsel"), which called for the attorneys to represent the State in its suit against the tobacco industry. Specifically, the agreement titled the Outside Counsel Agreement or "OCA" required Private Counsel to advance all costs and expenses (up to $10 million) associated with prosecuting the suit. (See No. 5:96-CV-91, Dkt. No. 1853, Ex. A(OCA), at 1.) The OCA provided that Private Counsel were entitled to a 15% share of the State's total recovery plus reimbursement for expenses. (OCA, Ex. B, at 5, ¶¶ 1 & 3.) The OCA further provided that Private Counsel were prohibited from undertaking any work "which would create a conflict of interest for Counsel or the Attorney General ....[and that] Counsel [] agree to inform their clients of any case involving a potential conflict." (OCA at 1, ¶ 4.)
On March 26, 1996, Private Counsel, on behalf of the State, filed suit in this Court against the tobacco industry. See Texas v. American Tobacco Co., No. 5:96-CV-91 (E.D.Tex.)(the "tobacco litigation"). During the 22 months that followed, the tobacco litigation generated nineteen hundred docket entries, including thousands of pages of briefing. Approximately 23 million documents were produced, hundreds of depositions were taken, 50,000 exhibits were listed, and 1,500 witnesses were designated. Four hundred seventy-two motions were filed and 21 hearings were conducted. Four hundred fifty hours or about six months were allotted for trial of the case.
In late 1997, the week before jury selection was scheduled to begin, and with a nationwide tobacco settlement in the works that threatened to limit the State's recovery, the State and the industry achieved a settlement. The settlement called for the State to dismiss its claims against the tobacco industry in exchange for $15.3 billion. The terms of the settlement were memorialized in the Comprehensive Settlement and Release ("CSA"). Finalization of the CSA was made contingent upon Court approval. On January 22, 2000, the Court entered final judgment in the tobacco litigation and adopted and incorporated the CSA as an enforceable order. (See Final Judgment, 5:96-CV-91, Dkt. No. 1866, Jan. 22, 1998, at 1-2.) The approval order states:
It is [] ordered that this Court shall have exclusive jurisdiction over the provisions of the Comprehensive Settlement *516 Agreement and Release, this Order[,] and the Final Judgment. All persons in privity with the parties, including all persons represented by the parties, who seek to raise any objections or challenges in any forum to any provision of this Judgment are hereby enjoined from proceeding in any other state or federal court.
(Id., Ex. B (Agreed Order Granting Joint Motion to Approve Settlement Agreement).) Similarly, the first paragraph of the CSA states:
Settling Defendants and the State of Texas acknowledge that this Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and this Court shall retain jurisdiction for the purposes of implementing and enforcing this Settlement Agreement. The parties hereto agree to present any disputes under this Settlement Agreement, including without limitation any claims for breach or enforcement of this Settlement Agreement, exclusively to this Court.
(Id., Ex. A(CSA), at 4, ¶ 1.) Paragraph 3 of the CSA states that "[t]he State of Texas and the Settling Defendants acknowledge and agree that this Settlement Agreement is voluntarily entered into by all parties hereto as the result of arm[']s[-]length negotiations during which all such parties were represented by counsel." (CSA at 5, ¶ 3.) The CSA further states that "[t]he settlement negotiations resulting in this Settlement Agreement have been undertaken by the parties hereto in good faith and for settlement purposes only...." (CSA at 23, ¶ 22.)
Paragraph 17 of the CSA states:
(a) Reimbursement of Costs and Expenses. Settling Defendants will reimburse ... Private Counsel for reasonable costs and expenses incurred in connection with this litigation, provided that such costs and expenses are of the same nature as costs and expenses for which Settling Defendants would reimburse their own counsel or agents.... In addition, within 30 days after the date of this Settlement Agreement, Settling Defendants shall ... pay to [Private Counsel] an amount equivalent to Private Counsel's best estimate of their reasonable costs and expenses.... Private Counsel shall provide Settling Defendants with an approximately documented statement of their costs and expenses....
(CSA at 19-20, ¶ 17(a).) Regarding protective orders associated with the tobacco litigation, the CSA provides that
any restrictions imposed by any protective order in this action governing treatment of discovery materials during the pendency of this action shall remain in effect, and existing confidentiality designations shall remain undisturbed until ... [not later than] December 31, 1999. Thereafter, any party to the action may make any motion with respect to discovery materials....
(CSA at 23-24, ¶ 22; see also Final Confidentiality Order, Dkt. No. 632, July 3, 1997.)
On January 16, 1998, Private Counsel submitted a motion for approval of their attorneys' fees. On January 22, 1998, the Court entered a memorandum opinion and order which concluded that the amount of attorneys' fees Private Counsel was due under the OCA about $2.3 billion was reasonable. (See Final Judgment Ex. C.[1]) In its January 22 memorandum, the Court acknowledged Private Counsel's claim that they incurred approximately $40 million in out-of-pocket expenses prosecuting the tobacco litigation. (Id. at 10.)
Shortly thereafter, on January 30, 1998, a mandamus action in the Texas Supreme Court filed by a group of Texas legislators was removed to this Court. See In re *517 Fraser, No. 5:98-CV-45 (E.D.Tex.). The legislators had asked the Texas court to require Attorney General Morales to declare that the attorney general of Texas had no statutory or constitutional authority to bind the State to a contingent fee arrangement for legal services. The legislators argued that removal of the mandamus action to federal court would violate the Eleventh Amendment since the suit sought to compel a state officer to act according to state law. The legislators also argued that the OCA's contingent fee provision was unenforceable because the State, via the Eleventh Amendment, was immunized against being sued in federal court. The same legislators, on February 5, 1998, along with Governor George W. Bush, separately, moved to intervene in the tobacco litigation. The interveners, raising much the same issues as those raised in In re Fraser, asked for a separate resolution of the attorneys' fees questions and that the Court stay the disbursement of the settlement funds until the fee issue was resolved. Shortly thereafter, the Court stayed enforcement of the CSA.
On June 22, 1998, an agreement was achieved between the antagonists to the attorneys'-fees issue (the "Agreement"). Under the Agreement, Private Counsel were presented with a choice: they could either attempt to enforce the contingent fee provision in the OCA, or they could elect to take an amount awarded by an arbitration panel. (See Order, No. 5:98-CV-270, Dkt. No. 1, Ex. A, at 3-4, ¶ E.) If they chose the latter, the tobacco industry would pay the panel award and Private Counsel would waive any claim they might have had against the State under the OCA. (Id.) The Agreement also provided that all pending motions pertaining to the fee dispute would be stayed until Private Counsel made their election. (Id. at 2-3, ¶ B.) The Agreement further provided that the fee dispute would be "severed" from the tobacco litigation. (Id. at 2, ¶ A.) On July 24, 1998, the Court adopted the Agreement and separated the fee issues from the tobacco litigation. See In re Private Counsel Fee Agreement, No. 5:98-CV-270 (E.D.Tex.)("In re Private Counsel").
On December 15, 1998, the panel awarded Private Counsel $3.3 billion in fees. Under the Agreement, Private Counsel had until December 30 to make their election. On December 30, Private Counsel filed a motion to extend the election deadline.[2] The State opposed the motion and argued that the Court could not consider an extension until the Court first ruled on the State's challenges to the Court's jurisdiction. On November 5, 1999, the Court concluded that the State's jurisdictional arguments were without merit. See In re Fraser, 75 F.Supp.2d 572 (E.D.Tex.1999); In re Private Counsel, 1999 WL 1022131 (E.D.Tex.). Also on November 5, the Court gave Private Counsel until November 19 to make its election under the Agreement. See In re Private Counsel, 1999 WL 1022128 (E.D.Tex.). On November 19, 1999, Private Counsel elected to take the panel award and to waive their right to sue under the OCA. On December 6, 1999, the State appealed the Court's November 5 ruling to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit recently dismissed the State's appeals and vacated this Court's November 5 orders.
II
On April 27, 2000, the State filed a document entitled "Petition Requesting an Order Authorizing Oral Depositions to Investigate Potential Claims or Suit" in the District Court of Harris County, Texas. (See Pet. at 1.) The petition moves the state district court, pursuant to Tex.R. Civ. P. 202, to allow the State to "investigate potential claims it believes it may possess for conversion and breach of fiduciary *518 duty" against Private Counsel. (Id.) Specifically, the State seeks to depose Private Counsel as to
whether the parties to the OCA engaged in the improper exchange of consideration so that Private Counsel could obtain the contract;
whether Private Counsel knew or should have known that the OCA was unenforceable;
whether Private Counsel used the relationship[3] to benefit their own personal interests to the detriment of the State, and how Private Counsel improperly used the relationship to benefit their own personal interest to the detriment of the State;
which tobacco litigation documents are being withheld from the State; the subject matter of those documents; the circumstances underlying the reason for withholding the documents; the circumstances under which the documents were created; and where the withheld documents are being kept;
whether documentation exists which supports the expenditure of $40 million in expenses; and
other relevant areas of inquiry.
(Pet. at 4.) On April 28, 2000, Private Counsel removed the state-court proceeding to this Court. Private Counsel contend that this Court has jurisdiction over the State's petition because (1) the petition raises a question of federal law and is therefore removable pursuant to 28 U.S.C. § 1441; (2) the matters raised in the petition are ancillary and supplemental the tobacco litigation and the Court's orders entered therein; and (3) the petition implicates the orders of this Court and is therefore subject to removal under the All Writs Act, 28 U.S.C. § 1651. On May 12, 2000, the State filed the instant motion to remand.
DISCUSSION
In its motion to remand, the State argues that this Court lacks jurisdiction over the instant proceeding because (1) the proceeding is not a "civil action"; (2) no question of federal law is raised on the face of the State's well-pleaded petition; (3) this matter should have been removed to the district and division embracing the state court where the State filed its petition; (4) removal is not proper under the All Writs Act; and (5) the Eleventh Amendment is a bar to removal. The Court will address each argument in turn.
I
The removal statute, 28 U.S.C. § 1441, provides, in relevant part:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. * * *
The State argues that its petition does not initiate a "civil action" under § 1441 because a Rule 202 proceeding lacks the characteristics of a "full-blown lawsuit."
A
1. The first place the Court must turn to address the State's argument is the removal statute itself. See 16 JAMES WM. MOORE, ET AL., MOORE'S FEDERAL PRACTICE AND PROCEDURE § 107App.101[2] ("Whether a state proceeding is a civil action, for removal purposes, and has been properly removed involves the construction of the removal statute...."). The text of § 1441 does not define the term "civil action." The Court notes, however, that the term is not used exclusively in the removal statute and associated sections. For example, *519 §§ 1442-1443 & 1446 speak of "civil actions" and "criminal prosecutions," which suggests that the term "civil action" is meant not to define a civil proceeding with certain level of involvement, but instead to distinguish civil proceedings from criminal ones. Section 1446(b), on the other hand, which provides the deadlines for removal in civil matters, speaks of both "actions" and "proceedings," which might suggest that some non-criminal proceedings are something less than "actions."
2. As the statute is less-than-definitive on the question of what is a civil action, the Court turns to legislative history and case law.[4] The words "civil action" were not used to the exclusion of other terms until 1948, when the modern-day version of the removal statute was enacted. The first removal provision, which was contained in the Judiciary Act of 1789, permitted removal of "suits" against aliens or where there was diversity of citizenship. In Weston v. City Council of Charleston, 27 U.S. (2 Pet.) 449, 464, 7 L.Ed. 481 (1829), the Supreme Court concluded that the term "suit" "is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice, which the law affords him." In Weston, the plaintiffs, in state court, filed a "suggestion for a prohibition," an equity proceeding through which plaintiffs prayed that the city council be barred from assessing an allegedly unconstitutional tax. Id. at 449. The prohibition was granted, and appeal was taken to South Carolina's high court. The South Carolina court upheld the constitutionality of the tax, and plaintiffs, in turn, appealed to the Supreme Court. The question for the Court, then, was whether under the provision of the 1789 act in question, a writ of prohibition was a "suit." Id. at 463. Chief Justice Marshall, writing for the Court, construed the term "suit" broadly. That plaintiffs did not couch their pleading as stating a cause of action at law, and instead initiated an equity proceeding, made no difference to the Chief Justice: "The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit" Id.
In 1875, the statute was re-enacted to provide for the removal of "any suit of a civil nature, at law or in equity." See 16 MOORE'S § 107App.101[2] n. 7. In Upshur County v. Rich, 135 U.S. 467, 10 S.Ct. 651, 34 L.Ed. 196 (1890), the Court was again faced with the meaning of the term "suit." In that case, the Court concluded that an appeal of a tax assessment to a state's "county court" was not a "suit" because the proceeding lacked the indicia of a judicial tribunal. Id. at 470, 10 S.Ct. 651. The Court reasoned that a necessary element of a removable proceeding is that it be before a bona fide court; that is, there must a dispute between litigants before a tribunal that has the power to determine questions of law and fact. Id. at 477, 10 S.Ct. 651. The "county court" in Upshur County, conversely, was an administrative tribunal and had "no[] judicial powers, except in matters of probate." Id. at 471, 10 S.Ct. 651.
In 1911, the removal statute was again revisited; like the 1875 act, the 1911 statute contained the language "any suit of a civil nature, at law or in equity." See 16 MOORE'S § 107App.101[2] n. 10. In Commissioners of Road Imp Dist. No. 2 of Lafayette County v. St. Louis Southwestern Railway Co., 257 U.S. 547, 42 S.Ct. 250, 66 L.Ed. 364 (1922), the Supreme Court considered whether a county-court hearing constituted a removable "suit." In Lafayette County, the county commissioners assessed a tax on land belonging to Southwestern Railway. Id. at 550, 42 S.Ct. 250. The commissioners notified *520 landowners that a hearing on the assessment would be held in county court. The day before the hearing, the railroad removed the proceeding to federal district court; the commissioners' motion to remand that followed was denied. Writing for the Court, Chief Justice Taft described the characteristics of the county-court proceeding: it involved a dispute between parties, the commissioners on one side, the landowners on the other; there were pleadings namely, the record of the commissioners' assessment plus the landowners' objections thereto; the court was to conduct an inquiry into reasonableness of the assessment; the court's determination was an enforceable order; and the determination is subject to review on appeal. Id. at 557 & 559, 42 S.Ct. 250. The proceeding, the Court concluded, had "all the elements of a judicial controversy." Id. at 557, 42 S.Ct. 250.
The Lafayette County commissioners, however, argued that the state supreme court had already determined that the proceedings like the one at issue did not constitute a removable suit. Id. at 557, 42 S.Ct. 250. The Court dismissed the commissioners argument:
The question of removal under the federal statute is one for the consideration of the federal court. It is not concluded by the view of a state court as to what is a suit within the statute. While the decision of the state court as to the nature of a proceeding under state statutes sought to be removed is, of course, very persuasive, it is not controlling....
Id. at 557-58, 42 S.Ct. 250. The commissioners also argued that the proceeding a prove-up on a tax assessment could not be removed since it could not have been originally filed in federal district court. Id. at 561, 42 S.Ct. 250. Chief Justice Taft responded that the removal statute's requirement of original jurisdiction
is not intended to exclude from the right of removal defendants in cases in the state court which, because of their peculiar form would be awkward as an original suit in a federal court, or would require therein a reframing of the complaint and different procedure. The limitation is that only those proceedings can be removed which have the same essentials as original suits permissible in District Courts; that is that they can be readily assimilated to suits at common law or equity....
Id. at 561-62, 42 S.Ct. 250.
Along the same lines, in English v. Supreme Conclave Improved Order of Heptasophs, 235 F. 630 (D.N.J.1916), a district court considered the qualities that make a suit ripe for removal. In English, English sought a permanent injunction against the Heptasophs. Id. The court ordered the Heptasophs to show cause why it should not issue an injunction; the Heptasophs, in turn, removed the matter to federal district court. Id. In its motion to remand, English argued that under New Jersey law, a suit is not brought for removal purposes until a subpoena issues. The district court disagreed, stating that it is not for New Jersey law to determine whether removal under the federal statute is appropriate. Rather, the court turned to the posture of the state-court proceeding and noted that the Heptasophs were required to answer the show-cause order. Id. at 631. The district court concluded that "[w]hatever the form of proceeding to bring a defendant into court, a suit is brought when such defendant is subjected to judicial orders." Id.
To summarize, the Supreme Court has broadly construed the various terms used to describe removable proceedings. Specifically, the Court has said that a removable proceeding is one in which there are one or more of the following: a dispute between parties; a prayer for relief (either at law or in equity); pleadings; a tribunal with the power to determine questions of law and fact; the determination of the tribunal is subject to review; and enforceable orders. A removable proceeding is considered brought once a party is subject to court orders.
*521 3. In 1948, what was to become the modern-day removal statute was enacted. See ch. 646, 62 Stat. 937 (June 25, 1948)(codified at 28 U.S.C. §§ 1441-1450). The 1948 act was "based on" and intended to "consolidate" its predecessors. Id. (reviser's notes). The 1948 act substituted "[p]hrases such as `in suits of a civil nature, at law or in equity,' the words `case,' `cause,' `suit,' and the like ... [from predecessor statutes for] the words `civil action.'" Id. The change in terminology was meant to harmonize the removal statute with the Federal Rules of Civil Procedure, which became effective in 1938 and did away with the distinction between proceedings in law and those in equity. Id.; see FED.R.CIV.P. 2 (declaring that there is one form of action). The change is believed not to have intended an affect on the breadth of the removal statute. See 16 MOORE'S § 107App.101[2] (referencing revisor's notes). Instead, the new term was aimed at distinguishing non-removable criminal actions from civil ones. See id.; cf. Milwaukee County v. White Co., 296 U.S. 268, 270, 56 S.Ct. 229, 80 L.Ed. 220 (stating that the term "suits of a civil nature" from a predecessor removal statute "is used in contradistinction to `crimes and offenses'...."). "In effect, therefore, the limitation to civil actions in Section 1441 may mean no more than that state court criminal, and perhaps penalty, actions are not removable...." CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, 14B FEDERAL PRACTICE AND PROCEDURE § 3721 (3d ed.1998).
B
Having gone through the history and meaning of the term "civil action" in excruciating detail, the Court turns to the proceeding in question. Generally, Rule 202 provides
A person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either:
(a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or
(b) to investigate a potential claim or suit.
TEX.R. CIV. P. 202.1. Parts two through five, 202.2-.5, provide the procedural requirements of the rule. A Rule 202 petitioner must, where suit is anticipated, determine the county where venue in the anticipated action would lie and file its petition with the county court there. Id. 202.2(b). The petitioner must state the subject matter of the anticipated action, id. 202(e), and give the names, addresses, and phone numbers of persons against whom petitioner expects to have adverse interests, id. 202.2(f)(1). The petitioner must state the substance of the testimony it expects to elicit, id. 202.2(g), and request a court order authoring the depositions requested, id. 202(h). Lastly, before the state court may authorize the taking of depositions, the court must find that
(1) allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit; or
(2) the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.
Id. 202.4(a).
Viewing Tex.R. Civ. P. 202 and its requirements in the context of the foregoing discussion of § 1441, the Court concludes that a Rule 202 proceeding is a "civil action." Rule 202 possesses all the elements of a judicial proceeding: there is a controversy between parties; there are pleadings (the State's petition); relief is sought (the State has prayed for a court order authorizing the taking of depositions); and a judicial determination is required specifically, whether authorizing depositions may prevent injustice or, on balance, will not be *522 unduly burdensome.[5] Finally, both parties will be required to adhere to the state court's orders.
C
1. Although the Fifth Circuit has not addressed the removability of Rule 202 proceeding, the Northern District of Texas has. See Mayfield-George v. Texas Rehab. Comm'n, No. 3:99-CV-3735X, 2000 WL 626853 (N.D.Tex. May 15, 2000). In Mayfield-George, Mayfield-George filed a Rule 202 petition in state court to investigate a possible claim against the Texas Rehabilitation Commission ("THC"). Id. at *1. The day before the state district court was to conduct a hearing on May-field-George's petition, THC, pursuant to § 1441(b), removed the proceeding to federal district court. In its motion to remand, Mayfield-George argued that a petition brought pursuant to Rule 202 is not a "civil action"; specifically, he argued that the petition does not assert a claim against THC, but instead merely seeks to take depositions of THC employees to determine whether a claim against THC would lie. Id. at *2-*3. In response, the attorney general's office, on behalf of THC, argued that the term "civil action" should be construed broadly. See THC's Resp. Mot. Remand at 2. The attorney general also emphasized that the Rule 202 proceeding was an independent action and that it cannot be ancillary to another state-court proceeding because no other state-court action was pending. Id. at 6. The Honorable Joe Kendall, however, agreed with Mayfield-George, concluding that a Rule 202 proceeding cannot be a "civil action" as "it asserts no claim or cause of action upon which relief can be granted." Id.; see also In re Hinote, 179 F.R.D. 335, 336 (S.D.Ala.1998)(holding that in the absence of a complaint there can be no "civil action"); Sunbeam Television Corp. v. Columbia Broadcasting Sys., Inc., 694 F.Supp. 889, 891 (S.D.Fla.1988)(same).
After considering Mayfield-George in light of the foregoing construction of the removal statute, the Court respectfully disagrees with the Judge Kendall's holding. In Mayfield-George, the court found that the assertion of a cause of action is an essential element of a removable action. This Court does not disagree; however, as discussed above, an asserted claim can take many forms. See Weston, supra at 449. The fact that a cause of action at-law has not been made, which was also the objection in Hinote and Sunbeam Television, cannot turn a proceeding that clearly has all the indicia of a judicial proceeding into something less. Rather than looking at one criteria in isolation, the Court must look at the proceeding as a whole. Here, among other things, there are pleadings, judicial determinations, and relief is sought, see HMB Acquisition Corp. v. Cohen, 143 F.R.D. 50, 51 (concluding that discovery provides substantive relief where a proceeding is instituted to obtain it), vacated in part on other grounds, 145 F.R.D. 30 (S.D.N.Y.1992). In short, the *523 instant proceeding has all the qualities of a "civil action."
2. The State also puts forth Wilson v. Belin, 20 F.3d 644 (5th Cir.1994) in support of its argument. In Wilson, Wilson, on September 3, initiated a Texas state-court discovery proceeding to determine whether he had a claim against Blakey. Id. at 646. On November 13, Wilson filed his complaint. On December 22, Blakey removed the state-court proceeding. The federal district court then granted Blakey's and his co-defendant's motion to dismiss on the grounds that the court lacked specific and personal jurisdiction. Id. On appeal, Blakey argued, inter alia, that removal was untimely. Id. at 651 n. 8. The Fifth Circuit, construing 28 U.S.C. § 1446(b), which provides the requirements for timely removal, concluded that as between the petition to initiate discovery and the complaint, it was the latter that started the 30-day deadline for removal since the complaint was "the first document stating a claim." Id.; cf. Christian, Klein & Cogburn v. NASD, Inc., 970 F.Supp. 276, 278-79 (S.D.N.Y.1997)(Sotomayor, J.)(concluding that a petition for state-court pre-complaint discovery, standing alone, is an "initial pleading" under § 1446(b)).
Contrary to the State's argument, however, Wilson's footnote does not stand for the proposition that a state-court discovery proceeding is not removable. Wilson addressed § 1446(b), which as noted provides deadlines for removal. Section 1446, however, does not define what kind of proceeding is removable; that is within the ambient of § 1441. Section 1441's removal criteria e.g., that the proceeding be a "civil action," and that the state tribunal be a "court" do "not concern the broader although related question as to when defendant's time for removal will expire...." See 16 MOORE'S § 107App.101[6]. Thus, a state-court proceeding can be a removable "civil action" under § 1441 even though the petition initiating the proceeding is not an "initial pleading" under § 1446(b). See id. That the Wilson court concluded that it was Blakey's complaint, rather than his petition for discovery, that initiated the removal deadline does affect this Court's holding that the State's Rule 202 petition is a removable "civil action."
3. Finally, even though a state-court determination of state rule is not controlling for purposes of removal, the Court pauses to note that at least one Texas court has considered the nature of a Rule 202 proceeding. See Valley Baptist Medical Ctr. v. Gonzalez, 18 S.W.3d 673, 678 (Tex.App. Corpus Christi, 1999, pet. filed Mar. 21, 2000). In Valley Baptist, which was relied upon by Judge Kendall in Mayfield-George, the court of appeals, considering its own jurisdiction, held that an order permitting the taking of depositions under Rule 202 is not reviewable on direct appeal because the "proceeding is not, in itself, a separate lawsuit, but is incident to and in anticipation of a suit." See id. at 676; see also MICHOL O'CONNOR, ET AL., O'CONNOR'S TEXAS RULES, CIVIL TRIALS 1999 (1998) 351-53. The question of whether a proceeding is separate or ancillary to a state-court proceeding is important for purposes of removal: if the proceeding is separate, it is removable; if it is ancillary, it is not. See 14B WRIGHT, ET AL. § 3721. The court's holding in Valley Baptist that a Rule 202 proceeding is ancillary, has, admittedly, been difficult for this Court to conceptualize: to say that a proceeding is ancillary to an investigation or an anticipated suit is to say that it is ancillary to nothing. Moreover, the court's holding runs counter to the conclusions of Justice Hecht, who is regarded as a leading expert on Texas's rules of procedure. See Nathan L. Hecht & Robert H. Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions (Nov. 11, 1998)(stating that under Rule 202's predecessor, Rule 737, which Rule 202 "replaces and limits," "a person could bring an independent action to obtain an order authorizing a deposition of any other person to investigate a potential claim or anticipated lawsuit")(emphasis *524 added).[6] Anyhow, Valley Baptist's precept that an order authorizing depositions pursuant to Rule 202 is interlocutory, is, at best, not dispositive; at worst it is inconsistent with this Court's analysis that a Rule 202 proceeding has all the indicia of a civil action under the removal statute.
II
Having determined that a Rule 202 proceeding is a civil action, the Court turns to the question of whether the instant proceeding falls within the original jurisdiction of this Court. As an initial matter, the Court notes that the Fifth Circuit has held that "a claim brought in state court [that] seeks to attack or undermine an order of a federal district court" falls within the original jurisdiction of the district courts. See Baccus v. Parrish, 45 F.3d 958, 960 (5th Cir.1995)(citing § 1441(a) and Villarreal v. Brown Express, Inc., 529 F.2d 1219, 1221 (5th Cir.1976)); see also Nowling v. Aero Services Int'l, Inc., 734 F.Supp. 733 (E.D.La.1990)("[A] state[-]law claim is said to have federal character when ... it calls into question a federal court order."). In Baccus, the parties achieved a settlement agreement in a suit concerning Texas's state schools for the mentally retarded. Id. at 959. The agreement called for the state to close down two schools; the state later passed legislation that would form a panel to make recommendations regarding school closure. Final passage of the legislation was contingent upon the district court's acceptance of the settlement; court approval occurred sometime thereafter. Later, Baccus, in state court, sought to enjoin the panel, alleging that the composition of the panel and the law creating it were unlawful. The action was removed then transferred to the district court that approved the settlement agreement. Baccus moved for remand, arguing that the district court lacked subject matter jurisdiction because his petition asserted exclusively state-law claims. Importantly, the face of Baccus's petition did not raise a federal question. The district court denied the motion to remand, and Baccus appealed. On appeal, the Fifth Circuit found that were Baccus to succeed in his state-court suit it would have "affected" the settlement agreement. Id. at 961. Therefore, the court concluded, Baccus's suit "is properly characterized as a collateral attack on the settlement agreement...." Id.; see also Nowling, 734 F.Supp. at 737 ("[T]his case is no more than an attempt to collaterally attack [the court's] Orders, and is possessed of the very kind of federal character sufficient to support removal.").
The foregoing notwithstanding, not since Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998), has a federal court held, as Baccus did, supra at 960-61, that it is proper to look beyond the face of a well-pleaded complaint to determine whether removal is proper. Baccus and courts like it, see, e.g., Nowling, supra, followed an exception to the well-pleaded complaint rule the so-called artful pleading doctrine. The purpose of this doctrine was to prevent plaintiff from avoiding federal court simply by omitting a "necessary federal question" from the complaint. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 22, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Recently, however, the Supreme Court held that the artful pleading doctrine applies only in cases where federal law completely preempts plaintiff's state-law cause of action.[7]See Waste Control Specialists v. *525 Envirocare of Texas, Inc., 199 F.3d 781, 783 (5th Cir.), superseded in part on other grounds, 207 F.3d 225 (5th Cir.2000) (construing Rivet, supra). Here, it not disputed that the face of the State's petition does not raise a federal question. Accordingly, this matter does not "arise under" the laws of the United States for purposes of § 1441(b) and is not within the original jurisdiction of this Court.[8]
III
Private Counsel argue that the supplemental jurisdiction statute allows this Court to exercise jurisdiction over the instant proceeding because the proceeding is related to the tobacco litigation and this Court's orders therein. The supplemental jurisdiction statute provides that in
any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
28 U.S.C. § 1367(a). An often-quoted case describes the supplemental jurisdiction statute as follows:
Section 1367 allows plaintiffs to bring federal claims in federal court even though combined with state-law claims that would not otherwise be within the federal court's jurisdiction. The statute is not, however, an independent source of removal jurisdiction. To remove the petition from state court to federal court, * * * [defendants] must first find a federal claim in the Petition itself. An already-existing federal claim cannot provide the mechanism for removal of a non-removable state-court action.
14B WRIGHT, MILLER & COOPER, § 3722 (quoting In re Estate of Tabas, 879 F.Supp. 464, 467 (E.D.Pa.1995)). As the Court noted above, the instant Rule 202 proceeding does not itself fall within the original jurisdiction of the district courts; the supplemental jurisdiction statute, therefore, cannot recharacterize it.
The supplemental jurisdiction statute, however, is but a subset of ancillary jurisdiction. Ancillary jurisdiction, as the Supreme Court has recognized, is a nonstatutory doctrine that has survived § 1367's enactment. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379-80, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In Kokkonen, decided four years after the enactment of § 1367, Kokkonen filed suit against Guardian for breach of an agency agreement. Id. at 376, 114 S.Ct. 1673. The parties settled their dispute, and the terms of the settlement were read into the record. Thereafter, the district court dismissed the action with prejudice. Later, the parties disagreed on whether, under the settlement agreement, Kokkonen was required to return certain files. Id. at 377, 114 S.Ct. 1673. Guardian moved the district court to enforce the agreement; Kokkonen opposed on the grounds that the district court lacked subject-matter jurisdiction. The district court entered an enforcement order, concluding that it had an "inherent power" to do so. Kokkonen appealed and the circuit court affirmed. On appeal, the Supreme Court stated that the "[e]nforcement of a settlement agreement, ... whether through award of damages or specific performance, is more than a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction." Id. at 378, 114 S.Ct. 1673. In Kokkonen, there was no such basis. Id. at 381-82, 114 S.Ct. 1673.
*526 The Court noted, however, that the situation is a very different one where the settlement agreement is made part of the dismissal order "either by separate provision (such as a provision `retaining jurisdiction' over the settlement agreement) or by incorporating the terms of the settlement agreement in the order." Id. at 381, 114 S.Ct. 1673. In that case, "a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist." Id. This incarnation of ancillary jurisdiction exists "to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees...." Id. at 380, 114 S.Ct. 1673 (citations omitted).
Although (as seen above) ancillary jurisdiction is larger in scope than its progeny, the Court concludes that ancillary jurisdiction cannot confer an independent basis for jurisdiction for the same reason that supplemental jurisdiction cannot. The touchstone of ancillary jurisdiction and supplemental jurisdiction for that matter is that the ancillary matter must be joined with a suit that falls within the original jurisdiction of the federal court at the time of removal. Although it runs counter the purpose of ancillary jurisdiction that is, the efficient adjudication of related claims courts have consistently found that a plaintiff may maintain parallel proceedings in state and federal court. Thus, plaintiff can assert a claim that falls within the original jurisdiction of the federal courts; later, plaintiff can assert a related state-law claim in state court. Under those circumstances, the latter is not removable. See Peacock v. Thomas, 516 U.S. 349, 354, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996).
IV
The State argues that removal under the All Writs Act is not proper because the orders of this Court have not been implicated, and because the act cannot be used to remove an action that does not have an independent basis for jurisdiction.
A
The All Writs Act, 28 U.S.C. § 1651(a), provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Interpreting this provision, the Supreme Court has stated that a federal court may "issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained...." United States v. New York Tel., 434 U.S. 159, 172, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977). In New York Telephone, a federal district court issued an order authorizing FBI agents to access New York Telephone's facilities. Id. at 161, 98 S.Ct. 364. The phone company objected, arguing that the district court lacked jurisdiction over it. Id. at 163, 98 S.Ct. 364. On appeal, the Supreme Court upheld the district court's issuance of the writ, stating that
[t]he power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, ... and encompasses even those who have not taken any affirmative action to hinder justice.
Id. at 174, 98 S.Ct. 364 (citations omitted). With respect to the facts before it, the Court noted that without New York Telephone's assistance it would have been difficult or impossible to accomplish the federal court-authorized surveillance. Id. at 175, 98 S.Ct. 364.
Neither the Supreme Court nor the Fifth Circuit have stated whether or how the principles announced in New York Telephone apply to the use of the All Writs *527 Act in cases where a suit without an independent basis for federal jurisdiction implicates a court-adopted settlement.[9] Several other circuits, however, have; all but one has concluded that the act may be used to remove such cases. Compare In re Agent Orange Prod. Liability Litig., 996 F.2d 1425 (2d Cir.1993); Bylinski v. Allen Park, 169 F.3d 1001 (6th Cir.1999); In the Matter of VMS Securities Litig., 103 F.3d 1317 (7th Cir.1996); and Xiong v. Minnesota, 195 F.3d 424 (8th Cir.1999) with Hillman v. Webley, 115 F.3d 1461 (10th Cir. 1997); see also Chance v. Sullivan, 993 F.Supp. 565 (S.D.Tex.1998); Nowling, supra. The leading case affirming the use of the All Writs Act is In re Agent Orange, supra. In that case, plaintiffs filed suit in Texas state court alleging wholly state-law claims for damages arising out of exposure to Agent Orange. 996 F.2d at 1430. Previously, a class of veterans, which included the Texas plaintiffs, had achieved a settlement with Agent Orange manufacturers; the New York federal district court before whom the class-action was pending adopted the settlement and barred class members from instituting future litigation concerning Agent Orange exposure. Id. at 1429. Citing the settlement and the district court's order, defendants removed the Texas state-court proceeding to the New York district court. Id. at 1430. Plaintiffs moved for remand, arguing that the Texas suits raised wholly state-law questions. The district court declined to remand, and the Second Circuit affirmed. The circuit court noted that where "exceptional circumstances" are present, a federal court may employ the All Writs Act to remove an otherwise unremovable action. Id. The court found that were the Texas plaintiffs permitted to go forward, the effect on the Agent Orange settlement would be "substantial," id. at 1431; by exercising jurisdiction over the Texas claim, the district court was "enforcing an explicit, ongoing order against relitigation of matters it already had decided, and guarding the integrity of its ruling in complex multidistrict litigation over which it had retained jurisdiction," id.
Other circuits are in substantial agreement with the Second Circuit's reasoning in In re Agent Orange. In Xiong, the Eighth Circuit, stated that "a federal court can exercise jurisdiction over a state action pursuant to the All Writs Act if the state action frustrates a previous order by the federal court." 195 F.3d at 426 (citing, inter alia, NAACP v. Metropolitan Council, 144 F.3d 1168 (8th Cir.1998)). In that case, Minnesota school children had filed suit alleging that the Minneapolis school system was segregated on the basis of race. Id. at 425. After the case settled, a federal district court entered a decree barring future litigation and retaining jurisdiction over decree's provisions. Id. Later, a class of Minneapolis children brought a claim "identical to those settled and released" in the previous action. Id. Citing the district court's orders, defendant removed the state-court action pursuant to the All Writs Act. Id. The district court refused to exercise jurisdiction, but the Eighth Circuit reversed, concluding that "federal court control is necessary to effectuate and prevent the frustration of the earlier consent decree...." Id. at 427.
Similarly, in VMS Securities Litigation, 103 F.3d at 1323, federal-district-court-approved settlements were entered in two securities litigation actions. Among other things, the settlements provided that the class members would release every potential *528 or asserted claim; in both, the district courts expressly retained jurisdiction over the implementation and enforcement of the settlements. Id. at 1320. A group of class members later filed suit in California state court, alleging that Prudential Securities used fraud and misrepresentation to induce investors to sign-off on the settlement agreement. Id. at 1319. Prudential removed the suit to federal court, and the investors moved to remand. The investors argued (1) that the alleged conduct was not covered by the terms of the settlement, and (2) that the conduct was based on post-settlement conduct that occurred after the class period closed. Id. at 1322. On appeal, the Seventh Circuit concluded that questions regarding Prudential's conduct is "inextricably intertwined with the approved class settlements and the class notice provisions." Id. Regarding the timing of the conduct alleged, the court stated that the investors "cannot reasonably assert that the federal district court was without power to adjudicate matters arising out of the class settlement procedures merely because Prudential's alleged conduct occurred after the close of the class periods." Id.
B
1. The Court is persuaded, in light of the virtually uniform foregoing precedent, that it may exercise jurisdiction over the instant state-court proceeding pursuant to the All Writs Act. It is not disputed that this Court had jurisdiction over the tobacco litigation; and in this case, as with those above, the Court expressly adopted the final judgment and made it an enforceable order. The final judgment, in turn, adopted the CSA, the first paragraph of which expressly retained jurisdiction over all aspects of the settlement agreement. Among other things, the CSA was declared to be the product "good faith" and "arm[']s[-]length negotiations" by counsel. See supra at 516. Certainly, this Court would not have adopted and incorporated the above terms or the whole CSA for that matter if it had even an inkling of proof of attorney misconduct along the lines suggested by the State, see supra at 518 (suggesting, among other things, that Private Counsel agreed to represent the State in the tobacco litigation knowing that OCA was unlawful, and that Private Counsel's conduct was colored by improper self-interest). If the discovery requested by the State in its petition was to reveal evidence of self-dealing or other unethical behavior, the veracity of counsel's representations concerning the CSA (and the Court's reliance thereon) would be thrown into doubt. As such, the Court cannot conclude, the State's protestations notwithstanding, that the State's petition has nothing to do with the settlement agreement. See Chance, 993 F.Supp. at 567 (concluding that "[c]onsideration of the allegations [of attorney malfeasance] in this case will entail an inextricably intertwined analysis of the propriety of the Plaintiff's settlement agreement in" the underlying action); see also VMS Securities Litig., 103 F.3d at 1322 (dismissing the suggestion that a federal court is powerless to address malfeasance that occurred outside the subject matter of the litigation but called into question a court-adopted settlement).
Aside from generally undermining the court-adopted settlement, the Court finds that the State's petition directly invokes several provisions of the CSA and the anti-suit injunction. First, the CSA required that Private Counsel make a good-faith approximation of their expenses in prosecuting the tobacco litigation. See supra at 517. Private Counsel estimated $40 million. This figure was transmitted to the tobacco industry pursuant to court order; the industry, in turn, reimbursed Private Counsel. The State seeks to discover documents that support Private Counsel's estimation. In the event that discovery produced evidence showing that Private Counsel's purported expenses were not tabulated in good faith, Private Counsel *529 would be in direct contravention of this Court's orders.[10]
Second, documents and other materials produced during the course of discovery in the tobacco litigation are, by and large, under court-ordered seal. The protective orders require application to this Court prior to disclosure; any questions regarding the scope of the protective orders must be submitted to this Court for resolution. See supra at 517. Third, the anti-suit injunction entered by this Court proscribes litigation before any court (except this one) concerning any aspect of the final judgment. The final judgment directly addresses, among other things, Private Counsel's litigation expenses and fees and the propriety of counsel's representations concerning the CSA. Finally, the State's recovery from the tobacco industry is contingent the upon the recovery of certain other settling states and vice versa. (See CSA at 19-20, ¶ 17.) Were the State to prevail in an action against Private Counsel, any damages the State received conceivably would upset the parity essential to the settlement scheme.
Further, the Court believes that for wholly prudential reasons this Court is the appropriate forum to address Private Counsel's alleged misconduct. As the Court has noted before, this Court, through its work on the tobacco litigation, has had extensive experience dealing with Private Counsel. Were the State to raise the questions it has in another forum much of the record would have to be considered anew. Along the same lines, this Court is clearly in the best position to interpret the effect of its own orders, including whether records of Private Counsel's expenses are discoverable (see note 10, supra). Finally, and most importantly insofar as this Court is concerned, the Court has a duty to safeguard the interests of those who come before it seeking relief. This Court cannot and will not be left impotent while attorneys run roughshod over the rights of parties, the rules of professional responsibility, and the orders of this Court.
2. This Court's preceding jurisdictional analyses are akin to those in Chance v. Sullivan, 993 F.Supp. 565 (S.D.Tex.1998). In Chance, Judge Kent accepted and approved a settlement agreement that, among other things, concluded that the amount of attorneys' fees was calculated in good faith. Id. at 567. Thereafter, plaintiffs to the settled action brought suit against their attorneys, asserting claims for breach of fiduciary duty, common law fraud, fraud in the inducement, conversion, legal malpractice, and violations of Texas's deceptive practices act. The suit was filed in state court and alleged wholly state-law claims. The attorneys removed the action, and plaintiffs moved to remand. Id.
Notwithstanding Judge Kent's sentiment which is identical to this Court's here that "nothing would please the Court more than to send these claims back to state court," id. at 567, Judge Kent stated that he felt "a moral responsibility to proceed with an ultimate resolution of the issues raised by the [underlying] case and all of its ensuing outgrowths." Id. Specifically, Judge Kent declined to remand on two grounds. First, he noted that the resolution of plaintiffs' claims would "likely [] affect the scope and validity of the [underlying] settlement order." Id. Since the underlying case was based on a question of federal law, and because attorney-conduct questions were closely related to the underlying case, Judge Kent concluded that he could remove the case pursuant to 28 U.S.C. §§ 1441 and 1367.[11]*530 Id. Second, the court concluded that it could exercise jurisdiction over the state-court attorney-conduct dispute under the All Writs Act. Id. Judge Kent found (as this Court has here) that plaintiff's suit called "into question the propriety of a settlement approved in an Order of the Court." Id. at 568. Therefore, the
exercise of jurisdiction is necessary not only to protect the integrity of the Court's Order, but also because this Court is most qualified to review the settlement and the claims arising from the handling of the litigation before the Court.
Id.
C
"Removal" under the All Writs Act has recently been the subject of academic debate. See, e.g., Joan Steinman, The Newest Frontier of Judicial Activism: Removal Under the All Writs Act, 80 B.U. L.REV. 773 (2000); Lonny S. Hoffman, Removal Jurisdiction and the All Writs Act, 148 U. PA. L.REV. 401 (1999). In his article, Professor Hoffman argues, much as the State does here, that Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998), should be read as proscribing the removal of cases that challenge a judgment or other order of a federal court. In Rivet, the Court held that "claim preclusion by reason of a prior federal judgment is a defensive plea that provides no basis for removal under § 1441(b)." Id. at 478, 118 S.Ct. 921. Professor Hoffman thinks that to sidestep § 1441 and remove a state-court proceeding under the All Writs Act on the grounds that it is precluded by a federal court judgment would effectively eviscerate the Supreme Court's holding in Rivet. See Hoffman, supra at 423. There is a difference though and Professor Hoffman points this out between the use of the All Writs Act to remove a state-court action that threatens to undermine a federal court order, and the use of the writ to remove a state-court proceeding based on claim preclusion. Id. at 414. While Hoffman argues that removal in the latter case is barred by Rivet, he does not so argue with respect to the former. Id.
In this case, the Court does not hold that the State's suggestions of malfeasance on the part of Private Counsel are barred by a prior determination of this Court. Indeed, it is just the opposite: the Court has never addressed the allegations raised by the State, nor does the Court express an opinion about them now. Rather, in light of the foregoing, the Court concludes that the State's petition initiates a discovery proceeding that, if it produces what the State thinks it will, will call into doubt the efficacy of this Court's orders. It is for this reason that the Court concludes that removal under the All Writs Act is appropriate.
V
The State argues that the Eleventh Amendment proscribes removal of the instant state-court proceeding to this Court. The Eleventh Amendment provides, in relevant part, that
[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state....
U.S. CONST. amend. XI. A straight-forward reading of the Eleventh Amendment would seem to put this controversy to rest: the amendment proscribes suits against states, not by them. The Supreme Court's reading of the Eleventh Amendment, however, has consistently exceeded the scope of the amendment's text. See, e.g., Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2254, 144 L.Ed.2d 636 (1999)("[A] state's immunity from suit is demarcated not by the text of the Amendment alone but by the fundamental postulates implicit in the constitutional design."). And importantly, the Court's recent jurisprudence has reflected an enhanced respect for state sovereignty. See Port Auth. Trans-Hudson Corp. v. *531 Feeney, 495 U.S. 299, 307, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990).
These initial observations aside, courts have consistently held that when a state brings suit as plaintiff the Eleventh Amendment is not implicated. See, e.g.,
Regents of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1564 (Fed.Cir. 1997), cert. denied, 523 U.S. 1089, 118 S.Ct. 1548, 140 L.Ed.2d 695 (1998). Implicit in these holdings is the conclusion that where a state initiates suit the policies behind sovereign immunity namely, that states not suffer the indignity of being subjected to the "coercive process of judicial tribunals at the instance of private parties," Alden, 119 S.Ct. at 2264, and that a state not be "thrust, by federal fiat and against its will, into the disfavored status of a debtor," id. are not implicated. Thus, while the Supreme Court's recent decisions have articulated an expanded concept of state sovereign immunity, they have left unchanged the well settled proposition that a state may waive its Eleventh Amendment immunity by voluntarily invoking the jurisdiction of the federal court, either by defending an action in federal court on its merits or by "voluntarily submitting its rights to judicial determination" in federal court. See College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999); see also Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754 (9th Cir.1999)(holding that participation in extensive pretrial activities sufficient to waive Eleventh Amendment immunity); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226 (10th Cir.1999)(concluding that removal followed by a defense on the merits sufficient to waive the state's Eleventh Amendment immunity); In re Platter, 140 F.3d 676, 680 (7th Cir.1998)(stating that when a state voluntarily enters a federal forum by filing a claim, "it cannot run back to seek Eleventh Amendment protection"). In this case, the State chose to initiate the tobacco litigation in this Court, and nowhere is it argued that it was unlawful for the State to do so. Accordingly, the State has waived its sovereign immunity for purposes of this litigation.
Notwithstanding the foregoing, the State argues that even if it did consent to adjudication in this Court, removal of the instant state-court proceeding is prohibited. In support of its argument, the State points to California v. Steelcase, Inc., 792 F.Supp. 84 (C.D.Cal.1992). In Steelcase, the State of California filed a civil enforcement action in state court and defendant removed on several bases. Id. at 85. The state moved for remand, which the court granted. The court, without citing any authority, concluded that a state's Eleventh Amendment immunity from suit should apply equally to the case where the state is a plaintiff in a state-court action that is removed to federal court. Id. at 86. The Court notes that most courts have declined to follow Steelcase. Compare Regents of Univ. of Minn. v. Glaxo Well-come, Inc., 58 F.Supp.2d 1036, 1040 (D.Minn.1999); Kansas ex rel. Stovall v. Home Cable, Inc., 35 F.Supp.2d 783 (D.Kan.1998); Vermont v. Oncor Comm., Inc., 166 F.R.D. 313, 321 (D.Vt.1996); and South Dakota State Cement Plant Comm'n v. Wausau Underwriters Ins. Co., 778 F.Supp. 1515, 1522 (D.S.D.1991) with Moore ex rel. State of Miss. v. Abbott Laboratories, Inc., 900 F.Supp. 26, 30 (S.D.Miss.1995). But even were the Court to follow Steelcase, it would not affect this Court's finding that the State, when it initiated litigation in this Court, waived its sovereign immunity with respect the tobacco litigation and all of its outgrowths. Accordingly, the Court concludes that the Eleventh Amendment does not preclude removal of the State's petition.
CONCLUSION
For the foregoing reasons the State's motion to remand is DENIED.
NOTES
[1] Pursuant to party agreement, the Court's memorandum opinion and order was vacated May 16, 2000.
[2] In the interim, Texas voters elected a new attorney general. On January 13, 1999, the new attorney general was sworn-in; soon thereafter, he joined in support of the Governor's and the legislators' arguments in all significant respects.
[3] Presumably, "the relationship" refers to the attorney-client relationship that arose from Private Counsel's contract with the State.
[4] The Court's discussion of the history of the removal statute tracks volume 16 of Moore's Federal Practice, section 106.
[5] In its petition, the State suggests that it has invoked Rule 202 to "investigate a potential claim or suit" (Pet. at 1.), as opposed to obtain testimony in advance of an "anticipated" suit. For example, the State's petition argues that the benefit of depositions outweighs the burden and expense they would impose (id. at 6), an argument which pertains to a determination used exclusively in cases where 202 is invoked to investigate a claim, see Tex.R. Civ. P. 202.4(a)(2). At other points in its petition, however, the State speaks as though it wants discovery for an anticipated suit. For instance, the State designates adverse parties (id. at 2-4) and states that venue is proper in Harris County (id. at 6). These two disclosures are consistent with employing Rule 202 to prepare for an anticipated suit. The distinction is potentially important because the procedural requirements where suit is anticipated, compared with those to investigate a claim, are more stringent. And, as discussed above, the presence of the elements of a judicial controversy is an important factor in determining whether there is a civil action. Ultimately, however, the Court concludes the distinction is not determinative; under either the investigation or anticipated-suit prongs, the state court is required to make a judicial finding, which is sin qui non of a judicial proceeding.
[6] This article can be found at (visited Aug. 8, 2000).
[7] As an aside, the Court notes that Baccus is cited in the leading federal practice and procedure treatise for the proposition that when a federal court expressly retains jurisdiction over a lawsuit, the court effectively preempts the field insofar as other litigation relating to that lawsuit is concerned. See 14B WRIGHT, MILLER & COOPER, § 3722.1 n. 8. Although Baccus does not itself speak of complete preemption, an argument can be made that where a district court retains jurisdiction over a settlement agreement, like the court did in Baccus and this Court did here, it forecloses litigation in other courts. As far as this Court is aware, however, no court has expressly applied the doctrine in such a case; and without further authority, the Court is not inclined to exercise jurisdiction on that basis.
[8] Having concluded that this matter is not removable under the removal statute, the Court need not address § 1441's requirement that the suit be removed to the district and division embracing the state court.
[9] The State points to a number of Fifth Circuit cases, including In re McBryde, 117 F.3d 208 (5th Cir.1997), as having decided the issue. In In re McBryde (and in the other cases cited by the State) the Fifth Circuit concluded that the All Writs Act cannot be used for removal unless jurisdiction has otherwise been obtained. See id. at 219. These cases, however, have not addressed a situation (like the one at bar) where a state-court proceeding affects court orders in a case properly before a federal court. See also Lonny S. Hoffman, Removal Jurisdiction and the All Writs Act, 148 U. PA. L.REV. 401, 413 (stating that the Fifth Circuit has not decided the issue).
[10] Private Counsel contend that records concerning their litigation expenses are not discoverable because the June 1998 agreement made such records undiscoverable if Private Counsel chose, as they did, to take the panel award rather than pursue OCA's contingency-fee provisions. The State, on the other hand, contends that it was not a party to the Agreement. The Court expresses no opinion on this subject as the resolution of the State's motion to remand does not require it.
[11] For the reasons stated, supra, the Court declines to exercise jurisdiction on these bases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876795/ | 283 So. 2d 501 (1973)
Diana VINET, Individually and in her Capacity as the Natural Tutrix of her son, Pierre Vinet
v.
Mr. Alex M. HANO, husband of/and Mrs. Alex M. Hano and State Farm Fire & Casualty Company.
No. 53957.
Supreme Court of Louisiana.
October 12, 1973.
Writ denied. The judgment is not final. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610222/ | 485 P.2d 1101 (1971)
In the matter of the Estate of R.L. Stout, Also Known As Reynold Lee Stout, Deceased. Catherine H. BRIDGMAN, Sometimes Known As Catherine H. Stout, Appellant,
v.
Rosario A. STOUT, Administratrix of the Estate of R.L. Stout, Also Known As Rosario Quisol Ancajas, Sometimes Known As Rosario A. Stout, Respondent, Dawn Marie Stout, Natalie G. Bell, Gay Stout, and All Persons Unnamed or Unknown, Having or Claiming Any Interest in the above-Entitled Estate As Heirs or Distributees, Defendants.
Court of Appeals of Oregon, Department 2.
Argued and Submitted April 22, 1971.
Decided June 10, 1971.
Melvin B. Goode, Albany, argued the cause for appellant. On the brief were Goode, Goode, Decker & Hinson, and Raymond D. Matthies, Albany.
George D. Leonard, Portland, argued the cause for respondent. With him on the brief were Willner, Bennett & Leonard, Portland.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
FORT, Judge.
This case presents the problem of whether or not a common-law marriage was entered into in the state of Ohio between the plaintiff, Catherine H. Bridgman, and Reynold Lee Stout, now deceased. The trial court found against the plaintiff, and she appeals.
Plaintiff and Stout began living together as husband and wife in Oregon late in 1947 or early in 1948. At that time each was lawfully married to another. Plaintiff obtained a divorce from her prior husband in May 1948 and Stout was divorced by his wife in February 1949. Plaintiff's four children remained with her, while Stout's only child, Natalie, a defendant herein, remained with her mother. Plaintiff and Stout continued to live together for many years, holding themselves out as husband and wife. They filed joint income tax returns, acquired property as tenants by the entirety, and together operated a restaurant in Albany for a number of years. They continued living together as man and wife until Stout went to work in the Philippines in 1963.
*1102 Shortly after his return in 1964, Stout married, on June 16, one Jayne I. Quigley in Oregon, sired a child, who is a defendant herein, and obtained a divorce from Jayne in Oregon in September 1965. Thereafter he and plaintiff continued living together until 1966, when Stout returned to the Far East to go into business. On April 18, 1966, he married Rosario Quisol Ancajas in Rizal Province, The Philippines. They had one child, a daughter. She and her mother are defendants herein. Stout died in Quezon City, The Philippines, on March 27, 1969, leaving substantial assets. No issue was born to plaintiff and Stout.
Plaintiff concedes that she and Stout never went through a marriage ceremony. She contends, however, that late in 1952 in the state of Ohio she and Stout entered into a common-law marriage. If they did, it follows that Stout's two subsequent marriages were bigamous. Ohio, unlike Oregon,[1] recognizes common-law marriage. Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832; 57 Weekly Law Bul. 37, 90 Ohio Law Rep. 554 (1912). It is elementary that a marriage valid in the state where it is entered into is valid in Oregon. Walker v. Hildenbrand, 243 Or. 117, 410 P.2d 244 (1966); Boykin v. Industrial Accident Com., 224 Or. 76, 81-82, 355 P.2d 724 (1960); Restatement, Conflict of Laws § 121 (1934).
The plaintiff relies here on a period of time spent by her in 1952 with Stout in Ohio. Concerning this, she testified:
"Q What was the purpose of your trip to Ohio?
"A At that time Pete was laid off here in Albany, he didn't have work, and he said, `Well, why don't we go on back to Ohio and see what John is doing? Maybe I can work with John.' So my youngest daughter and Pete and I went back to Ohio and we went to Ruth and John's.
"Q And you lived there with them how long?
"A Oh, well, we went in around the first part of November and we stayed until around Christmas, around the second week in December. We were there for Thanksgiving because we had Thanksgiving dinner, I know.
"* * *
"Q Now, it didn't work out back in Ohio for him to get a job?
"A No, he just didn't seem to like it, and so we went on to see my folks, and from there we went to see his little girl * * *."
She did not take to Ohio her three older children, who remained here in Oregon.
On her cross-examination the evidence showed:
"Q And what was the purpose of this trip? A We went to see my mother-in-law and my brother-in-law, and we were there for a visit. We stayed over Thanksgiving up into November, on up into December. From there we went to Maryland to visit my father. Q How long did you stay there? A Well, we were there from the first of November until the first of December. * * *
Q Was that the principal purpose of the visit? A Yes. * * *
"* * *
"* * * Q When you came to Ohio did you have any plans to stay for say a week, two weeks more or less, do you remember? A We were on vacation and we went back there to see his folks, and while he was there his brother needed help so we lived with his brother and helped his brother out. Q Is that one of the reasons you stayed longer?
A Yes. * * *"
*1103 At the conclusion of the trip they returned to their home in Oregon, where they continued to reside.
In Ohio a common-law marriage must be established "by clear and convincing evidence."[2] Ross, Ohio Law of Marriage, 14 Western Reserve L.Rev. 724, 731 (1963), and cases there cited. In re Estate of Redman, infra; Etter v. Von Aschen, 82 Ohio Law. Abs. 421, 163 N.E.2d 197, 11 Ohio Op. 2d 195 (1959); In re Estate of Madia, 6 Ohio Misc. 109, 215 N.E.2d 72, 35 Ohio Op. 2d 234 (1966).
In In re Estate of Redman, 135 Ohio St. 554, 21 N.E.2d 659, 14 Ohio Op. 426 (1939), the Supreme Court of Ohio stated:
"So-called common-law marriage contravenes public policy and should not be accorded any favor; indeed, it is quite generally condemned. It is well settled in Ohio that to establish a common-law marriage, all the essential elements of such a relationship must be shown by clear and convincing evidence. The statutes of Ohio contain definite regulations and requirements and prescribe rigid standards to which applicants for marriage license must conform. While these statutory provisions do not of themselves specifically prohibit marriage without the formalities enumerated by those provisions, such informal marriages are seldom recognized and are held valid by courts only to protect the rights of innocent persons. * * * [I]n such cases, the essential elements of such marriage must be established by the degree of proof stated."[3] 135 Ohio St. at 558-559, 21 N.E.2d 659, 661.
The court also said:
"* * * The essential elements of a common-law marriage in this state were announced in the case of Umbenhower v. Labus, 85 Ohio St. 238, 97 N.E. 832. The following essential requirements for such a marriage are stated in syllabus of that case:
"`An agreement of marriage in praesenti, when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law * * *.'" 135 Ohio St. at 558, 21 N.E.2d 659, 661.
Here the only evidence of an express contract to marry took place late in 1947 or early in 1948, when neither party had legal capacity to marry. Under the Ohio rule, such an agreement to be performed in the future does not meet the requirement of "an agreement of marriage in praesenti."
In Ross, Ohio Law of Marriage, cited above, the author states:
"The second essential element of a common-law marriage is a contractual agreement to presently enter into the marital status. No particular form or wording is necessary. The contract need not be in writing, nor witnessed. The contract must be made per verba de *1104 praesenti, i.e., by words in the present tense. Dictum in some of the older cases indicated that mutual promises to marry in the future, followed by cohabitation, would constitute a valid marriage. This supposed rule has been expressly rejected in Ohio and apparently is not accepted in any state today." 14 Western Reserve L.Rev. at 731.
In Walker v. Hildenbrand, supra, the Oregon Supreme Court considered at length whether a series of visits to Idaho, a common-law marriage state, aggregating 20 days over a period of three years, by an unmarried Oregon couple who were living together here as husband and wife, was sufficient to create a valid common-law marriage. In holding that it did not, and after discussing cases from several jurisdictions, the court said:
"Generally, the cases rest on the proposition that the parties either were not residents or had not intended to create a common-law marriage in the state temporarily visited. Common sense would indicate that something as serious and vital to the welfare of society as a determination of the marriage relation should not rest on something as insubstantial as a holiday visit to a common-law marriage state with a person of the opposite sex during which the participants held themselves out as husband and wife. This is particularly so where there is no evidence that the parties were aware that any change in their marital status would result or that the visit was made for the purpose of consummating a marriage. Were the law otherwise, marriage might be an even more common event than is generally supposed. It can be argued that the law should be otherwise where the parties, both previously and subsequently, lived elsewhere in what purported to be the marriage relation. However, we do not believe a determining factor should be a temporary visit for holiday purposes to a common-law marriage state. For a contrary holding see Estate of McKanna, 106 Cal. App. 2d 126, 234 P.2d 673 (1951). The case of Boltz v. Boltz, 325 Mass. 726, 92 N.E.2d 365 (1950), is also sometimes cited as a contrary holding but it should be distinguished on the ground that there was actual residence of short duration in the common-law marriage state." (Emphasis supplied.) 243 Or. at 122-123, 410 P.2d 244.
Here, too, it is clear that "there is no evidence that the parties were aware that any change in their marital status would result or that the visit was made for the purpose of consummating a marriage."
We hold the plaintiff has not established by clear and convincing evidence and in compliance with the foregoing requirements that she and Stout entered into a valid common-law marriage in Ohio in 1952. The trial court, who saw and heard the plaintiff and the other witnesses, correctly so concluded.
The judgment is affirmed.
NOTES
[1] "* * * In our opinion the doctrine of common-law marriage is contrary to public policy and public morals. It places a premium upon illicit cohabitation and offers encouragement to the harlot and the adventuress. We do not sanction loose marriages or easy divorces. * * *" Huard v. McTeigh, 113 Or. 279, 295, 232 P. 658, 39 A.L.R. 528 (1925).
[2] In Brastein v. Sedivy, 78 Ohio Law. Abs. 481, 153 N.E.2d 541 (1957), a case holding a common-law marriage was not established, the probate court stated:
"Clear and convincing proof has been variously defined as that degree of proof, though not necessarily conclusive, which will produce in the mind of the Court a firm belief or conviction or, as that degree of proof which is more than a preponderance but less than beyond a reasonable doubt. Preponderance in turn, is not determined by the number of witnesses but by the weight of the evidence which weight is determined by the witnesses' opportunity for knowledge, the information actually possessed and related, and the manner in which the testimony is given." 78 Ohio Law. Abs. at 482, 153 N.E.2d 541.
[3] In Ross, Ohio Law of Marriage, 14 Western Reserve L.Rev. 724, 729 (1963), the author points out:
"The Ohio statute is unusual in one respect. Most states permit non-residents to marry in their state. In Ohio, however, the wife must be a resident of the state and of the county where she applies for the license, unless the husband is in the armed forces." See: Ohio Rev.Code § 3101.05. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1933206/ | 348 So.2d 392 (1977)
DADE COUNTY, Appellant,
v.
YUMBO, S.A., Appellee.
No. 76-1433.
District Court of Appeal of Florida, Third District.
July 26, 1977.
Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellant.
*393 John G. Fletcher, Coconut Grove, for appellee.
Before BARKDULL, HAVERFIELD and NATHAN, JJ.
BARKDULL, Judge.
Dade County seeks review of an order of the circuit court on petition for writ of certiorari, which granted a zoning change from GU (Interim Use) to RU-TH (Townhouse District), RU-4L (Limited Apartment House 23 units/acre), and BU-2 (Special Business).
Yumbo, S.A., the owner of a 400-acre tract located in the unincorporated area of south Dade County between Homestead Air Force Base and Biscayne Bay, petitioned the County Commission for a rezoning, necessitating a change of district boundaries, to build a new type of habitat (including townhouses, apartments, businesses) where the main objective of this project would be to preserve the natural aspects of the tract by putting each of the housing units on stilts.
The County Commission denied the application for rezoning, based on the recommendations of the Building and Zoning Departments and of the Planning Department. The reasons for recommendation of denial were: (1) rezoning would be in direct conflict with a 1975 Comprehensive Development Master Plan, which indicates the property as being in a preservation area; (2) the property's proximity to Homestead Air Force Base, resulting in over-flights; and (3) insufficient public facilities for development at this time; i.e., water, sewers, roads, schools, etc.
A petition for issuance of a writ of certiorari was filed. After hearing thereon, the circuit court granted the petition for writ of certiorari and directed the County to change the zoning on the property, as requested by the property owner. This appeal ensued.
The appellant contends the circuit court erred in granting the petition for writ of certiorari by substituting its own judgment for that of the Dade County Commission, by abandoning the fairly debatable rule, by ruling that zoning resolution created an avigational easement and a taking of real property, and by destroying the Master Plan concept, which directs development in logical patterns. We agree, and reverse.
There can be no question that promulgation of zoning regulations is a proper function of the appellant herein. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla. 1954); Village of Euclid, Ohio v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). However, the trial court held, and the appellee contends, that the fairly debatable doctrine established in the aforementioned cases and their progeny has been abrogated by this court and replaced with the substantial competent evidence rule, based on the following cases: Dade County v. Carmichael, 165 So.2d 227 (Fla. 3rd D.C.A. 1964); Sun Ray Homes, Inc. v. County of Dade, 166 So.2d 827 (Fla. 3rd D.C.A. 1964); Baker v. Metropolitan Dade County, 237 So.2d 201 (Fla.3rd D.C.A. 1970); Centex Homes Corp. v. Metropolitan Dade County, 318 So.2d 149 (Fla. 3rd D.C.A. 1975); Dade County v. Marca, 326 So.2d 183 (Fla. 1976). The theory behind this argument is that the aforementioned cases have changed the law of zoning as it applies to Dade County, so that zoning actions that were formerly administrative in character are now quasi-judicial acts, to be determined upon judicial review by the substantial competent evidence rule.
Such a theory must be rejected by this court. In reviewing the cases cited by the trial court in support of its holding, we find that those cases dealt primarily not with the standard to be used in review of the evidence before the administrative body but, rather, dealt with procedure utilized to seek judicial review of the administrative ruling. Prior to Dade County v. Metro Improvement Corporation, 190 So.2d 202 (Fla. 3rd D.C.A. 1966), rulings that were classified administrative in nature were challenged by a direct attack on their validity in an equitable type proceeding. Dade County v. Markoe, 164 So.2d 881 (Fla. 3rd D.C.A. 1964); Sun Ray Homes, Inc. v. *394 County of Dade, supra. Quasi-judicial orders, on the other hand, were reviewable by certiorari in the circuit court. However, in Dade County v. Metro Improvement Corporation, supra, it was held that pursuant to § 33-316 Code of Metropolitan Dade County, certiorari was the sole method of review of a decision of the Board of County Commissioners in a zoning matter. This method was approved by this court without discussion of whether or not a zoning classification was an administrative or quasi-judicial function, until the case of Baker v. Metropolitan Dade County, supra, wherein this court, in discussing the proper method of review of a request for rezoning, stated: "* * * The commission's procedure, i.e., utilizing the resolution as a means of denying the request for rezoning, is quasi-judicial in nature. Harris v. Goff, Fla.App. 1963, 151 So.2d 642. * * *" This quoted section was reiterated in Centex Homes Corp. v. Metropolitan Dade County, supra, which again involved the appropriate method of review, but the order reviewed was a denial of a request for a variance which, since the inception of modern-day zoning, has been considered a quasi-judicial act. Thus, it would appear that (based on Baker v. Metropolitan Dade County, supra) matters pertaining to zoning classifications on property might constitute a quasi-judicial function of the Dade County Commission rather than an administrative function.
Notwithstanding that holding in Baker v. Metropolitan Dade County, supra, this court has not abandoned the fairly debatable rule in reviewing attacks on zoning classifications that were formerly administrative in nature. In fact, in Baker v. Metropolitan Dade County, supra, this court (in dealing with the zoning of a portion of the property involved therein) stated: "* * * The latter zoning is, at the very least, fairly debatable, and as such should be sustained. * * *" [emphasis added].
Subsequent to Baker v. Metropolitan Dade County, supra, this court and the Supreme Court of Florida (in dealing with zoning cases involving Dade County) have consistently applied the fairly debatable rule in those situations involving requests for rezoning, change of zoning boundary, or any other zoning act universally known primarily as an administrative action. Miles v. Dade County, Board of County Commissioners, 260 So.2d 553 (Fla. 3rd D.C.A. 1972); Metropolitan Dade County v. Crowe, 296 So.2d 532 (Fla. 3rd D.C.A. 1974); Metropolitan Dade County v. Fletcher, 311 So.2d 738 (Fla. 3rd D.C.A. 1975); Marca, S.A. v. Dade County, 332 So.2d 142 (Fla. 3rd D.C.A. 1976). See also: Renard v. Dade County, 261 So.2d 832 (Fla. 1972).
Therefore, we find that the trial court erred in holding that the fairly debatable rule had been replaced by the substantial competent evidence rule in zoning cases of this nature, and we hereby hold that in those cases involving Dade County zoning actions, which are universally considered administrative in nature, the trial court shall employ the fairly debatable rule in reviewing the County's action.
Inasmuch as the fairly debatable standard is to be employed in the instant case, the trial court further erred in entering the order appealed in that, in so doing, it improperly substituted its own judgment for that of the zoning authority. City of Miami Beach v. Lachman, supra; City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla. 1956); Smith v. City of Miami Beach, 213 So.2d 281 (Fla. 3rd D.C.A. 1968). The ordinance in question is fairly debatable and, as such, the Commission's action in denying the request for rezoning should have been sustained.
The trial court's finding that the ordinance in question created an avigational easement and a taking of real property is also erroneous under the facts of the instant case. There can be no question of the incompatibility of residential development in close proximity to an airport. Burritt v. Harris, 172 So.2d 820 (Fla. 1965); City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st D.C.A. 1964); City of Jacksonville v. Schumann, 199 So.2d 727 (Fla. 1st D.C.A. 1967); Adams v. County of Dade, 335 So.2d 594 (Fla. 3rd D.C.A. 1976). It would be proper for the County, in the exercise of its *395 police power, to enact zoning ordinances denying intensification of habitation. Smith v. County of Santa Barbara, 243 Cal. App.2d 126, 52 Cal. Rptr. 292 (1966); Morse v. County of San Luis Obispo, 247 Cal. App.2d 600, 55 Cal. Rptr. 710 (1967). Our holding herein is limited only to the decision of the County to deny the appellee's request for residential zoning and should not be construed to deny the appellee relief by way of inverse condemnation or otherwise, if the County (by its zoning practice) deprives the appellee of any reasonable use of his property. Compare Kasser v. Dade County, 344 So.2d 928 (Fla. 3rd D.C.A. 1977).
Lastly, we are confronted with the question raised by the appellant herein, to the effect that the trial court's decision destroyed the so-called "Master Plan Concept", which directs development in logical patterns. We recognize that adoption of a comprehensive development is a current trend in land use planning in those areas where urban sprawl has become commonplace. Steel Hill Development, Inc. v. Town of Sanbornton, 469 F.2d 956 (1st Cir.1972); Construction Industry Association of Sonoma County v. City of Petaluma, 522 F.2d 897 (9th Cir.1975); Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 254 A.2d 700 (1969); Golden v. Planning Board of the Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291; Section 163.3161 et seq. Florida Statutes, 1975. However, the trial judge's ruling herein was premature; there has been no showing by the appellee that his property cannot be put to a reasonable use compatible with the master plan. Furthermore, there has been no showing that the master plan is so inflexible so as to constitute County action precluding the appellee from any and all reasonable present or future use of his property. Until such time as these questions have been properly presented and litigated, we feel constrained to uphold the validity of the master plan as it applies to the specific property involved herein. Certainly, when we have found the present zoning on the appellee's property to be fairly debatable, it is not necessary to rule upon the validity of the master plan as it affects the appellee's property. Therefore, the trial court erred in finding (under the facts of the instant case) that the master plan was confiscatory as it applied to the appellee's property.
Based on the foregoing, the trial court is hereby reversed and the cause is remanded to the trial court, with directions to deny the petition for writ of certiorari.
Reversed and remanded, with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2231590/ | 893 N.E.2d 344 (2008)
WADE
v.
STATE.
No. 02A05-0801-CR-37.
Court of Appeals of Indiana.
August 11, 2008.
KIRSCH, J.
Disposition of case by unpublished memorandum decision. Affirmed.
VAIDIK, J. Concurs.
CRONE, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610226/ | 79 Wash. 2d 378 (1971)
485 P.2d 990
CLARA E. POWELL, Petitioner,
v.
THE DEPARTMENT OF LABOR AND INDUSTRIES et al., Respondents.
No. 41537.
The Supreme Court of Washington, En Banc.
June 10, 1971.
ROSELLINI, J.
This is an action by the widow of a deceased workman, claiming benefits under RCW 51.32.040. Mrs. Powell asserts a right to receive monthly installments alleged to have been payable to her husband for permanent total disability suffered between October 23, 1959, and November 27, 1961, the date of his death.
Mr. Powell sustained an industrial injury in 1952 for which he received a permanent partial disability award. On March 3, 1959, he applied to reopen his claim, alleging that aggravation of his original injury had rendered him permanently and totally disabled. The Department of Labor and Industries denied the claim on October 23, 1959, and Mr. Powell appealed to the Board of Industrial Insurance Appeals.
All hearings before the board's examiners were completed by June 6, 1961. As a result, all parties rested and the dispute was submitted to the board for determination. More than 5 months later, while still awaiting the board's decision, Mr. Powell died of a cause unrelated to the original industrial injury.
On January 11, 1962, the board held that Mr. Powell's death abated his claim and dismissed the appeal. Its order also provided that the widow's rights under the workmen's compensation act were not to be prejudiced. This terminated the first action.
*380 On January 8, 1962, Mrs. Powell filed a separate claim alleging her entitlement to a widow's pension under RCW 51.32.050 (6). The supervisor of the department rejected the claim asserting that at the time of his death Mr. Powell was not permanently totally disabled as a result of his industrial injury.
Mrs. Powell appealed to the board and all parties stipulated:
the only issue to be determined in said appeal was whether or not the deceased workman was totally permanently disabled prior to his death as a result of his injury, and that this issue could be determined on the basis of the testimony presented in connection with the appeal taken by the deceased workman during his lifetime [i.e., the first action].
Basing its decision on the record originally submitted by the workman, the board thereafter reversed the supervisor's order and directed the department to grant a widow's pension in Mrs. Powell's separate action. In so doing, the board found that: (1) the deceased workman's industrial injury became aggravated to the extent that he no longer had a reasonable degree of wage earning capacity on or about October 23, 1959; (2) said disabling condition was fixed and permanent at that time; (3) the deceased workman was permanently totally disabled in October of 1959.
The employer appealed. On January 8, 1965, the trial court affirmed the board's decision and order and in so doing entered similar findings of fact. There being no appeal, Mrs. Powell received her widow's pension effective November 27, 1961, the date of her husband's death. This concluded the second action.
Inasmuch as the board found, in the second action, that Mr. Powell had been permanently and totally disabled during his lifetime, Mrs. Powell requested the department to pay her the permanent total disability benefits to which her husband would have been entitled had he not died. She claimed that RCW 51.32.040 entitled her to receive the monthly installments that would have been payable to him between October 23, 1959 (the date on which the board, in *381 the second action, found Mr. Powell to have become totally and permanently disabled), and November 27, 1961 (the date of his death).
On July 8, 1965, the department rejected Mrs. Powell's claim. Thereafter, she appealed unsuccessfully to the board, to the superior court and to the Court of Appeals. Each, in turn, held that Mr. Powell's death abated his claim in the first action. It was said that, inasmuch as the claim was personal to him, and since he had not been awarded monthly installments as a permanently totally disabled workman during his lifetime, his widow was not entitled to pursue the apparent relief indicated in the second portion of the first proviso of RCW 51.32.040. The decisions of this court which were held to be controlling are Urban v. Department of Labor & Indus., 75 Wash. 2d 787, 454 P.2d 395 (1969); Curry v. Department of Labor & Indus., 49 Wash. 2d 93, 298 P.2d 485 (1956); and Albertson v. Department of Labor & Indus., 28 Wash. 2d 750, 184 P.2d 53 (1947). This court has granted Mrs. Powell's petition for review.
Mrs. Powell does not seek to recover benefits as a personal representative of her deceased husband. The right which she asserts is based upon her status as a widow under RCW 51.32.040. She recognizes that this court has held, in the cases cited above, that the widow of a deceased workman cannot collect his unpaid award for permanent partial disability under the first proviso of RCW 51.32.040 unless an award was made during the workman's lifetime. However, she contends that, since her claim is for total disability payments rather than a partial disability award, she is entitled to receive these payments, even though there was no finding made by the department, during her husband's lifetime, that he was entitled to such compensation. She relies upon Wintermute v. Department of Labor & Indus., 183 Wash. 169, 48 P.2d 627 (1935), and Lightle v. Department of Labor & Indus., 68 Wash. 2d 507, 413 P.2d 814 (1966).
In the first of these cases, this court held that a widow was entitled to receive compensation for aggravation of her *382 husband's condition prior to his death, even though no decision had been rendered in his favor on his claim during his lifetime; and in the second cited case, it held that a widow was entitled to payments for her husband's time loss (temporary total disability) although his right had not been established at the time of his death.
The statutory provision in question, as amended by the Laws of 1957, ch. 70, § 29, provided, insofar as pertinent:
No money paid or payable under this title out of the accident fund or out of the medical aid fund shall, prior to the issuance and delivery of the warrant therefor, be capable of being assigned, charged, or ever be taken in execution or attached or garnished, nor shall the same pass, or be paid, to any other person by operation of law, or by any form of voluntary assignment, or power of attorney. Any such assignment or charge shall be void: Provided, That if any workman suffers a permanent partial injury, and dies from some other cause than the accident which produced such injury before he shall have received payment of his award for such permanent partial injury, or if any workman suffers any other injury and dies from some other cause than the accident which produced such injury before he shall have received payment of any monthly installment covering any period of time prior to his death, the amount of such permanent partial award, or of such monthly payment or both, shall be paid to his widow, if he leaves a widow, or to his child or children, if he leaves a child or children and does not leave a widow: Provided further, That, if any workman suffers an injury and dies therefrom before he shall have received payment of any monthly installment covering time loss for any period of time prior to his death, the amount of such monthly payment shall be paid to his widow, if he leaves a widow, or to his child or children, if he leaves a child or children and does not leave a widow:
...
This case brings into focus the fact that this court has pursued two conflicting interpretations of the legislative intent in enacting the provisos to this statute. In one of those cases in which the court has held that an award must have been made prior to the death of the workman, the court has attached significance to the legislative use of the *383 word "award" and assumed that the use of that word implies a requirement that an award must have been made prior to the workman's death. Urban v. Department of Labor & Indus., supra. But in none of the cases has the court justified this restrictive interpretation by any reference to a probable legislative purpose.
In Curry v. Department of Labor & Indus., supra, there is no discussion of the reason for the holding that an award must have been made during the lifetime of the workman in order for the widow to receive her husband's award for permanent partial disability. The opinion merely states that this is the law according to Albertson v. Department of Labor & Indus., supra. The Albertson case is similarly devoid of any rationale about the meaning of the provisos. Furthermore, this court, in that case, did not hold that an award must have been made during the lifetime of the workman in order for dependents to enjoy the benefits of these provisos but rather held, without explanation, that the workman's minor children did not "fall within" the provisos.
As we have observed above, this court, in Urban v. Department of Labor & Indus., supra, did seek a rational basis for holding that in permanent partial disability cases, where the workman dies of some cause other than the injury (the first proviso), an award must have been made prior to his death if his widow is to receive the compensation to which he was entitled but which was not collected by him prior to his death. This rationale was attempted, not so much to determine the true legislative intent, but rather to seek a rational basis upon which to distinguish the Curry and Albertson cases from Lightle v. Department of Labor & Indus., supra. A further basis of distinction was found in the fact that the first proviso applies where the workman died from some cause other than his industrial injury, while the second proviso applies where he died as a result of the injury itself. The possible legislative purpose in making this distinction was not explored.
The Urban decision was signed by only five members of *384 this court with four dissenting. Upon reexamining that opinion, we are convinced that we were in error in attaching significance to the use of the word "award" in the first proviso and also in the distinction which we made between the provisos upon the basis of the cause of death. It is apparent that the legislature used the word "award" in describing the benefits payable for permanent partial disability for the simple reason that the compensation provided for such disabilities takes the form of fixed awards. See RCW 51.32.080.[1] On the other hand, compensation for permanent or temporary total disability is made in the form of monthly payments, the total amount payable to any workman being dependent upon the length of time he is disabled. See RCW 51.32.060 and .090. Thus the terms "award" and "monthly payment," as they are used in these provisos of RCW 51.32.040 are descriptive of the type of compensation provided for the particular disability to which reference is made in the provisos.
We find no rational basis for an inference that the legislature, when it used the term "award," meant to restrict the right of a widow whose husband suffered a permanent partial disability to receive payment of compensation which he would have received had he lived, to a greater degree than it restricted the right of a widow whose husband was totally disabled.
We are likewise unable to ascertain a rational legislative purpose in denying to a widow whose husband died from a cause other than his industrial injury the right to collect sums to which her husband was entitled during his lifetime but which were not paid, unless an award was made during his lifetime. It should be noted that the only provision for payment to a widow whose husband died from his industrial accident is the second proviso, which allows her to recover only time loss payments. There must be a reason why there is no provision for compensation for temporary *385 or permanent disability, and the reason would appear to be that such awards are merged in the death benefits provided in RCW 51.32.050.
[1] Reading these first two provisos together, we are compelled to conclude that it was the primary legislative intent to provide that widows of workmen who died of causes other than their injuries may recover any compensation to which their husbands became entitled by reason of having suffered industrial accidents but which they did not receive during their lifetimes. We find no expression of a legislative intent to restrict such recovery to cases where a final determination had been made, prior to the workman's death, that he was entitled to it.
Seen in this light, the provisos complement RCW 51.32.050, providing death benefits where the workman dies of the injury; and the second proviso makes provision for the equal treatment of widows whose husbands did not receive their time loss payments prior to their deaths.
We are not disposed to make further distinctions between the cases, as Mrs. Powell suggests that we do, in order to justify her claim. Rather, this court is of the opinion that Urban v. Department of Labor & Indus., 75 Wash. 2d 787, 454 P.2d 395 (1969); Curry v. Department of Labor & Indus., 49 Wash. 2d 93, 298 P.2d 485 (1956), and Albertson v. Department of Labor & Indus., 28 Wash. 2d 750, 184 P.2d 53 (1947), to the extent that they hold that a widow may not receive her husband's award for permanent partial disability unless his right to it was established before his death, should be overruled. The interpretation which this court should give to both provisos should harmonize them and should give effect to the expressed legislative intent, which we believe we have examined more thoughtfully, and correctly assessed in the Lightle and Wintermute cases. In Lightle v. Department of Labor & Indus., 68 Wash. 2d 507, 413 P.2d 814 (1966), we said:
We are committed to the rule that the Industrial Insurance Act is remedial in nature and its beneficial purposes should be liberally construed in favor of beneficiaries. Wilber v. Department of Labor & Indus., 61 Wash. 2d 439, *386 446, 378 P.2d 684 (1963), and cases cited. We have held that a liberal construction of the act does not dispose of the requirement that a claimant must prove his claim by competent evidence. Ehman v. Department of Labor & Indus., 33 Wash. 2d 584, 595, 206 P.2d 787 (1949), and cases cited. In this regard, in order to recover time loss compensation under this proviso, it is incumbent on the widow to show (1) that her husband suffered a compensable injury during the course of his employment, (2) that as a direct result of the alleged injury the workman (her husband) died, and (3) that the workman was entitled to time loss resulting from the injury and for which he had not been compensated during his lifetime.
As we recognized in that opinion, this statute contains no language to indicate a legislative intent that the widow's right to collect her husband's compensation should be made contingent upon his success in getting his evidence before the Department of Labor and Industries and receiving a favorable decision prior to his death. We cannot assume that the legislature intended a valuable right to depend upon such a fortuity as the length of time between an accident and the death of the victim from some other cause.[2]
[2] It is suggested that this court should not overrule a decision interpreting a statute when the legislature has not seen fit to change the language of that statute after previous judicial interpretation. We do not think that the principle of stare decisis should govern our disposition of a question of interpretation where the court has itself adopted conflicting interpretations of the same statute. The duty of the court in such a case is to clarify and resolve its previous decisions, and it should not assume that the legislature has approved an interpretation which is in obvious derogation of the expressed statutory purpose.
We hold that under the provisions of RCW 51.32.040, a *387 widow of a workman who has suffered an industrial injury and has died from some other cause, is entitled to receive the compensation to which her husband was entitled but which he did not receive, whether or not a decision in his favor was rendered by the department prior to his death.
In the case before us, the Board of Industrial Insurance Appeals has determined, upon the evidence, that Mrs. Powell's husband was totally disabled from October 23, 1959, until November 27, 1961. Having made that determination, the board should have ordered that payments for such disability, which the workman did not receive during his lifetime, should be made to his widow.
The decision of the Court of Appeals is reversed, and the cause is remanded with directions to allow the claim.
HAMILTON, C.J., FINLEY, HUNTER, HALE, NEILL, STAFFORD, and SHARP, JJ., concur.
NOTES
[1] It is true that under paragraph (5) of this section, certain awards are to be paid in monthly installments, but the total amount is fixed, and the balance is to be paid to the widow, on the death of the workman, in a lump sum.
[2] Some additional reasons why the legislature should not be held to have intended to place upon the widow's right a restriction which bears no relation to any purpose or object of the Workmen's Compensation Act, are set forth in the dissents of Hale, J., and Finley, J., in Urban v. Department of Labor & Indus., 75 Wash. 2d 787, 454 P.2d 395 (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3102240/ | The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
May 29, 2014
No. 04-14-00372-CR
Andres Ramon JUAREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR0936B
Honorable Mary D. Roman, Judge Presiding
ORDER
A Trial Court’s Certification of Defendant’s Right of Appeal has been filed in this appeal
in which the trial court judge certifies that the underlying criminal case “is a plea-bargain case,
and the defendant has NO right of appeal” and “defendant has waived the right of appeal.” It is
therefore ORDERED that the trial court clerk electronically file a clerk’s record, no later than
June 9, 2014, containing the following documents:
1. All pre-trial orders and the related pre-trial motions;
2. The Court Admonishments, the Waiver, Consent to Stipulation of Testimony and
Stipulations, and all other documents relating to the defendant’s plea bargain;
3. The judgment;
4. All post-judgment motions and orders;
5. The notice of appeal;
6. The Trial Court’s Certification of Defendant’s Right of Appeal; and
7. The criminal docket sheet.
The clerk of this court is ORDERED to send a copy of this order to the attorneys of record, the
trial court clerk, and the court reporter(s) responsible for preparing the reporter’s record in this
appeal.
_________________________________
Sandee Bryan Marion, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 29th day of May, 2014.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2899876/ | NO. 07-08-0400-CR
NO. 07-08-0401-CR
NO. 07-08-0402-CR
NO. 07-08-0403-CR
NO. 07-08-0404-CR
NO. 07-08-0405-CR
NO. 07-08-0406-CR
NO. 07-08-0407-CR
NO. 07-08-0408-CR
NO. 07-08-0409-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 27, 2009
______________________________
ILDEFONSO SANTIAGO MARTINEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________
FROM THE 251
ST
DISTRICT COURT OF POTTER COUNTY;
NOS. 56,136-C, 57,334-C, 57,335-C, 57,336-C, 57,337-C,
57,338-C, 57,339-C, 57,340-C, 57,341-C and 57,342-C;
HON. ANA ESTEVEZ, PRESIDING
_______________________________
MEMORANDUM OPINION
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
After a jury trial, appellant Ildefonso Santiago Martinez was convicted of eight counts of aggravated sexual assault and two counts of indecency with a child. Punishment was assessed by the jury at life imprisonment for each count of aggravated sexual assault and twenty years imprisonment for each count of indecency with a child with the sentences to run consecutively.
Appellant’s appointed counsel has filed motions to withdraw, together with an
Anders’
(footnote: 1)
brief, wherein he certifies that, after diligently searching the record, he has concluded that appellant’s appeals are without merit. Along with his brief, he has provided a copy of a letter sent to appellant informing him of counsel’s belief that there was no reversible error and of appellant’s right to file a response
pro se.
By letter dated December 12, 2008, this court also notified appellant of his right to file a response by January 12, 2009, if he wished to do so. To date, we have received neither a response nor a request for extension of time to file one.
In compliance with the principles enunciated in
Anders
, appellate counsel discussed various phases of the trial including pre-trial and voir dire, the guilt/innocence phase, the charge conference and the court’s charge, final arguments on guilt/innocence, and the punishment phase. In doing so, he analyzed why he perceived there to be no reversible error during each phase. He also discussed whether the evidence was sufficient to support the verdicts and whether the stacking of appellant’s sentences constituted cruel and unusual punishment, but again he concluded there was no reversible error. Thereafter, we conducted our own review of the record to assess the accuracy of appellate counsel’s conclusions and to uncover any reversible error pursuant to
Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991) and concluded the same.
Accordingly, the motions to withdraw are granted, and the judgments are affirmed.
Brian Quinn
Chief Justice
Do not publish. the lights were off, although they had been on when she left. When she went inside, she discovered the televisions were missing. She later discovered a bracelet and a gold watch were also missing. Amador denied knowing appellant or that she had ever given him permission to enter her house. She did not know that the window had been broken in the rear of the house until the police officer discovered it. She claimed it had not been broken when she left for work.
Amador admitted that her husband, from whom she was separated at the time of the burglary, would often have friends over on the weekend to drink, although she believed she knew his friends. She stated that appellant was not a friend and she had never seen him prior to being shown his picture in a photograph spread. The Sunday prior to the burglary, her husband had someone else at the house with him, but she did not know who it was. She also agreed that the week of the burglary her husband could have come into the house because he had a spare key. Amador further admitted that she did not know all of her husband’s friends. Additionally, she told the police officer that only she and her baby lived in the house.
Appellant testified that he knew Amador’s husband and that he had been to the house with him a few days before being arrested. They were there for about 30 minutes and used some cocaine. He claimed that although Amador’s husband had a key, he could not get it to work at first, so appellant tried to open the kitchen window when Amador’s husband warned him it was broken. However, appellant grabbed the window to remove broken glass from when Amador’s husband allegedly broke it sometime prior to April 19. These actions caused his fingerprints to be on both the inside and outside of the window. Appellant also claimed he had been at the house one other time and Amador had seen him there. He denied taking any property from the house.
Matthews was recalled on rebuttal to testify that appellant told him he did not know anyone who lived at the residence or that he had ever been in the residence. Matthews stated appellant did not tell him about the window being broken prior to April 19, or that he had been doing drugs in the house.
In his first issue, appellant claims the evidence raises the issue of whether the complainant’s husband consented to appellant’s entry into the house because there was no testimony contradicting the fact that the husband had access to the house.
When there is more than one owner of property, the State has to allege and prove ownership in only one of them. Tex. Code Crim. Proc. Ann. art. 21.08 (Vernon 1989). Further, it has been held that when the owner testifies entry was without consent, it is not necessary for the wife of the owner to also state that the entry was without consent.
Dykes v. State
, 657 S.W.2d 796, 797 (Tex.Crim.App. 1983).
Lack of consent may be proven by circumstantial evidence.
Schenk v. State
, 652 S.W.2d 509, 510 (Tex.App.--Houston [1
st
Dist.] 1983, pet. ref’d). In this instance, there was direct testimony from Amador that she did not give appellant consent to enter her house, she did not know him and had never seen him before the burglary, and she did not know him to be a friend of her husband. There was also contradicting testimony from appellant that he was acquainted with Amador’s husband, who gave consent to enter the house. Further, Amador could not state that her husband had not been in the house the week of the burglary or that she knew all of his friends.
Appellant relies on
Villanueva v. State
, 711 S.W.2d 739 (Tex.App.--San Antonio 1986, pet. ref’d), as authority that the evidence is insufficient to show lack of consent. In that case, the owner’s children were residing with her at the time of the burglary. Although she testified that she did not give the defendant consent, she admitted that he was an acquaintance of her son David and had been in the house several times. Another son testified that he saw David and the defendant come into the house the night before and the next morning saw the defendant run out of the house with a television. The defendant testified he entered with David’s consent while David himself did not testify. The court found that the owner’s children were in control and possession of the residence at that time, and in view of the uncontradicted testimony that the defendant entered with consent, the State failed to prove lack of consent beyond a reasonable doubt.
Id.
at 740.
We believe the facts before us are distinguishable because, in this instance, there was rebuttal testimony from the police officer that appellant told him he did not know anyone in the house and had not been in the house, thereby contradicting appellant’s claim that he knew Amador’s husband and entered the house on two occasions with the consent of her husband.
(footnote: 1) It was within the province of the jury to weigh the conflicting testimony and determine the credibility of appellant. Thus, Amador’s and Matthews’s testimony, if believed, was sufficient to show a lack of consent. Appellant’s first issue is overruled.
In his second issue, appellant asserts the evidence is legally insufficient to prove he attempted to commit or committed theft. He argues there is no evidence to connect him with any stolen property because none was recovered, no one saw him with any stolen property, and he did not have any cash or drugs on him at the time of his arrest. The evidence only shows his presence at the scene of the crime which, he posits, is not sufficient to support a conviction.
It is true that the mere presence of an accused at the crime scene will not support a conviction, but it is a circumstance tending to prove guilt which, when combined with other facts, may suffice.
Johnson v. State
, 537 S.W.2d 16, 18 (Tex.Crim.App. 1976). As already noted, there were no witnesses to the burglary, appellant was not observed at the crime scene, and none of the stolen items were found in appellant’s possession. Evidence was presented that appellant’s fingerprints were found both inside and outside a window that the complainant testified had not been broken prior to her leaving for work. Items immediately by the window on the inside of the house were “knocked around.” Several pieces of property, including two television sets, were also missing when the complainant returned from work.
There is a line of cases holding that fingerprint evidence is sufficient to sustain a conviction if the evidence shows that the prints were necessarily made at the time of the burglary.
Bowen v. State,
460 S.W.2d 421, 423 (Tex.Crim.App. 1970);
Dues v. State,
456 S.W.2d 116, 117 (Tex.Crim.App. 1970);
Guzman v. State
, 732 S.W.2d 683, 685 (Tex.App. --Corpus Christi 1987, no pet.).
The Court of Criminal Appeals has since abandoned the standard of review in effect at the time
Bowen
and
Dues
were decided, which was that evidence is insufficient to support a conviction if there exists a reasonable hypothesis other than appellant’s guilt.
The standard of review we must use is that which we have already explicated and its state progeny.
The evidence is undisputed that appellant’s fingerprints were found on both the outside and inside of the window. Appellant offered an explanation at trial for the presence of his fingerprints. This explanation included a statement that the window had been broken for some time prior to the date of the burglary, which the complainant denied, and that he had been previously seen by the complainant in the house with her husband, which she also denied. There was also evidence that appellant claimed to police he never had been inside the house or to have known the persons living there. Thus, the jury had before it conflicting evidence as to whether the prints were made at the time of the burglary or some other time. However, the evidence in the light most favorable to the verdict would allow a rational trier of fact to find appellant committed a theft. Appellant’s second issue is overruled.
Having overruled both of appellant’s issues, we affirm the judgment of the trial court.
John T. Boyd
Chief Justice
Do not publish.
FOOTNOTES
1:See Anders v. California,
386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
1: | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876839/ | 283 So. 2d 499 (1973)
TRI-PARISH BANK & TRUST CO.
v.
Leopold RICHARD, Jr., et al.
No. 53939.
Supreme Court of Louisiana.
October 12, 1973.
Writ denied. The judgment of the Court of Appeal is correct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610273/ | 207 Kan. 246 (1971)
485 P.2d 199
LOLA I. HOWARD, Appellant,
v.
GEORGE R. MILLER, Appellee.
No. 45,952
Supreme Court of Kansas.
Opinion filed May 15, 1971.
Donald A. Bell, of Wichita, argued the cause, and Brian G. Grace, of Wichita, was with him on the brief for the appellant.
William R. Smith, of Wichita, argued the cause, and Stephen J. Jones, of Wichita, was with him on the brief for the appellee.
The opinion of the court was delivered by
HARMAN, C.:
This was an action for damages for personal injury arising out of an automobile collision. By answers to special questions a jury found both litigants negligent in the operation of their vehicles and it returned a general verdict for defendant George R. Miller. Plaintiff Lola I. Howard has appealed from the judgment subsequently rendered against her.
We briefly summarize the evidence received at trial.
The locale of the collision was the intersection of Twenty-fourth and Mascot streets in Wichita, which was approximately three-fourths of a block south of plaintiff's home. Mascot street, a north and south street, dips just prior to intersecting Twenty-fourth street from the north. A large church was located in the area northeast of the intersection, seventy-four feet north of the street line. On the date of the collision, June 9, 1966, high weeds were growing near the northeast corner of the intersection. The weed patch was fifteen to twenty-five feet in width and extended 135 feet east from the *247 intersection along the north side of Twenty-fourth street. Mascot street south of the intersection was all concrete; the concrete extended east and west of the intersection for a distance of ten feet and north of the intersection for a distance of fifteen feet. North of the intersection Mascot street was a dirt road. Twenty-fourth street east of the intersection was graveled.
At about 8:10 a.m. on the day in question plaintiff left her home, driving southward in her Volkswagen. She testified she looked to her right as she approached the intersection (this view was open and unobstructed). As she passed the church she looked to the left and could see down Twenty-fourth about 150 feet. Defendant's car was not in her view at that time and she saw no other movement. She looked back again to the right and was either still looking to the right or proceeding to look back when she was struck by defendant's Buick, which she had not previously seen. After passing the church she had not again looked to the left. The weeds could have partially obstructed her view to the left but the view between the church and the weeds was clear. After the collision defendant came over to plaintiff's automobile and said he had not seen her and evidently she had not seen him.
An investigating officer placed the point of impact somewhat south of the center of the intersection in its southwest quadrant. Both streets were thirty feet wide. Defendant told the officer he had seen plaintiff's car from a distance of fifty feet. The officer found no evidence of speed in excess of thirty miles per hour. He observed skidmarks twenty-nine feet in length on the concrete which were made by defendant's automobile up to the point of impact. The skidmarks extended further eastward into the graveled part of Twenty-fourth street but were not identifiable because other vehicles had obscured them after the collision. The right front of the Buick struck the left front fender and left side of the Volkswagen.
On behalf of plaintiff a police officer who qualified as an expert in accident reconstruction testified as to certain conclusions respecting the collision. He believed the speed of the Volkswagen at the point of impact to have been nineteen miles per hour. He was not permitted to testify as to other matters which will be noticed later.
The defendant testified he had not previously crossed the intersection where the collision occurred and was not familiar with it. *248 As he drove west on Twenty-fourth he was traveling fifteen or twenty miles per hour. He started to cross the intersection and didn't see anything. Then all of a sudden through the weeds he saw plaintiff's car. He could see plaintiff wasn't looking at him. He tried to avoid the collision by swerving to the left and putting on his brakes. He was probably forty or fifty feet from her car when he first saw her. He believed her vehicle entered the intersection first although only slightly ahead of his. He was given a citation for failure to yield the right-of-way and was convicted in court.
The jury in its answers to special questions found the defendant guilty of negligence causing the collision, which negligence consisted of failure to maintain proper lookout, excessive speed, failure to yield right-of-way and failure to maintain proper control; the jury also found plaintiff guilty of contributory negligence in failing to maintain proper lookout and, as indicated, returned a general verdict for defendant.
In our view the most serious matter raised on appeal concerns unrecorded communication between the trial court and the jury which occurred in other than open court and without notice to the parties. Counsel for plaintiff did not learn of the communication until after the jury had returned its verdicts, and then only through conversation with the jury foreman. The matter was called to the trial court's attention by way of plaintiff's motion for new trial. The facts concerning it were stipulated to by the parties, which stipulation was incorporated into the court's order overruling defendant's motion for new trial, as follows:
"(A) That during the course of the deliberations of the jury herein on April 17, 1968, a question arose amongst the jurors relative to the instructions and/or to the special interrogatories which were submitted to the jury;
"(B) That to resolve this question the jury composed and sent to the Court a question written out on a piece of paper and handed to the bailiff, which question was delivered to the Court;
"(C) That the exact form and content of this question is not now ascertainable, but that it apparently pertained to a question as to whether or not an error in judgment was negligence;
"(D) That the Court composed an answer in response to this question and had it delivered by the bailiff to the jury, the precise terms and nature of this answer being unknown at this time, but which answer probably informed the jury that it was their duty to decide whether or not an error in judgment was negligence;
"(E) That the Court did not advise counsel for the plaintiff nor counsel for the defendant that this question had been received from the jury by the Court at any time prior to making a response to this question and that counsel *249 for the plaintiff only discovered this occurrence by reason of conversations with the jury foreman after the jury had returned its verdict; and,
"(F) That this stipulation is being entered into for and on behalf of both parties by reason of the fact that no record was made at the time of the argument of this Motion and by reason of the fact that it is the desire of both parties to enable an accurate record to be made of this above described occurrence at the least possible expense to said parties."
Plaintiff asks for new trial because of disregard of statutes governing communication with a jury.
K.S.A. 60-248 provides:
"Jury trial procedure....
"(e) Jury may request information after retiring. After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of, or after notice to, the parties or their counsel."
K.S.A. 60-251 provides:
"Instructions to Jury....
"(b) When waived. No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury."
Since territorial days we have continuously had statutes providing that communication between court and jury as to the law in the case shall take place in the presence of, or after notice to, the parties or their counsel. Despite this plain injunction against private communication between judge and jury, our reports reflect many instances of its disregard, which practice has always been held to be erroneous. See, e.g., Joseph v. National Bank, 17 Kan. 256, 262, (1876).
Our cases on the subject appear to fall in two categories. First, in instances in which the facts were fully disclosed and all that was communicated by the judge to the jury was set forth in the record, and it affirmatively appeared no prejudice resulted from the communication, the irregularity was held not to be reversible error. A recent example of this situation, although slightly different factually in that the trial judge there hand-carried answers to jury questions into the jury room, is Davis v. Best Cabs, Inc., 203 Kan. 930, 457 P.2d 516, in which this court stated:
"It is not uncommon for a jury to request information after it has retired to *250 deliberate. Our procedural code recognizes this and provides a method for dealing with it in open court (K.S.A. 60-248 [e]). Compliance with the code would obviate being plagued as here. Appellants cite cases where judgments based on jury verdicts have been reversed because the trial judge entered the jury room and talked to the jury, reversal being based upon appearance of evil rather than any specific showing of evil. We do not think that line of cases applicable under the facts here. However, we cannot put the stamp of approval upon the practice of a trial judge carrying information to the jury room. Wherever possible the trial judge should avoid casting himself in a role where he must be a testimonial witness to the fact the secrecy and sanctity of the jury deliberations have been preserved. Despite the appeal of measures which may appear expedient to the busy trial judge, strict adherence to statutory provisions cannot be too strongly emphasized. We should state this record makes it clear nothing prejudicial to the rights of any litigant occurred and the trial judge's action was prompted only by conscientious anxiety that the jury be properly informed." (pp. 935-936.)
See, also Canfield v. Oberzan, 196 Kan. 107, 410 P.2d 339; Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P.2d 1192, and State v. Scholl, 118 Kan. 629, 236 P. 816, in which latter case this court declared: "... all [the trial judge's] communications with the jury ought to be in open court." (p. 635.)
The second category of cases is comprised of those in which it was impossible to know whether prejudice resulted from the error and a new trial was therefore ordered. Illustrative of this line are Tawzer v. McAdam, 134 Kan. 596, 7 P.2d 516, and Eikmeier v. Bennett, 143 Kan. 888, 57 P.2d 87.
In Tawzer the trial judge entered the jury room during its deliberation at its request and discussed certain aspects of the case. In holding the incident prejudicially erroneous this court, after quoting R.S. 60-2911 and 60-2913 which for present purposes are identical with K.S.A. 60-248 (c) and 60-248 (e), stated:
"The statute [60-2911] which provides for the seclusion of the jury from all communication with any person other than their own membership is quite strict and specific.
..............
"The only pertinent exception to the foregoing statutory rule deals with the jury's possible desire to be further informed on the law or the evidence, in which case the jury should be brought into court and counsel for the litigants notified and given an opportunity to attend. [p. 599]
..............
"In view of these statutory provisions it was altogether irregular for the presiding judge to go to the jury room and hold conversation with members of that body while they were deliberating on their verdict. It was highly improper to do so touching any aspect of the case under consideration in the absence of counsel for the litigants. The law books are laden with decisions *251 holding that such departure from correct practice constitutes reversible error. [p. 600.]
..............
"... the jurors could hardly fail to be influenced by the judge's conversation with them on that point in the jury room. This court therefore feels bound to hold that the incident complained of was prejudicially erroneous." (p. 601.)
In Eikmeier this court reversed because the trial court gave the jury a coercive instruction in the absence of counsel for either party. Although the instruction was recorded this court noted that the manner in which it was given could not be separated from its nature and further stated:
"We are not inclined to hold that in every case it would be error to give the jury additional instructions without notice to or presence of parties or their counsel, although the practice is subject to much criticism. The difficulty in showing a prejudicial result is almost insurmountable, and the trial courts should avoid putting the losing party in such a predicament." (p. 891.)
See also Stager v. Harrington, 27 Kan. 414, 421.
A case closely akin factually to that at bar confronted the Massachusetts Supreme Court in 1915 in Lewis v. Lewis, 220 Mass. 364, 107 N.E. 970. There, after the jury had retired to deliberate, the trial judge responded to a request by it for information. The court never advised the parties or their counsel of this occurrence. The jury thereafter returned a verdict. The nature of the question and the judge's response were not disclosed on the record and the complaining party never learned the nature of the communication. Upon a hearing for motion for new trial the judge noted that in his opinion the question was immaterial and he had so advised the jury. After reviewing numerous authorities the court stated:
"In all these cases where it has been held that the irregularity was not fatal, the facts were disclosed fully and all that was communicated by the judge to the jury was plainly set forth on the record. In the case at bar, the excepting party did not know at the time and does not know now the substance or nature of the communication from the jury to the judge, nor of his reply. The statement filed by the judge throws no light upon the subject, and we are as ignorant as the excepting party." (p. 369.)
The Massachusetts court then considered a statute prohibiting the granting of a new trial unless it appeared the substantial rights of the complaining party had been affected. The court concluded whatever the question was that had been asked it must have related to information about the law and the statute in question was not applicable to the giving of a secret instruction to the jury. In reversing the lower court exclusively on this issue the court said:
*252 "Correct instructions upon matters of law are of the very substance of jury trial at common law.... Secret instructions or clandestine communications, no matter if given with the best of intentions, contravene this fundamental and essential conception of common law trial by jury." (p. 370.)
For other like decisions see anno. 41 A.L.R.2d § 10, p. 305.
Defendant here urges affirmance of the judgment because the question which was communicated to the trial court was answered correctly, and hence there was no prejudice. The difficulty is the record fails to support this contention factually. The most the record tells us is the answer probably was correct and probably there was no prejudice. We do not believe a litigant in a court of record should be required to accept this kind of clouded disposition of his cause.
Here the question of contributory negligence was crucial to plaintiff. The private instruction may or may not have borne on this issue and its giving may or may not have affected the result. We do not know and because we are unable, from examination of the entire record, to declare the error harmless we must hold it to be reversible error and ground for a new trial.
Plaintiff complains of other matters which should be briefly noticed since new trial must be ordered.
Plaintiff's accident reconstruction expert was not permitted to give his opinion as to speed of defendant's automobile when it struck plaintiff's vehicle and as to the relative times each had entered the intersection. Plaintiff urges error in the exclusion. The trial court's action was evidently based on the fact the witness had examined defendant's Buick only from photographs and had used repair estimates on it furnished by others and because the length of its skidmarks was not wholly ascertainable. Under K.S.A. 60-456 (a) a trial court is vested with wide discretion in receiving opinion evidence (Osborn v. Lesser, 201 Kan. 45, Syl. ¶ 2, 439 P.2d 395). We have reviewed the proffer of the excluded testimony and are unable to declare abuse of discretion in the exclusion.
Plaintiff contends there was no evidence of contributory negligence and therefore that issue should not have been submitted to the jury. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for that of a jury (Osborn v. Lesser, supra). The evidence here is not of that character. The nature of the view at the intersection and plaintiff's actions in approaching *253 and entering it, as already set forth, sufficiently indicate why submission to the jury of the issue of contributory negligence was proper.
Somewhat allied with this is plaintiff's complaint against an instruction given and the refusal to give another requested. The court's instruction No. 12 stated:
"The driver of a motor vehicle upon a public street, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street will comply with the obligation imposed upon them, is not absolved from the consequence of his own independent negligent acts."
The instruction correctly stated the law (Jarboe v. Pine, 189 Kan. 44, 366 P.2d 783; Morris v. Hoesch, 204 Kan. 735, 466 P.2d 272) and taken as it must be in connection with all the other instructions did not unfairly emphasize defendant's theory of the case. Nor do we believe the failure to give the requested instruction compounded that emphasis. Its substance so far as appropriate was contained in other instructions given and we are satisfied no prejudice resulted from the refusal.
For the reason given the judgment is reversed with directions to sustain plaintiff's motion for new trial.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899576/ | NO. 07-08-0285-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 24, 2009
______________________________
JIMMY DALE HOLLON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 213TH CRIMINAL DISTRICT COURT OF TARRANT COUNTY;
NO. 1102864R; HONORABLE LOUIS STURNS, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Jimmy Dale Hollon, was convicted by jury verdict of aggravated sexual
assault of a child and indecency with a child by contact. The jury assessed punishment
for each offense respectively at seven years confinement and ten years community
supervision. Appellant appeals his conviction for aggravated sexual assault of a child and
asserts a single point of error that the jury charge authorized a non-unanimous verdict. We
affirm.
Background
On February 28, 2008, the Tarrant County Grand Jury returned a three count,
multiple theory, indictment charging Appellant with two counts of aggravated sexual assault
of a child and one count of indecency with a child by contact. Count Two charged
Appellant with aggravated sexual assault of a child as follows:
COUNT TWO: And it is further presented in and to said Court that the
Defendant in the County of Tarrant and State aforesaid on or about the 1st
day of May, 2006, did then and there intentionally or knowingly cause the
penetration of the anus of [A.L.], a child younger than 14 years of age who
was not the spouse of said defendant, by inserting his penis into her anus.
PARAGRAPH TWO: And it is further presented in and to said court that the
defendant in the County of Tarrant . . . on or about the 1st day of May, 2006,
did then and there intentionally or knowingly cause the anus of [A.L.], a child
younger than 14 years of age who was not the spouse of said defendant, to
contact the sexual organ of the defendant . . . .
The State waived Count One and proceeded to trial on Count Two (aggravated
sexual assault of a child) and Count Three (indecency with a child). At trial, the jury heard
evidence that, in May 2006, A.L. made an outcry to her mother that Appellant was sexually
abusing her. A.L.’s mother worked for Appellant’s wife. While Appellant’s wife and A.L.’s
mother were at work, Appellant kept A.L. and her younger brother. A.L. told her mother
that Appellant was “messing with [her] tee-tee with his fingers” and “tried to wiggle his tee-
2
tee in her booty.” When examined by a pediatric nurse practitioner, A.L. told her that
Appellant’s finger rubbed and penetrated her tee-tee and his tee-tee went into her butt.
When asked if anything had come out, A.L. told the nurse there was a wet spot on the bed.
A.L. testified that, during her naps, Appellant “stuck his hand down [her] pants” and
“stuck his private in [her] back private.” She also testified that Appellant’s hand went
“inside” her private and that his private went “in” her “back side.” She testified this occurred
more than once. A.L. drew a picture of Appellant’s penis. She further testified that, after
Appellant did these things to her, there would be “a little wet spot” on the sheet.
Appellant testified that he was innocent and denied ever touching A.L.
inappropriately. He testified that A.L. used to walk in on him when he was using the
restroom so often “it finally got to the point where I would just hold everything until
somebody else got there to watch her while I went.” He also testified that he would often
clean A.L.’s genital and anal areas when she had “accidents” in her pants.
At the conclusion of the trial, the State made no formal election of which theory it
would rely upon for conviction and the trial court charged the jury on Count Two, in
pertinent part, as follows:
Now bearing in mind the foregoing instructions, if you believe
from the evidence beyond a reasonable doubt, that on or
about the 1st day of May, 2006, in Tarrant County, Texas, the
defendant, Jimmy Dale Hollon, did then and there intentionally
or knowingly cause the penetration of the anus of [A.L.], a child
younger than 14 years of age who was not the spouse of said
3
defendant by inserting his penis into her anus; or did then and
there intentionally or knowingly cause the anus of [A.L.], a child
younger than 14 years of age who was not the spouse of said
defendant, to contact the sexual organ of the Defendant, then
you will find the Defendant guilty of aggravated sexual assault
of a child as charged in Count Two of the indictment.
Regarding the jury charge for Count Two, the State indicated in its closing argument
that, if either penetration or contact were proven beyond a reasonable doubt, “then that
element is met.” Appellant did not object to the State’s failure to make an election or to this
argument. Thereafter, the jury found Appellant guilty on Counts Two and Three and
punishment was assessed at seven years confinement for Count Two and ten years
community supervision on Count Three. This appeal followed.
Discussion
Appellant asserts that he was denied his right to a unanimous jury verdict because
it is impossible to determine from the jury’s general verdict whether the jury unanimously
determined Appellant caused penetration or contact, or split their votes between the two
acts. The State asserts the disjunctive charge was proper because Appellant was not
charged with separate offenses but alternative means of committing one offense.
Analyzing a jury-charge issue involves a two-step process. We must first decide
whether the trial court erred in issuing the charge. Ngo v. State, 175 S.W.3d 738, 743
(Tex.Crim.App. 2005). Then, if error exists, we must analyze whether sufficient harm
resulted from the error to require reversal. Id.
4
I. Jury Unanimity
A jury verdict in a criminal case must be unanimous. Tex. Const. art. V, § 13. See
Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2008). Because of the possibility of a
nonunanimous jury verdict, “separate offenses” should not be submitted to the jury in the
disjunctive. Francis v. State, 36 S.W.3d 121, 124-25 (Tex.Crim.App. 2000); Clement v.
State, 248 S.W.3d 791, 800 (Tex.App.–Fort Worth 2008, no pet.). The unanimity
requirement is not violated, however, when the jury is instructed on alternative theories, or
manner and means, of committing the same offense and the defendant does not demand
an election before the case is submitted to the jury for consideration. Pizzo v. State, 235
S.W.3d 711, 715 (Tex.Crim.App. 2007). Where alternate theories of committing the same
offense are submitted to the jury in the disjunctive, and the jury is required by the charge
to find each element of the offense beyond a reasonable doubt, it is appropriate for the jury
to return a general verdict if the evidence is sufficient to support a finding under any of the
theories submitted. Kitchens v. State, 823 S.W.2d 256 (Tex.Crim.App. 1991).
II. Aggravated Sexual Assault of a Child Charge
A person commits an offense of aggravated sexual assault on a child if the person
intentionally or knowingly performs any of the following acts and the victim is younger than
fourteen years of age:
(1) causes the penetration of the anus or sexual organ of a child by any
means;
5
(2) causes the penetration of the mouth of a child by the sexual organ of the
actor;
(3) causes the sexual organ of a child to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor;
(4) causes the anus of a child to contact the mouth, anus, or sexual organ
of another person, including the actor; or
(5) causes the mouth of a child to contact the anus or sexual organ of
another person, including the actor. . . .
Tex. Penal Code Ann. § 22.021(B)(i-v) (Vernon Supp. 2008).
Section 22.021 is a conduct-oriented offense and each separately described act
generally constitutes a separate statutory offense. Vick v. State, 991 S.W.2d 830, 832-33
(Tex.Crim.App. 1999). However, the offense of aggravated sexual assault by genital-to-
genital contact is necessarily “subsumed” within the offense of sexual assault by penile
penetration of the female sexual organ. See Patterson v. State, 152 S.W.3d 88, 92
(Tex.Crim.App. 2004); Vick, 991 S.W.2d at 834 n.2.1 Because the charges are subsumed,
penetration and contact may be charged in the disjunctive without danger that different
jurors will agree a crime has been committed but disagree upon which one. This is so
because every juror who believed that the defendant penetrated the victim’s anus
necessarily believed that the antecedent contact had occurred. Tyson, 172 S.W.3d at 178
1
See also Santee v. State, 247 S.W .3d 724, 728-29 (Tex.App.–Houston [1 st Dist.] 2007, no pet.) (citing
Hendrix v. State, 150 S.W .3d 839, 848 (Tex.App.–Houston [14 th Dist.] 2004, pet. ref’d)); Valdez v. State, 211
S.W .3d 395, 400 (Tex.App.–Eastland 2006, no pet.); Tyson v. State, 172 S.W .3d 172, 178 (Tex.App.–Fort
W orth 2005, pet. ref’d).
6
(quoting Hendrix, 150 S.W.3d at 847-48). Thus, the trial court’s instruction on aggravated
sexual assault was proper because the penetration offense subsumed the contact offense.
Appellant contends this exception is inapplicable because there was evidence that
penetration and contact occurred more than once. Appellant, however, did not face
accusations of multiple or separate acts of penetration or contact nor was there testimony
describing any specific incident other than the incident charged in the indictment.
Moreover, although A.L. testified that anal penetration occurred more than once, she gave
only one description of this abuse. She did not specify how many times it happened or
distinguish one assault from another–temporally or substantively.2
Appellant cites Martinez v. State, 212 S.W.3d 411 (Tex.App.–Austin 2006, pet.
ref’d), for the proposition that, where more than one act of penetration or contact is proven,
a disjunctive instruction constitutes error. However, Martinez is inapposite because there
was “evidence of more than one act involving contact, and those acts did not always
involve penetration.” Id. at 418-19. In Martinez, the victim’s mother testified that “the
abuse happened on more than one occasion,” and that abuse was “different sometimes.”
Id. at 419. Here, the abuse happened more than once but was the same each time.3
2
In Stuhler v. State, 218 S.W .3d 706, 717 (Tex.Crim .App. 2007), the Court noted that child-abuse
crim es m ay be regarded as continuous offenses which do “not require jury unanim ity on any specific, discrete
act. . . .” Id. at 717 n.26 (quoting dicta in Jefferson v. State, 189 S.W .3d 305, 313 n.11 (Tex.Crim .App. 2006)).
3
Gonzalez Soto v. State, 267 S.W .3d 327 (Tex.App.–Corpus Christi 2008, no pet. h.) is also
inapposite. In Soto, the victim described two distinct incidents of the sam e act of penetration. Id. at 338-39.
See also Cook v. State, 192 S.W .3d 115, 119 (Tex.App.–Houston [14 th Dist.] 2006, no pet.).
7
Accordingly, based upon our review of the entire record, we overrule Appellant’s
point of error.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish
8 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/326730/ | 513 F.2d 725
Adam WOJCIK, individually and on behalf of all otherssimilarly situated, Plaintiff-Appellant,v.Leroy LEVITT, Director of the Illinois Department of MentalHealth, Defendant-Appellee.
No. 74-1661.
United States Court of Appeals,Seventh Circuit.
Argued Feb. 3, 1975.Decided April 9, 1975.
Thomas P. Grippando, Chester A. Lizak, Chicago, Ill., for plaintiff-appellant.
William J. Scott, Atty. Gen., Paul J. Bargiel and Robert G. Epsteen, Asst. Attys. Gen., Chicago, Ill., for defendant-appellee.
Before PELL, STEVENS and DOYLE,* Circuit Judges.
PER CURIAM.
1
In this case we must decide whether the district court properly dismissed plaintiff's cause of action, which sought an injunction against the enforcement by defendant, Director of the Illinois Department of Mental Health, of a portion of the Illinois Mental Health Code, without convening a three-judge court pursuant to 28 U.S.C. § 2281.1
2
Plaintiff's indigent father has, since 1959, been involuntarily hospitalized in a facility of the Illinois Department of Mental Health. In May, 1972, the Department notified plaintiff that, pursuant to § 12-12 of the Illinois Mental Health Code,2 he owed the Department $50 per month, effective November, 1971, for treatment afforded his father.
3
After receiving an administrative hearing, after which the imposition of the $50 charge was reaffirmed, plaintiff commenced this suit as a class action,3 alleging that § 12-12 was unconstitutional4 and seeking to enjoin the defendant from bringing suit against plaintiff and other members of the class to collect such charges.5 Plaintiff noted in his complaint that the case appeared to be an appropriate one for the convening of a three-judge court, and subsequently so moved. Defendant moved to dismiss for, inter alia, failure to state a cause of action.
4
On June 5, 1974, in an unreported Memorandum Opinion and Order, District Judge McGarr denied plaintiff's motion to convene a three-judge court and granted defendant's motion to dismiss. In so ruling, the district judge concluded that plaintiff's attacks on the constitutionality of § 12-12 were "obviously without merit."6 Because we determine that at least one of plaintiff's constitutional arguments has sufficient substance to meet the standards set forth in Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 35 L. Ed. 2d 36, we conclude that the district court erred in denying plaintiff's motion to convene a three-judge court.7
5
In Goosby, the Supreme Court repeated the tests to be applied by a single district judge in deciding whether the convening of a three-judge district court is necessary.Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. "Constitutional insubstantiality" for this purpose has been equated with such concepts as "essentially fictitious," Bailey v. Patterson, 369 U.S. (31), at 33, 82 S. Ct. 549 (7 L. Ed. 2d 512); "wholly insubstantial," ibid.; "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S. Ct. 326, 327, 54 L. Ed. 482 (1910); and "obviously without merit," Ex parte Poresky, 290 U.S. 30, 32, 54 S. Ct. 3, 4-5, 78 L. Ed. 152 (1933). The limiting words "wholly" and "obviously" have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if " 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.' " Ex parte Poresky, supra, at 32, 54 S. Ct. 3, quoting from Hannis Distilling Co. v. Baltimore, supra, 216 U.S. at 288, 30 S. Ct. 326; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106, 53 S. Ct. 549, 77 L. Ed. 1062 (1933); McGilvra v. Ross, 215 U.S. 70, 80, 30 S. Ct. 27, 31, 54 L. Ed. 95 (1909).
6
Goosby v. Osser, 409 U.S. 512, 518, 93 S. Ct. 854, 858, 35 L. Ed. 2d 36. If a plaintiff raises at least one constitutional issue that is not "essentially fictitious," "wholly insubstantial," "obviously frivolous," or "obviously without merit," a single district judge does not possess the jurisdiction to rule on the merits of any of the plaintiff's constitutional claims.
7
We believe that the plaintiff has met that burden in this case when he argues that the requirement that children of indigent parents receiving treatment from the Department of Mental Health pay up to $50 per month for support of such parents, while children of indigent parents receiving assistance from the Department of Public Aid need not, denies him equal protection of the laws.8
8
There is no common law requirement, apart from statute, in Illinois that children support their indigent parents. People v. Hill, 163 Ill. 186, 189, 46 N.E. 796, 797 (1896); Robertson v. White, 11 Ill.App.2d 177, 180, 136 N.E.2d 550, 552 (1956); Shaver v. Brierton, 1 Ill.App.2d 192, 195, 117 N.E.2d 298, 299 (1954); Schwerdt v. Schwerdt, 141 Ill.App. 386, 390, aff'd, 235 Ill. 386, 85 N.E. 613 (1908). Illinois did, however, require such support by statute for many years. See Rogers v. Rogers, 51 Ill.App. 683, 686 (1893). Until 1967, the Public Assistance Code required children to support their parents who were receiving public assistance. With the enactment of the Public Aid Code in that year, however, children were dropped from the definition of "legally responsible relatives" who could be required to provide such support. See Ill.Rev.Stats.1973, ch. 23, §§ 2-11, 10-2. Thus, it is only the children of indigent mental patients who are singled out for liability.
9
Where no "suspect classification"9 or "fundamental right" is involved, the test for determining whether a legislative classification scheme is consonant with the Fourteenth Amendment's equal protection guarantee is whether the line drawn by the legislature bears "some rational relationship to a legitimate state purpose." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172, 92 S. Ct. 1400, 1405, 31 L. Ed. 2d 768; McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S. Ct. 1404, 22 L. Ed. 2d 739; McGowan v. Maryland, 366 U.S. 420, 425, 81 S. Ct. 1101, 6 L. Ed. 2d 393; Estelle v. Dorrough, --- U.S. ---, 95 S. Ct. 1173, 43 L. Ed. 2d 377 (1975). While we do not wish to suggest that a rational explantion for the aforementioned differing treatment does not exist, no such explanation is clear upon the face of the statutes involved. Counsel for defendant has not yet provided one. As the Memorandum Opinion of the district court did not address this particular contention of the plaintiff, it contains no explanation for the disparate treatment either.10 Given the fact that this disparity has existed only since 1967, this does not appear to be a case where reform is occurring "one step at a time" or where the legislature has "select(ed) one phase of one field (to) apply a remedy there, neglecting the others," as discussed in Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563.
10
Nor is this a case where prior decisions of the Supreme Court "foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." There does not appear to be any directly analogous Supreme Court precedent. And, although we recognize that state statutes of the kind here challenged are common11 and have been held valid in the face of numerous constitutional challenges,12 none of the decisions surveyed involved a constitutional attack similar to that raised by the plaintiff in this case.13
11
Of course, nothing we say here is intended in any way to intimate a view on the merits of this controversy. We simply hold that, as plaintiff has raised a constitutional challenge to § 12-12 of the Illinois Mental Health Code that cannot be termed "wholly insubstantial" or "obviously frivolous," the district court erred in not convening a three-judge court pursuant to 28 U.S.C. § 2281.14
12
Accordingly, the order of the district court dismissing the complaint is vacated and the order denying plaintiff's motion to convene a three-judge court is reversed. The case is remanded to the district court "with direction to enter an appropriate order pursuant to (§ 2281) for the convening of a three-judge court to hear and determine the merits of (appellant's) constitutional claims." Goosby v. Osser, 409 U.S. at 522, 93 S.Ct. at 861.15
*
Circuit Judge William E. Doyle, of the Tenth Circuit, sitting by designation
1
28 U.S.C. § 2281 provides:
"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."
2
Section 12-12, codified as Ill.Rev.Stat.1973, ch. 911/2, § 12-12, provides, in pertinent part:
"Each patient receiving treatment in a mental health program of the Department, and the estate of such patient, is liable for the payment of sums representing charges for treatment of such patient at a rate to be determined by the Department in accordance with this Section. If such patient is unable to pay or if the estate of such patient is insufficient, the responsible relatives are severally liable for the payment of such sums, or for the balance due in case less than the amount prescribed under this Act has been paid. The maximum treatment charges for each patient assessed against responsible relatives collectively may not exceed $50 per month, except that where the patient is placed in a nursing home or other facility outside the Department, the Department may pay the actual cost of treatment, maintenance or residence in such facility and may collect reimbursement for the entire amount paid from the patient, or an amount not to exceed $50 per month from responsible relatives according to their proportionate ability to contribute to such charges. The liability of each responsible relative for payment of treatment charges ceases when payments on the basis of financial ability have been made for a total of 12 years for any patient, and any portion of such 12-year period during which a responsible relative has been determined by the Department to be financially unable to pay any treatment charges must be included in fixing the total period of liability. No child is liable under this Act for treatment of a parent who wilfully failed to contribute to the support of such child for a period of at least 5 years during his minority. No wife is liable under this Act for the treatment of a husband who wilfully failed to contribute to her support for a period of 5 years immediately preceding his hospitalization. Any child or wife claiming exemption because of such wilful failure to support during any such 5-year period must furnish the Department with clear and convincing evidence substantiating such claim. No parent is liable under this Act for the treatment charges incurred by a child after such child reaches the age of majority."
The term "responsible relative" is defined, for purposes of the Mental Health Code, to mean "the spouse, parent or parents, child or children of patients receiving care and treatment in mental health facilities or programs of the Department." Ill.Rev.Stat.1973, ch. 911/2, § 1-19.
3
Plaintiff brought this action on behalf of himself and "all other persons whose parents are hospitalized in a mental institution and who are subject to a special tax imposed by the Illinois Department of Mental Health pursuant to § 12-12 of the Illinois Mental Health Code Chapter 911/2 § 12-12 Illinois Revised Statute." First Amended Complaint, para. 1. On April 8, 1974, plaintiff moved for leave to proceed as a class. The record before us does not contain the required Fed.R.Civ.P. 23(c)(1) ruling on this motion by the district court
4
Plaintiff argues that: (1) he is denied equal protection because, while children of indigent mental health patients are liable for support of their parents, no such liability is imposed on the children of parents receiving benefits from the Department of Public Aid; (2) the statute unreasonably distinguishes between those children who were willfully unsupported by their parents and those children, like the plaintiff, who received no support for other reasons or who were in fact supported by their parents; (3) the statute places a burden on children, like the plaintiff, who do not have other siblings; (4) in making all "responsible relatives" severally liable, the statute permits the Department of Mental Health arbitrarily to decide against whom to enforce the liability; and (5) because the children of an involuntarily hospitalized parent receive no greater benefits from the commitment than the public at large, it is a violation of equal protection to single them out to bear this expense
5
Additionally, plaintiff sought a declaratory judgment as to § 12-12's unconstitutionality, restitution of all money illegally seized from the members of the class under § 12-12, and attorney's fees
6
It is undisputed that the other conditions precedent to the convening of a three-judge court under § 2281 were met. That is, "the action sought to enjoin a state official from executing statutes of state-wide application (,) and the complaint at least formally alleged a basis for equitable relief." Gonzalez v. Automatic Employees Credit Union, --- U.S. ---, ---, 95 S. Ct. 289, 292, 42 L. Ed. 2d 249 (1974) (footnotes omitted)
7
There is no doubt that an appeal from the district court's order properly lies in this court. See Gonzalez, supra n. 6 at n. 19, 95 S. Ct. at 295 n. 19
8
The programs administered by the Department of Public Aid include Aid to the Aged, Blind or Disabled, Aid to Families with Dependent Children, Medical Assistance, General Assistance, and Local Aid to the Medically Indigent
9
Since we conclude that plaintiff has demonstrated the existence of a not-insubstantial constitutional issue under the less strict "rational relationship" test, we need not decide plaintiff's novel argument that in focusing on children of indigent mental patients, Illinois creates an inherently suspect classification
10
It is clear that the argument was before the district court. See plaintiff's Motion to Convene a Three-Judge Court and Memorandum in Support Thereof, at 6-7; plaintiff's Reply Memorandum in Support of Motion to Convene Three-Judge Court and in Opposition to Defendant's Motion to Dismiss, at 3; plaintiff's First Amended Complaint, para. 24(a)
11
See Comment, Compulsory Contribution to Support of State Mental Patients Held Deprivation of Equal Protection, 39 N.Y.U.L.Rev. 858 & n. 2 (1964)
12
See Beach v. Government of District of Columbia, 116 U.S.App.D.C. 68, 320 F.2d 790 (1963), cert. denied, 375 U.S. 943, 84 S. Ct. 351, 11 L. Ed. 2d 274; Department of Mental Health v. Coty, 38 Ill. 2d 602, 232 N.E.2d 686 (1967); Department of Mental Health v. Warmbir, 37 Ill. 2d 267, 226 N.E.2d 4 (1967); Department of Public Welfare v. Haas, 15 Ill. 2d 204, 154 N.E.2d 265 (1958); Kough v. Hoehler, 413 Ill. 409, 109 N.E.2d 177 (1952). Contra, Department of Mental Hygiene v. Kirchner, 60 Cal. 2d 716, 36 Cal. Rptr. 488, 388 P.2d 720 (1964). See generally Annot., 20 A.L.R. 3d 363 (1968)
13
As discussed above, our conclusion that plaintiff has raised at least one substantial constitutional issue precludes the need for us to evaluate the substantiality of the others. They are to be evaluated on their merits, along with the equal protection issue discussed in the text, by the three-judge court
14
In an analogous case, a three-judge court upheld against an equal protection challenge the portion of the Illinois Department of Children and Family Services Act that authorized foster care payments only to foster parents who were unrelated to their foster children. Youakim v. Miller, 374 F. Supp. 1204 (N.D.Ill.1974). Implicit in the decision was the determination that the constitutional question was substantial enough to invoke the provisions of § 2281. This determination has been buttressed by the Supreme Court's recent notation of probable jurisdiction over the appeal from the district court's decision, --- U.S. ---, 95 S. Ct. 1389, 43 L. Ed. 2d 650 (1975)
15
At the appropriate time, plaintiff's motion to proceed as a class should be ruled upon. See n. 3, supra | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/326789/ | 513 F.2d 1024
10 Fair Empl.Prac.Cas. 435, 9 Empl. Prac.Dec. P 10,035COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Esther Skipper,Individually and on behalf of all similarly situatedNon-Supervisory Female Employees of American Telephone andTelegraph Company, Long Lines Department, Plaintiffs-Appellants,v.AMERICAN TELEPHONE AND TELEGRAPH COMPANY, LONG LINESDEPARTMENT, Defendant-Appellee.
No. 461, Docket 74-2191.
United States Court of Appeals,Second Circuit.
Argued Dec. 9, 1974.Decided March 26, 1975.
Mary K. O'Melveny, New York City (Cohn, Glickstein, Lurie, Ostrin & Lubell, Jonathan W. Lubell and H. Howard Ostrin, New York City, Kane & Koons, Charles V. Koons, Washington, D. C., of counsel), for plaintiffs-appellants.
Thompson Powers, Washington, D. C. (Steptoe & Johnson, James D. Hutchinson and Kenneth I. Jonson, Washington, D. C., of counsel, Harold S. Levy and Jim G. Kilpatric, New York City), for defendant-appellee.
Linda Colvard Dorian, Washington, D. C. (United States Equal Employment Opportunity Commission, William A. Carey, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Washington, D. C., of counsel), for amicus curiae EEOC.
Amicus Brief, urging affirmance, was filed by Alaska Airlines, Inc., and others (Gordon Dean Booth, Jr., Troutman, Sanders, Lockerman & Ashmore, and Robert N. Meals, Jr., Atlanta, Ga., of counsel.)
Amicus Briefs, urging reversal, were filed by International Union of Electrical, Radio and Machine Workers and others (Winn Newman, Ruth Weyand, Marcia D. Greenberger, Joseph N. Onek and Lois J. Schiffer, Washington, D. C., and Irving Abramson, Stephen C. Vladeck, Frank J. Donner, James G. Mauro, Jr., and Robert Z. Lewis, New York City), New York Civ. Liberties Union (Eve Cary, Ruth Bader Ginsburg, Melvin L. Wulf, Kathleen Peratis, American Civil Liberties Union, New York City, Wendy Webster Williams, Equal Rights Advocates, San Francisco, Cal., of counsel), Bellamy, Blank, Goodman, Kelly & Stanley (Mary F. Kelly, Nancy E. Stanley, New York City), New York State Division of Human Rights (Henry Spitz, Gen. Counsel, Ann Thacher Anderson, New York City, of counsel).
Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, District Judge.*
FREDERICK van PELT BRYAN, District Judge:
This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) from an order of the United States District Court for the Southern District of New York (Whitman Knapp, J.) which dismissed the complaint in this action with leave to replead and certified a question to this Court. This Court has allowed the appeal on the question so certified.
The suit, commenced on July 31, 1973, is a class action brought by plaintiffs-appellants Communications Workers of America, AFL-CIO (CWA) and Esther Skipper, under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000-e et seq.1 The complaint alleges that the Long Lines Department of defendant-appellee American Telephone & Telegraph Company (Long Lines) violated Title VII, which prohibits discrimination in employment or between employees on the basis of sex.
The allegations of the complaint as to specific policies and practices of Long Lines claimed to be violative of Title VII are obviously based on guidelines issued by the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcement of the Act. These guidelines were designed to prohibit disparity of treatment between pregnancy and other disabilities in the employment context. See 29 C.F.R. 1604.10(b).2 The complaint alleges that Long Lines "has promulgated and maintained policies, practices, customs and usages which limit the employment opportunities of its female employees because of sex by failing and refusing to provide equal rights, benefits and privileges to females under temporary disability due to pregnancy or childbirth or complications arising therefrom, as are made available to its male employees under temporary disability. (Long Lines') discriminatory practices and policies involve matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payments under health or disability insurance or sick leave plans. . . ."
Declaratory, injunctive and monetary relief is sought on behalf of all non-supervisory female employees and former female employees of Long Lines, who have been or may be affected by the policies and practices complained of.3
The answer admits that under the Long Lines disability benefit plans, sickness and disability benefits are not paid in connection with absences arising on account of "certain conditions attendant to pregnancy, childbirth, or child rearing," but denies that Long Lines' policies and practices constitute sex discrimination in violation of Title VII. The answer includes, among other defenses, a separate defense that any alleged discrimination on the basis of sex arising from failure to include absences relating to pregnancy, childbirth or child rearing in Long Lines' disability plans "is based upon a rational and neutral business justification" under Title VII.4
Prior to the dismissal of the complaint below, both sides had conducted a substantial amount of pre-trial discovery. Discovery had not been completed, however, and as yet no depositions have been taken. A motion concerning class action treatment was pending before the district court.
On June 17, 1974, while that motion was sub judice, the Supreme Court decided Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), holding that the provisions of a California statutory state-administered system of disability insurance for private employees which excluded from coverage disabilities arising from normal pregnancy did not violate the Equal Protection Clause of the Fourteenth Amendment.
The district court, in the case at bar, then requested briefs and heard argument on the question of whether the complaint under Title VII should not be dismissed sua sponte in the light of Aiello.
The opinion of the district court which followed read the majority opinion in Aiello, and particularly footnote 20 of that opinion (417 U.S. at 496, 94 S.Ct. at 2492), as "flatly" holding that disparity of treatment between pregnancy-related and other disabilities cannot be classified as sex discrimination under either the Equal Protection Clause or Title VII, absent a showing that such disparity was a mere pretext designed to effect invidious discrimination against the female sex. It concluded that Aiello was decisive of the issues raised by the complaint in this case and that therefore as a matter of law the complaint failed to state a claim on which relief could be granted under Title VII.5 The district court dismissed the complaint solely on that ground, with leave to replead,6 and certified the following question to this court pursuant to 28 U.S.C. § 1292(b):7
" . . . whether Aiello has established for purposes of (this action) that disparity between the treatment of pregnancy-related and other disabilities does not of itself constitute discrimination on the basis of sex (or gender) within the prohibition either of Title VII or of the Fourteenth Amendment."8
We think that the question certified does not adequately pose the issue on this appeal. In essence, what the court below held was that Aiello established that the disparity of treatment of pregnancy-related disabilities alleged in the complaint cannot constitute discrimination under Title VII unless it is alleged and proved to be a mere pretext designed to effect invidious discrimination against the female sex. The real question posed here is whether Aiello required dismissal of the complaint in this action as a matter of law for failure to state a claim on which relief could be granted under Title VII. That narrow question is the sole question to which we address ourselves.
We disagree with the district court's reading of Aiello. In our view, Aiello is not decisive of the issues raised by this complaint under Title VII and the court below was in error in holding that Aiello required dismissal of the complaint as a matter of law.
At the outset of the discussion, it is well to bear in mind the admonition of Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 399-400, 5 L.Ed. 257 (1821):
"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."
Chief Justice Marshall's admonition has been repeated many times since. For example, in Armour & Co. v. Wantock, 323 U.S. 126, 132-133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944), rehearing denied, 323 U.S. 818, 65 S.Ct. 427, 89 L.Ed. 649 (1945), Mr. Justice Jackson, writing for a unanimous court, stated:
1
"It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading."
2
See also Humphrey's Executor v. United States, 295 U.S. 602, 626, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 404, 85 S.Ct. 1517, 14 L.Ed.2d 466 (1965); United States v. Neifert-White Co., 390 U.S. 228, 231, 88 S.Ct. 959, 19 L.Ed.2d 1061 (1968); Cameron v. Mullen, 128 U.S.App.D.C. 235, 387 F.2d 193 (1967); Irwin v. Simmons, 140 F.2d 558 (2d Cir. 1944); NLRB v. Cities Service Oil Co., 129 F.2d 933 (2d Cir. 1942); Commissioner of Internal Revenue v. Marshall, 125 F.2d 943 (2d Cir. 1942).
3
These cautions apply with particular emphasis to footnotes or other "marginalia" in Supreme Court opinions, which should be read "within the context of the holding of the Court and the text to which it is appended", Harkless v. Sweeny Independent School District, 427 F.2d 319, 322 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971). See also John Hancock Mutual Life Insurance Company v. Bartels, 308 U.S. 180, 184, 60 S.Ct. 221, 84 L.Ed. 176 (1939). In view of the wide differences between Aiello and the case at bar, these warnings are particularly apposite here.
4
Aiello involved a challenge under the Equal Protection Clause to a provision of the California Unemployment Insurance Code which excluded disabilities due to normal pregnancy from coverage under a state-administered disability insurance program for private employees. A three-judge court below, with one judge dissenting, found that the exclusion of pregnancy-related disabilities from coverage under the California insurance program "is not based on a classification having a rational and substantial relationship to a legitimate state purpose" and therefore held that the challenged provisions of the statute violated the Equal Protection Clause and were constitutionally invalid. Aiello v. Hansen, 359 F.Supp. 792, 801 (N.D.Cal.1973).
5
The Supreme Court reversed, with three justices dissenting, Geduldig v. Aiello, supra. Justice Stewart, writing for the majority, considered the legislative purposes and policies sought to be accomplished by the California disability insurance program, the risks involved, the costs of maintaining the program on a sustaining basis and the effects of including pregnancy-related disabilities within its coverage. Relying on Dandridge v. Williams, 397 U.S. 471, 486-7, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), and Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955), he pointed out that the Equal Protection Clause does not require a state to attack every aspect of a problem at once, and that "particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point." Aiello, supra, 417 U.S. at 495, 94 S.Ct. at 2491.
6
Justice Stewart found that the State had shown a legitimate interest in maintaining its insurance program on a self-supporting basis, in keeping benefit payments at an adequate level for covered disabilities and in maintaining the contribution rates at a level not unduly burdensome for participating employees.
7
Justice Stewart concluded that "these policies provide an objective and wholly noninvidious basis for the State's decision not to create a more comprehensive insurance program than it has", Aiello, supra, at 496, 94 S.Ct. at 2492, and held that the exclusion of pregnancy-related disabilities from coverage under the California insurance program did not constitute invidious discrimination because of sex under the Equal Protection Clause.
8
Justice Brennan, writing for the dissent, was of the view that the California legislative classification was analogous to the legislative classifications held to be constitutionally invalid in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Justice Brennan reiterated the views he had expressed in Frontiero, supra, at 688, 93 S.Ct. at 1771, that classifications based on sex or gender "are inherently suspect, and must therefore be subjected to strict judicial scrutiny." Justice Brennan also quoted his dissenting opinion in Kahn v. Shevin, 416 U.S. 351, 357-58, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974) to the effect that "(t)he Court is not . . . free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means." Aiello, supra, 417 U.S. at 503, 94 S.Ct. at 2495. In Justice Brennan's view, California had failed to meet that burden and thus its exclusion of pregnancy-related disabilities violated the Equal Protection Clause.
9
Footnote 20 of the majority opinion,9 on which the district court below principally relied in holding that Aiello required dismissal of the complaint in the case at bar, is in essence a refutation of the dissenting view as to the Equal Protection standards of judicial scrutiny applicable to the California legislative classification before the Court. It rejects the dissenting view that the California classification should be treated like the legislative classifications in Reed, supra, and Frontiero, supra. Stating that not "every legislative classification concerning pregnancy is a sex-based classification . . . ", it goes on to say that "(a)bsent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis . . .." (Emphasis added.) Thus, footnote 20 deals with the constitutional validity of legislative classifications under the Equal Protection Clause, the standards of judicial scrutiny to be applied in making such a determination, and nothing more. Moreover, it does so in the context of the extensive record before the Court as to the operation and effects of the particular statutory insurance program it was considering and the considerations which led the California legislature to adopt it.
10
Nowhere, either in the body of the majority opinion in Aiello or in the footnote, is there any reference to the provisions of Title VII or the EEOC guidelines designed to prohibit the disparate treatment of pregnancy disabilities in the employment context. Under the guidelines, disabilities caused by pregnancy or childbirth are declared to be temporary disabilities for all job-related purposes, requiring employers to treat such disabilities on the same terms and conditions as other temporary disabilities are treated.10
11
The EEOC guidelines under Title VII are an administrative interpretation of the Act by the enforcing agency and are thus entitled to "great deference", Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (Marshall, J., concurring), unless their application would be inconsistent with an obvious Congressional intent. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973).
12
If, as the district court below thought, Aiello was a definitive holding that, absent mere pretext, disparity of treatment of pregnancy-related disabilities could not constitute a violation of Title VII, Aiello would substantially circumscribe the reach of that Act of Congress and would invalidate the guidelines as to treatment of pregnancy disabilities issued by the EEOC. It is inconceivable that the majority opinion intended so to hold without even a mention of Title VII or the guidelines.11
13
Beyond this, the question in the case at bar as to the consequences of disparate treatment of pregnancy-related disabilities in the private employment context must be analyzed and decided in a framework quite different from that in which the question was decided in Aiello. Here the issue is one of statutory interpretation, not one of constitutional analysis as in Aiello.
14
Under the Commerce Clause, Congress plainly has the power to prohibit by statute various forms of discrimination in private employment which it deems would adversely affect the flow of interstate commerce. Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964).12
15
Title VII is legislation of this nature, designed to prohibit a broad spectrum of discriminatory evils which Congress deemed would have such an adverse effect. There is no requirement that the discriminatory practices forbidden by this statute should be limited to practices violative of the Equal Protection Clause. Practices forbidden by Title VII and the EEOC guidelines issued thereunder may, nonetheless, be able to survive Equal Protection attack.
16
Thus, the question to be decided in the case at bar is not, as in Aiello, whether exclusion of pregnancy-related disabilities from coverage violates the Equal Protection Clause. It is whether, as a matter of statutory interpretation, the practices complained of are forbidden by Title VII and the EEOC guidelines. We agree with the conclusion reached in the several recent well-reasoned cases dealing with the question of whether disparity of treatment between pregnancy-related and other disabilities in the employment context violates Title VII, that Aiello is not dispositive of that issue. Wetzel v. Liberty Mutual Insurance Co., 511 F.2d 199 (3d Cir. 1975), affirming 372 F.Supp. 1146 (W.D.Pa.1974); Vineyard v. Hollister Elementary School District, 64 F.R.D. 580 (N.D.Cal.1974); Sale v. Waverly-Shell Rock Board of Education, 390 F.Supp. 784 (N.D.Iowa 1975). See also Union Free School District No. 6 v. New York State Human Rights Appeal Board, 35 N.Y.2d 371, 362 N.Y.S.2d 139, 320 N.E.2d 859 (1974); Farkas v. Southwestern City School District, 506 F.2d 1400 (6th Cir. 1974) (affirming judgment of district court that failure to pay teachers sick leave for absences relating to pregnancy constitutes discrimination on the basis of sex).
17
Finally, it should be noted that in the case at bar, in contrast to Aiello, only the bare allegations of the complaint couched in general language, largely taken from the statute and the guidelines, were before the district court. Aiello was decided on a full record in which the nature, details, operations and effect of the state insurance plan under attack and the reasons for its enactment were fully explored. The ultimate merits of the case at bar are not ripe for determination on such a record or at this stage of the proceedings.
18
What has been said thus far disposes of the narrow question presented on this appeal. That question is confined to the allegations of the complaint and the effect of Aiello thereon. We think it highly inadvisable, on an interlocutory appeal of this nature, to go beyond the bare limits of the question presented. In this state of the record it would be unwise to discuss any questions which might arise during the further course of the action or to indicate any views which might bear on the ultimate merits. We expressly refrain from so doing.
19
We hold only that Aiello did not require the dismissal of the complaint as a matter of law for failure to state a claim on which relief could be granted under Title VII. Thus, the question posed on this appeal is answered in the negative. The order dismissing the complaint is therefore reversed and the action is remanded to the district court for appropriate proceedings consistent with this opinion.
*
Frederick vP. Bryan, of the Southern District of New York, sitting by designation
1
42 U.S.C. § 2000e-2(a)(1) provides, in relevant part:
"(a) It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
2
29 C.F.R. § 1604.10(b) provides:
"(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities."
3
The complaint also contains appropriate jurisdictional allegations that a complaint was duly filed with the EEOC which gave the required notice of the right to sue
4
The answer also pleads a counterclaim based on collective bargaining agreements between CWA and AT&T, to which CWA has replied denying liability. The counterclaim is irrelevant to this appeal
5
The district court did not refer to and apparently did not consider any of the factual material obtained through the incomplete discovery conducted by the parties and included in the record on appeal. Though the briefs of the parties and of amicus curiae make extended references to such material, it is not relevant on this appeal, which is concerned only with the district court's holding that the complaint on its face was insufficient as a matter of law
6
Acknowledging that "if principles of 'notice pleading' were to be applied (the complaint) could be read as broad enough to permit proof of the type of 'invidious discrimination' that would justify relief under either the 14th Amendment or Title VII," the opinion nevertheless construed the complaint as alleging "that disparity with respect to pregnancy-related disabilities in and of itself constituted discrimination on grounds of sex (or gender) . . .." Apparently, leave to replead was granted to permit plaintiffs to assert a claim that the Long Lines policies and practices were mere pretexts designed to effect invidious discrimination against members of the female sex
7
At the same time as the question of sua sponte dismissal was argued in the case at bar, the district court also heard argument on the same question in Women in City Government United, et al. v. The City of New York, et al., 74 Civ. 304 (S.D.N.Y.). The complaint in that case alleged that a health and hospitalization plan which offered fewer benefits for pregnancy-related conditions than for other medical and surgical problems violated both Title VII and the Equal Protection Clause. The opinion of the district court treated both cases together and reached the same conclusion and certified the same question pursuant to Section 1292(b) in both. In the Women United case, however, permission to appeal on the question so certified was denied by the Court of Appeals and the case was remanded to the district court on October 2, 1974. The district court then dismissed the complaint in that action with prejudice. An appeal is presently pending in this court (# 74-2352) from that order. A motion to consolidate that appeal with the interlocutory appeal in the case at bar was denied on October 23, 1974. The appeal has not as yet been heard in this Court
8
We assume that the Fourteenth Amendment was included in the certified question because the companion action, Women in City Government United, et al. v. The City of New York, et al., decided at the same time, charged violation of both the Equal Protection Clause and Title VII. See n. 7, supra. There is no claim of violation of the Equal Protection Clause in the case at bar and we do not pass on any Equal Protection question
9
The full text of footnote 20, 417 U.S. at 496-7, 94 S.Ct. at 2492, is as follows:
The dissenting opinion to the contrary, this case is thus a far cry from cases like Reed v. Reed, 404 U.S. 71, (92 S.Ct. 251, 30 L.Ed.2d 225) (1971) and Frontiero v. Richardson, 411 U.S. 677, (93 S.Ct. 1764, 36 L.Ed.2d 583) (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition pregnancy from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.
10
As previously pointed out, p. 1026, supra, the allegations of sex discrimination in the complaint in the case at bar are based upon these guidelines
11
It should be noted that only five months before Aiello was decided, Justice Stewart, in his majority opinion in Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), held that mandatory maternity leave policies for public school teachers of the Cleveland Board of Education violated the Due Process Clause of the Fourteenth Amendment. Title VII was not applicable to the cases before the Court in La Fleur since the maternity leaves at issue had occurred before Title VII was amended in 1972 to include state agencies and educational institutions. See Pub.L. 92-261, 86 Stat. 103. In n. 8, at 639, 94 S.Ct. at 796, Justice Stewart, referring to the 1972 amendment, expressly pointed out that,
"Shortly thereafter, the Equal Employment Opportunity Commission promulgated guidelines providing that a mandatory leave or termination policy for pregnant women presumptively violates Title VII. 29 C.F.R. § 1604.10, 37 Fed.Reg. 6837. While the statutory amendments and the administrative regulations are of course, inapplicable to the cases now before us, they will affect like suits in the future."
It can scarcely be thought that Justice Stewart in Aiello sub silentio invalidated the guidelines which he had said only five months before in La Fleur would, in the future, affect suits involving pregnancy-related employment practices.
12
This is in addition to the Congressional power under Section 5 of the Fourteenth Amendment to enforce, by appropriate legislation, the dictates of the Equal Protection Clause. That power may reach more broadly than the Equal Protection Clause itself. See Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966); United States v. Guest, 383 U.S. 745, 781-784, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966) (Brennan, J., concurring and dissenting). See also Vineyard v. Hollister Elementary School District, 64 F.R.D. 580, 585 (N.D.Cal.1974) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1876682/ | 3 F. Supp. 698 (1933)
In re WEITZEN.
District Court, S. D. New York.
May 2, 1933.
Max F. Finkelstein, of New York City, for Independent Ice Co.
Abraham Greenberg, of New York City, for bankrupt.
CAFFEY, District Judge.
The agreement to waive the benefit of bankruptcy is unenforceable. To sustain a contractual obligation of this character would frustrate the object of the Bankruptcy Act, particularly of section 17 (11 USCA § 35). This was held by the Supreme Judicial Court of Massachusetts, Federal Nat. Bank v. Koppel, 253 Mass. 157, 148 N.E. 379, 380, 40 A. L. R. 1443, where it was said: "It would be repugnant to the purpose of the Bankruptcy Act to permit the circumvention of its object by the simple device of a clause in the agreement, out of which the provable debt springs, stipulating that a discharge in bankruptcy will not be pleaded by the debtor. The Bankruptcy Act would in the natural course of business be nullified in the *699 vast majority of debts arising out of contracts, if this were permissible. It would be vain to enact a bankruptcy law with all its elaborate machinery for settlement of the estates of bankrupt debtors, which could so easily be rendered of no effect. The bar of the discharge under the terms of the Bankruptcy Act is not restricted to those instances where the debtor has not waived his right to plead it. It is universal and unqualified in terms. It affects all debts within the scope of its words. It would be contrary to the letter of section 17 of the Bankruptcy Act as we interpret it to uphold the waiver embodied in this note. So to do would be incompatible with the spirit of that section. Its aim would largely be defeated."
There are other grounds for sustaining the action of the referee, but the one mentioned is enough.
Confirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876699/ | 3 F. Supp. 487 (1929)
ALFRED DUNHILL OF LONDON, Inc.,
v.
DUNHILL SHIRT SHOP, Inc.
District Court, S. D. New York.
December 30, 1929.
Charles S. Jones, of New York City, for plaintiff.
Arnold Jacoby, of New York City, for defendant.
COXE, District Judge.
I think this is a plain case for injunctive relief. The only conceivable reason for the use of the name "Dunhill" by the defendant is to trade on the reputation and good will of the plaintiff. Indeed, that in substance is admitted in the answering affidavit, where it is stated that the name was chosen "because we wanted a name for our men's haberdashery shop that would be associated with `the English' because of that people's great reputation in turning out well dressed men."
It is no answer that the defendant sells shirts, and the plaintiff, smokers' requisites. Wall v. Rolls-Royce (C. C. A.) 4 F.(2d) 333; Yale Electric Corp. v. Robertson (C. C. A.) 26 F.(2d) 972. Nor is it a defense that the defendant is incorporated, and that the name Dunhill appears in its corporate title. Peck Bros. & Co. v. Peck Bros. Co. (C. C. A.) 113 F. 291, 62 L. R. A. 81; Anheuser-Busch v. Budweiser Malt Products Corp. (C. C. A.) 295 F. 306.
The motion for a preliminary injunction is, therefore, granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611776/ | 39 Cal. App. 2d 42 (1940)
THE PEOPLE, Respondent,
v.
ONE 1938 BUICK SEDAN, ENGINE No. 43502146, Defendant; BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (a National Banking Association), Appellant.
Civ. No. 2292.
California Court of Appeals. Fourth Appellate District.
May 9, 1940.
Louis Ferrari, Edmund Nelson and John E. Walter for Appellant.
Earl Warren, Attorney-General, and J. Albert Hutchinson, Deputy Attorney-General, for Respondent.
Griffin, J.
This proceeding is one by the People of the State of California for the forfeiture of a 1938 Buick sedan, after the seizure of the automobile under the provisions of section 15 of the State Narcotic Act (Act 5323, Deering's Gen. Laws, 1937, p. 2600, Stats. 1929, p. 380, as amended). The purchaser of the Buick automobile was a negro by the name of William J. Speed, and the conditional vendor was *44 an automobile dealer by the name of Vincent E. Wood. Subsequent to the sale of the automobile Wood assigned the conditional sales contract to appellant. Issue was joined by the appellant on the ground that a reasonable investigation of the moral responsibility, character, and reputation of the purchaser had been made prior to the sale and the assignment, and on the further ground that the respondent's notice did not allege facts sufficient to constitute a cause of action. From an adverse judgment in the trial court appellant has perfected this appeal.
On March 19, 1938, Speed purchased from Wood the automobile involved herein. He was allowed $500 for a used car traded in, and signed a conditional sales contract for the balance of the purchase price. Wood had an agreement in writing with the appellant that he could discount such automobile contracts as the bank found acceptable and that he would receive immediate credit to his account for such contracts delivered to the bank, with the right in the bank to make an investigation of the desirability of such contracts and if the bank did not want to purchase any contract it could be rejected and the amount thereof charged back to Wood's account within fifteen days from the date of the credit allowed for that particular contract. It was stipulated by the respondent that the sale of the Buick automobile to Speed and the sale and assignment of the contract to the bank was bona fide in every respect and that neither Wood nor the bank had any knowledge that the automobile was or would be used to violate the Narcotic Act. On January 20, 1939, this Buick automobile was seized for a violation of the State Narcotic Act. In regard to this fact, Speed had placed the car in a private garage and after his arrest, two bindles of opium were found in the car. Speed later pleaded guilty to the charge of violating the State Narcotic Act and was imprisoned.
The position of the bank is that it claims it has an interest in the Buick under its conditional sales contract to the amount of $638.05, and that any equity or amount over this figure is correctly forfeited to the state. There can be no contention but that defendant automobile incurred a forfeiture and that the judgment is proper, unless appellant has established some affirmative defense to the forfeiture of its interest therein. *45
The main question on this appeal is whether appellant sustained the affirmative defense that its interest in the automobile was created after a reasonable investigation of the moral responsibility, reputation and character of the purchaser thereof. The discussion of this question may conveniently be divided into two parts, viz., the purported investigation made by the original owner of the automobile, and the purported investigation by the appellant prior to its purchase of the conditional sales contract.
[1] It is provided in the State Narcotic Act that one claiming a lien upon or title to an automobile incurring a forfeiture may prove that his interest therein was created after a reasonable investigation of the purchaser's moral responsibility, character and reputation, as an affirmative defense to, or an exemption from the forfeiture. The burden of proving that such an investigation was made rests upon the claimant. (People v. One Pontiac 8 Sedan, 22 Cal. App. 2d 503 [71 PaCal.2d 302].) Undoubtedly the question of the extent and reasonableness of such an investigation is primarily a question of fact, although certain investigations have been held insufficient as a matter of law. (People v. One Harley-Davidson Motorcyle, 5 Cal. 2d 188 [53 PaCal.2d 970]; People v. One Packard 6 Touring Sedan, 26 Cal. App. 2d 150 [79 PaCal.2d 130].) [2] Appellant does not, in its brief, set out all of the evidence bearing on the question of whether a reasonable investigation was or was not made. In view of a finding that no reasonable investigation was made, it rests upon appellant to set out all the evidence on the issue to enable this court to determine whether the finding is, in fact, supported. This court should not be required to search through the evidence to discover whether the evidence supports the findings and judgment, and without a more extensive showing by appellant, this court ordinarily would be required to conclude that the evidence does support the findings. However, we will point out portions of the evidence which bear upon this subject. The first phase of the asserted investigation was that claimed to have been made by the conditional vendor, Wood.
[3] A Mr. Schaeffer, sales manager for Wood, met Speed through a negro employee of Wood, two years prior to 1938, and tried on several occasions to sell him a car. Speed owned or was then working in a shoe repair shop. He (Schaeffer) *46 claimed that he had called at Speed's home on one occasion. When the Buick was sold to Speed, Wood obtained a purchaser's statement from him, which set forth his business and income. He gave a reference. Schaeffer talked to the reference and was unable to give any of the conversation except that he learned nothing detrimental to Speed's reputation. He also talked to an employee of a credit company, which company held a contract on the Dodge touring sedan that Speed traded in on the Buick. He found that payments had been made promptly on the Dodge contract and that Speed was "O.K." as a financial risk. Schaeffer later, and after the contract was signed, telephoned a credit association and obtained a report from them about his credit rating. Briefly, the substance of the information obtained by the investigation made by appellant bank was that the branch manager had checked over the purchaser's statement which had been turned over to him by Wood; obtained a report on credit rating from the Merchants' Credit Association of Santa Barbara; talked to a William Boykin, the reference above mentioned, and was advised by him that he had known Speed for the past fourteen years and that he did not know anything wrong about him. The branch manager was questioned as to whether or not the credit association reports would show any arrest or conviction for crimes. His answer was that he had obtained these reports for the past fourteen years and that "plenty" of the reports did show arrests and criminal convictions for crimes which came to the attention of the association through its members. Another witness testified that he had never seen criminal records reflected in such reports.
Respondent then showed by the evidence that Speed had, prior to the sale of the car in question, been convicted of the crime of grand larceny and served a term in the United States prison at Leavenworth upon such conviction; that he was a panderer and his wife was a prostitute; that he had had numerous arrests for vagrancy, the particular acts of vagrancy being that he was a panderer and a lewd and dissolute person; that he was reputed to have been engaged in the narcotic traffic prior to the time of his arrest and the seizure of the instant automobile.
The evidence of the arresting officer in this regard was to the effect that he was acquainted with this 1938 Buick sedan, *47 and the circumstances under which he became acquainted with it were, that he had made several efforts to apprehend Speed; that on January 19, 1939, he received information that Speed was leaving Santa Barbara for Bakersfield with $20 worth of opium to be delivered at 906 Eleventh Street in that city; that he checked on this information and found that the money had been sent; that he checked on a telephone call that had been put in, and with a government inspector went on the "spot or stake-out" about five minutes after midnight on the 20th of January; that Speed's car passed them on one of the streets in Bakersfield and that he parked his car in a garage, locked the doors and crossed the street to the address above mentioned, where he stayed for about twenty minutes; that he came back to the garage, opened the doors, and took out a suitcase from the rear of the car, went to the glove compartment of the car and took out a small package, relocked the car and went back into the house. At about 2:30 o'clock in the morning the officers raided the house and found Speed and two women, including Speed's wife, smoking opium. He arrested them, searched the car, and subsequently found the opium above mentioned. Speed admitted that he bought the opium in Santa Barbara from some Italian; that he was an ex-convict; that his wife was working as a prostitute; and that he was a pimp. Speed told the officer that he was going to plead guilty to the charge of transportation of narcotics since October, 1938.
Respondent further introduced evidence in rebuttal that the address given to the conditional seller by Speed was fictitious and that this was known to appellant through the report of an insurance company affiliate made in connection with the latter's investigation of Speed as an insurance risk.
Appellant now claims that under these facts the investigation conducted was at least as much, if not greater than the investigation which would have been made concerning a conditional sales contract on an automobile by any reasonable person; that it exceeded the requirements of section 15 of the State Narcotic Act and that full compliance having been made, the judgment of the lower court should be reversed, giving appellant a judgment for the amount of its lien.
A review of the cases pertaining to the sufficiency of the investigation, or in other words what a reasonable investigation *48 is under section 15 of the State Narcotic Act, discloses that there are but few cases involving forfeitures. As collated, they are briefly as follows:
In People v. One Ford V8 Tudor Sedan, 12 Cal. App. 2d 517 [55 PaCal.2d 908], the rights of a conditional sales vendor and its assignor were in issue. The ground upon which the appeal was taken was that the record disclosed no evidence showing compliance by the complainant or its assignor with the provisions of section 15-(e) of the State Narcotic Act. The evidence on the subject was not related, but the court sustained the state's contention and in disposing of the question said that because respondent had made no attempt to dispute any of the points made by the state with respect to the reasonable investigation of the responsibility, character and reputation of the purchaser, the decision of the trial court in favor of the respondent was not supported by the evidence. The appellate court reversed the judgment and ordered the car forfeited to the state.
In People v. One Lincoln 8, etc., 12 Cal. App. 2d 622 [55 PaCal.2d 925], the conditional vendor inquired at the purchaser's bank as to his financial standing and interviewed two references. One reference stated that the purchaser was "a good old soak" and the other told her he was "a very fine gentleman". In reversing the trial court on the question of the sufficiency of the evidence to justify the finding that the vendor had made a sufficient investigation as to the moral responsibility, character and reputation of the vendee, the appellate court held the investigation legally insufficient.
In People v. One La Salle, etc., 23 Cal. App. 2d 237 [72 PaCal.2d 766], although no evidence was offered by the conditional vendor as to its investigation, the court held that the burden of proof was upon the claimant to show that the conditional vendor had made a reasonable investigation of the purchaser's responsibility, character, and reputation, and in the absence thereof, the state was entitled to a judgment of forfeiture without showing on its part that the vendor by conducting a reasonable investigation could have discovered facts which would have put a prudent seller on inquiry as to the possible legal or illegal use of the automobile.
In People v. One Pontiac 8 Sedan, supra, the rights and duties of an assignee of a conditional sales contract are clearly set forth. Although it was apparent that no investigation *49 was made by the assignee, the court held that the state was not required to show that such an investigation would have developed knowledge of the intended illegal use.
In People v. One Plymouth Sedan, etc., 21 Cal. App. 2d 715 [69 PaCal.2d 1011], the registered owner loaned an automobile to a third party from whose possession it was taken for a violation of the State Narcotic Act. The appellate court affirmed the trial court's finding that a reasonable investigation had been made of the purchaser by the finance company. The evidence showed that the vendee was a butcher by trade and had been employed in a market; that his employer was visited by an agent of the finance company who made inquiry concerning his character and reputation and was assured that he was all right. A certain credit association had also assured the finance company that the purchaser was responsible.
In People v. One Harley-Davidson Motorcycle, supra, the vendor sold a motorcycle to a Chinese boy named Lee, after making what was contended to be a reasonable investigation. This consisted of obtaining the names of three references, one a 17-year-old Chinese boy and another the name of the Chinese firm by whom the purchaser was employed. The vendor inquired of the latter's employer only whether he was employed there. The Supreme Court held that such investigation was insufficient, and said:
"The evidence as to efforts to check on the whereabouts and activities of Lee, made when he was found to be an offender, most strongly indicates that the seller of the motorcycle would not, as a reasonably prudent man, have entered into the contract if he had sought any reliable information about Lee."
In People v. One Packard 6 Touring Sedan, 26 Cal. App. 2d 150 [79 PaCal.2d 130], the court held that there was no reasonable investigation, where an employee of the seller testified that he asked a garage man about the purchaser's character and financial status and was told that she was a very wonderful woman, had a good standing in the community, and came from a very nice, wealthy family, but the garage man testified that no such inquiry was made, that the only inquiry made of him was as to her credit standing, and that he knew her only as a customer and had no other information to give. *50
[4] Appellant claims that in the establishment of its claim of title or interest it is entitled to rely, not only upon the independent investigation made by it, but in addition, the investigation made by the original conditional vendor. We are inclined to the opinion that unless the assignee makes inquiry of the vendor as to the information obtained by him, or otherwise obtains such information from him, the assignee would not be entitled to use such evidence in support of its claim. If the interpretation be otherwise, any original vendor might discover, after an incomplete investigation, that he had sold a car to a person who was not morally responsible and not possessed of a good character and reputation and was a reputed narcotic violator, and might thus avoid the liability of forfeiture by assigning his contract to a third party. Could it be claimed that the third party, the assignee, might then omit the necessity of an independent investigation of its own, and rely upon the original investigation of the vendor as the basis of its claim? We think not. For if it be otherwise, the purpose of this provision of the act pertaining to forfeitures could be easily defeated. We do not intend to convey the impression, however, that such evidence as was obtained by the vendor could not be used by the assignee in support of its claim, if it were properly communicated to the assignee as a part of its investigation prior to or at the time of the purchase of the contract by the assignee. The evidence in the instant case does not show any inquiry of the vendor by the assignee as to his investigation. Therefore, the results of his investigation would not be available to appellants. The only evidence bearing upon the subject which the vendor turned over to the assignee was the purchaser's statement above mentioned. This contained no information of the purchaser's character, reputation, or moral responsibility, but only furnished information through which an investigation might be made. To the average rational thinking mind it will probably be conceded, if we accept the facts related as true, that Speed was not possessed of a good character, reputation and moral responsibility. In view of all the facts mentioned, it seems to us, if due inquiry had been made at the proper places and from the persons most likely to know his reputation for the traits involved, appellant might well have discovered that Speed was not possessed of those attributes above mentioned. We see no logical *51 reason to hold that the trial court was not justified in concluding that the facts relied upon were legally insufficient to constitute a reasonable investigation under the circumstances. We are unable to hold, as a matter of law, that they were sufficient.
[5] Appellant next argues that there was no finding by the trial court in reference to reasonable investigation. The court found:
"IV. That the right, title and interest in said vehicle of Bank of America National Trust and Savings Association was not created therein after a reasonable investigation of the moral responsibility, character or reputation of said William J. Speed, the purchaser thereof, named in said conditional sales contract."
This finding was sufficient on that issue. A similar finding was made in People v. One Lincoln 8, etc., supra, and was approved. We see no merit to this argument.
[6] Finally, appellant contends that the notice of seizure and intended forfeiture proceedings filed by respondent did not state a cause of action under the act. Similar notices were approved by the appellate courts in many of the cases herein cited. In the case of People v. One 1933 Plymouth, etc., 13 Cal. 2d 565 [90 PaCal.2d 799], a notice practically identical was involved and approved, and it is therefore conclusive on this issue.
Judgment affirmed.
Barnard, P. J., and Marks, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611788/ | 39 Cal. App. 2d 118 (1940)
H. C. STROMERSON et al., Respondents,
v.
ROGER AVERILL, Appellant.
Civ. No. 6282.
California Court of Appeals. Third Appellate District.
May 15, 1940.
L. N. Barber, David E. Peckinpah and Barcroft & Barcroft for Appellant.
Conley, Conley & Conley for Respondents.
Lemmon, J., pro tem.
This action was brought to quiet plaintiffs' title to real property. Defendant answered, denying the material allegations in the complaint. From a judgment adverse to him, defendant appeals.
Plaintiff, H. C. Stromerson, and defendant Roger Averill, had been friends for many years, the friendship beginning in 1915 or 1916 when they both resided in Idaho. In 1933 Averill was engaged in farming in Madera County. He persuaded or encouraged Stromerson to come from Los Angeles, where he then lived, to Madera for the purpose of farming the real property here in dispute. The evidence is in sharp conflict as to whether the property was puchased in the name of Stromerson under circumstances from which the conclusion is to be drawn that title is held by Stromerson in trust for Averill or that Averill's participation in the financing of the purchase and the farming of the property was purely gratuitous and an expression of the friendship between the two.
The real property was purchased under a contract dated November 1, 1933, in which Stromerson is the purchaser, and *121 Miller & Lux Incorporated, is the seller. According to Stromerson, Averill wanted him to come to Madera, and stated, "he had a piece of land that he could buy for me, that he had all of the land that he wanted and was not in a position to buy this place." The initial or down payment was borrowed by Averill from the San Joaquin Cotton Oil Co., and was charged by that company to Averill. Averill was reported as having stated at the time the contract was being negotiated the land was being bought for a "friend". Upon the contract is endorsed an assignment thereof, the name of the assignee not being filled in. This assignment bears Stromerson's signature. This phase of the transaction is explained as a compliance with the requirement of the lender as a condition to the financing of the purchase. The contract so assigned was deposited with and kept by that company as security. The same company financed the operations on the farm for that and the succeeding years. Some of the applications for loans were made by Stromerson, and some by Averill, but Averill's guarantee was required in each instance. Early in 1934, the company charged Stromerson's account with all advances previously charged to Averill's account and credited Averill's account with the total of those advances. At the end of that year's season, the proceeds from the year's operations were credited by the company to Stromerson and those proceeds were sufficient to liquidate the Averill account. On November 27, 1933, Stromerson and his wife, Leone, executed a quit claim deed conveying the real property in question to Averill. Stromerson states that Averill "told Leone and I that it was a quit claim deed by us in trust only, he says that he experienced hazards and automobile accidents and one thing and another, and that the only reason that he wanted it was if ever we both got killed or either one of us, that he might have some claim to the land, and he stated at that time that he would never record it." When asked why he took this quit claim deed, Averill stated, "Oh, I don't know of any particular reason I gave for it, except that I wanted it for my record security." This deed, though apparently delivered contemporaneously with its execution and kept thereafter in Averill's possession, was not recorded until August, 1937.
On January 25, 1935, a deed was executed by Miller & Lux Incorporated to Stromerson and his wife in joint tenancy. *122 At the same time plaintiffs executed two deeds of trust, each given to secure a promissory note in the principal sums of $6,300 and $3,600, respectively. These respective amounts were borrowed from the Federal Land Bank and the Land Bank Commissioner and were used partly to pay the balance due Miller & Lux Incorporated under the original contract of purchase. Averill was present when Stromerson applied for the Federal Land Bank loan at which time the former stated to the agent of the bank that his only claim in the transaction was in the sum of $900 due from Stromerson for two pumps installed upon the land and Averill signed and left with the bank a document to that effect. At that time Averill also agreed that, if Stromerson would pay the sum of $1200 to a Mr. Christiana, which sum was then owing by Averill to Christiana, said sum would pay for four mules and certain farming machinery theretofore owned by Averill, and which had been used in the farming of the land. That amount was paid to Christiana out of the money so borrowed.
In the years of 1936 and 1937 Averill suggested to Stromerson several plans, one, that the two join with other friendly neighbors in deeding their holdings including the real property in question to a corporation to be formed, another, that these lands be placed in a Massachusetts Trust and still another which contemplated the deeding of the land to one of the neighbors, a Mr. Lincoln, the purpose of which is obscure in the evidence. To each of these proposals, Stromerson expressed his refusal. Stromerson further stated Averill had never claimed ownership of land until his pleading was filed in this action. Plaintiffs made their home upon and engaged in the farming of the real property during the years following the signing of the contract of purchase.
[1] The record thus reviewed, we think, fairly states the evidence as it appears favorably to the respondent. There is much that could be added which tends to establish appellant's theory which we have not mentioned. What has been set forth, and the inferences which can be reasonably drawn therefrom, we conclude is sufficient to justify the judgment of the trial court. This evidence warrants the deduction that respondent purchased the real property for himself and not in trust for appellant, and that the interest and assistance that appellant exhibited in the purchase, financing and farming of the land was prompted by the cordial friendship which *123 existed between the parties and was not done under any claim of ownership. With the conclusion of the trial court upon conflicting evidence we cannot interfere.
[2] Considerable argument appears in the briefs as to whether the burden of proof shifted to the appellant upon proof of legal title in the plaintiff and as to the quantum of proof if the burden did so shift. Under appellant's theory the execution and delivery of the quit claim deed was equivalent to an assignment of the contract of purchase and the later payment of the balance due under the contract out of the proceeds of the loans procured upon the security of the land, raised a presumption of trust and cast upon respondents the burden of establishing an intention on the part of appellant to make respondents the absolute owners. We do not need to pass upon the correctness of that theory. Suffice it to remark that the trial court has found the evidence to preponderate against appellant upon this and the finding has justification in the evidence. The conclusion may be reasonably drawn from what has been recited from the record that the quit claim deed was executed and accepted as security against any liability that might exist against appellant in the financing of the purchase and in the farm operations. [3] A deed executed and delivered under such circumstances is to be considered a mortgage. (Civ. Code, sec. 2924.) The discharge of the obligations for which the deed was given as security extinguished the mortgage.
[4] Stromerson stated on cross-examination that he thought he had some letters from Miller & Lux Incorporated, relating to the Federal Land Bank loan and the deed from Miller & Lux Incorporated. Appellant requested him to produce them. The court overruled an objection to this request and asked the witness if he knew if he had such letters. The witness said he was not sure, and that he would have to look through his papers. Whereupon the court remarked: "That is all the time we can give that at this time." Claim is made that this resulted in an improper curtailment of cross-examination upon an important matter. We find no merit in this. The fair import to be drawn from that remark is that the matter could be later gone into after the witness had had an opportunity to make a search for such letters. Aside from a short discussion between counsel about available letters in which appellant stated he was not interested and *124 which followed the court's statement, the letters were not again referred to by appellant.
[5] Averill had testified on direct examination that the assignment on the back of the contract was executed at his request after the contract was received from Miller & Lux Incorporated, and the document had been in his possession ever since. He was then asked on cross-examination if he did not, after this action was filed, go to the office of the San Joaquin Cotton Oil Company and ask permission to see the contract between Miller & Lux Incorporated and Stromerson. A colloquy between counsel developed that the question referred to a contract other than the one heretofore mentioned, and referred to by the witness in the direct examination. An objection then made to this line of inquiry was overruled. The ensuing examination developed that the contract so mentioned, and which we will for convenience refer to as the second contract, covered the purchase and sale of a tract of land other than that involved in this action; that appellant had obtained the second contract from the San Joaquin Cotton Oil Company, and, while in his possession, had inserted his own name as assignee in the blank space provided for the name of the assignee in a form of assignment thereon which bore Stromerson's signature as assignor; that this had been done without authorization from either the San Joaquin Cotton Oil Company or Stromerson; that as so altered this document was returned to the company by appellant. There appears also upon the second contract and below the assignment these words "I hereby withdraw as assignee of the above instrument, Roger Averill." An official of the company testified that this latter endorsement was not on the document when it was returned to the company. Appellant complains that this cross-examination was permitted over objections to extend beyond proper limits resulting in the reception of evidence highly prejudicial to him.
As above stated, Averill had asserted that the contract here in question had at all times been in his possession since it was received from Miller & Lux Incorporated. Respondents sought unsuccessfully in the cross-examination of Averill to obtain an admission from him that to his knowledge the Cotton Oil Company always required an assignment of an *125 outstanding contract for the purchase of land to secure its advances to the vendee of such land.
[6] Although the cross-examination of a witness should be confined to matters which have been testified to by the witness on direct examination, a wide latitude is permitted for the purpose of testing accuracy or credibility. This is especially true if the witness is himself a party to the action. (Neal v. Neal, 58 Cal. 287.) The fact that the second contract was to the witness' knowledge deposited with, and kept by the company to secure against advances comes within the reasonable limits of the cross-examination. Elicitation of an explanation of the endorsements thereon also was proper as throwing light upon the knowledge of the witness as to the purpose for which the second contract was deposited with the company, in the light of that explanation.
[7] Mr. Jensen of the San Joaquin Cotton Oil Company, a witness at the trial, was asked concerning his connection with the purchase of the property in question. He volunteered in his answer the statement that Averill stated to him that he "wanted to purchase this land in the name of Harry Stromerson". A motion to strike the answer was granted upon the ground that it was hearsay. Appellant urges that this was error, and claims this testimony was proper under section 1850 of the Code of Civil Procedure which provides that where a declaration forms a part of a transaction which is itself a fact in dispute, or evidence of that fact, such declaration is evidence, as part of the transaction. He claims that if the fact sought to be established is that certain words were spoken, without reference to their truth or falsity, the statement is original or primary evidence and admissible. There is diversity of authority as to the rule. If the declaration is admitted to show the truth of the statement it is hearsay, but if it is admitted to prove merely that the statement was made it does not come within the general prohibitions of hearsay. The rule which appears to have the weight of judicial support is that a declaration is admissible to show the present state of mind or intent of the declaration, where such state of mind or intent is material. (Wigmore on Evidence, 2d ed., 1729.) If a statement is made spontaneously or under such circumstances as to fairly indicate verity the reason for the exclusion of hearsay is weakened. As Justice Holmes stated in Elmer v. Fessenden, 151 Mass. 359 [24 N.E. 208, *126 5 L.R.A. 724], "Such declarations, made with no apparent motive for misstatement, may be better evidence of the maker's state of mind at the time than the subsequent testimony of the same persons."
However, the ruling complained of, if erroneous, is not of such seriousness as to require or justify reversal. The excluded statement is not entirely inconsistent with plaintiff's theory. Averill's purchase of the land in Stromerson's name does not exclude the possibility that it was also purchased for Stromerson. We cannot say that this ruling resulted in a miscarriage of justice. (Const., art. VI, sec. 4 1/2.)
There are other assignments of alleged error in rulings of the trial court upon the admission of certain evidence. We have reviewed them and they do not justify any extended comment. In one instance the answer obviously would have been wholly immaterial, in another the question objected to sought an answer, the substance of which related to what was undisputed and otherwise established without conflict. The last objection relates to the reception of certain evidence which was properly received.
The judgment is affirmed.
Tuttle, J., and Thompson, Acting P. J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000767/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4081
RANDALL WHITE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-98-293)
Submitted: December 29, 1999
Decided: February 1, 2000
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lance Armstrong, LAW OFFICES OF LANCE ARMSTRONG,
Miami, Florida, for Appellant. J. Rene Josey, United States Attorney,
A. Bradley Parham, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Randall White appeals his jury convictions and resulting 400
month sentence for conspiracy in violation of 21 U.S.C. § 846 (1994)
and possession with intent to distribute in violation of 21 U.S.C.A.
§ 841 (West 1994 & Supp. 1999). We affirm.
White claims on appeal that the Government's questions to two
witnesses during trial as to whether they were afraid of White consti-
tuted plain error. We have reviewed the record and conclude that the
remarks did not constitute plain error. See United States v. Brewer, 1
F.3d 1430, 1434-35 (4th Cir. 1993). White also claims that the district
court erred in denying White's motion for a mistrial after the Govern-
ment remarked during closing argument that it possessed additional
evidence that was not presented at trial. The district court immedi-
ately directed the jury to disregard the reference to additional evi-
dence and repeated during jury instructions that argument that the
Government possessed evidence not presented at trial be disregarded.
Under these circumstances, and in light of the evidence against White
properly adduced at trial, we find that the court did not abuse its dis-
cretion in refusing to grant a mistrial. See United States v. Morsley,
64 F.3d 907, 913 (4th Cir. 1995); United States v. Dorsey, 45 F.3d
809, 817 (4th Cir. 1995).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2430132/ | 477 F. Supp. 2d 223 (2007)
William E. SAMPSON, Plaintiff,
v.
WASHINGTON METRO. AREA TRANSIT AUTHORITY, et al., Defendants.
Civil Action No. 04-1767 (GK).
United States District Court, District of Columbia.
March 20, 2007.
*224 Lee Boothby, Boothby & Yingst, Washington, DC, for Plaintiff.
Bruce P. Heppen, David J. Shaffer, Washington Metropolitan Area Transit Authority, Washington, DC, Martin Patrick Hogan, Gromfine & Taylor, PC, Alexandria, VA, for Defendants.
Steven Moseley, Baltimore, MD, Pro se.
MEMORANDUM ORDER
KESSLER, District Judge.
Plaintiff, William E. Sampson, brings this suit alleging intentional infliction of emotional distress, and violations of his First Amendment rights, for acts taken against him after he notified several of his supervisors and managers at Washington Metropolitan Area Transit Authority ("WMATA") about, inter alia, potential safety hazards in the workplace. Defendants are WMATA and eight individual current and former WMATA employees.[1]
This matter is before the Court on pro se Defendant Moseley's Motion to Dismiss [# 46] and Motion for Summary Judgment [# 50][2] Upon consideration of the Motions, Opposition, and the entire record herein, and for the reasons stated below, Defendant Moseley's motions are denied.
I. BACKGROUND[3]
On or about August 16, 1999, Plaintiff began working for WMATA as a mechanic's helper in communications with the Radio Maintenance Department. Some of Plaintiff's responsibilities related to the "safety of both bus operations and patrons through radio and other means of communication." Compl. at ¶ 14.
During the Spring and Summer of 2002, WMATA received nearly one hundred new buses. None of the buses had radios. Plaintiff questioned his supervisor, Defendant Gairy Johnson, the area supervisor, Defendant Herbert Bullock, and the street supervisor, Gary Speicher, regarding whether the lack of radios in the new buses posed a safety hazard. None of them provided a satisfactory response.
In August 2002, Plaintiff wrote a "bus safety memorandum" and distributed it to the head of safety at WMATA, Frank Goodine, Defendant Johnson, Defendant Barber, and several others. Plaintiff asserts that from that point forward, WMATA retaliated against him for voicing his safety *225 concerns. For example, Plaintiff claims he was told to "drop the matter," he was subjected to "verbal abuse," and in November 2002, he was improperly disciplined for "defacing" WMATA property after he indicated on a safety meeting "sign up sheet" that nobody had attended. Id. at ¶¶ 19-26.
Around that time, Plaintiff left a message on the general manager's hotline that handled retaliation, oversight, and mismanagement. He alsq told Ruth O'Hara, the executive assistant to the head of WMATA's safety department, that he thought WMATA was retaliating against him. He later e-mailed Ms. O'Hara information relevant to his complaint. WMATA initiated an investigation, and Plaintiff was eventually introduced to WMATA's Auditor General, James Stewart. In addition to information about alleged retaliation against him, Plaintiff provided information to the auditors about employees improperly using WMATA resources.
On February 6, 2003, Defendant Johnson posted a notice about an "administrative investigation" that was initiated as a result of Plaintiffs complaints. Id. at ¶ 33. Defendant Moseley, one of Plaintiffs co-workers, began telling other employees that Plaintiff was responsible for the investigation. Moseley also made comments about Plaintiff such as "what we should do about the terrorist in here" and the "war in here," and began warning other employees about getting involved with Plaintiff. Id. at ¶¶ 33-36. On at least two occasions thereafter, according to Plaintiff, Defendant Moseley made remarks to WMATA employees, in Plaintiffs presence, about how accidents can happen on their job site. Id. at ¶ 37.
Between August 18, 2003 and September 3, 2003, Plaintiff was called into meetings with two different superintendents who each questioned him about "what he wanted." Id. at ¶¶ 38-39. Around that time, Plaintiff requested a transfer to avoid any potential physical harm.
On September 17, 2003, Plaintiff sent an e-mail to Johnson expressing his concerns regarding various safety issues, including lack of training, lack of adequate procedures, and potentially hazardous conditions. The next day, Plaintiff was notified that he would be transferred to a different facility, but that he would have to complete a "WMATA-sponsored Effective Workplace Behavior course." Id. at ¶ 40. He was then escorted off the premises. Between March 12, 2004 and March 26, 2004, Plaintiff sent three additional e-mails to other officials regarding his safety concerns.
II. STANDARD OF REVIEW
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 654, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999). Accordingly, the factual allegations of the complaint must be presumed true and liberally construed in favor of the plaintiff. Abigail Alliance v. von Eschenbach, 445 F.3d 470, 475 (D.C.Cir.2006). However, the Court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations. Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)(internal citations omitted).
The Federal Rules of Civil Procedure require that if, on a motion to dismiss for failure to state a claim, the movant submits matters outside the pleadings which are not excluded by the court, the motion must be treated as one for summary judgment *226 and disposed of in accordance with Rule 56. FED.R.CIV.P. 12(b). Defendant's motions require consideration of matters outside the pleadings and will thus be treated as motions for summary judgment.
Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56(c). A fact is "material" if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In determining whether the movant has met this burden, a court must consider all factual inferences in the light most favorable to the non-moving party. McKinney v. Dole, 765 F.2d 1129, 1135 (D.C.Cir.1985); see also Anderson, 477 U.S. at 255, 106 S. Ct. 2505. Once the moving party makes its initial showing, however, the nonmoving party must demonstrate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S. Ct. 2548; McKinney, 765 F.2d at 1135. Accordingly, the nonmoving party must provide evidence that would permit a reasonable jury to find in his or her favor. Liberty Lobby, 477 U.S. at 255-56, 106 S. Ct. 2505. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. 2505 (citations omitted).
III. ANALYSIS
To establish a cause of action for intentional infliction of emotional distress a plaintiff must show 1) extreme and outrageous conduct on the part of the defendant which 2) either intentionally or recklessly 3) causes the plaintiff severe emotional distress. See Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C.2002).
Defendant Moseley's two-sentence Motion to Dismiss [# 46] states that Plaintiffs claims should be dismissed because, as a matter of law, his actions were not extreme or outrageous. Likewise, in his Motion for Summary Judgment [# 50], Defendant Moseley argues that his actions were not extreme enough to support a claim for intentional infliction of emotional distress. He cites his June 15, 2006 deposition testimony as "factual evidence that [Plaintiffs claim is] baseless." Def.'s Mot. Summ. J. at 2.
Plaintiff did not file any response to Defendant Moseley's Motion to Dismiss, and responded to Defendant Moseley's Motion for Summary Judgment by referencing Oppositions filed in response to other Defendants' dispositive motions.[4] Those Oppositions show that Plaintiff is proceeding on the theory that Moseley's remarks were veiled threats of physical violence. Indeed, in its Motion for Summary Judgment, WMATA claims that it disciplined Moseley for violating its workplace violence policy based on his behavior towards Plaintiff. Defs. Mot. Summ. J. [# 42] at 23. Plaintiff has submitted a lengthy declaration in which he claims that Moseley attempted to physically intimidate him by blocking his path on multiple occasions and shouting obscenities at him. Moreover, Plaintiff claims that Defendant told their unionized co-workers that Plaintiff *227 had implicated them in an administrative investigation. See Plaintiffs Opp'n to Defs.' Mot. Summ. J. [# 53], Exhibit 1 at ¶ 19, 29, 103, 106, 108, 110, 111, 112.
Plaintiff is alleging threats of violence and intimidation in a unionized workshop employment setting. Certain material facts are in dispute. Moreover, based on the present record, given the total context of Plaintiffs allegations, the Court cannot, at this time, say that no reasonable jury could find Defendant Moseley liable for intentional infliction of emotional distress.
IV. CONCLUSION
For the reasons noted above, it is hereby
Ordered that Defendant Moseley's Motion to Dismiss [# 46] and Motion for Summary Judgment [# 50] are denied.
NOTES
[1] Defendants are WMATA, Herbert S. Bullock, James R. Brown, Ernest Barber, Jr., Gairy O. Johnson, Steven Moseley, R. Sean Burgess, Alan G. Nabb, and John B. Catoe, Jr. Plaintiff's First Amendment claims are not asserted against Defendants Barber or Moseley.
[2] All Defendants who have been served have filed dispositive motions in this case; however, this opinion deals only with Defendant Moseley's Motion to Dismiss [# 46] and Motion for Summary Judgment [# 50]. The Court will address the remaining motions at a later date.
[3] For purposes of ruling on a motion to dismiss, the factual allegations of the complaint are presumed to be true and liberally construed in favor of the plaintiff Abigail Alliance v. von Eschenbach, 445 F.3d 470, 475 (D.C.Cir.2006). Therefore, the facts set forth herein are taken from Plaintiff's Amended Complaint.
[4] The Court could dismiss Plaintiff's claim against Moseley based on his failure to respond to Defendant's Motion to Dismiss; however, given the Motion's conclusory nature and general lack of substance, the Court declines to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610213/ | 485 P.2d 1120 (1971)
STATE of Oregon, Respondent,
v.
Clinton William ROWLEY, Jr., Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted May 18, 1971.
Decided June 10, 1971.
*1121 Robert J. Groce, Portland, argued the cause and filed the briefs for appellant.
W. Michael Gillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
THORNTON, Judge.
Defendant, an ex-offender who was participating in a vocational rehabilitation program to become a school teacher, was arrested on January 8, 1970, on a charge of attempted larceny in a dwelling and burglary in a dwelling. On February 4, after a preliminary hearing, he was bound over to the Multnomah County grand jury. On March 27 the grand jury returned a not true bill on the burglary charge but indicted defendant on the charge of attempted larceny. The case was set for trial for June 15. On June 9 the state dismissed the original indictment and resubmitted the matter to the grand jury, which indicted the defendant on both of the above counts. The state did not obtain permission of the court to resubmit the matter.
On June 25 defendant filed a motion for dismissal of the indictment on the grounds he had been denied a speedy trial and that permission of the court to resubmit had not been obtained. The trial court denied the motion on the first ground and allowed it as to the burglary count on the second ground. Shortly thereafter the presiding judge set a new trial date, August 7. Trial was commenced as scheduled. Defendant was convicted after jury trial of attempted larceny in a dwelling of a stereo phonograph.
Defendant appeals contending the lower court erred in (1) denying defendant's motion to dismiss the indictment for failure to grant defendant a speedy trial; (2) permitting a state's witness to testify as to admissions of defendant of past unlawful conduct; (3) not granting defendant's motion for mistrial because of remarks by the prosecutor in his opening statement (a) that while defendant and the alleged victim *1122 were both enrolled in a law enforcement course at "Portland State College" (Portland State University) defendant, in introducing himself to the alleged victim and others in the class, mentioned "his prior record," (b) that defendant, after the alleged crime, represented himself to the victim as a member of a security force of ex-convicts investigating burglaries in the area, (c) that defendant was an "intellectual criminal," and (d) the admission of testimony as to other statements allegedly made by defendant as to past wrongful conduct; and (4) overruling defendant's objection to questions asked defendant by the prosecuting attorney on cross-examination of defendant as to defendant's reasons for pleading guilty to an earlier charge of breaking and entering in Wyoming.
1. ORS 134.110 provides:
"When a person has been held to answer for a crime, if an indictment is not found against him within 60 days after the person is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary is shown."
The period of time between defendant's preliminary hearing and bind over, and the return of the first indictment, was 51 days. This was within the 60 days permitted by ORS 134.110.
Next, the right to speedy trial guaranteed by Oregon Constitution, Art I, § 10, ORS 134.120 and the Sixth Amendment to the United States Constitution, inures to a defendant after a formal complaint has been filed. State v. Downing, 91 Adv.Sh. 1283, 1288, Or. App., 478 P.2d 420 (1970).
ORS 134.120 provides:
"If a defendant indicted for a crime, whose trial has not been postponed upon his application or by his consent, is not brought to trial within a reasonable period of time, the court shall order the indictment to be dismissed."
A reasonable time is such length of time as may be reasonably required under the circumstances. State v. Harrison, 253 Or. 489, 455 P.2d 613 (1969).
Here the interval between formal complaint and initial trial date was 157 days. On July 1 the presiding judge set a new trial date, August 7. Trial began on that date. This made the total time between the formal complaint and trial 209 days, just under seven months. The defendant was not in confinement awaiting trial.
We find no evidence that the delay in this case was "purposeful" or "oppressive."
In State v. Vawter, 236 Or. 85, 386 P.2d 915 (1963), our Supreme Court held that a delay of seven and one-half months in bringing defendant to trial in Multnomah County was not unreasonable. We hold that the delay in this case was not unreasonable under the circumstances. Compare State v. Downing, supra.
As to defendant's contention that the delay was intentionally vexatious in that the prosecutor's office was preventing him from resuming his teaching position, it was defendant's own conduct, namely, his arrest, rather than the delay, which brought about his suspension from his teaching position.
2. The defendant's second assignment relates to testimony elicited from one of defendant's classmates at Portland State University as to statements allegedly made by defendant as to past unlawful conduct. No timely objection was made. Defendant's counsel had already asked a previous classmate-witness (Lind) on cross-examination as to defendant's attitude on law enforcement problems. The witness had replied, "Strong," and was thereupon asked to give "examples," which he did. This amounted to placing defendant's character in issue in this respect. Since defendant had "opened the door," the prosecution was entitled to elicit from fellow classmates other statements by defendant tending to show an opposite attitude toward law and law enforcement. State v. Keith, 2 Or. App. 133, 465 P.2d 724, Sup.Ct. review denied (1970).
*1123 3. Defendant here assigns as error (a) remarks referred to above by the deputy district attorney in his opening statement to the jury, and (b) the admission into evidence of other testimony and statements allegedly made by defendant as to other past unlawful conduct.
First, the remarks of the deputy district attorney were not objected to and will not be considered by this court.[1] State v. Phillips, 92 Adv.Sh. 95, Or. App., 481 P.2d 381, Sup.Ct. review denied (1971); State v. Charles, 90 Adv.Sh. 1413, Or. App., 469 P.2d 792, Sup.Ct. review denied (1970).
Second, of the statements cited by defendant in his brief, only two were objected to at trial. These fall into the same category as the previous testimony relative to defendant's attitude toward law enforcement problems.
4. The court correctly overruled the objection by defense counsel to cross-examination of defendant concerning defendant's motives in entering a plea of guilty in Wyoming. The defendant chose to take the stand in his own defense.
Where, as here, the defendant by his own testimony endeavors to create the impression that he was motivated in pleading guilty in the Wyoming case as well as in the present case solely by his own guilt or innocence, the state was entitled to show that he may have also been motivated by the fact that 14 other charges which were also pending there against him were dismissed by the Wyoming prosecutor. The questions asked on cross-examination were proper and defendant's assignment of error is likewise without merit. State v. Keith, supra.
Affirmed.
NOTES
[1] This is not to be construed as suggesting that these remarks were improper, since the record shows that defendant had told members of the class that he was an ex-offender. Further, the alleged victim testified that when she came home unexpectedly and discovered defendant, he sought to explain his presence there by telling her, among other things, that he was one of a group of ex-convicts employed by law enforcement authorities to investigate burglaries in the neighborhood, which proved to be untrue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610214/ | 485 P.2d 708 (1971)
PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Felipe CHAVEZ, Defendant-Appellant.
No. 25135.
Supreme Court of Colorado, En Banc.
June 1, 1971.
Carl Parlapiano, Dist. Atty., Cecil L. Turner, Deputy Dist. Atty., Pueblo, for plaintiff-appellee.
Alan N. Jensen, Pueblo, for defendant-appellant.
GROVES, Justice.
This is an interlocutory appeal from an order denying a motion to suppress the introduction of marijuana in evidence. We approve the order.
A police officer had information from an informant that the two occupants of a certain motor vehicle were selling marijuana. The testimony of this officer disclosed that the information furnished by the informant and the reliability of the informant were such as to meet the tests of People v. Brethauer, Colo., 482 P.2d 369 (1971); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1966), as to probable cause to support the issuance of a search warrant. This officer was joined by another officer, and they jointly kept the suspected vehicle under surveillance for 45 minutes. The occupants then returned to the car and started to drive away. While the officers were in the process of stopping this car, which was driven by the defendant, they observed that the passenger in the car was apparently placing something under the front seat. When the car was stopped, the officers ordered the men out, seized marijuana that was in plain view on the right front floor of the car, and arrested the occupants.
Since there was probable cause to obtain a warrant to search the car, the officers had the right to stop and search it without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).
One of the officers then obtained a search warrant and acting thereunder found marijuana not in plain view in the car.
The defendant argues that the officers had no right to stop the car. This is already disposed of by our statement that there was probable cause to search. He contends that during the 45-minute period of surveillance prior to the search and arrest, the officers should have obtained a search warrant. During most of this time *709 the car was parked and unoccupied, and the officers waited for the occupants to return to it. We not only find that there is no merit in the argument, but would regard it as poor police procedure if the surveillance was suspended in order to obtain a warrant when there was a likelihood that the car would be driven away during that period of time. Another argument presented is that there was no probable cause to issue the search warrant. As we have already indicated, the officers could have searched the car completely without a search warrant. The other arguments presented are without merit.
We find the facts of this case similar to those of Martinez v. People, 168 Colo. 314, 451 P.2d 293 (1969).
Ruling affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610234/ | 485 P.2d 603 (1971)
94 Idaho 205
Ellen DUNCAN, Plaintiff-Respondent,
v.
Rollin S. DAVIS, Unified Social Services of Arizona, Inc., and Unified Social Services of Idaho, Inc., Defendants-Appellants.
No. 10745.
Supreme Court of Idaho.
May 28, 1971.
Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, for defendants-appellants.
Albaugh, Bloem, Smith & Pike, Idaho Falls, for plaintiff-respondent.
DONALDSON, Justice.
This is an appeal by two social service agencies from a district court judgment awarding control and custody of a child to its natural mother. The mother had petitioned the district court for a writ of habeas corpus in order to secure the return of her son whom she claimed had been unlawfully taken from her. The case does not involve the undoing of an adoption but rather whether the natural mother made a surrender of the child. This case presented an issue of fact to the trial court and for various reasons it found that the surrender, or signing of the required form, was not done with such stability of mind and emotion as to constitute a voluntary relinquishment. However, there was no showing of fraud or trickery by the child placement agency. See, The People ex rel. Olga Scarpetta on behalf of Baby Scarpetta v. Spence-Chapin Adoption Service, 28 N.Y.2d 185, 269 N.E. 787, 321 N.Y.S.2d 65 (1971) (4-7-71).
The pertinent events involved in this appeal occurred in Arizona. In September, 1969, Ellen Duncan, a full blooded Navajo, gave birth to a child out of wedlock. She became pregnant prior to her graduation from high school. The father is also an Indian. After her graduation from high school, Ellen Duncan went to Phoenix, Arizona, to seek medical help and assistance for the impending birth and in placing her baby for adoption. At the Phoenix Indian Hospital, a doctor referred her to a social worker at the hospital. Ellen stayed at the hospital a week and was then referred to the Unified Social Services of Arizona, Inc., (hereinafter referred to as the Arizona Agency), a qualified Arizona child placement agency. The Arizona Agency accepted Ellen into its unwed mothers' program and placed her in a foster home to await the delivery of her child. Immediately subsequent to the birth of her child, she signed a form which purported to relinquish *604 her parental rights to the child although as the record indicates she was not aware of the implications and ramifications that signing the form entailed.[1] The record indicates that while Ellen was still at the hospital discussing with the social worker an attempted revocation of the relinquishment that she had just signed, a physician persuaded her not to change her mind but to give up the child for adoption. The baby was born on September 17, 1969, and from this time on the Arizona and Idaho welfare agencies, which work in conjunction with one another, have cared for the child and have since placed it with prospective adoptive parents. After Ellen left the hospital she returned to her native Navajo environment. She contacted her attorney about two weeks after the birth of the child and told him of her plight. Ellen Duncan petitioned the district court for a writ of habeas corpus for the purpose of compelling the adoption agency to release the child to her since she did not fully realize the consequences of signing the form relinquishing her right to the child. Ellen *605 Duncan testified that the Navajo concept of adoption as she knew it meant a temporary rather than permanent relinquishment of the child. The record furthermore indicates that although Ellen Duncan understood the English language, it was not her native tongue and when faced with an emotional crisis, might very well state the contrary of what she actually intended. Dr. Sheldon I. Miller, a psychiatrist, deposed:
"A question I may ask in English will be interpreted quickly by them and answered, and at times I feel they really don't understand the question by virtue of what their answer was. When the question is rephrased through a Navajo interpreter, the answer is diametrically opposed to their first answer in English."
The record reveals that according to Navajo tradition, when a child is born out of wedlock, the child is part of the whole Navajo family and there is a desire to keep the child because "This is their baby."[2] The Bonneville County District Court granted the writ of habeas corpus and ordered the child produced since:
"* * * it appears that Baby Boy Duncan is illegally detained and restrained of his liberty against the wishes of the petitioner."[3]
The trial court reached this decision because in its opinion,
"* * * Ellen Duncan did not make a completely voluntary, free and knowing surrender of her child, and did not have any intention to forever surrender all right or claim to her baby."[4]
The adoption agencies (Unified Social Services, Inc. of Arizona and Unified Social Services of Idaho) have appealed to the Supreme Court from the adverse judgment and although they assign numerous findings of fact and conclusions of law made by the trial court as error, they can be reduced to the contention that the evidence presented at trial does not support the decision to grant the writ of habeas corpus.
It has long been the rule of this Court that findings of fact which are supported by competent and substantial evidence, though conflicting, will not be disturbed on appeal. I.R.C.P. 52(a);[5] Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969); White v. Boydstun, 91 Idaho 615, 428 P.2d 747 (1967); Linhartsen v. Myler, 91 Idaho 269, 420 P.2d 259 (1966). Furthermore credibility of witnesses and inferences to be drawn from the evidence are for the trial judge, and his findings of fact will not be set aside unless clearly erroneous. Johnson v. Sweeney, 91 Idaho 805, 430 P.2d 883 (1967). The Supreme Court cannot inquire into credibility of witnesses on appeal since that question rests with the trier of the fact. Patrick v. Bisbee, 52 Idaho 369, 15 P.2d 730 (1932).
The principal issue presented by this appeal is whether the evidence sustains the *606 conclusion that the natural mother did not make a voluntary and free relinquishment of the child. Prior to the birth of the child, Ellen Duncan had planned to give it up for adoption.[6] The record indicates that the birth was difficult for Ellen and that her recovery was spent in discomfort. She underwent post-delivery surgery to stop profuse bleeding which occurred after the birth. After the child was born, Miss Griffin, a professional social worker, spent some time, the actual length of which is disputed, with Ellen Duncan discussing the adoption procedures. Miss Griffin once again visited Ellen Duncan for the purpose of securing a termination of parental rights to Ellen's child and visited with Ellen alone and then later two professional social workers were called into the room to witness and acknowledge the relinquishment papers. Ellen testified that she read the relinquishment documents but didn't fully understand them and that Miss Griffin did not explain the nature of the documents to her. However, the two witnesses each testified that Miss Griffin asked Ellen if she had read the papers and understood them and Ellen answered yes. However the same evening Ellen attempted to revoke the purported relinquishment and the next day while discussing the matter with Miss Griffin, a physician in the hospital persuaded Ellen to go through with the adoption.
In addition to all the ordinary incidents of childbirth and the normal pain and suffering attendant thereto, Ellen Duncan, who was undisputedly in an emotionally charged condition,[7] was requested by the adoption agency to sign a certain paper which relinquished all parental rights to the child. She signed the relinquishment form and then she was permitted to see the child and hold it for a short time. The record then reveals that Ellen Duncan was not sure about the consequences and implications resulting from the signing of the form and she informed the adoption agency the evening of the same day she signed the relinquishment that she "wanted the baby." This evidence coupled with the atmosphere of intimidation and apprehensiveness to which Ellen felt she was subjected to by the "Anglos" are strong indications which negative any "consent" and demonstrate that the form was not signed voluntarily by Ellen. As heretofore stated, there is no evidence of either fraud or coercion. However, this Court agrees with the district court in that legitimate doubts have been raised as to whether the mother in fact knew or was made sufficiently aware of the consequences flowing from the signing of the form. D.P. v. Social Service and Child Welfare Dept., 19 Utah 2d 311, 431 P.2d 547 (1967). In a recent case decided by the New York Court of Appeals it was held that where the trial court had found a surrender of an out-of-wedlock child was made without stability of mind and emotion, such findings of fact were to be accepted by the appellate court as immutable. The People ex rel. Olga Scarpetta on behalf of Baby Scarpetta v. Spence-Chapin Adoption Service, supra. A perusal of the Scarpetta case, supra, indicates that the facts presented by the instant case are substantially stronger and dictate a return of the child. The individual involved in the New York case was a mature woman, well-to-do, well traveled, and had received a college education. Yet, the highest court in that state in essence ordered her child to be returned to her because at the time she executed the "surrender document" she was unstable in mind and emotion. The facts in the case at bar reveal that the individual involved was not a mature woman (over 30), but rather a young Indian girl of 19, not a girl of means, but one who had to rely on charitable assistance to have her baby. In light *607 of the facts revealed by this case, the Supreme Court has no choice but to affirm the judgment of the lower court.
Judgment affirmed. Costs to respondent.
McQUADE, C.J., and McFADDEN and SPEAR, JJ., concur.
SHEPARD, Justice (dissenting).
This decision is perhaps the most difficult and Solomonlike that this Court has had or will have for many years, and hence I regret to further compound the problem by dissenting. The decision is particularly difficult for two reasons. First, this Court must decide whether to deprive a natural mother of the future custody of her child, or in the alternative to tear that same child away from the prospective adoptive parents who have had the care and custody of that same child for approximately a year and a half since the child was approximately one week old. We may assume that strong bonds of attachment, love and affection have been formed during that period of time. Secondly, we must decide whether a child born of an Indian father and mother will best be raised and cared for in a non-Indian cultural environment or, on the other hand, whether the child should best be placed with its mother in an environment in which there will be certain aspects of the Indian culture.
I feel impelled to dissent in this case because, in my judgment, the language and the decision of the majority,
"The case does not involve the undoing of an adoption but rather whether the natural mother made a surrender of the child. This case presented an issue of fact to the trial court and for various reasons it found that the surrender, or signing of the required form, was not done with such stability of mind and emotion as to constitute a voluntary relinquishment.",
will tend to jeopardize the adoptive process in this state. In my judgment, a very real interest of society is served by maintaining the adoptive process as inviolate as possible. I see no interest of society to be served by permitting a natural parent, who has relinquished a child, to regain it from prospective adoptive parents after the lapse of time involved in the case herein. The destruction of the relationship between the prospective adoptive parents and the child will be a traumatic experience for all involved. I cannot help but believe that the decision of this Court in this case could well have the effect testified to at trial of impairing the willingness of persons who would otherwise be prospective adoptive parents.
The decision of the majority herein points out that no formal adoption process has taken place. I would point out that the record discloses the only reason that a formal adoption process has not been concluded is the existence of this lawsuit. I see no real distinction between this case and others merely on the basis that a formal adoption procedure was not completed, albeit it was intended, recommended and desired. The emotional upheaval and the tearing asunder of the bonds will be no less intense and I believe the distinction, if it exists at all, is a distinction without a difference.
It is necessary to point out the specific finding of fact by the trial court that the agency (respondent herein) indulged in no misconduct or coercion to gain the relinquishment by the petitioner. The majority opinion contends that a physician persuaded the petitioner to give up the child for adoption. The record indicates that shortly after the birth of the child petitioner's own physician, who may or may not have been connected with the Navajo tribe, discussed with the petitioner the desirability of giving up the child for adoption. Such physician has and had no connection with the agency whatsoever. The record further discloses that petitioner has an older sister whose three children live with their grandparents, and the older sister also recommended and suggested that petitioner herein give up her child for adoption. I *608 would further point out that the trial court in its findings of fact did not specifically indicate that the said physician exercised any persuasion, undue or otherwise, upon petitioner.
The majority opinion, as heretofore stated, places much emphasis on the mental instability and highly emotional state of the petitioner at the time of the relinquishment. I believe we may take judicial notice of the fact that for any woman the birth of a child involves considerable physical pain and difficulty and a large amount of mental disturbance. We may infer that when the situation is complicated by the illegitimacy factor, the emotional trauma is extreme. There is nothing herein to indicate that these problems and difficulties were in fact any different than any other 19 year old female giving birth of an illegitimate child might sustain.
We come then to what must constitute the real basis of decision for the majority opinion, i.e., inferentially at least, that the petitioner was a simple Navajo girl of Indian culture who did not understand the English language and was misled deliberately or otherwise into giving up her child. I suggest that the record states otherwise. The father of the petitioner is employed in a uranium plant and earning approximately $650.00 per month. Petitioner's two brothers attend college in state universities. Petitioner herself has attended boarding schools since the time that she was eight years old and has not lived with her parents under the Indian culture. The schools which she attended were conducted in the English language and she received good grades of a B average and graduated from high school. Thereafter, she has been employed off the reservation, first as an assembler in an electronics plant, and presently as a nurse's aid in a hospital, earning approximately $300.00 per month. During the time that the petitioner was pregnant her oldest sister was aware of the pregnancy, as was her mother. As above stated, petitioner discussed the matter with her older sister, who recommended to her that she surrender the child for adoption.
The trial court and the majority opinion here place heavy value on the "evidence" of an atmosphere of intimidation and apprehensiveness to which petitioner felt she was subjected by the "Anglos." This "evidence" came in through the medium of a deposition taken of a psychiatrist in Arizona. The deposition was taken without the agreement of the respondent agency or its counsel, and without any representation of the respondent agency thereat. No opportunity for cross-examination was available to the respondent, and in my judgment the admission of that "deposition" into evidence over the objection of the respondent at trial was erroneous. Absent such "evidence," there is no basis in fact for the finding of the trial court of any intimidation or apprehensiveness on the part of petitioner merely by reason of her Indian birth. The record reveals to the contrary.
Although not mentioned in the majority opinion, one further aspect of the case necessitates discussion. At the hearing evidence was presented of the present home life of the child and the desirability of leaving the child therein for the future. Upon motion, the trial court struck all of said evidence and refused to consider it in his determination as to what would be the future best interest and welfare of the child. The trial court, in its memorandum decision, indicated its usage of seven criteria for its decision of the case, among which was the relative abilities of the adoptive parents and the natural parent to rear the child in the manner best suited to its normal development. The trial court stated in its decision that respondents herein refused to disclose the identity of the prospective adoptive parents with whom the child had been placed. The trial court states in its memorandum decision that it had misgivings as to whether it was just and fair to receive the testimony when petitioner had no opportunity to offer any rebuttal testimony or make any "intelligent" cross-examination. The court stated:
"Neither counsel in their brief has submitted any law or authorities upon this *609 question and the court has not been able to find any upon its own research. However, the court has reached the conclusion that it would be manifestly unfair and unjust for the court to receive and consider such testimony."
It should be pointed out that the record is completely devoid of any proceedings at any time or place indicating any direction by the trial court to disclose the identities of the prospective adoptive parents. The record further indicates that at no place or time during the hearing was any direct question asked by counsel for petitioner as to the present location of the baby. Absent any such indication, the striking of such testimony was erroneous by the trial court and the trial court should have made a finding as to the future best interest of the child.
The majority opinion amply and fairly states the facts as revealed by the record pertaining to the question of the so-called revocation of the parental relinquishment for adoption form. The trial court found that the petitioner "had effectively revoked the parental relinquishment for adoption form." As stated by the majority opinion, the petitioner went through several changes of mind immediately after the birth of the child, but finally concluded that she would relinquish the child. I believe there is no real question herein as to any revocation. The only question is, as stated by the majority opinion, whether or not petitioner knowingly relinquished her child for adoption. I believe the record clearly indicates that she did.
It would serve no purpose to review the status of a revocation of parental assent to adoption across the United States. It is sufficient to say that the various states are split in three categories, (1) consent is absolutely revocable until a final adoption decree, (2) revocation will be allowed at the discretion of the court, and (3) in the absence of fraud or duress, consent is final and irrevocable. 28 University of Chicago Law Review 564. As stated therein:
"A revocation in the course of the adoption process is a serious, often tragic event for the adoptive parents, the agency, the child and, quite likely, the revoking natural parents. It is extremely disheartening for adoptive parents who have invested in a child financially and, more important, emotionally to have it taken from them by a natural parent who has previously consented to the adoption. From the viewpoint of the agency a revocation means that its painstaking efforts to find a home and child suitable for one another have gone for naught. Furthermore, revocations discourage prospective adoptive parents. For the child, revocation may mean an abrupt change in environment after the infant has become settled in the adoptive home. Such a change can seriously damage the child's developing personality. Also, many children placed for adoption are illegitimate. Revocation in these cases deprives the child of its only chance to escape the status and stigma of illegitimacy and thrusts it back into an environment where it has little chance to lead a happy or normal life. For the natural parent, especially if an unwed mother, the return of the child is often not a solution to her problems and may well retard her social adjustment."
It is not my desire that this Court should formulate a rule of law for Idaho such as that enunciated in Gonzales v. Toma, et al., 330 Mich. 35, 46 N.W.2d 453 (1951), to the effect that the execution of a parental relinquishment and consent to adoption "shall terminate the parental rights permanently, beyond the power of the parent to revoke," but rather should adopt the rule enunciated by the Texas court in Catholic Charities of Diocese of Galveston v. Harper, 161 Tex. 21, 337 S.W.2d 111 (1960):
"We hold that where the parents have surrendered their child to the custody of an agency licensed by the State Department *610 of Public Welfare to place children for adoption and have given their written consent that such agency may place the child for adoption, that consent is subject to revocation only by proof of fraud, misrepresentation, over-reaching and the like."
If the reader has labored this far with me, it remains only to discuss the two cases cited by the majority opinion. The case of D.P. v. Social Service and Child Welfare Department, 19 Utah 2d 311, 431 P.2d 547 (1967), demonstrates little but that a closely split court differed somewhat bitterly regarding the solution to a problem greatly similar to the case at bar.
The case of People ex rel. Olga Scarpetta v. Spence-Chapin Adoption Service, cited by the majority opinion, demonstrates only that the New York statutes differ from those of Idaho and those of Arizona. As stated in that case:
"In fact, the legislation is clear that, until there has been an actual adoption, or the agency has met the requirements of the Social Services Law * * *, the surrender remains under, and subject to, judicial supervision."
That court further stated:
"Accordingly, the sole issue before us on this appeal is whether there is any evidence in the record to establish that the interest of the child will be promoted by returning the child to the natural mother."
I suggest that such issue is substantially different than that facing the Court in the case at bar.
While there is much to be said for the logic and reasoning of the majority opinion, I think the rule stated in Catholic Charities of Diocese of Galveston v. Harper, supra, will better avoid possible abuses and better serve the interest of the people of this state by protecting and strengthening the adoptive process. The order of the trial court should be reversed.
NOTES
[1] RELINQUISHMENT FOR ADOPTION
KNOW ALL MEN BY THESE PRESENTS that Ellen C. Duncan, also known as _____, the undersigned, being the parent (parent, guardian or relative of at ___________________ of Baby Boy Duncan, a minor child born in the State of least second degree) Arizona on the 17th day of September, 1969, being unable adequately to provide for or care for said minor, hereby surrenders the custody of said minor to ARIZONA RELIEF SOCIETY SOCIAL SERVICE, a child welfare agency duly licensed under the laws of the State of Arizona to care for, maintain, or place children in family homes for care or adoption; and I also hereby relinquish to said agency all rights of every kind or nature which I may have to the custody, services, earnings or control whatsoever over said minor child and hereby consent to the adoption of said child by any person or persons deemed by said agency to be fit and proper adoptive parents. To the best of my knowledge, said minor child was born out-of-wedlock. (was/was not)
/s/ Ellen C. Duncan
aka ____________________
WITNESSES:
1. /s/ Vivian S. Griffin
2. /s/ Margaret Rosenhan
STATE OF ARIZONA |
> ss
County of Maricopa |
ON THIS, the 19th day of September, 1969, before me, the undersigned officer, personally appeared Ellen C. Duncan, known to me to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purpose therein contained.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
My Commission Expires:
Dec. 17, 1972 /s/ Elsie L. Akers
(Notary Public)
This Relinquishment has been duly recorded with, and approved by the Child Welfare Section of the Arizona State Department of Public Welfare on the 24 day of September, 1969.
ARIZONA STATE DEPARTMENT OF PUBLIC WELFARE
By: /s/ Roger J. Hodges
Asst. Director of Child Welfare
/s/ Roger J. Hodges"
[2] Deposition: Dr. Sheldon I. Miller
[3] Order of the district court granting writ of habeas corpus.
[4] Memorandum Decision rendered by the trial court.
[5] "Rule 52(a). Findings by the court Effect. In the district courts, in all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous. In the application of this principle regard shall be given to the special opportunity of the trial court to judge of the credibility of those witnesses who appear personally before it. The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under rules 12 or 56 or any other motion except as provided in rule 41(b)."
[6] At an interview occurring before the birth of the child between Ellen Duncan and Miss Paxman, a professional social worker, the following information was elicited. "Q. Did you tell Miss Paxman that you desired to place your baby for adoption at this time? A. Yes."
[7] Testimony of the social worker: "It's an emotional time for the girls." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610262/ | 107 Ariz. 224 (1971)
485 P.2d 549
The STATE of Arizona ex rel. Joe PURCELL, Phoenix City Attorney, Petitioner,
v.
The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, and the Honorable Donald F. Froeb, a judge thereof; and William Roy BARTON, et al., Real Parties in Interest, Respondents.
No. 10352.
Supreme Court of Arizona, In Banc.
May 27, 1971.
*225 Joe R. Purcell, City Atty., by Toby Maureen Gerst, Asst. City Atty., Phoenix, for petitioner.
James T. Bialac, Phoenix, for respondents.
STRUCKMEYER, Chief Justice.
This action was commenced as a special action under the Constitution of Arizona, Article VI, § 5, and Rules for Special Actions, A.R.S. 17, to overturn a judgment of the Superior Court of Maricopa County prohibiting the Magistrate Court of the City of Phoenix from proceeding against respondents, real parties in interest, on traffic violation charges, principally A.R.S. § 28-692, driving while under the influence of intoxicating liquor.
Respondents, real parties in interest, have been charged with a variety of traffic complaints in the Magistrate Court in the City of Phoenix, County of Maricopa, State of Arizona. The Magistrate Court set trial dates for the complaints and was proposing to try the real parties in interest when as plaintiffs they brought an original action in the Superior Court of Maricopa County to prohibit the Magistrate Court from proceeding against them. It was asserted that the real parties in interest were arrested but they were not taken before a magistrate as is required by Arizona's Statute § 28-1053. Instead, traffic complaints were certified and delivered to them by the arresting officers. The Superior Court entered judgment prohibiting the Magistrate Court of the City of Phoenix and Eugene K. Mangum, Chief Magistrate, from proceeding against the real parties in interest. This special action was brought to test the propriety of the lower court's ruling. Judgment of the Superior Court ordered vacated.
By A.R.S. § 28-1053, when a person is arrested for a misdemeanor, he shall immediately be taken before a magistrate in any of the following cases: When he demands an immediate appearance before a magistrate; when he is charged with negligent homicide; when he is charged with driving while under the influence of intoxicating liquor or narcotic drugs; when he is charged with failure to stop in the *226 event of an accident; when it appears that the person is about to leave the jurisdiction of the State; when he refuses to give his written promise to appear in court.
Alternatively, by § 28-1054, when a person is arrested for any traffic violation punishable as a misdemeanor and the person is not taken immediately before a magistrate as required by § 28-1053, the arresting officer shall prepare a written notice in quadruplicate to appear in court and the arrested person shall give his written promise to appear by signing one copy of the written notice. A.R.S. § 28-1053 was adopted by the Legislature in 1950 and amended in 1959. Since Title 28 of Arizona's Revised Statutes concerns motor vehicles and involves only offenses relating to their operation, § 28-1053 relates only to the prosecution of motor vehicle offenses.
By Chapter 89, § 1, Laws of 1966, as amended by Chapter 129, § 3, Laws of 1969, the Legislature enacted a statute providing that in any case in which a person is arrested for a misdemeanor, the arresting officer may release the person from custody if the arrested person shall give his written promise to appear in court by signing one copy of a complaint and written notice to appear prepared by the arresting officer. This statute now appears as A.R.S. § 13-1422.[1]
It is apparent from a cursory examination of the statutes, § 13-1422 and §§ 28-1053 and 28-1054, that they relate to the same subject; that is, the release of an arrested person from custody in lieu of taking him before a magistrate or to the police station. As stated, Title 28 of the Arizona Revised Statutes relates to motor vehicles and §§ 28-1053 and 1054 to the prosecution of motor vehicle offenses. Section 13-1422 is, on the contrary, nonspecific, referring to all misdemeanors. It is part of the Criminal Code, Title 13, and Article I, Chapter 5 thereof, entitled "Arrest". The principal and vital distinction between § 13-1422 and §§ 28-1053 and 28-1054 is, therefore, that the Legislature, by § 13-1422, has lodged discretion in the arresting officer in every case of a misdemeanor to either take the person arrested to jail or before a magistrate or release him upon his written promise to appear. The language is explicit in the use of the words "in any case" and "at any time". Hence, by § 13-1422 the arresting officer is not compelled to, but may, for example, take a person charged with driving while *227 under the influence of intoxicating liquor before a magistrate. We hold that while § 28-1053 relates to motor vehicle misdemeanors, § 13-1422 applies to all misdemeanors, including motor vehicles.
This Court, of course, has a duty to harmonize statutes and will not construe a statute as repealed by implication if it can avoid doing so. State Land Department v. Tucson Rock and Sand Co., 107 Ariz. 74, 481 P.2d 867. However, where two statutes are so in conflict that they cannot stand together upon any reasonable construction, a legislative intent to repeal or supersede the former statute is apparent. Webb v. Dixon, 104 Ariz. 473, 455 P.2d 447; Southern Pacific Company v. Gila County, 56 Ariz. 499, 109 P.2d 610; Favour v. Frohmiller, 44 Ariz. 286, 36 P.2d 576. We hold here that §§ 28-1053 and 28-1054 were repealed by the enactment of §§ 13-1422 and 13-1423.
The real parties in interest rely in part on the Arizona Constitution, Article VI, § 5 [5]. That article places in the Arizona Supreme Court the power to make rules relative to all procedural matters in any court in the State. They urge that § 13-1422 is unconstitutional because it encroaches upon the Court's power to formulate rules of procedure. We do not agree.
We apply the principle heretofore announced that statutory rules accompanying newly created rights will be deemed to be rules of court until specifically modified or suspended by rules promulgated on the authority of Article 6, § 5 of the Constitution. State v. Blazak, 105 Ariz. 216, 462 P.2d 84. Our rules of procedure in traffic cases specifically recognize the possibility of conflict, for by Rule XII it is provided that the traffic rules of procedure do not effect the deletion or modification of any law governing procedure in criminal cases. Until we conclude that the legislative procedures are inadequate or other procedures will best effectuate the new right, the legislative action will be deemed the rules of this Court.
The judgment of the Superior Court of Maricopa County in Cause No. C-23910 of its records and files is ordered vacated.
HAYS, V.C.J., and UDALL, LOCKWOOD, and CAMERON, JJ., concur.
NOTES
[1] "§ 13-1422. Notice to appear and complaint
A. In any case in which a person is arrested for an offense that is a misdemeanor, the arresting officer may release the arrested person from custody in lieu of taking such person to the police station by use of the procedure prescribed in this section.
B. At any time after taking a person arrested for an offense that is a misdemeanor to the police station, the arresting officer may, instead of taking such person to a magistrate, release such person from further custody by use of the procedure prescribed in this section.
C. In any case in which a person is arrested for an offense that is a misdemeanor, the arresting officer may prepare in quadruplicate a written notice to appear and complaint, containing the name and address of such person, the offense charged, and the time and place where and when such person shall appear in court, provided:
1. The time specified in the notice to appear is at least five days after arrest.
2. The place specified in the notice shall be the court specified in § 13-1418, subsection A.
3. The arrested person in order to secure release as provided in this section, shall give his written promise so to appear in court by signing at least one copy of the written notice and complaint prepared by the arresting officer. The officer shall deliver a copy of the notice and complaint to the person promising to appear. Thereupon, the officer shall forthwith release the person arrested from custody.
4. The officer shall, as soon as practical, deliver the original notice and complaint to the magistrate specified therein. Thereupon, the magistrate shall promptly file the notice and complaint and enter it into the docket of the court. * * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611778/ | 39 Cal. App. 2d 96 (1940)
HORACE C. SCOTT, Respondent,
v.
JOSEPH SHEEDY et al., Appellants.
Civ. No. 11124.
California Court of Appeals. First Appellate District, Division One.
May 14, 1940.
Cooley, Crowley & Supple for Appellants.
Edwin V. McKenzie and Frank J. Mahoney for Respondent.
Ward, J.
This is an appeal from a judgment for personal injuries in favor of plaintiff following a trial by jury.
There is no substantial conflict as to the major facts leading up to the injuries. The accident occurred on the San Francisco bay bridge shortly before its completion. Plaintiff was employed as a gateman and watchman at a temporary fence-like barrier of wood and wire netting erected across the bridge roadway and sidewalks at the westerly end, his duties being to see that no one passed through the barricade except those possessing required credentials. There was an opening or gate in the barrier sufficient to permit the ingress and egress of ordinary automobile passenger cars and trucks. On the day of the accident, defendant Hagen was operating a truck of the open flat bed type, the property of defendant Sheedy, on which was loaded a triangular concrete spreader, its narrow part pointing to and resting on the front end of the truck, fitting in behind the truck's cab, its wide part, between fifteen and eighteen feet in width, overhanging the sides of the truck and extending over the rear of the truck about four feet. When Hagen, driving westerly, reached the barrier, it was found that the traffic opening was not sufficient to permit the spreader to pass through, so one section of the barrier was unbolted and swung around, thereby enlarging the opening to a width of nearly twenty feet. Plaintiff gateman, having taken a position westerly of the barricade, signalled Hagen to proceed. Hagen attempted to center the truck and then drove ahead at two to four miles an hour, during which operation the left side of the load came into contact with the barrier, causing it to move, tilt and spring in such manner that it struck plaintiff, severely injuring him. *99
[1] Appellants contend that there was no negligence on the part of Hagen, who testified: "... I know that they made the place wide enough so I thought I could come through there with perfect safety. ... Well, I took a diagonal course until I thought I was far enough over, then I straightened out, and by the time I was coming into there, my truck was coming right straight for that opening. Q. You were coming right straight through there? A. Right straight through the gate, yes. Q. And you could look out on the left side and see whether or not your load was clear of the gate? A. Yes, either side. Q. You could look out on either side? A. Yes." The evidence indicates that Hagen's truck hit the barrier because, upon his immediate approach and in passing through the enlarged gateway, he did not correctly or properly center the truck. The jury must have reached the conclusion that despite a signal from plaintiff there was a failure on the part of Hagen to take necessary precautions. [2] When there is evidence which tends to establish directly or by reasonable inference an implied finding by a jury of a fact necessary to support its verdict, the question of the sufficiency of the evidence is not usually a question of law and the verdict will not be disturbed by an appellate court by substituting a different conclusion. In this case a question that requires greater consideration is the contributory negligence of the plaintiff.
[3] The court instructed the jury as follows: "The presumption is that every man takes ordinary care of his own concerns, and the presumption in this case is that the plaintiff exercised ordinary care and diligence from all the circumstances of the case--his character and habits and natural instinct of self preservation. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until and unless it is overcome by satisfactory evidence."
Similar instructions have been the pivotal point or crucial factor in the determination of the merits of many appeals, and while the position of appellants finds support in decisions heretofore rendered by this and other appellate courts, the point at issue seems to have been decided by the Supreme Court adversely to appellants' position in the recent case of Westberg v. Willde, 14 Cal. 2d 360 [94 PaCal.2d 590], *100 and as an intermediate appellate court we are bound by the holding therein.
In the Westberg case, the court instructed: "'The presumption is that every man obeys the law, and the presumption in this case is that the plaintiffs' son, Morris E. Westberg, was traveling at a lawful rate of speed, and on the proper side of the highway at all times. This presumption is in itself a species of evidence, and it shall prevail and control your deliberations until, and unless it is overcome by satisfactory evidence'", and called attention to the fact that the above instruction was almost identical with an instruction given in Olsen v. Standard Oil Co., 188 Cal. 20 [204 P. 393]. Referring to that case, and later cases cited in the opinion, the Supreme Court in the Westberg case, page 277, said: "From these decisions, and others of this court which might be cited, the rule is firmly established in this state that a presumption is evidence and is sufficient to support a verdict of a jury or a finding of the court, unless overcome by satisfactory evidence."
In support of their contention that the trial court committed prejudicial error in instructing the jury, appellants in their opening brief cite Varner v. Skov, 20 Cal. App. 2d 232 [67 PaCal.2d 123]; Campbell v. City of Los Angeles, 28 Cal. App. 2d 490 [82 PaCal.2d 720], and other cases. In the Westberg decision, considering the fact that witnesses on each side testified fully as to the acts and conduct of a deceased at the time of and immediately prior to a collision, the court said, page 366: "Campbell v. City of Los Angeles, 28 Cal. App. 2d 490 [82 PaCal.2d 720], is also cited in support of this last-mentioned contention. In that case the statement of facts is quite brief and so far as appears from the opinion the instruction was not qualified as in the instant case. (See, Ellison v. Lang Transportation Co., 12 Cal. 2d 355, 359 [84 PaCal.2d 510].) It cites the recent case of Engstrom v. Auburn Auto Sales Corp., 11 Cal. 2d 64 [77 PaCal.2d 1059], which followed the Mar Shee [Mar Shee v. Maryland Casualty Corp.] (190 Cal. 1 [210 P. 269]) and Smellie [Smellie v. Southern Pac. Co.] (212 Cal. 540 [299 P. 529]) cases. In so far as the decision in the Campbell case is inconsistent herewith it is disapproved. There is language in the cases of Lindley v. Southern Pac. Co., 18 Cal. App. 2d 550, 556 [64 PaCal.2d 490] and Varner v. Skov, *101 20 Cal. App. 2d 232 [67 PaCal.2d 123], cited in the Campbell case, which is perhaps only dicta, but which is apparently in conflict with the rule announced in the Mar Shee case and the decisions of this court following the last-named case, and which, in so far as it departs from such rule, is not approved." In the Westberg case a distinction is made in a case wherein "both plaintiff and his witnesses testified to all his acts and conduct at the time of his alleged negligence, from a situation where the acts and conduct of a decedent are the issues before the court".
In the instant case the essential difference factually is that the plaintiff did not die as a result of the accident but suffered a brain injury. The following appears in the record: "Now, Mr. Scott, you need not answer it right away, you may consider it a little while, but is it your testimony now that you can't tell us anything about how this truck came to this opening? A. Yes, sir." Under the circumstances, in view of the reason for the rule as stated in the Westberg case, we feel it can make no difference whether the injured party dies or is incapacitated by loss of all memory of the circumstances of the accident, the result of brain injury from the collision. In other words, notwithstanding the evidence from other witnesses, "all possible facts both in favor of and against the alleged negligence of the plaintiff" (Westberg v. Willde, supra) were not before the court. In this case no witness could have testified that plaintiff saw the danger. A witness might place him in a position from which an inference might be drawn that he could see or realize danger, but that would not be sufficient if a reasonable inference otherwise could be drawn. If the acts and conduct of an incapacitated party must be testified to by other witnesses, we conclude that the test given in the Westberg case and in Mar Shee v. Maryland Assur. Corp., 190 Cal. 1 [210 P. 269], is proper. In the Mar Shee case, the court (p. 9) said: "... we deduce that a fact is proved as against a party when it is established by the uncontradicted testimony of the party himself or of his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence; and that when the fact so proved is wholly irreconcilable with the presumption sought to be invoked, the latter is dispelled and disappears from the case." *102
[4] Examining the testimony of plaintiff's witnesses on the subject of whether or not plaintiff was guilty of contributory negligence, we find that all witnesses agree that defendant Hagen drove through the opening only after plaintiff had given him a hand signal. This act of hand signalling as a matter of law would not be sufficient under the facts of this case to find plaintiff guilty of contributory negligence unless it might be assumed that it was a guarantee that the space through which the truck was to pass was of sufficient width, when it may have been proven that as a fact it was not. However, the evidence shows that if the truck had been properly centered, there would have been ample clearance on each side. (Wiley v. McNab & Smith, 8 Cal. App. 135 [96 P. 332].) The evidence from which a conclusion of contributory negligence on the part of plaintiff might be drawn was produced by witnesses called on his behalf. There was some difference in the testimony as to the number of signals given, and a slight variation as to the position occupied by plaintiff at the time of the accident. Some of the witnesses noted the direction in which plaintiff turned his head. When considered as a whole, we cannot conclude as a matter of law that contributory negligence was or was not established by the uncontradicted testimony of the witnesses, or that the facts proven were wholly irreconcilable with the disputable presumption given in the court's instructions. (Mar Shee v. Maryland Assur. Corp., supra; Westberg v. Willde, supra.)
Appellants further note that the instruction in the Westberg case is different from the instruction in the instant case in that one deals with lawfulness on two specific subjects,-- speed and driving on the proper side of the highway,--whereas the other deals with the use of ordinary care and diligence as applicable to "his own concerns". We find that in addition to authorities cited in the Westberg case dealing with the presumptions: of innocence of wrong (Mar Shee v. Maryland Assur. Corp., supra); nonpayment arising from possession of notes by a payee (Sarraille v. Calmon, 142 Cal. 651 [76 P. 497]); that property conveyed to a wife is separate property (Gilmour v. North Pasadena Land etc. Co., 178 Cal. 6 [171 P. 1066]; Pabst v. Shearer, 172 Cal. 239 [156 P. 466]; Thompson v. Davis, 172 Cal. 491 [157 P. 595]); that endorsement was evidence of a valuable *103 consideration for a promissory note (Pacific Portland Cement Co. v. Reinecke, 30 Cal. App. 501 [158 P. 1041]); as to a person acting within the scope of employment (Grantham v. Ordway, 40 Cal. App. 758 [182 P. 73]), the following cases dealing with the presumption that a person takes due care of his own concerns were also cited: Rogers v. Interstate Transit Co., 212 Cal. 36 [297 P. 884]; Smellie v. Southern Pac. Co., 212 Cal. 540 [299 P. 529]; Ramsey v. Pasini, 108 Cal. App. 527 [291 P. 884]; DeLannoy v. Grammatikos, 126 Cal. App. 79 [14 PaCal.2d 542]; Ellison v. Lang Transp. Co., 12 Cal. 2d 355 [84 PaCal.2d 510]; Tuttle v. Crawford, 8 Cal. 2d 126 [63 PaCal.2d 1128].
[5] Appellants assert that plaintiff assumed the risk as a matter of law. There was no relation of employer and employee existing between the parties to this action and it cannot be concluded from the facts herein that the risk, if any, was contributory negligence as a matter of law. It does not come within that class of cases holding that upon a contractual obligation, such as the payment of a fee to witness an exhibition (Quinn v. Recreational Park Assn., 3 Cal. 2d 725 [46 PaCal.2d 144]), an injured party may recover; nor within that class holding that where, without contract, one participates in a hazardous undertaking (Grassie v. American La France F. E. Co., 95 Cal. App. 384 [272 P. 1073]) and assumes a risk ordinarily incident to the venture, and must by reason of his position exercise a degree of care in accordance with the exigency of the conditions and circumstances of the situation, he may recover. There was nothing to indicate that plaintiff had any knowledge of or that he should have appreciated the possibility that Hagen's truck would strike the barrier. (Weaver v. Shell Co. of California, 34 Cal. App. 2d 713 [94 PaCal.2d 364]; Southern Pac. Co. v. McCready, 47 Fed.2d 673.)
[6] Appellants urge that prejudicial error resulted in permitting plaintiff's attorneys to testify in the presence of the jury to alleged surprise in connection with an attempt to impeach their own witnesses. The force of the objection goes to the fact that the evidence supporting the claim of surprise was presented in the presence of the jury, after objection and a request that the evidence in support thereof "should be heard in the absence of the jury". [7] There is no impropriety in the discussion of the merits of an objection *104 to the admission of evidence in the presence of the jury, unless it appears that there is a possibility that the minds of the jurors may be influenced or prejudiced by the statements made by the court or counsel, pro or con, during such discussion, or evidence introduced in its course, but, as said in 64 Corpus Juris, 135, section 156: "The better practice is that all doubtful questions of evidence or procedure should not be proposed or discussed in the presence of the jury." It is incumbent upon appellants to point out statements made as evidence introduced resulting in prejudice to their case. After argument, the court herein finally determined that "surprise" had been sufficiently shown to warrant the production of the alleged impeaching testimony. During the argument the court made the following comment: "Now, let me state in reading this excerpt of the statement, which you say is a copy of the original, I can't see there is any impeachment because on that point the witness testified the same as he testified in the statement." A remark by the court indicating that the evidence was not impeaching could not harm appellants' position. The statements made by counsel, which appellants allege as prejudicial, were stricken out or, if not stricken out, simmer down to opinions which in some instances were expressed in strenuous, forceful language,--a practice not to be approved when an attorney appears as a witness,--but it has not been shown that appellants were prejudiced thereby.
[8] Plaintiff was afflicted with several preexisting diseases. A computation showing the amount of his wages per week for a period covering the average life expectancy of a person of normal health at plaintiff's age was presented to the jury over objection, the gist of which was that the mortality table was not relevant in the case because of the evidence of preexisting diseases.
In Morrow v. Mendleson, 15 Cal. App. 2d 15, 21 [58 PaCal.2d 1302], the court said: "Authorities are cited holding that a jury may consider the mortality or American experience tables only in respect to one who is in average or normal good health, and that the presumption of life expectancy based upon such tables is one applying to a person of average normal health only. The point has not been decided by any California case which has been called to our attention, but Norris v. Detroit United Ry., 193 Mich. 578 *105 [160 N.W. 574], and Colbert v. Rhode Island Co., (R. I.) 67 A. 446, supra, support the appellant and are sound in principle and reasoning. Since the evidence offered by the plaintiff herself showed that she had long suffered from high blood pressure, dizziness and many other physical ailments, and had been under the care of a physician for ten years before the accident, this might have dispelled the presumption of life expectancy (Smellie v. Southern Pacific Co., 212 Cal. 540, 553 [299 P. 529]), and the question of life expectancy should therefore have been left to the jury to be determined upon competent evidence based upon the condition of health of the plaintiff prior to the time of the accident."
Though admissible, the evidence in this case was not conclusive and appellants were entitled to an instruction based upon their theory of the evidence. (Groat v. Walkup Drayage etc. Co., 14 Cal. App. 2d 350 [58 PaCal.2d 200].) No prejudicial error appears when the following instruction, offered by the defendants and given by the court, limiting the effect of such evidence, is read: "You are instructed that the jury may consider the mortality or American experience tables in evidence in this case, only in respect to one who is in average or normal good health, and that the presumption of life expectancy based upon such tables is one applying to a person of average normal health only."
Under all the circumstances and facts of this case, appellants have no substantial ground for complaint.
The judgment is affirmed.
Peters, P. J., and Knight, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1352424/ | 549 F.3d 1239 (2008)
AVISTA CORPORATION INC., Plaintiff-Appellant,
v.
Dorrien H. WOLFE; Diane Larson; Leslie Rickey; Sean M. Stephens; James R. Doyle; Bonnie M. Sharp; Ronald Gene Sharp; Ronald Scott Sharp; Gregory Stewart Sharp; Sanders County, Defendants-Appellees.
No. 07-35321.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 11, 2008.
Submission deferred August 11, 2008.
Resubmitted December 11, 2008.
Filed December 11, 2008.
*1241 Christian T. Nygren, Giovanna M. McLaughlin, Milodragovich, Dale, Steinbrenner & Nygren, Missoula, MT, for appellant Avista Corp., Inc.
Gregory G. Schultz, Law Offices of Gregory Schultz, Missoula, MT, for appellees Dorrien H. Wolfe, Diane Larson, Leslie Rickey, Sean M. Stephens, James R. Doyle, Bonnie M. Sharp, Ronald Gene Sharp, Ronald Scott Sharp, and Gregory Stewart Sharp.
Robert L. Zimmerman, Thompson Falls, MT, for appellee Sanders County.
Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges.
*1242 THOMAS, Circuit Judge:
This appeal presents the question of whether a court may retroactively declare a railroad right of way abandoned under the Abandoned Railway Right of Way Act. We conclude that the Act does not permit a nunc pro tunc abandonment declaration.
I
The storied Clark Fork River in Montana was formed from floods left by the last ice age and named by Meriwether Lewis during the expedition's return from the west coast. Its tributaries were celebrated by author Norman Maclean in his novella A River Runs Through It.[1] One of the most spectacular settings in the lower Clark Fork River valley is just over a one-lane bridge from Noxon, Montana, where the use of the rails ended and our controversy began.
The right of way at issue was granted to the Northern Pacific Railroad Company pursuant to the Northern Pacific Railroad Company Land Grant Act of 1864, 13 Stat. 365. The 1864 Act grew out of Congress' efforts in the mid-19th Century, intensified by the Gold Rush and the Civil War, to settle the American West and provide a direct link to California. Leo Sheep Co. v. United States, 440 U.S. 668, 670-77, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979) (discussing in detail the history of this period of railroad development). Beginning in 1850, Congress passed a series of statutes granting public lands to private railroad companies to spur the construction of a cross-country railroad. Great N. Ry. v. United States, 315 U.S. 262, 273 & n. 6, 62 S.Ct. 529, 86 L.Ed. 836 (1942). During this period, Congress often granted the railroads alternate sections of land along the right of way resulting in a "checker-board" of public and private lots to further subsidize construction. Leo Sheep Co., 440 U.S. at 672, 99 S.Ct. 1403. Section 2 of the 1864 Act granted the Northern Pacific with a right of way extending "two hundred feet in width on each side of said railroad where it may pass through the public domain" from Lake Superior to the Puget Sound.
In subsequent years, the policy of granting "lavish" subsidies of public lands to railroads was met with increasing public disfavor. Great N. Ry., 315 U.S. at 273-74, 62 S.Ct. 529. In the wake of the Credit Mobilier scandal in 1872, the House of Representatives adopted a resolution condemning the practice. Cong. Globe, 42d Cong., 2d Sess., 1585 (1872); see Leo Sheep Co., 440 U.S. at 670-77, 99 S.Ct. 1403; Great N. Ry., 315 U.S. at 273-74, 62 S.Ct. 529. Although this marked the end of outright land grants, Congress continued to encourage development of the West through the General Railroad Right of Way Act of 1875, which provided easements to railroads across public lands. 43 U.S.C. § 934; see also United States v. Union Pac. R. R., 353 U.S. 112, 119, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957); Great N. Ry., 315 U.S. at 273-76, 62 S.Ct. 529.
Northern Pacific, like other railroad companies granted land prior to 1875, held title in the right of way in the form of a "limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted." N. Pac. Ry. Co. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 47 L.Ed. 1044 (1903). Under Townsend, land granted to a railroad would revert to the United States in the event the railroad stopped using the right of way for railroad purposes. Id. at 271-72, 23 S.Ct. 671. Because of the United *1243 States' potential interest, a railroad did not have the power to voluntarily transfer its interest in the right of way, nor could a private party acquire title to any portion of the right of way by adverse possession. Id.
Twenty years after Townsend, Congress enacted 43 U.S.C. § 912, known as the "Abandoned Railroad Right of Way Act," "to dispose of the abandoned railroad lands to which the United States held a right of reverter under Townsend." Mauler v. Bayfield County, 309 F.3d 997, 999 (7th Cir.2002); Pub.L. No. 67-163, 42 Stat. 414 (1922). Section 912 provides in relevant part:
Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid....
In short, § 912 requires that public lands given by the United States for use as railroad rights of way be turned into public highways within one year of their abandonment or be given to the owners of the land traversed by the right of way. Through the public highway exception, Congress sought to ensure that former rights of way could continue to be used for public transportation purposes. Vieux v. E. Bay Reg'l Park Dist., 906 F.2d 1330, 1335 (9th Cir.1990).[2]
By the early 1880s, Northern Pacific had constructed its rail line on the south bank of the Clark Fork River in northwestern Montana. The rail line crossed what would later be surveyed as Government Lot 5 of Section 24 in Township 26 North, Range 33 West. In 1921, Arthur Hampton acquired the patent to Government Lot 5 under the Homestead Act of 1862. The patent purported to convey all of Government Lot 5, and contained no mention of Northern Pacific's pre-existing right of way.
In the early 1950s, Washington Water Power, a predecessor of Avista, began construction of the Cabinet Gorge Dam in Idaho, which created the Cabinet Gorge Reservoir on the Clark Fork River in Idaho and Montana. To fill the reservoir, Washington Water Power needed to secure either fee title to the shoreline or water flowage easements over shoreline property. Accordingly, in July 1952, Arthur Hampton's widow, Fanny Hampton, deeded "[a]ll that part of Government Lot 5 ... lying north of the Northern Pacific right of way" to Washington Water Power. *1244 The conveyance included roughly .84 acres lying in between the Northern Pacific right of way and the Clark Fork River, as well as
... all tenements, hereditaments, and appurtenances thereto belonging or in anywise appertaining, and the reversion or reversions, remainder and remainders, rents, issues, and profits thereof; and also all the estate, right, title, interest, right of dower and right of homestead, possession, claim, and demand whatsoever, as well in law as in equity [of Fanny Hampton] of, in or to the said premises, and every part and parcel thereof, with the appurtenances thereto belonging....
One year later, in July 1953, Northern Pacific purported to relinquish to the United States a one hundred foot wide strip of the right of way, adjacent to the land conveyed to Washington Water Power by Fanny Hampton. The United States Bureau of Land Management sent a letter to Northern Pacific approving the relinquishment.
In July 1955, Northern Pacific and Washington Water Power entered into an agreement under which Northern Pacific would abandon its right of way on the south side of the Clark Fork and relocate its rail line to the north side of the river. The move would facilitate Washington Water Power's efforts to construct and maintain a hydro-electric power dam and reservoir, known as the Noxon Rapids Hydroelectric Development, on the river. Under the Relocation Agreement, Washington Water Power agreed to convey to Northern Pacific a portion of land on the north bank of the Clark Fork over which the relocated tracks would run and to construct the new rail line at its own expense. In exchange, Northern Pacific agreed to convey to Washington Water Power, "to the extent that it may lawfully do so," the existing right of way and the trackage and improvements on it. The parties agreed that the conveyances would occur simultaneously after the new track was completed and Northern Pacific commenced service on the relocated line.
In two letters to Washington Water Power in March and April 1957, Northern Pacific reiterated its understanding that the right of way was to be abandoned upon relocation and that any use thereafter would be private use by Washington Water Power at its own expense. On August 26, 1957, the Montana Board of Railroad Commissioners ordered the Northern Pacific stations on the south bank of the Clark Fork at Tuscor and Noxon to be deemed "discontinued and abandoned." By late 1957, the relocation of Northern Pacific's rail line to the north side of the Clark Fork was completed and the railroad released its track and other personal property on the south side of the river to Washington Water Power.
In January 1958, Northern Pacific informed Washington Water Power that it was planning to install a derailment point east of the new line, after which Northern Pacific would "discontinue handling of traffic" along the southern right of way. Northern Pacific would deliver traffic consigned to Washington Water Power to a point immediately east of the derail "on what formerly was our main track." In February 1958, Washington Water Power proposed an arrangement under which the parties would divide responsibility for handling cars carrying materials for dam construction. "[T]he intention of the proposed arrangement was that the expense involved would be paid as nearly equally as possible by" Northern Pacific and Washington Water Power. Based on its calculations of the number of cars to be utilized and the traffic schedule, Washington Water Power proposed that Northern Pacific *1245 handle all traffic until September 30, 1958, after which Washington Water Power or its contractor would handle cars left by Northern Pacific at the derailment point.
Several months later, counsel for Washington Water Power expressed concern that title to the right of way might revert to the United States or vest in another third party upon abandonment by Northern Pacific. To avoid such a result, Washington Water Power requested Northern Pacific convey title to portions of its right of way, including the section crossing Government Lot 5, to Sanders County.
On October 1, 1958, Northern Pacific executed a quitclaim deed conveying its interest in those portions of the right of way to Sanders County for use as a highway. The conveyance states that the rail line had been relocated to the north side of the Clark Fork "on account of" the construction of the Noxon Rapids Hydro-electric Dam, and that the track and other structures on the right of way had been conveyed to Washington Water Power by a bill of sale. On the same date in a letter to Washington Water Power, Northern Pacific stated that effective October 1 only traffic directly consigned to Washington Water Power would pass on the southern rail line with "handling by your firm or agent" and that all other traffic would route through the new line.
Sanders County accepted the quitclaim deed on February 8, 1961, and public use of a road over the former right of way began in the early 1970s. On January 7, 2004, Sanders County quitclaimed to the descendants of Arthur and Fanny Hampton all of its interest in the right of way, reserving to itself two sixty-foot wide easements on the existing public roads. The Hampton descendants subsequently submitted a subdivision application for their section of Government Lot 5, including the former Northern Pacific right of way, to Sanders County. The final plat of the subdivision, "the Hamptons," was approved by Sanders County and filed on June 2, 2005.
Avista instituted this action in the District of Montana against the descendants of Arthur and Fanny Hampton ("Hamptons") and Sanders County[3] after learning of the proposed subdivision of Government Lot 5. Avista's Amended Complaint includes declaratory judgment and quiet title claims, seeking a declaration "regarding the ownership of the right of way traversing Government Lot 5" and quieting title in Sanders County. Avista also claims that Sanders County acted negligently by disclaiming its interest in the right-of-way to the Hamptons without following the Montana statutory requirements for the abandonment or sale of public land.[4]
The defendants collectively submitted a motion for summary judgment. In its cross-motion for summary judgment, Avista asserted that it has title to the centerline of the abandoned right of way as an adjacent landowner and successor in interest to Arthur Hampton. At the hearing on the summary judgment motions, the parties agreed that the authenticity of the documents in the record was not in dispute, that no additional relevant evidence was available and that therefore the court *1246 should decide the case on summary judgment and cancel the proposed trial.
The district court[5] granted the defendants' motion for summary judgment and denied Avista's cross-motion for summary judgment. The district court concluded that under § 912 the abandoned right of way transferred by operation of law to the Hamptons as successors in interest to Arthur Hampton. The court further held that even if Sanders County took title to the right of way pursuant to the § 912 exception for public highways, the County would only hold title to the land underlying the county roads, with the remainder reverting to the Hamptons. Finally, the court rejected Avista's so-called "centerline theory" on the grounds that Avista was neither a "successor in interest" to the Hampton estate nor an adjacent landowner. This timely appeal followed. We review a grant of summary judgment de novo. Qwest Comm'ns, Inc. v. Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006).[6]
II
Our consideration of the Abandoned Railroad Right of Way Act is guided by our decision in Vieux. In Vieux, we adopted an analysis of § 912 from Idaho v. Oregon Short Line R.R., 617 F.Supp. 213, 216 (D.Idaho 1985), which paraphrased the statute's requirements:
1) Whenever public lands which have been [may be] granted to railroads for use as right-of-way
and
2) Use and occupancy of the land for such purposes has ceased
(a) by forfeiture
or (b) by abandonment
(1) as decreed by a court with jurisdiction or (2) as declared by Act of Congress
then
3) All right/title/interest of the United States in such lands shall be transferred to and vested in any person or entity to whom the United States has granted title by a conveyance purporting to convey lands traversed by a railroad.
except
(a) Lands embraced in a public highway established within one year of declaration of forfeiture or abandonment [shall belong to the state]....
Id. (emphasis in original); Vieux, 906 F.2d at 1337.
Thus, Vieux first clarified that § 912 only applied to grants of public land. None of the § 912 procedures applied to railroad rights of way over privately-granted land.[7]
Second, Vieux underscored that for any reversionary property rights to vest, the use and occupancy of the land must have ceased by abandonment or forfeiture and *1247 the abandonment or forfeiture must have been declared by Congress or a court of competent jurisdiction.
Third, Vieux explained that vested reversionary rights are subject to divestment if a public highway is legally established within one year after the declaration of abandonment or forfeiture by Congress or a court of competent jurisdiction. Id. at 1337.
Finally, if the two prerequisites have been satisfied, and a public highway is not established within a one year period after the declaration of forfeiture or abandonment, then the right of way "shall be transferred to and vested in any person or entity to whom the United States has granted title by a conveyance purporting to convey lands traversed by a railroad," Oregon Short Line R.R., 617 F.Supp. at 216.
In addition to explaining how private property rights could vest (and be divested) under § 912, Vieux explained how nonvested reversionary interests should be analyzed. These non-vested reversionary interests are the inchoate reversionary rights that private property owners have after abandonment of use and occupancy of the right of way by the railroad, but before Congress or a court has declared the right of way abandoned or forfeited. Id. at 1340. As to these interests, Vieux held that non-vested reversionary interests arose after physical abandonment of the use and occupancy of the right of way. Id. at 1340-41. Vieux also held that these nonvested reversionary interests could be extinguished if the former rights of way are "embraced in a public highway legally established within one year after the date of said ... abandonment." Id. at 1341 (quoting in part § 912). In short, the creation of a public highway within one year of the physical abandonment would serve to extinguish the non-vested reversionary interests, which then could never become vested.
Under Vieux, then, there are two time periods in which the creation of a public highway would operate to extinguish reversionary rights. First, if a public highway were created within one year after physical abandonment (but prior to any declaration by Congress or court that would vest the rights), then the non-vested rights that arose at the time of abandonment would be extinguished. Second, after a declaration of forfeiture or abandonment by Congress or a court had vested the reversionary rights, the vested reversionary rights that arose after the declaration could be divested by the creation of a public highway within one year of the declaration.[8]
A
The first question in our case, then, is whether any nonvested reversionary interests arose by the railroad's cessation of use and occupancy of the Noxon right of way. The record supports the district court's conclusion that Northern Pacific physically abandoned the right of way in October, 1958.
*1248 The question of when a railroad has ceased using and occupying a right of way for railroad purposes involves a factual inquiry. Vieux, 906 F.2d at 1340. The inquiry is guided by the "plain and apparent meaning of the [statutory] terms," as well as "common law principles of abandonment." Id. Common law principles of abandonment include a "present intent to abandon," and "physical acts evidencing clear intent to relinquish the property interest." Id. at 1341 (citing Oregon Short Line R.R., 617 F.Supp. at 217). "Other circuits have characterized `abandonment' to be `an intention of the carrier to cease permanently or indefinitely all transportation service on the relevant line.'" Id. at 1340 (quoting Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 314, n. 2, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981)). Among the indicia relevant to the "use and occupancy" inquiry are whether railway services have been discontinued, whether the railroad has removed its tracks and other railroad structures, whether it uses the right of way for storage or other railroad purposes such as training exercises, whether maintenance of the line has been discontinued, and whether the railroad continues to pay property taxes on the right of way as "operating property." Vieux, 906 F.2d at 1340-41; Oregon Short Line R.R., 617 F.Supp. at 217.
Here, the evidence in the record strongly supports the district court's finding that Northern Pacific had ceased its use and occupancy of the railroad right of way in October, 1958. The 1955 Relocation Agreement established Northern Pacific's intent to "transfer, insofar as it may legally do so, all its rights and title in the present railroad property to be abandoned to [Washington Water] Power" following relocation of its line to the north side of the Clark Fork. The Agreement further provided that Washington Water Power was to "[r]emove the abandoned line of railroad" and could salvage the track that it replaced. In March and April 1957, Northern Pacific reiterated its understanding that "following relocation," its "main line on the south side of the river ... between the two new river crossings, was to be abandoned and all service eliminated," and that it would "transfer all its rights and title in the present railroad property to be abandoned to" Washington Water Power and the abandoned line would "become the property of" Washington Water Power. These documents unmistakably evidence Northern Pacific's intent to abandon the right of way on the south side of the river.
Northern Pacific thereafter followed through on its plans to abandon the right of way. In August 1957, the Montana Board of Railroad Commissioners ordered that Northern Pacific's stations on the south side of the river at Tuscor and Noxon be closed and abandoned. By late 1957, the relocation of Northern Pacific's rail line to the north side of the Clark Fork was completed and the railroad released its track and other personal property on the south side of the river to Washington Water Power. Northern Pacific and Washington Water Power later agreed that as of September 30, 1958, Washington Water Power would exclusively handle all traffic on the right of way. After questions arose regarding whether Northern Pacific could transfer title to Washington Water Power, it executed a quitclaim to the right of way to Sanders County on October 1, 1958.[9]
*1249 Avista argues that the fact that Northern Pacific did not obtain a court decree of abandonment, despite its familiarity with § 912, or petition the Interstate Commerce Commission ("I.C.C.") for permission to abandon the right of way, suggests that it did not intend to abandon the right of way. While petitioning the I.C.C. for abandonment proceedings is indicative of a railroad's intent to abandon, "[t]he I.C.C. does not determine abandonment." Vieux, 906 F.2d at 1339. Rather, action by the I.C.C. "is only a determination that under its Congressional mandate, cessation of service would not hinder I.C.C.'s purposes." Id. Here, interstate railroad transportation was not implicated; therefore, I.C.C. approval was not required.
Avista also makes several alternative arguments about the timing of the abandonment, suggesting that Northern Pacific continued its use of the rail line into the 1960's. Although there is some evidence of incidental use, the record as a whole supports the district court's conclusion that Northern Pacific physically abandoned the right of way by October, 1958.
B
Given the conclusion that abandonment occurred in October 1958, the next question is whether a public highway was constructed within one year after that date, which would operate to extinguish any non-vested reversionary private property rights. The record supports the district court's conclusion that a public road was not established within the one year period. The County did not accept a purported conveyance of the property until February, 1961, and the record supports the district court's conclusion that public use of a road over the former railroad right of way did not commence until the early 1970's. Indeed, as late as 1975, the County questioned its authority over the former right of way.
Given the undisputed evidence in the record, the district court properly concluded that a public highway was not established within the statutory one year period. Therefore, the non-vested private reversionary interests in the right of way were not extinguished by public highway use after physical abandonment.[10]
C
Under Vieux, the next question presented would be whether Congress or a court of competent jurisdiction had declared the right of way abandoned, thereby vesting the private reversionary interests. Here, all parties concede that prior to the district court's declaration of abandonment, neither Congress nor a court of competent jurisdiction had acted. Therefore, the district court's order constituted a declaration of abandonment issued by a *1250 court of competent jurisdiction, as contemplated by § 912.
Normally, the § 912 analysis would end here. A final declaration of abandonment would be entered as a final judgment and the inchoate reversionary interests would be declared vested, subject to divestment if a public highway were established within a year after the formal declaration. However, in this case, the district court made its declaration of abandonment retroactive to the date of physical abandonment. Reasoning from that premise, the district court then determined that, because a public road had not been established within a year of physical abandonment, the private reversionary interests vested as of October, 1959. The district court erred in doing so.
The district court reached its conclusion that a retroactive declaration was proper based on its analysis of Vieux, reasoning that if application of the highway exception could extinguish private interests retroactively, then the vesting of those interests could be declared retroactively. This reasoning ignores the distinction made in Vieux between inchoate and vested interests. As we have discussed, Vieux held that any inchoate interests created by physical abandonment could be extinguished by establishment of a public highway within one year of physical abandonment. However, Vieux also held that no inchoate reversionary interest could become vested until either Congress or a court of competent jurisdiction declared the right of way forfeited or abandoned. Thus, Vieux does not support the conclusion that a court could declare abandonment retroactively. Contrary to the district court's conclusion, the Vieux panel did not issue a retroactive declaration of abandonment, which would have the effect of vesting private property reversionary rights nunc pro tunc. Rather, Vieux held first that no vested rights were created because there had not been a congressional or court declaration of abandonment, and second that any inchoate rights created by physical abandonment had been extinguished by application of the public highway exception.
A declaration of retroactive abandonment would be inconsistent with the plain language of § 912, which requires both physical abandonment and a formal declaration of abandonment for reversionary interests to vest. A retroactive declaration would also be incompatible with the structure of § 912, because it would deprive local and state governments of the opportunity to acquire the right of way pursuant to the § 912 highway exception.[11] For example, here, the operation of the district court's decision deprived Sanders County of the opportunity to acquire the right of way by first applying a declaration of abandonment retroactively, then declaring the County's rights under the highway exception extinguished by failure to act. We construe statutes to avoid such arbitrary forfeitures of property rights. Hannifin v. United States, 248 F.2d 173, *1251 175 (9th Cir.1957). In sum, the district court properly issued a declaration of abandonment, but erred applying the declaration retroactive to the date of cessation of use and occupancy of the right of way. The declaration of abandonment became effective upon entry of final judgment by the district court.
III
In the normal sequence of events, the entry of a final judgment declaring the right of way abandoned under § 912 would serve to commence the time period during which the highway exception could be established by the creation of a public road.[12] However, in this case, the public road had already been established prior to the declaration of abandonment. Thus, although the Hamptons' inchoate reversionary interests became vested as of the entry of final judgment declaring the right of way abandoned, those interests were immediately divested by the existence of a previously established public road under § 912.
The remaining question is the scope of the interest the County would acquire under the statute. Under Vieux, the County could acquire the entire right of way through use as a public road constructed within a year of abandonment declaration. 906 F.2d at 1342. However, right to the entire right of way is not vested as of the declaration date. As the district court concluded, only the portion of the right of way dedicated to public road use ultimately transfers to the County. Under the plain language of § 912, the public highway exception does not apply to an entire abandoned right of way, but only to "such part thereof as may be embraced in a public highway...." 43 U.S.C. § 912 (emphasis added). Section 1248's highway exception is similarly limited, granting title only "to the extent that any such right-of-way, or portion thereof, is embraced within a public highway...." 16 U.S.C. § 1248.
State law defines the establishment and scope of a public highway for the purposes of § 912 and § 1248. Vieux, 906 F.2d at 1341. Under Montana law, only the portion of the former right of way that the County has established as a road open to the public qualifies as a public highway. Mont.Code Ann. § 60-1-103 (defining public highways as "all streets, roads ... and related structures ... dedicated to public use"). Upon the declaration of abandonment, the portion of the former right of way that is now a public road transfers to Sanders County, and the County has one year to establish a highway on the remainder of the former right of way if it so chooses. Because the issues were not raised or briefed before us, we leave it to the district court on remand to determine whether the one-year period commencing upon its declaration of abandonment was tolled during the appeal, and whether § 912 or § 1248 applies to any portion of the abandoned right of way not embraced in a public highway at the end of this period.
*1252 IV
In addition, there are a number of state law claims made by the parties as to scope of the right of the County in the right of way under state law and the propriety under state law of certain actions taken by the County. We need not, and do not, address any of these issues. Those questions are best addressed by the district court on remand.
In sum, we affirm the district court's finding that the railroad's use and occupancy of the right of way ceased as of October 1958 and that the County did not establish a public road within one year of that date. We therefore hold that the Hamptons' inchoate non-vested reversionary interests in the right of way were not extinguished by the subsequent establishment of a public road. We affirm the district court's declaration of abandonment, but reverse the district court's retroactive application of the abandonment declaration. We hold that the declaration of abandonment became final when judgment was entered by the district court. On that date, the Hamptons' inchoate interests became vested, but were divested as to the portion of the right of way already embraced in a public highway. As to any additional portions of the right of way that the County might desire to use for that purpose, we leave it to the district court on remand to determine whether the one-year period to establish a public highway, commencing with its declaration of abandonment, was tolled during the appeal. We also leave it to the district court to determine the application of § 912 or § 1248 to any portion of the former right of way not embraced in a public highway within the one-year period. We need not, and do not, reach any other issue presented by this case.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Each side will bear their own costs.
NOTES
[1] See also Tracy Stone-Manning and Emily Miller, ed., The River We Carry With Us (Clark City Press, 2001) (collection of essays about the Clark Fork River).
[2] Later, Congress would reverse course with the National Trails System Improvements Act of 1988. Pub.L. No. 100-470; 102 Stat. 2281. Under that Act, railroad rights of way abandoned after October 4, 1988 revert to the United States, except to the extent that the right of way is embraced in a public highway within a year following abandonment. 16 U.S.C. § 1248(c).
[3] Avista also named Burlington Northern and Santa Fe Railway Company, the successor to Northern Pacific, as a defendant. On August 7, 2006, the district court granted Burlington Northern's motion to dismiss without prejudice under Fed.R.Civ.P. 12(b)(6). Avista does not contest that order in this appeal.
[4] Avista's Amended Complaint also contains claims for adverse possession and a prescriptive easement. Avista has conceded that these claims are without merit.
[5] The parties consented to proceed before a United States Magistrate Judge, who entered judgment in the case. 28 U.S.C. § 636(c)(1).
[6] Sanders County contested Avista's standing to file a quiet title and declaratory judgment action. Avista's assertion of an ownership interest to the centerline provides it with standing to bring a quiet title and declaratory judgment action. Mont.Code Ann. § 70-28-101; Sanders v. Yellowstone County, 276 Mont. 116, 915 P.2d 196, 197 (1996) (a plaintiff has standing to bring a quiet title action if he claims title to real estate against another person who claims an interest adverse to his own); see also United States v. Carpenter, 526 F.3d 1237, 1240 (9th Cir.2008).
[7] Indeed, Vieux specifically noted that the "opinion does not affect the claims of those landowners who may have reversionary rights under private land grants." 906 F.2d at 1344.
[8] At first blush, Vieux's construction of § 912 as providing two periods in which rights could be extinguished may seem anomalous. However, it is consistent with the congressional purpose, as expressed in the legislative history of § 912 of providing a mechanism for resolving title disputes. See Mauler, 309 F.3d at 1001 ("[T]he legislative history of § 912 reveals that Congress enacted the law primarily to resolve title disputes with respect to abandoned and forfeited federal railroad lands of the type discussed in Townsend.") (citing S.Rep. No. 67-388 (1922) and H.R.Rep. No. 67-217 (1921)). Through its construction of § 912, the Vieux panel was able to resolve in a consistent manner how the highway exception applied to the differing claims of vested and non-vested reversionary interests.
[9] The quitclaim deed from Northern Pacific to Sanders County was insufficient to convey title. It only conveyed whatever interest Northern Pacific retained in the right of way. As we have noted, railroad companies granted land in the 1864 Act held title in the form of a non-conveyable "limited fee" that reverted "in the event that the company ceased to use or retain the land for which it was granted." Townsend, 190 U.S. at 271, 23 S.Ct. 671. Under the restrictions of the limited fee ownership of the right of way, a railroad did not have the power to transfer voluntarily its interest in the right of way. Id. While a railroad may convey its right of way for use as a public highway under some circumstances, the quitclaim deed did not meet the relevant conditions. See 43 U.S.C. § 913 (requiring the railroad to retain at least 100 feet of the right of way); 23 U.S.C. § 316 (requiring that the conveyance be to a state highway department). Thus, Northern Pacific's quitclaim to Sanders County was not effective to transfer fee ownership to the right of way.
[10] This conclusion distinguishes this case from Vieux, where public use within a year of physical abandonment was conceded, thereby extinguishing any non-vested reversionary interests prior to any declaration of abandonment.
[11] The importance of affording the public the ability to construct a public road on the former right of way is reflected in the legislative history of § 912. See S.Rep. No. 336, 67th Cong., 2nd Sess. Vol. 1 (1922) ("Recognizing the public interest in the establishment of roads, your committee safeguarded such rights by suggesting the amendments above referred to protecting not only roads now established, but giving the public authorities one year's time after a decree of forfeiture or abandonment to establish a public highway upon any part of such right-of-way."); House Debate H.R. 244, 67th Cong., 1st Sess. Vol. 61 (August 1, 1921) ("Likewise [the bill] gives to the public authorities in charge of the establishment of highways the opportunity to establish a legal highway thereon within one year after the decree of forfeiture or abandonment.").
[12] Although the issue was not raised by the parties, nor considered by the district court, there is a question about whether § 912 applies to declarations of abandonment issued after the effective date of the National Trails System Improvements Act of 1988. Pub.L. No. 100-470; 102 Stat. 2281. However, as we have noted, under that Act, railroad rights of way abandoned after October 4, 1988 revert to the United States, except to the extent that the right of way is embraced in a public highway within a year following abandonment. 16 U.S.C. § 1248(c). As both statutes contain the public highway exception, the question of which applies is not relevant to our analysis of the County's rights. The district court can address the other implications of the National Trails System Improvements Act of 1988 on remand. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1765950/ | 534 So.2d 143 (1988)
BANK OF IBERIA, Plaintiff-Appellee,
v.
Charles Maxwell HEWELL, et al., Defendants-Appellants.
No. 87-868.
Court of Appeal of Louisiana, Third Circuit.
November 9, 1988.
*144 Armentor & Wattigny, Gerard B. Wattigny, New Iberia, for plaintiff-appellee.
Charles M. Hewell, New Iberia, in pro. per.
Before FORET, DOUCET and YELVERTON, JJ.
DOUCET, Judge.
This appeal concerns a motion for summary judgment granted to plaintiff, Bank of Iberia, in a suit on a promissory note against defendants, Charles Maxwell Hewell and Robin Romero Hewell. From this adverse judgment defendants perfected this appeal.
On May 20, 1983, defendants executed a promissory note in the amount of $30,000 with interest at the rate of 12 percent per annum. This note was subsequently acquired by plaintiff. On June 18, 1984, defendants executed a renewal note for their remaining indebtedness to the plaintiff in the amount of $28,956.34 with interest at the rate of 14.5 percent per annum. On August 12, 1986, defendants executed another renewal note for their remaining indebtedness to the plaintiff in the amount of $28,247.30 with interest at the rate of 15.75 percent per annum.
On November 19, 1986, plaintiff instituted this suit for $27,532.55, which represented the outstanding balance on the third note. Plaintiff alleged that defendants failed to make the payment due under the note on August 12, 1986, thus maturing the balance of the note.
Defendants then filed an answer alleging fraud in that plaintiff "did maliciously deceive defendants" by failing to disclose the increases in the interest rates on the second and third notes. Defendants further alleged that they had overpaid the plaintiff such that obligations under the note would be satisfied until September 4, 1987.
Defendants also filed a counterclaim alleging theft, refusal to amicably negotiate with defendants, refusal to supply defendants with an amortization schedule, failure to provide a disclosure statement as required by the Truth in Lending Laws of the United States, and that defendants had been aggrieved by plaintiff in the amount of the true remaining principal balance on the note. Plaintiff filed an answer to the counterclaim denying all allegations.
Subsequently, plaintiff filed a motion for summary judgment accompanied by an affidavit of Benny Menard, the chief executive officer of the plaintiff, asserting the execution of the note by defendants, together with the loan agreement signed by them, the collateral pledge agreement signed by them, correspondence to them by certified mail, loan renewal review, a payment schedule showing payments and other items, the liability ledger sheet of the plaintiff, the promissory notes signed by defendants, and other pertinent records of the plaintiff relative to the defendants' loan and its renewals.
Defendants filed an objection to the motion for summary judgment and a motion to dismiss the hearing thereon.
A hearing was held on the motion for summary judgment, and at the hearing plaintiff introduced the above described affidavits, documents and records. Defendants filed no affidavits and introduced no evidence of any kind at the hearing. After the hearing, summary judgment was rendered in favor of the plaintiff and against the defendants. From this summary judgment the defendants now appeal.
Defendants specify three assignments of error: (1) The trial court erred in determining that there existed no genuine issue of material fact which must be resolved; (2) The trial court erred in admitting into evidence *145 the affidavit on behalf of the plaintiff at the hearing on the motion for summary judgment; (3) The trial court erred in determining that the pleadings of the defendants did not indicate that a material issue of fact existed, in that defendants alleged that plaintiff had committed a fraud and that a substantial counterclaim was an integral part of the litigation.
SPECIFICATION OF ERROR NO. 2:
By this assignment of error the defendants assert that the trial court erred in admitting into evidence the affidavit of Benny Menard, the chief executive officer of the plaintiff. This affidavit was filed pursuant to LSA-C.C.P. art. 967 which states in pertinent part:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits."
In the affidavit, affiant states that he is the acting chief executive officer of the plaintiff. He further states that he is familiar with the account of defendants with plaintiff. Affiant's statement of his familiarity with defendants' account shows that his affidavit is based on personal knowledge. His statement that he is the chief executive officer of the plaintiff shows that he is competent to testify to the matters stated in the affidavit. The affidavit sets forth such facts as would be admissible in evidence and these facts are supported by sworn copies of the loan agreement signed by defendants, the collateral pledge agreement signed by them, the promissory notes signed by them, the truth in lending disclosure statements signed by them and other pertinent records of the plaintiff relative to the defendants' loan and its renewals.
Thus, we find that this affidavit met the requirements of the above provision and that the trial court committed no error in admitting it into evidence.
SPECIFICATIONS OF ERROR NOS. 1 AND 3:
By these assignments of error the defendants assert that the motion for summary judgment should not have been granted because there existed a genuine issue of material fact and that this was indicated by the defendants' pleadings, which contained allegations that plaintiff had committed a fraud and that a substantial counterclaim was an integral part of the litigation.
The statutory provisions for summary judgment are contained in LSA-C.C.P. arts. 966 and 967.
Article 966 provides in part:
"A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.
B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law."
Article 967 provides in pertinent part:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed *146 by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him."
The plaintiff's motion for summary judgment was accompanied by an affidavit, sworn copies of the promissory notes and truth in lending disclosure statements signed by defendants, and other pertinent documents, correspondence and business records of the plaintiff. These documents provide convincing proof that the plaintiff's claim was valid.
Under the second paragraph of article 967, quoted above, the defendants were required to set forth, by affidavits or otherwise, specific facts showing a genuine issue for trial. Defendants failed to file any affidavits in opposition to the motion for summary judgment. They relied instead upon the mere allegations of their pleadings.
This court stated in Haley v. City of Opelousas, 347 So.2d 903 (La.App. 3rd Cir. 1977), that:
"Our jurisprudence is settled that if the mover at the trial of a motion for summary judgment produces convincing proof by affidavit or other receivable evidence of the facts upon which the motion is based, and no counter affidavits or other receivable evidence are offered by the opposing party to contradict that proof, then the conclusion may be justified that there is no genuine issue as to the facts so proved, even though allegations to the contrary might be contained in the pleadings. See LSA-C.C.P. arts. 966 and 967; Joiner v. Lenee, 213 So.2d 136 (La.App. 3rd Cir.1968), and cases cited therein."
In this case the mover, plaintiff, produced convincing proof by affidavits and other receivable evidence and no counter affidavits or other receivable evidence were offered by the opposing party, defendants, to contradict that proof. The trial court was, therefore, justified in its conclusion that there was no genuine issue as to the facts proved, even though allegations to the contrary were contained in defendants' pleadings. Thus, we find that the trial court committed no error in granting the plaintiff's motion for summary judgment inasmuch as there was no genuine issue of material fact.
For the above and foregoing reasons the decision of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/327102/ | 514 F.2d 1209
75-1 USTC P 9444
Glen A. JORDAN and Virginia D. Jordan, Appellants-Cross Appellees,v.COMMISSIONER OF INTERNAL REVENUE, Appellee-Cross Appellant.INSURANCE SALES AND MANAGEMENT COMPANY, Appellant-Cross Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Appellee-Cross Appellant.
Nos. 74-1390, 74-1410, 74-1412, 74-1389 and 74-1411.
United States Court of Appeals,Eighth Circuit.
Submitted March 10, 1975.Decided May 6, 1975.
W. Dane Clay, Rose, Nash, Williamson, Carroll & Clay, Little Rock, Ark., for Jordan & Insurance Sales.
Louis A. Bradbury, Atty., Dept. of Justice, Tax Div., Washington, D. C., for C. I. R.
Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, Senior District Judge.*
PER CURIAM.
1
Before us are appeals by Glen A. and Virginia D. Jordan in their individual capacity and Insurance Sales & Management Company, a corporation, from judgment of the United States Tax Court disallowing the Jordans certain alleged business expense deductions incurred in 1965 and 1966 and attributing certain income and deductions to Glen A. Jordan personally rather than his wholly owned corporation, Insurance Sales & Management Company, for the company's taxable years 1962-1966. The Tax Court's opinion is reported. Jordan v. Commissioner, 60 T.C. 872 (1973).
2
A detailed discussion of the facts and applicable law is set out in the Tax Court's opinion and need not be repeated here. In the taxable year 1965 taxpayer Jordan1 claimed an ordinary business expense deduction of $194,795.26 for expenses he incurred in the purchase of 38,066 shares of stock of Republic Investors Life Insurance Company. Taxpayer on his 1966 tax return claimed $9,921.17 for expenses incurred in 1966 for acquisition of 301 shares pursuant to the rescission offer. These shares were acquired pursuant to an "Offer of Rescission" made by taxpayer whereby taxpayer and others offered to purchase restricted shares of stock originally offered to and purchased by the public without disclosure that certain non-restricted shares were being offered to key employees and promotors of Republic Investors Life Insurance Company. The deduction claimed represents the excess of the purchase price over what the taxpayer claims was the fair market value of the stock plus expenses. Justification for the deduction is that a valid business expense was incurred because the offer of rescission was made to protect his business reputation. The Tax Court in a well-reasoned opinion upheld the Commissioner's disallowance of the deduction, holding that the price paid for the shares was the fair market value of the stock and constituted a capital expenditure.
3
Pursuant to authority granted in 26 U.S.C. § 482,2 the Commissioner allocated the income and deductions claimed by Insurance Sales & Management Company to Glen A. Jordan personally for the taxable years 1962-66. The income claimed by Insurance Sales & Management Company, which was wholly owned by Jordan, consisted of override commissions paid by Republic Investors Life Insurance Company for services rendered. Jordan was the only paid employee of Management Company during the years in question. The Tax Court upheld the Commissioner's allocation.
4
On appeal taxpayers present two issues for review.
5
1. Whether the Tax Court erred in allocating the expenses incurred by Glen A. Jordan pursuant to the offer of rescission to the cost of the stock acquired rather than allowing an ordinary and necessary business expense deduction; and
6
2. whether the entire gross income of the management company for the tax years in question is attributable to taxpayer under 26 U.S.C. § 482.
7
Our careful review of the record convinces us that there is no error in the disposition of this case by the Tax Court. The reported opinion is thorough and well-reasoned. The Tax Court's findings are supported by substantial evidence and its decision was not induced by any erroneous view of the law. We affirm on the basis of the Tax Court's opinion.
8
The judgment is affirmed on all taxpayers' appeals.
9
The Commissioner has taken a protective cross appeal to be considered in event the judgment of the Tax Court is reversed. Since the judgment of the Tax Court has been affirmed on the appeals of all taxpayers, the Commissioner's cross appeal is dismissed.
*
The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation
1
Virginia D. Jordan is a plaintiff here by reason of the joint tax return she filed with her husband for the taxable years in question
2
26 U.S.C. § 482 allows the Commissioner to allocate income and deductions among taxpayers to reflect actual income distribution among wholly owned businesses | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1309301/ | 749 P.2d 651 (1988)
ZIONS FIRST NATIONAL BANK, N.A., Plaintiff and Respondent,
v.
NATIONAL AMERICAN TITLE INSURANCE COMPANY, Defendant and Appellant.
No. 19750.
Supreme Court of Utah.
January 22, 1988.
*652 Bryce E. Roe, William G. Fowler, Salt Lake City, for defendant and appellant.
W. Clark Burt, Steven R. Ellinwood, Salt Lake City, for plaintiff and respondent.
ZIMMERMAN, Justice:
National American Title Insurance Co. ("National American") appeals from a judgment entered after trial to the court holding it liable to Zions First National Bank ("Zions") under a title insurance policy. National American contends that several of the trial court's constructions of the insurance policy were erroneous and that certain factual findings lack adequate evidentiary support. National American also contends that the trial court's award of attorney fees was improper. We affirm in all respects, except we reverse the award of attorney fees and remand for further proceedings on that issue.
Jeffery Olson and his partner, Steven Gibbs, had a banking relationship with Zions. By November of 1979, Olson and Gibbs owed Zions $311,000 for loans and overdrafts. Because the debt was large and unsecured, Zions instructed two of its bank officers, Robin Hampton and Dave Fuhriman, to meet with Olson and Gibbs to discuss the pledging of collateral as security in lieu of Zions' instituting legal action on the debts. Olson and Gibbs promised to pledge eight properties, including the home of Olson's parents.
On December 17, 1979, Hampton and Fuhriman met with Olson and Gibbs to have them sign trust deeds for the eight properties. In the presence of the bank officers, Olson and Gibbs signed all of the deeds, except the deed to the home of Olson's parents. Olson's parents did not appear at the meeting, so Fuhriman and Olson took the trust deed to Olson's parents' house to get the necessary signatures. When Jeffery Olson asked his father, Virgil Olson, to sign the trust deed, Virgil said that he could not sign the deed until he had spoken with his wife, Sara. Jeffery Olson then left with Fuhriman.
Fuhriman gave the trust deed to Hampton the next morning, and Hampton later gave it to Jeffery Olson, asking him to have it signed and returned to Zions. Jeffery returned the signed and notarized trust deed to Hampton later that day, and Hampton delivered it to National American's agent, Record Title Company, which recorded it.
In February of 1981, Virgil Olson was informed that Zions had a trust deed that he had ostensibly signed. Virgil contacted an attorney and executed an affidavit stating that his signature on the trust deed was forged. After receiving this affidavit, Zions' counsel sent a letter to National American demanding payment pursuant to the title insurance policy. National American refused the claim. Zions filed suit to recover on the insurance policy. Before Zions' litigation was resolved, Virgil and Sara Olson filed a quiet title action against Zions to declare the deed void and to quiet title to their property. Virgil and Sara prevailed in that action. After the trial of Zions' action against National American, the trial court held for Zions and awarded Zions $54,000 in damages, $5,000 in attorney fees, and $94.70 in costs.
On appeal, National American challenges the ruling below on a number of grounds. It argues first that, under the terms of the contract of insurance, recovery is precluded because Zions had failed to ask Virgil and *653 Sara whether they had signed the trust deed. National American relies on a disclaimer in the policy providing that it "does not insure against loss or damage ... aris[ing] by reason of ... [a]ny facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof." National American argues that because the fact of the forgery was not a matter of public record and because Zions would have discovered the defect had it asked Virgil and Sara, the parties in possession of the land, whether they had signed the trust deed, Zions' failure to ask exempts National American from paying under the insurance policy.
The trial court held that the coverage exclusion does not impose a contractual duty on Zions to ascertain the validity of Virgil's and Sara's signatures. It found that unless Zions had actual knowledge of the title defect, namely, the forged signatures, National American was obligated to determine the state of the title and that forgery is a defect against which the policy insured. The trial court reasoned that Virgil's reluctance to sign the trust deed until he had spoken with Sara was not alone enough to raise a question about the validity of the signatures.
The standard of review of such findings must be noted at the outset. Questions of contract interpretation not requiring resort to extrinsic evidence are matters of law, and on such questions we accord the trial court's interpretation no presumption of correctness. E.g., Kimball v. Campbell, 699 P.2d 714, 716 (Utah 1985); see, e.g., Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). Factual findings, on the other hand, are upheld "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Utah R.Civ.P. 52(a); accord Lemon v. Coates, 735 P.2d 58, 60 (Utah 1987); Webster v. Lehmer, 742 P.2d 1203, 1206 (Utah 1987) (citing Ashton v. Ashton, 733 P.2d 147, 149-50 (Utah 1987)).
With these standards in mind, we conclude that the trial court was correct in holding that the insurance policy imposed no contractual duty on Zions to ask Virgil and Sara if they had actually signed the trust deed. The policy provision excluding coverage for loss or damage arising because of "facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof" appears intended to protect a title insurer from an unrecorded interest in the land. See Coast Mutual Building-Loan Association v. Security Title Insurance & Guaranty Co., 14 Cal. App.2d 225, 230-31, 57 P.2d 1392, 1394 (1936). Virgil and Sara's interest was recorded and shown by public record when National American issued the policy. Nothing about this situation brought it within the intended scope of the exclusion. Therefore, Zions had no duty under the contract to ask Virgil and Sara if they had signed the trust deed.
The trial court was also correct in holding that Zions did not have any implied contractual obligation to ask Virgil and Sara if their signatures were forged. Under Utah case law, the insured is not required to perform the insurer's duty to ascertain the validity of the title. Bush v. Coult, 594 P.2d 865, 867 (Utah 1979). Because title insurance is in the nature of a warranty, id., forgery is one of the defects that title insurance is intended to cover.
National American's second challenge to the ruling below is based on another disclaimer in the policy. National American appeals from the trial court's ruling that Zions could recover despite the policy exclusion denying coverage for "[d]efects ... not shown by the public records and not otherwise excluded from coverage but known to the insured." (Emphasis added.) National American contends that this provision excludes defects within the constructive knowledge of the insured and challenges the trial court's finding that Zions did not have constructive knowledge of the forgery.
*654 We think the trial court properly rejected National American's contention on this point for two reasons. First, as previously noted, we will not overturn a trial court's finding of fact unless it is clearly erroneous. Reviewing the record as a whole, we conclude that the trial court committed no such clear error in finding that Zions had neither actual nor constructive knowledge that the signatures were forged.
Second, even if the finding of no constructive knowledge were erroneous as a matter of contract construction, the assertion that the provision in question excludes defects of which the insured is constructively aware has no merit. The plain language of the exclusion requires that the defect be "known to the insured." And not even National American seriously contests the trial court's finding that Zions lacked actual knowledge of the defect. National American cites two cases in support of the claim that such exclusionary provisions do not require actual knowledge and that constructive knowledge or notice is sufficient. Enterprise Timber, Inc. v. Washington Title Insurance Co., 76 Wash.2d 479, 457 P.2d 600 (1969); Salt Lake, Garfield & Western Railway Co. v. Allied Materials Co., 4 Utah 2d 218, 291 P.2d 883 (1955). Neither is applicable because neither involves a contract which, by its terms, requires actual knowledge.
The simple answer to National American's position is that if something broader than actual knowledge was intended by this language, certainly the drafter, National American, could have included appropriate language. And, of course, "in case of ambiguity, uncertainty or doubt the terms of the policy will be construed strictly against the company and in favor of the insured." Jorgensen v. Hartford Fire Insurance Co., 13 Utah 2d 303, 304, 373 P.2d 580, 581 (1962). We hold that actual knowledge of the defect was required.
National American's third claim on appeal is that an agency relationship existed between Jeffery Olson and Zions and that as a result, Jeffery's knowledge of the forgery should be imputed to Zions. This claim has been raised on appeal for the first time. Generally, we do not consider issues that were not presented to the trial court. E.g., Bundy v. Century Equipment Co., 692 P.2d 754, 758 (Utah 1984); Trayner v. Cushing, 688 P.2d 856, 857 (Utah 1984); Bangerter v. Poulton, 663 P.2d 100, 102 (Utah 1983); Franklin Financial v. New Empire Development Co., 659 P.2d 1040, 1044, 1045 (Utah 1983). National American argues that there is no sound policy reason for our not considering this issue. National American acknowledges that agency is generally a question of fact for the trial court, but contends that when the facts on which an issue may be determined are undisputed and those facts do not permit the drawing of conflicting inferences, all that remains is a legal question. Because we do not defer to trial courts' determinations of legal questions, National American contends that we are as well situated as the trial court to deal with the issue.
National American's position ignores one of the reasons for refusing to consider any matter for the first time on appeal, even a matter of law. Although we may not defer to a trial court's conclusion on a legal question, we certainly may derive great benefit from the trial judge's views on the issue and may be persuaded by those views. This provides ample justification for refusing to consider National American's claim.
But there is another reason for refusing National American's request: we conclude that the agency issue is not presented to us as a question of law, but as a question of fact which may not be determined on appeal. A court can find that an agency relationship exists only if the agent is shown to have been acting on behalf and subject to the control of the principal. See, e.g., Wilkerson v. Stevens, 16 Utah 2d 424, 426-27, 403 P.2d 31, 33 (1965); Freed Finance Co. v. Preece, 14 Utah 2d 409, 411-12, 385 P.2d 156, 158 (1963); Butler v. Colorado International Pancakes, Inc., 510 P.2d 443, 445 (Colo.Ct.App. 1973); 3 Am.Jur.2d Agency § 21 (1986); cf. City Electric v. Dean Evans Chrysler-Plymouth, 672 P.2d 89, 90 (Utah 1983) (apparent *655 authority exists only if principal knows of and acquiesces in agent's conduct).
On the record in this case, it is not indisputable that Jeffery Olson was acting on Zions' behalf and was subject to its control. It is true that when Jeffery did not produce his parents at the signing ceremony where the other pieces of collateral were deeded to Zions, an officer of Zions gave him the deed and asked that he return it executed. It might be argued as a matter of fact that this was for Zions' benefit and was done on Zions' behalf. On the other hand, Jeffery was receiving the benefit from Zions it was forbearing from bringing action on his and his partner's unsecured loans on condition that they furnish collateral. Obtaining a deed to his parents' home was a necessary precondition to Jeffery and his partner's receiving this benefit. Viewed in this light, Jeffery could be found to have been acting on his own behalf or on behalf of his partner in securing the deed. Thus, the nature of the relationship between Jeffery and Zions is a factual issue best determined at the trial court. For that reason, and because of our general disinclination to decide issues presented for the first time on appeal, we refuse to pass on the agency question.[1]
National American's fourth challenge to the judgment against it is the claim that Zions failed to comply with the policy's proof-of-loss provision. The policy provides that
proof of loss or damage, signed and sworn to by the insured claimant shall be furnished to the Company. .. . Such proof of loss or damage shall describe the defect in ... the title ... which constitutes the basis of loss or damage, and, when appropriate, state the basis of calculating the amount of such loss or damage.
The letter from Zions' counsel to National American described the defect in Zions' title and contained a copy of the title policy, a description of the insured property, and a copy of Virgil Olson's sworn affidavit of forgery. At trial, National American contended that this letter was insufficient because the notice of loss was not sworn and because it did not set out the amount of loss sustained by Zions.
The trial court rejected National American's claims. It found that although the letter was not sworn, it did describe the title defect and therefore substantially complied with the policy's proof-of-loss provision. In addition, the trial court noted that the policy required a statement of "the basis of calculating the amount of such loss or damage" only "when appropriate." The words "when appropriate" introduced uncertainty concerning the requirement's applicability which the trial court determined must be construed against the drafter, National American. Therefore, the trial court held that Zions should be relieved of that requirement.
On appeal, National American advances the same arguments presented to the trial court. It contends that the policy's proof-of-loss provision is clear and was not complied with. We concur with the trial court's finding of substantial compliance. "Substantial, as distinguished from strict, compliance [with] ... proof of loss [provisions] is all that is required." Sutton v. Fire Insurance Exchange, 265 Or. 322, 325, 509 P.2d 418, 419 (1973) (citing 14 G. Couch, R. Anderson & M. Rhodes, Cyclopedia of Insurance Law § 49A:20 (rev. 2d ed. 1982); 3 G. Richards & W. Freedman, Richards on the Law of Insurance § 547 (5th ed. 1952); W. Vance & B. Anderson, Handbook on the Law of Insurance 897-98 (3d ed. 1951)); accord Anderson v. State Farm Fire & Casualty Co., 583 P.2d 101, 103 (Utah 1978); Stewart *656 v. Commerce Insurance Co., 114 Utah 278, 288, 198 P.2d 467, 472 (1948). The purpose of the proof-of-loss provision is to give the insurer an adequate opportunity to investigate, to prevent fraud, and to form an estimate of its rights and liabilities before it is required to pay. Sutton, 265 Or. at 325, 509 P.2d at 419 (quoting 14 G. Couch, R. Anderson & M. Rhodes, supra, § 49A:3). Zions' letter did contain a sworn affidavit of forgery and did describe the title defect. That information allowed National American to make an intelligent estimate of its rights and liabilities under the policy and thus fulfilled the purpose of the proof-of-loss provision.
As for National American's claim that Zions' letter was required to fix the amount of loss, the trial court was correct in finding that the insurance policy's "when appropriate" requirement is ambiguous and should be construed against the insurance company.
National American's fifth claim is that the trial court improperly awarded attorney fees to Zions. Zions, on the other hand, claims that there is a contractual basis for the award and seeks to have it increased.
In its findings of fact, the trial court stated that National American "agreed to pay plaintiff's attorney's fees and other costs incurred in pursuing this claim against [National American]." In reviewing the matter, however, we have determined that the trial court's finding of an agreement to pay fees was, in fact, a legal conclusion based on its interpretation of a provision in the insurance policy. The labels attached to findings of fact or conclusions of law are not determinative. In Diversified Equities, Inc. v. American Savings and Loan Association, 739 P.2d 1133, 1136 (Utah Ct.App. 1987), the Court of Appeals stated that "without regard to the labels used, when ... `findings' proceed from stipulated facts ... the `findings' are tantamount to conclusions of law, with the stipulation of facts being the functional equivalent of true findings of fact." We agree. It is fair to say that a finding of fact that is actually a conclusion of law will be treated as a conclusion of law, and a conclusion of law that is actually a finding of fact will be treated as a finding of fact. As noted above, a conclusion of law is reviewed for correctness. E.g., Scharf v. BMG Corp., 700 P.2d at 1070.
We must therefore determine whether the trial court correctly interpreted the policy's attorney fees provisions. The policy provides:
Subject to schedule B and the conditions and stipulations hereof, National American Title Insurance Company ... insures [Zions] ... against... attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by [Zions] by reason of ... [a]ny defect in ... such title.
(Emphasis omitted.) Paragraph 6(b) of the conditions and stipulations provides:
The Company will pay, in addition to any loss insured against by this policy, all costs imposed upon an insured in litigation carried on by the Company for such insured, and all costs, attorneys' fees and expenses in litigation carried on by such insured with the written authorization of the Company.
Paragraph 6(b) limits National American's liability to attorney fees incurred in litigation authorized by National American. This limitation can logically apply only to actions brought by Zions and is wholly inapplicable to actions defended by Zions; National American cannot, and does not, contend that the policy gives it the power to decide whether Zions may defend a suit brought against it by a third party. In fact, National American concedes that if it were obligated to defend Virgil and Sara Olson's quiet title action, Zions would be entitled to recover the costs of the defense, including attorney fees. Given the inapplicability of paragraph 6(b)'s limitations and the fact that National American's obligation to defend has been established, Zions is entitled to recover attorney fees incurred in defending Virgil and Sara's quiet title action.
There is, however, an additional element of the attorney fee issue. National American contends that the trial court also awarded Zions attorney fees it incurred in *657 suing National American. National American argues that paragraph 6(b) excludes payment of such fees under the policy and, therefore, that there is no contractual basis for the award. National American relies on Espinoza v. Safeco Title Insurance Co., 598 P.2d 346, 348-49 (Utah 1979). In Espinoza, this Court found that under provisions essentially identical to those at issue in this case, there was no contractual basis for awarding an insured attorney fees it incurred in suing its insurer, even though the insurer was unsuccessful in defending its refusal to provide coverage. Id. Although we might question the result in Espinoza, that case directly confronted the issue and definitively construed the identical contract language. Under these circumstances, we decline to depart from Espinoza. Therefore, we must reverse the trial court's award of attorney fees to Zions to the extent that it represented the costs of prosecuting an action against National American for failing to provide coverage.
Although it does not affect the outcome of this appeal, it is worth noting that since Espinoza was decided, and after the decision below was rendered, we announced the existence of an implied contractual obligation to perform a first party insurance contract fairly and in good faith. See Beck v. Farmers Insurance Exchange, 701 P.2d 795, 800-01 (Utah 1985). Damages for breach of this implied covenant can include consequential damages. Id. at 801. Attorney fees incurred by an insured in suing its insurer because of such a breach would be recoverable consequential damages because they plainly are reasonably foreseeable by the parties at the time the contract is made. See id. Although Zions did not proceed against National American on this theory, it would arguably be available to others similarly situated, despite the language in the standard form contract, because the implied covenant announced in Beck cannot be contractually waived. Id. at 801 n. 4.
We remand this portion of the case to the trial court for the purpose of determining the amount of attorney fees to be awarded under the policy for defending the quiet title action.
National American's sixth and final argument is that Zions was estopped from bringing suit to recover under the policy because Zions created the situation leading to the forgery. Zions knew that Virgil Olson had refused to sign the trust deed, and Zions was well aware that it had threatened legal action against Jeffery Olson but, nevertheless, gave Jeffery the deed, thereby giving him the opportunity to commit fraud against the insurer.
Although National American pleaded estoppel in its answer, it did not argue estoppel to the trial court. In this respect, the instant case is identical to Turtle Management, Inc. v. Haggis Management, Inc., 645 P.2d 667, 672 (Utah 1982). In that case, the answer contained a defense that was neither argued to the trial court nor supported by any evidence. In Turtle Management, we stated, "This Court will not consider on appeal issues which were not submitted to the trial court and concerning which the trial court did not have the opportunity to make any findings of fact or law." Id. (citing Shayne v. Stanley & Sons, Inc., 605 P.2d 775, 776 (Utah 1980); Lamkin v. Lynch, 600 P.2d 530, 533 (Utah 1979); Edgar v. Wagner, 572 P.2d 405, 407 (Utah 1977); State Road Commission v. Larkin, 27 Utah 2d 295, 300, 495 P.2d 817, 821 (1972)). Similarly, we will not consider whether Zions is estopped from bringing suit against National American.
We have considered the parties' other contentions and find them to be without merit. The judgment is affirmed in all respects except the award of attorney fees, which is reversed. The case is remanded for the purpose of determining the amount of attorney fees to be awarded. Costs to respondent.
HALL, C.J., STEWART, Associate C.J., and HOWE and DURHAM, JJ., concur.
NOTES
[1] The relationship between Zions and Jeffery vis-a-vis the collateralization of the loan may present a different agency question than does the relationship between Zions and Jeffery vis-a-vis National American, the insurer. The collateralization was important to Jeffery because without it, Zions would not forbear collecting the loans; obtaining a proper deed was important to Zions because it brought it within the protection of its policy with National American. Both perspectives are intertwined. This is precisely the sort of complex factual and legal relationship on which we need the findings and conclusions of a trial judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000841/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7689
MARCUS GANZIE,
Petitioner - Appellant,
versus
RONALD J. ANGELONE, Director of the Virginia
Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. Rebecca B. Smith, District Judge.
(CA-98-1403-2)
Submitted: February 10, 2000 Decided: February 17, 2000
Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Marcus Ganzie, Appellant Pro Se. Daniel John Munroe, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marcus Ganzie seeks to appeal the district court’s judgment
denying relief on his petition filed under 28 U.S.C.A. § 2254 (West
1994 & Supp. 1999). We have reviewed the record and the district
court’s opinion accepting the recommendation of the magistrate
judge and find no reversible error. Accordingly, we deny a certif-
icate of appealability and dismiss the appeal on the reasoning of
the district court. See Ganzie v. Angelone, No. CA-98-1403-2 (E.D.
Va. Sept. 30, 1999). We dispense with oral argument because the
facts and legal contentions are adequately presented in the ma-
terials before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876733/ | 247 S.W.3d 99 (2008)
DOLPHIN CAPITAL CORPORATION, Appellant,
v.
FORTI LANDSCAPE, INC., and Richard Forti, Respondents.
No. WD 66302.
Missouri Court of Appeals, Western District.
March 11, 2008.
Before HOLLIGER, P.J., LOWENSTEIN and SMART, JJ.
HAROLD L. LOWENSTEIN, Judge.
The pertinent underlying facts in this case are the same as in Dolphin v. Schroeder et al., WD66298, handed down concurrently with this case. Dolphin raises the exact same points and argument as in Schroeder. The analysis and result in Schroder apply here.
Judgment affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2378114/ | 216 F. Supp. 2d 1084 (2002)
ARTICHOKE JOE'S, California Grand Casino, Fairfield Youth Foundation, Lucky Chances, Inc., Oaks Club Room, Sacramento Consolidated Charities, Plaintiffs,
v.
Gale A. NORTON, James McDivitt, Gray Davis, Bill Lockyer, Harlan W. Goodson, John E. Hensley, Michael C. Palmer, J.K. Sasaki, Arlo Smith, Defendants.
No. CIV.S-01-248-DFL-GGH.
United States District Court, E.D. California.
August 5, 2002.
*1085 *1086 *1087 *1088 *1089 Richard W. Nicholls, McDonough Holland and Allen, Sacramento, CA, Robert V. Zener, James Hamilton, Swindler, Berlin, Shereff, Friedman, Washington, DC, for Artichoke Joe's, California Grand Casino, Fairfield Young Foundation, Lucky Chances Inc., Oak Club Room, Sacramento Consolidated Charities.
Robert D. Links, Berger, Nadel and Vanilla, San Francisco, CA, Alan Jay Titus, Robb and Ross, Mill Valley, CA, for Artichoke Joe's.
David Michael Fried, San Francisco, CA, for California Grand Casino, Oak Club Room.
Michael V. Franked, Franked and Restroom, Sacramento, CA, for Lucky Chances, Inc.
Edmund F. Brennan, Asst. U.S. Atty., Sacramento, CA, for Gale A. Norton, Sec. of Interior, James McDivitt, Acting Asst. Sec. of Interior.
Marc A. Le Forestier, Kathleen E. Gnekow, Atty. General's Office, Sacramento, CA, for Gray Davis, Bill Lockyer, Harlan W. Goodson, John E. Hensley, Michael C. Member, J.K. Sasaki, Arlo Smith.
Richard G. McCracken, Davis, Cowell an Bowe, San Francisco, CA, for Agua Caliente Bank of Cahuilla Indians (amicus), Hotel Employees and Restaurant Employees Intern. Union (amicus).
Frank R. Lawrence, Holland and Knight, Los Angeles, CA, for California Nat. Indian Gaming Assoc. (amicus).
Fred James Hiestand, Sacramento, CA, for Bi-partisan Group of Offices and Members of the California Legislature (amicus).
AMENDED MEMORANDUM of OPINION AND ORDER
LEVI, District Judge.
Plaintiffs challenge the validity of compacts entered into under the Indian Gaming *1090 Regulatory Act ("IGRA"), 25 U.S.C. §§ 2701 et seq., between the State of California and certain Indian tribes. The compacts permit the tribes to offer Las Vegas style high stakes gaming, including slot machines. The compacts were specifically authorized by a California constitutional amendment, Proposition 1A, which gives the Governor the authority "to negotiate and conclude compacts ... for the operation of slot machines and for the conduct of lottery games and banking card games by federally recognized Indian tribes on Indian lands in California." Cal. Const. Art. IV, sec. 19(e). The plaintiffs are California card clubs and charities who are prohibited under state law from offering similar sorts of gambling, and thus have been placed at a competitive disadvantage. Plaintiffs allege that the defendants, various state and federal officers, including the Governor and the Secretary of the Interior, violated IGRA and the Fifth and Fourteenth Amendments to the United States Constitution by creating a tribal monopoly on Las Vegas style gaming. Plaintiffs seek both declaratory and injunctive relief to invalidate the existing compacts and to block the execution of any future compacts. The state and federal defendants contend that the court lacks jurisdiction to hear the plaintiffs' claims and that neither Proposition 1A nor the compacts violate federal law. On cross-motions for summary judgment, the court finds that it has jurisdiction over most of the plaintiffs' claims and further finds that neither the compacts nor Proposition 1A violate federal law.
Because of the opinion's length and the wide range of issues addressed, the court provides the following summary. On the standing issues, the court has jurisdiction to resolve the claims against the federal defendants, the claims against the Governor related to existing compacts, and the claims against the State Attorney General and the Director of the California Division of Gambling Control as to the enforcement of state gaming laws against plaintiffs. The court concludes that as to count II, brought against the state defendants as to existing and future compacts, plaintiffs have demonstrated an injury in fact with respect to the Governor and the existing compacts. However, they fail to demonstrate an immediate and imminent threat of harm from possible future compacts, and thus, are not entitled to seek equitable relief as to any future compacts, including potential compacts involving the Lytton Rancheria under count III. Also as to count II, the plaintiffs have established that the Governor's conduct caused their alleged injuries and that a favorable ruling would redress their alleged harms. Further, they have established causation and redressability as to the Attorney General and the Director, but not the Commission, under count IV which seeks to enjoin enforcement of California Penal Code provisions prohibiting plaintiffs and others from engaging in Las Vegas style gambling. The court further concludes that it has jurisdiction over the Governor, Attorney General, and the Director under Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).
As to count I, which is brought against the federal defendants, the court concludes that plaintiffs may bring a claim to enforce IGRA and the Johnson Act under § 701(a)(1) of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. Further, because matters related to the approval of tribal gaming compacts are not committed by law to agency discretion, plaintiffs' claims are not precluded by § 701(a)(2) of the APA. The court also concludes that the plaintiffs fall within the zone of interests arguably sought to be protected by IGRA and the Johnson Act. Finally, because the legal interests of California's Indian tribes are adequately represented by the Secretary of the Interior, *1091 the tribes are not necessary and indispensable parties under Fed.R.Civ.P. 19.
With respect to the merits of the case, the court holds that the class III gaming compacts are valid under IGRA and the Constitution. Because California law through Proposition 1A permits class III gaming for Indian tribes with compacts, it satisfies IGRA's requirement that the state "permit" class III gaming "for any purpose by any person, organization, or entity." 25 U.S.C. § 2710(d)(1)(B). The court finds that this statutory language cannot reasonably be understood to condition class III Indian gaming on the state's permission of class III gaming to all persons for any purpose. If this were the proper interpretation, IGRA would be a virtual nullity because no state would ever grant class III gaming privileges to all comers for any purpose. Rather, the language is best understood to open the way to class III Indian gaming if the state grants permission to any one group or person, including Indian tribes. For these reasons, the court concludes that the defendants are in compliance with IGRA and the Johnson Act.
The court further finds that the tribal class III gaming monopoly does not discriminate on the basis of race. Under well established Supreme Court precedent, "[f]ederal regulation of Indian tribes ... is governance of once-sovereign political communities; it is not to be viewed as legislation of a `racial' group consisting of `Indians' ...." United States v. Antelope, 430 U.S. 641, 646, 97 S. Ct. 1395, 51 L. Ed. 2d 701 (1977) (quoting Morton v. Mancari, 417 U.S. 535, 553 n. 24, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974)). So long as the compacts are rationally related to Congress' trust obligation to the tribes, the compacts will not be set aside on constitutional grounds. Because the compacts, including the monopoly on class III gaming, promote tribal economic development, they are rationally related to Congress' trust obligations and do not violate equal protection.
This case presents significant, complex legal issues against a background of even more important and complex policy questions. Those policy questions must be resolved by the political branches and the electorate. The court decides only that the state and federal defendants did not violate federal law by entering into the compacts at issue.
I. Facts and Procedural History
A. Indian Gaming Regulatory Act
The Indian Gaming Regulatory Act was enacted by Congress in 1988 shortly after the Supreme Court's decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S. Ct. 1083, 94 L. Ed. 2d 244 (1987). In Cabazon the Court invalidated California's regulation of Indian bingo on the ground that such regulation was civil rather than criminal in nature and therefore was not authorized by Public Law 280.[1] As a practical result of Cabazon, Indian tribes were free to offer gaming on tribal lands subject only to federal regulation or to state criminal prohibitions. Although Congress had been considering bills to regulate Indian gaming for several years, Cabazon left something of a regulatory *1092 vacuum that made the issue of Indian gaming regulation more pressing.[2]
IGRA was Congress' compromise solution to the difficult questions involving Indian gaming. The Act was passed in order to provide "a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments" and "to shield [tribal gaming] from organized crime and other corrupting influences to ensure that the Indian tribe is the primary beneficiary of the gaming operation." 25 U.S.C. § 2702(1), (2). IGRA is an example of "cooperative federalism" in that it seeks to balance the competing sovereign interests of the federal government, state governments, and Indian tribes, by giving each a role in the regulatory scheme. See New York v. United States, 505 U.S. 144, 167-68, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) (collecting examples of cooperative federalism).
IGRA functions by dividing gaming into three categories and intensifying the level of regulatory oversight depending on the category of gaming. "Class I gaming" includes social games with prizes of minimal value, as well as traditional forms of Indian gaming, and is subject to exclusive regulation by Indian tribes. 25 U.S.C. §§ 2703(6), 2710(d). "Class II gaming" includes bingo and card games explicitly authorized by the State, or not explicitly prohibited by the State if such games are actually played in the State, but does not include any banking card games or slot machines.[3]Id. § 2703(7)(A). Class II gaming is subject to joint regulation by the federal government and tribal authorities. Id. § 2710(d).
Class III gaming is defined as all forms of gaming that "are not class I gaming or class II gaming." Id. § 2703(8). Class III gaming includes parimutuel horse race wagering, lotteries, banking card games, slot machines, and all games with non-Indian origins.[4] Class III gaming is only lawful on Indian lands if three conditions are met[5]: (1) approval by the governing body of the Tribe and the Chairman of the National Indian Gaming Commission ("NIGC"); (2) permission by the state, in *1093 the sense that the state permits "such gaming," "for any purpose by any person"; and (3) existence of a Tribal-State compact that is approved by the Secretary of the Interior.[6]
The Tribal-State compact is the key to class III gaming under IGRA. Under such a compact, the federal government cedes its primary regulatory oversight role over class III Indian gaming, and permits states and Indian tribes to develop joint regulatory schemes through the compacting process.[7] In this way, the state may gain the civil regulatory authority that it otherwise lacks, and a tribe gains the ability to offer class III gaming.[8]See Keweenaw Bay Indian Community v. United States, 136 F.3d 469, 472 (6th Cir.1998). IGRA provides that the Tribal-State compact may include provisions relating to a number of issues that arise once class III gaming begins, including the application of state criminal and civil laws, the allocation of jurisdiction between the state and the tribe necessary for the enforcement of gaming laws, and the assessment by the State of gaming activities in order to defray the costs of regulation.[9]
The compacting process begins when a tribe requests negotiations with the state in which its lands are located. Id. § 2710(3)(A). IGRA provides jurisdiction in the federal courts to hear a claim by a tribe that a state has failed to negotiate in "good faith."[10]Id. § 2710(d)(7)(A). If a court finds that a state failed to negotiate in good faith, IGRA permits the court to order the state and the tribe to conclude a compact within 60 days. Id. § 2710(d)(7)(B)(iii). If the parties are unable to agree to a compact within this period of time, IGRA directs the parties to submit their "last best offer for a compact" to a mediator who will then select the *1094 more appropriate plan. Id. § 2710(d)(7)(B)(iv). In determining whether a state negotiated in good faith, IGRA permits courts to "take into account the public interest, public safety, criminality, financial integrity, and adverse economic impacts on existing gaming activities." Id. § 2710(d)(7)(B)(iii)(II).[11]
Finally, IGRA explicitly prohibits gaming on lands taken into trust for the benefit of a tribe after October 17, 1988. Id. § 2719(a). This restriction does not apply, however, if the Secretary, having consulted with tribal and state and local officials, and having secured the agreement of the Governor, determines that gaming on the newly acquired lands would benefit the tribe and would not be detrimental to the surrounding community.[12]Id. § 2719(b).
B. California Gaming
Following the enactment of IGRA, the State of California and various Indian tribes in California attempted to conclude Tribal-State compacts. However, the State and the tribes disagreed about the forms of gaming that would be permitted and the content of the compacts. See, e.g., Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994); Hotel Employees and Rest. Employees Int'l Union v. Davis, 21 Cal. 4th 585, 88 Cal. Rptr. 2d 56, 981 P.2d 990 (1999). These disagreements were ultimately settled, and on September 10, 1999, Governor Davis approved fifty-seven class III gaming compacts on behalf of the State of California. (Complaint at ¶ 39). The compacts, which are effective until December 31, 2020,[13] are identical in most respects. The compacts point to the preferred position accorded to the tribes, noting that the compacts "create a unique opportunity for [each] Tribe to operate its Gaming Facility in an economic environment free of competition from the Class III gaming ... on non-Indian lands in California." (Tribal-State Compact Between the State of California and the Augustine Band of Mission Indians ("Compact"), at 2, § 11.2.1(a), Exh. 1 to St. Defs.' App. of Authorities).
The compacts permit each signatory tribe to operate "gaming devices" or slot machines, banking or percentage card games, and any devices or games that the California State Lottery is authorized to offer. Id. at § 4.1. The tribe may initially operate up to 350 slot machines, but, by participating in a series of draws, a tribe may acquire licenses to operate up to 2,000 slot machines. Id. at §§ 4.3.1, 4.3.2.2. The tribe must, however, pay a one-time non-refundable fee of $1,250 for each gaming device it operates that goes into a "Revenue Sharing Trust Fund," which distributes up to $1.1 million per year to tribes without compacts. Id. at §§ 4.3.2.1, 4.3.2.2(3).[14]
*1095 Two agencies, the "Tribal Gaming Agency" and the "State Gaming Agency," are responsible for the bulk of regulatory oversight under the compacts. The Tribal Gaming Agency is defined as the regulatory agency designated to carry out the signatory Tribe's regulatory responsibilities, and it has primary responsibility for the on-site regulation of Indian gaming.[15]Id. at §§ 2.20, 7.0. The State Gaming Agency, defined as the "entities authorized to investigate, approve, and regulate gaming licenses" under Cal. Bus. & Profs. Code § 19800 et seq., includes the California Gambling Control Commission and the Division of Gambling Control in the California Department of Justice.[16]Id. at § 2.18; Cal. Bus. & Profs. Code §§ 19809, 19810A. Members of the Commission are appointed by the Governor, subject to confirmation by the State Senate, and serve four year terms. Cal. Bus. & Profs. Code § 19812A.
As part of its regulatory function, the Tribal Gaming Agency may promulgate rules and regulations governing the management and operation of tribal gaming facilities, although its regulations must be consistent with the State Gaming Agency's statewide rules. Compact at §§ 8.1, 8.4. In certain circumstances, the State Gaming Agency may also promulgate rules directly applicable to Indian gaming facilities. Id. at § 8.4.1.
As part of its regulatory oversight, the Tribal Gaming Agency licenses all Indian gaming facilities and all persons who work in and with them. Id. at § 6.4.1. However, subject to a variety of exceptions, a person who has been denied a determination of suitability by the State Gaming Agency may not work in or with a gaming facility. Id. at §§ 6.4.4(c), 6.4.5. Further, except for "non-key Gaming Employee[s]," the Tribal Gaming Agency must require license applicants to file an application with the State Gaming Agency for a determination of suitability for licensure under the California Gambling Control Act. Id. at § 6.5.6. The Tribal Gaming Agency is also charged with inspecting class III gaming facilities to determine if they are in compliance with IGRA, the governing compact, and the Agency's regulations, although the State Gaming Agency may also conduct inspections of its own. Id. at § 7.0.
Finally, the compacts specify three conditions that must be met before they become effective. The compacts must be ratified by the State Legislature and be approved by the United States Secretary of the Interior ("Secretary"). Also, because California prohibits class III gaming under Cal. Cons. Art. IV, sec. 19(e), and Cal.Penal Code §§ 330, 330a, 330b, California voters must approve the California Senate's proposed Constitutional Amendment 11 ("Proposition 1A"), that would permit the Governor to enter into class III *1096 gaming compacts, thereby exempting Indian tribes from the general prohibition on gaming. Id. at § 11.1.
All three conditions have been satisfied. In September 1999, the California Legislature ratified the fifty-seven compacts that were signed by the Governor on September 10, 1999, and enacted provisions to expedite the approval of additional identical compacts.[17] Cal. Gov't Code § 12012.25. On March 7, 2000, California voters approved Proposition 1A which amended the California Constitution as follows:
Notwithstanding subdivisions (a) and (e), and any other provision of state law, the Governor is authorized to negotiate and conclude compacts, subject to ratification by the Legislature, for the operation of slot machines and for the conduct of lottery games and banking card games by federally recognized Indian tribes on Indian lands in California in accordance with federal law.
Cal. Const. Art. IV, sec. 19(e). On May 5, 2000, the Assistant Secretary of Indian Affairs, approved the compacts on behalf of the Secretary of the Interior, expressly finding that "[t]he Governor can, consistent with the State's amended Constitution, conclude a compact giving an Indian tribe, along with other California Indian tribes, the exclusive right to conduct certain types of Class III gaming." (Letter from Kevin Gover, May 5, 2000, Exh. B to Complaint). The Secretary's approval was published in the Federal Register on May 16, 2000. (Notice of approved Tribal-State Compacts, 65 Fed.Reg. 31,189 (May 16, 2000)).
Since the first 57 compacts became effective, five additional compacts have been entered into by the Governor and approved by the Secretary. (Notice of approved Tribal-State Compact, 65 Fed.Reg. 41721 (July 6, 2000); Notice of approved Tribal-State Compact, 65 Fed.Reg. 62749 (October 19, 2000); Pls.' Resp. to State Defs.' Statement of Undisputed Facts ("SUF") at ¶ 15). Further, at least two additional tribes have requested class III gaming compacts, but their requests have been placed on hold by the State until the conclusion of this lawsuit. (See Shelley Anne Chang Letters, May 2, 14, 2001, Exhs. K, L to Pls.' Reply). Thirty-nine of the 62 tribes with compacts currently operate casinos with slot machines, 18 of which are located in Northern California. Some 44 California tribes remain without compacts. (Eadington Decl. at ¶¶ 3, 4).[18]
C. The Lytton Band
On March 22, 1991, the Lytton Rancheria, a tribe previously terminated by the federal government under Pub.L. 85-671, *1097 72 Stat. 619, was reinstated according to the terms of a stipulation entered into between the Tribe, the United States, and the County of Sonoma where the Tribe's lands historically were located. (Indians of the Sugar Bowl Rancheria, et al. v. United States, No. C-86-3660 (N.D.Cal. Mar. 22, 1991) (Stipulation for Entry of Judgment), Exh. G to State Defs.' Motion to Dismiss; Notice of Reinstatement, 57 Fed.Reg. 5214-01 (Feb. 12, 1992)). The stipulation included provisions which permitted the Secretary of the Interior to take land into trust for the then landless Rancheria in the Alexander Valley in Sonoma County. (Id. at ¶ 5).
Following the Lytton Rancheria's reinstatement, the Tribe acquired land in San Pablo in Contra Costa County, less than 20 miles from downtown San Francisco. (Eadington Decl. at ¶ 6). Although the Rancheria has not yet requested negotiations to conclude a gaming compact with respect to this land, (Pls.' Resp. to State Defs.' SUF at ¶ 24), in September, 1999, it entered into a Municipal Services Agreement with the City of San Pablo stating that the Rancheria "intends to enter into a compact with the State of California ("State") which provides for the joint exercise of jurisdiction of the Band and the State to regulate gaming on the Property pursuant to the IGRA." (Municipal Services Agreement at 2, Exh. J to Pls.' Exhs. to Motion).
However, because the San Pablo land was not acquired until 1999, it fell under 25 U.S.C. § 2719's restriction on class III gaming on lands acquired after October 17, 1988, and the Lytton Tribe could not offer gaming on the San Pablo tract unless it satisfied one of the exceptions enumerated in § 2719(b). On December 27, 2000, the Omnibus Indian Advancement Act of 2000, Pub.L. 106-568, Stat. 2868, went into effect. (Complaint at ¶ 52). Section 819 of the Act ("San Pablo Legislation"), which was passed without hearings or debate, (Pls.' SUF at ¶ 18; Complaint at ¶ 53), effectively "backdated" acquisition of the Lytton Rancheria's land in San Pablo prior to October 17, 1988.[19] Thus, if the Lytton Rancheria seeks to conclude a class III gaming compact covering its land in San Pablo, the San Pablo Legislation apparently exempts it from the consultation requirements in § 2719.
D. Plaintiffs' Allegations
This complaint was filed on February 7, 2001. The plaintiffs in this case consist of four card clubs and two charities that offer class II gaming in Northern California and that are prohibited by the California Penal Code from offering any form of class III gaming including banking card games and slot machines.[20] Plaintiffs attack the monopoly *1098 on class III gaming accorded by the compacts and allege that various state and federal officers violated IGRA and the Fifth and Fourteenth Amendments by entering into, approving, and administering the compacts. The named federal defendants are Gale Norton, Secretary of the Interior, and James McDivitt, Acting Assistant Secretary of the Interior for Indian Affairs ("federal defendants").[21] The named state defendants are Gray Davis, Governor of the State of California; Harlan W. Goodson, Director of the California Division of Gambling Control; John E. Hensley, Chair of the California Gambling Control Commission; Michael C. Palmer, J.K. Sasaki, and Arlo Smith, members of the California Gambling Control Commission; and Bill Lockyer, Attorney General of the State of California ("state defendants"). Id. at ¶¶ 21-26.
Plaintiffs argue that the state's prohibition on class III gaming keeps them from competing for part of a significant markettribal gaming in California may generate up to $4.7 billion per year by 2004. (Eadington Decl. at ¶ 8). According to plaintiffs, the class II gaming they are permitted to offer cannot compete with the Las Vegas style gaming offered by the tribes. (Id. at ¶ 19). Banking and percentage card games offer gamblers the chance to win more money and are more profitable for class III operators because the operator can take a stake in the action. (Id. at ¶ 20). And because of their stake in the activity, class III operators do not need to charge players by the hand or the hour the way that class II operators do. Slot machines also contribute to the popularity of class III gaming casinos. In most casinos, slot machines account for "in excess of 70% of total gaming winnings," and depending on location, competition, and how they are regulated, each machine may generate between $88 and $440 per day. (Id. at ¶¶ 10, 18). As of January 25, 2001, there were over 25,000 slot machines in use on Indian lands in California. (Id. at ¶ 11).
Plaintiffs argue that "[m]any customers who presently patronize California cardrooms and charity bingo games are likely to be attracted by the greater variety of games, and the greater payoffs, offered at casinos conducting class III gaming, particularly those that offer slot machines," an effect documented in other states that have introduced tribal gaming. (Complaint at ¶ 29; Eadington Decl. at ¶¶ 25-29 (noting effect of class III Indian gaming in Arizona, Michigan, and New Orleans)). Plaintiffs are especially concerned that a tribe will be permitted to offer class III gaming in an urban area putting class III gaming casinos in closer proximity to the plaintiffs' establishments. (Complaint at ¶ 8).
Plaintiffs' complaint contains four counts. In count I, plaintiffs allege that the federal defendants' approval of the compacts violated the APA, because the compacts, and hence the approvals, violate IGRA, the Johnson Act, and the Fifth Amendment to the United States Constitution. (Complaint at ¶ 75). Plaintiffs essentially make two arguments; they argue that extending a class III gaming monopoly to Indian tribes (1) violates IGRA's "any person, organization, or entity" requirement, 25 U.S.C. § 2710(d), and (2) constitutes *1099 illegal discrimination on the basis of race and violates the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments.
The remaining three counts are all directed against the state defendants and are brought under 42 U.S.C. § 1983. Count II, brought against the Governor, the Director of the California Division of Gambling Control ("Director"), and the Chair and members of the California Gambling Control Commission ("Commission"), alleges that Proposition 1A and the compacts violate IGRA, the Johnson Act, and the Equal Protection Clause of the Fourteenth Amendment. (Id. at ¶ 78). In count III, which is directed at the Governor alone, plaintiffs allege that the San Pablo legislation violates IGRA and the Johnson Act, and is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. (Id. at ¶ 82-83).
Count IV, brought against the Attorney General, the Director, and the Commission, seeks to preclude enforcement of Cal.Penal Code §§ 330, 330a, 330b which prohibit class III gaming in California. Plaintiffs allege that continued enforcement of these laws, when tribal gaming is exempted, constitutes illegal discrimination on the basis of race or ethnic origin.
Plaintiffs seek declaratory and injunctive relief on all counts. Specifically, plaintiffs seek a judgment to set aside the federal defendants' approval of the compacts and a declaration that such approvals violate IGRA, the Johnson Act, the APA, the Fifth Amendment, and aid and abet the state defendants' violation of the Fourteenth Amendment. (Id. at 31). The plaintiffs also seek (1) with respect to the Governor, Director, and Commission, a declaration that Proposition 1A and the compacts violate IGRA, the Johnson Act, the Supremacy Clause, and the Fourteenth Amendment, an injunction to prevent their continued participation in the administration of the compacts, and an injunction to prevent the Governor from executing any additional compacts; (2) with respect to the Governor, a declaration that any compact with the Lytton Rancheria based on H.R. 5528 violates IGRA, the Johnson Act, the Supremacy Clause, and the Fourteenth Amendment, and an injunction to prevent the Governor from entering into such a compact; and (3) with respect to the Governor, the Attorney General, the Director, and the Commission, a declaration that Article IV, Sec. 19(e) of the California Constitution and Cal.Penal Code §§ 330, 330a, 330b violate the Equal Protection Clause, and an injunction to prohibit enforcement of the Penal Code's general prohibition on class III gaming.
Plaintiffs and defendants have filed cross-motions for summary judgment on all claims, and the state defendants have filed a motion to dismiss. In addition to arguing that Proposition 1A and the compacts are consistent with IGRA, the Johnson Act, and the Fifth and Fourteenth Amendments, the state and federal defendants raise a number of jurisdictional objections. The court has also received several amicus curiae briefs.[22]
Before turning to the merits, it is necessary to address the multitude of objections *1100 to jurisdiction raised by the state and federal defendants and several amici curiae. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) (federal courts must resolve jurisdictional issues before merits). The state defendants argue that: (1) the plaintiffs lack standing; (2) the state defendants are not proper defendants under 42 U.S.C. § 1983 or under Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908); and (3) the case cannot proceed if the state defendants are dismissed because they are necessary and indispensable parties. The federal defendants challenge the court's jurisdiction under the APA. They contend that plaintiffs have no cause of action under the APA and that the plaintiffs are not within the zone of interests protected by IGRA. Finally, the court considers the arguments of amicus curiae, California Nations Indian Gaming Association ("CNIGA"), that the case must be dismissed because the absent Indian tribes are necessary and indispensable parties. Although all of these jurisdictional objections raise issues that potentially preclude the court from reaching the merits of the plaintiffs' claims, and have significantly increased the length and complexity of this opinion, all but a very few fail, and those that succeed do not greatly affect the scope of the inquiry on the merits.
II. Standing
The requirements for demonstrating standing to sue are well-established. As an "irreducible minimum," Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982), parties who seek to establish standing must show (1) a concrete and imminent "injury in fact", (2) a causal connection between the defendants and the alleged injury, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.2002). Invoking these concepts, the state defendants advance two arguments on standing. First, they argue that there is no injury in fact with respect to the Governor's future decisionmaking concerning additional compacts; and second they argue that there is no causation or redressability with respect to any of the state defendants.
A. Injury in Fact and Equitable Relief as to Governor Davis on Counts II and III
Plaintiffs who seek prospective injunctive relief must demonstrate both a sufficient likelihood of future injury, Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1236 (9th Cir.2001), and that there is "a `likelihood of substantial and immediate irreparable injury.'" City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974)); see also Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir.2000). The former stems from the Article III case or controversy requirement; the latter is a function of the traditional limits on the power of federal courts to grant equitable relief. Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042, 1044 (9th Cir.1999) (en banc). To determine the likelihood of future harm courts are guided "not only by the defendants' past conduct but also by the defendants' avowed future intent." LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir.1985). Further, when a plaintiff seeks to enjoin a state agency and its officers, the plaintiff must "`contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs.'" Midgett v. Tri-County Metro. Transp. *1101 Dist. of Oregon, 254 F.3d 846, 850 (9th Cir.2001) (quoting Rizzo v. Goode, 423 U.S. 362, 378-79, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976)); see also Hodgers-Durgin, 199 F.3d at 1042 ("The Supreme Court has repeatedly cautioned that, absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way.").
1. Count II: Existing and Future Compacts
As to the Governor and future compacts, it is unnecessary to determine whether the plaintiffs satisfy the Article III injury in fact requirement, because even if they did, plaintiffs would still not be entitled to injunctive relief to prevent the approval of additional compacts by the Governor because they have not demonstrated "a threat of immediate and irreparable harm." Hodgers-Durgin, 199 F.3d at 1042.[23]
The plaintiffs argue that there is an immediate threat of future injury because the Governor has already approved sixty-two compacts, the legislature has enacted an expedited approval provision, Cal. Gov't Code § 12012.25(b), and the Governor would be subject to suit if he failed to negotiate in good faith with a tribe that requests a class III gaming compact. 25 U.S.C. § 2710(d)(7). However, while the plaintiffs contend that as many as twenty tribes have expressed an interest in entering into gaming compacts, only two tribes have actually sought to enter into negotiations with the Governor following the approval of the first sixty-two compacts. (Eadington Decl. at ¶ 5). Negotiation of these compacts has not begun and the terms of these hypothetical compacts are, as yet, unknown. Moreover, it is also unclear if the Governor will approve additional compacts, especially compacts for casinos located in urban areas which allegedly pose the greatest risk to the plaintiffs. In fact, the Governor has declined to enter into further negotiations at least until this lawsuit is resolved. In response to inquiries by the two tribes about entering into class III gaming compacts, the Governor replied negatively stating that "commencing formal negotiations at this time, amidst the uncertainty attending the current status of th[is] litigation, would not ... be prudent."[24] (Chang Letter, May 2, 2001, Exh. K to Pls.' Reply). The substantive legal issues presented in this lawsuit, and the greater policy and empirical issues that lie behind this litigation, are of such magnitude and complexity that it cannot be assumed that a responsible state officer would automatically continue to enter into further, identical compacts no matter the accumulation of experience, the pressures against permitting urban tribal gaming establishments, public opinion, and other potentially relevant economic and legal developments. The many unknowns about additional class III gaming compacts preclude a finding that there is a danger of an *1102 immediate and irreparable harm from future compacts when no such compacts are even in the negotiation stage.
When a plaintiff both satisfies Article III and demonstrates an immediate and irreparable injury, courts will appropriately grant prospective injunctive relief against state officials. Lyons, 461 U.S. at 111-12, 103 S. Ct. 1660. But where, as here, there is an inadequate showing of immediate future irreparable injury, the need to "maintain[] the delicate balance between `federal equitable power and State administration of its own law,'" Hodgers-Durgin, 199 F.3d at 1042, compels deference to state officials who are in the consideration phase of their decision-making and have not committed to a future course of action. Lyons, 461 U.S. at 111-12, 103 S. Ct. 1660. Such restraint is especially important when the requested injunction is a broad one that would apply to "whole categories of potential future acts," in this case, any class III gaming compact. Hillblom v. United States, 896 F.2d 426, 431 (9th Cir.1990) (upholding district court's refusal to "declare the inapplicability to the Northern Mariana Islands of any law `which substantially affects the lives of the inhabitants'"). Moreover, it is also relevant that the plaintiffs may seek declaratory relief as to the existing compacts, a less intrusive remedy than an injunction, and one that can resolve the most pressing issues related to Indian gaming under IGRA in a setting best suited to resolution in the federal courts because the terms of the compacts are not hypothetical. See Steffel v. Thompson, 415 U.S. 452, 465-68, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (describing declaratory relief as less intrusive remedy as compared to injunction); Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir.1985) ("There is no question but that the passive remedy of a declaratory judgment is far less intrusive into state functions than injunctive relief that affirmatively commands specific future behavior under the threat of the court's contempt powers."). Having failed to demonstrate an immediate and irreparable harm, plaintiffs may not seek in count II prospective injunctive relief against the Governor to prohibit him from entering into additional compacts.
In addition, the plaintiffs' "failure to establish a likelihood of future injury similarly renders their claim for declaratory relief unripe" as to future, hypothetical compacts. Hodgers-Durgin, 199 F.3d at 1044. As the Ninth Circuit recently explained, "[i]n suits seeking both declaratory and injunctive relief against a defendant's continuing practices, the ripeness requirement serves the same function in limiting declaratory relief as the imminent-harm requirement serves in limiting injunctive relief." (Id.) Thus, for the same reason that there is no imminent future injury that justifies prospective injunctive relief, the plaintiffs' claim for declaratory relief with respect to future compacts fails because it is unripe. Texas v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998)("A claim is not ripe for adjudication if it rests upon `contingent future events that may not occur as anticipated, or indeed may not occur at all.'").
With respect to the existing compacts and the Governor, the plaintiffs have properly alleged an injury in fact which could merit declaratory relief under the Declaratory Judgment Act, 22 U.S.C. §§ 2201 et seq. Plaintiffs allege both a violation of their right to equal protection of the laws and economic injury. Together these allegations form an adequate basis for standing to seek declaratory relief.[25]
*1103 In sum, as to count II, which in part seeks prospective injunctive and declaratory relief against the Governor, the court finds that plaintiffs have failed to demonstrate that they face an immediate and imminent threat of harm from future compacts. For this reason, plaintiffs are only entitled to seek declaratory relief as to existing compacts under count II.
2. Count III: Lytton Rancheria
A similar analysis applies to count III of the complaint which seeks declaratory and injunctive relief against the Governor with respect to the Lytton Rancheria. Because the Lytton Rancheria is no closer to entering into a gaming compact than any other tribe without a compact, plaintiffs' injuries with respect to count III are no more imminent than they are with respect to count II. Although the Municipal Services Agreement between the Lytton Rancheria and San Pablo states that the Lytton Rancheria will seek to enter into negotiations for a class III gaming compact, it has not yet done so. (St. Defs.' SUF at ¶ 24). Moreover, because it would permit gaming in an urban area, an eventuality that the plaintiffs contend would be novel and particularly damaging to existing gaming operations, the Governor might be even more reluctant to negotiate a compact with the Lytton Rancheria. For these reasons, equitable relief is improper because there is no threat of immediate and irreparable harm that would warrant an injunction, and the plaintiffs' request for declaratory relief is, therefore, unripe.
Further, plaintiffs may not establish jurisdiction on the basis that they have been deprived of a procedural right to petition the Governor and the Secretary concerning the potential adverse affects of a proposed casino. (Pls.' Reply at 39-41). Assuming that § 2719 may afford plaintiffs a procedural right of consultation that was foreclosed by the San Pablo legislation,[26] any such procedural right is not implicated until a tribe requests negotiations for a class III gaming compact on land that was acquired after October 17, 1988. Therefore, Congress' decision to "backdate" the acquisition of the San Pablo land is of no consequence unless and until the Lytton Rancheria seeks to enter into a class III gaming compact. Because any attempt to exercise rights based on § 2719 at this point in time would be premature, plaintiffs' argument that the San Pablo legislation deprived them of procedural rights under § 2719 is also not suited for review.
B. Causation
To demonstrate causation, the plaintiffs' alleged injuriescompetitive economic harm and violation of equal protection must be "fairly traceable" to the defendant's conduct, Pritikin v. Dep't of Energy, 254 F.3d 791, 796 (9th Cir.2001), and the injuries must not be "`the result of the independent action of some third party not before the court.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976)). Further,
[w]hen ... a plaintiff's asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed [than when the plaintiff is the *1104 subject of the government's regulation]. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inactionand perhaps on the response of others as well.
Lujan, 504 U.S. at 562, 112 S. Ct. 2130 (emphasis in original); see also G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893, 899-900 (9th Cir.1998) (same). Thus, in order to demonstrate causation, plaintiffs must show that the alleged harms flow directly from the state defendants' actions.
1. Count II: Governor, Commission, and Director
With respect to count II of the complaint, plaintiffs' claim against the Governor satisfies the causation requirement because the Governor approved the compacts that gave rise to the plaintiffs' injuries. (Complaint at ¶¶ 23, 79). It is not material to the causation analysis that Governor Davis does not have ongoing responsibilities under the compacts, once approved. It is enough that his past approval of the compacts caused the plaintiffs' alleged injuries.
Plaintiffs have failed, however, to adequately respond to the state defendants' argument that neither the Director nor the Commission have duties that caused class III tribal gaming. (St. Defs.' Motion for Summary Judgment at 12). Without addressing the issue of causation, plaintiffs' argue only that there is redressability because an injunction preventing the Director and the Commission from renewing their determinations of suitability for persons working in or with the casinos would hamper the casinos' ability to operate. Because causation and redressability are frequently duplicative of one another, plaintiffs presumably hope that in establishing redressability, they will also establish causation.
Causation and redressability, however, are not always two sides of the same coin. "Despite ... similarities, ... each inquiry has its own emphasis. Causation remains inherently historical; redressability quintessentially predictive." Freedom Republicans, Inc. v. Federal Election Comm'n, 13 F.3d 412, 418 (D.C.Cir.1994); see also Allen v. Wright, 468 U.S. 737, 753 n. 19, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984) (noting differences between causation and redressability). Here, even if the plaintiffs established redressability, their predictions about the impact of an injunction on the Director and the Commission would not establish an historical connection between the actions of the Director and the Commission, and the plaintiffs' injuries.
As to redressability, plaintiffs rely principally on §§ 6.4.4(b), 6.4.5, 6.4.6, of the compacts which, subject to certain exceptions, prohibit persons from working in or with casinos, or from financing them, if they had an application for a determination of suitability denied by the State Gaming Agency. (Pls.' Reply at 68; Pls.' Reply to St. Defs.' SUF at ¶ 23). These provisions might suggest that the State Gaming Agency is responsible for licensing most persons who work in or with Indian casinos. If true, this might satisfy the causation requirement because without the Director and the Commission fulfilling their licensing duties, tribal gaming might not have been possible.
Yet, a closer reading of the compacts reveals that the licensing responsibilities of the State Gaming Agency are relatively minor. Rather, the Tribal Gaming Agency has primary responsibility for issuing licenses to virtually every person who works in or with Indian casinos.[27] (Compact *1105 § 6.4.1). Sections 6.4.4(b), 6.4.5, and 6.4.6, of the compacts merely prohibit the Tribal Gaming Agency from licensing persons who have had determinations of suitability denied by the State Gaming Agency, but they do not require persons working in or with tribal casinos to apply for licenses from the State Gaming Agency.[28] Thus, even if the licensing of such persons satisfied the causation requirement, the compacts themselves demonstrate that it is the actions of the Tribal Gaming Agency, and not the State Gaming Agency, that are fairly traceable to the plaintiffs' injuries.
Finally, even if they had established causation, plaintiffs have not demonstrated redressability. An injunction to prevent the State Gaming Agency from issuing or renewing determinations of suitability would do little to hamper the casinos' ability to operate because virtually all persons receive both their initial licenses and license renewals from the Tribal Gaming Agency.
2. Count IV: Attorney General, Director, Commission and Penal Code Enforcement
The state defendants offer two arguments as to why there is no causation with respect to count IV of the complaint which seeks to enjoin the Attorney General, the Director, and the Commission from enforcing Penal Code §§ 330, 330a, 330b, the state criminal law provisions that prevent the plaintiffs from offering class III gaming. First, the state defendants argue that there is no causal connection between the Attorney General and the alleged harm, class III gaming by Indian Tribes. (St. Defs.' Motion for Summary Judgment at 12-13). This argument, however, incorrectly treats the alleged harm under count IV as class III gaming by Tribes in violation of IGRA and the Equal Protection Clause, when the actual harm alleged here is the inequitable application of the Penal Code provisions to the plaintiffs thereby preventing them from offering class III gaming. (Complaint at 32-33). If the plaintiffs' allegations are correct, then they are entitled to seek this relief because the equal protection violation may be remedied either by prohibiting class III gaming as to every one, or by permitting it as to every one.[29]
The state defendants next argue that there is no causation because none of the individuals named in count IV, the Attorney General, the Director, and the Commission, has authority to prevent all enforcement of the Penal Code provisions, for example, by a District Attorney. (St. Defs.' Motion for Summary Judgment at *1106 13). This argument confuses causation analysis with redressability.[30] The question is not whether these defendants can prevent enforcement of the Penal Code provisions. Rather, the causation question is whether the alleged injurythe threatened or actual enforcement of the Penal Code provisions against the plaintiffs such that they are unable to offer the same class III gaming offered by the tribesis fairly traceable to the state defendants. The history of letters written by the Attorney General and the Director to the plaintiffs and other California card clubs, as well as their interaction with local law enforcement officials adequately satisfies the causation requirement. "Here, there has clearly been a specific threat of prosecution ... [and] such an express threat instills a fear of criminal prosecution that cannot be said to be `imaginary or wholly speculative.'" Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir.1999).
Specifically, in 1988, then Attorney General Van De Kamp and the Manager of the Gaming Registration Program wrote to Artichoke Joe's stating that if Artichoke Joe's offered a game called "Texas holdem," it would be in violation of Cal.Penal Code § 330 and "administrative action will be taken against [its] registration." (Van de Kamp, Watson Letter, Exh. O to Pls.' Motion). The letter was also sent to local law enforcement officials. (Id.) Similarly, in 1989, Attorney General Van de Kamp and the Director of the Division of Law Enforcement sent a notice to all "California Card Club Owners," a category that includes several of the plaintiffs, stating that if they offered "percentage games," they would be in "violation of the Penal Code and the Gaming Registration Act which may result in administrative action on the part of the State Gaming Registration Program as well as possible criminal prosecution." (Van de Kamp, Clemens Letter, Exh. P to Pls.' Motion). Another letter that year addressed to "California Card Club Owners" again warned of administrative action and "possible criminal prosecution" if they offered "jackpot poker." (Van de Kamp, Clemens Letter, Exh. Q to Pls.' Motion). In 1997, Attorney General Lungren and the Manager of the Office of Gaming Registration notified all card club owners that percentage card games are illegal. (Van de Kamp, Letter Exh. R to Pls.' Motion). The letter was also sent to "All Affected Law Enforcement Agencies," and it stated that the Attorney General was requesting that "they monitor compliance to ensure that all gaming clubs are charging the proper fees of their patrons." (Id.)
Moreover, Attorney General Lockyer and the current Director of the Division of Gambling Control, Harlan Goodson, have published several law enforcement advisories on issues related to gambling. One advisory, sent to "All Police Chiefs and Sheriffs," described "Tab Force," an illegal bingo operation. (Tab Force Advisory, Exh. S to Pls.' Motion). The letter noted that although the Division of Gambling Control lacked jurisdiction over bingo operations, it could investigate suspected violations of state gambling laws and provide advice to local law enforcement agencies for use in the regulation of bingo. (Id.) The letter specifically advised law enforcement agencies that "Tab Force constitutes an unlawful gambling device within the meaning of sections 330b and 330.1 of the Penal Code." (Id.) In other advisories, the *1107 Attorney General and the Director discussed what constitutes a "Gaming Activity," the need for card clubs to report to the Division of Gambling Control the forms of gambling offered by the clubs, and the legality of "Jackpot Poker." (Exh. N to Pls.' Motion). On at least one occasion in 1998, the San Bruno District Attorney wrote to the Director to inquire about the legality of a specific gaming practice and whether it constituted an illegal percentage game. (Exh. T to Pls.' Motion). The District Attorney's letter specifically stated that Artichoke Joe's had requested an opinion on the game and that the District Attorney was seeking the opinion of the Division of Gaming Control because "[w]e need to have a uniform policy in the state in order that card clubs can have a level playing field upon which to conduct their games." (Id.)
As in Culinary Workers Union, Local 226, where the Ninth Circuit found a case or controversy because the Attorney General had written a letter specifically threatening to cause the statute to be enforced, the Attorney General and the Director have an unambiguous record of warning clubs of potential criminal prosecution and administrative action if they violate Penal Code provisions prohibiting class III gaming. They also have taken the lead in setting statewide policy with respect to gambling. Thus, the threat of criminal prosecution under the Penal Code provisions by these defendants, as well as administrative action, is not "`imaginary, speculative or chimerical.'" Snoeck v. Brussa, 153 F.3d 984, 987 (9th Cir.1998) (quoting Shell Oil Co. v. Noel, 608 F.2d 208, 213 (1st Cir.1979)). For these reasons, the plaintiffs have satisfied the Article III causation requirement as to the Attorney General and the Director.
The plaintiffs have failed, however, to provide evidence demonstrating that the threat of enforcement of the Penal Code provisions is fairly traceable to the Commission. None of the documents provided by the plaintiffs bears the names of any of the members of the Commission. Thus, although the Commission may well be empowered to revoke plaintiffs' gaming licenses if they violate the Penal Code provisions, the plaintiffs have done nothing more than restate their original allegations to this effect. This is insufficient to survive a motion for summary judgment. Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 700 (9th Cir.1992) ("At the summary judgment stage, the plaintiff must set forth specific facts, rather than mere allegations, that if true would suffice to establish standing.").
In summary, as to causation, the court finds that with respect to count II, plaintiffs have satisfied the causation requirement as to the Governor, but not the Director or the Commission. With respect to count IV, plaintiffs have satisfied the causation element as to the Attorney General and the Director, but not the Commission.[31]
C. Redressability: Governor and Count II
To establish redressability, plaintiffs must show that it is "likely, as opposed to merely speculative that the injury will be redressed by a favorable decision." Bernhardt v. County of Los Angeles, 279 F.3d 862, 869 (9th Cir.2002). A "claim may be too speculative if it can be redressed only through `the unfettered choices made by independent actors not *1108 before the court.'" Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). However, a plaintiff can still satisfy the redressability requirement in such a case by meeting "the burden ... to adduce facts showing that those choices have been or will be made in such manner as to ... permit redressability of injury." Lujan, 504 U.S. at 562, 112 S. Ct. 2130. Thus, in Franklin v. Massachusetts, 505 U.S. 788, 112 S. Ct. 2767, 120 L. Ed. 2d 636 (1992), decided less than two weeks after Lujan, the Court held that the plaintiffs satisfied redressability in a suit brought against the Secretary of Commerce to require her to reallocate the apportionment of overseas military personnel in the 1990 census, even though the President would make a final determination on the census. A plurality of the Court held that declaratory relief against the Secretary would redress the plaintiffs' injuries because "she has an interest in litigating [the census's] accuracy ... [and] it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination." Id. at 803, 112 S. Ct. 2767. Therefore, although redressability depended at least in part on the actions of third parties, the Court was satisfied that the third parties would follow and enforce the law thus making redressability likely.[32]
As to count II and the IGRA and equal protection claims on the existing compacts, the state defendants contend that redressability is too speculative to support standing because the tribes are not parties to the suit and a decision in the plaintiffs' favor would, therefore, not be binding on them. (St. Defs.' Motion for Summary Judgment at 13). Moreover, they argue that if the court invalidates the compacts and Proposition 1A, the State would lose its power to stop any continued class III gaming because, in the absence of a valid IGRA-sanctioned compact, 18 U.S.C. § 1166 gives the federal government exclusive enforcement authority over Indian gaming. (Id. at 13-14). See United States v. E.C. Investments, Inc., 77 F.3d 327, 330 (9th Cir.1996) ("Section 1166(d) grants the United States `exclusive jurisdiction over criminal prosecutions of violations of State gambling laws that are made applicable under this section to Indian country.'"). Thus, the state defendants contend that if the plaintiffs prevail on the merits, the state defendants will be powerless to stop any illegal Indian gaming.
The state defendants' arguments are misplaced for several reasons. First, the plaintiffs do not need to prove a negative, namely that the tribes would not engage in illegal gaming in order to demonstrate redressability. If plaintiffs had to "negate ... speculative and hypothetical possibilities . . . in order to demonstrate the likely effectiveness of judicial relief," they would rarely ever be able to establish standing. Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 73, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978).
*1109 Second, even if the tribes were inclined to violate IGRA and state penal code prohibitions, there is no reason to assume that the federal government would shirk its enforcement responsibilities under 18 U.S.C. § 1166 by countenancing illegal class III gaming by Indian tribes. Thus, although redressability may depend, at least in part, on the actions of third parties, this case more closely resembles Franklin than it does Lujan. Indeed, unlike in Lujan where it was unclear whether outside agencies would be bound by the Secretary of the Interior's interpretation to require consultation for international projects, a ruling that invalidates the compacts and Proposition 1A would conclusively establish the illegality of any continued class III gaming by Indian tribes. Lujan, 504 U.S. at 555, 112 S. Ct. 2130. The sole contingency, therefore, would be whether the federal authorities responsible for prosecuting illegal gaming would do so, and, as in Franklin, Made in the USA, and E.C., the court is entitled to expect that they will follow the law.
Because "[p]laintiffs need not demonstrate that there is a `guarantee' that their injuries will be redressed by a favorable decision," it is likely, and not merely speculative, that a declaratory judgment invalidating the existing compacts and Proposition 1A would redress the plaintiffs' injuries. Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir.1998); see also Competitive Enter. Inst. v. National Highway Traffic Safety Admin., 901 F.2d 107, 117-18 (D.C.Cir. 1990) ("Petitioners need not prove that granting the requested relief is certain to redress their injury, especially where some uncertainty is inevitable.").
Therefore, the court concludes that the plaintiffs have demonstrated that a favorable ruling would likely redress their alleged injuries.
III. Ex Parte Young[33]
The Ex parte Young exception to the Eleventh Amendment permits suits for prospective declaratory or injunctive relief if suit is brought against a state official acting in an official capacity. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). The "obvious fiction" of Ex parte Young, however, only stretches so far and is subject to several constraints. Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 270, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997).[34] For example, Young may not be *1110 invoked to provide declaratory relief against a state official for a wholly past violation of federal law, Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371 (1985), unless accompanied by an ongoing violation of federal law. Papasan v. Allain, 478 U.S. 265, 282, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). Another important limit on Young is the causation requirement. As the Court explained in Young, not every state officer is subject to suit simply by virtue of being a state officer. Rather, the "officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party." Ex parte Young, 209 U.S. at 157, 28 S. Ct. 441. Further, the "connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Los Angeles County Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). However, a plaintiff's failure to link a state officer's actions to a specific enforcement proceeding will not preclude a Young suit if the conduct does not generally give rise to enforcement proceedings, and the state officer is shown to have a direct connection to the alleged harm. Compare Snoeck v. Brussa, 153 F.3d 984, 987 (9th Cir.1998) (Nevada Commission on Judicial Discipline was not a proper defendant under Young because it lacked a direct connection to enforcement proceedings where challenged conduct included potential contempt of court that could only be imposed by Nevada Supreme Court), with Los Angeles County Bar Ass'n, 979 F.2d at 704 (Governor and Secretary of State were proper defendants under Young, notwithstanding absence of their direct connection to enforcement proceedings, because the challenged conduct did not give rise to such proceedings and they had a direct connection to the alleged harm).
A. Count II: Existing Compacts as to Governor, Director, and Commission
The Governor is a proper party subject to suit under the Young doctrine because the plaintiffs' claims are "not based on any general duty to enforce state law." Id. Rather, the Governor is alleged to have "a specific connection to the challenged statute." Id. Indeed, for the same reasons that the Governor is claimed to have caused the plaintiffs' alleged injuries for purposes of Article III standing, he is also a proper defendant under Young: The Governor negotiated and approved the compacts that give rise to the plaintiffs' alleged injuries. Culinary Workers Union, Local 226, 200 F.3d at 619 (applying Article III causation analysis to Young); Deida v. City of Milwaukee, 192 F. Supp. 2d 899, 916-17 (E.D.Wis.2002) (causal connection requirement under Young "closely overlap[s] with the causation and redressability inquiries for standing"). If the plaintiffs' allegations are correct, the Governor violated federal law IGRA and the Equal Protection Clause his actions are ultra vires, and he is subject to suit under Young.
Moreover, although the Governor's conduct that gave rise to the claimed violations of federal law has already occurred, *1111 declaratory relief remains an appropriate remedy under Young because the plaintiffs allege ongoing violations of federal law due to the Governor's approval of the compacts. In Papasan the Court addressed the viability of Young in actions for declaratory relief based on past conduct that gives rise to an ongoing violation. The plaintiffs challenged Mississippi's system of funding public schools in areas that had received federal school land grants. The lands had long since been sold by the State, and a substitute appropriation made, but the schools in areas where the land had been sold received less money for their schools from the appropriation than they would have if the lands had been retained. The plaintiffs alleged that Mississippi's past actions in selling the lands caused the present disparity in school funding that violated the state's trust responsibilities and the Equal Protection Clause. While finding that the alleged trust violation was the kind of wholly past violation and request for restitution that would not survive the Eleventh Amendment, the Court agreed that the Equal Protection claims fell within Young: "This alleged ongoing constitutional violation the unequal distribution by the State of the benefits of the State's school landsis precisely the type of continuing violation for which a remedy may permissibly be fashioned under Young." Papasan, 478 U.S. at 282, 106 S. Ct. 2932.
As in Papasan, the plaintiffs also allege ongoing violations of federal law. They argue that the compacts now in effect violate IGRA and the Equal Protection Clause and place them at a disadvantage. The plaintiffs' alleged injuries from their inability to compete continue until the compacts come to an end, which might not be until 2020. (Compact at § 11.2.1). Thus, as in Papasan, Young applies because the Governor's past approval of the compacts also causes ongoing claimed violations of federal law that presently harm the plaintiffs. Papasan, 478 U.S. at 282, 106 S. Ct. 2932 ("the essence of the equal protection allegation is the present disparity in the distribution of the benefits of state-held assets and not the past actions of the State").
B. Count IV: Penal Code Enforcement and Attorney General, Director, and Commission
Plaintiffs may also rely on the Young doctrine to pursue their claims against the Attorney General and the Director of the Division of Gambling Control to enjoin enforcement of the Penal Code provisions. For the same reasons that the claim against the Attorney General and the Director satisfies the Article III causation requirement, the claim also meets the causal connection requirement under Young: The Attorney General and the Director have repeatedly warned plaintiffs not to violate the relevant Penal Code provisions barring Las Vegas style gambling. Thus, unlike in Long v. Van de Kamp, 961 F.2d 151 (9th Cir.1992) and Southern Pacific Transp. Co. v. Brown, 651 F.2d 613 (9th Cir.1980), the Attorney General and the Director are not being sued solely because they have general supervisory responsibilities to enforce state law. To the contrary, as in Culinary Workers Union, Local 226, they have made specific warnings of criminal prosecution and administrative action. Therefore, the Attorney General and the Director have a sufficient causal connection to the enforcement of the statute for purposes of Young.[35]
*1112 Thus, the court concludes that as to count II, plaintiffs may bring an action under Ex parte Young against the Governor. As to count IV, plaintiffs may bring an Ex parte Young suit against the Attorney General and the Director.
IV. Administrative Procedure Act[36]
The federal defendants pose the next series of jurisdictional questions by challenging plaintiffs' standing and the availability of judicial review under the APA. The APA creates a cause of action for persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, except to the extent the relevant statute "preclude[s] judicial review" or the agency action "is committed to agency discretion." 5 U.S.C. §§ 701(a)(1), (2). The federal defendants argue that in the case of IGRA and the Johnson Act, both §§ 701(a)(1) and (2) apply to preclude judicial review of the plaintiffs' claims under the APA. The federal defendants also contend that the plaintiffs lack standing to sue under § 702 of the APA because they are not within the zone of interests sought to be protected by IGRA and the Johnson Act.
A. Section 701(a)(1)
The APA creates a "right of action" to challenge final agency action that is presumptively available even without "[a] separate indication of congressional intent to make agency action reviewable under the APA." Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 n. 4, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986). Because of this "strong presumption," Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 106 S. Ct. 2133, 90 L. Ed. 2d 623 (1986), the court may find that IGRA and the Johnson Act "preclude judicial review" according to § 701(a)(1) only if there is "clear and convincing evidence" that Congress intended to foreclose the availability of an APA remedy. Block v. Community Nutrition Inst., 467 U.S. 340, 348, 350, 104 S. Ct. 2450, 81 L. Ed. 2d 270 (1984). The term "clear and convincing evidence," however, is something of a misnomer since it does not refer to a quantum of evidence "in the strict evidentiary sense." Id. at 350, 104 S. Ct. 2450. "Rather, the Court has found the standard met, and the presumption favoring judicial review overcome, whenever the congressional intent to preclude judicial review is `fairly discernible in the statutory scheme.'"[37]Id. at 351, 104 S. Ct. 2450 (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970)). Specifically, the court should find the necessary intent to preclude review if review would permit plaintiffs to "evade the statutorily envisioned review mechanisms in favor of those established by the APA." Overton Power Dist. No. 5 v. O'Leary, 73 F.3d 253, 256 (9th Cir.1996).
There is nothing in the relevant structure of IGRA or the Johnson Act to suggest that Congress intended to preclude the type of APA review sought here *1113 by the plaintiffs. Unlike Community Nutrition Institute where the availability of an APA cause of action for milk consumers would have undermined detailed procedures milk processors had to follow in order to challenge milk prices under the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq., allowing plaintiffs' APA claims will not frustrate the regulatory structure of either IGRA or the Johnson Act.[38] The federal defendants are correct that IGRA contemplates a multitude of specific causes of action that may be brought by specified entities or persons. See Florida v. Seminole Tribe of Florida, 181 F.3d 1237, 1248 (1999) (listing causes of action created by IGRA including 25 U.S.C. § 2710(d)(7)(A)(ii) (authorizing state or tribal suit to enjoin class III gaming conducted in violation of compact); 25 U.S.C. § 2710(d)(7)(A)(iii) (authorizing suit by Secretary of Interior to enforce procedures for conducting class III gaming); 25 U.S.C. § 2711(d) (authorizing tribal suit to compel Chairman of the NIGC either to approve or to disapprove management contract); 25 U.S.C. § 2713(a)(2), (b)(2) (creating right to hearing before NIGC regarding fine imposed or temporary closure ordered by Chairman); 25 U.S.C. §§ 2713(c), 2714 (authorizing appeal to district court of NIGC fines, permanent closure orders, and certain other decisions)). But the inclusion of remedies in IGRA for specific entities or persons only supports an inference that Congress intended to preclude others from bringing the same kind of claims under the APA. As the Court observed in Community Nutrition Institute, 467 U.S. at 349, 104 S. Ct. 2450, "when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly concluded."
Thus, the federal defendants' implicit reliance on the legal maxim expressio unius est exclusio alteriusthe expression of one implies the exclusion of othersto argue that the inclusion of specific remedies for some parties impliedly precludes all other parties and all other APA claims is not warranted. (Fed. Defs.' Motion at 33-35). The starting point of preclusion analysis is "the strong presumption that Congress intends judicial review of administrative action." Bowen, 476 U.S. at 670, 106 S. Ct. 2133. This presumption is inconsistent with the federal defendants' reliance on a robust expressio unius doctrine because it would create the reverse presumption, one against APA review for most statutes.
Nor have the federal defendants demonstrated that the plaintiffs' APA claims would undermine IGRA or the Johnson Act. Noticeably absent from the list of IGRA-created remedies is one that addresses the type of claim brought by the plaintiffsa mechanism for challenging the Secretary's approval of a compact on the basis that the compact violates IGRA.[39] In the absence of an explicit remedy under IGRA, permitting plaintiffs to proceed under the APA would not encourage parties to circumvent statutorily envisioned review *1114 mechanisms, and, therefore, "the general presumption favoring judicial review of administrative action is controlling."[40]Community Nutrition Institute, 467 U.S. at 351, 104 S. Ct. 2450.
For these reasons, the plaintiffs' claims under the APA are not precluded by § 701(a)(1).[41]
B. Section 701(a)(2)
In contrast to the strong presumption that agency action is subject to judicial review under the APA, there is a contrary presumption against judicial review of an agency's decision not to undertake an enforcement action because such decisions are generally committed to agency discretion. Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985) (no APA cause of action to review Food and Drug Administration decision not to take enforcement actions under Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq.). The logic of Chaney is that judicial review of agency decisions not to take enforcement action is generally precluded under § 701(a)(2) because such decisions involve "a complicated balancing of a number of factors which are peculiarly within *1115 [the agency's expertise]" and because "review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Id. at 830, 105 S. Ct. 1649. Section 701(a)(2), however, represents "a very narrow exception" to judicial review of administrative action. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971).
Section 701(a)(2) and Chaney do not apply here for several reasons, not the least of which is that plaintiffs do not challenge an agency's failure to enforce a statute. (Fed. Defs.' Motion at 37-39). Under IGRA, a class III gaming compact is not valid until it is approved by the Secretary of the Interior and published in the Federal Register. See 25 U.S.C. § 2710(d)(3)(B). In this case, the Secretary of the Interior approved California's gaming compacts with the Indian tribes and it is this decision that is the subject of the plaintiffs' APA claim. (Complaint at ¶ 72) ("The approval of the Tribal-State Compacts by the Federal Defendants' predecessors violates IGRA."). Therefore, because the plaintiffs seek review of agency action, as opposed to a discretionary decision to forego enforcement of a statute, neither Chaney nor § 701(a)(2) bars review of the plaintiffs' claims. See Robbins, 780 F.2d at 45 ("Th[e] requirement of an amplified level of discernible standards controlling the agency's discretion is not applied, however, where agency action not analogous to enforcement decisions is involved.").
The federal defendants also present an argument that is a variation on the traditional objection to judicial review under Chaney. The argument is somewhat confusing but seems to go something like this: Because tribes with a compact are not parties to this lawsuit and are not bound by what the court decides, a ruling that the federal defendants' decision to approve the compacts was contrary to law could only be implemented at this point through the discretionary decision of the NIGC to enforce IGRA. (Fed. Defs.' Motion at 37-39). As a matter of APA law, this argument misses the mark because the plaintiffs do not currently seek judicial review of a decision to forego enforcement. Further, the court should not reject the plaintiffs' APA claims based on the assumption that a federal agency might not enforce the law in some future proceeding. See supra pp. 1107-09.
What the federal defendants style as an invocation of the "committed to agency discretion" provision of § 701(a)(2) really amounts to a contention that the plaintiffs lack Article III standing because redressability depends on the discretionary enforcement decisions of a third party and these decisions are not themselves the subject of review under the APA.
The Supreme Court considered, and rejected, a similar argument in Federal Election Comm'n v. Akins 524 U.S. 11, 118 S. Ct. 1777, 141 L. Ed. 2d 10 (1998). In Akins, the plaintiffs were voters who challenged the FEC's conclusion that under the Federal Election Campaign Act of 1971, 2 U.S.C. § 431, the American-Israel Political Action Committee ("AIPAC") was not a "political committee." A contrary determination would have given rise to various recordkeeping and disclosure requirements. The FEC argued that plaintiffs could not establish redressability because even if the Supreme Court reversed its decision, the FEC could still exercise its discretion and decline to pursue an enforcement action against AIPAC. Rejecting this argument the Court held that there was standing, because
those adversely affected by a discretionary agency decision generally have standing to complain that the agency *1116 based its decision upon an improper legal ground. If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's decision and remand the caseeven though the agency ... might later, in the exercise of its lawful discretion, reach the same result for a different reason.[42]
Id. at 24, 118 S. Ct. 1777.
The Court's reasoning in Akins is equally applicable here. A decision that the Secretary of the Interior's approval of California's gaming compacts was contrary to law might result in continued class III gaming on Indian lands that can only be stopped by the NIGC, an agency under the purview of the Secretary of the Interior. 25 U.S.C. § 2704. Under Chaney, the court might be precluded from reviewing a decision of the NIGC to refuse to take steps under IGRA against illegal tribal gaming. However, even were this the case, this future contingency does not destroy redressability for the plaintiffs' claim against the Secretary's approval of gaming compacts. Indeed, Akins demonstrates that "[r]edressability does not require a plaintiff to establish that the defendant agency will actually exercise its discretion in any particular fashion in the future." West Virginia Highlands Conservancy v. Norton, 137 F. Supp. 2d 687, 698 (S.D.W.Va. 2001); see also Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C.Cir.1998) ("The Supreme Court's recent decision in FEC v. Akins, moreover, rejects the possible counter argument that the redressability element of constitutional standing requires a plaintiff to establish that the defendant agency will actually enforce any new binding regulations against the regulated third party."). For these reasons, Chaney and § 701(a)(2) do not apply here to foreclose judicial review of the federal defendants' actions.
C. Section 702-Zone of Interest Test
Section 702 of the APA states that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. The Supreme Court has interpreted § 702 "to impose a prudential standing requirement in addition to the requirement, imposed by Article III of the Constitution, that a plaintiff have suffered a sufficient injury in fact." National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479, 488, 118 S. Ct. 927, 140 L. Ed. 2d 1 (1998)("National Credit Union"). To demonstrate standing under the APA, a plaintiff "must ... show that the interests it seeks to protect are `arguably within the zone of interests to be protected' by the statute in question." Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 445 (9th Cir.1994) (quoting Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970)("Data Processing")).
The Court has indicated that there is no "clear rule for determining when a plaintiff" falls within the zone of interests to be protected by a statute. "[I]n applying the ... test ... we first discern the interests `arguably ... to be protected' by the statutory provision at issue; we then inquire whether the plaintiff's interests affected by the agency action in question are among them." National Credit Union, 522 U.S. at 488, 492, 118 S. Ct. 927. However, "[t]he test is not meant to be especially demanding; *1117 in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff." Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400, 107 S. Ct. 750, 93 L. Ed. 2d 757 (1987). Rather, "APA plaintiffs need only show that their interests fall within the `general policy' of the underlying statute, such that interpretations of the statute's provisions or scope could directly affect them." Graham, 149 F.3d at 1004.
The plaintiffs' interests here are not so "marginally related to or inconsistent with the purposes implicit in the statute" that they lack prudential standing. Clarke, 479 U.S. at 399, 107 S. Ct. 750. The provision of IGRA in question, 25 U.S.C. § 2710(d)(1)(B), states that class III gaming activities are only lawful on Indian lands if such activities are "located in a State that permits such gaming for any purpose by any person, organization, or entity." Interpretation of this statutory language could directly affect plaintiffs' interests because, if plaintiffs' interpretation is correct, either the challenged compacts are invalid or plaintiffs must also be permitted to offer class III gaming. Either outcome directly affects their interests.
Moreover, by requiring that some gaming be permitted by the state as a precondition for a class III tribal gaming compact, § 2710(d)(1)(B), as interpreted by plaintiffs, arguably manifests a desire to foster some degree of competition, and plaintiffs are among the tribes' competitors.[43] The Court has repeatedly held that competitors fall within the zone of interests of provisions that are concerned with competition.[44]See Data Processing, 397 U.S. 150, 90 S. Ct. 827; Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S. Ct. 158, 27 L. Ed. 2d 179 (1970)(per curiam); Investment Co. Inst. v. Camp, 401 U.S. 617, 91 *1118 S.Ct. 1091, 28 L. Ed. 2d 367 (1971); Clarke, 479 U.S. 388, 107 S. Ct. 750; National Credit Union, 522 U.S. 479, 118 S. Ct. 927, 140 L. Ed. 2d 1.
In sum, it is at least arguable that the plaintiffs are among the competitors protected by the language of § 2710(d)(1)(B). Accordingly, they have standing under the APA to challenge the Secretary's action.
V. Failure to Join Indian Tribes as Indispensable Parties
The final argument on the court's jurisdiction comes from amicus curiae California Nations Indian Gaming Association ("CNIGA"). CNIGA argues that the complaint must be dismissed in its entirety because the plaintiffs failed to join California's sixty-one Indian tribes who are necessary and indispensable parties under Fed.R.Civ.P. 19. A two part test applies to motions to dismiss for failure to join necessary and indispensable parties. Washington v. Daley, 173 F.3d 1158, 1167 (9th Cir.1999). First, the court must decide if the tribes are necessary to the suit. If the tribes are necessary, and if they cannot be joined, the court must determine if they are "`indispensable' so that in `equity and good conscience' the suit should be dismissed. The inquiry is a practical one and fact specific, and is designed to avoid the harsh results of rigid application. The moving party has the burden of persuasion in arguing for dismissal." Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990) (citations omitted). Because the tribes' interests are adequately represented by the Secretary, the court denies the motion to dismiss under Rule 19.
First, an absent party is necessary if complete relief is not possible among those already parties to the suit, or if the absent party has a "nonfrivolous claim" to a legally protected interest in the suit. Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir.1992); Fed. R.Civ.P. 19(a)(1), (2). The Ninth Circuit has repeatedly held that "a district court cannot adjudicate an attack on the terms of a negotiated agreement without jurisdiction over the parties to that agreement." Clinton v. Babbitt, 180 F.3d 1081, 1088 (9th Cir.1999) (as party to agreement with United States, complete relief impossible without Hopi Tribe); see also Manybeads v. United States, 209 F.3d 1164, 1165 (9th Cir.2000) (same). With respect to the current compacts, the tribes have legal interests at stake in the litigation since they will lose their compact rights to conduct class III gaming if the plaintiffs prevail. See Washington v. Daley, 173 F.3d at 1167 (holding that Indian tribes were necessary parties in challenge to regulation promulgated by Secretary of Commerce that increased tribes' fishing quota because adverse ruling would terminate tribes' fishing rights).
However, although the tribes can claim a legal interest in this lawsuit, they are not necessary parties because their legal interest can be adequately represented by the Secretary. (Id.) ("As a practical matter, an absent party's ability to protect its interest will not be impaired by its absence from the suit where its interest will be adequately represented by existing parties to the suit."). An existing party may adequately represent the interests of an absent party if (1) the present party will undoubtedly make all of the absent party's arguments, (2) the present party is capable and willing to make the absent party's arguments, and (3) the absent party would not offer any necessary elements that the present parties would neglect. Shermoen, 982 F.2d at 1318. In general, the United States' trust obligations to the Indian tribes, which the Secretary has a statutory duty to protect, 25 U.S.C. § 2710(d)(8)(B)(Secretary may disapprove compact if it violates trust obligations of the United States to Indians), *1119 United States v. Eberhardt, 789 F.2d 1354, 1360 (9th Cir.1986) ("We hold that the general trust statutes in Title 25 do furnish Interior with broad authority to supervise and manage Indian affairs and property commensurate with the trust obligations of the United States."), satisfies the representation criteria and allows it to adequately represent the absent tribes "unless there exists a conflict of interest between the United States and the tribe." Southwest Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1154 (9th Cir.1998). However, for a conflict of interest to preclude a tribe's representation by the Secretary, there must be a "clear potential for inconsistency between the Secretary's obligations to the Tribes and its [other] obligations" that arises "in the context of th[e pending] case." Washington v. Daley, 173 F.3d at 1168-69 (holding that United States could adequately represent tribes' interests because there was no direct conflict between tribes and the United States, or between the tribes themselves).
Amicus curiae CNIGA has not carried its burden of demonstrating an actual conflict of interest in the pending litigation that would prevent the United States from adequately representing California's Indian tribes.[45] "In fact, the Secretary and the Tribes have virtually identical interests in this regard." Id. at 1167-68. The Secretary and California's Tribes agree on the central issue at hand: Exclusive class III gaming compacts for Indian tribes are consistent with IGRA and the Equal Protection Clause. Indeed, even the Indian tribes that have not yet signed class III gaming compacts agree with the Secretary's position in this regard.[46] Thus, CNIGA has "failed to demonstrate how ... a conflict might actually arise in the context of this case." Id. at 1168.
Likewise, CNIGA has not demonstrated that any of the remaining alleged conflicts are likely to arise in the context of this case. Most relate to the United States' exclusive jurisdiction to enforce gaming laws under 18 U.S.C. § 1166. CNIGA, however, fails to explain how pending or past enforcement actions would prevent the Secretary from adequately representing the tribes in a case that does not even remotely bear on the United States' enforcement power. See Southwest Center for Biological Diversity, 150 F.3d at 1154 (reversing district court's decision that United States could not represent tribes due to potential conflict noting that court identified "no argument the United States would not or could not make on the Community's behalf"). Moreover, CNIGA's position supports the improbable conclusion that § 1166 prevents the United States from ever representing tribes in IGRA cases. See Washington v. Daley, 173 F.3d at 1168 (United States could represent Indian tribes notwithstanding its enforcement role under the Fishery Conservation and Management Act, 16 U.S.C. §§ 1858-1860).
CNIGA's final argument is equally unpersuasive. It contends that the United States agreed that the BIA would cease its *1120 acquisition of the San Pablo land in trust for the Lytton Band without an injunction and thereby gained more time to brief this case by trading the Lytton Band's statutory rights to have the BIA proceed unless enjoined. However, CNIGA overlooks that this "strategy" was adopted to better represent the position of the tribes, including the Lytton Band. In any event, future compacts are not part of this case given the court's ruling on standing.
For these reasons, the court finds that CNIGA failed to carry its burden of demonstrating that California's Indian tribes are necessary and indispensable parties.[47]
VI. IGRA[48]
This case presents a novel issue of statutory interpretation. Section 2710(d)(1)(B) allows for class III tribal gaming only if "located in a State that permits such gaming for any purpose by any person, organization, or entity." The issue here is whether, for purposes of IGRA, a state constitutional amendment may "permit" Indian tribes to engage in otherwise prohibited forms of class III gaming, notwithstanding exclusive federal jurisdiction over Indian gaming; and, if so, whether a resulting class III gaming monopoly by tribes with compacts comports with IGRA's "any person, organization, or entity" requirement? Employing the traditional tools of statutory constructionthe statute's plain language governs unless it is ambiguous, legislative history should only be consulted if the plain language is ambiguous or renders a tortured reading of the statute, and statutes benefitting Indian tribes are construed liberally in their favorand in deference to the Secretary's interpretation, the court finds that under Proposition 1A, California lawfully permitted tribes with compacts to offer class III gaming, and that the compacts do not violate IGRA's "any person, organization, or entity" provision. Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250, 1257 (9th Cir.1994) (applying traditional canons of statutory interpretation to IGRA).
A. Does California "Permit" Class III Gaming?
Proposition 1A authorizes the Governor to enter into class III gaming compacts with Indian tribes "in accordance with federal law." Plaintiffs argue that California may not rely on Proposition 1A to "permit" tribes to offer class III gaming because states only acquire jurisdiction over gambling on Indian lands after executing a valid compact under IGRA. (Pls.' Motion at 23-24; Pls.' Reply at 9). According to plaintiffs, this logical conundrum deprives Proposition 1A of "permission" status under § 2710(d)(1)(B) of IGRA. Although not without force, for several reasons, the court is not persuaded by this argument.
To begin with, Proposition 1A unambiguously authorizes the Governor and the State Legislature to conclude class III gaming compacts with Indian tribes subject to the terms of federal law, notwithstanding contrary provisions of state law which generally prohibit such gaming. Proposition 1A explicitly excepts Indian gaming from provisions of state law that *1121 otherwise prohibits slot machines, lottery games, and banking card games. And it authorizes compacts and gaming under these compacts against the backdrop of, or by incorporating, federal law, specifically, IGRA. In this sense, Proposition 1A permits tribal gaming under IGRA. Of course, outside of the context of IGRA, California cannot unilaterally legalize tribal gaming. The issue here, however, is whether it may, for purposes of § 2710(d)(1), "permit" such gaming within the general context of IGRA. This is a question of statutory construction.
A state's affirmative permission to tribes to engage in gaming within the structure of IGRA may not have been on the forefront of what Congress had in mind in enacting IGRA and § 2710(d)(1)(B). But it is a kind of permission that is not foreclosed by the language of IGRA, and fits well within its plain language. In enacting IGRA, Congress employed capacious language to clarify the situations in which it would be lawful for Indian tribes to offer class III gaming. Section 2710(d)(1)(B) reflects this approach. It states that class III gaming activities are lawful on Indian lands only if the activities are "located in a State that permits such gaming for any purpose by any person, organization, or entity." 25 U.S.C. § 2710(d)(1)(B). As discussed in the next section, the "any purpose" "any person" language suggests that this prerequisite is easily met. See infra pp. 1122-23. The Act does not define "permits"; neither placing restrictions on the word nor otherwise limiting its meaning. Section 2710(d)(1)(B) does not say "permits such gaming independently of IGRA for any purpose by any person, organization, or entity." It does not say "permits such gaming for any purpose by any person, organization, or entity other than Indian tribes." And it is precisely because Congress did not write the Act in either of these ways that California, subject to the Secretary's approval, may "permit" class III gaming within the structure of IGRA, even though the permission is not entirely independent of IGRA, and even though IGRA prevents states from unilaterally legalizing tribal gaming. In short, the statute is written broadly, and it is consistent with the co-operative federalism at the heart of IGRA to allow the state to "permit" tribal gaming under the Act by exempting the tribes from state prohibitions on banked gaming and slot machines.[49]
Plaintiffs argue that this construction negates the state permission requirement of § 2710(d)(1)(B) because a state that satisfies the compact requirement, § 2710(d)(1)(C), would also be one that "permits such gaming." See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S. Ct. 2587, 86 L. Ed. 2d 168 (1985) (noting "`the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative'") (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979)). Two courts have held that a compact entered into under § 2710(d)(1)(C), does not satisfy the state permission requirement of § 2710(d)(1)(B). Citizen Band Potawatomi Indian Tribe v. Green, 995 F.2d 179, 181 (10th Cir.1993); American Greyhound Racing, 146 F. Supp. 2d 1012, 1067-69 (D.Ariz.2001).
However, unlike in Green and American Greyhound Racing, California does not *1122 rely on the compacts themselves for the purpose of permitting class III gaming. Separate from the compacts, by constitutional amendment, California specifically exempted Indian tribes from the State's general gambling prohibitions, and granted them permission. Although the vehicle for California's exemption, Proposition 1A, integrates and depends on the successful conclusion of gaming compacts, Proposition 1A is still distinct from the compacts. For all of these reasons, and in deference to the Secretary's interpretation, see infra pp. 1126-27, the court finds that by Proposition 1A, California "permits" class III gaming as required by IGRA.
B. Any Person, Organization, or Entity
Plaintiffs further contend that because California only permits Indian tribes to offer class III gaming activities, it is not a state that "permits such gaming for any purpose by any person, organization, or entity." (Pls.' Motion at 18). 25 U.S.C. § 2710(d)(1)(B). According to the plaintiffs' interpretation of § 2710(d)(1)(B), a state cannot satisfy the "any person, organization, or entity" requirement unless the state "permits such gaming for non-Indians." (Pls.' Motion at 22). Plaintiffs interpret "any" as "every," as opposed to "any one." This argument fails for several reasons.
To begin with, as already noted, the statute's plain language does not support the plaintiffs' reading of the "any person, organization, or entity" requirement. Congress did not say that a state had to permit class III gaming activities for any non-Indian purpose for any non-Indian person, organization, or entity. Instead, as with the word "permits," Congress structured the requirement to provide states and tribes with maximum flexibility to fashion a class III gaming compact.
The failure of the plaintiffs' argument is evident in Congress' use of "any" as a modifier for the class III gaming that a state must permit before a tribe may enter into a compact. The word "any" can mean "every" or "one." However, interpreting "any" in § 2710(d)(1)(B) to mean "every" must be rejected. If IGRA required that a tribe could only enter a compact if located in a state that permitted such activities for every purpose by every person, organization, or entity, no tribe would be allowed to enter into a class III gaming compact because all states impose at least some limits on who can offer gaming and for what purpose. Therefore, § 2710(d)(1)(B) is best understood as allowing class III gaming compacts in states that permit that kind of gaming for at least one purpose, by at least one person, organization, or entity. Because California permits class III gaming by tribes with compacts under Proposition 1A, the State also satisfies § 2710(d)(1)(B)'s "any purpose by any person, organization, or entity" requirement. See American Greyhound Racing, 146 F.Supp.2d at 1067 ("[t]he State must first legalize a game, even if only for tribes, before it can become a compact term").
Finally, plaintiffs contend that this issue is governed by the Ninth Circuit's ruling in Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994). In Rumsey, the court observed that "a state need only allow Indian Tribes to operate games that others can operate, but need not give tribes what others cannot have." Id. at 1258. Rumsey settled the question of whether a state must negotiate class III gaming compacts with Indian tribes when the state does not permit those activities for anyone.[50] The decision *1123 does not address the issue presented herewhether the state may negotiate class III gaming compacts with Indian tribes even if the state does not permit those activities for non-Indians. Plaintiffs' argument that this "is a distinction without a difference," simply restates their position that a state may not affirmatively permit Indian tribes to engage in class III gaming without opening up such gaming to everyone else. Neither the "any person, organization, or entity" requirement nor Rumsey supports the plaintiffs' position.
In short, the court concurs with the Secretary that the exclusive class III gaming compacts, as permitted by Proposition 1A, are within the plain language of IGRA.
C. Legislative History
IGRA's plain language might obviate the need to rely on legislative history. But to the extent that the language of § 2710(d)(1)(B) might be ambiguous, a review of the legislative history tends to support the Secretary's construction of IGRA. See Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 805 (9th Cir.1989) (noting that plain meaning of statute rendered legislative history unnecessary but that legislative history supported plain meaning construction). The legislative history is silent on the precise dispute here concerning the construction of § 2710(d)(1)(B). But it does suggest that Congress had three overriding purposes concerning the relationship between the tribes and the states: (1) provide the state with regulatory authority over class III gaming through the compact procedure; (2) permit the states and tribes a considerable degree of flexibility in negotiating the terms on which class III gaming would occur; and (3) ensure the tribes that the states would not bar class III gaming on Indian land, while at the same time permitting others to engage in such gaming elsewhere in the state. The Secretary's interpretation of § 2710(d)(1)(B), which would allow to California the flexibility to permit class III gaming only on Indian lands, is consistent with these three purposes.
In the five years before IGRA was passed, at least six bills were introduced in Congress for the purpose of regulating Indian gaming and a similar number of hearings were held. By 1987, however, only two such bills were under serious consideration. S. 555, 100th Cong. (1987) and S. 1303, 100th Cong. (1987).[51] Both bills incorporated the "class" approach to regulating Indian gaming present in the final version of IGRA. The primary difference between the two bills was in how they regulated gaming. Under S. 555, a tribe seeking to engage in class III gaming would cede jurisdiction to the state in which its lands were located and the state would then assume primary regulatory responsibility. The bill provided that an Indian tribe could offer a class III gaming activity
otherwise legal within the State where such lands are located ... where the Indian tribe requests the Secretary [of the Interior] to consent to the transfer of all civil and criminal jurisdiction ... pertaining to the licensing and regulation of gaming over the proposed gaming enterprise to the State within which such gaming enterprise is to be located and the Secretary so consents.
S. 555, 100th Cong. § 11(d)(2)(A).
In contrast, under S. 1303, the federal government would have assumed responsibility *1124 for regulating class III gaming, "where such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity." S. 1303, 100th Cong. § 10(b). In order to offer class III gaming, S. 1303 required tribes to adopt a class III ordinance which had to be approved by the Chairman of the National Indian Gaming Commission. After approving a tribe's class III gaming ordinance, the Chairman would "adopt a comprehensive regulatory scheme for such gaming activity ... after consultation with the affected Indian tribe or tribes and with the appropriate officials of the State." Id. § 12(e)(1). Further, S. 1303 specified that "[t]he regulations adopted pursuant to this subsection shall be identical to those provided for the same activity by the State within which such Indian gaming activity is to be conducted which is applicable to a State licensee subsequent to the issuance of such license." Id. § 12(e)(2).
Both S. 555 and S. 1303 met with considerable opposition. States which "[h]istorically ... had the primary responsibility for establishing and enforcing public policies regarding liquor and gambling because these matters have such a particularly localized impact," did not want to cede jurisdiction to regulate tribal gaming within their borders and therefore opposed S. 1303. Gaming Activities on Indian Lands and Reservations: Hearing Before the Senate Select Comm. on Indian Affairs on S. 555 to Regulate Gaming on Indian Lands and S. 1303 to Establish Federal Standards and Regulations for the Conduct of Gaming Activities on Indian Reservations and Lands, For Other Purposes, 100th Cong. 510 (1987) (letter of John Van de Kamp, Attorney General, State of California)(hereinafter "Hearings on S. 555 and S. 1303"). States feared that the federal government might permit tribes to offer forms of gambling otherwise prohibited under state law and opposed by the state, opening the door "for the tribes on the reservation to become an island" where state law would not apply and could not reach. Id. at 80 (statement of Sen. John Melcher, Member, Senate Select Comm. on Indian Affairs). For their part, most Indian tribes opposed S. 555 because it gave the states such extensive regulatory authority.[52]
Faced with a deadlock over whether the states or the federal government would have jurisdiction to regulate class III gaming by Indian tribes, Congress inserted the *1125 compact provision into the final version of S. 555. See 134 Cong. Rec. H8146-01 (daily ed. September 26, 1988) (statement of Rep. Udall) (noting that Congress had been unable to reach earlier compromise due to "conflict between the right of tribal self-government and the desire for State jurisdiction over gaming activity on Indian lands"). The Senate Committee Report that accompanied passage of IGRA explains the role of the compacts in balancing the interests of the states and the tribes:
After lengthy hearings, negotiations, and discussions, the Committee concluded that the use of compacts between tribes and states is the best mechanism to assure that the interests of both sovereign entities are met with respect to the regulation of complex gaming enterprises.... The Committee notes the strong concerns of states that state laws and regulations relating to sophisticated forms of class III gaming be respected on Indian lands where, with few exceptions, such laws and regulations do not now apply. The Committee balanced these concerns against strong tribal opposition to any imposition of State jurisdiction over activities on Indian lands. The Committee concluded that the compact process is a viable mechanism for settling various matters between two equal sovereigns.
S.Rep. No. 100-446, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3083. Therefore, by giving the states a primary role in the regulatory oversight of tribal gaming, while at the same time permitting tribes to sue states that refused to enter into negotiations for class III gaming compacts, the compact provision sought to satisfy both the states' desire to regulate and the tribes' concern that state regulation under S. 555 might preclude all tribal gaming. See S.Rep. No. 100-446, at 14 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3084 ("[T]he issue before the Committee was how best to encourage States to deal fairly with tribes as sovereign governments. The Committee elected, as the least offensive option, to grant tribes the right to sue a State if a compact is not negotiated and chose to apply the good faith standard as the legal barometer for the State's dealings with tribes.").
As to the language in § 2710(d)(1)(B) at issue here, the legislative history is silent. There is no explicit discussion of the "permit" or "any person" formulation in the committee hearings or reports. Perhaps the most direct inference may be drawn from Congress' decision to include the current formulation of § 2710(d)(1)(B) which comes from S. 1303, even though S. 555 was the basis for most of the final version of IGRA. The comparable provision in S. 555 permitted class III tribal gaming where "otherwise legal within the State where such lands are located." This formulation would seem to block a state from permitting tribal gaming while otherwise prohibiting gaming by others. But this language was not carried over into IGRA, perhaps suggesting that Congress did not intend to so limit the states or the tribes.[53]
It is fair to conclude from the legislative history that Congress was not concerned about the situation in which a state and the tribes together affirmatively sought to foster exclusive class III gaming on tribal lands. This was not the context in which *1126 Congress acted; rather, Congress faced a situation in which the states were insisting on their right to control or prohibit and the tribes were insisting on their right to be free from state regulation. While IGRA's legislative history does not suggest that Congress specifically contemplated a State's support of a monopoly for tribal gaming, Proposition 1A and the compacts here are nevertheless consistent with the overarching concerns that led to the IGRA compromise: The State gains flexible regulatory authority while class III gaming by the tribes is protected from discrimination by the State.
Further, California's decision to "permit" tribes to operate class III gaming facilities within the context of IGRA and the compacts, while denying those rights to other persons, organizations, and entities, is a policy judgment, which whether one agrees with it or not, does not conflict with IGRA's goal of maintaining state authority while protecting Indian gaming from discrimination. By contrast, to interpret IGRA to require the states to chose between no class III gaming anywhere and class III gaming everywhere would not further any of IGRA's goals and would limit the states' authority and flexibility without any resulting benefit to the tribes.
Finally, passing references in the legislative history to achieving "a fair balancing of competitive economic interests" and to developing a uniform "regulatory and jurisdictional pattern" provide little support to plaintiffs' position. Congress' expressed concern about competition was to ensure that the tribes, not other parties, could compete with any group operating under a state gambling license. See S.Rep. No. 100-446, at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3083 ("It is the Committee's intent that the compact requirement for class III not be used as a justification by a State for excluding Indian tribes from such gaming or for the protection of other State-licensed gaming enterprises from free market competition with Indian tribes."). Further, the discussion of consistent regulation was simply part of Congress' goal of extending state regulatory authority to Indian lands so that these lands would not become islands free from state oversight.[54]
D. Deference to the Secretary's Interpretation
In interpreting IGRA the court has given substantial deference to the Secretary's understanding of IGRA as expressed in her approval of the compacts. This deference is appropriate under Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-45, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). First, there is no explicit direction from Congress as to whether a state may "permit" tribal gaming within the context of IGRA, or whether a resulting class III gaming monopoly violates IGRA. Id. at 843, 104 S. Ct. 2778. Congress was understandably not focused on the situation in which the states and tribes agreed to exclusive *1127 class III Indian gaming rights. Yang v. I.N.S., 79 F.3d 932, 935 (9th Cir. 1996) (applying traditional methods of statutory interpretation to determine if Congress spoke to an issue under Chevron step one). Therefore, because "Congress has left a gap for the administrative agency to fill, [the court] proceed[s] to step two" of Chevron. Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1173 (9th Cir.1999)
Second, for the reasons already stated, the Secretary's interpretation of IGRA is reasonable. Chevron, 467 U.S. at 843, 104 S. Ct. 2778. The Secretary's interpretation is consistent with the statute's language and it complements IGRA's legislative history by balancing state and tribal sovereignty and interests. Moreover, although the Ninth Circuit gives priority to Chevron over the rule of interpretation that statutes enacted for the benefit of Indian tribes should "be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit," the two doctrines here point to the same outcome. Navajo Nation v. Dep't of Health and Human Serv., 285 F.3d 864, 870 (9th Cir. 2002) (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766, 105 S. Ct. 2399, 85 L. Ed. 2d 753 (1985)); Williams v. Babbitt, 115 F.3d 657, 663 n. 5 (9th Cir. 1997).
Also, although the Secretary's interpretation came in the form of a letter, and subsequent publication of approval in the Federal Register, Chevron deference still applies because the Secretary's letter "was not an `opinion letter,' but, rather, a final, albeit informal, adjudication on the merits." Navajo Nation, 285 F.3d at 871. Indeed, as in Navajo Nation where the Ninth Circuit held that a similar letter constituted an informal adjudication that warranted Chevron deference, "Congress delegated to the Secretary the authority to adjudicate in this manner." 25 U.S.C. § 2710(d)(8)(A), (D) (authorizing Secretary to approve compact and requiring publication of approval in Federal Register). Moreover, the Secretary's letter explained the basis for her approval and why she found that the compacts were consistent with IGRA and equal protection.[55] (See Letter from Kevin Gover, May 5, 2000, Exh. B to Complaint).
The Secretary is responsible for administering IGRA and reviewing class III gaming compacts, and her interpretation of the statute is entitled to a degree of deference.[56]
*1128 E. Conclusion
Although the issue is not free from doubt, because of the statutory presumption in favor of Indian tribes, the deference owed to the Secretary's interpretation, and the Act's language and legislative history, the court concludes that California's compacts with the Indian tribes do not violate IGRA.[57]
VII. Equal Protection
The final issue is whether California's compacts, and their approval by the Secretary, violate the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments.[58] Plaintiffs argue that the compacts and Proposition 1A should be evaluated under the strict scrutiny standard, rather than the modest, deferential standard of review from Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). (Pls.' Motion at 35-49). Further, plaintiffs argue that even if the Mancari standard applies, the compacts and Proposition 1A violate equal protection because they are not rationally related to the furtherance of Congress' trust obligation to Indian tribes and to uniquely Indian interests. (Id. at 49-54). For the following reasons, the court concludes that Mancari does apply, and that the compacts are rationally related to Congress' trust obligation.
In Morton v. Mancari, the Supreme Court upheld a statutory hiring preference for Indians in the Bureau of Indian Affairs ("BIA"). 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). The Court noted that Indian tribes have a unique status under federal law as quasi-sovereign entities and that laws enacted on their behalf reflect political rather than racial classifications. Id. at 553-54, 94 S. Ct. 2474. Consequently, the Court applied a deferential standard of review and upheld the BIA hiring preference noting that it was "reasonably and directly related to a legitimate, nonracially based goal," tribal self-government. Id. at 554, 94 S. Ct. 2474. The Court tied its equal protection analysis to the tribes' special status and the federal government's special trust obligation: "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." Id. at 555, 94 S. Ct. 2474.
In applying Mancari, the Ninth Circuit has recognized that the Mancari standard and Congress' trust obligations apply to interests much broader than tribal self-government including the "right of individual *1129 Indian profit-making businesses to be free from state taxation; [the] right to fish; [and] imposition of federal rather than state law on Indians committing crimes on reservations." Alaska Chapter, 694 F.2d at 1168 (internal citations omitted).[59]
California's compacts with the tribes are rationally related to the furtherance of Congress' unique obligation to the tribes. IGRA was enacted for the purposes of "promoting tribal economic development, self-sufficiency, and strong tribal governments" as well as shielding tribal gaming from organized crime. 25 U.S.C. § 2702(1), (2). The compacts expressly incorporate these purposes, (Compact at Preamble F ("The State has a legitimate interest in promoting the purposes of IGRA.")), and similarly state that class III gaming constitutes a way to "enable the Tribe to develop self-sufficiency, promote tribal economic development, and generate jobs and revenues to support the Tribe's government and governmental services and programs." (Compact at 1.0(b)). Further, the compacts note that "[t]he exclusive rights that Indian tribes in California, including the Tribe, will enjoy under this Compact create a unique opportunity for the Tribe to operate its Gaming Facility in an economic environment free of competition from ... Class III gaming ... on non-Indian lands in California." (Id. at Preamble E).
Therefore, the compacts, entered into under IGRA, are designed to encourage tribes to become politically and economically self-sufficient while preserving tribal sovereignty and mitigating organized crime, all of which fit within the broad mandate of the federal government's trust obligation. See Alaska Chapter, 694 F.2d at 1170 ("Encouraging and assisting Indian-owned businesses helps develop such leadership and furthers the government's trust obligation to help the Indians develop economic self-sufficiency."); St. Paul Intertribal Housing Bd. v. Reynolds, 564 F. Supp. 1408, 1413 (D.Minn.1983) (noting broad scope of federal trust obligation to Indian tribes). These objectives are "fundamental to the federal government's trust obligation with tribal Native Americans." Peyote Way Church, 922 F.2d at 1216.[60] Moreover, permitting tribes with compacts to exercise exclusive class III gaming rights on Indian land is rationally related to these objectives and, therefore, to the furtherance of Congress' trust obligations to the tribes. See Bd. of Comm'rs of Creek County v. Seber, 318 U.S. 705, 63 S. Ct. 920, 87 L. Ed. 1094 (1943) (upholding exclusive *1130 tax immunity for certain Indians). There is no dispute that by permitting tribes to exercise gaming rights on Indian land free from non-tribal competition, they are provided with a valuable economic benefit. Further, it was rational for Congress to allow the states to grant a tribal preference with respect to gaming, as opposed to some other economic or entertainment activity, because at least some tribes had already been engaged in gaming operations for the purpose of raising revenue prior to enactment of IGRA.[61] 25 U.S.C. § 2701(1); American Greyhound Racing, 146 F.Supp.2d at 1075. For these reasons, the Secretary's approval of the compacts was rationally related to the furtherance of Congress' trust obligations and does not violate equal protection. California's negotiation and approval of the compacts, under an explicit delegation of congressional authority, is similarly within Congress' trust obligations and is consistent with equal protection.[62]See Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 501, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979) (state action in preference of Indian tribes falls under Mancari when passed "under explicit authority granted by Congress").
Plaintiffs argue that strict scrutiny must apply because (1) Mancari was overruled in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995); (2) Mancari's deferential standard of review only applies to federal action while the compacts negotiated by California exceed the scope of Congress' delegation to the states; and (3) the compacts are racial classifications because they primarily benefit individual Indians. These contentions fail.
First, although there has been some comment in the case law about the impact of Adarand on Mancari, the Supreme Court did not overturn Mancari, and the majority opinion in Adarand never even mentions Mancari by name. See id. at 244, 115 S. Ct. 2097. No lower court has held that Mancari was overruled by Adarand. Therefore, until a higher court finds that Mancari has been overturned by the Supreme Court, it is controlling. See Rice v. Cayetano, 146 F.3d 1075, 1081 n. 17 (9th Cir.1998) (rev'd on other grounds Rice v. Cayetano, 528 U.S. 495, 120 S. Ct. 1044, 145 L. Ed. 2d 1007 (2000)); American Greyhound Racing, 146 F.Supp.2d at 1077 ("In these circumstances, the court must follow Mancari as the directly controlling case, for the Supreme Court reserves to itself the prerogative to find its opinions implicitly overruled by changing doctrine."). Moreover, while the regulation addressed in Adarand extended preferences to "Native Americans," *1131 Adarand, 515 U.S. at 205, 115 S. Ct. 2097, both IGRA and the compacts address themselves to Indian tribes as sovereign entities. 25 U.S.C. § 2710(d)(1)(C) (noting that class III gaming requires a compact entered into by an Indian tribe); Compact at 1 (noting that compact is entered into between the State of California and a "federally-recognized sovereign Indian tribe"). For these reasons, IGRA and the compacts here do not implicate Adarand's requirement of strict scrutiny for all racial classifications.
Plaintiffs' second argument is that strict scrutiny applies because California's compacts violate IGRA and states may only avail themselves of the Mancari standard when they act "under explicit authority granted by Congress."[63]Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 501, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979). Because the compacts provide for assessments in excess of "such amounts as are necessary to defray the costs of regulating such activity," 25 U.S.C. § 2710(d)(3)(C)(iii), plaintiffs argue that California exceeded the authority delegated to the states in IGRA and, therefore, the exclusive class III gaming rights for tribes must survive strict scrutiny. (Pls.' Motion at 38-41). In essence, the plaintiffs seek to litigate the validity of the assessment provisions of the compacts within the confines of their argument about the level of scrutiny the court should apply to the question of equal protection.
This strained argument fails among other reasons because plaintiffs lack standing to challenge the compacts' assessment requirements, even within the context of their assault on equal protection. "[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). It is the tribes which have or are seeking compacts, rather than their competitors, who are the proper parties to challenge the assessment provisions because they are the ones who are directly injured by any such violation of IGRA.[64] Nor is there any obstacle that prevents Indian tribes from litigating such claims. See Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (noting that one requirement for exercise of third party standing is that "there must exist some hindrance to the third party's ability to protect his or her own interests"). The limitation on third party standingthe Supreme Court has referred to it as a "matter[] of judicial self-governance"is no less relevant when encapsulated within an argument about the standard of review *1132 under the Equal Protection Clause. Warth, 422 U.S. at 500, 95 S. Ct. 2197. To the contrary, it is especially apt in this case where the focus of the litigation is on decidedly different issues and would require the court to consider a side dispute on the meaning of an entirely separate provision of IGRA. In short, the court finds that the provision of the compacts at issue here, the permission to engage in class III gaming, was based on authority delegated by the federal government. See Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. at 501, 99 S. Ct. 740 (holding that Mancari applied to state regulation of Indian tribes enacted in response to specific delegation of authority by Congress to the state).[65]
Finally, the equal protection analysis does not change merely because it may be that some, or even most, of the monetary benefits of class III gaming inure to individual Indians rather than the tribes. (Pls.' Reply at 22). As Mancari illustrates, a tribal preference is not transformed from a political to a racial classification that requires strict scrutiny merely because the vehicle for the preference consists of individual members of tribes. The BIA hiring preference upheld in Mancari explicitly targeted individual Indians but was still considered a political classification that merited deferential review. Mancari, 417 U.S. at 554, 94 S. Ct. 2474. Moreover, it cannot fairly be said that a preference which aids individual members of Indian tribes is not rationally related to Congress' trust obligation to the tribes. Individual members are benefitted not because they are Indian per se but because they are members of tribes that have entered into compacts and distributed the resulting income to their members. A contrary holding would both distort Mancari and hamstring the political branches in the exercise of their trust obligation to the Indian tribes.[66]
VIII. Conclusion
This case has presented complex and novel issues relating to federal jurisdiction, IGRA, and equal protection. The issues have been ably briefed and argued by the parties and various amici. The legal issues presented reflect the significance of the difficult public policy choices made by the Secretary, the Governor, and the State of California relating to gambling. Those choices may be wise or unwise. The grant of an economic monopoly to any group presents serious questions that should cause careful consideration and hesitation. In a strong democratic system, in which the proponents and opponents of Indian gaming, and gambling more generally, can be heard, these important questions can continue to be evaluated and debated in the light of experience and future developments. These matters of social policy are not ones for the court to resolve but are *1133 properly left for resolution by the political branches and the electorate. Where the political branches and the people of California have adopted a policy that does not violate either federal law or the United States Constitution, that policy is entitled to prevail.
For the foregoing reasons, the plaintiffs' motion with respect to IGRA, the Equal Protection Clause, and the Due Process Clause is DENIED and the motions of the state and federal defendants are GRANTED. As to standing, the state defendants' motion is GRANTED as to (1) the Governor and future compacts under count II; (2) the Commission and the Director under count II; (3) the Governor under count III; and (4) the Commission under count IV, but is DENIED as to (1) the Governor as to the existing compacts and count II; and (2) the Attorney General and the Director under count IV. As to Ex parte Young and § 1983, the state defendants' motion is GRANTED as to (1) the Commission and the Director under count II; and (2) the Commission under count IV, but is DENIED as to (1) the Governor under count II; and (2) the Attorney General and the Director under count IV. With respect to the APA, the federal defendants' motion is DENIED. The motion to dismiss for failure to join necessary and indispensable parties is DENIED.
Judgment shall enter for defendants.
IT IS SO ORDERED.
NOTES
[1] Public Law 280 permits certain states, including California, to exercise criminal jurisdiction over Indian lands. Public Law 280 provides in relevant part:
Each of the States ... listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed ... to the same extent that such State ... has jurisdiction over offenses committed elsewhere within the State ..., and the criminal laws of such State ... shall have the same force and effect within such Indian country as they have elsewhere within the State.
18 U.S.C. § 1162(a).
[2] The first bills to regulate Indian gaming were introduced in the 98th Congress, H.R. 4566 and H.R. 6390. Five bills were subsequently introduced in the 99th Congress, H.R. 1920, H.R. 3752, H.R. 2404, S. 2557, and S. 902. In the 100th Congress, S. 555 was introduced shortly before the Court's decision in Cabazon, and was followed by S. 1303 and S. 1841, in the Senate, and in the House, by H.R. 1079, H.R. 964, H.R. 2507, and H.R. 3605.
[3] In banked or percentage card games, players bet against the "house" or the casino. In "nonbanked" or "nonpercentage" card games, the "house" has no monetary stake in the game itself, and players bet against one another. (Eadington Decl. at ¶ 131). Banked or percentage card games include the types of gaming generally associated with Atlantic City or Las Vegas.
[4] Slot machines were developed in the late 19th century and had their origins in saloons. (Id. at ¶ 54). Blackjack was derived from French and Italian card games. (Id. at ¶ 55).
[5] The statute provides that class III Indian gaming must be:
(A) authorized by an ordinance or resolution that
(i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands,
(ii) meets the requirements of subsection (b) of this section, and
(iii) is approved by the Chairman [of the National Indian Gaming Commission],
(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and
(C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.
25 U.S.C. § 2710(d)(1).
[6] The Secretary of the Interior has 45 days to approve or disapprove a compact, or the compact is deemed approved "to the extent the compact is consistent with [IGRA]." Id. § 2710(8)(D). The Secretary may disapprove a compact if it violates IGRA, any other provision of federal law, or "the trust obligations of the United States to Indians." Id. § 2710(8)(B).
[7] IGRA also added 18 U.S.C. § 1166 which states that "for purposes of Federal law, all State laws pertaining to the licensing, regulation, or prohibition of gambling, including but not limited to criminal sanctions applicable thereto, shall apply in Indian country in the same manner and to the same extent as such laws apply elsewhere in the State." Section 1166(d) gives the United States "exclusive jurisdiction over criminal prosecutions of violations of State gambling laws that are made applicable under this section to Indian country, unless an Indian tribe pursuant to a Tribal-State compact approved by the Secretary of the Interior under section 11(d)(8) of the Indian Gaming Regulatory Act ... has consented to the transfer to the State of criminal jurisdiction with respect to gambling on the lands of the Indian tribe." 18 U.S.C. § 1166(d).
[8] Separately, IGRA includes a waiver of the Johnson Act, 15 U.S.C. § 1175(a), which prohibits the use of gambling devices, including slot machines, within Indian country. IGRA's waiver provision states that the Johnson Act "shall not apply to any gaming conducted under a Tribal-State compact that
(A) is entered into under paragraph (3) by a State in which gambling devices are legal, and
(B) is in effect."
25 U.S.C. § 2710(d)(6).
[9] Except for these assessments, states may not otherwise impose "any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity." Id. § 2710(4).
[10] Although the Court invalidated this provision of IGRA in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), on the ground that it violated the Eleventh Amendment and state sovereign immunity, the State of California has consented to such suits by waiving its immunity. Cal. Gov't Code § 98005.
[11] IGRA also permits federal courts to consider "any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith." 25 U.S.C. § 2710(d)(7)(B)(iii)(II).
[12] Section 2719(b) also states that the restriction on gaming on lands acquired after October 17, 1988 does not apply when:
(B) lands are taken into trust as part of
(i) a settlement of a land claim,
(ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or
(iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.
Id. § 2719(b)(1).
[13] The compacts permit a signatory tribe to terminate a compact "in the event the exclusive right of Indian tribes to operate Gaming Devices in California is abrogated." (Compact at § 12.4).
[14] Tribes with compacts must also make yearly payments into the Fund according to a graduated formula that increases the amount that each tribe must contribute annually per device up to $4350. Id. at § 4.3.2.2(2). Separately, the compacts create a "Special Distribution Fund" comprised of payments made by tribes of between 0% and 13% of the gaming device winnings. Id. at § 5.1. Revenue deposited into the Special Distribution Fund is available for appropriation by the Legislature for prescribed purposes including payments to state agencies for expenses related to Indian gaming.
[15] The compacts state that the
"Tribal Gaming Agency" means the person, agency, board, committee, commission, or council designated under tribal law ... to fulfill those functions by the National Indian Gaming Commission, as primarily responsible for carrying out the Tribe's regulatory responsibilities under IGRA and the Tribal Gaming Ordinance. No person employed in, or in connection with the management, supervision, or conduct of any gaming activity may be a member or employee of the Tribal Gaming Agency.
Compact at § 2.20.
[16] The California Gambling Control Commission also administers the Revenue Sharing Trust Fund. (Compact at ¶ 4.3.1(a)(ii)).
[17] California Gov't Code § 12012.25 provides:
(b) Any other tribal-state gaming compact entered into between the State of California and a federally recognized Indian tribe which is executed after September 10, 1999, is hereby ratified if both of the following are true:
(1) The compact is identical in all material respects to any of the compacts expressly ratified pursuant to subdivision (a). A compact shall be deemed to be materially identified to a compact ratified pursuant to subdivision (a) if the Governor certifies it is materially identical at the time he or she submits it to the Legislature.
(2) The compact is not rejected by each house of the Legislature, two-thirds of the membership thereof concurring, within 30 days of the date of the submission of the compact to the Legislature by the Governor. However, if the 30-day period ends during a joint recess of the Legislature, the period shall be extended until the fifteenth day following the day on which the Legislature reconvenes.
[18] The state defendants' objections to evidence, including to the Eadington declaration, are denied.
[19] Section 819 provides:
Notwithstanding any other provision of law, the Secretary of the Interior shall accept for the benefit of the Lytton Rancheria of California the land described in that ... grant deed dated ... October 16, 2000 .... The Secretary shall declare that such land is held in trust by the United States for the benefit of the Rancheria .... Such land shall be deemed to have been held in trust and part of the reservation of the Rancheria prior to October 17, 1988.
Pub.L. 106-568, Stat. 2868.
[20] Plaintiffs are Artichoke Joe's in San Bruno, California; California Grand Casino in Pacheco, California; Lucky Chances in Colma, California; and Oaks Club Room in Emeryville, California. (Complaint at ¶¶ 15-18). Customers at these establishments "play various card games in which participants wager against each other and pay the operator a fee for the use of the facility." Id. Plaintiffs Fairfield Youth Foundation and Sacramento Consolidated Charities are non-profit corporations located in Fairfield and Sacramento, respectively. Id. at ¶ 19. Both organizations operate bingo games to raise money for charitable organizations. Id. at ¶ 20. Each plaintiff submitted a declaration stating that it would like to offer class III gaming and that it has facilities for doing so. Sammut Decl. at ¶ 11 (Artichoke Joe's); Medina Decl. at ¶ 7 (Lucky Chances); Wilkinson Decl. at ¶¶ 3-4 (California Grand); Taylor Decl. at ¶ 4 (Fairfield Youth Foundation); Beers Decl. at ¶ 3 (Sacramento Consolidated Charities); and Tibbit Aff. at ¶¶ 4-5 (Oaks Club Room).
[21] Gale Norton became Secretary of the Interior on January 31, 2001. The compacts at issue were approved by her predecessor, Bruce Babbitt. Because Secretary Norton does not suggest that there has been any change in agency policy and for ease of expression, all actions by Secretary Babbitt are treated as actions by Secretary Norton throughout this opinion.
[22] Amicus curiae briefs have been filed on behalf of plaintiffs by (1) Blue Devils, Inc., Pinole Area Senior Foundation, Inc., First Baptist Church of El Sobrante, and Lidia Robinson; (2) California Cities for Self Reliance Joint Powers Authority; (3) National Coalition Against Gambling Expansion, Stand-Up for California, Committee on Moral Concerns; and (4) Wildcat Canyon Conservancy. Briefs on behalf of defendants have been filed by (1) Agua Caliente Band of Cahuilla Indians (2) BiPartisan Group of Officers and Members of the California Legislature; (3) California Nations Indian Gaming Association; and (4) Hotel Employees and Restaurant Employees International Union.
[23] Addressing the propriety of equitable relief while assuming that there is Article III standing does not run afoul of the rule against exercising hypothetical jurisdiction announced in Steel Co., 523 U.S. 83, 118 S. Ct. 1003, because "there is no unyielding jurisdictional hierarchy." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578, 119 S. Ct. 1563, 143 L. Ed. 2d 760 (1999). The court is, therefore, not required to address jurisdictional issues according to a specific checklist and may address jurisdictional issues in any order. See Midgett, 254 F.3d at 850; Hodgers-Durgin, 199 F.3d at 1042 n. 3. However, because of the similarities between the Article III inquiry and the standard for granting prospective injunctive relief, the plaintiffs are almost certainly unable to establish Article III standing to seek an injunction to prevent the Governor from entering into additional compacts.
[24] One of the letters was sent to nine tribes. (Chang Letter, May 2, 2001, Exh. K to Pls.' Reply). It is unclear, however, if all of the tribes requested negotiations.
[25] Because the plaintiffs have viable claims under federal law, Skelly Oil v. Phillips Petroleum, 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194 (1950), does not preclude plaintiffs from seeking a declaratory judgment. (St. Defs.' Motion at 64).
[26] The Ninth Circuit applies a different rule to procedural standing claims and requires plaintiffs to show: "(1) that it has been accorded a procedural right to protect its interests, and (2) that it has a threatened concrete interest that is the ultimate basis of its standing." Churchill County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir.1998). The court does not reach the question of the full extent of the plaintiffs' procedural rights, if any, under 25 U.S.C. § 2719.
[27] Section 6.4.1 of the compacts states:
All persons in any way connected with the Gaming Operation or Facility who are required to be licensed or to submit to a background investigation under IGRA, and any others required to be licensed under this Gaming Compact, including, but not limited to, all Gaming Employees and Gaming Resource Suppliers, and any other person having a significant influence over the Gaming Operation must be licensed by the Tribal Gaming Agency.
[28] The compacts state that except for "non-key Gaming Employees," the Tribal Gaming Agency must require all license applicants to file an application with the State Gaming Agency for a determination of suitability for licensure under the California Gambling Control Act. Id. at § 6.5.6. The compacts, however, do not distinguish "non-key Gaming Employees" from "key Gaming Employees," and the plaintiffs have failed to provide any evidence to support a causal connection between the State Gaming Agency's act of licensing these persons, "key Gaming Employees," and the plaintiffs' injuries.
[29] The state defendants argue that the court should abstain from granting the plaintiffs' requested relief under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). (St. Defs.' Motion for Summary Judgment at 56). However, because Younger abstention is not jurisdictional, and because the plaintiffs are not entitled to injunctive relief under count IV, it is unnecessary to address the applicability of Younger. See Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir.1994) (citing New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 358-59, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989)).
[30] Redressability is not a problem as to count IV. First, it is likely that the District Attorneys will follow the court's ruling, especially given their tendency to look to the Attorney General for policy on gaming. Second, for purposes of Article III, it is sufficient that redressability is likely; plaintiffs need not establish it with absolute certainty. See infra pp. 1107-09.
[31] For similar reasons, the claim against the Director and the Commission does not meet the causation requirement of Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908) as to count II, and the claim against the Commission does not meet this requirement as to count IV.
[32] See also Made in the USA Foundation v. United States, 242 F.3d 1300, 1306-11 (11th Cir.2001) (finding redressability in suit challenging constitutionality of the North American Free Trade Agreement and that even though President could not be ordered to terminate participation in NAFTA, judicial order would be followed by subordinates); Los Angeles County Bar Ass'n, 979 F.2d at 701 (redressability requirement was satisfied in suit against Governor and Secretary of State claiming injury due to lack of judges in Los Angeles County because it was substantially likely that the California legislature, although its members were not parties to the action, would abide by the court's declaration) (citing Franklin, 505 U.S. at 803, 112 S. Ct. 2767).
[33] The analysis in this section also applies to the state defendants' arguments, (St. Defs.' Motion for Summary Judgment at 42-44), that they are not liable under 42 U.S.C. § 1983 because they were not personally involved in the alleged violations of federal law. See Jones v. Williams, 286 F.3d 1159, 1163 (9th Cir.2002) (noting that there is no respondeat superior liability under § 1983 and that claim must be predicated on defendant's personal action). Because the personal involvement requirement for § 1983 and the causal connection requirement for Young are so similar, and largely serve the same purposes, the court's determination that the state defendants may be sued under Young also establishes that they are proper defendants under § 1983.
[34] The constraints on Ex parte Young imposed by Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996), and Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997), do not apply in this case. First, Congress did not create a detailed remedial scheme to enforce section 2710(d)(1), which permits class III gaming on certain conditions, unlike the provisions of IGRA which the Court held could not be enforced by an Ex parte Young action in Seminole Tribe, 517 U.S. at 74, 116 S. Ct. 1114. Second, Coeur d'Alene does not apply because a decision favorable to the plaintiffs would not implicate California's special sovereignty interests. See Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1048 (9th Cir.2000) ("We start with the principle that the Young doctrine is alive and well and that Coeur d'Alene addressed a unique, narrow exception not present here. We do not read Coeur d'Alene to bar all claims that affect state powers, or even important state sovereignty interests."). Finally, because the Ninth Circuit has held that "[t]he viability of Ex parte Young as traditionally applied survives the Supreme Court's treatment of the issue in Idaho v. Coeur d'Alene Tribe," there is no need to consider whether plaintiffs may bring an action under Young when a state forum is available to litigate their federal claims. Id. at 1050 (quoting Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (1997)).
[35] Similarly, the Commission lacks a causal connection to the plaintiffs' injuries for the same reason that its actions are not "fairly traceable" for purposes of Article III standing.
[36] It is unnecessary to reach the federal defendants' arguments as to count III and the Lytton Rancheria because only the state defendants are named in that count.
[37] According to Community Nutrition Institute, Congress' intent to overcome the presumption in favor of judicial review of agency action under § 701(a)(1) is revealed by "(1) specific statutory language, (2) specific legislative history, (3) contemporaneous judicial construction followed by congressional acquiescence, (4) the collective import of the legislative and judicial history of the statute, and (5) inferences drawn from the statutory scheme as a whole." 3 K. Davis & R. Pierce, Jr., Administrative Law Treatise § 17.8 at 153-54 (3d ed.1994). The court only considers inferences drawn from the statutory scheme because there is no suggestion or evidence that any of the other four categories noted in Community Nutrition Institute apply.
[38] Similarly, the federal defendants' reliance on Morris v. Gressette, 432 U.S. 491, 97 S. Ct. 2411, 53 L. Ed. 2d 506 (1977) for the proposition that litigation-induced delays in agency approval procedures might preclude judicial review is misplaced. (Fed. Defs.' Motion at 36). Unlike the sections of the Voting Rights Act reviewed in Morris, there are no comparable provisions in IGRA indicating congressional concern with timing or delay.
[39] Federal defendants concede in their Reply that they do not contest the plaintiffs' use of the APA to object to the Secretary's actions on constitutional grounds. (Fed. Defs.' Reply at 28). See Webster v. Doe, 486 U.S. 592, 603, 108 S. Ct. 2047, 100 L. Ed. 2d 632 (1988) (noting that Congress must be especially clear when it intends to foreclose judicial review of constitutional claims under a particular statute).
[40] The federal defendants' insistence that the absence of an implied private right of action under IGRA precludes the plaintiffs' APA claims is equally unavailing. (Fed. Defs.' Motion at 31). The defendants are correct that there is no evidence that Congress intended a private right of action to enforce IGRA, Florida v. Seminole Tribe of Florida, 181 F.3d 1237, 1245-50 (11th Cir.1999) (no private right of action under IGRA); Tamiami Partners v. Miccosukee Tribe of Indians, 63 F.3d 1030, 1049 (11th Cir.1995) (same). However, it is well-established that an APA claim is available even in the absence of an implied private cause of action. See Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1260-61 (9th Cir.2000) (tribe lacked private right of action under IGRA but could proceed under APA); Oregon Natural Res. Council v. United States Forest Serv., 834 F.2d 842, 851 (9th Cir.1987) ("an implied private right of action under a violated statute is not a necessary predicate to a right of action under the APA"); Rapid Transit Advocates, Inc. v. Southern California Rapid Transit Dist., 752 F.2d 373, 377 (9th Cir.1985) (same). This is a predictable outcome because there is a strong presumption that Congress intended judicial review of agency action under the APA, while courts presume that Congress did not intend implied private rights of action. Compare Japan Whaling Ass'n, 478 U.S. at 230 n. 4, 106 S. Ct. 2860 (noting that right of action is available under the APA "absent some clear and convincing evidence of legislative intent to preclude review") with Cannon v. University of Chicago, 441 U.S. 677, 731, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979) (Powell, J., dissenting) ("Absent the most compelling evidence of affirmative congressional intent, a federal court should not infer a private cause of action.").
[41] The federal defendants argue that two cases, Jackson v. United States, 485 F. Supp. 1243 (D.Alaska 1980) and San Xavier Dev. Auth. v. Charles, 237 F.3d 1149 (9th Cir. 2001), hold that the plaintiffs do not have a remedy under the APA because "there is no substantive right for third party review of Indian contracts." (Federal Defs.' Reply at 30). Neither case, however, states such a broad holding. First, Jackson is not binding authority, and the court found that there was no APA claim because the plaintiffs had not independently established subject matter jurisdiction. Jackson, 485 F.Supp. at 1249. Here, as in virtually all cases brought under the APA, "subject only to preclusion-of-review statutes created by Congress," federal jurisdiction is provided by 42 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 106, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977); Complaint at ¶ 2 (stating that jurisdiction for the APA claim is based on 28 U.S.C. § 1331); see also Robbins v. Reagan, 780 F.2d 37, 43 (D.C.Cir.1985) (applying Califano; "district court always has jurisdiction to review federal administrative action under 28 U.S.C. § 1331"). Because neither IGRA nor the Johnson Act contains a preclusion of review provision, the court has subject matter jurisdiction under 28 U.S.C. § 1331, and the plaintiffs have a cause of action under the APA. Second, San Xavier Development Authority, involved an entirely different statutory scheme and, therefore, is not binding authority as to APA claims under IGRA.
[42] Although these statements were made specifically in the context of the causation requirement, the Court applied the identical analysis to the redressability question. Akins, 524 U.S. at 25, 118 S. Ct. 1777 ("[f]or similar reasons, the courts in this case can `redress' `injury in fact'").
[43] Although the zone of interests test may implicate the court's decision on the merits, it is important to remember that the two are distinct. See Von Aulock v. Smith, 720 F.2d 176, 185 (D.C.Cir.1983) ("some inquiry into the merits is necessary in a variety of situations presenting justiciability questionsthose involving, for example, the `zone of interests' test for standing"). The court's finding that the plaintiffs fall within the zone of interests "arguably" sought to be protected by IGRA does not mean that the plaintiffs must also prevail on "the argument" over statutory interpretation; "were that so, the zone of interests test would not merely implicate but would duplicate the merits." National Coal Ass'n v. Hodel, 825 F.2d 523, 527 (D.C.Cir. 1987) (trade associations had standing to challenge restrictions on coal leasing under Mineral Leasing Act and whether Secretary of Interior considered competition; restrictions on leasing permissible and Secretary's consideration of competition adequate). See, e.g., Clarke v. Securities Industry Ass'n, 479 U.S. 388, 107 S. Ct. 750, 93 L. Ed. 2d 757 (1987) (finding standing but rejecting claim on the merits). The zone of interest test merely determines if the plaintiff is entitled to seek relief under the APA. Therefore, although the plaintiffs have an interest in competition that is arguably protected by IGRA and that permits them to bring a claim under the APA, this does not mean that they necessarily prevail on the merits. In fact, they do not, although their claim is at least colorable.
[44] The federal defendants argue that Air Courier Conference v. American Postal Workers, 498 U.S. 517, 111 S. Ct. 913, 112 L. Ed. 2d 1125 (1991), demonstrates that competitors lack prudential standing under the APA. (Fed. Defs.' Reply at 25-26). In that case, the Court held that the interest of postal workers in maximizing their employment opportunities was not within the zone of interests to be protected by the postal monopoly statutes. Id. at 519, 111 S. Ct. 913. However, as the Court explained in National Credit Union, the statute challenged in Air Courier Conference had exclusive purposes: to increase postal revenues and to ensure that postal services were provided in a manner consistent with the public interest. National Credit Union, 522 U.S. at 498, 118 S. Ct. 927. Because the Act's purposes were exclusive, the postal employees' claims could not fall within the zone of interests protected by the statute. Id. This essential aspect of Air Courier Conference is missing here.
[45] Although a novel argument, the Model Rules of Professional Conduct are not relevant to determining whether an existing party's interests conflict with an absent party's interests. See CNIGA Amicus Brief at 12-13. No court has adopted this approach to determining the adequacy of representation under Fed.R.Civ.P. 19.
[46] Similarly, the Secretary can represent the tribes who are parties to In re Indian Gaming Related Cases, 147 F. Supp. 2d 1011 (N.D.Cal. 2001), because they do not challenge the ability of tribes to exercise exclusive class III gaming rights. Further, the plaintiffs also lack standing to challenge the assessment provisions that are at issue in that case. See infra pp. 1131-32. Thus, any potential for conflict between the tribes and the Secretary on this score will not ripen into an actual conflict.
[47] Because the court finds that the tribes are not necessary parties, it does not consider whether they are indispensable parties under Fed.R.Civ.P. 19(b). See Washington v. Daley, 173 F.3d at 1169 ("indispensable" analysis unnecessary after determining that absent party is not necessary).
[48] It is unnecessary to address the state defendants' argument that the plaintiffs lack a private right of action to enforce IGRA because their claims are brought under § 1983 and the APA. See, e.g., Hein v. Capitan Grande Band of Diegueno Mission Indians, 201 F.3d 1256, 1260-61 (9th Cir.2000); State of Florida v. Seminole Tribe, 181 F.3d 1237, 1245-50 (11th Cir.1999).
[49] Furthermore, this interpretation of "permit" is consistent with the Ninth Circuit's construction of the term, as employed in IGRA, to mean "`[t]o suffer, allow, consent, let; to give leave or license; to acquiesce by failure to prevent, or to expressly assent or agree to the doing of an act.'" Rumsey, 64 F.3d at 1257 (quoting from Black's Law Dictionary). Here, by constitutional amendment, California "permits" class III gaming through the compacting procedure as set forth in IGRA.
[50] Rumsey also held that "IGRA does not require a state to negotiate over one form of Class III gaming activity simply because it has legalized another, albeit similar form of gaming. Instead, the statute says only that, if a state allows a gaming activity `for any purpose by any person, organization, or entity,' then it also must allow Indian tribes to engage in that same activity." Rumsey, 64 F.3d at 1258.
[51] S. 1303 was identical to H.R. 2507, 100th Cong. (1987). S. 555 was based on H.R.1920, 99th Cong. (1985).
[52] Most tribes actually opposed both bills and believed that any regulation of tribal gaming was "a gross infringement upon tribal sovereignty." Hearings on S. 555 and S. 1303, at 496 (letter of Edgar Bowen, Tribal Chief/Chairman, Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians); see also id. at 497-99 (letter of Wendell Chino, President, Mescalero Apache Tribe); id. at 500-01 (letter of Joseph Ely, Tribal Chairman, Pyramid Lake Paiute Tribal Council); id. at 502 (letter of John Hair, Chief, United Keetoowah Band of Cherokee Indians in Oklahoma); id. at 508 (letter of Mark Perrault, Chairman, Keweenaw Bay Indian Community); S.Rep. No. 100-446, at 4 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3074 ("Tribes generally opposed any effort by the Congress to unilaterally confer jurisdiction over gaming activities on Indian lands to States and voiced a preference for an outright ban of class III games to any direct grant of jurisdiction to States."). Tribes that expressed a preference were strongly opposed to state jurisdiction. See Hearings on S. 555 and S. 1303, at 104 (Statement of Hon. William Houle, Chairman, Fond du Lac Band of Lake Superior Chippewas and Chairman, National Indian Gaming Association) ("National Indian Gaming Association only supports legislation, however, that does not transfer any jurisdiction to State government over Indian people, their activities, or their lands."); id. at 107 (Statement of Herman Agoyo, Chairman, All Indian Pueblo Council) ("Although we support Federal legislation to regulate Indian controlled gaming, we do not and will not support State jurisdiction.").
[53] Plaintiffs attempt to put the best face on IGRA's adoption of the "permits such gaming for any purpose to any person" language from S. 1303 rather than the "otherwise legal" language of S. 555. Plaintiffs argue that because the state permission language originated in S. 1303, which provided for exclusive federal regulation of class III gaming and which lacked the State-Tribal compact procedure, it must have referred only to gambling that was permitted on non-Indian land. But the language was taken from S. 1303 and substituted into S. 505 which did not provide for exclusive federal regulation.
[54] There are several flaws in plaintiffs' argument that § 2710(d)(1)(B) precludes California from granting tribes exclusive class III gaming rights because Congress intended that such gaming would only take place in states with a history of regulating similar activities. (Pls.' Motion at 30-33). When Congress drafted IGRA, it did not restrict class III gaming to states with such experience. Because it could lead to the untenable result in which states without this regulatory experience would be precluded from simultaneously granting gaming rights to Indians and non-Indians alike, such an interpretation of § 2710(d)(1)(B) is contrary to Congress' interest in preserving state sovereignty and providing tribes with an opportunity to develop gaming operations. Furthermore, Congress recognized that not every state compact would confer exclusive authority to regulate class III gaming on preexisting state regulatory bodies. See S.Rep. No. 100-446, at 13-14 (1988), reprinted in 1988 U.S.C.C.A.N. 3071, 3083-84.
[55] The Secretary's approval specifically notes that the compacts limit gaming to "the Tribes' reservation land;" that through Proposition 1A, "Californians amended their state's constitution to permit the Governor to compact with Indian tribes, subject to ratification by the State Legislature;" and that granting tribes exclusive class III gaming rights "in no way violates the equal protection provisions of the United States Constitution." (Letter from Kevin Gover, May 5, 2000, Exh. B to Complaint).
[56] Citing Williams v. Babbitt, 115 F.3d 657 (9th Cir.1997), plaintiffs contend that the Secretary's interpretation of IGRA should be rejected because it raises a difficult constitutional question. (Pls.' Motion at 33-34; Pls.' Reply at 16-17). However, "the `constitutional doubt' canon does not apply mechanically whenever there arises a significant constitutional question the answer to which is not obvious." Almendarez-Torres v. United States, 523 U.S. 224, 239, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). Rather, the rule applies "[o]nly if the agency's proffered interpretation raises serious constitutional concerns." Williams, 115 F.3d at 662 (emphasis in original). Although the Secretary's interpretation of IGRA raises a constitutional question, it is not sufficiently serious to require a different reading of the statute. Under Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974), preferences in favor of Indian tribes are classified as political, not racial, and therefore are reviewed deferentially. See infra pp. 1127-30.
Moreover, the preference accorded to tribes differs from the preference found to raise a grave constitutional question in Williams v. Babbitt. The preference in Williams was given to Indians as individuals and applied on non-Indian lands. 115 F.3d at 664. Here the preference is given to tribes and applies only to the lands within the tribes' sovereignty. 25 U.S.C. § 2710(d)(1).
[57] The same analysis applies to the plaintiffs' claims under the Johnson Act, 15 U.S.C. § 1175. California satisfies IGRA's waiver provision of the Johnson Act, 25 U.S.C. § 2710(d)(6), see supra p. 1093 n. 8, because California both makes gambling devices legal through Proposition 1A and the compacts, and it has Tribal-State compacts in effect.
[58] For purposes of clarity, references to "equal protection" or the "Equal Protection Clause" encompass both plaintiffs' claim against the federal defendants under the Due Process Clause of the Fifth Amendment as well as plaintiffs' Fourteenth Amendment claim against the state defendants. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 201, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) (noting "congruence" principle: "`Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.'") (quoting Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)).
[59] In Williams, the Ninth Circuit also suggested that Mancari was limited to classifications "that affect uniquely Indian interests." Williams, 115 F.3d at 665. The court also offered the view in dicta that a monopoly on gambling accorded to Indians would not relate to unique Indian interests.
Even if Williams' interpretation were correct and Mancari is limited to "statutes that affect uniquely Indian interests," the compacts here would survive because by limiting such gaming to Indian land, they "give special treatment to Indians on Indian land." Id. at 665. If there is to be a more stringent "unique Indian interests" test for determining the standard of equal protection review, the development of such a test must await further guidance from the Ninth Circuit or the Supreme Court.
[60] Congress' decision to curtail tribal jurisdiction over class III gaming by making such gaming contingent on state approval is consistent with the goal of furthering tribal sovereignty. (Pls.' Reply at 33). Following Cabazon, individual states retained authority to ban all tribal gaming along with all other gaming. IGRA created a structure within which the interests of tribes that wished to game were balanced with the interests of states in controlling crime. Given that all tribal gaming could have been banned, it was rational for Congress to further tribal sovereignty by balancing it against the interests of the states in regulating such gaming.
[61] It is of no consequence to the equal protection analysis that tribal gaming involves substantial amounts of gaming by non-Indians. (Pls.' Reply at 34). Were Mancari subject to such a limitation, many tribal preferences would fail because most commerce on Indian land is inextricably tied to non-Indian persons and companies. See Alaska Chapter, 694 F.2d at 1170 (noting congressional findings that most income generated on Indian land flows off-reservation).
[62] For this reason, plaintiffs' reliance on Malabed v. North Slope Borough, 42 F. Supp. 2d 927 (D.Alaska 1999) is misplaced. The tribal preference at issue in that case was not passed in response to an explicit delegation of congressional authority. Id. at 939 ("[North Slope Borough] has no constitutional mandate to promote Indians' interest."). Further, the preference, which favored native Alaskans, was enacted by a municipal body that was "overwhelmingly composed of Inupiat Eskimos," and therefore raised the specter of "a majority arrogat[ing] to itself special privileges and rights otherwise denied to similarly-situated members of the minority." Id. at 940. By contrast, having been approved by California's voters. Governor, Legislature, and the federal government, if the compacts lack for anything, it is surely not approval from the public and its elected officials.
[63] Plaintiffs also contend that strict scrutiny applies because Congress was neutral with respect to whether the states would allow tribes to offer class III gaming, and, therefore, Congress did not affirmatively direct the states to adopt a specific policy in favor of class III gaming by the tribes. (Pls.' Reply at 25-26). But Congress intended at least to facilitate tribal gaming while balancing the sovereign interests of states and tribes. Moreover, it is not the case that Congress must mandate a particular type of state action, as opposed to merely allowing it, before a state may implement a tribal classification that will be evaluated under Mancari. The classification upheld in Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 473-74, 99 S. Ct. 740, 58 L. Ed. 2d 740 (1979), permitted, but did not require, certain states to assume civil and criminal jurisdiction over Indian land.
[64] Even if the court were to address the merits of the plaintiffs' arguments about the assessment provisions, there is no reason to believe that a different outcome would be forthcoming than the one reached in In re Indian Gaming Related Cases, 147 F. Supp. 2d 1011 (N.D.Cal.2001), where the district court held that the compacts' assessment provisions did not violate IGRA.
[65] For this reason also, there is no equal protection violation under count IV which seeks to enjoin enforcement of California's Penal Code prohibitions against class III gaming by the plaintiffs. Following authority specifically delegated to it by Congress, California exempted Indian tribes from otherwise generally applicable laws prohibiting class III gaming. This benefit to Indian tribes is evaluated under Mancari and is consistent with the Equal Protection Clause.
[66] Plaintiffs also contend that the compacts constitute racial preferences because tribal membership depends, at least in part, on race. (Pls.' Reply at 22 n.14). Even if true, strict scrutiny does not apply under the case law. Mancari illustrates this point, as the BIA hiring preference only applied to persons who were "one-fourth or more degree Indian blood and ... a member of a Federally-recognized tribe." Mancari, 417 U.S. at 554 n. 24, 94 S. Ct. 2474; see also Alaska Chapter, 694 F.2d at 1168 ("If the preference in fact furthers Congress' special obligation, then a fortiori it is a political rather than racial classification, even though racial criteria might be used in defining who is an eligible Indian."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876761/ | 283 So. 2d 573 (1973)
John C. WOMACK, Appellant,
v.
STATE of Florida, Appellee.
No. 73-51.
District Court of Appeal of Florida, Fourth District.
October 12, 1973.
Paul Antinori, Jr., of Antinori, Cohen & Thury, P.A., Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen., and Stephen R. Koons, Legal Intern, West Palm Beach, for appellee.
OWEN, Chief Judge.
Appellant was convicted of two counts of perjury in a judicial proceeding, from which he brings this direct appeal.
Appellant's first point is dispositive of the case. He contends, and we agree, that the trial court erred in failing to grant his motion for judgment of acquittal, or directed verdict, made at the close of the State's case in chief, on the grounds that the evidence was not sufficient to justify submission of the cause to the jury. To convict of the crime of perjury *574 the offense must be proved by the oaths of two witnesses, or by the oath of one witness and by other independent and corroborating circumstances which is deemed of equal weight with another witness. Rader v. State, Fla. 1951, 52 So. 2d 105; Keir v. State, 1943, 152 Fla. 389, 11 So. 2d 886; Tindall v. State, 1930, 99 Fla. 1132, 128 So. 494; Yarbrough v. State, 1920, 79 Fla. 256, 83 So. 873; Wells v. State, Fla.App. 1972, 270 So. 2d 399; Duval v. State, Fla.App. 1958, 104 So. 2d 789. As to each count, the State's evidence consisted solely of the testimony of a single witness unaccompanied by independent and corroborating circumstances bearing on the alleged false testimony.
The judgment and sentence as to each count are severally reversed and this cause remanded with instructions to discharge the defendant, appellant herein.
Reversed.
WALDEN and CROSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600753/ | 41 P.3d 257 (2002)
136 Idaho 829
In the Matter of the Driver's License Suspension of Brian S. Halen.
Brian S. HALEN, Petitioner-Appellant,
v.
STATE of Idaho, Respondent.
No. 27181.
Supreme Court of Idaho, Lewiston, October 2001 Term.
January 17, 2002.
*259 Charles M. Stroschein, Lewiston, for appellant.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise; for respondent.
ON REVIEW
KIDWELL, Justice.
Brian Halen (Halen) refused to submit to a police officer's request for a blood withdrawal to test the concentration of alcohol in his blood. At a hearing held pursuant to I.C. § 18-8002, Halen argued that his driver's license should not be suspended because his fear of needles was sufficient cause for refusing the blood withdrawal and because the law enforcement advisory form did not properly inform him of the consequences of a refusal. The magistrate court and the district court upheld the administrative suspension. The Court of Appeals affirmed. We affirm.
I.
FACTS AND PROCEDURAL BACKGROUND
On October 28, 1998, Halen was stopped by a Lewiston police officer on suspicion of driving under the influence of alcohol or other substances. The officer read a standard law enforcement advisory form to Halen. The form was designed to provide the information required by I.C. §§ 18-8002 and 18-8002A when requesting a blood alcohol concentration test (BAC) from a person suspected of driving under the influence of alcohol.
Because Halen indicated that he was frequently exposed to solvents and paints through his employment, the officer requested that Halen submit to a blood withdrawal, rather than a breath test. In response to the officer's request for the blood withdrawal, Halen indicated that he would prefer a breath test because he did not like needles. The arresting officer and other officers who were present questioned Halen regarding this dislike, asking whether it was something that was going to cause him "some great psychological trauma" or was merely a preference. Halen indicated that he simply "preferred" to have a breath test rather than a blood withdrawal. While he expressed a general fear of needles, and generally referenced the risk of contracting AIDS, Halen also admitted that he had received shots in the past. In response, the officers who were present during the request explained to Halen that the blood sample would be taken in sanitary conditions by a doctor. Halen never indicated to the officers that he had any specific medical diagnosis related to needles or that a blood withdrawal would cause him any psychological trauma or physical harm. After these discussions, the officers allowed Halen to contact his attorney. Subsequently, the officers again asked him if he would submit to a blood withdrawal. Halen refused.
Halen was informed that his driver's license was being administratively suspended based upon his refusal to submit to a BAC. He requested a suspension hearing before a magistrate, in accordance with I.C. § 18-8002(4)(b), to show cause as to why he refused to submit to the BAC. He argued that his fear of needles constituted sufficient cause for his refusal. He also argued that his license should not be suspended, because he was misinformed by the advisory form that was read to him. Specifically, he argued that the form was misleading because it said that the administrative suspension for refusing a BAC was "separate from" any criminal license suspensions that might be imposed, when in reality the Idaho Code provides that the suspensions are to run concurrently.
The magistrate rejected Halen's arguments and upheld the civil suspension. The district court also upheld the suspension, and the Court of Appeals affirmed. Halen petitioned this Court for review.
II.
STANDARD OF REVIEW
When considering a case on review from the Court of Appeals, this Court does *260 not merely review the correctness of the decision of the Court of Appeals. Leavitt v. Swain, 133 Idaho 624, 627, 991 P.2d 349, 352 (1999). Rather, this Court acts as though it is hearing the matter on direct appeal from the decision of the trial court; however, this Court does give serious consideration to the decision of the Court of Appeals. Id.
A trial court's findings of fact that are based upon substantial and competent, although conflicting, evidence will not be disturbed on appeal, which is to say the findings of fact will not be set aside unless clearly erroneous. DeChambeau v. Estate of Smith, 132 Idaho 568, 571, 976 P.2d 922, 925 (1999). The credibility and weight to be given evidence is in the province of the trial court, and this Court liberally construes the trial court's findings of fact in favor of the judgment entered. Bouten Constr. Co. v. H.F. Magnuson Co., 133 Idaho 756, 760, 992 P.2d 751, 755 (1999). However, this Court exercises free review over legal questions presented by the construction and application of a statute. State v. Montgomery, 135 Idaho 348, 349-50, 17 P.3d 292, 293-94 (2001).
III.
ANALYSIS
A. Halen's Proclaimed Fear Of Needles Was Not Sufficient Cause For His Refusal To Submit To A Blood Alcohol Concentration Test.
Under Idaho Code section 18-8002, any person who operates a motor vehicle in Idaho is deemed to have given consent to evidentiary testing for blood alcohol concentration when a law enforcement officer has reasonable grounds to believe that the person was driving under the influence of alcohol. That same section authorizes the suspension of the driver's license of a motorist who refuses to submit to a BAC.
A motorist whose license is suspended after a refusal may request a hearing before the court. I.C. § 18-8002(4)(b). The hearing is limited to the question of why the motorist refused the BAC, and the motorist has the burden of showing that his or her license should not be suspended, because "the peace officer did not have legal cause to stop and request him to take the test or . . . the request violated his civil rights." I.C. § 18-8002(4)(b).
This Court has made it clear that "the choice as to which type of evidentiary test for concentration of alcohol, drugs or other intoxicating substances will be requested rests with the police officer, not the defendant." In re Griffiths, 113 Idaho 364, 370, 744 P.2d 92, 98 (1987). The defendant's willingness to take another form of test generally does not negate the effect of his refusal to submit to the form of test requested by the officer. Id. However, Halen relies on Griffiths for the proposition that his fear of needles constitutes an exception to these rules and amounts to sufficient cause for his refusal to submit to the blood withdrawal. In Griffiths, this Court stated:
We hold that a fear of needles may establish sufficient cause for refusing to submit to a blood test requested pursuant to I.C. § 18-8002 if the fear is of such a magnitude that as a practical matter the defendant is psychologically unable to submit to the test, and if the fear is sufficiently articulated to the police officer at the time of refusal so that the officer is given an opportunity to request a different test.
Id. at 372, 744 P.2d at 100.
The rule of Griffiths is controlling, but its application to the facts of this case produces a different result than that urged by Halen. At the suspension hearing, Halen had the burden of demonstrating that he communicated to the officers a fear sufficient to satisfy the Griffiths test. The magistrate judge found the following regarding Halen's communications with the officers: 1) Halen indicated to the officers that he simply "preferred" to have a breath test rather than a blood withdrawal, 2) while he expressed a general fear of needles, and generally referenced the risk of contracting AIDS, Halen also admitted that he had received shots in the past, 3) he denied ever having seen a psychologist regarding his fear, and 4) he never identified any mental or medical condition that would be adversely affected by the administration of a blood withdrawal. These findings are supported by substantial and *261 competent evidence in the record. These communications fail to articulate a psychological inability to submit to the test, as is contemplated by Griffiths. Consequently, the magistrate judge was correct in determining that Halen failed to show cause why his license should not be suspended.
B. The Officer Did Not Violate Halen's Civil Rights Or Exceed His Statutory Authority In Requesting A Blood Withdrawal As The Method Of Testing.
Halen argues that the officer's request was a violation of his civil rights and that his suspension should therefore be vacated. He argues that requiring a blood withdrawal without a warrant and absent exigent circumstances, when other less-intrusive methods like breath or urine tests are available, constitutes an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution and Article I Section 17 of the Idaho Constitution.
The administration of a BAC is a search and seizure implicating the prohibitions against unreasonable searches and seizures found in the Fourth Amendment to the United States Constitution and Article I Section 17 of the Idaho Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966); State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989). Any warrantless search or seizure of a citizen is presumptively unreasonable unless it falls within certain specific and well-delineated exceptions. See Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835; Woolery, 116 Idaho at 370, 775 P.2d at 1212. When a warrantless search or seizure is challenged by the defendant, the State bears the burden to show that a recognized exception to the warrant requirement is applicable. Id. Such an exception exists when the search or seizure is conducted with proper consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Varie, 135 Idaho 848, 852, 26 P.3d 31, 35 (2001). Every person who drives on Idaho roads has impliedly consented to submit to a BAC when properly requested by an officer. I.C. § 18-8002(1); Nickerson, 132 Idaho at 409, 973 P.2d at 761. Consequently, the warrantless requirement that Halen take a BAC was justified under the consent exception.
Halen's status as a Washington resident is irrelevant to the consent inquiry, because "[a]ny person who drives . . . a motor vehicle in this state shall be deemed to have given his consent," regardless of where he or she resides. I.C. § 18-8002(1) (emphasis added).
A search or seizure that is permissible without a warrant must still be reasonable in light of all of the other surrounding circumstances. Woolery, 116 Idaho at 371, 775 P.2d at 1213. Halen argues that, under Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir.1998), the manner in which the BAC was offered to him was unreasonable for Fourth Amendment purposes, since less-intrusive methods, such as a breath or urine sample, were available. However, that case is inapplicable to the current situation. In Nelson, the Ninth Circuit found that it was unreasonable, and thus a Fourth Amendment violation, for officers to require a blood withdrawal when the driver was willing to submit to other, less-intrusive tests. 143 F.3d at 1203. The court's holding was based upon the fact that California's implied consent statute granted the driver the right to select the method of testing to which he or she would submit. Id. By contrast, as noted above, the Idaho statute provides implied consent to the form of test of the officer's choosing. Therefore, Nelson is of no consequence.
Because it is the officer's prerogative to choose the method of testing, and because Halen failed to demonstrate that the test would cause him harm, there was substantial evidence to support the magistrate judge's conclusion that it was reasonable for the officer to require a blood withdrawal. Consequently, there was no violation of Halen's right to be free from unreasonable searches and seizures.
Halen also argues that the officer lacked statutory authority to request a blood withdrawal. He argues that I.C. § 18-8002 only authorizes an officer to request a blood withdrawal where there are aggravating circumstances *262 or suspicion of drug use. He cites I.C. §§ 18-8002(6)(b), 18-8002(9), and 18-8002(10) in support of this argument. However, I.C. § 18-8002(6)(b) grants an officer limited authority to order medical personnel to physically administer a blood withdrawal. It does not limit the circumstances under which the officer may request that a defendant peacefully submit to a blood withdrawal. Further, sections 18-8002(9) and 18-8002(10) provide authority for the officer to ask for a blood withdrawal in addition to other tests. None of these subsections of I.C. § 18-8002 contain language limiting the officer's authority regarding this matter. Consequently, an officer's authority to require a defendant to submit to a blood withdrawal, under I.C. § 18-8002, does not turn on whether aggravating factors are present.
C. The Suspension Advisory Form Adequately Advised Halen Of The Consequences Of Taking And Failing The Evidentiary Test.
If a motorist refuses to submit to a BAC, the Code authorizes a civil suspension of his or her driver's license. I.C. § 18-8002(4). Halen's license was suspended under this authority, based upon his refusal to submit to the blood withdrawal requested by the officer. However, Halen argues that his suspension for refusing, under section 18-8002, cannot stand because he was improperly informed according to the requirements of a related code section, I.C. § 18-8002A.
Idaho Code section 18-8002A requires that upon being asked to submit to a BAC a motorist must be given information regarding the consequences of submitting to and failing the BAC, by having a blood alcohol content that exceeds the legal limit. I.C. § 18-8002A(2). Specifically, motorists must be informed, among other things, that if they submit to and fail a BAC, a civil license suspension will be enforced against them. I.C. § 18-8002A(2). Motorists are entitled to similar information regarding the consequences of refusing to submit to a BAC. I.C. § 18-8002(3). Motorists who refuse to submit to requested tests are entitled to have their licenses reinstated if they can establish at the refusal hearing that they were not completely advised according to these code sections. Griffiths, 113 Idaho at 370, 744 P.2d at 98.
Halen argues that since I.C. § 18-8002A(7) says that a civil and criminal suspension based on the same occurrence shall run concurrently unless otherwise ordered by the court, he was misinformed when the advisory form indicated that the two suspensions were "separate." Idaho Code section 18-8002A(7) provides that both the civil suspension under that section and any criminal suspension imposed "shall run concurrently, with the total period of suspension not to exceed the longer of the applicable suspension periods, unless the court ordering the suspension in the criminal case orders to the contrary." The advisory form read to Halen, paragraph 5A, reads in pertinent part: "This suspension for failure of the evidentiary test(s) is separate from any other suspension ordered by the court."
It is true that this language from the advisory form does not match the information requirements of the statute verbatim, and there is no requirement that this information be given at all. However, according to I.C. § 18-8002A(2), the motorist "need not be informed verbatim;" rather, he or she need only be "substantially" informed of the information contained in that section. Nothing in the Code indicates that additional information contained on the form renders the form invalid as a matter of law, and as provided by I.C. § 18-8002A(7), the suspensions may be enforced "separately" if a judge orders them to run consecutively. There was substantial and competent evidence to support the magistrate judge's finding that, despite the additional information regarding the suspensions being "separate," Halen was substantially informed of his rights and duties as required by I.C. § 18-8002A(2).
D. Halen's Right To Counsel Under Article I Section 13 Of The Idaho Constitution Was Not Violated.
Idaho Code section 18-8002(2) provides that a person suspected of driving while intoxicated does not have the right to consult with an attorney before submitting to evidentiary testing. At one point, the officers *263 denied Halen's request to speak with an attorney before submitting to a blood withdrawal. Halen argues that the denial of his request violated his right to counsel under Article I Section 13 of the Idaho Constitution. We note that this argument was addressed and rejected by the Court of Appeals in State v. Shelton, 129 Idaho 877, 934 P.2d 943 (Ct.App.1997). However, this argument is irrelevant in this case, because, as he has conceded in his brief, Halen was allowed to consult with an attorney by telephone before the officer made his final request for a BAC.
E. This Court Need Not Address The Constitutionality of I.C. § 18-8002A.
Halen argues that I.C. § 18-8002A violates his due process right to a meaningful opportunity to be heard, because it gives a person whose license has been suspended only thirty days in which to conduct discovery in preparation for his or her administrative refusal hearing. I.C. § 18-8002A(7). Specifically, he argues that thirty days is insufficient time in which to inquire of the laboratory that conducted a blood test or of the specialist who did the calibration checks on a breath analysis machine. However, Halen's license was not suspended under the authority of section 18-8002A, and he never submitted to a BAC test about which to conduct discovery. The constitutionality of the time constraints contained within that section are irrelevant to Halen's situation. Therefore, this Court need not address the constitutionality of I.C. § 18-8002A.
F. The Magistrate Judge Did Not Err In Excluding Various Items of Evidence Offered By Halen.
Halen argues that the magistrate judge erred in excluding several items of evidence. The excluded items were intended to demonstrate the availability of alternative methods of testing, the reliability of the alternative methods, and the arresting officer's training regarding those various methods. Because we hold that the officer's choice of testing method did not violate statutory or constitutional principles regardless of the alleged availability or superiority of other testing methods, any error in excluding these items of evidence was harmless. On appeal, harmless error is disregarded. See Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 50-51, 995 P.2d 816, 820-21 (2000); I.R.E. 103(a); I.C.R. 52.
IV.
CONCLUSION
The magistrate judge properly concluded that Halen failed to articulate adequate cause for refusing the BAC and that Halen was adequately informed of his statutory rights and duties. The magistrate judge did not err in excluding items of evidence offered by Halen. Neither Halen's right to counsel, nor his right to be free from unreasonable searches and seizures, was violated. The decision of the magistrate judge, upholding Halen's license suspension, is affirmed.
Chief Justice TROUT, Justices SCHROEDER, WALTERS and Justice Pro Tem KOSONEN concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2640104/ | 190 P.3d 1146 (2008)
2008-NMCA-107
STATE of New Mexico, Plaintiff-Appellee,
v.
David HARRISON, Defendant-Appellant.
No. 27,224.
Court of Appeals of New Mexico.
June 24, 2008.
Certiorari Granted, No. 31,224, August 6, 2008.
*1147 Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, J.K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
OPINION
VIGIL, Judge.
{1} A jury found Defendant guilty of driving while intoxicated. NMSA 1978, § 66-8-102 (2007). After determining that this was at least Defendant's seventh DWI conviction, the district court filed its judgment, sentence, and commitment to the Corrections Department imposing a third-degree felony sentence of three years, to be followed by a two-year period of parole, together with additional conditions. Section 66-8-102(J) (stating that upon a seventh or subsequent conviction, an offender is guilty of a third-degree felony and shall be sentenced to a term of imprisonment of three years). Defendant appeals, arguing that the evidence of his performance on field sobriety tests should have been suppressed because they were administered by a state police officer who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or the Navajo Nation, Defendant is Navajo, and the tests were administered following a stop on the Navajo Nation. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
{2} On a Wednesday morning in August 2005, at approximately 10:30 in the morning, San Juan County Deputy Emerson Charley was patrolling County Road 6675 headed west up to the Navajo Reservation boundary. He stopped before the bridge, which marks the boundary between San Juan County and the Navajo Reservation, turned around, and proceeded eastbound, monitoring the westbound traffic. Approximately one hundred yards from the bridge, he noticed a blue pickup truck driven by Defendant traveling westbound at a high rate of speed, and with his radar, determined that Defendant was traveling fifty-six miles per hour in a thirty-five mile-per-hour zone. Officer Charley engaged his emergency lights, turned around, and began following Defendant. Defendant did not yield, and continued toward the bridge. Officer Charley changed the tone of his siren to gain Defendant's attention in case Defendant did not notice Officer Charley was following Defendant. Defendant still did not yield. While crossing the bridge, Defendant threw a bottle with yellow liquid out the passenger window. Defendant continued traveling and ultimately pulled to the side of the road approximately one-third of a mile inside the Reservation boundary.
{3} Officer Charley approached the vehicle and noticed that Defendant had bloodshot, watery eyes and smelled of alcohol. Officer Charley told Defendant that he was stopped for speeding and asked Defendant what he had thrown out of the window while crossing the bridge. Defendant responded that it was a Budweiser. Defendant stepped out of the vehicle and performed field sobriety tests. Asked if Defendant agreed to perform the tests, Officer Charley answered, "Yes, he did."
{4} First, Officer Charley administered a horizontal gaze nystagmus test, and he observed DWI clues consisting of a lack of smooth pursuit in both eyes and nystagmus at full deviation in both eyes. In the "walk and turn" test, DWI clues were that Defendant miscounted and used his arms to balance. In the "one-legged stand" test, DWI clues were that Defendant miscounted and dropped his foot multiple times. Finally, Officer Charley advised Defendant about a portable breath test, and Defendant agreed to take the test. This test registered a .218 breath alcohol concentration.
{5} Based on Defendant's performance on the field sobriety tests and the portable breath test result, Officer Charley concluded that Defendant was impaired and driving while intoxicated. However, at some point during the stop, Officer Charley learned that Defendant is Navajo. The record is not clear about when Officer Charley obtained this information, but we assume Officer Charley *1148 obtained this information either before or while he was in the process of administering the field sobriety tests. Officer Charley notified his dispatch to contact the Shiprock Police Department and send a unit for a DWI because Defendant is Navajo and they were on the Navajo Reservation. As a non-reservation police officer, Officer Charley knew he had no authority to arrest Defendant. Officer Charley was informed that the Shiprock Police Department did not have any available units. Recognizing that he could not arrest Defendant, Officer Charley testified, "[T]he only thing I could do was have him try to find a ride. He attempted to make a phone call, wasn't able to find somebody, and he decided he was going to walk back to some family's residence."
{6} Officer Charley subsequently secured an arrest warrant that was executed in compliance with Navajo requirements, and a criminal complaint was ultimately filed in the district court charging Defendant with one count of driving under the influence of intoxicating liquor and/or drugs (fourth or subsequent offense). At trial, Officer Charley testified about Defendant's performance on the "walk and turn" test and the "one-legged stand" test, but not about the horizontal gaze nystagmus test or the portable breath test result. The jury found Defendant guilty, and Defendant appeals.
DISCUSSION
{7} Defendant raises a single issue on appeal: Whether a state officer, who is not cross-commissioned with the Bureau of Indian Affairs (BIA) or the tribe, may pursue an Indian onto the reservation, across jurisdictional lines, for a minor traffic offense and whether, after determining the officer lacks jurisdiction, the officer may continue to detain the Indian and collect evidence for use against him.
{8} We first address whether Officer Charley had authority to stop Defendant on the reservation, where Officer Charley had no authority to arrest Defendant. See Benally v. Marcum, 89 N.M. 463, 465-66, 553 P.2d 1270, 1272-73 (1976) (holding that the defendant's arrest within the reservation by city police officers was illegal because it violated the tribe's sovereignty by circumventing the procedure for extradition from the reservation); City of Farmington v. Benally, 119 N.M. 496, 498, 892 P.2d 629, 631 (Ct.App. 1995) (holding that the defendant's arrest on the reservation, in violation of extradition procedures was illegal); State v. Yazzie, 108 N.M. 677, 678, 777 P.2d 916, 917 (Ct.App. 1989) (holding that the defendant's arrest on the reservation without assistance of tribal officers and without utilizing extradition procedures was illegal).
{9} Upon observing Defendant's truck exceeding the speed limit by twenty-one miles per hour, in San Juan County off the Navajo Reservation, Officer Charley had probable cause to stop Defendant, and he attempted to do so. However, Defendant did not stop and proceeded onto the Navajo Reservation, where he did eventually stop. Until Defendant stopped, Officer Charley did not know that Defendant was a member of the Navajo Nation. Under the circumstances of this case, we conclude that Officer Charley had authority to stop Defendant on the Navajo Reservation, not only to investigate the traffic offense he had just observed off the Navajo Reservation but also to determine if he had authority to arrest Defendant.
{10} We find the reasoning of United States v. Patch, 114 F.3d 131 (9th Cir.1997) persuasive. In Patch, a county deputy sheriff was patrolling a state highway on Indian land in a marked police unit. Id. at 132. He had no authority to arrest a tribal member, but he did have authority to arrest a nonmember for traffic violations on the state highway. Id. at 132-33. A pickup truck with state license plates approached from the rear in a manner which the officer considered to be "tailgating." Id. at 132. After pulling over and letting the truck pass, the officer activated his signal lights and pursued the truck, intending to stop it and find out whether the driver was a tribal member or a nonmember. Id. at 132-33. The court first stated that as a practical matter, without a stop and inquiry, it would be impossible for the deputy to tell who was operating the vehicle. Id. at 133-34. The question therefore was "whether [the deputy] had the authority to stop offending vehicles to determine *1149 whether he had authority to arrest." Id. at 134. The court noted that under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), law enforcement officers may briefly stop a moving vehicle to investigate a reasonable suspicion that its occupants are involved in criminal activity, and concluded that the stop before it was a logical application of Terry. Patch, 114 F.3d at 134. The deputy observed the driver's reckless driving, which satisfied the "criminal activity" requirement of Terry, and he had the unquestioned right to make the stop if he knew the suspect was not a tribal member. Patch, 114 F.3d at 134.
Here, [the deputy] needed to make only a brief stop to ascertain [the driver's] identity. Such a stop would be a brief, limited detention to ask one question. Like the stop in Terry, its purpose would further a legitimate law enforcement objective: to determine whether the suspect was a tribal member. [The deputy] had the authority under Terry to stop vehicles on [the highway] to determine his jurisdiction to issue a citation.
Patch, 114 F.3d at 134.
{11} In the converse factual scenario, the Supreme Court of Washington held that an Indian tribal officer had authority to stop a speeding vehicle on the reservation to investigate a possible violation of the tribal traffic code and to determine if the driver was an Indian, subject to the tribal code's jurisdiction. State v. Schmuck, 121 Wash.2d 373, 850 P.2d 1332, 1337 (1993) (en banc). We therefore decline Defendant's invitation to follow State v. Cummings, 679 N.W.2d 484 (S.D.2004), and State v. Spotted Horse, 462 N.W.2d 463 (S.D.1990), to the extent that they are contrary to the reasoning of Patch and Schmuck. It is well established that a state police officer has the authority and jurisdiction to arrest a person who is not a tribal member on a reservation. State v. Warner, 71 N.M. 418, 421-22, 379 P.2d 66, 68-69 (1963). We therefore hold that Officer Charley had authority to stop Defendant on the Navajo Reservation to investigate the traffic offense he observed off the Navajo Reservation and to determine if Defendant was a member of the Navajo Nation.
{12} Immediately upon approaching the vehicle, Officer Charley noted that Defendant had bloodshot, watery eyes and smelled of alcohol. Further, Defendant admitted to throwing a Budweiser out of his vehicle while crossing the bridge, and Officer Charley had observed Defendant driving twenty-one miles per hour over the speed limit. Defendant agreed to perform field sobriety tests. Defendant argues that even if Officer Charley had authority to make the stop on the Navajo Reservation, once he determined that Defendant was Navajo, his continued detention of Defendant to perform the field sobriety tests violated the Fourth Amendment. We reject Defendant's argument because it fails to recognize that a person can voluntarily take the field sobriety tests and because the issue of whether Defendant consented to the tests was not squarely litigated below, though there was evidence pursuant to which the district court could have found that he did so consent.
{13} We have already determined that Officer Charley had the authority to stop Defendant. As a result, "only the reasonableness of the detention need be examined." State v. Ryder, 98 N.M. 453, 455, 649 P.2d 756, 758 (Ct.App.1982), aff'd, 98 N.M. 316, 648 P.2d 774. "Consent is an exception to the Fourth Amendment probable cause and reasonable suspicion requirements that police often rely on to investigate suspected criminal activity." State v. Ryon, 2005-NMSC-005, ¶ 20, 137 N.M. 174, 108 P.3d 1032. In New Mexico, there is no implied consent law by which a driver consents to taking field sobriety tests. See State v. Wright, 116 N.M. 832, 835, 867 P.2d 1214, 1217 (Ct.App.1993) (noting that there is no New Mexico law implying consent to taking field sobriety tests). Therefore, a driver may refuse to perform field sobriety tests, although the refusal is admissible into evidence. Id. at 835-36, 867 P.2d at 1217-18; see State v. Sanchez, 2001-NMCA-109, ¶ 9, 131 N.M. 355, 36 P.3d 446 ("The [s]tate can use evidence of a driver's refusal to consent to the field sobriety testing to create an inference of the driver's consciousness of guilt."). In this regard, simply because a police officer requests a driver to perform *1150 field sobriety tests in the context of a traffic stop does not automatically transform the request into a demand that precludes, as a matter of law, a finding of a valid consent. We agree with People v. Walter, 374 Ill. App. 3d 763, 313 Ill. Dec. 344, 872 N.E.2d 104, 113 (2007) when it states:
A request to submit to a field sobriety test, without more, is still a request, and whether submission to the particular request at issue amounts to a seizure may very well depend on the many possible circumstances surrounding the request as well as the nature of the request itself. As such, despite [case law from other jurisdictions], we are not prepared to say ourselves that submission to an officer's request to submit to a field sobriety test per se converts an encounter into a fourth amendment seizure or search. Nor are we prepared to say that submission to a request, rather than to an order, to take a field sobriety test cannot constitute consent to the possible search the test might entail.
Id.
{14} In this case, Officer Charley was specifically asked whether Defendant agreed to perform the field sobriety tests, and Officer Charley answered, "Yes, he did." Defendant did not challenge this testimony in the district court, and he makes no argument to us that his consent was not voluntary. We therefore conclude that Defendant voluntarily performed the field sobriety tests. See State v. Ramos, 149 Or.App. 269, 942 P.2d 841, 842-43 (1997) (concluding that the defendant's consent to perform field sobriety tests was voluntary, where officer asked driver if he would mind performing tests, driver said he did not mind, and driver did not indicate in his testimony that he felt coerced in any way). Under these circumstances we hold that Defendant's jurisdictional claim is moot. See State v. McCormack, 117 Idaho 1009, 793 P.2d 682, 682-83 (1990) (concluding that the suppression issues related to breath alcohol tests were moot because the defendants voluntarily submitted to the breath alcohol tests following their arrest within an Indian reservation by a state police officer).
{15} We conclude this opinion by noting that Officer Charley scrupulously respected Navajo Nation sovereignty. Officer Charley recognized the limits of his authority and did not arrest Defendant. After concluding that Defendant was driving while intoxicated, Officer Charley was faced with a predicament because he recognized he had no authority to arrest Defendant and because no Navajo police officers were available. Rather than allowing a suspected drunk driver to get back into his vehicle and possibly injure or kill people, Officer Charley allowed Defendant the opportunity to try getting someone else to give him a ride. Learning that no ride was available, Officer Charley allowed Defendant to leave the scene walking. There was no injury to the sovereignty of the Navajo Nation.
CONCLUSION
{16} The judgment and sentence of the district court is affirmed.
{17} IT IS SO ORDERED.
WE CONCUR: LYNN PICKARD and CELIA FOY CASTILLO, Judges. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2234924/ | 929 N.E.2d 792 (2010)
KROOT
v.
CALDWELL.
Supreme Court of Indiana.
April 29, 2010.
Transfer denied. All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2907423/ | Brown-R v. State
AFFIRMED 20 SEPTEMBER 1990
NO. 10-89-256-CR
Trial Court
# 89-510-C
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
RHONNIE BROWN,
   Appellant
v.
THE STATE OF TEXAS,
   Appellee
* * * * * * * * * * * * *
From 54th Judicial District Court
McLennan County, Texas
* * * * * * * * * * * * *
O P I N I O N
* * * * * * *
This is an appeal by defendant Brown from conviction for
attempted murder for which he was assessed 12 years in the Texas
Department of Corrections and a $3,750 fine.
Defendant went to the apartment of Claudette Ali with whom he
had had a romantic relationship; saw Norman Rauls' car in front of
the apartment; kicked in the door; found Rauls and Claudette
unclothed; cut Rauls 5 times with a machete and additionally cut
him with another knife; Rauls spurted blood and a cut to his head
resulted in his brains showing; and defendant had told a witness 4
days prior to the offense that, "I'm going to do something to
[Rauls]".
Defendant appeals on 2 points.
Point 1 asserts: "The evidence is insufficient to support a
judgment of conviction as the State failed to prove that
[defendant] had the specific intent to kill".
On appeal the evidence must be viewed in the light most
favorable to the verdict when determining whether any rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, U.S.
S.Ct., 443 U.S. 319; Butler v. State, Ct.Crim.Appls, 769 S.W.2d
234; Moreno v. State, Ct.Crim.Appls, 755 S.W.2d 866.
Defendant had a prior romantic relation with Ms. Ali; the
complainant had been dating Ms. Ali for some time; defendant went
to the apartment of Ms. Ali and recognized Norman Rauls' car in
front of the building; defendant crashed in the door, pulled the
telephone loose, proceeded to the bedroom where he found Ms. Ali
and Rauls unclothed; defendant repeatedly stabbed Rauls with both
a machete and a smaller knife inflicting scores of serious wounds
which literally spewed blood and exposed Rauls' brain. Four days
earlier defendant had told Mrs. Ali's brother that, "I am going to
do something to [Rauls]".
Specific intent to kill may be proved by inferences from
indirect statements; Moreno, supra; and may also be proved by
circumstantial evidence. Medical evidence was that several of
Rauls' wounds were life threatening. Defendant argues that if he
wanted to kill Rauls he had plenty of opportunity to finish him
off. We think the evidence supports the conviction; that the jury
was authorized to believe from the evidence that defendant intended
to kill Rauls and, accordingly, overrule point 1.
Point 2 asserts: "The trial court committed reversible error
by improperly defining the lesser-included offense of aggravated
assault in the court's charge".
Defendant contends the instruction given on aggravated assault
was fatally defective because it failed to contain both ways in
which the offense can be committed.
Assuming, without deciding, that the court's charge improperly
set out the offense of aggravated assault, any error in the
instructions setting out the lesser-included offense cannot
constitute reversible error when the jury returned a verdict on the
primary charge. We presume the jury followed the instructions
contained in the court's charge. O'Pry v. State, Ct.Crim.Appls,
642 S.W.2d 748. The court's charge instructed: "Unless you so
find beyond a reasonable doubt, or if you have a reasonable doubt
thereof, you will acquit the defendant of the offense of attempt to
commit murder and next consider whether he is guilty of the lesser
offense of attempt to commit voluntary manslaughter".
The court further instructed: "* * or if you have a
reasonable doubt as to whether he had the specific intent to so
cause the death of the said Norman Rauls, you cannot convict the
defendant of either attempt to commit murder or attempt to commit
voluntary manslaughter. In such event of said reasonable doubt,
you will acquit the defendant of attempt to commit voluntary
manslaughter and consider next whether or not defendant is guilty
of aggravated assault".
In accordance with the instructions the jury stopped its
consideration of the charge after finding defendant guilty of
attempted murder "because they did not have a reasonable doubt that
would require them to consider further". O'Pry, 642 S.W.2d at 765.
To the same effect are Thomas v. State, Ct.Crim.Appls, 587 S.W.2d
707; Garrett v. State, Ct.Crim.Appls, 642 S.W.2d 779; DeLeon v.
State, CA (San Antonio), 659 S.W.2d 860; Depauw v. State, CA
(Amarillo), 658 S.W.2d 628.
Point 2 is overruled.
AFFIRMED
Â
                          FRANK G. McDONALD
DO NOT PUBLISHChief Justice (Retired)
[Participating: Chief Justice Thomas, Justices Hall and Means and
Chief Justice McDonald (Retired)]
All fees due to the Tenth Court of
Appeals Clerk, including the $125 filing fee and $10 motion fees for nine
motions ($90), are due within ten days after the date of this Order. If
payment is not timely made, the Court may dismiss HashmiÂs appeal on the
merits. See Tex. R. App. P.
42.3(c).
Â
PER CURIAM
Â
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Brief struck; motions
denied; fees due
Order issued and filed
August 31, 2005
Do not publish
 | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2263317/ | 142 F.Supp. 570 (1956)
Francisco ROMERO, Plaintiff,
v.
INTERNATIONAL TERMINAL OPERATING CO., Compania Transatlantica, also known as Spanish Line, Garcia & Diaz, Inc., and Quin Lumber Co., Inc., Defendants.
United States District Court S. D. New York.
June 15, 1956.
*571 Narciso Puente, Jr., New York City, Silas B. Axtell, New York City, Charles A. Ellis, New York City, of counsel, for plaintiff.
Bigham, Englar, Jones & Houston, New York City, John L. Quinlan, John B. Shields, New York City, of counsel, for defendants Compania Transatlantica, etc. and Garcia & Diaz, Inc.
*572 John P. Smith, New York City, Albert S. Commette, New York City, of counsel, for defendant International Terminal Operating Co.
William J. Kenney, New York City, Alexander & Ash, New York City, of counsel, Sidney A. Schwartz, New York City, of counsel, for defendant Quin Lumber Co., Inc.
SUGARMAN, District Judge.
On May 12, 1954, the S. S. Guadalupe was berthed at Pier 2, Hoboken, New Jersey. During preparations for the receipt of cargo, Francisco Romero, a member of the crew, was severely injured. Twelve days later he commenced suit in this court.
By amended complaint his action ultimately proceeded against four defendants, i. e., International Terminal Operating Co. (International), Compania Transatlantica, also known as Spanish Line (Compania), Garcia & Diaz, Inc. (Garcia), and Quin Lumber Co., Inc. (Quin). In due course, the case was sent to a jury part for trial. Prior to the commencement of the trial proper, the defendants orally moved for dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter. Inasmuch as determination of these motions necessitated the resolution of facts, the court ordered a pretrial hearing on the motions.[1]
The objection by the plaintiff to the course pursued, upon the ground that the defendants waived the defense by interposing general appearances is overruled.[2] The objection by the plaintiff to the course pursued upon the ground that he was entitled to a jury trial on the controverted facts is likewise overruled.[3]
The plaintiff's motion to strike all testimony and exhibits is denied.
At the hearing it was stipulated by all parties that (1) plaintiff is a subject of Spain; (2) defendant International is a Delaware corporation; (3) defendant Compania is a Spanish corporation; (4) defendant Garcia is a New York corporation; (5) defendant Quin is a New York corporation; (6) on May 12, 1954, plaintiff was employed as a member of the crew of and on board the S. S. Guadalupe; (7) the S. S. Guadalupe on May 12, 1954, was owned by the defendant Compania; (8) defendant Quin was an independent contractor under an oral contract with defendant Garcia for certain carpentry work necessary on the S. S. Guadalupe in preparation for the receipt of a cargo of grain; (9) defendant International was employed as stevedore to load the cargo pursuant to an oral contract with defendant Garcia; (10) the S. S. Guadalupe was registered under the Spanish flag; (11) the voyage, during which plaintiff was injured, commenced at Balboa, Spain, after which the vessel touched at other Spanish ports, came to the port of New York (Hoboken), went to Havana, Vera Cruz, back to Havana and returned to Hoboken, where it was when the accident happened.
The parties refused to stipulate as to the management, operation and control of the S. S. Guadalupe on May 12, 1954 and as to the contract of employment under which plaintiff was aboard the vessel on that day. Proof was taken on the two disputed issues.
As to Management, Operation and Control of the S. S. Guadalupe on May 12, 1954.
The plaintiff's amended complaint alleges in Paragraph Fifth that defendant Compania operated, managed and controlled the vessel and in Paragraph Sixth that defendant Garcia operated, controlled and managed the vessel. On the basis of the deposition of defendant Garcia, through its treasurer, William Martinez, taken by plaintiff on June 10, 1954, and the contract between defendants Garcia *573 and Compania, it is manifest that defendant Garcia was no more to the vessel than a husbanding agent acting in every respect for its principal, defendant Compania. It appears without contradiction that neither Garcia nor any stockholder thereof owns any stock in Compania, nor is any director of Garcia a director of Compania, nor does Garcia exercise any control over Compania. It further appears that the relationship between Garcia and Compania originated in 1935 when a partnership, the predecessor of Garcia, commenced representing Compania in this port. That partnership was succeeded by the present corporate defendant, Garcia, and pursuant to a contract made in 1948 between Garcia and Compania, the former has since that time husbanded the latter's vessels in this port. It further appears that defendant Garcia represents as many as ten other Spanish and Cuban ship owners in this port, none of whom is a subsidiary of defendant Compania. It further appears that defendant Garcia did not contribute financially to the purchase or construction of the S. S. Guadalupe. As such agent, defendant Garcia pays the pilot and docking charges and the charges for water and supplies for the vessels of defendant Compania, but all for the account of the defendant Compania. For this service defendant Garcia receives from the defendant Compania commissions, based upon the incoming and outgoing freight and passenger traffic. There was no proof adduced at the pretrial hearing of management, operation and control by Garcia except as it might arise by virtue of the agency agreement. Nor did plaintiff offer any proof of any negligent act by defendant Garcia within the scope of the agency, contributing to his injury.
As to the Contract under Which the Plaintiff Was A Crew Member of the S. S. Guadalupe on May 12, 1954.
There was received in evidence an agreement executed on October 9, 1953, between plaintiff and defendant Compania. Within its four corners, that document clearly contemplates the plaintiff's employment by the said defendant for one round trip on the vessel to commence about October 10, 1953. It is agreed by all parties that no subsequent written contract was entered into between plaintiff and defendant ship owner. Nevertheless, at the completion of the round trip specifically identified in the written contract, plaintiff remained on board the vessel performing the same functions as deck hand for subsequent voyages, during one of which he met with his injury on May 12, 1954, at Hoboken, New Jersey, as aforesaid.
Testimony was taken from experts in Spanish law upon which the court finds that under the codes, laws and regulations of Spain, where a seaman sails on a given voyage pursuant to a written contract and subsequently thereafter uninterruptedly, as in this case, remains in the employ of the ship during subsequent voyages, the subsequent service is under all the terms and conditions set forth in the original written contract.
The written contract provided, among other things, that the parties thereto submitted themselves "to the provisions established by the Codes of Laws regulating Commerce and Labor as also all other regulations in force". It also provided "22) In the event of accidents occurring during the accomplishment of this Contract, these will be subject to the legislative provisions in force to this effect, as also all such will be complied with regarding social insurances as determined by the Laws".
The court also finds, on the basis of the testimony of the experts in Spanish law, that plaintiff has a right, by virtue of his injury, to a pension for life of somewhere between 35% and 55% of his seaman's wages which, if the negligence of the ship owner is established, may be increased by one half. It is also found that under the pertinent Spanish law, provision is made for plaintiff for the counterpart of maintenance and cure. It is also found that plaintiff's said *574 rights may be asserted by demand upon the Spanish Consul in this city.
On the basis of the foregoing stipulated and found facts we turn now to the question of jurisdiction in this court to entertain the action.
The amended complaint in four causes of action seeks (a) damages against the defendants Compania and Garcia under the Jones Act, 46 U.S.C.A. § 688, for negligence and under the general maritime law for unseaworthiness of the vessel; (b) damages against the defendant Compania for maintenance and cure; (c) damages against all four defendants under the general admiralty law for a maritime tort. A jury trial is demanded. The possible bases of jurisdiction are four: (1) the Jones Act; (2) a federal question; (3) diversity; (4) discretionary, under the general maritime law; the first three on the law side with a trial by jury, the fourth in admiralty with a trial to the court.
(1) Jurisdiction under the Jones Act.
It is settled in this circuit since The Paula[4] and as recently as Paduano v. Yamashita, etc.,[5] that
"Alien seamen serving upon foreign ships owned by aliens, and bound upon a voyage which begins and ends outside the United States, cannot sue under the Jones Act for injuries suffered while the ship happens to be stopping at a port of call within our territorial waters."[6]
Accordingly, the plaintiff's action against the defendant Compania under the Jones Act must be dismissed.
In the light of the finding above that the defendant Garcia was solely an agent for the husbanding of the S. S. Guadalupe, plaintiff's Jones Act claim against this defendant must also be dismissed.[7]
(2) Jurisdiction because of a federal question.
It is similarly established in this circuit[8] that the facts herein present no federal question.
(3) Jursdiction because of diversity.
Inasmuch as plaintiff and defendant Compania are both subjects of Spain, necessary diversity is lacking.[9]
(4) Discretionary jurisdiction in admiralty under the general maritime law.
In the light of the finding hereinabove that under Spanish law the plaintiff may have compensation for his injury with an additional amount if the defendant Compania is found to have been negligent and that plaintiff is also accorded under Spanish law the counterpart of maintenance and cure and that he may assert his claims to a Spanish Consul here, this court should and does decline jurisdiction even in admiralty as a matter of discretion.[10]
For the foregoing reasons, and plaintiff having elected at the pre-trial hearing not to amend his complaint and proceed upon diversity jurisdiction at law against defendants Garcia, International and Quin and having elected not to amend his complaint and proceed by libel in admiralty without a jury on general maritime jurisdiction against (a) all defendants if discretionary jurisdiction against defendant Compania is retained, or (b) if not, against defendants Garcia, International and Quin, the defendants' motions are granted and the complaint herein is dismissed.
It is so ordered.
NOTES
[1] Fed.Rules Civ.Proc. rule 12(d), 28 U.S. C.A.
[2] Fed.Rules Civ.Proc. rule 12(h), 28 U.S. C.A.
[3] 5 Moore's Fed.Prac., 2d Ed., rule 294, para. 38.36; 2 Moore's Fed.Prac., 2d Ed., 2274, para. 12.16.
[4] 2 Cir., 91 F.2d 1001.
[5] 2 Cir., 221 F.2d 615.
[6] Gambera v. Bergoty, 2 Cir., 132 F.2d 414, 415, certiorari denied 319 U.S. 742, 63 S.Ct. 1030, 87 L.Ed. 1699.
[7] Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, at page 790, 69 S.Ct. 1317, 93 L.Ed. 1692.
[8] Paduano v. Yamashita, etc., supra. See also Troupe v. Chicago, Duluth & Georgian Bay Transit Company, 2 Cir., 234 F.2d 253.
[9] Tsitsinakis v. Simpson, Spence & Young, D.C.S.D.N.Y., 90 F.Supp. 578.
[10] Nakken v. Fearnley & Egger, D.C.S.D. N.Y., 137 F.Supp. 288. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611816/ | 180 Ariz. 328 (1994)
884 P.2d 214
Billy Lee LITTLE, Jr., and Robert A. Hirschfeld, Petitioners,
v.
SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Brian R. Hauser, a judge thereof, Respondent Judge, Lisa LITTLE, Real Party in Interest.
No. 1 CA-SA 94-0045.
Court of Appeals of Arizona, Division 1, Department C.
May 3, 1994.
Review Granted and Denied November 29, 1994.
Order Granting Review Vacated, Review Denied, and Motion to Depublish Denied March 6, 1995.[*]
*329 Cheifetz, Pierce, Cochran & Mathew, P.C. by Claudio E. Iannitelli and Robert A. Hirschfeld, Phoenix, for petitioners.
Janet Phillips, Phoenix, for real party in interest.
Review Granted on issue A and Denied on other issues November 29, 1994.
OPINION
KLEINSCHMIDT, Judge.
In this special action, the Petitioners, Billy Little and his attorney Robert Hirschfeld, argue that the trial court abused its discretion when it found them in contempt of court for violating a preliminary injunction and when it ordered them to pay Lisa Little $9,350, as restitution. Contempt orders are not appealable but are reviewable in appropriate circumstances by special action. Riley v. Superior Court, 124 Ariz. 498, 499, 605 P.2d 900, 901 (App. 1979). We accept jurisdiction because the issue presented has not been previously addressed, and because it is of general interest and importance.
Billy and Lisa Little sought a dissolution of their marriage. After the action was filed, the trial court issued a preliminary injunction, in accordance with Arizona Revised Statutes Annotated ("A.R.S.") section 25-315(A), enjoining both Billy and Lisa from "transferring, encumbering, concealing, selling or otherwise disposing of any of the joint, common or community property of the parties except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court." (Emphasis added.)
Billy Little acknowledged that he received and understood the injunction, but, on the advice of his attorney, Billy or someone acting on his behalf went to Glendale Community College, where Lisa Little attended school, took a 1993 Dodge van which Lisa had been driving, and left her with Billy's truck in its place. Lisa's attorney objected to Billy's selling the van. Nonetheless, Billy did sell it for about $5,000 less than its market value. He used the proceeds to pay his attorney's fees and to purchase a less expensive vehicle for himself. The court found Billy Little and Robert Hirschfeld in contempt of court for violating the preliminary injunction.
The Petitioners argue that the sale of the van did not violate the injunction because Billy used the proceeds for "necessities of life" which are exempted from the protection of the injunction. They assert that "legal services become a necessity of life for a respondent spouse who wishes to protect his or her rights afforded by law."
There are several reasons why the Petitioners' argument is not persuasive. We have recognized, in other contexts, that necessities of life include such things as food, clothing, shelter, medical care and transportation. State v. Morris, 173 Ariz. 14, 19, 839 P.2d 434, 439 (App. 1992). They are necessities because they are commonly required by everyone for the basic sustenance of life. See Lentfoehr v. Lentfoehr, 134 Cal. App.2d Supp. 905, 286 P.2d 1019, 1021 (Cal.Super. 1955). Attorney's fees are not normally *330 thought of as being in the same elemental category.
Further, A.R.S. section 25-324 addresses the award of attorney's fees in domestic relations cases. It provides that the court may, from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount to the other party for attorney's fees for maintaining or defending any dissolution of marriage proceeding. The obvious purpose of the statute is to ensure that parties have the where-withal to litigate the action. Garrett v. Garrett, 140 Ariz. 564, 569, 683 P.2d 1166, 1171 (App. 1983). Another statute, A.R.S. section 25-315(E), provides that "[t]he court may also make temporary orders respecting the property of the parties, as may be necessary."
Certainly, the terms of A.R.S. sections 25-324 and 25-315(E), together with the power of the court under A.R.S. section 25-315(A)(1)(a) to alter the injunction entered at the outset of the dissolution action, are broad enough to allow the sale of community property to pay attorney's fees if the court deems it necessary to do so. Because the legislature provided a means for a party to seek leave to pay fees, it seems doubtful to us that it intended to include fees within the meaning of "necessities of life" which are not covered by the injunction. Billy's resort to self-help in the face of an adequate method of seeking the court's aid in hiring an attorney was a clear violation of the preliminary injunction.
We realize that in some jurisdictions, such as California[1] and Illinois,[2] parties to an action for dissolution may dispose of marital property for the purpose of paying attorney's fees. In both those states, however, the disposal of property to pay such fees is expressly excluded from the provisions of the restraining order which is entered at the commencement of a dissolution action. If the Arizona legislature had wanted to effect such a policy, it could easily have done so.
The Petitioners cite to a number of cases, arguing that legal services rendered to a wife are necessities for which a husband may be liable. Pelusio v. Pelusio, 130 N.J. Super. 538, 328 A.2d 10 (A.D. 1974); Wolf v. Friedman, 20 Ohio St. 2d 49, 253 N.E.2d 761 (1969); Citizens and Southern Nat'l Bank v. Orkin, 223 Ga. 385, 156 S.E.2d 86 (1967); Weiss v. Melnicove, 218 Md. 571, 147 A.2d 763 (1959); Read v. Read, 119 Colo. 278, 202 P.2d 953 (1949); Brook v. Morriss, Morriss & Boatwright, 212 S.W.2d 257 (Tex.Civ.App. 1948); Stone v. Conkle, 31 Cal. App. 2d 348, 88 P.2d 197 (1939); Elder v. Rosenwasser, 238 N.Y. 427, 144 N.E. 669 (1924); Conant v. Burnham, 133 Mass. 503 (1882); Morris v. Palmer, 39 N.H. 123 (1859). All of these cases, however, deal with the doctrine of necessities, i.e., the liability of a husband for debts incurred by a wife. None involves the ability of a spouse to dispose of community property and spend the money for legal services for himself despite an injunction forbidding the transfer of community property. The purpose of the doctrine of necessities is to ensure that spousal obligations are paid whereas the purpose of the injunction is to prevent the dissipation of community assets. The authorities cited fail to persuade us that the injunction does not extend to the sale of community assets to pay one's own attorney's fees.
*331 The Petitioners also argue that some of the proceeds from the sale of the van were used to buy another car and that such is a necessity of life. While transportation is a necessity of life, Morris, 173 Ariz. at 19, 839 P.2d at 439, there is no showing in the record that Billy Little needed a new car for essential transportation. He already had a truck.
The Petitioners next argue that the phrase "necessities of life" is ambiguous so that it does not give adequate notice to Billy that his conduct would violate the injunction. We disagree because "the language used in the injunction conveyed sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Stone v. Godbehere, 894 F.2d 1131, 1133 (9th Cir.1990).
Finally, the Petitioner Hirschfeld argues that even if the attorney's fees and the purchase of the car do not constitute "necessities of life," the record does not support a finding of contempt against him because it does not disclose that he was the attorney who advised Little to sell the van. To support his argument, he points out that he is the second attorney who has represented Billy Little in this action.
On this subject, the evidence reveals that Matthew McDevitt, Billy Little's friend, testified without objection on both direct and cross-examination that Billy Little told him that "[Billy Little] had confirmed it with his attorney, and his attorney advised him that he should take the van," and that "his attorney had advised him ... that he should take the van and, you know, pay for his attorney's fees with it or whatever." Based on the record before us, McDevitt's testimony was admissible and uncontradicted. See Velasco v. Mallory, 5 Ariz. App. 406, 413, 427 P.2d 540, 547 (1967) (hearsay evidence received without objection is sufficient to establish a fact and may be given the value of direct and competent evidence).
It is true that McDevitt's testimony does not reveal the name of the attorney who advised Little to sell the van. However, Billy removed Lisa's van on September 21, 1993. Immediately thereafter he tried to sell the van to a car dealer. On September 24, 1993, the attorney for the car dealer called Robert Hirschfeld regarding the preliminary injunction and the dealer refused to proceed with the sale. It is obvious from this that Hirschfeld was acting as Billy Little's attorney as early as September 24, 1993. Several weeks thereafter, Billy sold the van to another dealer. The trial judge could reasonably infer from the sequence of events that Hirschfeld was the attorney who advised Billy to proceed with the sale.
The trial court did not abuse its discretion in finding the Petitioners in contempt of court for violating a preliminary injunction and in ordering them to pay Lisa Little $9,350, which constitutes Lisa's share in the fair market value of the van. This was a remedy available under A.R.S. section 25-315(G)(5), which authorizes the court to enjoin the disposal of property and provides specific means for enforcing the injunction including "any other civil or criminal remedies available." Accordingly, jurisdiction is accepted but relief is denied. Lisa Little's request for attorney's fees and costs on this special action is granted.
LANKFORD, P.J., and EHRLICH, J., concur.
NOTES
[*] Chief Justice Feldman dissents from this order because he believes that the Court of Appeals should have affirmed the trial court's order on the issue presented: Mr. Little and his attorney violated the trial judge's preliminary injunction by seizing Mrs. Little's automobile and selling it. Justice Feldman would therefore have granted the motion to depublish the opinion. [Editor's Note: This order will also be separately published in a later volume.]
[1] California Family Code § 2040 provides that a temporary restraining order will be used "restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life ... However, nothing in the restraining order shall preclude the parties from using community property to pay reasonable attorney's fees in order to retain legal counsel in the proceeding." (Emphasis added.)
[2] Illinois Revised Statutes chapter 750, sec. 5/501.1 provides that a preliminary injunction "restrains both parties from transferring, encumbering, concealing, destroying, spending, damaging, or in any way disposing of any property, without the written consent of the other party or order of the Court, except in the usual course of business, for the necessities of life, or for the reasonable costs and expenses, and attorney's fees arising from the proceedings." (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877255/ | 88 S.W.3d 343 (2002)
In re HARVEST COMMUNITIES OF HOUSTON, INC., d/b/a Harvest Communities of Hondo.
No. 04-02-00410-CV.
Court of Appeals of Texas, San Antonio.
July 31, 2002.
*345 David J. Coates, Jay D. Hirsch, Hirsch Robinson, P.C., Houston, Robert E. Valdez, Robert E. Valdez, P.C., San Antonio, for Appellant.
Christopher A. Payne, Beth S. Janicek, Maloney & Maloney, P.C., San Antonio, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
Opinion by PHIL HARDBERGER, Chief Justice.
Harvest Communities of Houston, Inc. d/b/a Harvest Communities of Hondo ("Harvest") seeks mandamus relief from an order striking its expert Dr. Larry Watson from testifying.[1] We do not condone the behavior of Harvest's counsel, Jay Hirsch. We also agree with the trial court that Hirsch's actions are sanctionable, but we conditionally grant the writ because striking Dr. Watson's testimony was a death penalty sanction, and the trial court made no effort to remedy the situation with a lesser sanction.
BACKGROUND
Joey Mennella is mentally retarded and is a patient at Harvest. The Mennellas sued Harvest in 1999, claiming that Harvest was negligent in connection with its care of Joey when he suffered a ruptured appendix. The lawsuit was stayed due to Harvest's bankruptcy proceedings. After the stay was lifted, a scheduling order was entered in December of 2001. Harvest timely designated two medical experts Dr. Silverman and Dr. Watson.
Harvest's attorneys failed to respond to a request by the Mennellas' attorneys for deposition dates. On April 23, 2002, the Mennellas sent a letter to Harvest's attorney noting that in his letter, Harvest's attorney stated that Dr. Silverman would not be available until 1:00 p.m. on May 9. The Mennellas' attorneys stated that Dr. Silverman's deposition would be taken at 1:00 p.m. on May 9, and Dr. Watson's deposition would be taken on May 10 at 10:00 a.m. On April 16, the Mennellas' attorneys sent deposition notices to Harvest's attorney, stating "We have contacted your office on numerous occasions asking for dates for these depositions but have been unsuccessful. Therefore, we are proceeding with noticing these depositions."
On the morning of May 9, as the Mennellas' attorneys were traveling to Houston for Dr. Silverman's deposition, they were notified that Dr. Watson would not be available on May 10 due to a conflict. There is some confusion in the record about Dr. Watson's problem, but Dr. Watson states in an affidavit that he was obligated to attend an emergency meeting as Department Chairman and Surgery Section Chief concerning a physician on May 10 at 1:00 p.m., and he might not have time to finish the deposition.
When counsel arrived for Dr. Silverman's deposition, Hirsch confirmed that Dr. Watson would not be available for his *346 deposition the following day. Hirsch offered an alternative schedule and offered to pay for any expenses incurred by the Mennellas' attorneys due to the rescheduling. Hirsch denies that his production of Dr. Watson was conditioned on the production of plaintiff's experts, and the reporter's record from Dr. Silverman's deposition reflects that in response to whether Hirsch was conditioning the tender of Dr. Watson, Hirsch stated, "No. You know, you can get him deposed, and if there's any expense because it's undue [sic] to you, we'll see that you get compensated for it."
During the deposition of Dr. Silverman, counsel became involved in a heated exchange. After the exchange, the deposition was prematurely terminated.
The discovery deadline was May 17, 2002. A motion for continuance was denied. On May 17, the trial court conducted a hearing on the Mennellas' motion to strike Dr. Silverman and Dr. Watson as a sanction for discovery abuse. The trial court granted the motion. Harvest filed a motion to reconsider with regard to Dr. Watson. The motion to reconsider was denied. Harvest seeks mandamus relief only as to the portion of the trial court's order striking Dr. Watson.
DISCUSSION
Rule 215 of the Texas Rules of Civil Procedure provides for the imposition of sanctions in the event of an abuse of discovery. Tex.R. Civ. P. 215. The rule leaves the choice of sanctions to the sound discretion of the trial court, subject only to the sanctions being "just." TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). Whether sanctions are just is determined by a two-part test. Id. First, there must be a direct relationship between the offensive conduct and the sanction imposed, which requires a trial court to at least attempt to determine whether the offensive conduct is attributable to counsel only, or to the party only, or to both. Id. Second, the sanction must not be excessive. Id.
The trial court found that the conduct of Harvest's attorney, Jay Hirsch, in the deposition of Harvest's expert, Dr. Silverman, was "egregious and merit[ed] the imposition of sanctions." There is evidence in our record to support the trial court's finding.
Mennellas' counsel, who was taking the deposition, was repeatedly interrupted by long, argumentative objections by Hirsch, some of which lasted several pages. These objections were in violation of Rule 199.5(e) which limits objections to questions during the oral deposition to "Objection, leading" and "Objection, form." See Tex.R. Civ. P. 199.5(e). The purpose of the Rule was to prevent the kind of obstructive behavior that was exhibited here and to save substantive complaints for a later hearing before the trial court. Reminders by Mennellas' counsel to Hirsch regarding the applicable Rules of Civil Procedure and efforts to ensure that Hirsch complied with the rules were given short shrift. In a typical exchange during the deposition, Mennellas' counsel complained of Hirsch's speech-making and reminded Hirsch, "You're entitled to make the objection as to formand then you are to stop." Counsel's reminder was a fair restatement of Rule 199.5(e), but Hirsch's response was:, "You're not going to tell me a thing. You just keep your mouth shut. We're through." Shortly thereafter, the deposition terminated when Hirsch said, "... seek your sanctions. It's over."
Hirsch was also not shy to put on the record what he thought about the ability of Mennellas' counsel to ask questions. Hirsch characterized the questions as "incredible," *347 "nonsense," "an incredible waste of time," "preposterous," and "absurd." Before prematurely terminating Dr. Silverman's deposition, Hirsch gave his parting opinion, stating that Mennellas' counsel had asked, "... the most preposterous questions I've seen in nearlyin 39 years of practicing law, I've never seen anybody like you." Such comments clearly are not in keeping with a lawyer's responsibilities under the Texas Disciplinary Rules of Professional Conduct which requires a lawyer to demonstrate respect for the legal system and for those who serve it, including other lawyers. Tex. Disciplinary R. Prof'l Conduct preamble ¶ 4, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998).
The termination of the deposition by Hirsch came at a difficult time. The Discovery Control Plan that governed the case provided for the conclusion of discovery on May 17, only eight days after the abrupt termination of Dr. Silverman's deposition. The Mennellas did not do any better with their efforts to depose Harvest's other expert, Dr. Watson. That deposition had been scheduled the morning after Dr. Silverman's deposition and was documented by a formal notice and a confirming phone call. Nevertheless, the Mennellas' attorneys were informed on their drive to Houston from San Antonio to take Dr. Silverman's deposition, that Dr. Watson's deposition was going to be unexpectedly cancelled because of a meeting the doctor needed to attend. The trial court found that the Mennellas "repeatedly requested the depositions of the Defendant's two designated experts" and the "Defendants had never provided dates for the deposition." The record supports this finding. Ultimately, eight days before discovery ended, the Mennellas had only been able to take one partial deposition of the two experts designated by Harvest.
Harvest offered to reschedule the deposition of Dr. Watson, but after having been so roughly treated during Dr. Silverman's deposition, counsel for the Mennellas elected to return to San Antonio and seek the sanctions that they had been invited to seek by Hirsch.
In its motion requesting the trial court to reconsider the sanctions, Harvest did not challenge the striking of Dr. Silverman. Harvest takes the position that by limiting its motion to reconsider to the striking of Dr. Watson, the discovery abuse that occurred with respect to and during Dr. Silverman's deposition no longer has any relevance. The history of Dr. Silverman's deposition, however, could be considered by the trial court in its overall consideration of the appropriate sanction and can be considered by this court in our review of that sanction. Witnesses are designated and dedesignated for many reasons. The selection of witnesses is, indeed, as Harvest conceded, "a tactical decision." Perhaps the concession with regard to Dr. Silverman was self-penance for Hirsch's behavior in Dr. Silverman's deposition, but perhaps Harvest's attorneys simply believed that Dr. Silverman would not be an effective witness. The trial judge has the authority to look at the entire course of discovery, and not simply what the party's wish to present in isolation for inspection.
The trial court was well within his discretion to assess sanctions in this case, including harsh sanctions. Such attorney misbehavior demeans the entire profession, and should be punished. This does not end the discussion though because the sanctions must be just and the punishment must fit the crime. TransAmerican, 811 S.W.2d at 917.
TransAmerican teaches us that the concept of "just," among other things means "whether the offensive conduct is attributable *348 to counsel only, or to the party only, or to both," and that "just sanctions must not be excessive" 811 S.W.2d at 917. Striking all of the expert witnesses in a medical malpractice case is a serious matter.
The Mennellas contend that the trial court's order striking Dr. Watson is not a death penalty sanction because Harvest had designated 12 other possible experts. Harvest's second supplemental designation of experts does list 12 additional "treating physicians and health care providers who can be expected to give expert testimony at trial" and the designation does state that Harvest "anticipates that expert testimony may be elicited from some of these treating health care providers regarding standard of care issues, causation issues, and damages issues to the extent the individual provider is qualified to render same." However, these treating physicians and health care providers are not experts retained by Harvest to provide an opinion as indicated by the fact that Harvest lists its "independently retained experts" in a separate section of its designation.
We agree with Harvest that there is a difference between a retained expert and an expert who is a fact witness. As defense counsel explained, "They are non-retained experts, which means they will not do a history, they will not be in position to study the records and give a picture to anyone what the chronology was in the events that take place so that they can give an opinion, much more than what they just did. [The] [o]nly thing they are going to testify about is what they saw and did." Unlike these fact witnesses, Dr. Watson was retained to review the entirety of the medical records and was "expected to testify regarding the medical probability that the Decedent's appendix ruptured after he was no longer under the Defendant's care." At the time Dr. Watson's testimony was stricken, Harvest had no other expert that it could rely on to controvert the causation element of the Mennellas' claim.
The Mennellas' argument is an interesting one and has some is required, Revco, D.S., Inc. v. Cooper, 873 S.W.2d 391, 396 (Tex.App.-El Paso 1994, no writ), we find that striking Dr. Watson's testimony does amount to a death penalty sanction. Under these circumstances, the party involved is the one who ultimately suffers. The party is denied its day in court. While Hirsch's offensive behavior is obvious in this case, there is no evidence that Harvest has been guilty of anything greater than hiring an attorney who offends.
"[A] party should not be punished for counsel's conduct in which it is not implicated apart from having entrusted to counsel its legal representation." TransAmerican, 811 S.W.2d at 917. Except under the most extreme circumstances, a party should not be denied its Constitutional right to a trial by jury simply because its attorney misbehaved and ignored the Rules of Civil Procedure. Lesser sanctions were possible in this case, and we appreciate the candor evidenced by the Mennellas' attorney in oral argument in agreeing that the record does not reflect that the trial court considered a lesser sanction.
A great deal of information was relayed to the panel during oral argument that is outside the record that was before the trial court at the time the trial court made its ruling, including depositions that the parties agreed to take after the trial court's ruling and testimony by the witnesses in those depositions. However, a judgment cannot rest upon what may or may not occur after its rendition. Taylor v. Hicks, 691 S.W.2d 839, 841 (Tex.App.-Fort Worth 1985, no writ); Beavers v. Beavers, 675 S.W.2d 296, 300 (Tex.App.-Dallas *349 1984, no writ). A judgment must take its validity from the action of the court at the time it is rendered and not from what persons may or may not do after the court has rendered the judgment. Taylor, 691 S.W.2d at 841. We believe a similar rule must be applied in considering whether the trial court's order was an abuse of discretion in this case. We can only consider the record that was before the trial court at the time of the hearing in determining whether the trial court's ruling was in accordance with the guiding rules and principles set forth in TransAmerican. Based on that record, we conclude that the trial court's order striking Dr. Watson's testimony was an improper death penalty sanction because the trial court failed to consider lesser sanctions.
Our holding should not be read as condoning Hirsch's antics. The discovery abuse in this case deserves sanctions; however, we simply hold that before a death penalty sanction can be levied, the trial court must "consider the availability of less stringent sanctions and whether such lesser sanctions would fully promote compliance." TransAmerican, 811 S.W.2d at 917. We also note that our holding is necessarily limited to the record presented to the trial court at the sanctions hearing. On remand to the trial court, the trial court is not similarly constrained and will be able to consider an appropriate sanction based on the entirety of the record, including the events that unfolded since the last sanctions hearing.
CONCLUSION
Because the trial court failed to consider lesser sanctions before imposing a death penalty sanction, we conditionally grant the writ of mandamus. The writ will only issue if Judge Gabriel fails to withdraw his order striking Dr. Watson as an expert within ten days from the date of our opinion and order. After withdrawing his order, Judge Gabriel may reconsider an appropriate sanction for the discovery abuse that occurred based on the entirety of the record presented to him at the subsequent hearing.
NOTES
[1] The order also strikes Dr. Louis Silverman as an expert witness; however, Harvest does not seek relief from that portion of the trial court's order in its petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610249/ | 485 P.2d 894 (1971)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
William B. ORTEGA, Defendant-Appellant.
No. 25165.
Supreme Court of Colorado, En Banc.
June 14, 1971.
*895 Jarvis W. Seccombe, Dist. Atty., Second Judicial Dist., Coleman M. Connolly, Silvana Del Piccolo, Deputy Dist. Attys., Denver, for plaintiff-appellee.
Epstein, Lozow & Preblud, Donald L. Lozow, Gary Lozow, Denver, for defendant-appellant.
LEE, Justice.
This case was originally before us in People v. Ortega, Colo., 481 P.2d 727. It was remanded to the trial court for another evidentiary hearing so that we might have the benefit of the trial court's findings.
The evidence sought to be suppressed consisted of heroin, marijuana and LSD (lysergic acid diethylamide). After a full evidentiary hearing, the trial court denied the suppression motion.
The trial court made extensive findings of fact, among which were the following: that the police had received a tip from a previously reliable informant that Ortega was hiding narcotics in a weeded area in the backyard behind his apartment residence; that the police had had previous dealings with Ortega with respect to narcotics; that because of this information the police established a surveillance of Ortega's residence; that while conducting the surveillance the police saw Ortega emerge from the back of the residence, walk to a weeded area, bend in a crouching position for a few seconds, stand up, and begin walking back to the residence; that the police called to Ortega and saw him throw an object with his right hand; that the police then arrested Ortega without a warrant; that one of the officers retrieved a tinfoilwrapped package containing balloons of heroin; and that thereafter the other officer found marijuana and LSD hidden in the weeded area from which Ortega had come. The court's findings of fact are supported by ample competent evidence and will not be disturbed on review.
The trial court concluded from the foregoing findings that the heroin had been abandoned by Ortega and ruled that the heroin was properly seized. We agree. Johnson v. People, 171 Colo. 150, 465 P.2d 128; Martinez v. People, 169 Colo. 366, 456 P.2d 275; Smith v. People, 167 Colo. 19, 445 P.2d 67.
We also agree with the court's conclusion that Ortega's warrantless arrest was based upon probable cause and that the marijuana and LSD, which were thereafter found in an area of the backyard in close proximity to Ortega, were lawfully seized as an incident to Ortega's arrest. People v. Nanes, Colo., 483 P.2d 958.
*896 It is argued that the officers had no right to conduct the surveillance under the circumstances of this case. The record is not clear whether this argument was presented for consideration by the trial court. However, as we understand it, because Ortega was walking within the backyard of the apartment house where he lived, it is argued that he was then within an area where he was entitled to a reasonable expectation of privacy, free from unconstitutional visual intrusions; and that, therefore, the officers' surveillance, even though from a position outside of the property, was forbidden; and the knowledge thus gained from Ortega's activities could not be used to bolster the officers' basis for probable cause. We do not find merit to this contention.
In Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898, it was held that observation of a dwelling and its curtilage may lawfully be made without a warrant. See also United States v. Campbell, 395 F.2d 848 (4th Cir.); cert. denied, 393 U.S. 834, 89 S. Ct. 106, 21 L. Ed. 2d 105.
We do not agree that there was a reasonable expectation of privacy in the backyard, such as the record herein discloses, and we find nothing in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, that would necessitate a different conclusion. In Katz it was stated:
"* * * What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 17 L. Ed. 2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 71 L. Ed. 1202. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed. 2d 1688; Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877."
See also People v. Snelling, Colo., 484 P.2d 784, announced May 3, 1971.
There was no evidence presented of any facts from which a reasonable expectation could be logically inferred. For an analogous backyard situation wherein the court held there was no reasonable expectation of privacy, see People v. Bradley, 1 Cal. 3d 80, 81 Cal. Rptr. 457, 460 P.2d 129.
The ruling is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610258/ | 485 P.2d 54 (1971)
Adolph KLAUS and Blanche Klaus, Plaintiffs and Respondents,
v.
James HILLBERRY, Defendant and Appellant.
No. 11948.
Supreme Court of Montana.
Submitted April 15, 1971.
Decided May 14, 1971.
Rehearing Denied June 7, 1971.
Robert L. Johnson, argued, Lewistown, for appellant.
*55 Berger, Anderson & Sinclair, Billings, Richard W. Anderson, argued, Billings, for respondents.
JOHN C. HARRISON, Justice.
This is an appeal from a verdict and judgment of the thirteenth judicial district, Yellowstone County, Hon. Charles B. Sande, judge presiding with a jury. The verdict and judgment was in favor of plaintiffs, Adolph Klaus and Blanche Klaus, and against defendant, James Hillberry. Defendant appeals from the judgment and a denial of a motion for new trial.
The cause involves a personal injury action resulting from an automobile collision. The facts concerning the accident and the procedural matters will be set forth in considerable detail herein due to the first two issues raised by defendant on appeal.
The accident occurred on July 13, 1968, on Interstate Highway No. 90, west of the Laurel, Montana interchange. Defendant, a resident of Cody, Wyoming, was driving westerly from Billings and somehow missed the Interstate turnoff to Cody, which is located at the Laurel interchange. Noting that he had missed the Cody turnoff, defendant proceeded west observing a sign that indicated the next exit off the Interstate was located at Park City, some seven miles distant.
In this area Interstate Highway No. 90 is a four lane highway with the westbound and the eastbound lanes divided by a median strip about forty feet wide. The highway is a controlled access highway with no lawful turnoffs or crossovers between the eastbound and westbound lanes except at designated points.
While proceeding west toward the next designated turnoff at Park City, defendant noticed "a graveled fill in between the east and westbound lanes". At the time he made this observation he was traveling in the right hand or outside westbound lane. He testified that upon observing the graveled fill he began to angle from the outside lane to the inside lane toward the median strip, with the intent of crossing the median strip at the graveled fill in order to head back toward the Cody turnoff at the Laurel interchange.
At the very time he began to angle from the outside lane to the inside lane and the median strip, he was being passed on the inside lane by the plaintiffs' vehicle. The testimony in the record is in dispute as to whether defendant used his turn signals or whether his turn was sudden and unannounced. However, there is no question but that defendant's action caused the collision and defendant was cited for an illegal left turn by the highway patrolman who investigated the accident.
Plaintiff Adolph Klaus suffered neck and back injuries for which the jury awarded him $11,811; his wife, Blanche, was awarded $25.
With these facts before us, we proceed to certain procedural matters which arose before and during trial and are now issues on appeal.
This action was instituted with the filing of a complaint on December 2, 1968. On February 11, 1969, defendant filed his answer, generally denying negligence on his part and alleging contributory negligence on the part of plaintiffs. At the same time defendant filed a counterclaim asking judgment against plaintiffs for property damage in the amount of $639.99 and for the additional sum of $250 for the loss of use of his vehicle while it was being repaired. On January 15, 1970, the court ordered a pretrial conference for January 29, 1970. Plaintiffs filed their pretrial memorandum on January 23, 1970. Pertinent to the issues on this appeal is the following excerpt from that memorandum:
"As the file reflects, defendant has interposed a counterclaim in the sum of $889.99 by reason of property damage. This counterclaim is interposed in the name of defendant personally, and is not being prosecuted by any insurance company. Plaintiffs are now tendering an interrogatory to defendant, requesting information as to whether the amount of *56 this property damage has been paid by defendant's own insurance carrier. If such be the case, it is the plaintiffs' contention that defendant is not the real party in interest in the counterclaim. It must be prosecuted by the insurance company, or not at all."
Plaintiffs then filed and served the interrogatory referred to, inquiring in part:
"Please state whether you have been reimbursed for all or any part of the losses referred to in your counterclaim by any insurance company, and if so, the name of the insurance company making such reimbursement, or paying such damage, and state also the date of such reimbursement or payments, and the amount thereof."
On February 3, 1970, defendant filed his pretrial memorandum, resisting plaintiffs' motion to join the insurance company as a real party in interest because "defendant's damage was only partially paid by his insurer." Defendant did not formally answer the interrogatory concerning the subrogation rights and insurance coverage, but at pretrial conference he admitted that all but the $50 deductible had been paid by his insurer, Wyoming Farm Bureau Insurance Company. At the same pretrial conference defendant's counsel produced an assignment form, wherein the defendant had assigned to his insurance company all claims he might have insofar as they were reimbursed by the company. This assignment became a part of the court file.
The trial court, after considering the memoranda of both parties on the issue of the real party in interest, entered the following order dated February 26, 1970:
"1. That defendant join the Wyoming Farm Bureau Mutual Insurance Company, Inc., as a counterclaimant and real party in interest to the counterclaim on file herein, according to the interest of said Wyoming Farm Bureau Mutual Insurance Company, as the same is disclosed by Exhibit `A', attached to plaintiffs' memorandum on real party in interest issues; or,
"2. Dismiss the counterclaim in its entirety.
"Unless defendant makes such joinder as above ordered by March 4, 1970, said counterclaim will at that time be dismissed."
On March 4, 1970, defendant filed a pleading entitled "Notice of Joinder of Cross-Complainant" in which he stated:
"Please take notice that Wyoming Farm Bureau Mutual Insurance Company, Inc., pursuant to order of the court dated February 26, 1970, made and entered herein, does by these presents elect to be joined in this cause as a cross-complainant against Adolph Klaus * * *."
Trial was set for March 30, 1970 and just prior to that date defendant made a motion in limine designed to preclude the mention of the insurance carrier at the trial. Due to the fact that Judge Sande was unavailable for trial at the date set, the motion was not heard. However, on the morning of the rescheduled day set for trial, May 18, 1970, defendant renewed the motion and moved to dismiss the counterclaim. The trial judge granted both motions and the parties went directly into the courtroom where Judge Sande allegedly announced to the jury panel:
"This is Cause No. 52858, Adolph Klaus and Blanche Klaus, plaintiffs v. James Hillberry and Wyoming Farm Bureau Mutual Insurance Company, Inc., defendants."
No court reporter was present at the time of this alleged statement.
Appellant presents four issues on appeal:
1. Was the mention of the name of the insurance company as a party defendant error?
2. Did the court err in requiring the joinder of the insurance company as a party to the action?
3. Did the court err in disallowing evidence of prior inconsistent statements to impeach Adolph Klaus' testimony concerning the location of the collision?
*57 4. Was it error to allow Dr. Swanson, attending physician for Mr. Klaus, to testify from reports given him by a Dr. Meyer, a neurologist?
Because the first two issues for review relate to the interjection of the insurance question, we will combine the issues for discussion.
Appellant relies on two recent decisions of this Court in his contention that the interjection of the word "insurance" calls for a reversal. Those cases are: D'Hoodge v. McCann, 151 Mont. 353, 443 P.2d 747; State ex rel. Hereim v. District Court, 154 Mont. 112, 460 P.2d 755. While these cases hold that the fact insurance is involved in the case such fact may not be conveyed to the jury in a tort action. These cases are not factually applicable in the instant case.
Here, there is a question as to whether the words "Insurance Company" were mentioned by Judge Sande when he announced to the jury panel the name of the case to be tried. While no court reporter was present when Judge Sande made the alleged remark, we do have a record made later which indicates what was probably said:
"MR. JOHNSON: Very reluctantly, Your Honor, I think I must ask the Court for a mistrial at this time because of the mention of Wyoming Farm Bureau being a party to this suit in light of the pre-trial rulings and motions made and given. Wyoming Farm Bureau was dismissed as a party defendant or cross-complainant, and I believe that harm was done to the defendant here that is reversible at this time.
"THE COURT: Your comment, Mr. Anderson?
"MR. ANDERSON: For the record I believe that it should show the nature and contention of the comment by the Court and when it was made. It was made immediately after the Jury was called and before voir dire examination began, and the Court simply stated in a soft tone of voice, that this was the time set for trial in the cause between Adolph Klaus and Blanche Klaus as plaintiffs and James Hillberry and the Wyoming Farm Bureau as defendants. At that point, Counsel for the defendant approached the Bench and reminded the Court that the Wyoming Farm Bureau had been dropped from the case because of the dismissal of the counter-claim, and made no request at that time for a mistrial, made no objection, no further objection to the comment by the Court, and requested no instruction to the Jury that the Wyoming Farm Bureau was not a party to this action, and therefore plaintiffs believe that the defendant has waived objection at this time, and the voir dire examination by both parties having now been completed, and are now in the process of exercising peremptory challenges.
"THE COURT: Motion denied." (Whereupon the jury was selected).
If this is a true and correct statment of Judge Sande's remarks, the words "Insurance Company" were never mentioned.
As noted above, we do not find appellant's case authority controlling. In D'Hoodge we noted repeated efforts on the part of trial counsel to inject insurance into the case. We have no such situation here. In addition, here, the court gave appellant's proposed instruction No. 12, which reads:
"You are instructed that the following parties are the sole participants in the proceeding, and you will confine your deliberations to determining the rights of these parties as individuals * * *".
We find our recent holding in Rasmussen v. Sibert, 153 Mont. 286, 456 P.2d 835, to be controlling. In Rasmussen the plaintiff mentioned the forbidden word "insurance" in response to a question of his own counsel, but like appellant here, defendant failed to object until some 26 questions and answers later. There we held defendant waived error, if any there was, and said:
"We also hold that by his failure to object, ask for an admonition by the court *58 to the jury to disregard plaintiff's testimony, move for a mistrial, or request a corrective jury instruction, defendant waived any objection he otherwise might have had to plaintiff's testimony and is estopped from raising this for the first time on motion for new trial."
Here, if the words "Insurance Company" were used, and there is considerable question that they were, the trial court protected the record in giving appellant's proposed instruction No. 12.
We note in denying appellant's first issue that:
1. The appellant owes the trial court the duty to prevent inadvertent mishaps as occurred here. It was not until the last minutes before trial that the insurance company, which had elected to become a party to the cause, was dismissed from the action, and then only by a verbal motion.
2. The testimony shows clear liability.
3. Appellant obtained a jury instruction keeping out the insurance issue.
4. Appellant waived any objection to the alleged remark by examining and passing the jury panel for cause before noting any objection.
In regard to issue No. 2, the joinder of the insurance company during the pretrial stage, the counterclaim was dismissed on appellant's motion and the issue is moot.
In issue No. 3 appellant contends the court erred in disallowing evidence of a prior inconsistent statement concerning the location of the accident to impeach the testimony of plaintiff Adolph Klaus. We find no merit in this contention.
In a deposition made by respondent Klaus he referred to the earth fill which appellant attempted to use as a crossover as "this crossover that the Highway Department uses". At the trial Klaus affirmed this testimony by stating that the highway patrolman who investigated the accident described the crossover as a dirt fill the use of which by other than patrolmen, was illegal. Appellant argues that the accident happened at a maintenance crossover as previously described by a highway engineer, rather than the dirt fill as described by the patrolman. The court allowed appellant to bring out the inconsistency but refused to allow the same questions to be repeated over and over. This was repetitious, and the court's refusal to allow its continuance was not prejudicial.
In issue No. 4 appellant argues that the court was in error in allowing respondent's witness Dr. Swanson, a general practitioner, to testify without foundation from a writing purportedly made by a Dr. Meyer, a neurologist. Appellant contends that testimony from unsworn statements, where no right to cross-examine has been afforded appellant, is hearsay and inadmissible. He relies upon two recent opinions of this Court to support his contention: Shillingstad v. Nelson, 141 Mont. 412, 378 P.2d 393; Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57.
We note here that Dr. Swanson was respondent's doctor who treated him in the hospital immediately after the accident and who thereafter was the attending physician during the recovery. During this period of treatment respondent Klaus complained of headaches, neck, and back problems which Dr. Swanson, as a general practitioner, felt needed the opinion of a specialist. He sent respondent to a Doctor Walton, an orthopedic specialist, who in turn referred respondent to Doctors Roney and Meyer, neurologists. After examination and diagnosis, Doctors Roney and Meyer sent their report in the form of letters to Dr. Swanson to assist him in treatment of respondent. Dr. Swanson testified that these reports were used by him in his treatment and in making his prognosis.
In Shillingstad this Court held that unsworn medical reports are hearsay and inadmissible where no right to cross-examine is had and we noted further that factually that case did not come within any of the exceptions to that rule. However, here the *59 factual situation is not that of Shillingstad. There, a medical report was introduced by the plaintiff which had been written to the defense counsel by a doctor who had examined the plaintiff for the purpose of litigation. We held that report to be hearsay and not within any exceptions to the hearsay rule.
Pickett followed Shillingstad. In Pickett, plaintiff attempted to introduce actual reports from persons not present at the trial, all being private documents and not part of a case file of any attending physician. In the instant case we have the exact opposite situation, the reports are part of the case file of the attending physician, Dr. Swanson, and such reports are "exceptions to the hearsay rule". These reports of the other doctors were used by Dr. Swanson in making his diagnosis but the final conclusions made were those of Dr. Swanson, the attending physician. His testimony was no more hearsay by reason of being based upon consultation with specialists, than if it were based upon either a lecture or information from a medical text. Medical testimony must of necessity in many instances be based on information acquired from outside sources, examinations by other doctors, nurses notes and observation, X-rays, and other tools of the profession used in the making of a diagnosis. See section 93-801-2, R.C.M. 1947; 32 C.J.S. Evidence § 682; 30 Am.Jur.2d Evidence §§ 927, 930-933, 937; Jones on Evidence 5th ed., V. 2 § 291, V. 3 §§ 548, 843; 44 A.L.R. 2d 553; 17 A.L.R. 2d 235; 66 A.L.R. 2d 536.
Judgment is affirmed.
JAMES T. HARRISON, C. J., and CASTLES, HASWELL and DALY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610265/ | 485 P.2d 1258 (1971)
In the matter of the Driver's License Revocation of Dean Loyal JOHNSON.
Dean Loyal Johnson, Respondent,
v.
The DEPARTMENT OF MOTOR VEHICLES of the State of Oregon, Appellant.
Court of Appeals of Oregon, Department 2.
Argued and Submitted May 26, 1971.
Decided June 17, 1971.
Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Frederick T. Smith, Portland, argued the cause for respondent. With him on the brief were Dusenbery, Martin, Bischoff & Templeton, Portland.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
FORT, Judge.
The Department of Motor Vehicles (now Motor Vehicles Division) suspended petitioner's operator's license for refusal to submit to a chemical test of his breath. ORS 483.634. Petitioner appealed. ORS 482.560. From a judgment in favor of petitioner by the court sitting without a jury, the Department has appealed, assigning as error that the trial court erred in finding that petitioner had not refused to take the breath test.
We have reviewed the facts in the light most favorable to petitioner. Andros v. Dept. of Motor Vehicles, Or. App., 485 P.2d 635 (1971). This case was tried before the decision in Stratikos v. Dept. of Motor Vehicles, 91 Adv.Sh. 1025, Or. App., 477 P.2d 237 (1970), 91 Adv.Sh. 1441, 478 P.2d 654, Sup.Ct. review denied (1971). The trial court assumed that a refusal to take the required test until after the arrival of his attorney did not constitute a refusal within the meaning of the statute. Stratikos holds otherwise. It follows, then, that that evidence, without more, was insufficient as a matter of law to sustain petitioner's burden of proving that his license was wrongfully suspended. Thorp v. Dept. of Motor Vehicles, 91 Adv.Sh. 1795, Or. App., 480 P.2d 716 (1971).
The petitioner, through his daughter, contacted an attorney from the police station after his daytime arrest for operating a motor vehicle while under the influence of intoxicating liquor. The attorney testified:
"One of the questions which she asked me over the telephone which she said *1259 her father had asked her when called and said, `What should I do?' was whether he should take the Breathalyzer test. I told her to call him back and immediately and try to reach him and tell him to say he would take the Breathalyzer when * * * I got there * * *."
He also testified he telephoned the police before going to the station and was told by them it was, in effect, now or never. The evidence showed that his advice was communicated to the petitioner, who himself testified:
"Well, then he [a police officer] tried to talk me into taking that Breathalyzer test again. In fact, we went into another room, got up, went into another room. * * *
"* * *
"MR. SMITH: Q And then what happened?
"A I told him after the advice I had gotten from my attorney I would have to wait until he arrived."
Petitioner now contends that this refusal "was caused by an erroneous impression created by the police officer."
The record, however, reveals only that the petitioner was properly advised of his right to counsel in conformity with Miranda,[1] including the statement that "he had the right to have an attorney present during any and all questions."
Petitioner does not claim the warnings given were erroneous. He points to nothing which supports his claim to the creation by the police of "an erroneous impression." We have found none. The "impression," if any, upon which petitioner relied was created by his counsel, not the police.
The judgment is reversed.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610271/ | 207 Kan. 548 (1971)
485 P.2d 1260
J.G. ANDREWS, CHARLES T. DUMENIL, PAUL H. FOX, FREDRICK F. JACOBS, ROBERT M. JAY, NOBLE L. LINCH, WARREN L. STOUT, HARRY N. WINTON, Appellants,
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF COWLEY, NOBLE C. BRADBURY, chairman, LENNIE M. ATKINS and AARON B. JOHNSON as members, Appellees.
No. 46,027
Supreme Court of Kansas.
Opinion filed June 12, 1971.
George E. Sybrant, of Arkansas City, argued the cause and was on the brief for the appellants.
*549 Thomas D. Herlocker, County Counselor, argued the cause, and Richard Camp, County Attorney, was with him on the brief for the appellees.
The opinion of the court was delivered by
FROMME, J.:
This is an action originally brought in the district court by residents and taxpayers of Cowley county to require a rearrangement of the three county commissioner districts in that county under the authority of K.S.A. 19-204.
In pertinent part the statute provides:
"The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts, as compact and equal in population as possible, and number them respectively 1, 2, and 3, and subject to alteration at least once every three years, but if they fail to make such division before the election of the county officers, such failure shall in no case prevent the election of the commissioners: ..." (Emphasis added.)
The action was filed in June, 1969. The last major rearrangement of the three commissioner districts was accomplished in January. 1964. However, some slight changes to equalize population were made in April, 1968. After a hearing the district court found the three districts were not in substantial compliance with the dictates of K.S.A. 19-204, and ordered a redistricting of the three commissioner districts. The court continued to retain jurisdiction of the controversy. Thereafter the county commissioners rearranged the districts by a resolution filed in August, 1969. The plan was then submitted to the court and the rearrangement of August, 1969, was approved. Additional objections had been filed against the plan by the plaintiffs and these were considered by the court. The present appeal is from the order of the district court approving the plan of August, 1969.
Although the appellants list eleven separate points on appeal, neither their brief nor their arguments are directed to these points. Therefore all points not discussed in this opinion are considered to have been abandoned.
The general thrust of appellants' claims on appeal lie in three general directions. First, the statutory requirements as to compact ness and equality of population have not been met; second, the commissioner districts were gerrymandered to prevent the citizens of Arkansas City from electing more than one county commissioner; and third, the district court failed to state the facts and legal principles upon which its decision is based.
*550 Before discussing these three points some general background information on Cowley County is necessary. According to a map and other information gleaned from the record, Cowley County covers an area 33 miles north and south and 35 miles east and west. This is an area of approximately 1155 square miles. It has a population of 35,439. There are two fairly large cities located within the county. Arkansas City, with a population of 14,061, is located in the southwest corner of Cowley County, five miles from the west boundary and three miles from the south boundary. Winfield, the other city, is the county seat, and it has a population of 10,494. It is located about eight miles from the west boundary of the county and midway between the north and south boundaries. Outside of these two cities there is a total of 10,884 people living in twenty-five rural townships which include several small cities or towns. A recitation of the foregoing facts alone indicates some of the difficulties encountered in arranging Cowley County into three districts as compact and equal in population as possible. One-third of the total county population is 11,813. This ideal population for a commissioner district is somewhat less than the population of Arkansas City (14,061), only slightly more than the population of Winfield (10,494) and slightly more than the total population in all remaining rural areas (10,884).
In the rearrangement of commissioner districts one other primary factor must be kept in mind in addition to compactness and equality of population. In dividing a county into three commissioner districts the boundaries of the districts must follow the boundaries of voting precincts. The people in one voting precinct cannot be divided or placed in two or more commissioner districts. This prohibition stems from the ballot and voting procedures of this state. This factor was recognized in State, ex rel., v. Osage County, 112 Kan. 256, 210 P. 619, where the court said:
"No reason appears why a city may not be divided so that one part lies in one district and another part in another district so long as the boundary lines of the district follow the boundaries of the city wards and do not interfere with voting precincts." (Syl. ¶ 5. See, also, State, ex rel., v. Montgomery County Comm'rs, 125 Kan. 379, Syl. ¶ 3, 264 P. 84.)
Now let us consider the arrangement of the three commissioner districts as finally approved by the district court in its order filed in November, 1969.
District # 1 includes 7,157 people from Winfield plus 4,369 people from eleven rural townships. The rural townships generally lie *551 in a northeasterly direction from Winfield and extend to the east and north boundaries of the county. The district has a total population of 11,526 people. This is 287 persons less than the goal of an ideal district which would contain exactly one-third of the total county population.
District # 2 includes 9,984 people from Arkansas City plus 2,126 people from six rural townships. The rural townships lie east and west along the entire south boundary of the county. The district has a total population of 12,110 people. This is 297 persons more than the goal of an ideal district.
District # 3 includes 3,337 people from Winfield, 4,077 people from Arkansas City and 4,389 people from ten rural townships. These rural townships lie in an el shape along the west and north boundaries of the county. The district has a total population of 11,803 people. This is only 10 persons less than the goal of an ideal district.
The population disparities among these districts of - 10, - 287 and + 297 are well within the acceptable tolerances dictated by K.S.A. 19-204 and as interpreted by both federal and state case law. Such a division results in three districts in Cowley County as equal in population as possible when other necessary factors such as voting precinct boundaries, natural barriers, topography, transportation and compactness are considered. (See State, ex rel., v. Osage County, supra.)
Appellants have devoted much of their brief to federal apportionment cases such as Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691; Gray v. Sanders, 372 U.S. 368, 9 L. Ed. 2d 821, 83 S. Ct. 801; Wesberry v. Sanders, 376 U.S. 1, 11 L. Ed. 2d 481, 84 S. Ct. 526; Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, and Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114.
In addition to those cases we might add Long v. Avery, 251 F. Supp. 541 (1966) and Simone v. MacPhail, 291 F. Supp. 697 (1968) where the federal court under the equal protection clause of the 14th Amendment to the United States has been called upon to examine the apportionment of Kansas senatorial districts and of the county commissioner districts in Crawford County, Kansas.
It would add little to this opinion to review the federal cases for what has been declared by the federal courts in this area was recognized long ago in K.S.A. 19-204. The Kansas courts when *552 called upon have enforced the requirement of the statute, that each county be rearranged into three commissioner districts "as compact and equal in population as possible." Each county is subject to rearrangement at least once every three years as stated in the statute. A few of the cases which have reached this court in the past are State, ex rel., v. Osage County, supra; State, ex rel., v. Labette County, 114 Kan. 726, 220 P. 275; State, ex rel., v. Montgomery County Comm'rs, supra, and State, ex rel., v. Reno County Comm'rs 158 Kan. 573, 148 P.2d 1012.
Appellants complain of the rearrangements approved by the district court because of lack of compactness. This requirement was examined in State ex rel., v. Osage County, supra, where it was said:
"The word `compact' has various shades of meaning when used in this connection, and permits the consideration in good faith of existing lines, topography, means of transportation and other factors. It means that the territory shall be closely united, and not necessarily that the residents of each district shall be united in interest." (Syl. ¶ 4.)
The complaint arises because of three small border areas in West Creswell precinct which lie between the boundary of Bolton Township and the city boundaries of Arkansas City. Arkansas City lies within Creswell Township. Bolton Township to the south and Creswell Township to the north have long been divided by a natural boundary formed by the Arkansas River. Arkansas City, lying in Creswell Township, has grown south in an irregular pattern and its boundary now coincides with that of Creswell Township in three separate segments along the river. However, there are three small areas of West Creswell precinct along the river boundary which have not been taken into the city. These three small areas plus the larger area of West Creswell precinct which surrounds the city on the west, north and east, make up one voting precinct, and this entire precinct was included in commissioner district # 3.
The precincts and wards in Arkansas City which border the river and lie adjacent to Bolton Township on the south were included along with Bolton Township in commissioner district # 2, which district runs along the south boundary of the entire county.
Therefore, we are confronted with not only the requirement of compactness but also the requirement that the integrity of the boundaries of voting precincts be maintained. The present plan preserves the integrity of the boundaries of West Creswell precinct, *553 all of which was placed in district # 3. The integrity of the boundaries of voting precincts and wards of Arkansas City was also preserved.
The three small non-contiguous areas are a natural result of preserving the integrity of the boundaries of these voting precincts. Our statute relating to the rearrangement of commissioner districts contains no specific requirement as to contiguity.
The only arrangement of commissioner districts which would make these areas contiguous would be to include all of West Creswell precinct with all of Arkansas City to make one commissioner district. This would be unacceptable from a population standpoint for it would create a district with 14,853 people, 3,041 people in excess of the ideal goal of 11,813. In addition, it would result in said district being totally surrounded by the other districts. As expressed by the district judge in his original decision requiring a redistricting, the other districts would then encompass this district "as a persimmon surrounds its seeds." Such an arrangement of districts did not appear satisfactory to the trial judge when he ordered redistricting. It does not appear satisfactory to us when we consider one of the purposes of the county commissioner districts in Kansas, that of overseeing a county highway program.
Because of what has been said we believe commissioner district #3 is as compact as possible, in that it has a close union of the parts, lies in narrow compass and is the nearest practical approximation to compactness as is possible when the integrity of voting precincts is preserved. (See definition of compactness, 8 Words and Phrases, [perm. ed.] p. 250.)
We have carefully studied the three commissioner districts as rearranged and approved. We hold they are as compact as possible under the circumstances, and are arranged in compliance with the dictates of the statute and the case law.
The second complaint of the appellant is that the boundaries of the three districts were gerrymandered to prevent the citizens of Arkansas City from electing more than one county commissioner.
This complaint is not made on the basis of evidence, other than the results achieved by the commissioners in their final plan. The trial court found the members of the board of county commissioners conscientiously attempted to comply with the law and the order of the court. There is no evidence in the record to the contrary. It would be difficult, solely on the basis of the results achieved here, to ascribe improper motives to the commissioners.
*554 The arrangement of districts placed the city of Winfield in a position of influence in district # 1 by including 7,157 people from Winfield in the district along with 4,369 from the outlying rural areas.
The arrangement placed the city of Arkansas City in a position of influence in district # 2 by including 9,984 people from Arkansas City in the district along with 2,126 from the outlying rural areas. Other things being equal the people in these two population centers would each be able to influence any district election to obtain one commissioner in the county favorable to their interests.
The third commissioner district contained 3,337 people from Winfield, 4,077 people from Arkansas City and 4,389 people from the outlying rural areas. Under this arrangement neither city appears to have any undue advantage in electing the third commissioner, for the balance of power would lie with the outlying rural areas.
We point these matters out merely to examine the charges of gerrymandering. We do not wish to be understood as saying that such a fine line of balance is necessary. In State, ex rel., v. Osage County, supra, and in State, ex rel., v. Reno County Comm'rs, supra, it was held that cities may be divided so that one part lies in one commissioner district and another part lies in another district. The discretion in making the division under the statute is lodged in the board of county commissioners. In the absence of evidence of improper motives on their part a plan which meets the statutory requirements of compactness and equality of population without violating the integrity of voting precincts should be approved, for no abuse of discretion on the part of the board can be presumed. Abuse of discretion must always be clearly established by those attacking the results of discretionary action of a governing body in order to establish the unreasonableness of the action. (Bodine v. City of Overland Park, 198 Kan. 371, 424 P.2d 513; Creten v. Board of County Commissioners, 204 Kan. 782, 466 P.2d 263.)
In view of our previous conclusions as to the compactness and equality of population in these districts, we find the claim of gerrymandering to be without substantial merit.
The final complaint on appeal is directed toward a claim of insufficiency of the trial court's findings of fact and conclusions of law. The complaint is not specific. No claim is made that any controlling finding or conclusion was omitted by the trial court.
*555 The original findings and conclusions of the court appear in its memorandum opinion and in the journal entry which followed on April 2, 1969. It would serve no useful purpose to iterate those findings. They are set forth at length in eleven pages of the record. In line with these findings the board was directed to and did redistrict the commissioner districts.
The final conclusions of the court in approving the rearrangement of those districts are as follows:
"1) That the Board of County Commissioners have conscientiously attempted to comply with the law and with the order of this court previously made and entered by memorandum opinion on January 29, 1969, and by Journal Entry on the 2nd day of April, 1969;
"2) That the plan submitted by the said Board of County Commissioners meets all statutory and constitutional requirements for redistricting;
"3) That some irregularity must necessarily exist in the shaping of the districts, resulting from following natural boundary lines in preserving the integrity of political subdivisions.
"4) That the districts meet the statutory requirements for compactness and that any deviation of numerical equality of population is within acceptable limits considering the circumstances of this particular case.
"5) That the plan herein approved contained pockets formed between Arkansas City and the Arkansas and Walnut Rivers and normally such pockets are to be avoided; but in this particular instance, there is no practical solution for avoidance thereof, and that no disadvantage would occur, per se, to the voters living within the pocketed areas; or if any disadvantage does exist, it would be the same in whatever district they were placed."
The requirement of findings under K.S.A. 60-252 (a) is that the court state the controlling facts. The controlling facts were fully set forth in the memorandum opinion which incorporated into the findings all facts disclosed by the various exhibits and maps of the area, together with the stipulations of facts by the parties. By reference to the exhibits and stipulations the court set forth the controlling facts. The findings and the conclusions quoted therein were sufficient to resolve the issues before the district court.
The findings required by K.S.A. 60-252 (a) should be sufficient to resolve the issues, and in addition they should be adequate to advise the parties, as well as the appellate court, of the reasons for the decision and the standards applied by the court which governed its determination and persuaded it to arrive at the decision. These requirements are apparent in the statute itself.
The purpose of the requirements in the statute is similar to the purpose for findings by administrative agencies. See Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 *556 P.2d 572; and Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P.2d 1.
The findings of the district court and its reasons for the decision are adequately set forth in the memorandum decision and in the final journal entry of judgment.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610257/ | 5 Cal. 3d 83 (1971)
485 P.2d 799
95 Cal. Rptr. 447
CLAUDE REDNER, Petitioner,
v.
WORKMEN'S COMPENSATION APPEALS BOARD, CALIFORNIA WHOLESALE ELECTRIC COMPANY et al., Respondents.
Docket No. L.A. 29846.
Supreme Court of California. In Bank.
June 10, 1971.
*85 COUNSEL
S.S. Schwartz and Alan G. Barry for Petitioner.
Rupert A. Pedrin and Lionel K. Hvolboll for Respondents.
OPINION
TOBRINER, J.
Although the referee in this workmen's compensation case found upon an abundant showing that the applicant suffered a 57 *86 percent disability, the appeals board granted reconsideration and held that applicant should receive nothing for permanent disability. The board rested its decision upon some motion pictures, deceitfully procured by the insurance carrier, which showed the applicant riding horseback. We shall point out that we cannot uphold the ruling since (1) the film had been deliberately withheld from the prior proceedings and improperly produced at the hearing on reconsideration, at which hearing applicant was denied the right to cross-examine and to present rebuttal testimony, and (2) the film was the product of the insurer's deceitful conduct and therefore entitled to no weight in such reconsideration. If the board could not properly rely upon the film and the medical reports based upon it, the decision obviously falls, but even if the board could do so, the decision still lacks evidentiary support.
1. The facts.
Applicant worked for the California Wholesale Electric Company as a driver of a two-ton truck and as a deliveryman in Los Angeles. He handled various cartons weighing from a few ounces to 1,500 pounds. Although applicant used a fork lift for very heavy crates, the work frequently required him to lift by hand boxes weighing 150 pounds. On April 24, 1967, while in the course of his employment, applicant undertook the unloading of about 15 cartons, each of which weighed between 50 and 60 pounds. When he lifted the last box and turned toward the loading dock, applicant felt a snap in his back; his spine and legs went numb; his left arm seemed to go to sleep, and he fell. Later, the superintendent asked him whether he needed a doctor, but applicant said he would be all right if he went home and took a hot bath.
The next day applicant could not rise from his bed without assistance. Upon examination of applicant at the Pico-Rivera Emergency Hospital the attending doctors returned him to his job. After attempting to work for one and a half days, applicant once more went to the hospital; there he was put into traction for at least a month; he underwent a lumbar laminectomy and spinal fusion in which one disc was removed. Released from the hospital in June 1967, applicant was able to walk with a lumbosacral support and cane, but continued to experience severe back pain, headaches, certain neurotic reactions, weight loss, and occasional loss of bowel control.[1]
From the time of the industrial accident the employer's workmen's compensation *87 carrier, Hartford Accident and Indemnity Company, paid applicant temporary disability compensation, but in the summer of 1968 that company retained James F. Curtis Investigations to probe into applicant's claim. Curtis employed Joseph Chavez to observe applicant in his daily activities and to take motion pictures of his conduct.[2]
In early July 1968 a person who told applicant that his name was Robert Hendry befriended applicant and invited him to his ranch for the following weekend; applicant accepted. Hendry drove applicant to this ranch; there Hendry gave a small party, serving very little food but a great number of mixed drinks. The guests became inebriated. Hendry suggested that the party go horseback riding, and applicant joined the others in doing so.
During the riding and saddling of the horses, Chavez concealed himself in Hendry's barn and took about 350 feet of film. The motion picture shows applicant saddling, riding, walking, and unsaddling a horse. Thereafter, on the next day applicant rode again. Unobserved by the riding party, Chavez took more motion pictures of applicant's activities.[3] On the basis of the film the insurance carrier ceased payment of temporary disability compensation on August 6, 1968, and refused to provide further medical care for applicant.
After the riding episode, applicant, upon arriving home and sleeping that night, could not arise the next day because of severe pain in his back. Recuperating at home, applicant remained largely in bed for three weeks. Then in September 1968 he found his first employment since the industrial injury. He obtained part-time work as a relief cook performing this job for about three months until the employer no longer needed him. Thereafter he worked as a carpenter's helper and as a bartender but was unable to continue either employment because of back and leg pain. In July 1969 he began working as a janitor at $1.65 per hour for a restaurant and remained at that employment until the restaurant closed shortly before the referee's hearing in October 1969.
On September 25, 1968, the insurance carrier asked Dr. Crandall to *88 view the film of the horseback riding. Although he had not examined applicant for nine months, Dr. Crandall concluded that applicant "does not show the slightest evidence of any residual disability and should be able to perform gainful occupation satisfactorily, as evidenced by the films of July 18 and 19, 1968." On September 28, 1968, Dr. Perlson also viewed and described the motion picture films. Having examined applicant only once seven months previously, the doctor reported to the insurance company: "As a result of viewing the above films, it is my feeling at this time that this employee is not physically or mentally incapacitated in any way as a result of the alleged injuries sustained by him on April 25, 1967."
On June 3, 1969, Dr. Coulter, a neurological surgeon, examined applicant, reviewed the medical reports, and concluded that applicant had become "disabled from his usual employment as a truck driver, however, he is able to perform gainful employment at duties which do not require repeated bending and lifting, in fact the patient is working and has been doing light tasks since September 1968 at Big Bear, California.... I would recommend that he avoid occupations in which repeated bending and lifting objects over fifty pounds is required, and that because of the slight objective weakness in his right lower extremity that he avoid occupations which require climbing ladders or to heights."
At the referee's hearing applicant testified as to the circumstances of the injury, his attempts to obtain employment since the injury, the horseback riding incident, and his physical condition. The insurance carrier neither introduced the film nor any medical report concerning it nor the testimony of the two private investigators who worked on the film. At the conclusion of the hearing, however, the referee granted the insurance carrier an opportunity to present further medical reports within 10 days. Within that period the insurance carrier for the first time offered the September 1968 medical reports of Dr. Crandall and Dr. Perlson which recounted the content of the motion picture film. The carrier still failed to offer the film itself or any investigator's report concerning the riding incident. Upon applicant's attorney's strenuous objection to the admission of the medical reports, the referee refused to admit them into evidence.
On the basis of the evidence adduced at the hearing the referee rated the applicant's permanent "disability precluding more than light work" as 57 percent; he ordered the insurance carrier to pay the applicant's surgery bill which it had previously refused to cover; he found the applicant needed further medical treatment for maintaining his back brace and for pain and muscle relaxants.[4]
*89 Thereafter the insurance carrier petitioned for reconsideration on every statutory basis except the discovery of new evidence. Nevertheless, without any explanation of its previous failure to produce the film, the carrier's petition offered for the first time to submit the motion picture. The appeals board granted the petition "for study, for such further proceedings as may then be indicated by the record, and for this Board's decision following reconsideration. It is noted that in its petition, defendant refers to motion picture film which was never offered in evidence. Since it appears to the board that the film should be in evidence, a notice of intention to admit the film in evidence is hereinafter issuing."
Rather than refer further proceedings to a hearing referee, as is its normal practice, the panel of the appeals board noticed its intention to view the film by itself.[5] The panel stated, "At the conclusion of the viewing of the film counsel will be given an opportunity to make brief comments on the content thereof." At the hearing investigator Chavez testified as to his observation of the applicant and, upon cross-examination, admitted that another investigator named George Slinker had worked on the case. Chavez denied that Slinker had represented himself as Robert Hendry, but admitted that there "might have been" alcoholic beverages consumed at the time.
The film was shown, and the insurance carrier commented on its content. Applicant's attorney asked permission to put applicant on the stand for further testimony in rebuttal but one of the panel members responded, "We are here strictly to view the films and hear your comments." The panel then permitted the applicant's attorney to ask three more questions of investigator Chavez concerning the riding incident. After the fourth question, the panel "objected" to all four questions on the ground that any answers to them would be "completely incompetent and irrelevant and immaterial on the matter of the issue before this Board." The answers to the three questions, however, were not stricken. Applicant's attorney did not proceed with further questions; the matter was submitted.
*90 The appeals board issued its opinion after reconsideration, relying entirely upon the motion picture evidence: "We are satisfied that the activities depicted in said motion pictures are inconsistent with any permanent disability as a result of the within injury, and we will find, therefore, that this injury caused no permanent disability." The appeals board relied upon the reports of Dr. Perlson and Dr. Crandall to determine that temporary disability ceased on September 25, 1968 (the date of Dr. Crandall's report). It continued, "We are also satisfied that the injury herein has not caused the need for any further medical treatment as implied by Joseph Perlson, M.D., in his report of September 28, 1968." (Italics added.)
2. The appeals board improperly considered the motion picture evidence and the medical reports based solely on the film.
Labor Code section 5903 provides that any person aggrieved by the decision of a referee may petition the appeals board for reconsideration on the ground that he "has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing."[6] (1) This provision seeks to achieve the orderly and efficient conduct of workmen's compensation cases and requires that all parties present their evidence in a timely fashion at the referee's hearing. A party cannot withhold crucial evidence in the expectation that the referee will decide in its favor, and then, if the referee does not so rule, invoke a right to reconsideration.
(2) A petition for reconsideration on the ground of new evidence should state the nature of the proffered evidence and "a full and accurate statement of the reasons why such testimony or exhibits could not reasonably have been discovered or produced before the filing of the decision." (W.C.A.B. rule 10856(e); see Standard Rectifier Corp. v. Workmen's Comp. App. Bd. (1966) 65 Cal. 2d 287, 292 [54 Cal. Rptr. 100, 419 P.2d 164]; Pacific *91 Indem. Co. v. Ind. Acc. Com. (1945) 26 Cal. 2d 509, 518 [159 P.2d 625]; Baker v. Industrial Acc. Com. (1959) 24 Cal.Comp. Cases 17, 18.)
In the present case the insurance carrier must have known of the motion picture evidence at least from August 6, 1968, when, on the basis of the film, it ceased paying temporary disability compensation. The carrier enjoyed ample opportunity to present the film at the referee's hearing but failed to do so. Thus in its petition the carrier could not, and did not, urge as a basis for offering the film the ground of discovery of new evidence. The carrier merely recited in the statutory language the various other grounds for reconsideration none of which related to the film and stated no reason whatsoever for its failure to present the film at the referee's hearing.[7]
Since section 5903 declares that an aggrieved party may petition for reconsideration on the five statutory grounds "and no other" and since the petition failed to state a competent basis for belatedly offering the film into evidence on reconsideration, the appeals board violated section 5903, its own rule 10856(e), and reasonable canons of orderly procedure in granting the petition solely in order to present the film.
The appeals board in its return before this court now argues that it retains the inherent authority to grant reconsideration on its own motion under section 5906 of the Labor Code[8] and thus could consider the film whether or not it were offered by one of the parties. It maintains that in granting reconsideration it may disregard the restrictions of section 5903.
Although we note that the appeals board granted reconsideration on the basis of the carrier's petition, which would be controlled not by section *92 5906 but by section 5903, we pass on to the more fundamental analysis of the board's powers under section 5906. (3) We believe the language of the Court of Appeal in Michon v. Workmen's Comp. App. Bd. (1971) 15 Cal. App. 3d 917, 924-925 [93 Cal. Rptr. 476] (fn. omitted; italics in original) applicable. "But the board exceeded its power when, without cause, it granted the employer-carrier's petition which, itself, set forth no sufficient cause. A court does not have power to overturn its judgment and grant new trials capriciously (See 3 Witkin, Cal. Procedure (1954) p. 2051, citing Diamond v. Superior Court (1922) 189 Cal. 732, 736 [210 P. 36], and other cases; id. 1967 Supp., p. 835, citing Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal. 2d 162, 166 [10 Cal. Rptr. 462, 358 P.2d 918].) We hold arbitrary power is similarly denied the board. Labor Code section 5906 provides that the board may grant reconsideration upon its own motion. We interpret the Legislature in granting that power to have intended that, whether reconsideration is initiated by petition of a party aggrieved or upon the board's own motion, the order granting reconsideration must be based upon one of the grounds specified in section 5903. Otherwise, workmen's compensation hearings could be tried over and over again." (See Lab. Code, §§ 5315, 5900, subd. (b); Code Civ. Proc., § 657, subd. 4; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal. 3d 627, 633-635 and fn. 11 [83 Cal. Rptr. 208, 463 P.2d 432]; Evans v. Workmen's Comp. App. Bd. (1968) 68 Cal. 2d 753, 755 [68 Cal. Rptr. 825, 441 P.2d 633].)[9]
Although we do not believe that the board's grant of reconsideration here rested upon sufficient grounds, we recognize that section 5903 provides the appeals board with considerable discretion in deciding whether to grant such reconsideration. Indeed, the breadth of the board's powers in that respect finds further exemplification in Labor Code section 5903, subdivision (c), which permits the board to grant reconsideration if the evidence does not "justify" the findings of fact. The word "justify" indicates that the board enjoys broad authority to correct injustices, but at the same time by definition inhibits an arbitrary grant of reconsideration. (See, e.g., Argonaut Ins. Exchange v. Ind. Acc. Com. (1958) 49 Cal. 2d 706, 710-711 *93 [321 P.2d 460][10] (reconsideration granted to consider whether evidence and findings justify attorney's lien and later award of compensation); Rushing v. Workmen's Comp. App. Bd. (1971) 15 Cal. App. 3d 517, 522 [92 Cal. Rptr. 605] (reconsideration may be granted to direct examination by a physician (Lab. Code, § 5701) and taking of additional evidence).)
(4) Under the circumstances of the present case, however, the board abused its discretion in allowing the carrier deliberately to withhold the motion picture evidence until the referee, who is the official fact-finder of the board, had reached a decision. Neither the board nor the carrier has suggested any persuasive reason why the carrier should be permitted to flout the board's reasonable rules as well as its legislative mandate under section 5903. We conclude that the board in ordering reconsideration erroneously relied upon the motion picture evidence. (5) Furthermore, in permitting the attorneys only to "make brief comments on the content" of the film the board denied applicant his fundamental right to cross-examination and to the presentation of rebuttal evidence. (See Allied Comp. Ins. Co. v. Ind. Acc. Com. (1961) 57 Cal. 2d 115, 121 [17 Cal. Rptr. 817, 367 P.2d 409]; Fireman's Fund Indem. Co. v. Ind. Acc. Com. (1963) 223 Cal. App. 2d 350, 351-353 [35 Cal. Rptr. 729]; Massachusetts etc. Ins. Co. v. Ind. Acc. Com. (1946) 74 Cal. App. 2d 911, 913-915 [170 P.2d 36].)[11]
Even if the motion picture evidence had been offered in a timely fashion at the referee's hearing, the referee should have refused to rely upon it *94 because the carrier obtained it by fraudulent inducement. The record contains uncontradicted testimony by applicant that the private investigator induced applicant's intoxication and subsequent horseback ride in order to obtain a film of this activity. The carrier thereafter attempted to profit by this questionable conduct: it sought to introduce the film in evidence at the compensation proceeding.
We recognize that motion picture evidence is now quite commonly utilized in personal injury and workmen's compensation litigation. (See, e.g., Ryan v. Workmen's Comp. App. Bd. (1968) 265 Cal. App. 2d 654, 660 [72 Cal. Rptr. 140]; Mejia v. Workmen's Comp. App. Bd. (1966) 31 Cal.Comp.Cases 330; Transport Indem. Co. v. Workmen's Comp. App. Bd. (1966) 31 Cal.Comp.Cases 356; 1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation, supra, § 17.01[5][b]; Herlick, Cal. Workmen's Compensation Law (1970) § 16.66.) (6) Ordinarily, of course, motion pictures are obtained without fraudulent inducement.[12] Under such circumstances the film may constitute competent evidence to be considered in determining the extent of disability. On rare occasions, however, the insurance carrier or its private investigators have deceitfully induced applicants to perform acts for the hidden camera which they would not otherwise have committed. (See Carson v. Workmen's Comp. App. Bd. (1966) 31 Cal.Comp.Cases 291.)[13]
(7, 8) In the present proceeding, the carrier should not profit from its own deceitful conduct. The investigators feigned friendship and concealed their employer's identity in bringing about applicant's inebriation and effectuating his horseback ride. Nothing in the record so much as suggests that in the absence of the fraudulent inducement applicant would have taken the ride. Indeed, the referee found that the carrier fraudulently obtained the film by means of a violation of applicant's rights; the referee refused to consider the two medical reports to the extent that they described or relied upon the tainted film.
*95 The appeals board is not "bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions" of the workmen's compensation laws. (Italics added.) (Lab. Code, § 5708.) As this court observed in French v. Rishell (1953) 40 Cal. 2d 477, 481 [254 P.2d 26], the board "from its early days, has" been "allowed to receive hearsay evidence and to proceed informally...." (See Bland v. Workmen's Comp. App. Bd. (1970) 3 Cal. 3d 324, 330 [90 Cal. Rptr. 431, 475 P.2d 663].) Evidence obtained by fraud and deceit in violation of the rights of the applicant, however, is not "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions" of the workmen's compensation laws. The high purposes of the compensation law should not be perverted by resort to evidence perfidiously procured. We therefore conclude that the board may not rely upon evidence obtained, as in the present case, by deceitful inducement of an applicant to engage in activities which he would not otherwise have undertaken.
3. The appeals board decision lacks the support of substantial evidence.
As we have stated, the referee, after a complete and full hearing, determined that applicant had incurred a 57 percent permanent disability; this award was set aside by the appeals board solely upon the basis of the motion picture of the ride and the medical reports of Drs. Crandall and Perlson that were predicated upon that film. (9) We shall point out that the board's decision lacks the support of substantial evidence on either of two hypotheses: that the board could rely upon the tainted motion picture and the resultant reports or that the board could not do so.
Assuming the prior supposition we cannot find in the film or the reports substantial evidence to support the board's conclusion that applicant incurred no permanent disability. Turning to the film, we note that it does not refute the referee's finding that applicant could perform light work only and not heavy work. First, not even the carrier's attorney contended that the film showed anything more than that "Applicant is not precluded to light work." The carrier's attorney admitted, "I don't think the activity was strenuous or severe, but it did show that the applicant is willing to move. The applicant could work; if he could be as active as the pictures depict...." Applicant, however, did not deny that he could perform light work and testified as to the kinds of light work in which he had engaged since the accident. Second, Dr. Shear, one of applicant's doctors, wrote that applicant is "unable to resume employment of a strenuous nature including driving a truck which also necessitates loading and unloading of heavy merchandise and equipment.... This patient should not attempt *96 to lift weights in excess of 15 to 20 pounds...." Nothing in the film contradicts Dr. Shear's report, which the referee accepted. Third, applicant engaged in riding while under the influence of alcoholic beverages, a condition that might well have temporarily reduced his back pain so to permit activity more arduous than usual. As the appeals board observed in refusing to rely upon motion picture evidence in another case, "It should be noted that motion picture films, such as the ones we viewed in this matter are often deceptive in that they depict a person on his good days, but fail to reveal his activities on those days when he might have trouble." (Cypress Ins. Co. v. Workmen's Comp. App. Bd. (1967) 32 Cal.Comp.Cases 458, 460.)[14]
Clearly, the motion picture evidence does not constitute substantial evidence to support the appeals board's conclusion that applicant had incurred no permanent disability. It might have supported a conclusion that applicant was not disabled from performance of light work, but this conclusion would have been completely consistent with the referee's decision.
In like fashion, the two medical reports, which the board followed, constitute no more substantial evidence than the film on which they were founded. "Expert medical opinion ... does not always constitute substantial evidence on which the board may rest its decision. Courts have held that the board may not rely on medical reports ... based upon inadequate medical history or examinations (West v. Industrial Acc. Com. (1947) 79 Cal. App. 2d 711....)" or upon "surmise, speculation, conjecture, or guess." (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal. 3d 372, 378 [90 Cal. Rptr. 424, 475 P.2d 656]; see Garza v. Workmen's Comp. App. Bd., supra, 3 Cal. 3d 312, 318-319.) The September 1968 medical reports disclose the enumerated badges of unreliability.[15]
In the instant case, the physicians knew nothing of the conditions under which applicant took the ride, the conditions that followed it, or whether the ensuing pain would preclude applicant from ever pursuing such *97 activities again. In addition, the film did not indicate that the applicant could perform heavy work and thus had completely recovered from his industrial injury. The medical reports, therefore, do not constitute substantial evidence that applicant suffered no permanent disability.
Assuming that because of the reasons above stated, the board could not properly rely upon the film and the related medical reports, we find that the board clearly lacked substantial evidence to support its decision. The board based its conclusion that applicant had suffered no permanent disability solely upon the motion picture and the September 1968 medical reports. Since the board could not justifiably rely upon the film and related medical reports and since no substantial evidence remains to support the decision, we must conclude that the holding that applicant had incurred no permanent disability should be annulled. (Lab. Code, §§ 5952, subd. (c), 5952, subd. (d); Maryland Cas. Co. v. Industrial Acc. Com., supra, 178 Cal. 491, 493; see LeVesque v. Workmen's Comp. App. Bd., supra, 1 Cal. 3d 627, 637.)
We conclude with the observation that we cannot sanction the carrier's attempt to profit by its deceitful inducement of applicant to engage in activity which he would not otherwise have undertaken. The legal process cannot be stultified by crowning such amoral maneuvers with apparent success. In the instant case the procedure becomes even more aggravated by the late reliance upon introduction of the ill-gotten film at a hearing on reconsideration although that film had not been previously produced and although on reconsideration applicant was denied the rights of cross-examination and presentation of rebuttal evidence. The procedure here is thus doubly dubious.
The order is annulled with directions to the Workmen's Compensation Appeals Board to reinstate the referee's award initially made, in accordance with the views expressed.
Wright, C.J., McComb, J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
NOTES
[1] Early in July 1967 at home applicant fell; he was hospitalized for another 17 days. When applicant, then 34 years old, returned from the hospital, his parents brought him to their retirement home where he has since remained. He continued to receive periodic medical examinations and treatment for his back condition.
[2] Chavez first observed applicant on June 16, 1968, loading a pickup truck with camping supplies and driving the truck. Although Chavez followed applicant to his destination and stayed for two days, he did not observe applicant again on that occasion and did not take any motion pictures.
[3] The insurance carrier's attorney later summarized the content of the films: "The pictures were over two days. I don't think the activity was strenuous or severe, but it did show that the applicant is willing to move. The applicant could work; if he could be as active as the pictures depict, it would appear he is not as disabled as he would have us believe. The pictures cover two days. The pictures on the second day show as much activity as the first day, which should indicate, I believe, that the activity on the first day didn't disable him to any degree."
[4] The referee also refused to consider the actions of the insurance company investigators during the riding incident as serious and wilful misconduct of the employer under Labor Code section 4553. (But see Lab. Code, § 3850, subd. (b); cf. Duprey v. Shane (1952) 39 Cal. 2d 781, 790 [249 P.2d 8].) The appeals board later upheld the referee in this regard; the applicant did not raise the serious and wilful misconduct issue in his petition for writ of review or in his petition for hearing. We therefore decline to consider the issue in the present proceeding.
[5] Although the panel retains the authority to receive evidence on reconsideration, it almost always refers the matter to a referee for the taking of evidence. (Lab. Code, § 5906; 1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed. 1970) § 7.03[5][b]; Bancroft, Some Procedural Aspects of the California Workmen's Compensation Law (1952) 40 Cal.L.Rev. 378, 392.) In receiving the evidence without a referee and without permitting full cross-examination and rebuttal testimony, the appeals board apparently failed to distinguish between its role as a reviewing body and as a trier of fact.
[6] Labor Code section 5903 provides,
"At any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a referee granting or denying compensation, or arising out of or incidental thereto, any person aggrieved thereby may petition for reconsideration upon one or more of the following grounds and no other:
(a) That by such order, decision, or award made and filed by the appeals board or referee, the appeals board acted without or in excess of its powers.
(b) That the order, decision, or award was procured by fraud.
(c) That the evidence does not justify the findings of fact.
(d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.
(e) That the findings of fact do not support the order, decision, or award.
Nothing contained in this section shall limit the grant of continuing jurisdiction contained in Sections 5803 to 5805 inclusive."
References hereinafter to section 5903, without mention of any code, are to the quoted section.
[7] After the petition for reconsideration had been granted, the carrier's attorney stated that he failed to produce the film at the referee's hearing because he did not have it in his possession at that time. If, because of excusable neglect, the attorney had not brought the film to the hearing, he could have requested a continuance in order to obtain it. (Compare 3 Witkin, Cal. Procedure (1st ed. 1954) Attack on Judgment in Trial Court, § 14.) The attorney for the carrier made no such request for a continuance and thus cannot rely upon the excuse that he did not have the film with him at the time of the hearing.
[8] Labor Code section 5906 provides,
"Upon the filing of a petition for reconsideration, or having granted reconsideration upon its own motion, the appeals board may, with or without further proceedings and with or without notice affirm, rescind, alter, or amend the order, decision, or award made and filed by the appeals board or referee on the basis of the evidence previously submitted in the case, or may grant reconsideration and direct the taking of additional evidence. Notice of the time and place of any hearing on reconsideration shall be given to the petitioner and adverse parties and to such other persons as the appeals board orders." (See also Lab. Code, §§ 5315, 5900, subd. (b).)
References hereinafter to section 5906, without mention of any code, are to the quoted section.
[9] "It is to be noted, however, that within limits prescribed in sections 5803-5806, the board does have continuing jurisdiction `upon the grounds that the disability of the person in whose favor such award was made has either recurred, increased, diminished, or terminated.' (Lab. Code, § 5803.) Nothing herein stated shall be construed as an attempt by this court to circumscribe that power." (Michon v. Workmen's Comp. App. Bd., supra, 15 Cal. App. 3d 917, 925.) Nor do we here circumscribe the board's authority to "confirm, adopt, modify or set aside the findings, order, decision, or award of a referee ..." (Lab. Code, § 5315) to any greater extent than contemplated by Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal. 3d 312, 317-319 [90 Cal. Rptr. 355, 475 P.2d 451] (referee's findings are "entitled to great weight").
[10] Although Argonaut distinguishes between the "good cause" requirement of Labor Code sections 5803-5806 and the lack of such a requirement in Labor Code sections 5315, 5900, and 5906, the granting of reconsideration in Argonaut rested upon a non-arbitrary basis and the Argonaut opinion does not dispense with the requirement for such a basis for granting reconsideration.
[11] Previous to the enactment of Labor Code section 5952, workmen's compensation decisions were reviewable by writ of certiorari, and appellate courts would not annul decisions on the ground that the Industrial Accident Commission had committed procedural errors. (Maryland Cas. Co. v. Industrial Acc. Com. (1918) 178 Cal. 491, 492-493 [173 P. 993]; Folsom v. Industrial Acc. Com. (1934) 3 Cal. App. 2d 282, 284 [38 P.2d 786].) Workmen's Compensation Appeals Board decisions are now reviewable by writ of review under section 5952. Section 5952, subdivision (c), permits an appellate court to annul a workmen's compensation "order, decision, or award" if it is "unreasonable." "The term unreasonable [includes] unfair or arbitrary procedure." (Cal. Workmen's Compensation Practice (Cont.Ed.Bar 1963) § 12.12.) We can only annul an appeals board decision, however, if it is reasonably probable that, absent the procedural error, the aggrieved party would have attained a more favorable result. (See Allied Comp. Ins. Co. v. Ind. Acc. Com., supra, 57 Cal. 2d 115, 121; Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal. 3d 285, 300 [85 Cal. Rptr. 444, 466 P.2d 996].) In the present case, the appeals board clearly considered the content of the film to be pivotal in deciding whether applicant was suffering from permanent disability. Hence, both the improper viewing of the film on reconsideration and the failure to permit cross-examination and rebuttal constitute grounds for annulling the board's decision.
[12] See, e.g., Ryan v. Workmen's Comp. Bd., supra, 265 Cal. App. 2d 654, 660 (applicant filmed in parking lot); Choyce v. Workmen's Comp. App. Bd. (1967) 32 Cal.Comp.Cases 315 (applicant filmed while playing basketball); Kemp Bros. Contractors v. Workmen's Comp. App. Bd. (1967) 32 Cal.Comp.Cases 35 (applicant filmed getting into and out of automobile); Ryland v. Industrial Acc. Com. (1966) 31 Cal.Comp.Cases 54 (applicant filmed walking 14 1/2 blocks on public street without stopping).
[13] In such cases, the private investigators may well make an intrusion into the individual's right of privacy which would be objectionable or offensive to the reasonable man. (See Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 390-391.) Courts have permitted such an individual to maintain an action for damages against the intruders. (See, e.g., Shernoff, The Demise of the Sub Rosa Investigation, 45 State Bar J. 853; see also Wayne v. Bureau of Private Investigators & Adjusters (1962) 201 Cal. App. 2d 427, 433-436 [20 Cal. Rptr. 194].)
[14] Although the film purported to show the applicant on two successive days during which he was engaging in excessive drinking, the applicant felt severe back pain from the riding as soon as he stopped drinking. (See generally Hanna, Cal. Law of Employee Injuries and Workmen's Compensation, supra, § 17.01 [5][b].)
[15] Accordingly, we need not decide whether Labor Code section 5703 would also preclude the appeals board from relying upon a doctor's report which was prepared when the doctor had not seen the patient for such a substantial period as seven or nine months and when the doctor clearly lacked significant information which would affect his opinion. (See Sweeney v. Workmen's Comp. App. Bd. (1968) 264 Cal. App. 2d 296, 305 [70 Cal. Rptr. 462]; State Employees' Retirement System v. Smith (1959) 24 Cal.Comp.Cases 90; Waldon v. Industrial Acc. Com. (1945) 10 Cal.Comp.Cases 148.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611782/ | 39 Cal. App. 2d 91 (1940)
JOHN CASEY, Respondent,
v.
CHARLES DELELIO et al., Appellants.
Civ. No. 11184.
California Court of Appeals. First Appellate District, Division Two.
May 13, 1940.
Redman, Alexander & Bacon and Herbert Chamberlin for Appellants. *92
John J. Taheny for Respondent.
Nourse, P. J.
Plaintiff sued for damages for personal injuries and had a verdict for $6,000 and $5,000 respectively against Charles and Alfredo Delelio to whom we refer herein as defendants, since the other defendants had a verdict against plaintiff and are not interested in the appeal. The defendant's appeal raises four separate questions, but we will confine our discussion to the first which relates to the charge of contributory negligence on the part of the plaintiff.
The facts concerning the accident are not in material dispute. At about 5:40 o'clock on the morning of January 13, 1938, the plaintiff walked northerly on the westerly side of Third Street, in the city and county of San Francisco, crossed its intersection with King Street, and then turned to his right in an easterly direction to cross Third Street. At that point King Street was occupied by the Southern Pacific Railroad Company with three sets of railway tracks which were used chiefly for switching purposes. The westerly side of Third from King to Townsend Streets north was occupied by the Southern Pacific depot. It had a wide sidewalk and curbing throughout the block. The easterly side of Third Street from King to Townsend was occupied by stores and other places of business. There was no defined or marked crosswalk at the intersection of Third and King. What might be termed the point of the curb on the east side of Third was a little farther south than that on the west. After crossing the railroad tracks, plaintiff looked to his left and to his right and saw a street car coming northerly on Third Street and crossing the railroad tracks at that intersection upon the signal of the flagman stationed at that point. He then started easterly and ran across the street railway tracks to a point approximately between three and ten feet easterly from the most easterly rail where he was hit by defendants' automobile which was proceeding northerly paralleling the street car.
Negligence is charged to the defendants in the excessive speed at which the automobile was operated with insufficient or defective brakes, and with a failure to sound a horn. Their negligence in this operation of the vehicle will be assumed. In their attack upon the judgment the defendants charge that the plaintiff was guilty of contributory negligence as a matter *93 of law in his attempting to cross the street at a point other than the crosswalk and in front of the moving street car which completely obscured his view of all northbound traffic to the east of the street car.
The plaintiff did not appear as a witness at the trial but in a deposition given soon after the accident he testified: "I don't know just where it did happen, no." Witnesses agreed that plaintiff fell where he was struck and was not carried forward by the automobile. The operator of the street car testified that the plaintiff fell right where he was hit and that that point was about thirty to thirty-five feet from the northerly property line of King Street. The police officer who helped remove the plaintiff from the street testified that he was lying thirty feet from the intersection of King Street. Another police officer, who was on the scene at the time, testified that the plaintiff was lying at a point even with the restaurant doors at a place on the easterly side of Third Street. These doors were later shown to be thirty-two feet three inches from the intersection. The undisputed evidence is that plaintiff was not crossing the street at the intersection as that expression is defined in the Vehicle Act, but he was attempting to cross at a point approximately thirty feet north of such intersection.
[1] By the same undisputed evidence the plaintiff was shown to have run into the place of danger without looking for traffic. The plaintiff testified in his deposition that he was crossing the street at "a mighty good gait", faster than a walk, "You wouldn't call it a long run, but I had a very good step. I remember that. I figured to get on the other side. Q. You were going faster than a walk? A. Oh, yes, faster than a walk; faster than an ordinary walk." Plaintiff said he first saw defendants' automobile coming after he had passed in front of the street car. He testified: "I couldn't stop there then, because I was going at a fairly good rate, and my speed couldn't be stopped, and the street car,--I didn't actually know by looking at him, or looking at the street car, whether I was even across the tracks yet or not." And when asked the question: "When was it that you started to run"? he answered, "Well, when I got over the track that the street car was on, I seen then that he was coming toward me on the other side. Q. And it was how far away from you at that *94 time? A. Well, it was probably a car length, or maybe a half a car length."
The "Restatement of Question Involved" appearing in respondent's brief rests on his construction of the testimony that "the plaintiff walked on a crosswalk across a car track in front of a street car which was slowly approaching thereon at a speed of 3 or 4 miles an hour, and kept looking at all times in the direction of approaching traffic, and cleared the track when the street car was about 19 feet away, at which time he observed the defendant's automobile to be at the rear of the street car or farther back, and was struck with terrific force by the defendant's automobile after the street car then had proceeded about 25 feet ...". Unfortunately for plaintiff these facts do not appear in any evidence taken at the trial.
In the deposition of the operator of the street car who observed the plaintiff running across the street it appears that plaintiff started to run in front of the street car at about the time he approached the northbound tracks, that he was approximately ten feet east of the easterly rail when he was hit, that he dropped to the pavement right where he was struck, that at the moment of the impact the street car had covered the intervening twenty feet so that he was directly opposite plaintiff at the moment he was struck, that the plaintiff was not carried forward by the automobile, and that he did not cease running from the time the witness first saw him approaching the southbound tracks of the street railway, until he was struck by defendants' automobile. The defendant, Charles Delelio, testified that as he was crossing the intersection at King Street his automobile was about three feet to the east of the street car. All witnesses agreed that the point of impact was approximately from three to ten feet from the easterly rail. The plaintiff was hit by the left front fender and bumper of the automobile, and the same evidence demonstrates that the plaintiff did not yield the right of way to the approaching automobile, and that having first discovered that there was no traffic coming southerly on Third Street, he left this place of safety and ran into a position of danger without taking any precautions for his own safety before doing so. As he went forward across the street he voluntarily placed the screen of the moving street car between himself and all approaching traffic from the south, and because *95 of this it became impossible for him to observe any of the traffic coming northerly on Third Street alongside of or to the rear of the moving street car.
The facts of this case bring it squarely within the principle stated in White v. Davis, 103 Cal. App. 531, 542 [284 P. 1086], where the court said: "There seems to be a general rule running through the cases where a pedestrian, or one standing on a highway, is injured by an automobile, which usually determines whether the question of contributory negligence is one of law or of fact. Where the injured party fails to look at all, or looks straight ahead without glancing to either side, or is in a position where he cannot see, or in other words, where he takes no precaution at all for his own safety, it is usually a question for the court." A case very similar to the case at bar is Anderson v. Market Street Ry. Co., 116 Cal. App. 282 [2 PaCal.2d 529]. Many others are cited in 8 California Jurisprudence Ten-Year Supplement, pages 400 and 983. As long as the doctrine of contributory negligence as a matter of law is to be recognized it must be applied to a case such as this where the undisputed evidence shows that plaintiff voluntarily placed himself in a position where he could not see danger approaching from a point where a reasonable man must have anticipated it.
The judgment is reversed.
Sturtevant, J., and Spence, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913937/ | 981 A.2d 921 (2009)
COM.
v.
HECK.
No. 1724 WDA 2008.
Superior Court of Pennsylvania.
July 15, 2009.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984315/ | April 10, 2014
JUDGMENT
The Fourteenth Court of Appeals
SHAINA LEE-ANN COLEMAN, Appellant
NO. 14-13-01007-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the motion of the appellant to withdraw notice of
appeal. Having considered the motion the Court orders the appeal DISMISSED.
We further order appellant pay all costs expended in the appeal.
We further order the mandate be issued immediately. We further order this
decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610279/ | 485 P.2d 444 (1971)
STATE of Oregon, Respondent,
v.
James Frank BROWN, Appellant.
Court of Appeals of Oregon, Department 2.
Submitted on Briefs April 15, 1971.
Decided May 28, 1971.
Ronald L. Salter, Ashland, for appellant.
Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem, for respondent.
Before SCHWAB, C.J., and FORT and THORNTON, JJ.
THORNTON, Judge.
The Circuit Court of Jackson County found defendant guilty of driving a motor vehicle while under the influence of intoxicating liquor in violation of ORS 483.992(2).
He appeals contending that the lower court erred (1) in permitting the arresting officer to testify as to replies made to the officer's inquiries before defendant was advised of his constitutional rights; (2) in receiving in evidence statements made after he was advised of his rights, because the *445 same were tainted by his prior inadmissible statements; and (3) because the commission of the crime charged was not established to a moral certainty and to the exclusion of every other reasonable hypothesis before defendant's admissions were received into evidence.
At about 11 p.m. on the night of November 4, 1969, two state police officers on routine motor patrol found the defendant slumped over the wheel of an automobile which was parked alongside the main travel portion of Interstate Highway 5 south of Medford. The engine was stopped, the lights were off, but the hood was warm. The senior officer tapped on the car windows but could not arouse defendant. He opened the door and assisted defendant out of the car. Defendant when asked if he knew where he was replied, "California." The officer testified that he walked the defendant back and forth for five or ten minutes because he did not think defendant realized what was happening. He noticed what appeared to be vomit on the defendant's shirt, detected the odor of alcohol, noticed defendant's eyes were bloodshot and that his speech was slurred and incoherent. Immediately thereafter the defendant was asked the following series of questions from what was identified by the officer as "Form 42":
"I asked `Where were you going?' He stated `Home.' `Q. Where did you start? A. In Oregon. Q. When did you leave? A. A little before 11:00 p.m. Q. The time now?' And he stated he thought it was 11:05 p.m. I asked him had he been drinking, and he said `Yes.' `Q. What? A. Beer. Q. Quantity? A. Eight to ten. Q. Commenced? A. 3:00 to 4:00 p.m. Q. Where? A. At Hunter's and the 100 Club.' I asked him `Are you ill? A. No. Q. Have you been to a doctor or dentist recently? A. No. Q. Are you taking medicine? A. No. Q. Do you have diabetes? A. No. Q. Are you taking insulin? A. No. Q. Have you used a mouthwash recently? A. No. Q. Are you hurt? A. No.'"
The officer testified the defendant was more alert after being questioned. He stated that he did not form an opinion that defendant was under the influence of intoxicating liquor until he ascertained through the questionnaire that defendant was not a diabetic. After being asked the questions from "Form 42" the defendant was warned of his constitutional rights, placed under arrest, put in the police vehicle and transported to the county jail. The senior officer testified that en route defendant made the statement that he was too drunk to drive, that he was having trouble seeing the road so he pulled over and parked. A breathalyzer test at the county jail disclosed defendant's blood alcohol content to be .13 percent. A motion picture taken of defendant shortly after he was booked showed him to be visibly unsteady on his feet.
Defendant's contention under assignment No. 1 with reference to police questioning prior to advising the defendant of his rights is essentially the same contention considered in State v. Taylor, 249 Or. 268, 437 P.2d 853 (1968). Taylor involved an automobile collision near Milwaukie State Police headquarters. The arresting officers heard the crash and immediately drove to the scene where he saw the defendant. He asked him a series of questions in relation to his driving and drinking substantially identical to those asked in the instant case. The defendant gave several incriminating answers. The officer noticed that defendant's speech was slurred, his eyes were dilated and he had trouble maintaining his balance. The officer then advised defendant of his rights and placed him under arrest for driving under the influence of intoxicating liquor. Our Supreme Court held that the officer's questions were part of a general "on-the-scene" investigation and constitutionally permissible under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 *446 A.L.R.3d 974 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965).[1]
While there are several factual differences between Taylor and the instant case, the rule laid down is applicable and controlling here. Such being the case, both of the defendant's first two assignments must fail.
As we understand defendant's third assignment of error, he is contending that proof of the element of "driving on a public highway" in the offense of driving while under the influence of intoxicating liquor cannot be inferred from "merely finding the defendant in a car that is parked at night with its lights and engine off." He is also contending that commission of the crime charged was not established to a moral certainty and to the the exclusion of every other reasonable hypothesis before defendant's admissions were received in evidence. These contentions are without merit. The officers found defendant slumped behind the wheel of a car parked alongside the highway. In addition the record shows that the keys were in the ignition and there was no other person in the vicinity. The officers testified that the hood of the car was still warm. This was sufficient evidence, apart from defendant's admissions, from which a court or jury could infer beyond a reasonable doubt that the defendant had driven the automobile on a public highway to the place where it was parked shortly before the officers arrived on the scene. See State v. Smith, Or. App., 91 Adv.Sh. 791, 476 P.2d 802 (1970).
The Oregon statute specifying the conditions under which a peace officer is authorized to make an arrest of a person without a warrant reads:
"A peace officer may arrest a person without a warrant:
"* * *.
"(3) When a felony has in fact been committed or a major traffic offense, as defined in subsection (5) of ORS 484.010, has been committed, and he has reasonable cause for believing the person arrested to have committed it; * * *.
"* * *." ORS 133.310(3)
(Emphasis supplied.)
Driving while under the influence of intoxicating liquor is a major traffic offense as defined by ORS 484.010.
Defendant also argues that the commission of the crime charged was not established to a moral certainty before defendant's incriminating answers to police inquiries were received in evidence. The order of proof is in the discretion of the trial judge. ORS 17.215; State v. Clipston, 237 Or. 634, 645, 392 P.2d 772 (1964); State v. Weston, 102 Or. 102, 113-115, 201 P. 1083 (1921).
The conviction is affirmed.
NOTES
[1] Subsequent to Miranda v. Arizona, supra, the United States Supreme Court in Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969), set aside a murder conviction because of a police officer's failure to give the warnings required by Miranda prior to obtaining admissions from defendant during questioning in defendant's boarding house bedroom in the early hours of the morning. Testimony of defendant's admissions was later introduced at trial. The court said that it is an absolute necessity for officers interrogating people "in custody" to give the warnings required by Miranda. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610283/ | 107 Ariz. 235 (1971)
485 P.2d 560
Eddie Lou ACHESON, Appellant,
v.
Richard M. ACHESON, Appellee.
No. 10322.
Supreme Court of Arizona, In Division.
May 28, 1971.
*236 Raineri, Raineri, & Raineri, by Joseph C. Raineri, Sr., Scottsdale, for appellant.
Minne & Sorenson, by Harold E. Whitney, Phoenix, for appellee.
UDALL, Justice:
Plaintiff, Eddie Lou Acheson, brought an action against her husband, Richard M. Acheson, seeking a decree of divorce on grounds of cruel and inhuman treatment. The defendant husband filed an answer and by counterclaim alleged similar grounds of misconduct on the part of the plaintiff and asked for divorce. The action was tried before the court without a jury. Judgment was entered granting the decree of divorce and ordering the defendant to pay the plaintiff's attorneys' fees in the amount of $1,312.00 and to pay the plaintiff $5,000.00 as reimbursement for debts and expenses, medical and otherwise, which she had incurred. The divorce decree made no provision for alimony. On appeal, plaintiff's only contention is that the trial court abused its discretion in not granting her an award of alimony.
The parties in the case before us first met in 1963, in a Phoenix restaurant and bar where the plaintiff was employed as a waitress. They developed a friendship which ultimately led to their marriage in October, 1965, and soon thereafter they moved to Prescott. Each of them had been married twice before. The plaintiff quit her job sometime prior to the marriage and has not worked since, apparently in part because of certain physical infirmities which required considerable medical care and some hospitalization during marriage. The defendant husband was formerly in the sign business but has been retired for some 10 years because of an arthritic condition. Prior to the marriage he inherited considerable property from his father, and this property apparently was the primary source of income for the parties during their marriage. The parties separated in June, 1968, and the plaintiff filed this action in August, 1968. Trial before the court was held on April 25, 1969, and the formal judgment granting the decree of divorce was entered on June 16, 1969. The defendant was 53 years old at the time of the divorce; the plaintiff was 41. No children were born of the marriage.
As is discussed in greater detail hereafter, an examination of the record reveals an absence of corroborating evidence of the misconduct which was alleged by the parties as grounds for the divorce. Since such corroborating evidence is required by statute, we must hold that the trial court was without jurisdiction to grant a divorce and that the judgment entered by the trial court *237 is therefore void. The judgment of the trial court is accordingly reversed and the cause remanded for a new trial. At the new trial the court may consider anew the question of alimony.
To demonstrate our basis for the above holding, we first note that the trial court in the instant case granted a "Brown Decree" i.e., granted the decree of divorce without specifically granting the decree to either party. This form of divorce decree was first sanctioned by this Court in Brown v. Brown, 38 Ariz. 459, 300 P. 1007 (1931), and has been approved by this Court in a number of decisions since that time. See Hemphill v. Hemphill, 84 Ariz. 95, 324 P.2d 225 (1958); see also 133 A.L.R. 556. However, such a decree may be granted only where both parties have established satisfactory legal grounds for divorce. Moore v. Moore, 101 Ariz. 40, 415 P.2d 568 (1966). In the Moore case the trial court made a finding that neither the plaintiff nor the defendant established by satisfactory evidence their grounds for divorce, but in spite of that finding the trial court granted a "Brown Decree" dissolving the bonds of matrimony. As the basis for holding that the trial court was without jurisdiction under these circumstances to award a decree of divorce, we stated:
"The right to a divorce is wholly statutory and the legislature may make any grounds it sees fit a cause for divorce. Rozboril v. Rozboril, 60 Ariz. 247, 135 P.2d 221. The legislature has by A.R.S. § 25-312, provided ten grounds for divorce. It has not provided that the divorce may be granted where one of the statutory grounds has not been established or at the discretion of a superior court judge because he might think the parties would be better off as single persons. We said, in Smith v. Smith, 61 Ariz. 373, 149 P.2d 683:
"`We observe that both parties ask to be given their freedom from the other. That may not be done except upon a ground provided by the statute.'
"The trial court was wholly without jurisdiction under the circumstances of this case to award a divorce and its judgment is void * * *." 101 Ariz. 40 at 41; 415 P.2d 568 at 569.
As indicated above, A.R.S. § 25-312 provides ten grounds for divorce. The parties in the instant case relied on the second of those grounds. The statute provides as follows:
"§ 25-312. Grounds.
A divorce from the bonds of matrimony may be granted:
* * * * * *
2. When the husband or wife is guilty of excesses, cruel treatment or outrages toward the other whether by the use of personal violence or other means."
In the instant case, both parties in their pleadings alleged grounds of cruel and inhuman treatment on the part of the other. Also, each party denied the allegation of cruel and inhuman treatment made by the other. Thereafter in a pre-trial agreement, the parties made the following stipulation:
"II. Uncontested facts:
1. That the parties married.
2. That the parties are entitled to a Brown Decree.
3. She can have her name restored.
4. No children." [Emphasis added.]
The stipulation that the parties were "entitled to a Brown Decree" was apparently an attempt to eliminate the need for presenting evidence as to whether grounds existed for the divorce. On this point, the wife's reply brief contains the following statement:
"If this Court will examine the transcript of the testimony of the parties before the Court, it will find that there is not one bit of evidence relating to the conduct of either of the parties, the reason being that both parties had stipulated to *238 a Brown Decree. The purpose of the stipulation was to shorten the trial. Counsel for the wife, at least, entered into such a stipulation because he fully realized that the matter of who was at fault had no bearing on whether or not the wife was to receive alimony.
* * * * * *
"The husband on pages 3 and 4 of his brief states that the wife intimates in her brief that she was the successful party. It is difficult to perceive what basis there would be for such a statement as there could be no successful party with no evidence having been adduced. The husband further states that the decree was a `Brown Decree' because there was evidence before the Court that both parties contributed to the destruction of the marriage. We again reiterate that this statement is incorrect, inasmuch as there was no evidence whatsoever, presented before the Court at the trial of this matter. The only evidence presented was that relating to the wife's needs and as to the financial condition of the husband." [Emphasis added.]
We have reviewed the entire record on appeal, including the depositions and the exhibits attached thereto. It is apparent that the evidence presented was directed almost exclusively toward the issue of the financial circumstances of the parties. As a result, there was very little evidence relating to the issue of whether grounds existed for the divorce. The plaintiff and defendant, in their testimony, occasionally made an accusation or an admission regarding the misconduct alleged in the pleadings as grounds for the divorce. Other than these isolated comments, however, their testimony was directed entirely toward the issue of her needs and his ability to pay. The only other person to testify was the husband's banker, and his testimony was restricted to matters involving the husband's financial dealings with the bank.
To sustain a judgment of divorce, corroborating evidence is required as to all material allegations. A.R.S. § 25-317 provides as follows:
"§ 25-317. Proof required of allegations by complainant in divorce action; parties as witnesses.
A. In an action for divorce the defendant shall not be compelled to answer upon oath, nor shall the complaint be taken as confessed for want of an answer, but the judgment of the court shall be rendered upon full and satisfactory evidence sustaining all material allegations of the complaint.
B. Either party may be a witness, but no divorce shall be granted upon the testimony or admissions of a party unless they are corroborated by other evidence." [Emphasis added.]
In interpreting this statute, we have held that the purpose behind the requirement of corroboration is to prevent collusion between or connivance by the parties to secure a divorce upon simulated or false grounds. Hemphill v. Hemphill, 84 Ariz. 95, 324 P.2d 225 (1958). In Lawson v. Lawson, 88 Ariz. 352, 356 P.2d 701 (1960), we further stated:
"Where a divorce is much contested, and it is apparent that collusion does not exist, the rule is often relaxed. Lundy v. Lundy, 23 Ariz. 213, 202 P. 809. In such cases, only slight corroboration is necessary. Hemphill v. Hemphill, 84 Ariz. 95, 324 P.2d 225. * * * We recognize and approve these principles. We recognize also that the trial court had the advantage of seeing the parties and the witnesses, and we are most reluctant to disturb its judgment, especially where it affects marital status. Nevertheless, the quoted statute still has force and meaning; corroboration, however slight, is still necessary in every case of divorce, however hotly contested." 88 Ariz. 352 at 353; 356 P.2d 701 at 701-702. [Emphasis added.]
Earlier in this opinion we pointed out that, in order for a "Brown Decree" to be valid, it is necessary that both parties establish satisfactory legal grounds for the *239 divorce. We also noted that in establishing such grounds, it is necessary, under A.R.S. § 25-317, to present corroborating evidence as to all material allegations. In the instant case, the parties in their pleadings alleged grounds of cruel and inhuman treatment, but the record reveals no corroborating evidence sufficient to meet the requirements of A.R.S. § 25-317. This situation apparently developed because the parties in their pre-trial agreement stipulated that they were both "entitled to a Brown Decree" and then presented evidence directed almost exclusively toward the issue of the financial circumstances of the parties. In effect, then, the parties attempted to obtain a divorce by mere mutual agreement, an approach which has clearly not been authorized by the legislature.
Because of the lack of corroborating evidence, the parties in the instant action failed to establish satisfactory legal grounds for divorce. Under these circumstances the trial court was without jurisdiction to grant a divorce and the judgment entered by the trial court is therefore void. The judgment of the trial court is accordingly reversed and the cause remanded for a new trial. At the new trial the court may consider anew the question of alimony.
Reversed and remanded.
STRUCKMEYER, C.J., and CAMERON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610286/ | 485 P.2d 1085 (1971)
Vernon WYNN, As Administrator of the Estate of Judith Wynn, Deceased, Appellant,
v.
Dr. Everett L. SUNDQUIST, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted May 7, 1971.
Decided June 10, 1971.
*1086 Don G. Swink, Portland, argued the cause for appellant. With him on the briefs were Bailey, Swink, Haas & Malm, Portland.
Richard Bryson, Eugene, argued the cause for respondent. With him on the briefs were Windsor Calkins, and Bryson & Robert, Eugene.
TONGUE, Justice.
This is an appeal by plaintiff from a verdict and judgment for defendant in an action for wrongful death resulting from alleged malpractice by defendant, a doctor.
Plaintiff's complaint alleged that decedent's husband requested defendant to examine and treat decedent for illness because of extreme nausea and vomiting; that defendant refused to come to decedent's house, but instructed decedent's husband to bring her to the parking lot behind his office, where defendant did not examine her personally, but had his nurse administer drugs by injection; that decedent then became more seriously ill and that her husband so informed defendant, who took no action, but told her husband to wait three or four hours; that two hours later, without direction by defendant, decedent's husband took her to a hospital, where she died of acute fulminating diabetes mellitus with acidosis.
Following the jury verdict that defendant was "not guilty," plaintiff moved for a judgment n.o.v. and also, in the alternative, for a new trial, based, among other things, upon alleged error in the admission of a "report of investigation of injury to child" by Dr. Keith McMilan, as a medical investigator for the Oregon State Board of Health. That report involved the six-year-old child of the decedent and included the following statements under the following headings:
"Apparent circumstances of injury:
"Mrs. Gillis called to say a friend of hers, a teacher at Mt. Vernon Kindergarten, reported that in late May the child, Tony Wynn, came to school with bandaged hand. Teacher asked what was the matter. He told her he had been naughty and mommy burned his hand with iron.
"* * *
"Summary of investigation of injury:
"Teacher is not available at this time for questioning. Mrs. Gillis thinks there have been other injuries to child. Local doctors are being alerted to watch for this child.
"Disposition of case: For record only at this time."
The motion for new trial was also based upon the following additional alleged error:
"In failing to grant a mistrial on the Motion of the Plaintiff, when the Court knew that juror No. 3, James A. Nell, had personal knowledge of the incident referred to in Exhibit No. 1 of the Defendant. Said juror stated under oath he would probably be influenced by that knowledge, all of which would be to the Plaintiff's detriment."
Upon denial of the motion and entry of judgment for defendant, plaintiff filed a notice of appeal, accompanied by a "designation of record" which did not designate "all the testimony and all the instructions given and requested," as permitted by ORS 19.074(2) (c), but designated only portions of the record, as also permitted by that statute. The designated portions included "all the testimony, exhibits and evidence offered or received at the trial pertaining to the witness, Dr. Keith McMilan as a witness for the defense." The designation also included, among other things, instructions and exceptions pertaining to that testimony *1087 and also the interrogation and colloquy between the court, counsel and one of the jurors. Plaintiff did not, however, file a "statement of points on which he intends to rely," as required by ORS 19.074 (2) (b) to be filed except where all of the testimony and instructions are included in the designation of record.
Defendant made no objection at that time to this defect in the appeal. Plaintiff, as appellant, then filed an abstract and brief, in which the same two alleged errors were assigned (admission of the report and failure to grant a mistrial). In that brief plaintiff contended, among other things, that the report was not admissible either under ORS 43.370, relating to "Entries in Official Records," or under ORS 41.680-41.710, the "Uniform Business Records as Evidence Act," and cited cases to support that contention. Plaintiff also contended that the trial court erred in refusing to grant a mistrial for admitted prejudice by one of the jurors.
Defendant then filed a respondent's brief which made no attempt to answer appellant's brief on the merits of those assignments of error, but contended that the judgment of the trial court must be affirmed because appellant failed to file a statement of the points on which he intended to rely. Plaintiff-appellant then filed a motion for an order allowing the assignments of error in his brief to stand as his statement of points and allowing additional time to defendant to designate further portions of the record and to file an answering brief on the merits. That motion was allowed by this court.
Defendant then designated additional portions of the record, including, among other things, the remaining testimony of Dr. McMilan and plaintiff's Exhibit G. Defendant then filed a further brief in which he contends, with reference to the report in question: (1) that the record does not show that the report was admitted and plaintiff's assignment of error does not set forth the offer of the exhibit, the objection thereto and the court's ruling, as required by Rule 19 of this court; (2) that hearsay does not render official documents inadmissible and that the report was admissible under the "official records" exception to the hearsay rule; (3) that any error was invited by plaintiff's offering of Exhibit G as an official report prepared by the same doctor; and (4) that "plaintiff could not have been prejudiced by Exhibit 1," for the reason that it "only related or could relate to damages." Defendant also contended that there was no error in denying a mistrial for alleged prejudice by one of the jurors.
1. The record shows that the "report of investigation" was received in evidence.
With reference to defendant's first contention, we cannot overlook plaintiff's failure to comply with the clear requirements of both ORS 19.074(2) (b), requiring the filing in this case of a statement of the points on which he intended to rely, and Rule 19 of this court (now Rule 2.35), requiring that an assignment of error for failure to sustain an objection to evidence "must set out haec verba the pertinent portions of the record," including (according to Appendix B under that rule) the question and the objection made, as well as the ruling of the trial court (although not specifically referred to in Appendix B). That rule goes on to provide that:
"* * * Assignments of error which the court can consider only by searching the record for the proceedings complained of will not be considered."
On occasion, however, we have waived the strict compliance with the statutes and rules relating to appeals, except to the extent that they impose jurisdictional requirements. In our judgment, this is a proper case to do so. As stated, however, in Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 211, 358 P.2d 1062, 1065, 368 P.2d 737 (1962):
"Having said this much, we hasten to add that this ruling is not to be taken as an invitation to attorneys to disregard the statute or to hold its mandatory provisions *1088 lightly. They are intended to be strictly followed and the court expects members of the profession to govern themselves accordingly. Unlike the former statutes prescribing appellate procedure, the provisions of the new code are simple, expressed with admirable clarity and are easily complied with. It is difficult to conceive of an adequate excuse for an attorney to misunderstand their meaning or to fail to follow their directions."
Because of the disregard of these statutes and rules by plaintiff's attorneys in this case and to insure more careful future compliance with these requirements, we deny costs on this appeal to plaintiff for the printing of appellant's brief. We also question whether, under these circumstances, plaintiff's attorneys can properly charge to their client the cost of printing a brief which does not comply with the rules of this court and for which costs have been denied, but do not pass upon that question at this time.
Upon examination of the record, however, we are satisfied that the report in question was received in evidence. Although plaintiff has not submitted to us or called to our attention any ruling by the trial judge to that effect, it appears from the record that the trial judge overruled plaintiff's objection that the report was hearsay on the ground that the autopsy report offered by plaintiff was also "replete with hearsay." In addition, the exhibit is stamped as "Received" as defendant's Exhibit 1. Therefore, and since defendant does not deny that it was received in evidence, but contends only that plaintiff has not "set forth" the court's ruling to that effect, we are constrained to hold that this exhibit was received in evidence.
(2) The "report of investigation" was not admissible as an "official record."
Defendant contends that the "report of investigation" was admissible as an "official record" over objection that it was "not only hearsay one, but it's hearsay two." Thus, it is to be noted that the statements included in this report, as previously quoted, do not represent either facts of which the medical examiner had any firsthand knowledge or facts which represented findings as the result of any investigation made by him. On the contrary, these statements consisted of what Dr. McMilan had been told by another person (Mrs. Gillis), of what had been told to her by a second person (the teacher), of what had been told to her by a third person (the child) thus constituting hearsay three times removed. Furthermore, these statements were included in the report "for record only at this time."
It has been suggested that a distinction should be recognized between official "records" and official "reports," with the result that a statute such as ORS 43.370, relating to the admission of "entries in public or other official records," as an exception to the general rule excluding hearsay evidence, is limited to public "records," and does not extend to "reports" by public officers, as expressly provided for by the proposed Uniform Official Reports as Evidence Act. See Note, 30 Montana L.Rev. 227 (1969), and 5 Wigmore on Evidence (3d ed) 533-34, 699, §§ 1636, 1672.
Assuming, however, that not only public "records," but also "reports" by public officers made under duty imposed by statute, are admissible as an exception to the hearsay rule under either the Official Records Act (ORS 43.370) or the Business Records as Evidence Act (ORS 41.680), it is still required by the majority of courts that in order for a statement in such a report to be admissible, the person making the report must have had firsthand knowledge of the facts and the statement must be of such a nature that the person making the report, if called as a witness, could properly testify to the matters set forth in that statement. 5 Wigmore on Evidence (3d ed) 530-31, § 1635. See also McCormick on Evidence 617, § 294, and Dutton, The Official Records Exception to the Hearsay *1089 Rule in California, 6 Santa Clara Lawyer 1, at 6-7 (1965).
Decisions by this court under the Business Records as Evidence Act are in accord with that limitation. See Miller v. Lillard, 228 Or. 202, 211, 364 P.2d 766 (1961), and Snyder v. Portland Traction Co., 182 Or. 344, 351, 185 P.2d 563 (1947). But in Mayor v. Dowsett, 240 Or. 196, at p. 231, 400 P.2d 234 (1964), this court held that relevant medical history of a patient in a hospital, furnished by a person other than the patient and recorded in the hospital records, may be admissible under the Business Records as Evidence Act "in a proper case."
Decisions by this court under the Official Records Act, however, do not appear to decide this precise question. The only Oregon case cited by defendant on this point, Finchum v. Lyons, 247 Or. 255, 263, at p. 264, 428 P.2d 890, at p. 894 (1967), appears to be in accord with that view, however, since the apparent basis for holding that the pathologists' report was admissible in that case was not only that the record in question was an official record of another state, but also that "it seems clear to us that the pathologists who made the examination would be competent to testify concerning their findings." In a subsequent decision in that same case in 255 Or. 216, 465 P.2d 708 (1970), (involving a letter from the files of a Seed Certification Specialist at Oregon State University) this court quoted with approval from Allan v. Oceanside Lumber Co., 214 Or. 27, 49, 328 P.2d 327 (1958), (involving an Abstract of Clinical Record prepared by the United States Public Health Service) to the effect that in order to make an entry in a public record admissible under ORS 43.370 it is usually required that the officer making the entry either have had personal knowledge of the facts or that he had a duty of ascertaining the truth of such facts. In both Allan and Finchum, this court held that since there was neither proof of personal knowledge nor of a duty to ascertain the truth of the facts recorded, the documents involved in those cases were inadmissible.[1]
In this case it is clear that Dr. McMilan did not have "firsthand" knowledge of the facts of the "hearsay on hearsay" statement to him by Mrs. Gillis. In addition, it is clear that while Dr. McMilan may have had a duty to investigate reports of child abuse, he did not purport to make any investigation to ascertain the truth of that statement and did not make any findings to that effect. On the contrary, that statement was merely recorded by him, without investigation or verification, "for record only at this time."
Thus, under our previous decisions in Allan and Finchum, as applied to the facts of this case, it is clear that the "report" by Dr. McMilan should not have been received in evidence. See also Fletcher v. Walters, 246 Or. 362, 365, 425 P.2d 539 (1967), and Annot. 42 A.L.R. 2d 752, 753.
(3) The "report of investigation" was not admissible under the rule of "invited error."
As previously stated, the apparent basis upon which the trial judge overruled plaintiff's objection to the "report of investigation" relating to the burning of the hand of decedent's child was that plaintiff had previously offered, over objection by defendant, the report of the same state medical investigator relating to decedent's death and which, as stated by the trial judge, was "also replete with hearsay." On that basis, the trial judge ruled that "if the official records doctrine is appropriate in the instance of the autopsy report * * * *1090 it is also admissible in the case of the report by Dr. McMilan in regard to the claimed child abuse * * *."
Thus, defendant contends, without citation of authority, that "the error was certainly invited by plaintiff offering and succeeding in getting admitted to evidence Exhibit G as an official record of Dr. McMilan containing hearsay."
Before discussing the authorities on this question, two distinctions must be noted: (1) Although the trial court admitted the autopsy report as an official record on authority of Fletcher v. Walters, supra, it was not objected to by defendant on the ground that it was hearsay and was not admissible under "official records" exception to the hearsay rule. Instead, it was objected to only upon the ground that the doctor had already "testified to what he reported" and that "it is the best evidence of it," and that the witness "is here to testify to the facts he has," with the result that the written report was a "self-serving statement." (2) The "report of investigation" relating to the alleged child-abuse incident was not offered in response to the previous offer by plaintiff of the autopsy report, but related to an entirely different subject matter as well as to an entirely different issue in the case.
The underlying basis for the rule of "invited error" is that where one party offers inadmissible evidence, which is received, the opponent may then offer similar facts whose only claim to admission is that they negative or explain or counter-balance the prior inadmissible evidence, presumably upon the same fact, subject matter or issue. See 1 Wigmore on Evidence (3d ed) 304, 315; McCormick on Evidence 121, § 55, and 6 Jones on Evidence (2d ed). But see 31A C.J.S. Evidence § 190, p. 517.
In Walker v. St. Vincent de Paul, 239 Or. 135, 138-139, 396 P.2d 898, 899 (1964), this court stated that "* * * when testimony has once been received without objection it is within the discretion of the trial court to receive similar testimony subsequently offered although it is objected to when subsequently offered." In that case also, however, the subsequently offered testimony related to the same subject matter or issue. The same has been true in other decisions by this court.[2]
Different courts have adopted different rules relating to "invited error." See Wigmore, supra, 304-09, § 15. Also, according to Wigmore, at p. 309, the trial court should be allowed considerable discretion in the application of such rules. But in most of the decisions in which otherwise inadmissible evidence has been received on the ground of "invited error," such evidence related to the same subject matter or issue as the previously, but improperly received evidence, so as to negative, explain or counterbalance the prior inadmissible evidence on that subject matter or issue. See cases cited Wigmore, supra, pp. 306-08 in 1964 Pocket Supplement, pp. 69-71. In this case, however, this is not true, for reasons previously stated. Indeed, it is difficult to understand why the admission of hearsay evidence on one subject matter or issue should open the door to the opposing party to offer hearsay evidence on any or all other subjects or issues.
In addition, as more recently stated in 1 Wigmore, 1964 Pocket Supplement 71, § 15:
"Rules of curative admissibility are not inexorable commands binding upon the courts. Accordingly, if through inadvertence of counsel it becomes manifest that a miscarriage of justice would ensue from invoking the rule, the Court *1091 should have no hesitancy in granting a new trial."
This requires consideration of defendant's final contention that the admission in evidence of the report relating to the alleged incident of child abuse by decedent was not prejudicial to plaintiff in this case.
4. The "report of investigation" of the alleged incident of child abuse was prejudicial to plaintiff.
Defendant contends that the admission of this report was not prejudicial because any relevancy of the report went to the issue of damages, rather than that of liability, and there was an unanimous verdict in favor of defendant, presumably on the issue of liability.
Nevertheless, it is our best judgment that the improper admission of evidence from which, if believed by the jury, it could properly find that decedent was a mother of such degraded character as to deliberately burn the hand of her child with an iron, was clearly and grossly prejudicial in the consideration by the jury of all issues in the case, including that of liability.
This is far different from cases cited by defendants holding that improper instructions on the issue of damages may not be prejudicial where the jury has returned a defendant's verdict, including Foxton v. Woodmansee, 236 Or. 271, 289, 386 P.2d 659, 388 P.2d 275 (1964). Cases from other jurisdictions cited by defendant involving admission of improper evidence are also distinguishable on their facts and are not controlling.
For all of these reasons, we hold that the judgment for defendant must be reversed and that the case must be remanded for a new trial.[3]
Reversed and remanded.
NOTES
[1] In State v. McDonald, 55 Or. 419, 103 P. 512, 104 P. 967, 106 P. 444, at p. 447 (1909), however, involving an official "record," rather than an official "report" of an investigation, this court held that entries in an official "register" of births, marriages and deaths, are admissible without proof of firsthand knowledge of the person making such entries.
[2] See Oregon-Washington etc. Co. v. Spokane etc. R. Co., 83 Or. 528, 541, 163 P. 600, 163 P. 989 (1917); Boyd v. Grove, 89 Or. 80, 88, 173 P. 310 (1918), and Green Mt. Log Co. v. C & N R.R.R., 146 Or. 461, 470, 30 P.2d 1047 (1934). Cf. Patterson v. Horsefly Irrigation Dist., 157 Or. 1, 17, 69 P.2d 282, 70 P.2d 33 (1937), and Black v. Nelson, 246 Or. 161, 165, 424 P.2d 251 (1967).
[3] In view of the basis upon which this case has been decided, it is not necessary to consider plaintiff's further contention that the trial court erred in refusing to grant plaintiff's motion for a mistrial because of prejudice by one of the jurors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611882/ | 884 P.2d 538 (1994)
Barry WEATHERS and Ann Weathers, individualy and as husband and wife, Appellants,
v.
Lawrence B. FULGENZI, Ph.D., Olen Dale Maxwell, M.D., Stillwater Psychiatric Clinic, and Does 1 through 5, Appellees.
No. 75332.
Supreme Court of Oklahoma.
November 1, 1994.
Joseph F. Bufogle, Bufogle & Associates, Tulsa, Donald S. Anderson, Derek S. Casey, Michaud, Hutton & Bradshaw, Wichita, KS, for appellants.
Cheryl A. Ramsey, Szlichta, Ramsey & Meyers, Stillwater, for appellee, Lawrence B. Fulgenzi.
Richard Dan Wagner, Wagner, Stuart & Cannon, Tulsa, for appellee, Stillwater Psychiatric Clinic.
*539 SIMMS, Justice:
Appeal from the district court's order granting summary judgment to defendant/appellees, Lawrence B. Fulgenzi, Ph.D., and Stillwater Psychiatric Clinic (the Clinic), in a professional negligence action brought by plaintiffs Barry and Ann Weathers (hereinafter referred to as the Appellants collectively and Barry or Ann individually). Summary judgment was granted on the grounds that the statute of limitations had run on the Appellants' cause of action. The Court of Appeals held a controversy of material fact existed in regards to when the action accrued and reversed the trial court's order.
Certiorari was granted to consider the application of the discovery rule and the effect of our recent pronouncement, Lovelace v. Keohane, 831 P.2d 624 (Okla. 1992), in this case.[1] Because we find the district court did not err in its application of the discovery rule, the opinion of the Court of Appeals is vacated and the order of the district court is affirmed. The facts follow.
As a result of being raped, Ann, a registered nurse, began suffering from the effects of what was later diagnosed as post traumatic stress disorder. Two years after the rape, she sought counseling at the Clinic in order to get treatment for depression and anxiety, common effects of the disorder. After an initial consultation with Dr. Maxwell, a psychiatrist and owner of the Clinic, Ann was referred to Fulgenzi, a licensed psychologist and then employee of the Clinic, for treatment. Fulgenzi treated Ann on a regular basis from May, 1981, to October, 1983. Ann alleges that sometime during this period, she and Fulgenzi developed an attraction for one another which led to acts of sexual play and eventually one incident of sexual intercourse in the Fall of 1983. She said that she was in love with Fulgenzi and thought he was in love with her. Fulgenzi admits that some of his actions towards Ann were inappropriate but denies they ever had sexual intercourse.
Within a week of the one incident, Ann mentioned it to a close friend who worked as a psychological technician on a mental ward in a Stillwater hospital. The friend advised Ann of the wrongfulness of the occurrence *540 and admonished her to stop seeing Fulgenzi. Apparently, Ann followed this advice as the personal and professional relationship between her and Fulgenzi ended "right after" the incident.
Shortly thereafter, Ann attempted to commit suicide. Therapists noted several years later that the earlier rape was one factor in the cause of Ann's depression and resulting suicide attempt. They also opined that the attempt was a result of Ann blaming herself for the course of events and being "devastated" by the termination of the relationship with Fulgenzi.
After the suicide attempt, Ann began seeing Dr. Maxwell again, and continued seeing him for approximately six months to one year. There was some question as to whether Ann mentioned the incident with Fulgenzi to Dr. Maxwell, yet the Appellants concede in their brief that no evidence on the issue was presented. After a short period of treatment with Dr. Maxwell, Ann quit seeing him. Dr. Maxwell eventually closed the Clinic, destroyed all of his records, and moved out of Oklahoma.
After three years without any treatment, Ann began seeing Claudia Holdman, a psychologist, on April 9, 1987. Holdman speculated that Ann's lack of treatment was because she had become very busy and "her mind was on other issues during that period of time which kind of distracted her from thinking about it." Holdman also agreed that Ann probably decided that the matter of the sexual encounter was between her and Fulgenzi and it would be best to "bury it."
On her first day with Holdman, Ann revealed the relationship with Fulgenzi and the circumstances surrounding the termination of it. Apparently the first person she told about the misconduct, besides her friend who insisted she quit seeing Fulgenzi, was Holdman. Ann told Holdman that Barry was unaware of what happened with Fulgenzi and was "very adamant" that he not find out. Barry did not become aware of the incident until March of 1989, almost two years later, when Ann was hospitalized. The following month the Appellants filed this action. In response, the defendants filed motions to dismiss. After much evidentiary material was filed, the trial court treated the motions as ones for summary judgment.
Summary judgment is appropriate only where it appears that there is no substantial controversy as to any material fact and that one party is entitled to judgment as a matter of law. Sellers v. Oklahoma Publishing Co., 687 P.2d 116 (Okla. 1984); Daugherty v. Farmers Coop. Ass'n, 689 P.2d 947 (Okla. 1984). On review, all inferences and conclusions to be drawn from the underlying facts will be reviewed in the light most favorable to the party opposing the motion for summary judgment. Daugherty, supra; Redwine v. Baptist Medical Center of Oklahoma, Inc., 679 P.2d 1293 (Okla. 1983).
The trial court granted summary judgment on the grounds that the statute of limitations had run on the Appellants' action. The trial court found that the applicable statute of limitations was 12 Ohio St. 1981, § 95, which provides, in pertinent part:
"Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
* * * * * *
Third, Within two (2) years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud."
The trial court also concluded that this statute of limitation was not tolled by the discovery rule.
Typically, a cause of action arises and the statute of limitations begins to run on that cause of action when harm occurs to the plaintiff whether the plaintiff knew of the injury or not. Reynolds v. Porter, 760 P.2d 816 (Okla. 1988). However, the discovery rule takes into consideration that under some circumstances such as medical malpractice, a *541 plaintiff may not know that they were injured for some time after the statute of limitations has already run. Hence, the discovery rule "tolls the statute of limitations until an injured party knows of, or in the exercise of reasonable diligence, should have known of or discovered the injury, and resulting cause of action." Lovelace, 831 P.2d at 629 (Emphasis in original).
In other words, under the discovery rule, the two-year statute of limitations is tolled until such time as a reasonable person under the circumstances of the case would have discovered the injury and resulting cause of action. Consequently, the rule does not apply to a plaintiff who was aware of a wrong done to them. We explained in Daugherty v. Farmers Cooperative Ass'n, 689 P.2d 947, 950-51 (Okla. 1984):
"Properly limited, a discovery rule should encompass the precept that acquisition of sufficient information which, if pursued, would lead to the true condition of things will be held as sufficient knowledge to start the running of the statute of limitations... . This rule obtains because a reasonably prudent person' is required to pursue his claim with diligence.
* * * * * *
`For the purposes of the statute of limitations, if the means of knowledge exist and the circumstances are such as to put a reasonable [person] upon inquiry, it will be held that there was knowledge of what could have been readily ascertained by such inquiry and the limitation on the general rule often expressed in the statute is that plaintiff cannot successfully ... [set up a bar to the running of the statute] if his failure to discover is attributable to his own negligence.'" (quoting Kansas City Life Ins. v. Nipper, 174 Okla. 634, Okla. 634, 51 P.2d 741 (1935) (Emphasis added) (Citations omitted). See also Lovelace, 831 P.2d at 630 (quoting Daugherty.)
We note that there may be some question as to whether the proper statute of limitation in this action is 76 Ohio St. 1981, § 18,[2] rather than 12 Ohio St. 1981, § 95. We need not determine whether § 18 or § 95 applies herein because the same result will occur under either statute.
Lovelace involved the question of whether a plaintiff's multiple personality disorder constituted a legal disability so as to toll the statute of limitations in an action brought against a priest who was counseling the plaintiff. The evidence indicated the plaintiff in Lovelace was not under a legal disability which kept her from discovering the injury and resulting cause of action. In other words, with reasonable diligence, the plaintiff could have sought professional help which could have helped her determine the cause of her injury. Having failed to seek such help, we concluded the plaintiff's action was barred by the statute of limitations. In Lovelace, the Court explained that:
"[u]nder the discovery rule, an essential prerequisite to its application is the plaintiff's lack of awareness in recognizing the cause and extent of emotional harm. In this case, the allegations of Lovelace's complaint show that she cannot satisfy the minimum requirement to invoke the discovery rule. The rule does not apply when `(a) plaintiff is chargeable with knowledge of facts which he ought to have discovered in the exercise of reasonable diligence.'" 831 P.2d at 630 (quoting Daugherty v. Farmers Coop. Ass'n, 689 P.2d 947, 951 (Okla. 1984).
It is important to note the instant case is not one of repressed memory in which the victim represses the memory of the instances of abuse in order to cope with the mental trauma resulting from that abuse. In those cases, such as occurred in Lovelace, memory of the abuse is triggered by something that occurs later in life. However, in the case at *542 bar, Ann was aware of the alleged sexual encounter. In fact, when confronted about the wrongfulness of Fulgenzi's actions, Ann insisted that "she did not want to hurt [Fulgenzi]" by bringing some action against him. The Appellants do not even argue that she repressed the memory of the incident, but assert only Ann was unable to comprehend that she was injured by the misconduct of Fulgenzi until later when Holdman got through to her. Resulting psychological harm is not the question before us here. We are concerned only with questions concerning the statute of limitations.
Under the facts of this case, we cannot apply the discovery rule. Just as in Lovelace, we are reluctant to apply the discovery rule under the facts of this case. Although Ann was hospitalized for some period of time due to depression, anxiety, and suicidal ideations after she quit seeing Fulgenzi, she was able to work as a registered nurse and taught nursing classes at a vocational-technical school during that time as well. Such evidence shows Ann was capable, at least for part of the time, to think clearly about the events that had transpired.
Other evidence indicated Ann was capable of discerning the wrongfulness of Fulgenzi's act. For instance, therapists opined that Ann's depression and anxiety were caused by her placing the blame upon herself for the incident that had occurred with Fulgenzi. Holdman noted that in order for Ann to blame herself or "assign responsibility" to herself for such, she would first have to know that what happened was wrong. It is undisputed that a friend told her within a week of the incident that it was wrong. Ann cannot claim to be unaware of the impropriety of the incident back in 1983. In fact, she quit seeing Fulgenzi immediately after the incident occurred.
In addition, Ann was referred to Dr. Joseph Madrid, a psychiatrist at a crisis center where Ann was hospitalized in 1989. Dr. Madrid noted that Ann remembered what happened with Fulgenzi in great detail. He further stated that he would have no reason to doubt her ability to understand that what happened with Fulgenzi was wrong when she was told such by her friend shortly after it occurred. He explained that she would have understood because she was a high-functioning intelligent person who worked as a registered nurse. Consequently, under Lovelace, the discovery rule did not toll the statute of limitations in this case.
The Appellants assert that because they presented affidavits to the trial court supporting their argument that Ann was incompetent to know that Fulgenzi's alleged actions injured her, their case is distinguishable from Lovelace. They place much emphasis upon language in Lovelace which states:
"However, we note that in sexual abuse cases wherein the court applied the discovery rule, the plaintiff's claim of psychological repression was not supported by literature, such as DSM-III-R,[3] but corroborated by an affidavit from at least one treating psychological or psychiatric mental health therapist or expert. See e.g., Johnson v. Johnson, 701 F. Supp. 1363, 1365 (N.D.Ill. 1988), Meiers-Post v. Schafer, 170 Mich. App. 174, 427 N.W.2d 606, 607-608 (1988), and Hammer v. Hammer, 142 Wis. 2d 257, 418 N.W.2d 23, 24, (1987)." 831 P.2d at 631.
In each of the cited cases, the court had before it evidence (affidavits from treating therapists, psychologists or psychiatrists) which indicated that the sexual abuse caused the plaintiff to either repress her memory or be incapable of realizing the harmful effect of such abuse upon the plaintiff. The Appellants claim that because they presented similar evidence to the trial court below, Lovelace is distinguishable and summary judgment was improper. They fail, however, to consider all of the Lovelace holding.
Following the above-quoted language from Lovelace, we held as follows:
"We do not mean that expert testimony from a treating psychotherapist would actually validate a plaintiff's claim of past *543 sexual abuse. But, such expert testimony by a mental health professional would aid the trier of law in determining whether the plaintiff is entitled to invoke the discovery rule. Yet even if Lovelace had presented testimony from her treating psychotherapist, we agree the district court correctly predicted that this Court would not apply the discovery rule under the particular facts of this case.
In our mind, the deciding factor in this case is that the means of knowledge in the psychiatric field existed so as to reveal the symptoms of Lovelace's mental disorder. Lovelace's mental disorder was not inherently unknowable." 831 P.2d at 631 (Emphasis added).
Consequently, affidavits and testimony from expert witnesses do not automatically create a question for the jury to hear. Rather, such evidence may be used by the trier of law, to determine whether the statute of limitations was tolled by the discovery rule. In this case, the district court had the evidence before it when it concluded "both plaintiffs, with the exercise of reasonable diligence would have discovered that the alleged conduct of Fulgenzi toward Ann Weathers was improper or injurious." We are convinced the trial court did not err in so holding.
The Appellants also contend the trial court erred in considering evidence regarding the friend who advised Ann to discontinue seeing Fulgenzi after the incident. Although the friend and his advice were mentioned in depositions of therapists, the evidence was documented in detail in an investigative report presented to the Oklahoma State Board of Examiners of Psychologists in response to a complaint filed against Fulgenzi by Ann. Counsel for the parties mentioned the report and statements made therein in their briefs and in argument. The Appellants claim the evidence should not have been considered because it was neither deposition testimony, affidavit nor any other sworn statement and was inadmissible as hearsay evidence. However, no objection to the evidence appears in the record. Hence, they have waived their objection. Bauman v. International Harvester Co., 191 Okla. 392, 130 P.2d 287 (1942). Moreover, the Appellants have filed the investigative report in a motion to this Court asking for us to consider it as evidence on appeal.
The Appellants further argue the doctors and the clinic concealed information from them and such concealment tolls the statute of limitations. They base their argument on the fact that when Dr. Maxwell closed the Clinic and moved out of state he destroyed all of the records of the Clinic. There is no evidence to indicate that such was done in order to conceal the incident with Fulgenzi. Rather, the evidence suggests Dr. Maxwell's actions were merely those of a prudent therapist wishing to assure the notes and records kept on his former clients would always remain confidential. The clearest instance of concealment in this case was Ann hiding the incident with Fulgenzi from Barry for many years. Furthermore, the Appellants voluntarily dismissed Dr. Maxwell from the case early in the litigation.
Having considered the evidence and arguments presented to the trial court in the light most favorable to the Appellants, we find the trial court did not err in granting summary judgment to the defendants in this case. The Appellants knew of the injury resulting from the actions of Fulgenzi. The statute of limitations was not tolled by the discovery rule, and this action is barred by the statute of limitations as found by the trial court.
For the above and foregoing reasons, the opinion of the Court of Appeals is VACATED and the judgment of the district court is AFFIRMED.
LAVENDER, V.C.J., and HARGRAVE, OPALA, KAUGER, SUMMERS and WATT, JJ., concur.
HODGES, C.J., and ALMA WILSON, J., dissent.
NOTES
[1] We are only here concerned with the petition for certiorari of Stillwater Psychiatric Clinic because defendant, Olen Dale Maxwell, M.D., was dismissed by the Weathers early in the litigation and the petition for certiorari of Fulgenzi was dismissed by this Court because it was not timely filed.
[2] Title 76 Ohio St. 1981, § 18 provides:
"An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; ... provided, however, the minority or incompetency when the cause of action arises will extend said period of limitation."
[3] DSM-III-R is an acronym for the "Diagnostic and Statistical Manual for Mental Disorders (3d cd. rev. 1987)" published by the American Psychiatric Association. It is a compilation of definitions/criteria of mental disorders used by professional counselors to diagnose patients. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611888/ | 76 Wash. App. 364 (1994)
884 P.2d 1348
THE STATE OF WASHINGTON, Respondent,
v.
CONNARD V. WALTON, Appellant. In the Matter of the Personal Restraint of CONNARD V. WALTON, Petitioner.
Nos. 30663-4-I; 33109-4-I.
The Court of Appeals of Washington, Division One.
December 15, 1994.
*365 Alfred Louis Heydrich, for appellant.
David S. McEachran, Prosecuting Attorney, and Gregory Earl Thulin, Deputy, for respondent.
KENNEDY, J.
Connard V. Walton appeals his conviction of indecent liberties, contending for the first time on appeal that the trial court erred in admitting a police officer's concededly reliable videotaped deposition in violation of Walton's constitutional right to confront at trial the witnesses against him. Walton also claims that his trial counsel rendered ineffective assistance by failing to object to the use of the videotaped deposition at the time of trial.[1]
We conclude from the record that Walton's trial counsel made a conscious decision not to object to the introduction at trial of the videotaped deposition. RAP 2.5(a)(3), which allows a party to raise a manifest error affecting a constitutional right for the first time on appeal, does not serve as a vehicle for relief from conscious decisions of trial counsel not to litigate constitutional issues at the trial court level. Moreover, Walton fails to demonstrate that his trial counsel's decision not to object to the introduction of the videotape was constitutionally deficient representation.
Accordingly, we decline to address Walton's contention that he was deprived of his constitutional right to confront witnesses at his trial, we reject his contention of ineffective assistance of counsel and we affirm his conviction.
FACTS
Walton was convicted by jury trial of indecent liberties after he approached a fellow employee from behind, placed his arms about her person, hugged her tightly against his body, resisted her effort to pull away and pressed his erect penis against her buttocks.
*366 During the police investigation which followed the victim's complaint, Walton was twice interviewed by police. Walton told Officer Rossmiller that he had placed his arms around the victim, but he denied having held her tightly, he denied having had an erection and he denied that the physical contact was for the purpose of sexual gratification.
In a subsequent interview with Detective McNeill, Walton admitted that he had had sexual thoughts about the victim in the past. He stated that when he came upon her in the mail room at their place of employment she was bent over and that this caused him to become sexually aroused, so he grabbed her from behind as she straightened up and hugged her, pressing his erect penis against her buttocks for 15 to 20 seconds before she was able to pull away. Walton also stated that when the victim pulled away and walked off, his hopes that she might respond favorably to his sexual overture were dashed.[2]
Shortly before trial, Detective McNeill received the State's trial subpoena. McNeill promptly advised the prosecutor that, several months earlier, he had contracted to teach a polygraph course at Western Oregon State College in Monmouth, Oregon (south of Salem), commencing on the first day of Walton's trial and possibly spilling over into the second day of the trial.[3] McNeill also had planned to take several vacation days, so as to be able to visit with his brother in Oregon after he completed his teaching obligation at the college.
The prosecutor then scheduled a hearing to request the court to enter an order allowing McNeill's testimony to be perpetuated for trial by way of a videotaped deposition.
*367 At the ensuing hearing, Walton's trial counsel objected on grounds that he had been served with the motion by fax only the previous day, that he did not believe there was sufficient time to edit and prepare copies of the videotaped deposition for purposes of the trial and that an affidavit from McNeill should have been provided, rather than the prosecutor's hearsay affidavit explaining McNeill's scheduling conflict.[4] Walton did not argue at this pretrial hearing that McNeill was actually available for trial and he did not challenge the sufficiency of the State's effort to secure McNeill's presence at trial. Neither side suggested that a trial continuance would be preferable to the use of a videotaped deposition at trial.
In granting the State's motion, the trial judge found that Detective McNeill would be unavailable for trial, and concluded that the court had no authority to order McNeill to breach his contract to teach the polygraph course.[5] The judge also found a distinction between McNeill's teaching obligation and a trip solely for vacation purposes.[6]
Walton and his attorney attended McNeill's videotaped deposition. Defense counsel thoroughly cross-examined McNeill, not only as to the substance of his testimony regarding Walton's confession but also as to McNeill's teaching engagement in Oregon. With reference to the latter area of inquiry defense counsel stated that there still might be an objection, at the time of trial, to the introduction of the videotaped deposition.
Nevertheless, there was no objection at the trial when the State offered and the trial court admitted McNeill's videotaped deposition on the second day of Walton's trial.
*368 Walton testified at trial, admitting that he had put his arms around his fellow employee but denying that he had ever had sexual thoughts about her, denying that he had an erection when he hugged her and denying that he had confessed anything to the contrary to Detective McNeill. Walton also theorized that the complainant may have confused items he carried in his pockets for an erect penis.
The jury convicted Walton of indecent liberties as charged. This timely appeal followed.
DISCUSSION
I
RAP 2.5(a)(3)
Walton argues that we should consider his confrontation clause issue, in spite of his failure to object below, pursuant to RAP 2.5(a)(3).[7] The State argues that Walton waived the opportunity to litigate the issue below, in that his trial counsel clearly recognized the nature of the constitutional issue, deposed McNeill thoroughly on the subject of his availability for trial, affirmatively stated that he might object to the admission of the videotaped deposition at trial, and then failed to raise the objection at the time of trial.
[1] We agree with the State's position. In State v. Valladares, 99 Wash. 2d 663, 666, 672, 664 P.2d 508 (1983) the defendant brought a pretrial motion to exclude evidence seized during a warrantless search, but then affirmatively withdrew the motion. After he was convicted at trial the defendant appealed, assigned error to the trial court's "refusal" to suppress the evidence and argued that he could properly raise the issue for the first time on appeal because it was of "constitutional magnitude". Valladares, 99 Wn.2d at 671. Our Supreme Court declined to consider the issue: "The constitutional challenge having been waived or abandoned, we will not consider it further." Valladares, 99 Wn.2d at 672.
The Valladares court relied upon Johnson v. United States, 318 U.S. 189, 87 L. Ed. 704, 63 S. Ct. 549 (1943), in *369 which the United States Supreme Court found constitutional error but declined to reverse because the defense objection initially interposed had been affirmatively withdrawn during trial. The Johnson court noted that this was not a case of inadvertence or oversight but one of express waiver. Valladares, 99 Wn.2d at 672 (citing Johnson, 318 U.S. at 200).
In the instant matter it is clear from the record that Walton recognized the existence of the constitutional issue he now seeks to raise for the first time on appeal, for his counsel expressly stated at the videotaped deposition that Walton might object to use of the deposition at trial. The failure to raise the objection at trial when McNeill's videotaped deposition was offered could not have been a case of inadvertence or oversight. It could only have been the result of a conscious decision on the part of defense counsel.
Even now, Walton does not assign error to the trial court's pretrial finding that McNeill was not available for the trial.[8] Instead, he argues that the State failed to establish that it had exerted every reasonable effort to secure McNeill's presence at trial as required by State v. Hobson, 61 Wash. App. 330, 336, 810 P.2d 70 (prosecutor must use all available means to compel witness to appear, subject to limit of reasonableness), review denied, 117 Wash. 2d 1029 (1991).
At the same time, Walton concedes that McNeill's testimony passes the reliability prong of the 2-prong test for admission of a witness' former testimony. See Hobson, 61 Wn. App. at 334 (confrontation clause requires that former testimony must be reliable and its admission at trial must be necessary). We accept this concession.
*370 Thus, we are faced with a Defendant's effort to obtain review of a constitutional issue the existence of which he clearly recognized at the time of trial, but which he consciously decided not to raise at trial, on a record which contains an unchallenged pretrial finding by the court of unavailability and in the face of a concession on appeal that the challenged testimony passes the reliability prong of the confrontation clause, leaving only the necessity prong at issue. Such is not the purpose of RAP 2.5(a)(3). Although a confrontation clause issue is clearly of constitutional magnitude, RAP 2.5(a)(3) requires a manifest error of constitutional magnitude, not simply the "[identification of] a constitutional issue not litigated below", State v. Scott, 110 Wash. 2d 682, 687, 757 P.2d 492 (1988), and particularly not simply the identification of a constitutional issue deliberately not litigated below. Cf. Valladares, 99 Wn.2d at 672; see also State v. Lynn, 67 Wash. App. 339, 343-44, 835 P.2d 251 (1992) (recognizing that sophisticated defense counsel may deliberately avoid raising constitutional issues of little or no significance to the jury verdict but which might be a basis for a successful appeal).
In these circumstances, we conclude that RAP 2.5(a)(3) does not permit Walton to argue for the first time on appeal that the State failed to exert every reasonable means to secure McNeill's presence at trial. A conscious decision not to raise a constitutional issue at trial effectively serves as an affirmative waiver, different in form but not in substance from the express affirmative waivers in Valladares and Johnson. Accordingly, we decline to review the alleged constitutional error.
II
Ineffective Assistance of Counsel
Walton next contends that his trial counsel's failure to object to the use of Detective McNeill's videotaped deposition at trial constituted ineffective assistance of counsel. We reject this contention.
[2-4] The test for ineffective assistance of counsel has two parts: first, a defendant must show that defense counsel's *371 performance fell below an objective standard of reasonableness; if so, the defendant still must show that the conduct prejudiced the defense. See State v. Thomas, 109 Wash. 2d 222, 225-26, 743 P.2d 816 (1987); Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The purpose of the requirement for effective assistance of counsel is to ensure a fair and impartial trial. Thomas, 109 Wn.2d at 225-26.
Under the first prong, courts are highly deferential when examining counsel's performance, employing a strong presumption of reasonableness. Strickland, 466 U.S. at 688. A court will not consider tactical trial decisions or matters of trial strategy to be ineffective assistance. State v. McFarland, 73 Wash. App. 57, 71, 867 P.2d 660 (citing State v. Carter, 56 Wash. App. 217, 224, 783 P.2d 589 (1989)), review granted in part, 124 Wash. 2d 1017 (1994). The defendant satisfies the second prong only by showing that there is a reasonable probability that, but for defense counsel's error, the result would have been different. Strickland, 466 U.S at 694; Thomas, 109 Wn.2d at 226.
Although a reviewing court need not consider both prongs if the defendant fails to establish one of them, here it is clear that Walton fails both prongs of the Strickland test. As for the first prong, defense counsel's deliberate decision not to object to the use of the taped deposition testimony at trial was likely strategical.[9] At trial, Walton denied he had ever confessed to the elements of the crime to Detective McNeill and he also theorized that the victim may have confused items Walton carried in his pockets for an erect penis. This "contents in the pockets" theory was not discussed during Detective McNeill's deposition. While we have no way of knowing whether Detective McNeill ever questioned Walton about any items he may have been carrying in his pockets, we do note that McNeill's absence from the trial left the *372 State with no opportunity to call Detective McNeill for any rebuttal testimony on this or any other subject which arose in Walton's testimony at the trial.
As for the prejudice prong, Detective McNeill's testimony was concededly reliable. At oral argument for this appeal, Walton also agreed that the detective's testimony would have been the same if he had testified in person at the trial. Walton points to nothing in the testimony of any other witness which would have caused him to desire to ask Detective McNeill any questions in addition to those posed during cross examination at the videotaped deposition. There clearly was no prejudice.
Accordingly, we reject Walton's claim that his attorney rendered ineffective assistance by failing to object to the use of the videotaped deposition at the time of trial.
Affirmed.
A majority of the panel having concluded that the remainder of this opinion lacks precedential value, it is ordered that only the foregoing will be published. The balance of the opinion shall be filed for public record as provided in RCW 2.06.040.
COLEMAN and AGID, JJ., concur.
Review denied at 126 Wash. 2d 1024 (1995).
NOTES
[1] Walton raises additional contentions on appeal and by way of a personal restraint petition, which we find to be without merit and which we treat in the unpublished portion of this opinion.
[2] In a pretrial CrR 3.5 hearing, Walton's confession to Detective McNeill was found to be admissible. No appeal from this decision has been taken.
[3] The record reflects that Walton's trial was expected to take 2 days and that McNeill had been asked to be available to complete his polygraph lecture on the second day of the program, if this should become necessary due to time constraints at the college. McNeill planned to travel to and from Oregon by car. McNeill testified at his subsequent deposition that Monmouth is approximately 6 to 7 hours south of Bellingham by car, depending upon traffic.
[4] The trial court's rejection of these objections has not been appealed.
[5] Walton does not assign error to these oral rulings or to any written order which may have been entered based on these rulings.
[6] The trial court appears to have been distinguishing McNeill's situation from that of the police officer witness in State v. Sanchez, 42 Wash. App. 225, 230-31, 711 P.2d 1029 (1985) (trial court erred in ruling police officer unavailable for trial solely out of respect for officer's vacation plans), review denied, 105 Wash. 2d 1008 (1986).
[7] RAP 2.5(a)(3) provides that a party may raise a "manifest error affecting a constitutional right" for the first time on appeal.
[8] We note in passing that any error in the trial court's determination that McNeill was unavailable for trial is far from "manifest". See State v. Allen, 94 Wash. 2d 860, 866, 621 P.2d 143 (1980) (the question of unavailability to testify at trial is one of fact to be determined by the trial judge; defendant failed to assign error to trial court's finding that material witness, who had been ordered by United States Army to report for active duty and whose military career would be disrupted if he failed to report for duty, was not available for trial; record supported these findings; trial court's order allowing witness to testify by videotaped deposition affirmed on appeal, even though State had failed to request Army to change its order for convenience of the State).
[9] It is clear that Walton was not operating under the misconception that the pretrial ruling allowing Detective McNeill's testimony to be perpetuated precluded an objection at the time of trial, for his counsel specifically stated, at the deposition, that an objection might be raised. See CrR 4.6(a), (e); ER 804(a)(5), (b)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3106876/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-12-00623-CV
TEAL TRADING AND DEVELOPMENT, LP,
Appellant
v.
CHAMPEE SPRINGS RANCHES PROPERTY OWNERS ASSOCIATION,
Appellee
From the 216th Judicial District Court, Kendall County, Texas
Trial Court No. 06-500A
Honorable Michael Peden, Judge Presiding 1
BEFORE JUSTICE MARION, JUSTICE MARTINEZ, AND JUSTICE CHAPA
In accordance with this court’s opinion of this date, we REVERSE the judgment of the trial
court, and we REMAND this cause to the trial court for further proceedings consistent with this
opinion.
We ORDER that Teal Trading and Development, LP recover its costs of this appeal from
Champee Springs Ranches Property Owners Association.
SIGNED March 19, 2014.
_____________________________
Luz Elena D. Chapa, Justice
1
Sitting by assignment. See TEX. GOV’T CODE. ANN. § 74.056 (West 2013). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2611868/ | 884 P.2d 1127 (1994)
James M. CRATER, a/k/a Jimmie E. Crater, Petitioner-Appellant,
v.
Robert FURLONG, Respondent-Appellee.
No. 94SA172.
Supreme Court of Colorado, En Banc.
November 15, 1994.
Rehearing Denied December 19, 1994.
*1128 James M. Crater, pro se.
No appearance by respondent-appellee.
Justice SCOTT delivered the Opinion of the Court.
The petitioner, James M. Crater, filed a pro se petition for writ of habeas corpus in the Lincoln County District Court, seeking immediate release from the Limon Correctional Facility. The district court denied the petition without holding a hearing, and the petitioner appealed.[1] Because the petitioner has not alleged sufficient acts or omissions by state officials to constitute a waiver of Colorado's interest in his further incarceration, and because the petitioner is not otherwise entitled to immediate release, the district court denied his petition for writ of habeas corpus. We therefore affirm the judgment of the district court.
I
According to the petitioner,[2] he was convicted of second-degree murder in 1967, in Adams County District Court, and in January 1967 was sentenced to not less than thirteen, nor more than thirty, years imprisonment. The petitioner escaped from the Colorado Department of Corrections (DOC) on September 3, 1972, and fled the state. State authorities subsequently issued a fugitive arrest warrant for the petitioner, and escape charges were filed in Fremont County.
On November 14, 1972, the petitioner was arrested in Kentucky on charges of armed robbery and assault on a police officer. The petitioner was also held on the Colorado warrant. The authorities in Colorado were informed in May of 1973 that the petitioner had been convicted of four counts of armed robbery and sentenced to four ten-year sentences in Kentucky, to run concurrently. The DOC was also advised that the petitioner would be serving his Kentucky sentences at a particular penitentiary, that the warrants issued by the Governor of Colorado and the Governor of Kentucky would follow the petitioner as detainers in the Kentucky prison system, and that Colorado would be notified when the petitioner was "available" to the DOC. Thereafter, the charges relating to the petitioner's escape were dismissed in Colorado without prejudice. When the petitioner was discharged from the Kentucky prison system in July 1979, there were no Colorado detainers of record pending against him. As a consequence, on discharge petitioner was not returned to the custody of the DOC but, instead, he was released by Kentucky officials, allowing him to travel to Illinois.
Months later, in December 1979, the petitioner was arrested in Illinois and charged with armed robbery. He was subsequently convicted of that offense and sentenced to thirty years in the Illinois penitentiary. On March 25, 1986, almost fourteen years after his escape, Colorado lodged a detainer against the petitioner in Illinois. The petitioner was extradited to Colorado on December 28, 1993, and reincarcerated in the DOC. The petitioner alleges that the DOC has not credited him with the time of his actual confinement in Kentucky and Illinois toward his Colorado sentence, and that he has not been given proper credit for good-time and earned-time.
II
Petitioner first contends that Colorado either waived or forfeited all legal jurisdiction *1129 over him, or that the actions of state officials constituted a pardon or commutation of the unserved portion of his sentence. The petitioner cites Shields v. Beto, 370 F.2d 1003, 1005-06 (5th Cir.1967) (holding that the release of prisoner by Texas authorities before the expiration of his sentence and extradition of prisoner to Louisiana combined with Texas' failure to take any affirmative action for 28 years to secure prisoner's return was equivalent to pardon or commutation of sentence and constituted a waiver by Texas over the prisoner); and Lanier v. Williams, 361 F. Supp. 944, 947-48 (E.D.N.C.1973) (ruling that where a state has mistakenly released a prisoner, and the state through the acts or omissions of its officials has led that prisoner to believe, through no fault of the prisoner's, that he is free of the sentence imposed, and the state makes no attempt to reacquire custody over the prisoner for prolonged number of years, due process requires that the state be deemed to have waived further jurisdiction and custody over the prisoner) as the controlling cases.
In Piper v. Estelle, 485 F.2d 245 (5th Cir. 1973), however, in explaining and distinguishing its decision in Shields v. Beto, the Fifth Circuit stated that in order to show a violation of due process
it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state's action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or inaction.
485 F.2d at 246. Accord Fabian v. Reed, 714 F.2d 39, 41 (5th Cir.1983).
Unlike the situation in Lanier v. Williams, the petitioner's confinement in Colorado was interrupted not by the state but by his own actshis escape. Had he not escaped and become a fugitive from justice, his incarceration in Colorado would not have been interrupted. Colorado officials did not exhibit conduct that was so "affirmatively wrong" or constituted "inaction so grossly negligent" for due process to require the state to waive any interest in the petitioner's continued incarceration. Notwithstanding the dismissal of charges relating to the petitioner's escape, Colorado officials could have reasonably believed that a detainer had been placed on the petitioner so as to assure his return to Colorado upon release. For whatever reason, however, upon completion of the petitioner's sentence, Kentucky did not notify Colorado when it released the petitioner.
Even if a prisoner does not escape (like the petitioner did), but is instead released by mistake, the prisoner's conduct following the release is a relevant factor in determining whether he should be given credit for time spent in another state's custody. In Brown v. Brittain, 773 P.2d 570, 570 (Colo.1989), the prisoner was committed to the custody of the DOC. He was released by mistake rather than being transported to the DOC, and he went to Louisiana where he was subsequently arrested and charged with aggravated robbery, resisting arrest, escape, and damage to property. Id. at 571. He was convicted in Louisiana, sentenced to the Louisiana prison system, and after he was paroled, was released to Colorado authorities because a detainer had been lodged against him. Id. In reversing the district court's ruling granting the prisoner credit for the time he was confined in Louisiana, we held that the prisoner's "reincarceration would not be inconsistent with fundamental principles of liberty and justice." Id. at 575.
In this case, after the petitioner escaped from the custody of the DOC and left Colorado, he went to Kentucky where he was arrested for, and convicted of, armed robbery. Upon his release from the Kentucky prison system, the petitioner did not voluntarily return to Colorado. Instead he traveled to Illinois where he was arrested and again convicted of armed robbery. Learning of the petitioner's conviction in Illinois, Colorado then placed a detainer on the petitioner and upon the completion of his sentence in Illinois, the petitioner was returned to Colorado. Thus, the petitioner's "reincarceration would not be inconsistent with fundamental principles of liberty and justice." Id.
*1130 Cases where a prisoner is discharged from prison erroneously, and without fault on the prisoner's part, are not comparable or applicable to cases like this one where the prisoner in fact escapes. See White v. Pearlman, 42 F.2d 788, 789 (10th Cir.1930) (where prisoner is discharged from prison, without any contributing fault on his part, his sentence continues to run when he is at liberty; distinguishing those cases where the prisoner escapes from custody as outside the foregoing rule). We conclude that the petitioner has not alleged sufficient misconduct or inaction on the part of Colorado officials to constitute a waiver of jurisdiction over him for purposes of continued imprisonment on his original 1967 sentence for second-degree murder.
III
The petitioner also claims he should be given credit for time served in Kentucky and Illinois after his escape from Colorado, including credits for good time and earned time. We disagree.
In Barber v. Cooper, 719 P.2d 1094 (Colo.1986), the petitioner sought a writ of habeas corpus claiming that he was entitled to credit on his Colorado sentence for the time he spent in federal custody. The prisoner was convicted of first-degree murder in Colorado in 1971, and the trial court imposed a life sentence in the state penitentiary. Id. at 1094. He escaped in 1974 and was arrested in California and charged with bank robbery. Id. The prisoner was convicted on that charge and sentenced to ten years in the federal penitentiary, to be served consecutive to his Colorado sentence. Id. He was transported to the DOC in 1975, but the DOC refused to take custody, so he was transferred to the federal penitentiary. After serving the federal sentence, the prisoner turned himself in to Colorado officials. In computing his parole eligibility date, the DOC refused to give any credit for the time the prisoner served in federal custody. Id. at 1095. This court concluded that the prisoner had no right to such credit:
If a prisoner has violated both state and federal law, he is subject to prosecution by both sovereigns and may not complain of the order in which each sovereign proceeds against him.... [T]he federal conviction took place while petitioner was on escape status from the Colorado penitentiary. Because the petitioner has no right to serve one sentence before another, and no prejudice or unfairness results from the state's refusal to accept petitioner upon his return from California, we hold the district court acted properly in dismissing petitioner's petition for writ of habeas corpus and/or rule to show cause.
Id. The petitioner in this case violated the laws of Colorado, Kentucky, and Illinois, and was therefore subject to prosecution, conviction, and imprisonment by all three jurisdictions. The petitioner has not alleged any agreement with Colorado that he be given credit for the sentences he served in Kentucky or Illinois, nor has he provided any other appropriate basis for crediting him with time served against his term of imprisonment in Colorado. Section 17-22.5-103, 8A C.R.S. (1986), provides:
17-22.5-103. Computation of time. No inmate shall be discharged from the department until he has remained the full term for which he was sentenced, to be computed on and after the day on which he was received into the same and excluding any time the inmate may have been at large by reason of escape therefrom, unless he is pardoned or otherwise released by legal authority.
(Emphasis added.) The petitioner contends that because he was sentenced in 1967, the statute that applies to him is section 17-20-106, 8 C.R.S. (1978) (repealed by Chapter 125, sec. 1, § 17-20-106, 1984 Colo.Sess. Laws 515). The result under that statute would be the same, however, because under repealed section 17-20-106, the petitioner would not be allowed any good-time credit for the time he spent outside the Colorado prison system after his escape in 1972:
XX-XX-XXX. Forfeiture of good time. If any convict escapes or attempts to escape from the state penitentiary, he shall forfeit all deductions from the time of his sentence which he has earned under sections 17-20-104 and 17-20-105. Upon the return to custody of a convict who has escaped *1131 or upon the apprehension of a convict who has attempted to escape, he shall at once be credited with the actual time which elapsed between the date when he was received at the state penitentiary and the date when he escaped or attempted to escape. Said time so credited to the convict shall be deducted from the maximum time of his sentence, and the balance of time then remaining shall constitute the remainder of the sentence such convict is to serve. In serving the remainder of his sentence, said convict shall be entitled to earn deduction from the time thereof, or so-called good time, in accordance with the provisions of sections 17-20-104 and 17-20-105. The date of the return to the state penitentiary or apprehension of said convict shall be a new starting point for the earning of all such good time, which shall thereafter be computed in the same manner as if said convict were then commencing to serve the first year of a new sentence. Successive attempts to escape shall be dealt with in the manner provided for in this section.
(Emphasis added.) The petitioner argues that the starting date for earning good time credits is the date that he was arrested in Kentucky, November 14, 1972. The term "apprehension" in the above statute, however, when read in the context of the entire statute, means "apprehension" after an attempted escape. If the prisoner actually escapes, as did this petitioner, who fled the state and was arrested in Kentucky for armed robbery and assault, then "[t]he date of the return to the state penitentiary ... shall be a new starting point for the earning of all such good time...." § 17-20-106. Thus, even under the repealed statute, the petitioner is not entitled to the credit he claims. Moreover, were we to accept petitioner's argument that he be given credit for time served after his escape, he would obtain better treatment than prisoners who, through no fault of their own, are erroneously discharged. Such a result could serve no purpose other than to encourage escapes, a result contrary to our public policy.
IV
We conclude that the petitioner's "reincarceration would not be inconsistent with fundamental principles of liberty and justice." Brown v. Brittain, 773 P.2d 570, 575 (Colo. 1989). Because it appears on the face of the petition and supporting documents that the petitioner is not entitled to habeas corpus relief, the district court properly denied the petition without a hearing. Brant v. Fielder, 883 P.2d 17, 21 (Colo.1994). The judgment of the district court dismissing James M. Crater's petition for writ of habeas corpus is therefore affirmed.
NOTES
[1] The petitioner's appeal was initially filed in the court of appeals. The court of appeals referred the matter to us for a determination of jurisdiction pursuant to § 13-4-110(1)(a), 6A C.R.S. (1987). We ordered that the case be transferred to our docket in exercise of our jurisdiction over appeals from the district court in habeas corpus cases, § 13-4-102(1)(e), 6A C.R.S. (1987).
[2] We derive the facts used in this opinion from the petitioner's petition for habeas corpus and accompanying documents, and from the briefs he has filed in this court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876797/ | 247 S.W.3d 609 (2008)
STATE of Missouri, Plaintiff/Respondent,
v.
William RIGEL, Defendant/Appellant.
No. ED 89916.
Missouri Court of Appeals, Eastern District, Division One.
March 18, 2008.
Shaun J. Mackelprang, Assistant Attorney General, Jayne T. Woods, Jefferson City, MO, for respondent.
Ellen H. Flottman, Columbia, MO, for appellant.
Before KATHIANNE KNAUP CRANE, P.J., ROBERT G. DOWD, JR., J., and KENNETH M. ROMINES, J.
ORDER
PER CURIAM.
Defendant, William Rigel, appeals from the judgment entered on a jury verdict finding him guilty of five counts of possession of chemicals with intent to produce methamphetamine; in violation of Section 195.420 RSMo (2000)[1], one count of possession of pseudoephedrine with intent to produce methamphetamine, in violation of Section 195.246 RSMo, and two counts of possession of drug paraphernalia, in violation of Section 195.233 RSMo, The trial court found defendant to be a prior and persistent offender and a prior and persistent drug offender and sentenced him to fifteen years imprisonment on each of the five possession of chemicals counts, to be served concurrently, seven years imprisonment on the possession of pseudoephedrine count, to be served consecutively, and one year in the county jail on each of the two possession of drug paraphernalia counts, to be served concurrently with each other and with the seven-year term.
No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
We affirm the judgment pursuant to Rule 30.25(b).
NOTES
[1] All statutory references are to RSMo (2000) unless otherwise noted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2586760/ | 240 P.3d 1049 (2010)
2010-NMCERT-005
STATE
v.
TESCH.
No. 32,319.
Supreme Court of New Mexico.
May 5, 2010.
Writ Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611838/ | 884 P.2d 1109 (1994)
The PEOPLE of the State of Colorado, Complainant,
v.
Israel GALINDO, Attorney-Respondent.
No. 94SA247.
Supreme Court of Colorado, En Banc.
October 17, 1994.
Linda Donnelly, Disciplinary Counsel, James C. Coyle, Asst. Disciplinary Counsel, Denver, for complainant.
Michael L. Bender, Denver, for attorney-respondent.
PER CURIAM.
A hearing panel of the Supreme Court Grievance Committee approved the findings of a hearing board and recommended that the respondent[1] be suspended from the practice of law for three years and be assessed the costs of the proceeding. We accept the board's and panel's findings but modify the period of suspension to one year and one day.
I
Based on the testimony of the complainant's witnesses and the respondent's witnesses, including the respondent, and the exhibits introduced at the hearing, the hearing board found that the following facts were established by clear and convincing evidence.
A
The Thompson Matter
In March 1989, the respondent's law firm was hired by Fran Thompson to represent her three-year-old daughter in connection with injuries the daughter sustained in an automobile accident in June 1988. An associate of the respondent's firm represented the daughter until leaving the firm in July 1989. The respondent assumed responsibility for the Thompson case, and in early 1990, he spoke with the senior claims representative *1110 for Maryland Casualty Company. The claims representative wrote first to confirm the telephone conversation, and wrote again in February 1990, to describe the difficulties she had had in contacting the respondent, and to request the previously promised medical reports and authorizations. On March 29, 1990, the claims representative wrote to the respondent again and asked for supporting documentation of the child's injuries. The claims representative enclosed a check in the amount of $12,500 as a proposed settlement for all damages the girl had sustained in the accident.
The respondent sent the claims representative a $20,000 settlement counter-offer, and in June 1990 he submitted the requested medical records. Sometime before October 11, 1990, Thompson authorized the respondent to settle her daughter's personal injury case for the $12,500, and the respondent told her he would prepare the documents necessary to obtain probate court approval of the minor's settlement. Thompson signed the $12,500 settlement check on October 15, 1990, and the respondent deposited the proceeds into his trust account.
Between January and March 1991, another Maryland Casualty representative unsuccessfully attempted on several occasions to contact the respondent about court approval of the settlement. Although he had not filed the settlement documents with the court yet, the respondent told the representative in April 1991 that he was in the process of obtaining a court date to secure approval.
Due to her unsuccessful attempts to communicate with the respondent, Thompson became frustrated and hired another lawyer in September 1991. When the new lawyer was unable to contact the respondent, he filed a civil action against the respondent on behalf of the child. Under a settlement reached between the respondent and Thompson and her new lawyer, the respondent filed the probate documents and scheduled a hearing. The court appointed Thompson as conservator for the child in December 1991, and granted her leave to settle the child's personal injury claim. On December 9, 1991, the respondent paid Thompson $10,000 for the personal injury settlement, and paid himself $2,500, although the original contingent fee agreement would have allowed the respondent to retain one-third of the recovery. The respondent paid Thompson an additional $1,300 consisting of $800 interest for the time period he exercised control over the funds, and $500 for Thompson's new lawyer's fees.
During the thirteen-month period that the settlement proceeds were in the respondent's trust account, the trust account balance occasionally fell below $12,500, but not less than $10,000. The trust account balance dropped to below $12,500 because the respondent advanced settlement funds to other clients before the other clients' settlement checks were properly negotiated.
The respondent stipulated that his conduct in the Thompson matter violated DR 6-101(A)(3) (a lawyer shall not neglect a legal matter entrusted to the lawyer). The hearing board concluded that the respondent also violated DR 7-101(A)(3) (a lawyer shall not intentionally prejudice or damage the lawyer's client during the course of the professional relationship); DR 9-102(B) (a lawyer shall not mishandle the funds or property of a client); DR 9-102(B)(3) (failure to maintain complete records of client property in the possession of the lawyer and to render appropriate accounts to the client regarding the property); and DR 9-102(B)(4) (a lawyer shall promptly pay or deliver to the client as requested by the client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive). The board found, however, that the assistant disciplinary counsel had not proved that the respondent's conduct in the Thompson matter was dishonest or deceitful, and the board recommended that the allegation that he had violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) be dismissed.
B
The Mesick Matter
The respondent was retained in 1989 to represent Richard E. Mesick in his claim for a share of his father's estate, and later to assist Mesick in the management of funds *1111 received from the estate. Mesick was an elderly man, and according to an expert psychiatric opinion, was impaired by reason of mental illness, mental deficiency, physical illness or disability, meeting the definition of an "incapacitated person"[2] in 1992; and Mesick remained unable to testify as to the facts of the present case in April 1994. The respondent had previously befriended Mesick when they were neighbors, and had provided him free legal services.
In July 1989, the administrator of the father's estate sent the respondent a check in the amount of $65,416.32, consisting of estate income payable to March 31, 1989. The respondent opened a bank account under the name of the "Richard E. Mesick Trust Account, Israel Galindo, Trustee" on July 10, 1989. He deposited all but $5,000 of the estate income into this account. The respondent deposited the remaining $5,000 into Mesick's personal account.
In October 1989, the respondent cashed a trust account check in the amount of $20,000 and received a cashier's check in that amount in his name. A portion was to be used to pay Mesick's taxes, and the rest was to be lent to two of the respondent's clients. The respondent testified that Mesick authorized him to use the $20,000 this way.
The respondent was one of the directors of a corporation which was to primarily broker automobile loans, and he agreed to invest in the corporation. The respondent intended to use his personal savings as an investment in the beginning of 1990. When a representative of the corporation approached the respondent in October 1989 for the funds to be invested, however, the respondent gave him the $20,000 cashier's check. Mesick did not authorize the respondent to use the funds from his trust account for the respondent's personal benefit.
Using his personal funds, the respondent loaned $9,750 to one client, and $4,750 to another client. Of these loans, a total of $7,600 was made payable to Mesick, although only $1,000 had actually been provided by Mesick by way of a trust account check. The loans were made for the clients' personal living expenses and medical care, in anticipation of settling their respective cases. The ability of the clients to repay the loans was contingent upon successful resolutions of their personal injury and workers' compensation cases. The loans provided with Mesick's money were zero interest loans. The respondent routinely reduced his fees to clients, but he told Mesick that the two clients would be required to pay the fees originally agreed on. The respondent would then reduce the fee he retained, and he would pay the difference to Mesick as "interest."
The respondent used his own money on February 5, 1992, to pay $12,177.31 that Mesick owed the Internal Revenue Service. On February 14, 1992, the respondent paid $1,956 from his personal funds to the Colorado Department of Revenue for back taxes and penalties owed by Mesick. In March and July 1992, the respondent made a total of $10,250 in repayments to Mesick for the two loans to the other clients. These repayments allowed approximately $2,650 in "interest" for the loans, and occurred after the clients settled their respective cases.
The respondent stipulated that his loans to clients in the Mesick matter violated DR 5-103(B) (while representing a client in connection with contemplated or pending litigation, a lawyer shall not, subject to certain exceptions not applicable here, advance or guarantee financial assistance to the client). The respondent also agreed that he violated DR 9-102(A) (all funds of clients paid to the lawyer shall be deposited in one or more identifiable interest-bearing depository accounts maintained in the state in which the law office is located), and DR 9-102(B)(2) (a lawyer shall identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable). The respondent further stipulated that he neglected the Mesick matter, contrary to DR 6-101(A)(3).
The hearing board however rejected the assistant disciplinary counsel's most serious charge, that the respondent knowingly and intentionally converted Mesick's funds. *1112 Based on the evidence presented at the hearing, the board found that the respondent's account of his handling of the Mesick trust funds was credible and persuasive, and the board concluded that the respondent's mishandling of the funds was the result of neglect rather than dishonesty.
The board found the following factors especially compelling: (1) the respondent's demonstrated social commitment over the previous twenty years made it incredible to believe that the respondent would suddenly prey upon a vulnerable client; (2) the respondent's reputation for integrity and honesty was inconsistent with the willful conversion of client funds; (3) the respondent's testimony at the hearing was forthright and he voluntarily stipulated to several charges against him that would have been difficult if not impossible to prove given that Mesick could not testify at the hearing; (4) the respondent was experiencing considerable personal stress at the time he handed the check over to the representative of the corporation, making it believable that he acted hastily and without consideration of how his actions would be viewed later; and (5) the respondent had represented Mesick over a number of years on a pro bono basis, making it unlikely that he would abruptly begin to treat Mesick as a dupe. We conclude that the board's finding is supported by substantial evidence in the record. People v. Wechsler, 854 P.2d 217, 220-21 (Colo.1993) (supreme court will not overturn hearing board's conclusion that intentional conversion was not established by clear and convincing evidence unless there is no substantial evidence in the record to support conclusion).
II
The hearing board recommended that the respondent be suspended for three years and be assessed the costs of the proceeding. Neither the assistant disciplinary counsel nor the respondent has excepted to the board's findings or recommendation. Under the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp. 1992) (ABA Standards), in the absence of aggravating or mitigating circumstances, "[s]uspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client." ABA Standards 4.12. See Wechsler, 854 P.2d at 222-23 (suspension appropriate where conversion is not intentional or willful); People v. McGrath, 780 P.2d 492, 493 (Colo.1989) (when a lawyer knows or should know that he is dealing improperly with client property, suspension, at the least, is appropriate). The length of suspension will depend on the presence of aggravating and mitigating factors. Wechsler, 854 P.2d at 222.
The hearing board found the presence of the following factors in mitigation: (1) the absence of a prior disciplinary record, ABA Standards 9.32(a); (2) the absence of a dishonest or selfish motive, id. at 9.32(b); (3) the existence of personal or emotional problems at the time of the misconduct, id. at 9.32(c); (4) a cooperative attitude toward the proceedings, id. at 9.32(e); (5) the respondent's minimal experience in the private practice of law, id. at 9.32(f); (6) his good character or reputation, id. at 9.32(g); and (7) the respondent's demonstration of remorse, id. at 9.32(l). The board also determined that the respondent's voluntary closure of his law office and break from the practice of law constituted interim rehabilitation, and the imposition of other penalties or sanctions, id. at 9.32(k).
In aggravation, the board found the existence of multiple offenses, id. at 9.22(d), and the vulnerability of the victim, id. at 9.22(h).
After examining the report and recommendation of the board and panel, and considering the seriousness of the respondent's misconduct with the presence of the factors in aggravation and mitigation, we determine that a period of suspension is warranted. We also conclude that suspension for one year and one day is appropriate and is sufficient to protect the public. See People v. Robbins, 869 P.2d 517, 519 (Colo.1994) (purpose of lawyer discipline is to protect the public, not to punish the lawyer). Further, a suspension of this length is more consistent with our prior cases. See Wechsler, 854 P.2d at 223 (misrepresenting location of client's *1113 fund and failing to account for funds collected over a two year period warrants suspension for one year and one day); People v. Kearns, 843 P.2d 1, 5 (Colo.1992) (misrepresentations to client, and dishonest assignment of promissory note warrant suspension for one year and one day where attorney had no previous disciplinary record); McGrath, 780 P.2d at 493-94 (lawyer's commingling and technical conversion of client's funds warrants one year and one day suspension). We therefore modify the panel's recommendation of discipline to suspension for one year and one day.
III
Accordingly, it is hereby ordered that Israel Galindo be suspended from the practice of law for one year and one day, effective thirty days after the issuance of this opinion. C.R.C.P. 241.21(a). It is further ordered that Galindo pay the costs of this proceeding in the amount of $1,979.40 within 90 days after the announcement of this opinion to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 920-S, Denver, Colorado 80202. Galindo shall not be reinstated until after he has complied with C.R.C.P. 241.22(b)-(d).
NOTES
[1] The respondent was admitted to the bar of this court on April 30, 1980, is registered as an attorney upon this court's official records, and is subject to the jurisdiction of this court and its grievance committee in these proceedings. C.R.C.P. 241.1(b).
[2] See § 15-14-101(1), 6B C.R.S. (1994 Supp.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611801/ | 39 Cal.App.2d 168 (1940)
THE PEOPLE, Respondent,
v.
RUDOLPH ENRIQUEZ, Appellant.
Crim. No. 3320.
California Court of Appeals. Second Appellate District, Division Two.
May 20, 1940.
Stanley Visel for Appellant.
Earl Warren, Attorney-General, and L. G. Campbell, Deputy Attorney-General, for Respondent.
Wood, J.
An information was filed against appellant Rudolph Enriquez and Julius Roberts and William Marsh, charging that on August 17, 1939, they committed the crime of robbery by forcibly taking the sum of $16 and a quantity of cigarets and liquor from the possession of J. R. Picklum. *170 In a second count in the information it is charged that the same defendants are guilty of burglary in that on the same date they entered the establishment of J. R. Picklum at 4801 South Main Street in the city of Los Angeles with intent to commit theft. The prosecution relied upon the same set of facts and circumstances to sustain both charges. A jury found appellant guilty of the crime of robbery and not guilty of the crime of burglary. He now appeals from the judgment of conviction and from the order denying his motion for a new trial, basing his appeal upon the contention that the evidence is insufficient to justify his conviction and upon errors of the trial court in instructing the jury.
The witness Picklum testified that "about between 12:15 and 12:30 o'clock on the morning of August 17", he was at his cafe at 4801 South Main Street when a man whom he identified as defendant Marsh entered and, drawing a gun from his pocket, compelled the witness to "get in the back room"; that he heard somebody else coming in and looked and saw two men who were strangers to him. These two men took part in the robbery. The witness identified defendant Roberts as one of the two men but failed to identify appellant. The record discloses the following testimony by the witness on this point: "Yes, I saw them to a certain extent. I took a good look at them to see whether they were people I knew or not. Q. Do you see either of the other two persons that were coming into your place of business? Do you see them in the courtroom? A. The second man from the end I recognize. Q. That is referring to the man to the right of Mr. Marsh? A. Yes. Q. And to the right of Mr. Enriquez? A. Yes. Mr. Leavy: May the record show he is referring to the defendant Roberts? The Court: It may so show. Mr. Leavy: May I have the defendant Enriquez stand up? The Court: You may stand up. Q. Mr. Leavy: Directing your attention to Mr. Enriquez, standing at this time, are you able to describe as to build, the other man who was coming in with the man you have already identified as Mr. Roberts? Are you able to describe the build with reference to the defendant Enriquez and the man whom you saw coming in with Roberts on the occasion you have told us about? A. He was the general build of Enriquez." Referring to the identification of defendant Roberts, the witness stated that he based the identity "on the dress and manner of walk and the stooped shoulders and he had his *171 head rather down ... I noticed that his nose was quite prominent ... he gave an impression of having a little wider nose than ordinary". Concerning appellant the witness further testified: "Q. You don't intend to say, do you, by your testimony that Enriquez here, the man sitting at the end of the table, is one of those two men that came in? A. I couldn't identify him myself."
At 2:25 A. M. on August 17th police officers went to a lodging house at 836 Crocker Street, where appellant occupied room 315. In this room the officers found bottles of liquor and cartons of cigarettes which had been stolen earlier from Picklum's cafe. Part of the goods was in a dresser drawer and part in a suitcase. Appellant returned to his room at about 8 o'clock A. M., and upon being questioned by the officers, stated that he did not know how the goods got into his room, that somebody else must have put them there.
Appellant was sworn as a witness and testified that he had occupied room 315 for about two weeks before the robbery; that the suitcase was the property of one Frank Herman, who had loaned it to appellant; that he had permitted Herman, who had a girl friend, to use his room on several occasions and that on three occasions when he had returned to his room he had found Herman there; that a man named Frank Salas who formerly occupied room 314, across the hall, had had a key to room 315; that on the evening of August 16, 1939, upon his return to his room he had found a note reading "see me tonight, important, Frank H". Appellant "figured" the note was from Herman and went to cafes in the vicinity of Fifth and Main Streets in search of him. He did not find Herman during the evening, and at about 12 o'clock went to one of the all-night picture shows on Main Street near Fifth Street where he remained until about 5 o'clock A. M. From the picture show he went to a Mexican broadcast at a theater at Eighth and Main Streets, where he remained until he returned to his room. Appellant stated that he was not acquainted with defendant Roberts but that he had known defendant Marsh and had been at his place on two occasions.
Audrey Thompson appeared as an alibi witness for appellant. She testified that she attended the picture show, concerning which appellant had testified, on the night in question; that she arrived there a little before midnight and *172 remained until the end of the show at about 5 o'clock A. M. She saw appellant, whom she had previously known, at the show and noticed that appellant was accompanied by one or two men but defendants Marsh and Roberts were not with him. At that time appellant asked the witness if she "would like to stick with him", but she declined as she was with someone else. The witness testified that appellant took his seat a short distance from her. The witness further testified: "At different times I glanced over there and noticed they were still there, but my attention was directed mostly to the screen. I couldn't say he was there the full time. Q. After you were seated in the theater and you saw Enriquez seated in the theater, starting around quarter of twelve, did you notice him at any time between that time and say a quarter past twelve? A. I think so, yes. Q. Was he still in the theater during some portion of that period of time? A. Yes. Q. Do you remember having glanced over that way and having seen him there? A. Yes. ... I saw him occasionally in the show up until I should say about five o'clock." The witness also testified that the wife of defendant Marsh had told her that a day or two after the robbery Marsh and appellant were both in jail and that appellant had told her (Mrs. Marsh) that the witness could recall seeing him in the theater on the night in question.
[1] Appellant now complains of the refusal of the court to give to the jury the following instruction: "The possession of stolen property is not of itself sufficient evidence of the guilt of the party in whose possession it is found and if you find no evidence of the guilt of the defendant other than the possession of the stolen property, it is your duty to render a verdict of not guilty." This instruction correctly sets forth a principle of law which has been approved in many decisions and the court committed prejudicial error in refusing to give it to the jury. (4 Cal.Jur. 741 and cases there cited.) It was the duty of the court to instruct the jury as to the principles of law pertaining to the facts and circumstances presented in the evidence. (People v. Chesney, 72 Cal.App. 570 [237 P. 793].) Although the court may in a proper case decide whether there is any competent evidence in addition to proof of possession of stolen property, the question ordinarily is for the determination of the jury whose province it is to weigh the evidence and draw reasonable inferences therefrom. *173
[2] Respondent argues that the identification of appellant by the witness Picklum was sufficient to supply the additional evidence required by law. The evidence on this point, however, is at the most very slight; indeed it may be well argued that the identification evidence is more favorable to appellant than respondent. Mr. Picklum not only failed to identify appellant notwithstanding he took a "good look" at him at the time of the robbery but he did identify the other two participants in the robbery, particularly pointing out the features of defendant Roberts which enabled the witness to recognize him. The very fact that the witness could identify only two of the three robbers in this manner forms ground for the contention that appellant was not one of the three. The most that can be gleaned from his testimony by the prosecution is that the witness stated that appellant, who was singled out and ordered to stand in the court room, was of "the general build" of the robber. Unquestionably there are many thousands of men in the city of Los Angeles of the same "general build".
[3] Respondent points to the alibi testimony of the witness Audrey Thompson and argues that here also can be found evidence in addition to that concerning the possession of the stolen property. We find nothing in the record bearing out this contention. The fact that Mrs. Marsh had been requested by appellant to seek the witness for the purpose of verifying his statement that he was in the theater presents but a natural situation. Nor do we find anything incriminatory in the circumstance that appellant had been acquainted with defendant Marsh. The fact that appellant could not inform the officers concerning the person who had left the stolen property in his room cannot be relied upon by the prosecution to supply testimony necessary to sustain the conviction. As pointed out in People v. Hurley, 60 Cal. 74, 78 [44 Am. Rep. 55]: "if he did not know that they were there, he could not explain how they came to be there." The prosecution did not prove that any of the statements made by appellant concerning the presence of the stolen property in his room were in fact false. Conceding, without deciding, that the record shows sufficient evidence to sustain a verdict of guilty, the appellant undoubtedly had the right to have the issues presented to the jury under proper instructions informing them of the principles of law applicable. [4] In this regard it should be borne in mind that evidence *174 that appellant received the goods obtained in the robbery with knowledge of how they had been obtained would not, standing alone, be sufficient to justify a conviction of the crime of robbery. (People v. Shephardson, 48 Cal. 189.) Appellant was not here charged with the crime of receiving stolen property.
[5] The prejudicial effect of the error of the trial court in refusing to give the instruction above quoted was emphasized when the court gave to the jury the following instruction: "Where goods have been feloniously taken by means of a burglary and they are immediately or soon thereafter found in the possession of a person who gives a false account or refuses to give any account of the manner in which he came in their possession, proof of such possession and guilty conduct is presumptive evidence, not only that he stole the goods, but that he made use of means by which access to them was obtained." As above pointed out, it was not shown that appellant gave a false account of the presence of the stolen goods, and he could not be expected to explain what he did not know. The court premised its instruction upon the supposition that defendant had given a false account or had refused to give any account of the manner in which he came into possession of the property and added that "proof of such possession and guilty conduct is presumptive evidence" of guilt. The court should not have told the jury that such facts were presumptive evidence of the guilt of appellant.
Respondent refers to People v. Lang, 142 Cal. 482 [76 P. 232], wherein certain language appears which apparently would justify the instruction but in that case the court did not approve of an instruction to the jury that proof of possession of stolen property under the circumstances indicated is presumptive evidence of guilt. The language in the opinion in the Lang case which is relied upon by respondent was not necessary to the decision. The author of the opinion cites People v. Smith, 86 Cal. 238 [24 P. 988], as authority, but the ruling in the Smith case was merely that the evidence there under review was "sufficient to warrant the jury in their verdict". [6] No presumption of guilt arises from possession of stolen property or the failure of defendant to account for his possession of it, but the question of defendant's guilt must be left to the determination of the jury from all the facts and circumstances shown in evidence. The fact that appellant was acquitted of the *175 crime of burglary does not cure the vice of the instruction, which naturally tended to confuse the jury in considering the two charges of robbery and burglary growing out of the same set of facts.
The judgment and the order denying the motion for a new trial are reversed and a new trial is ordered.
Moore, P. J., and McComb, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611802/ | 38 Cal.App.2d 693 (1940)
LILLIAN WILMANS, Appellant,
v.
MAX WEISSMAN et al. Respondents.
Civ. No. 11186 First Appellate District, Division Two.
California Court of Appeals.
May 2, 1940.
Jos. I. McMullen and Bruce McMullen for Appellant.
Joseph A. Brown and A. E. Cross for Respondents.
Sturtevant, J.
The plaintiff brought this action to recover on a promissory note. To her third amended complaint the defendants interposed a demurrer. The demurrer was sustained without leave to amend and from the judgment entered thereon the plaintiff has appealed.
The payment of the note sued upon was formerly secured by a second deed of trust. But the first deed of trust was foreclosed and at the sale the property was sold for a sum less than the amount of the first obligation. It will not be necessary to again refer to the second deed of trust.
On April 20, 1930, the defendants executed their promissory note in favor of the plaintiff. The principal named in the note was $5,000. It was payable one year after date. This action was commenced on October 11, 1937. In their *695 demurrer the defendants pleaded the statute of limitations. (Code Civ. Proc., subd. 1, sec. 337.) Under the foregoing facts the demurrer was properly sustained as the action was not commenced within four years after the promissory note fell due and payable unless the delay was accounted for by other allegations contained in plaintiff's pleading. The plaintiff claims that notwithstanding the foregoing facts the demurrer should not have been sustained for several different reasons. We will take up those reasons one at a time and state the facts on which they were based.
[1] In the amended complaint the plaintiff alleged the enactment of certain moratorium acts, chapter 7, Statutes 1935; chapter 348, Statutes 1935; chapter 5, Statutes 1937, and chapter 167, Statutes 1937. The moratorium acts enacted by our state legislature are numerous. One class of those acts provided a procedure by which a debtor might go into court and obtain an order providing that certain proceedings might not be had and taken against the debtor until a certain date not distant later than the date designated in the statute. The other class of said statutes, in definite terms, provided an extension of time. Chapter 7, Statutes of 1935, fell in the first class above mentioned. In her complaint the plaintiff did not claim that an order of court had been made. It is apparent therefore that said statute is of no help to her. Chapter 348 of the Statutes of 1935 took effect on June 21, 1935. It provided in section 19 that obligations which would expire during the period commencing with the effective date of that statute and ending on February 1, 1937, the time was extended so as not to expire until the 1st day of July, 1937. However said statute took effect June 21, 1935, and according to the facts of the present case the statute of limitations, Code of Civil Procedure, section 337, had expired on May 1, 1935. Under those circumstances said statute was inapplicable. (16 Cal.Jur. 399, and cases there cited.) Both chapter 5 and chapter 167, Statutes of 1937, provided an extension of the time set forth in section 19 of chapter 348 of the Statutes of 1935. We have just shown that the latter statute was not applicable and it is therefore obvious that chapters 5 and 167 of the Statutes of 1937, purporting to amend chapter 348 of the Statutes of 1935, are not helpful to the plaintiff. *696
[2] In paragraphs 4 and certain other paragraphs of her pleading, the plaintiff alleged that when the first default of the defendants occurred the defendant Max Weissman requested plaintiff to refrain from commencing proceedings against them, and in consideration of her forbearance promised to pay the accrued interest and principal when able. It is clear that forbearance is sufficient to constitute a valid consideration although it must be under an agreement to forbear, mere forbearance alone being insufficient. (Estate of Thomson, 165 Cal. 290 [131 P. 1045].) However, a careful reading of plaintiff's complaint does not disclose that the plaintiff agreed to forebear, nor, if so, the terms of such agreement. When the defendants executed the note in suit they promised to pay it. That exhausted that promise as a consideration. To support a contract to forbear a new consideration was necessary. (Smith v. Parlier Winery, Inc., 7 Cal.App.2d 357 [46 PaCal.2d 170]; Jordan v. Scott, 38 Cal.App. 739, 743 [177 P. 504]; Exchange Nat. Bank, Use of Nat. City Bank v. Alford, 187 Ga. 60 [200 S.E. 128, 120 A.L.R. 761].) But the plaintiff does not allege a new consideration to support her contract to forbear; she alleges in effect, the defendants repeated their promise to pay. Those facts did not create a contract to forbear.
[3] In the paragraph last mentioned, and in other paragraphs, the plaintiff alleged the defendants promised to pay the accrued interest and principal when able. She also alleged that they did not pay. She does not allege that at any time they were able to pay. But she charged they acted fraudulently. It is statutory that the making of a promise without any intention of performing it, committed by a party to a contract with intent to deceive another party thereto, or to induce him to enter into the contract, is actual fraud. (Civ. Code, sec. 1572, subd. 4.) However, the plaintiff's complaint does not allege the promise of defendants was made without any intention of performing it, or that it was made with intent to deceive the plaintiff or to induce her to enter into a contract of forbearance. Therefore, the purported allegations of fraud were insufficient. (Ayers v. Southern Pac. R. Co., 173 Cal. 74, 79 [159 P. 144, L.R.A. 1917F, 949].)
[4] In her next point the plaintiff alleges: "That defendants having solicited an extension of the statute of limitations from plaintiff, and plaintiff, relying on the good faith of *697 defendants and in consideration of their promises, having refrained from bringing an action, defendants are estopped from taking advantage of such forbearance solicited by them to plead the statuTe of limitations." This point is but a different method of stating the contentions of the plaintiff which we have just discussed. We find no merit in the contention. The facts recited would not have precluded this plaintiff from commencing her proceedings at any time after the defendants defaulted in their payments. As she would not have been estopped, the defendants were not. An equitable estoppel must be mutual and reciprocal, that is, it must bind both parties or neither. (10 Cal.Jur. 627; 10 R. C. L. 839.) The estoppel contended for could have no more force or effect in binding the parties than would a contract including the very subject matter urged by way of estoppel. (Thompson v. Doaksum, 68 Cal. 593, 599 [10 P. 199].)
[5] Apparently realizing that she was bound to excuse her delay in commencing this proceeding, she alleged that she did not discover the alleged fraud until August 9, 1937. She does not allege any facts whatever showing why she did not discover the fraud at an earlier date. Such allegations were necessary to constitute a defense. (Lady Washington C. Co. v. Wood, 133 Cal. 482 [45 P. 809].) For the foregoing reasons the trial court did not err in sustaining the defendants' demurrer.
The judgment appealed from is affirmed.
Nourse, P. J., and Spence, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877376/ | 829 F.Supp. 1134 (1993)
Marvin Eugene DYER, Plaintiff,
v.
Gene SHELDON, individually and in his capacity as a police officer for the village of Hemmingford, Nebraska; James H. Olson, individually and in his capacity as a police officer for the village of Hemmingford, Nebraska, and The Village of Hemmingford, Defendants.
No. 7:CV92-5003.
United States District Court, D. Nebraska.
July 22, 1993.
*1135 Joy A. Shiffermiller, Ruff, Nisley Law Firm, North Platte, NE, for plaintiff.
James R. Hancock, Hancock, Denton Law Firm, Scottsbluff, NE, for defendants.
John R. Bellavia, Jr., Nebraska Dept. of Social Services, Lincoln, NE, for plaintiff Interested Party.
MEMORANDUM OF DECISION
PIESTER, United States Magistrate Judge.
Plaintiff filed this action alleging defendants violated his Fourth Amendment rights in violation of 42 U.S.C. § 1983. Trial was held in North Platte, Nebraska commencing on June 14, 1993 and continuing for 4 days.[1] At the close of plaintiff's case defendants made a motion which I construed as a motion for judgment on partial findings of fact which I granted in part.[2] For reasons stated more fully below, I shall enter judgment for the defendants.
FINDINGS OF FACT
Plaintiff lives in the village of Hemmingford with his wife, Linda, and Linda's three children.[3] On the evening of August 6, 1991 plaintiff, Linda, the three children and two of plaintiff's children were at plaintiff's trailer home packing for a vacation the following day. Plaintiff drank between four and five beers while he was packing. At some time after midnight, plaintiff and Linda had an argument. The argument carried over into the bathroom where plaintiff pushed Linda into a shelf, causing her to fall to the floor in pain.[4] One of the children called an ambulance.
*1136 Within 10 minutes, a number of emergency medical technicians (EMT's) arrived at plaintiff's home. Pursuant to city policy,[5] defendant Sheldon, a police officer, accompanied the EMT's to the scene and into the home. Sheldon had been a police officer for nine months. He had not yet attended the Nebraska Law Enforcement Training Academy at that time.[6] Sheldon, on duty and in uniform, was told that plaintiff had struck Linda causing the injury which precipitated the ambulance call. As the EMT's prepared to take her to a health clinic to be examined, Linda expressed concern about the safety of the children and requested that someone stay at the home until she returned. Sheldon and Jim Yardley, the village's fire chief, remained in the home with plaintiff and the children.
Sheldon remained near plaintiff until Linda returned. Plaintiff was not told he was under arrest at that time. He asked Sheldon to leave a number of times but Sheldon refused. In an attempt to alleviate the pressure of the situation, Sheldon also asked plaintiff to leave. Plaintiff refused.
The EMT's returned Linda approximately 30-45 minutes after they had departed. Plaintiff spoke with Linda briefly in the kitchen and then walked out of the trailer home. Sheldon also talked to Linda, who stated that plaintiff had struck her. Deciding to arrest plaintiff, Sheldon radioed for a backup officer.[7] Sheldon then followed plaintiff outside and reinitiated their conversation. A loud argument ensued between plaintiff and Sheldon. During the argument, plaintiff was standing on the passenger side of his car facing the trailer home. Sheldon was facing plaintiff, standing between the trailer and plaintiff. After returning Linda to the trailer, a number of EMT's gathered in the yard watching the argument. They were standing to plaintiff's right, as he was facing the trailer, at a distance of about 30 feet from plaintiff and Sheldon.
The backup officer, defendant Olson, arrived at plaintiff's home. Olson parked his car behind the EMT's and passed them as he approached plaintiff and Sheldon. Seeing Olson approach, Sheldon informed plaintiff he was under arrest. Plaintiff asked Olson if he was under arrest and Olson replied affirmatively. Olson approached plaintiff and Sheldon so that he was also facing plaintiff. As plaintiff was facing the two officers, Sheldon was facing him on plaintiff's left and Olson was facing him on plaintiff's right.
The accounts of what took place next are in dispute. Several witnesses gave differing accounts of how defendants effectuated the physical arrest of plaintiff. I shall discuss each witness' testimony regarding these particular events.
A. Plaintiff
On direct examination, plaintiff stated that he wished to go inside and talk to his wife after he was informed he was under arrest. He began to walk to the house, and as the officers attempted to take him into custody, he pulled his arms away from them a number of times. Plaintiff stated Sheldon grabbed plaintiff's left arm and placed one cuff on that wrist. Plaintiff was unable to recall the exact events, only that "Everything happened so fast, and I ended on up on top of my head." While plaintiff was on the ground, one of the officers was on top of him and applied handcuffs to both wrists. While on the ground, plaintiff complained of back and neck pain and numbness in his legs.
It is undisputed that after plaintiff was handcuffed, defendants moved plaintiff approximately 40 feet to Sheldon's squad car, located across the street. To move plaintiff, Olson and Sheldon each placed a hand under one of plaintiff's armpits and pulled him upward. *1137 Holding his torso above the ground and allowing his feet to drag on the ground, they pulled plaintiff to the patrol car. When they reached the patrol car the officers lowered plaintiff to the ground and instructed Yardley to contact the ambulance to return to the scene.[8] Yardley complied and the ambulance returned. Plaintiff was placed on a body board and taken to the Box Butte General Hospital where he remained for 16-17 hours. After a number of examinations were conducted, plaintiff was taken by ambulance to the Regional West Medical Center in Scottsbluff where it was determined plaintiff had suffered a fractured vertebra. For some time, plaintiff was paralyzed from his neck down. By the time of trial, he had regained use of both arms but remains paralyzed from the chest down.
On cross examination, plaintiff admitted to pulling his arms from the officers as they attempted to arrest him. He denied striking either officer. He once again stated he was taken to the ground so quickly that he did not recall exactly how that took place. He stated that neither officer struck him either with their hands or with any objects.
B. Dr. Ernest W. Beehler
Plaintiff called Dr. Beehler as a witness. Dr. Beehler has been a neurosurgeon for 33 years. He examined plaintiff at the Regional West Medical Center and performed surgery on plaintiff's spine after the arrest. Beehler's examination of plaintiff disclosed a subluxation, or dislocation, of two vertebrae, C-7 and T-1,[9] a fracture of the joint between them, and the detachment of the muscle between the vertebrae. He concluded the fracture and subluxation caused the paralysis. Further, he concluded the fracture and subluxation were caused by an injury, as opposed to a natural occurrence. After being told of the circumstances surrounding the arrest, he concluded the injuries were caused when plaintiff's head struck the ground during the arrest.
Dr. Beehler stated a fracture is relatively common and may result from varying amount of force. He stated such injuries are, at times, caused by a minor amount of force, and at other times require a great deal of force to take place. He testified that the blow causing the spinal injury was a flexion injury and likely occurred while plaintiff's head was tilted forward. Based on Dr. Beehler's education, experience and training, I accept as true his conclusions regarding causation of the injuries and the determination that this was a flexion injury.
C. James Yardley
Plaintiff presented the videotaped deposition of James Yardley, the Fire Chief of the village of Hemmingford. He was standing with the EMT's in plaintiff's front yard when the arrest took place. Yardley stated that he did not see plaintiff swing at either defendant. Yardley testified Olson reached across plaintiff's body to place a handcuff on plaintiff's left arm. He admittedly was unable to see clearly what took place and did not know the precise motions the three men went through as plaintiff was taken to the ground. He believed one of plaintiff's wrists was cuffed. Yardley stated that Sheldon appeared to be helping Olson take down plaintiff. He saw plaintiff fall forward and strike the ground upper body first. He first heard plaintiff crying when plaintiff was lying on the ground near the patrol car, after the officers had carried him across the street.
Defendants called Yardley to the stand for live testimony during their case-in-chief. He testified to substantially the same information given in the deposition. He stated that when Olson reached plaintiff and Sheldon, plaintiff attempted to move away from the officers by backing along the side of the car. He added that he did not see plaintiff strike the defendants and did not see defendants strike or kick plaintiff. He was unable to see plaintiff's arms or hands during the incident *1138 and did not see if Sheldon was attempting to grab plaintiff's hands. Regarding the take-down, he testified the men appeared to come down in a heap. He did not see anyone lift plaintiff from the ground. Further, he believed plaintiff fell face-first to the ground. Yardley instructed the other EMT's to leave at that time. After defendants carried plaintiff to the patrol car, Yardley heard plaintiff say that he could not feel his legs. Yardley recalled the ambulance and plaintiff was placed on a stretcher to be taken for medical attention.
D. Dr. Samuel Smith
Plaintiff offered the deposition of Dr. Smith who reviewed plaintiff's medical records. On cross examination by defendants' counsel, Dr. Smith stated plaintiff's injury was consistent with a "flexion component. In other words, with the head bent slightly forward." Dr. Smith stated the injury was inconsistent with a chest-first, as opposed to head-first, fall. Based on Dr. Smith's education, experience and training, I accept as true his conclusions that this was a flexion injury.
E. Defendant Sheldon
Defendant Sheldon testified he saw Olson reach for a set of handcuffs. Sheldon reached out and grabbed plaintiff's left wrist with his own left hand. Plaintiff pulled away his hand. Sheldon lost his balance and stepped backward to right himself. He stated Olson had plaintiff upright and was holding plaintiff's right shoulder and hand. Sheldon saw plaintiff attempt to knee Olson in the groin. Sheldon reengaged and attempted to grab plaintiff's left wrist with both hands but was unable to gain control over it. Plaintiff began to fall and landed face-first on the ground. Sheldon stated that neither he nor Olson picked up plaintiff and threw him to the ground. Sheldon testified Olson handcuffed plaintiff, but he was uncertain whether a handcuff had been applied while plaintiff was standing.
Sheldon testified that plaintiff cried but said nothing while on the ground. Olson asked plaintiff to get up and walk to the patrol car. Sheldon did not recall plaintiff making any response. Sheldon reached under plaintiff's left arm and Olson under plaintiff's right; the men lifted plaintiff by his armpits and carried him to the car with his feet dragging on the ground. Sheldon asserts plaintiff said nothing while being carried. Upon reaching the car, the officers placed plaintiff on the ground. Plaintiff then said he could not feel his legs and that his back hurt. Olson held plaintiff in an attempt to support his back. One of the officers called Yardley and requested medical attention for plaintiff. The EMT's returned and placed plaintiff on a body board and stretcher.
F. Defendant Olson
Defendant Olson testified that he walked, in uniform, from his car, past the EMT's, to where plaintiff and Sheldon were standing. He stood facing plaintiff, toward plaintiff's right. Sheldon stood on Olson's right, also facing plaintiff. Olson reached for plaintiff's right arm with his own right hand and for his handcuffs with his left hand.[10] Plaintiff freed his right hand and punched Olson in the left temple area.[11] Olson began to fall backward but grabbed plaintiff's right wrist. At that time, Sheldon reached for plaintiff's left wrist. Plaintiff then kneed Olson in the groin twice, causing Olson to fall to one knee on plaintiff's right side. With his right hand, Olson was able to grab plaintiff's right wrist. Olson reached his left arm behind and then through plaintiff's legs and grabbed plaintiff on the front of the right thigh. He pulled on the leg and caused plaintiff to fall forward onto the ground, landing forehead first. They came to rest with plaintiff lying prone and Olson kneeling above plaintiff, straddling plaintiff's right leg. Olson cuffed both of plaintiff's wrists behind his back. Olson stated that approximately five seconds elapsed *1139 from the time plaintiff struck him until they ended up on the ground. Olson was not in control of plaintiff until they were both on the ground.
Olson told plaintiff to get up and go to the patrol car. Olson testified plaintiff said, "Fuck you." Olson stated plaintiff could be taken to the car "the hard way" and then, with Sheldon, picked up plaintiff under the armpits and carried plaintiff, with toes dragging on the ground, to the patrol car. They carried plaintiff approximately 45 feet. Once at the patrol car, plaintiff complained that his hands, arms and back hurt and that he could not feel his legs. Olson tried to hold plaintiff steady and called for the EMT's to return to the scene. Olson suffered a dislocated thumb and a contusion on the left temple as a result of the incident.
F. David L. Stone
During rebuttal, plaintiff called David L. Stone, a volunteer firefighter for the village of Hemmingford since 1986. Stone was with the EMT's in plaintiff's front yard when the arrest took place. Stone testified that he did not see plaintiff strike Olson. He stated he was originally looking away from the fight but heard what appeared to be a struggle and looked toward the source of the noise. There, he saw Olson staggering backward and then returning forward, toward plaintiff. He stated Olson grabbed plaintiff on the lower part of the body; Stone believed Olson grabbed both legs. He testified plaintiff fell forward, but not over either officer. He was uncertain whether plaintiff was handcuffed while standing. Plaintiff impeached this testimony with Stone's statement in a deposition that plaintiff was "tackled like a football player." Stone further stated plaintiff fell chest-first, not face-first.
G. Daniel L. Swanson
Plaintiff's final rebuttal witness was Daniel L. Swanson, a utility superintendent and the present fire chief for the village of Hemmingford. Swanson testified that although he was present in plaintiff's front yard, he did not actually see the officers take plaintiff to the ground. He stated he saw Olson approach plaintiff. Swanson looked away briefly and when he looked back, plaintiff was on the ground. He did not see plaintiff swing at Olson, or either of the officers hit or kick plaintiff. Swanson had testified during the criminal hearing[12] that both officers were behind plaintiff and that plaintiff was moving forward when the arrest took place. During his testimony in the present case, he stated plaintiff was facing the officers with Sheldon on his left and Olson on his right. Also in the criminal case, Swanson stated that the "officers on both sides [of plaintiff] just broke him down."
Summary
Considering the varying recollections and the sometimes conflicting testimony regarding what took place in plaintiff's arrest,[13] I make the following findings of fact. Olson approached plaintiff from plaintiff's right. Both Olson and Sheldon were facing plaintiff, Olson on plaintiff's right, Sheldon on plaintiff's left. Sheldon grabbed plaintiff's left hand. Plaintiff was able to free the hand and in the process, caused Sheldon to lose his balance and step away from plaintiff. Olson took out his handcuffs with his left hand and grabbed plaintiff's right wrist with his own right hand. Olson placed the handcuff on plaintiff's right wrist. Plaintiff freed his hand from Olson's grasp and struck Olson in the left temple. Olson once again gained control of plaintiff's right hand with his own right hand.
Sheldon used both hands to grab plaintiff's left wrist. Plaintiff attempted to knee Olson in the groin twice, causing Olson to fall backward to one knee near plaintiff's right side. Olson, on one knee, reached his left arm and shoulder around and behind plaintiff's right leg. Olson's left arm moved between plaintiff's legs, from rear to front. Olson's left hand was placed on the front of plaintiff's *1140 right thigh. Using the force of his left arm and shoulder, Olson moved plaintiff forward and upward, causing plaintiff's feet to leave the ground. Olson still held onto plaintiff's right arm which resulted in plaintiff's upper body being pulled downward as his lower body was moving forward and upward. Plaintiff's left hand was still held by Sheldon. Plaintiff struck the ground head-first. His head was tilted forward and struck the ground in the upper part of the forehead, forcing his head more violently forward and resulting in a flexion injury. Olson moved to plaintiff's right, landing on the ground beside plaintiff. Olson then regained a kneeling position over plaintiff's right leg, while plaintiff remained prone.
Olson finished handcuffing plaintiff. While on the ground in the front yard, plaintiff cried but did not complain of any injury. Olson and Sheldon carried plaintiff by his armpits, with feet dragging, across the street to the patrol car. There, plaintiff complained of back and neck pain and leg numbness. Olson and Sheldon then lowered him to the ground and called for the ambulance to return. The officers attempted to keep plaintiff stable until the ambulance returned. Plaintiff was then placed on a stretcher and taken for medical care. Neither officer hit or kicked plaintiff, either with or without weapons. The officers first became aware plaintiff was injured after they had moved him to the police car. When they learned of the injury, they attempted to keep him stationary and carried him no further.
Use of Force Expert
Plaintiff called Brenda L. Urbanek as an expert in the field of law enforcement, specifically on the issue of use of force. Urbanek is a use of force instructor at the Nebraska Law Enforcement Training Academy. She testified that prospective law enforcement officers who attend the academy are taught specific techniques regarding use of force. She stated the academy teaches officers to evaluate the need for force through the use of a Level of Resistance[14] continuum and a Level of Control[15] continuum. The officer is taught to evaluate the amount of resistance the arrestee is demonstrating and use an appropriate level of control in response. The scales are roughly corresponding. Officers are taught that for each action by an arrestee, the officer may respond with force one level greater than the resistance.
After reviewing description of the arrest given by witnesses in two state court cases,[16] Urbanek concluded both arresting officers had utilized excessive force against plaintiff. She concluded plaintiff's actions constituted active aggression allowing defendants to employ either empty hand[17] or intermediate weapon control.[18] However, she testified defendants employed lethal force in arresting plaintiff; the determining factor in this conclusion was the extent of plaintiff's injuries. On cross examination, she stated that Olson's objective in attempting to control plaintiff's legs was proper, but she stated the end result of the execution of that objective was flawed, resulting in an excessive use of force.
When questioned by the court, Urbanek described the presumed facts underlying her conclusions. Her conclusion regarding Olson's actions stemmed from grabbing plaintiff's legs, taking him down, and allowing his head to strike the ground. Because of the lack of specificity in the state court testimony *1141 regarding this issue, she was uncertain of how the take-down or "tackle" took place; she "envisioned" Olson's arms around plaintiff's legs but did not know precisely where on the legs the arms were placed. When asked about the basis for her opinion that Sheldon had used excessive force, she changed her original opinion. Assuming that Sheldon had ahold of plaintiff's upper body and merely held onto plaintiff as they both fell, Urbanek determined that Sheldon acted properly. The only problem she perceived with Sheldon's actions was that he landed on plaintiff. Her final conclusion was that Sheldon had not used excessive force according to the Academy's scales. Based on her education, experience and training, I accept Urbanek's testimony as true to the extent it makes a determination as to the defendants' actions as expressed in the state court records when judged on the Academy's scales.
On August 7, 1991 when plaintiff was arrested, defendant Sheldon had not yet attended the Academy. Defendant Olson had attended the academy in 1981. The Levels of Resistance and Levels of Control scales were not taught in the academy training at that time. Olson was never taught the arrest techniques now taught by the academy in conjunction with these scales. While Olson had been involved in further training after leaving the Academy, through the use of seminars, videotapes, and continuing legal education in which he received a Bachelor of Arts in criminal justice, none of this later training discussed levels of resistance or control. Prior to this incident, Olson had made approximately 1000 arrests but only one prior arrest was resisted. When Olson was trained, he was taught that an appropriate response to an arrestee resisting in the manner plaintiff did was to use mace or make a "neck slash"[19] or calf strike with a baton. I accept Olson's statements that without frequent use and training, the techniques described by Urbanek would be unworkable in reality. Split-second decisions must be made by an officer when an arrestee resists; responses must be almost second nature and would require frequent, repetitive training to be effective.
CONCLUSIONS OF LAW
Plaintiff alleges he was seized and arrested in violation of the Fourth Amendment. He alleges defendant Sheldon arrested plaintiff by remaining in the trailer-home after Linda Dyer was taken by medical personnel to be examined.[20] Plaintiff also alleges the officers' use of force during the arrest was unreasonable in violation of the Fourth Amendment.
1. Fourth Amendment Seizure
As noted by the Eighth Circuit Court of Appeals in Warren v. City of Lincoln, 864 F.2d 1436 (8th Cir.) (en banc), cert. denied, 490 U.S. 1091, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989), the Supreme Court has identified three categories of police-citizen encounters, each justifying a different level of detention.
The first category consists of consensual communications between officers and citizens, involving no coercion or restraint of liberty. Such encounters do not constitute seizures and thus are beyond the scope of the fourth amendment. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983). The second category is the so-called Terry stop, see Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); Florida v. Royer, 460 U.S. at 498-99, 103 S.Ct. at 1324-25, pursuant to which an officer having a reasonable suspicion that a person has committed or is about to commit a crime may temporarily seize the person for limited investigative purposes. Finally, there are full-scale arrests, which must be supported by probable cause. *1142 [United States v. Poitier, 818 F.2d 679, 682 (8th Cir.1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988).]
Warren v. City of Lincoln, 864 F.2d at 1438-39.
A police-citizen encounter escalates past the first category, and thus becomes a seizure, if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Peterson v. City of Plymouth, 945 F.2d 1416, 1419 (8th Cir.1991), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); see also, Florida v. Bostick, ___ U.S. ___, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). "A seizure is merely an investigatory stop, however, where `the officer's action was justified at its inception, and ... was reasonably related in scope to the circumstances which justified the interference in the first place.'" Id. quoting Terry v. Ohio, 392 U.S. at 20, 88 S.Ct. at 1879.
To escalate the seizure from an investigatory to an actual arrest, the officer must have probable cause. See Warren v. City of Lincoln, supra. "Probable cause exists where the facts and circumstances within the arresting officers' knowledge are sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense." United States v. Archer, 840 F.2d 567, 573 (8th Cir.), cert. denied, 488 U.S. 941, 109 S.Ct. 365, 102 L.Ed.2d 354 (1988); see also, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 224, 13 L.Ed.2d 142 (1964); United States v. Wajda, 810 F.2d 754, 758 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987).
The determination of whether defendants had "reasonable suspicion" and/or "probable cause" to seize plaintiff requires consideration of the totality of the circumstances as they were known by the officer at the time of the seizure. See Buffkins v. City of Omaha, 922 F.2d 465, 469 (8th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991), citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981) (reasonable suspicion); United States v. Abadia, 949 F.2d 956, 959 (8th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1510, 117 L.Ed.2d 648 (1992), citing Illinois v. Gates, 462 U.S. 213, 230-32, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983) (probable cause).
When officer Sheldon arrived, he saw Linda Dyer sitting on the bathroom floor in pain; the pain was severe enough to require medical attention. She was holding her ribs and crying. Before leaving, Linda was adamant that someone stay in the house to ensure the safety of the children. Plaintiff remained in the house waiting for Linda to return. Sheldon and Yardley also remained in the house. Even assuming plaintiff was seized at that time, Sheldon had at least reasonable suspicion that plaintiff had assaulted his wife. Although Sheldon remained near plaintiff during the time Linda was gone, he did not tell plaintiff he was under arrest. In fact, a number of times he requested plaintiff leave the house and go elsewhere. Certainly, a reasonable person would not believe he was under arrest when an officer makes clear that the person may leave the premises. Any seizure taking place while plaintiff waited for Linda to return was merely investigatory and was adequately supported by articulable, reasonable suspicion that plaintiff had assaulted his wife.
When Linda returned, plaintiff talked to her. Sheldon also talked to her and was informed her injuries were caused by plaintiff. At that time, Sheldon had probable cause to arrest plaintiff for assaulting his wife. Sheldon then called for backup from defendant Olson. When Olson arrived, Sheldon informed plaintiff he was under arrest. At that time, plaintiff was not free to leave and reasonably concluded he was under arrest. From the totality of the circumstances, Sheldon had probable cause to support the arrest. Therefore, neither defendant Sheldon nor defendant Olson violated plaintiff's Fourth Amendment rights based their decision to arrest him. Plaintiff failed to demonstrate by a preponderance of the evidence that defendants seized him without reasonable suspicion or probable cause. Therefore, I shall grant defendants' motion for judgment pursuant to Fed.R.Civ.P. 52(c), and I *1143 shall enter judgment for defendants on this claim.
2. Excessive Force
The Supreme Court has held that § 1983 excessive force claims arising in the context of an arrest must be analyzed under the Fourth Amendment's reasonableness standard. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Graham represented a departure from the law of many circuits which examined such claims under the substantive due process test enunciated in Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). While the substantive due process test focuses on whether the arresting officers acted "maliciously or sadistically," the Fourth Amendment standard is entirely objective. See Robinson v. City of St. Charles, 972 F.2d 974, 976 (1992). The Supreme Court stated,
As in other Fourth Amendment contexts ... the "reasonableness" inquiry in an excessive force claim is ... whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.... An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.
Graham v. Connor, 490 U.S. at 397, 109 S.Ct. at 1872 (citations omitted).
The reasonableness of an action is to be judged "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396, 109 S.Ct. at 1872. The application of the test must turn on the facts of the case and depends on such facts as the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others and whether the suspect is actively resisting arrest or attempting to evade arrest. Id. The Eighth Circuit Court of Appeals applied these factors in Gainor v. Rogers, 973 F.2d 1379 (8th Cir.1992).
In Gainor, police arrested a man who was carrying a cross through the town on a religious mission. When asked for identification, the man refused. The plaintiff's complaint alleged the officers, "violently grabbed him, tackled him, threw him face-down on the pavement, forcibly handcuffed him and placed him under arrest." Id. at 1385. Appealing a denial of a summary judgment motion, the officers alleged they were entitled to qualified immunity, alleging the plaintiff had resisted arrest, making their actions objectively unreasonable. The Court disagreed.[21] Finding the alleged crime "neither violent nor serious," the lack of evidence demonstrating the plaintiff posed a physical threat to anyone and a dispute in the evidence as to whether he was resisting arrest, the court could not conclude defendants had used reasonable force as a matter of law. Id. at 1388.
In this instance plaintiff was being arrested for assaulting his wife,[22] a Class I misdemeanor. See Neb.Rev.Stat. § 28-310. The evidence did not demonstrate plaintiff posed a physical threat to anyone but the officers. Although plaintiff stated he intended to return inside the house to speak with his wife, I find the threat of harm to her to be small. Other than the officers, a number of EMT's remained. Although plaintiff had struck his wife earlier in the evening, I find no evidence that he was likely to do so after she had returned from the medical clinic. While a potential threat may have existed, I find it remote and of insufficient weight to be determinative of the reasonableness of the officers' actions.
The final portion of the Graham test is whether plaintiff was resisting arrest. As stated earlier, plaintiff pulled away from both defendants, punched Olson and attempted to *1144 strike him with a knee twice. At that time, he knew he was being placed under arrest and therefore must have known he was resisting arrest. Plaintiff had been told by two uniformed officers he was under arrest. In fact, he asked Olson if he was under arrest, and Olson replied in the affirmative. Plaintiff could not have been under a mistaken belief that the officers were acting in anything but their official capacity in placing him in custody. Nonetheless, plaintiff fought the officers' actions. While the officers never punched or kicked plaintiff, he initiated the attacks by pulling his hands away to avoid being cuffed, punching Olson and attempting to strike him with a knee.
Graham does not purport to provide an exhaustive list of the factors to be considered in an arrest situation. The Eighth Circuit Court of Appeals has stated, for instance, that the extent of injury is relevant to determine how much force was used. Foster v. Metropolitan Airports Comm'n, 914 F.2d 1076, 1082 (8th Cir.1990).[23] In this vein plaintiff alleges the officers used an unreasonable amount of force as indicated by the extent of the plaintiff's injuries. He argues that his injuries demonstrate that tremendous force must have been used when his head was forced into the ground.
Even assuming that such evidence should be considered, plaintiff failed to demonstrate that defendant Sheldon acted unreasonably during the arrest. Defendant Sheldon's sole contact with plaintiff prior to plaintiff's injury was twice taking hold of plaintiff's left wrist. The first time Sheldon grabbed plaintiff's wrist, plaintiff broke free. Sheldon then grabbed the wrist for a second time. At that time, plaintiff went to the ground. Sheldon did not cause plaintiff to go to the ground, nor was any evidence presented that Sheldon knew plaintiff was going to go to the ground. Sheldon simply held onto plaintiff's arm in an attempt to control a man who was resisting arrest. Such actions can in no way be construed as unreasonable given the circumstances. I conclude plaintiff's claim against defendant Sheldon is without merit.
Plaintiff's claim against defendant Olson however, is a closer case. Olson's take-down was clearly the cause of plaintiff's injuries. The Graham factors described above apply to Olson's situation with equal force as they did with Sheldon's. The subject of liability, then, turns on whether Olson's take-down of plaintiff was objectively reasonable given the reason for the arrest and the extent of plaintiff's resistance.
Essentially, plaintiff claims the extent of his injury is the most important evidence in the analysis because it demonstrates how much force Olson must have used when taking plaintiff to the ground. In support of his claim against Olson, plaintiff relies heavily on the testimony of Urbanek who stated that the force used by Olson was excessive by Academy standards. Urbanek's conclusion was based predominantly on the extent of plaintiff's injuries. She stated that because plaintiff was paralyzed by the action, Olson had used lethal force in arresting plaintiff. She reached this conclusion despite the uncontroverted evidence that Olson used no weapons and did not strike plaintiff at any time.
Although Urbanek's testimony was relevant, and helpful, it is not dispositive. Urbanek testified that the excessive force analysis now taught by the Academy, and utilized by her in reaching her conclusion in this case, was not taught in the Academy until 1986. Olson attended the academy prior to that time. No evidence was presented that Olson, or any other officer who attended the Academy prior to 1986, was taught to analyze an arrest situation in the method described by Urbanek. Nor was evidence presented that such officers would have access to such training without returning to the Academy after 1986. Plaintiff has directed this court to no constitutional duty of an officer to repeatedly *1145 be trained by the state whenever new teaching techniques are implemented. Thus, plaintiff has not demonstrated Olson knew or should have known of the training techniques, or should be held to a standard employing them.
Plaintiff must demonstrate that a reasonable officer at the scene of the arrest would have viewed the force applied during the arrest as unreasonable. Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872. Urbanek's testimony in this case was insufficient to demonstrate what a reasonable officer would conclude while at the scene. The Supreme Court expressly cautioned against reliance on the "20/20 vision of hindsight." Id. Further, the Court stated
The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgmentsin circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.
Id. at 396-97, 109 S.Ct. at 1872.
Urbanek's conclusion was made from an academic viewpoint, relying on two separate scales which must be compared and constantly reevaluated as the arrestee's conduct changes and the officer takes in further information about the circumstances. While such a scholastic exercise may be appropriate as a guide in the classroom, I cannot conclude the Constitution's reasonableness standard required it in the "tense, uncertain and rapidly evolving" setting of this arrest. To give meaning to Graham's words of warning that split-second judgments must take place during an arrest, the evaluation of reasonableness must extend beyond the Academy's level of force analysis, especially to an officer who was trained at the same Academy in the use of a different arrest/force analysis.
Plaintiff claims a reasonable officer would have chosen a different method to take control of plaintiff. Through Urbanek, plaintiff suggested a number of options remained open to Olson when faced with plaintiff's resistance. Urbanek suggested a kick to one of plaintiff's ankles or an arm bar[24] would have been appropriate given the circumstances. I do not find such actions realistic in the already-deteriorated situation confronting the officers at the moment they applied force. Olson had been punched was on the ground when he grabbed plaintiff's leg and made the take-down.[25] An ankle kick seems impossible from that position, as does an arm bar. Further, although perhaps less likely, there is no guarantee that forcing plaintiff to the ground through the use of an arm bar would not have resulted in similar injuries; use of the arm bar requires the control of one arm[26] and would have forced plaintiff to the ground face-first. Urbanek testified the determining factor in her conclusion that Olson applied lethal force was the extent of plaintiff's injuries, despite her opinion that Olson's objective was proper. Had plaintiff received similar injuries through one of the techniques Urbanek proposed, her testimony seems to lead to the conclusion that Olson would again have used lethal force in effecting the arrest. Thus, his actions would constitute excessive force as determined by the Academy's scales.
After being struck by plaintiff, Olson was on the ground next to plaintiff's knee. Making a "split-second judgment," he sought to take control of plaintiff. No one disputes that gaining control over a person resisting arrest is a proper objective, nor that taking plaintiff to the ground was a proper way to achieve that control in this case. From his position, Olson took a logical course to carry out the objective. He used what momentum and leverage he had available from his position on one knee and forced plaintiff to the *1146 ground. Once plaintiff was on the ground Olson used no further force. He did not punch or kick plaintiff; he did not use any weapons to injure plaintiff. The take-down was the only force used against plaintiff even though the method of carrying out the take-down was not in keeping with current teaching.
The Eighth Circuit recently stated,
"The Constitution ... requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision."
Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993), citing Graham v. Connor, 490 U.S. at 396, 109 S.Ct. at 1872. The evidence in this case leads me to the conclusion that plaintiff failed to demonstrate that Olson used unreasonable force in carrying out the arrest.
Further, I conclude both officers acted reasonably when carrying plaintiff to the patrol car. As soon as plaintiff made them aware his legs were numb they lowered him to the ground and attempted to hold him in a stable position. Because the officers were unaware of plaintiff's injuries until they reached the patrol car, their actions cannot be described as unreasonable under the Fourth Amendment. In sum, plaintiff has failed to demonstrate by a preponderance of the evidence that either officer acted unreasonably, in violation of the Fourth Amendment, when they arrested him. Accordingly, I shall enter judgment for the officers on this claim.
3. Municipal Liability
Plaintiff alleges the village of Hemmingford is liable for plaintiff's injuries because: (1) it hired defendant Sheldon with knowledge that he had previously been convicted of an assault, and (2) it failed to properly train the officers in how to properly carry out an arrest. To hold the village of Hemmingford liable in this action, plaintiff must first demonstrate that at least one of the officers violated his constitutional rights, and second that the village was deliberately indifferent to these rights. Collins v. City of Harker Heights, ___ U.S. ___, ___, 112 S.Ct. 1061, 1061, 117 L.Ed.2d 261 (1992), citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989);[27]see also Robinson v. City of St. Charles, 972 F.2d 974, 977 (8th Cir.1992); Roach v. City of Fredericktown, 882 F.2d 294, 297-98 (8th Cir.1989).
Plaintiff has failed to demonstrate that either officer violated plaintiff's Fourth Amendment rights. Without the existence of an underlying constitutional violation, his claims against the village of Hemmingford must fail. Even if plaintiff had demonstrated one of the officers had violated plaintiff's Fourth Amendment rights, he would be unable to prevail on his failure to train claim against the village because he failed to demonstrate the village was deliberately indifferent to his constitutional rights. In City of Canton v. Harris, supra, the Court stated, "That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program." Id. at 390-91. An isolated incident in which an individual is subjected to excessive force is insufficient to demonstrate a municipality is liable for failure to train. See Oklahoma City v. Tuttle, 471 U.S. 808, 823-23, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985) (plurality); Wedemeier v. City of Ballwin, 931 F.2d 24, 26 (8th Cir.1991).
Plaintiff failed to demonstrate that either officer violated his Fourth Amendment rights by using excessive force during the arrest. Further, he failed to prove that the village of Hemmingford was deliberately indifferent to his safety. Therefore, plaintiff's claims against the village are without merit. Accordingly, I shall enter judgment for the village.
CONCLUSION
Plaintiff has failed to prove by a preponderance of the evidence that defendants violated *1147 his Fourth Amendment rights when they placed him under arrest or by using excessive force during the arrest. Further, his claims against the village of Hemmingford are without merit for the failure to demonstrate the violation of any constitutional rights. I shall grant defendants' motion for judgment on the first claim pursuant to Rule 52(c), and order judgment for the defendants on the remaining claims.
JUDGMENT
IT IS ORDERED, in accordance with the memorandum of decision filed this day, judgment in this matter hereby is entered for defendants.
NOTES
[1] The parties consented to have this action proceed before me pursuant to 28 U.S.C. § 636(c).
[2] I granted defendants' motion with respect to plaintiff's probable cause for arrest claim. I denied the motion with respect to the excessive force claim.
[3] The three are Linda's from a previous marriage. Plaintiff has two children from a previous marriage.
[4] Plaintiff originally claimed he did not strike his wife. That testimony was effectively impeached by the use of a sworn deposition in which plaintiff stated that he hit Linda "probably in the upper body." Plaintiff later admitted he pushed her against a bathroom shelf.
[5] The policy requires a police officer to accompany the rescue squad on every ambulance call.
[6] Nebraska law requires police officers to attend the training center within one year of the beginning of their employment as police officers. Hemmingford had a policy of sending new officers to the academy near the end of the first year of their employment to ensure that the officer would be retained by the city as an employee. Sheldon attended the academy from September 1991 to November 1991.
[7] A Hemmingford policy requires two officers to be present when an arrest is made.
[8] All of the EMT's except Yardley left the scene when plaintiff was on the ground and handcuffed.
[9] Dr. Beehler testified the vertebrae in the spine are numbered for case of discussion. From the brain, the spine in numbered in sequence, Cervical (or C) 1-7; Thoracic (or T) 1-12; and Lumbar (or L) 1-5. Thus, C-7 and T-1 are adjacent vertebrae.
[10] Olson supplemented his testimony with a visual demonstration he conducted with the assistance of Sheldon and Yardley. The demonstration contained only sparse verbal explanation on the record.
[11] Defendant Olson was uncertain whether he was able to place a cuff on plaintiff's right hand.
[12] Plaintiff was prosecuted in the County Court of Box Butte County for assaulting Linda Dyer and officer Olson. The charges were filed on March 19, 1992, and a judgment of conviction was entered September 15, 1992.
[13] I note that the reconstruction of the events at the arrest scene would have been greatly simplified by the use of diagrams showing the location of the parties and witnesses on the property.
[14] The Level of Resistance continuum describes six categories in which arrestees may be classified depending on their actions while being arrested: (1) psychological intimidation; (2) verbal non-compliance; (3) passive resistance; (4) defensive resistance; (5) active aggression; and (6) aggravated active aggression.
[15] The Level of Control continuum describes five categories of control techniques which may be used by law enforcement officers depending on the level of resistance displayed by the arrestee: (1) officer presence; (2) verbal direction; (3) empty hand control; (4) intermediate weapon; and (5) lethal force.
[16] Plaintiff's arrest was a peripheral issue in two state cases. The first was a child custody case involving Linda Dyer and her ex-husband. The second case was plaintiff's criminal action for assault.
[17] Empty hand control consists of blows to the arrestee made by an officer who has no weapon in hand.
[18] Intermediate weapon control would include the use of mace, a baton, a stun gun or ordering a police dog to attack.
[19] Olson described the "neck slash" as a technique whereby the arrestee is struck in the shoulder and neck area with a baton in an attempt to either pinch a nerve or break the clavicle.
[20] Plaintiff does not claim Sheldon's warrantless entry into the trailer-home constituted a Fourth Amendment violation. Such a claim would be meritless given the circumstances of Sheldon's entry. See United States v. Riccio, 726 F.2d 638, 643 (10th Cir.1984) (Fourth Amendment does not bar a warrantless entry when the officer has a reasonable belief that a person is in need of aid).
[21] Although one judge filed a dissenting opinion, he agreed the officers were not entitled to summary judgment on the excessive force claim. Gainor v. Rogers, 973 F.2d at 1391, (Loken, J., dissenting).
[22] Plaintiff was later also charged with assaulting Olson because of the punch plaintiff landed to Olson's temple. This assault took place before defendants used any of the force about which plaintiff complains.
[23] This Eighth Circuit holding seems questionable in light of the Supreme Court's rejection of the Glick test. That test relied, in part, on the extent of the injury to determine the officer's subjective intent. Although Foster was decided after Graham and uses a reasonableness analysis, it supports its reliance on the extent of the injury on a pre-Graham case, Agee v. Hickman, 490 F.2d 210, 212 (8th Cir.), cert. denied, 417 U.S. 972, 94 S.Ct. 3178, 41 L.Ed.2d 1143 (1974). Nonetheless, Foster is circuit precedent and must be accepted as good law.
[24] An arm bar consists of the officer holding one of the arrestee's arms at the wrist with the palm facing upward. The arm is raised and brought forward forcing the arrestee to the ground face-first.
[25] According to officer Sheldon, according to the Academy's curriculum, both officers were too close to plaintiff in effecting the arrest; they should have remained a short distancebut outside arm's or leg's lengthaway from plaintiff and ordered his compliance with verbal commands first, to avoid being struck and placed out of position.
[26] One must keep in mind that defendant Sheldon was holding the plaintiff's left arm at this time.
[27] The Court made clear in both Collins and Harris that the "deliberate indifference" standard applied regardless of the nature of the underlying constitutional claim. See Collins, ___ U.S. at ___ fn. 7, 112 S.Ct. at 1061 fn. 7 (due process); Harris, 489 U.S. at 388 fn. 8, 109 S.Ct. at 1205 fn. 8 (Fourth Amendment excessive force). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2235633/ | 929 N.E.2d 166 (2006)
367 Ill. App.3d 1087
PATEL
v.
BROOKS.
No. 1-05-3552.
Appellate Court of Illinois, First District
September 22, 2006.
Rev'd in pt., vac. in pt. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561326/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EHM PRODUCTIONS, INC., DBA TMZ, a No. 19-55288
California corporation; WARNER BROS.
ENTERTAINMENT INC., a Delaware D.C. No.
corporation, 2:16-cv-02001-SJO-GJS
Plaintiffs-Appellees,
MEMORANDUM*
v.
STARLINE TOURS OF HOLLYWOOD,
INC., a California corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted August 10, 2020
Pasadena, California
Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN, ** District
Judge.
Starline Tours of Hollywood, Inc. (Starline) appeals the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
orders dismissing its First Amended Counterclaim (FACC) and denying its motion
for leave to amend. We dismiss this appeal for lack of appellate jurisdiction.
1. Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction over
“final decisions of the district court.” Nat’l Distrib. Agency v. Nationwide Mut.
Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). Generally, “a voluntary dismissal
without prejudice is ordinarily not a final judgment from which the plaintiff may
appeal.” Galaza v. Wolf, 954 F.3d 1267, 1270 (9th Cir. 2020) (cleaned up). A
limited exception to this rule—which Starline seeks to invoke—permits an appeal
“when a party that has suffered an adverse partial judgment subsequently dismisses
its remaining claims without prejudice with the approval of the district court, and
the record reveals no evidence of intent to manipulate our appellate jurisdiction.”
James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1070 (9th Cir. 2002) (cleaned up).
We recently reemphasized that this exception applies only if the dismissing party
secures “the approval and meaningful participation of the district court.” Galaza,
954 F.3d at 1272.
Here, “there was no meaningful district court participation in” the parties’
“voluntary dismissal” of their surviving claims. Id. at 1271. The parties effected
this dismissal through a “Joint Stipulation re Dismissal of Action Without
Prejudice” under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Rule
41(a)(1)(A) is a mechanism for voluntary dismissal “Without a Court Order,” and
2
the parties’ joint dismissal did not request an order or entry of partial judgment.
The district court issued no further orders in this case. Because the district court
played no role in the parties’ voluntary dismissal of the claims, that dismissal did
not produce a final, appealable order. Galaza, 954 F.3d at 1272.
2. Starline’s arguments to the contrary are unavailing.
First, while the joint stipulation stated that the voluntary dismissal was “at
the suggestion of the Court,” it also noted that this suggestion was “to avoid an
unnecessary appearance at the pre-trial conference,” rather than a substantive
direction as to the remaining claims. In any event, even if “the district court
approved the stipulation to . . . dismiss, such approval cannot be said to involve
meaningful consideration or participation by the district court inasmuch as the
parties were entitled to do so without leave of the court.” Am. States Ins. Co. v.
Dastar Corp., 318 F.3d 881, 888 (9th Cir. 2003) (cleaned up).
Second, the clerk of court’s entry of the “Report on the Filing or
Determination of an Action Regarding a Patent or Trademark” on the district court
docket is irrelevant. Clerks of court are required by statute to transmit certain
information in this form to the United States Patent and Trademark Office. 15
U.S.C. §§ 1116, 1127. That the clerk fulfilled this reporting requirement after the
parties dismissed their claims does not signify that the district judge meaningfully
participated in the voluntary dismissal.
3
3. Finally, the record does not contain “unambiguous evidence” that the
parties intended their stipulation of voluntary dismissal to serve as a dismissal with
prejudice. Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738,
751 (9th Cir. 2008). Unlike in some of our prior cases, see id. at 750, the
stipulation here expressly stated that the dismissal was “without prejudice.” Nor
did the stipulation “permit . . . appeal of the underlying order they considered
determinative” or serve some other function that would counsel in favor of treating
their stipulation as effecting a “dismissal with prejudice.” Concha v. London, 62
F.3d 1493, 1508 (9th Cir. 1995) (cleaned up).
DISMISSED.
4 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2610275/ | 207 Kan. 627 (1971)
485 P.2d 1271
LEE CROPP, an Individual, and ELMER E. FOX, et al., d/b/a ELMER FOX and COMPANY, a partnership, Plaintiffs-Petitioners,
v.
FREDERICK WOLESLAGEL, Judge 20th Judicial District, Division No. 1, Defendant-Respondent. NORMAN A. GROOMS, Plaintiff-Petitioner,
v.
FREDERICK WOLESLAGEL, Judge 20th Judicial District, Division No. 1, Defendant-Respondent. LESTER L. VALENTINE, Plaintiff-Petitioner,
v.
FREDERICK WOLESLAGEL, Judge 20th Judicial District, Division No. 1, Defendant-Respondent.
Nos. 46,295, 46,294 and 46,342 (CONSOLIDATED)
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Edward G. Collister, Jr., Assistant Attorney General, argued the cause, and *628 Vern Miller, Attorney General, was with him on the brief for the defendant-respondent.
J. Eugene Balloun, of Turner and Balloun, Chartered, of Great Bend, argued the cause, and Lee Turner of the same firm was with him on the brief for the plaintiffs-petitioners.
Payne H. Ratner, Jr., of Wichita, was on the brief for the Kansas Trial Lawyers Association, amicus curiae.
The opinion of the court was delivered by
KAUL, J.:
This is an original proceeding in mandamus wherein plaintiffs ask us to issue a peremptory writ directing the defendant to rescind an order made at a pretrial conference directing plaintiffs to disclose the policy limits of their liability insurance.
The issue is identical in all three of the above entitled cases and the parties have stipulated that the decision in No. 46,295 will be controlling.
Plaintiffs herein are defendants in an action pending in the District Court of Russell County. The action was brought to recover damages for injuries suffered in an automobile accident.
Plaintiffs claim the order referred to amounted to an abuse of discretion by defendant and a wrongful invasion of their rights in that it was in direct conflict with this court's holding in Muck, Administratrix v. Claflin, 197 Kan. 594, 419 P.2d 1017. As grounds for resort to the extraordinary remedy of mandamus against a district judge, plaintiffs claim they have no remedy in district court or by way of appeal.
At this point, we should pause to reiterate that ordinarily the exercise of a trial court's discretion cannot be controlled by mandamus. (See Muck, Administratrix v. Claflin, Syl. ¶ 1, supra.). This court does not propose to undertake the task of monitoring trial courts at the pretrial or discovery stage of litigation or of rendering advisory opinions whenever the propriety of pretrial inquiry arises. We held in Muck that mandamus will be invoked only when an order of the trial court denies a litigant a right or privilege which exists as a matter of law and there is no remedy by appeal.
As we have indicated, the main thrust of plaintiffs' contention is that the issue here is controlled by our decision in Muck.
Defendant, on the other hand, contends that our decision in Muck dealt specifically and solely with the scope of discovery under K.S.A. 60-226 (b) as applied to interrogatories under K.S.A. *629 60-233. Defendant says that since the issue here was framed at a pretrial conference pursuant to K.S.A. 60-216 it is that statute which is determinative rather than 60-226 (b). Defendant points out that the pretrial conference procedure indicated in 60-216 is obviously much broader than the discovery procedure contemplated in 60-226 (b).
Following the filing of this action, and after several conferences with counsel for both parties, this court by order dated March 17, 1971, narrowed the issue to this question:
"Does a district court, at a pretrial conference pursuant to K.S.A. 60-216, have the power to order that the defendant make disclosure of his liability insurance policy limits?"
We shall first direct our attention to plaintiffs' contention that the Muck decision controls the question presented here.
In Muck we simply held that the plain language of 60-226 (b), viewed in the light of K.S.A. 60-454 (inadmissibility of liability insurance to prove negligence or other wrongdoing), compelled our conclusion that dollar limits of a policy of liability insurance did not constitute direct evidence for use at the trial, nor could the disclosure thereof be reasonably calculated to lead to the discovery of admissible evidence. (See Muck, Administratrix v. Claflin, Syl. ¶ 3, supra.)
K.S.A. 60-226 (b), which is substantially the same as Federal Rule 26 (b) (1) (28 U.S.C.A.), reads as follows:
"(b) Scope of examination. Unless otherwise ordered by the court as provided by section 60-230 (b) or (d), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. A party shall not require a deponent to produce, or submit for inspection any writing prepared by, or under the supervision of, an attorney in preparation for trial."
K.S.A. 60-454 reads:
"Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing."
Since evidence of liability insurance is specifically declared to be inadmissible as tending to prove negligence it logically follows *630 that discovery of policy limits could not possibly be calculated to lead to the discovery of admissible evidence. This premise compelled our holding in Muck.
However, our holding in Muck was expressly limited to the issue framed by the trial court's rulings pertaining to interrogatories under K.S.A. 60-233, the scope of which is controlled by 60-226 (b). On this point we stated in the opinion:
"It will be understood that our decision is based on the facts before us. We should not be understood as stating that discovery through the contents of a liability insurance policy is never proper under K.S.A. 60-233 and 60-226 (b). Such interrogatories would be proper if they were reasonably calculated to lead to the discovery of admissible evidence. It should also be noted that what is said here is limited to the single issue of discovery of policy limits under K.S.A. 60-233 and 60-226 (b)." (p. 601.)
In view of the express limitation of our holding in Muck and because 60-216, by its own terms, appears to be much broader than the precise statutory limitations present in the discovery statutes, the majority of this court conclude that our holding in Muck is not determinative of the issue presented here.
A pretrial conference in this jurisdiction is authorized by K.S.A. 60-216 which sets forth the scope and purposes thereof. In pertinent part it reads as follows:
"In any action, the court shall on the request of either party, or may in its discretion without such request, direct the attorneys for the parties to appear before it for a conference to consider:
"(1) The simplification of the issues;
"(2) The trial of issues of law the determination of which may eliminate or affect the trial of issues of fact;
"(3) The necessity or desirability of amendments to the pleadings;
"(4) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
"(5) The limitation of number of expert witnesses;
"(6) The advisability of a preliminary reference of issues to a master;
"(7) Such other matters as may aid in the disposition of the action." (Emphasis supplied.)
K.S.A. 60-216 is substantially the same as parallel Rule 16 of the Federal Rules of Civil Procedure (28 U.S.C.A.). There is one significant difference, i.e., the holding of a pretrial conference is made mandatory on request of either party under 60-216, whereas it is permissive under the Federal Rule.
The issue squarely presented here is whether the disclosure of policy limits falls within the scope of item (7) of 60-216. The *631 question stated immediately gives rise to the included query whether settlement proposals or negotiations constitute "such other matters as may aid in the disposition of the action." Granted, the encouragement of settlement is not one of the primary purposes of a pretrial conference, but if it is a valid secondary objective then it must be conceded that ignorance of policy limits is not only unrealistic but undesirable. As a practical matter no meaningful consideration of settlement could be accomplished.
Liberal construction of our new code of civil procedure is mandated by the provisions of K.S.A. 60-102. It reads:
"The provisions of this act shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding."
In contrast to the restrictions of the precise language of 60-226 (b) and 60-454, which confronted us in Muck, our frame of reference for consideration of the proposition here is the literal mandate to consider "such other matters as may aid in the disposition of the action." We believe the liberal construction directed by 60-102 compels the conclusion that the language used in 60-216 (7) contemplates the encouragement of settlement, in proper perspective, as a matter which may aid in the disposition of the action.
Without de-emphasizing the primary objectives of a pretrial conference in simplifying the issues, facilitating proof and disposing of various preliminary matters, we believe the encouragement of settlements plays a valid secondary role. The view which we have adopted in this regard is in accord with expressions on the subject by many text and treatise writers. (Spencer A. Gard, "Survey of Kansas Law: Civil Procedure," 17 Kansas Law Review [1969], p. 739; 2 Vernon's Kansas Statutes Annotated, Code of Civil Procedure, pp. 128-129; Nims, Pretrial, pp. 62-68; 1A Barron and Holtzoff, Federal Practice and Procedure, p. 833; and Joseph P. Jenkins, "Discovery of Automobile Liability Insurance Limits: Quillets of the Law," 14 Kansas Law Review [1965], p. 59.)
Early in point of time with respect to discussions of the subject, Professor Edson R. Sunderland, in 1944, at the instance of the Committee on Pretrial Procedure of the Judicial Conference of Senior Circuit Judges, prepared a comprehensive treatise entitled "Procedure for Pretrial Conferences in Federal Courts." With respect to the encouragement of settlement and the proper place thereof in pretrial conferences. Professor Sunderland wrote:
*632 "One of the major purposes served by the pretrial conference is to afford a convenient occasion for discussing the possibilities of a settlement. It is always embarrassing for one party to suggest settlement to the other, because such a suggestion may be thought to carry the implication that the party lacks confidence in his case. When, however, the discussion of settlement comes up in the regular course of procedure, as a normal part of the pretrial conference and at the instance of the presiding judges, this cause of embarrassment disappears." (Vol. 28 Journal of the American Judicature Society, p. 49.)
In further elaborating on the subject, Professor Sunderland directs attention to the position and degree of importance to be assigned the consideration of settlement at a pretrial conference. He warns against the overreaching of judges in making consideration of settlements, the chief purpose of the proceeding and dealing with other features of the conference as more or less incidental to the fundamental aim.
Judge Alfred P. Murrah, former Chief Judge of the Tenth Circuit Court of Appeals, when serving as Chairman of the Pre-Trial Committee of the Judicial Conference of the United States, wrote:
"The settlement of cases is not a primary objective of pre-trial conferences, but, when properly presented, it is an important by-product and often the logical result of pre-trial. If the judge has the technique and personality for it, if he is understanding and does not coerce settlement but constantly reminds the lawyers that they are entitled to their day in court, the proper atmosphere will be created to encourage compromise and settlement...." (14 F.R.D. pp. 417, 420.)
Many federal and state courts have relied on settlement as a factor in rationale supporting discovery under Federal Rule 16 and parallel state rules of civil procedure. For example, see Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064; Johanek v. Aberle, 27 F.R.D. 272 (1961); cases collected in 13 A.L. R. 3d, Anno., p. 822; 41 A.R.L.2d, Anno. p. 968; 8 Wright & Miller, Federal Practice and Procedure: Civil § 2010, p. 91, Note 72. While the arguments in the cases mentioned do not support discoverability under our construction of K.S.A. 60-226 (b) they are persuasive with respect to a pretrial conference under 60-216, where settlement is a proper matter for consideration.
In Muck we noted the irreconcilable conflict in the decisions of federal district courts and of the various state appellate courts concerning the disclosure of policy limits in discovery proceedings. Counsel for defendant and amicus curiae point out that since our decision in Muck, the nationwide conflict in federal district courts *633 has been settled by a change in Federal Rules of Civil Procedure and, therefore, counsel suggest that we reexamine our construction of 60-226 (b). The conflict in federal courts was not resolved by stretching the scope of Federal Rule 26 by appellate decision, but by the promulgation of an entirely new rule expressly declaring insurance agreements to be discoverable. (See Federal Rule 26 [b] [2], effective July 1, 1970, [28 U.S.C.A., Cumulative Pocket Part, p. 219.])
In the instant case the record shows that defendant conducted a pretrial conference after all discovery proceedings were completed. This is generally recognized as the most acceptable procedure. We are informed that the same practice is followed by most trial courts in this jurisdiction. At this juncture in the course of litigation, pleadings are generally completed, there has been a full disclosure, the contentions and claims of the parties are stated, available evidence concerning both liability and damages has been indicated, court and counsel are in a position to narrow the issues and are in the best possible position to evaluate the case for settlement purposes. The court is in control of the situation. The possibility of exaggerated or padded claims, stemming from disclosure (an argument frequently advanced by opponents of discovery), may be forestalled by the discretionary denial of amendments to pleadings. Conversely, fraudulent settlements such as described in Toppass v. Perkins' Administratrix, 268 Ky. 186, 104 S.W.2d 423, will be avoided.
We believe the encouragement of settlement to be a valid subject for consideration as a matter that may aid in the disposition of an action and thus clearly falls within the contemplation of K.S.A. 60-216. As a consequence, common sense and realistic treatment dictate that the fact of liability insurance and disclosure of the policy limits thereof are essential to a purposeful settlement discussion.
In order to confine the subject of settlement within its proper perspective at a pretrial conference, we issue this caveat that efforts by the court should never work to coerce or compel a litigant to make a settlement. Settlements are to be wrought by the litigants, not by the court.
The peremptory writ is denied.
*634 PRICE, C.J., dissenting from the second sentence of paragraph 3 of the syllabus and the corresponding portion of the opinion.
SCHROEDER and FONTRON, JJ., dissenting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2164327/ | 127 N.J. 344 (1992)
605 A.2d 681
THEODORE RUDBART, NATALIE RUDBART, BEVERLY LITOFF AND BENJAMIN WELTMAN, PLAINTIFFS-RESPONDENTS,
v.
NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION AND FIRST FIDELITY BANK, N.A., N.J., DEFENDANTS-APPELLANTS. MADELINE OKIN, FOR HERSELF AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFF-RESPONDENT,
v.
NORTH JERSEY DISTRICT WATER SUPPLY COMMISSION AND FIRST FIDELITY BANK, N.A., N.J., DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued January 3, 1991.
Decided April 27, 1992.
*346 H. Curtis Meanor argued the cause for appellant North Jersey District Water Supply Commission (Podvey, Sachs, Meanor & Catenacci, attorneys; H. Curtis Meanor, H. Richard Chattman, and Steven Firkser, on the briefs).
Michael A. Lampert argued the cause for appellant First Fidelity Bank, N.A., N.J. (Kraft & McManimon, attorneys).
James J. DeLuca argued the cause for respondents (Okin, Cohen & Hollander and Gurtman, Shurkin & Brunt, attorneys; Mr. DeLuca and Thomas J. Brunt, on the briefs).
*347 Joseph L. Yannotti, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey, (Robert J. Del Tufo, Attorney General of New Jersey, attorney; Michael R. Clancy, Assistant Attorney General, of counsel; Sandra L.K. Manning, Deputy Attorney General, on the brief).
Peter N. Perretti, Jr., submitted briefs on behalf of amici curiae New Jersey Bankers Association and American Bankers Association, (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Peter N. Perretti, Jr., Robert Fischer, III, John J. Farmer, Jr., and David P. Arciszewski, on the brief).
PER CURIAM.
We granted certification, 122 N.J. 137, 584 A.2d 210 (1990), primarily to consider the contention of First Fidelity Bank, N.A., New Jersey (Fidelity) that "in a published decision without precedent in the United States the Appellate Division had ruled that every investment security, whether a stock, bond, note or in some other form, is a contract of adhesion subjecting every term of the agreement to post hoc review for fairness." The Bank's petition for certification recited that "[n]ot only does this decision threaten to wreak havoc with the federally-regulated national securities market, but it would lead to the courts of this state being inundated with a group of law suits securities litigation that is among the most complex known to the bar."
We granted leave to the Attorney General of New Jersey to appear as amicus curiae because of his contention that
[t]his is the only decision extending the application of the doctrine of adhesion contracts to the sophisticated and highly-regulated world of securities transactions.
The decision has the potential of opening to scrutiny by the courts the terms and conditions of notes and securities that have been sold to the public by governmental agencies throughout the State. The transfer of securities in the primary and secondary market hinges upon the certainty of the terms of such securities, and the assurance that those terms cannot be overridden by judicial *348 fiat. The broad implications of the decision by the Appellate Division could adversely affect on the sale of securities in this State.
The Attorney General suggested that the public debt financing to support the vast number of programs and projects necessary to the public health and welfare of the state would be endangered by the decision below. We agree that the doctrine of adhesion contracts should not be extended to regulated securities transactions. We now reverse the judgment of the Appellate Division, which was based on that court's holding that the subject securities constituted a contract of adhesion, but remand the matter to the Law Division for resolution of the remaining claims asserted by the plaintiffs.
I
These consolidated class actions were brought on behalf of holders of notes issued by defendant North Jersey District Water Supply Commission (Commission) to recover damages arising from an early redemption of the notes effected by newspaper notice. Plaintiffs' central claim was that notice by publication, although specifically provided for in the notes, was inadequate and unconscionable.
A.
The Commission, a public corporation, operates and maintains a public water system serving northern New Jersey. See N.J.S.A. 58:5-1 to -58. By resolutions adopted April 25 and May 23, 1984, the Commission authorized the issuance of $75,000,000 in new project notes to provide interim financing for a portion of the cost of constructing a new water-supply facility and to pay certain outstanding obligations. See N.J.S.A. 58:5-44. The Commission and its underwriters, one of which was defendant Fidelity, negotiated the terms of the notes; Fidelity also was designated as the indenture trustee pursuant to N.J.S.A. 58:5-49 and as registrar/paying agent for the notes. The underwriters agreed to purchase the notes at the discounted *349 price of $73,800,000, intending to sell them on the secondary market at face value.
The project notes were issued on June 15, 1984. Issued in registered form, without coupons, in denominations of $5,000 or multiples thereof, the notes bore tax-free interest at the rate of 7 7/8 per annum payable on June 15th and December 15th. The notes fixed a June 15, 1987, maturity date, but, as set forth in both the Commission's authorizing resolutions and the Official Statement offering the issue to the public, were subject to earlier optional redemption:
The Notes are subject to redemption prior to maturity as a whole at the option of the Commission on 30 days published notice in a newspaper or newspapers of general circulation in the City of Newark, New Jersey and in the City of New York, New York on the dates and at the prices below:
Redemption Period Redemption Price
(both dates inclusive) (percent of par value)
-------------------------- -----------------------
June 15, 1986 to December 14, 1986 101%
December 15, 1986 and thereafter 100 1/2%
If on the date fixed for redemption sufficient monies are available to the Trustee to pay the redemption price plus interest accrued to the date of redemption, the Notes shall cease to bear interest and shall not be deemed to be outstanding from such date.
The back of each of the issued notes bore similar language.
In the summer of 1985, the Commission decided to redeem the notes prior to maturity. In keeping with the procedures established in its 1984 resolutions, the Commission entered into an escrow deposit agreement with Fidelity, effective September 26, 1985, for the redemption of the notes on June 23, 1986. Among its other terms, the agreement provided for the Commission to deposit with Fidelity an escrow sum sufficient to pay the redemption price and interest until the redemption date, and for Fidelity to publish a notice of redemption in accordance with the note terms.
*350 Although regular interest payments were mailed to registered noteholders on December 15, 1985, and June 15, 1986, neither those nor any other mailings informed the noteholders of the forthcoming early redemption. Fidelity did, however, provide the required notice by publication in The Star-Ledger, The New York Times, and The Wall Street Journal on May 23 and again on June 9, 1986. The June 3, 1986, issue of Moody's Municipal & Government Manual also contained the call notice.
As of December 15, 1986, the holders of approximately $10,000,000 of the notes still had not redeemed. A number of noteholders apparently made inquiries and complaints when they failed to receive their anticipated December 15, 1986, interest payments. Fidelity, at the Commission's request, mailed notice in early 1987 to those holders who had not yet redeemed, but declined the Commission's request to put the unredeemed funds in an interest-bearing account. The late-redeeming noteholders received the redemption price (101% of face value) and interest from June 15 to June 23, 1986, the date of redemption.
Plaintiffs filed separate actions in February and April 1987 on behalf of noteholders who allegedly had not learned of the redemption until after December 15, 1986. On various theories of negligence, conversion, breach of trust, constructive trust, and reformation, plaintiffs demanded that they be paid interest at the 7 7/8% rate from June 23, 1986, until the dates that they submitted their notes for redemption or other appropriate relief. The two actions were consolidated for trial.
At about the same time, a third plaintiff brought suit on behalf of late-redeeming noteholders in the United States District Court, Ellovich v. First Fidelity Bank, N.A., No. 87-650 (D.N.J. Mar. 2, 1988). That case asserted federal securities-law claims as well as state-law causes of action. The district court dismissed the federal claims on a finding that the offering statement did not fail to disclose any material facts with respect to the nature and consequences of the early-redemption *351 notice by publication. The court then dismissed the state-law claims for lack of subject matter jurisdiction, stating that "[t]he state court is the proper forum for the litigation of these causes of action." The Third Circuit Court of Appeals affirmed. Ellovich v. First Fidelity Bank, N.A., 862 F.2d 307 (1988).
The parties in the present actions then cross-moved for summary judgment on liability, based on a filed stipulation of facts. In a letter opinion, the Law Division held that "the notice provision clearly indicates that the newspaper publication method outlined would be the only type of notice given to the bond [sic] holders," and that "the failure to mail a notice to the plaintiffs when they could have, at the time they sent out interest checks," did not give rise to a cause of action. The Law Division granted summary judgment for defendants, finding that "the agreed upon notice by publication is binding on the plaintiffs and * * * such a method is not deficient as a matter of law." The court therefore entered judgment in favor of the Commission and Fidelity.
Before the Appellate Division, plaintiffs urged that the early-redemption notice by publication "was insufficient as a matter of law" and that the Commission and Fidelity had "converted [plaintiffs'] monies." They argued that the noteholders "had no power to negotiate with either the Commission or First Fidelity regarding the terms of the notes or the redemption provisions thereof," and that "[t]his is a classic example of a contract of adhesion." That was plaintiffs' first and entire reference to that theory of liability.
The Appellate Division adopted that theory. It reversed, holding that "a note or other security sold to the general investing public pursuant to standard form contractual provisions is a contract of adhesion"; that "[c]onsequently, if the security contains an unfair provision or the issuer fails to deal fairly with the investors, the issuer and its agents may be liable for any resulting damages"; and that "the failure * * * to give mail notice of the early redemption of the project notes was *352 unfair." Rudbart v. North Jersey Dist. Water Supply Comm'n, 238 N.J. Super. 41, 47, 568 A.2d 1213 (1990). The court reasoned that investment securities are generally "drafted by the issuer and presented to the purchaser on a take it or leave it basis," that the offering statements are "lengthy and difficult to understand," and that "members of the general investing public cannot reasonably be expected to understand the entire offering statement before deciding whether to purchase a particular security." Id. at 49, 568 A.2d 1213. Accordingly, courts should intervene "to afford protection to purchasers of securities from unconscionable contractual terms and other forms of overreaching by the issuers and their agents." Ibid. The Appellate Division went on to hold that "the notice by publication provided by defendants did not constitute fair notice of the early redemption," id. at 51, 568 A.2d 1213, and that "defendants did not show any legitimate business reason for failing to give notice by mail." Id. at 56, 568 A.2d 1213. The court thus reversed and remanded for the determinations of damages and their allocation as between the Commission and Fidelity. Id. at 57, 568 A.2d 1213.
We granted certification and the Commission's motion to supplement the record. We also granted leave to the State of New Jersey, the New Jersey Bankers Association, and the American Bankers Association to join as amici curiae.
II
Plaintiffs do not contend that the project notes are ambiguous, nor do they claim that the Commission or Fidelity committed fraud or violated federal or state securities laws. Ordinarily, then, contract law would make the terms of the notes fully binding on plaintiffs. That law, based on principles of freedom of contract, was well stated in Fivey v. Pennsylvania Railroad, 67 N.J.L. 627, 52 A. 472 (E. & A. 1902), in which the court enforced a release incorporated in a standard-form contract:
*353 A party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect. [Id. at 632, 52 A. 472 (quoting Rice v. Dwight Mfg. Co., 56 Mass. (2 Cush.) 80 (1848)).]
See also Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 386, 161 A.2d 69 (1960) ("the basic tenet of freedom of competent parties to contract is a factor of importance"); Friedrich Kessler, Contracts of Adhesion Some Thoughts About Freedom of Contract, 43 Colum.L.Rev. 629, 630 (1943) (hereinafter Kessler) (traditional contract principle is that "once the objective manifestations of assent are present, the author is bound").
If an agreement is characterized as a "contract of adhesion" however, nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality. See Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv.L.Rev. 1174, 1190-92 (1983) (hereinafter Rakoff). Although the term "has acquired many significations," id. at 1176, the essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the "adhering" party to negotiate except perhaps on a few particulars. Id. at 1177; 3 Corbin on Contracts § 559C (Supp. 1991); Kessler, supra, 43 Colum.L.Rev. at 632; Albert A. Ehrenzweig, Adhesion Contracts in the Conflict of Laws, 53 Colum.L.Rev. 1072, 1075 (1953); W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 Harv.L.Rev. 529, 530 (1971) (hereinafter Slawson). We have previously defined "contract of adhesion" in just those terms: "[a] contract where one party * * * must accept or reject the contract * * *." Vasquez v. Glassboro Serv. Ass'n, 83 N.J. 86, 104, 415 A.2d 1156 (1980). Such a contract "does not result from the consent of that party." Ibid; see also Slawson, supra, 84 Harv.L.Rev. at 530 (standard form contracts "are not, under any reasonable test, the agreement of the consumer or business recipient to whom they are delivered"). The distinct body of law surrounding contracts of adhesion represents the legal system's effort to determine *354 whether and to what extent such nonconsensual terms will be enforced. Rakoff, supra, 96 Harv.L.Rev. at 1230.
The project notes involved here unquestionably fit our definition of contracts of adhesion. That is, they were presented to the public on standardized printed forms, on a take-it-or-leave-it basis without opportunity for purchasers to negotiate any of the terms.[1] But the observation that the notes fit the definition of contracts of adhesion is the beginning, not the end, of the inquiry: we must now determine as a matter of policy whether to enforce the unilaterally-fixed terms of the notes.
We have discussed those considerations in a number of earlier cases. The seminal case is Henningsen, supra, 32 N.J. 358, 161 A.2d 69, in which we invalidated an automobile manufacturer's standard-form disclaimer of its implied warranty of merchantability. In justifying that deviation from ordinary contract-law principles, we noted that a car is "a common and necessary adjunct of daily life," id. at 387, 161 A.2d 69, that the disclaimer form was used by the manufacturers of virtually all American passenger cars, id. at 390, 161 A.2d 69, that the "gross inequality of bargaining position * * * is thus apparent," id. at 391, 161 A.2d 69, and that the disclaimer represented "a studied effort to frustrate" the legislative grant of implied-warranty protection. Id. at 404, 161 A.2d 69.
In Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 236 A.2d 843 (1967), we similarly invalidated a provision of a standardized real-estate-brokerage contract that obligated the seller to *355 pay a commission even if the buyer was financially unable or unwilling to complete the transaction. Relying on the "undue advantage" that arose from "monopolistic or practical control in the business transaction involved," id. at 553, 236 A.2d 843, we held that the offending contractual term would "thwart" the judicially-declared public policy of the State. Id. at 552, 555, 236 A.2d 843. Such a contractual provision accordingly is unenforceable "[w]henever there is substantial inequality of bargaining power, position or advantage between the broker and the other party involved." Id. at 555, 236 A.2d 843.
We applied similar principles in Shell Oil Co. v. Marinello, 63 N.J. 402, 307 A.2d 598 (1973), cert. denied, 415 U.S. 920, 94 S.Ct. 1421, 39 L.Ed.2d 475 (1974), to invalidate the termination provision of an oil company's lease and dealer agreement. We described the oil company as "the dominant party," and found that its relationship with its dealer "lacks equality in the respective bargaining positions"; moreover, a dealer who has operated the station for a period of years "cannot afford to risk confrontation with the oil company." Id. at 408, 307 A.2d 598. Because the parties' "grossly disproportionate bargaining power" had produced a "grossly unfair" term that contravened "the extant public policy of this State," we did not enforce that term. Id. at 408-09, 307 A.2d 598.
We again explored contracts of adhesion in Vasquez, supra, 83 N.J. 86, 415 A.2d 1156, in which we denied enforcement of a provision in a migrant worker's contract permitting eviction of a worker immediately on termination of his employment. We noted that contracts should be enforced where "the parties are in positions of relative equality and * * * their consent is freely given." Id. at 101, 415 A.2d 1156. However, we found that the migrant farmworker was in a position "analogous to that of a consumer who must accept a standardized form contract to purchase needed goods and services." Id. at 103, 415 A.2d 1156. We also found that the eviction terms of the standard-form contract conflicted with the demonstrated policy of the New Jersey courts and Legislature "in providing legal protection *356 for migrant farmworkers." Id. at 99, 415 A.2d 1156. Because the contract "[did] not result from the [worker's] consent," we invalidated its "unconscionable" eviction provision. Id. at 104, 415 A.2d 1156; see also Kuzmiak v. Brookchester, Inc., 33 N.J. Super. 575, 111 A.2d 425 (App.Div. 1955) (lease provision exculpating residential landlord from liability held contrary to public policy).
Thus, in determining whether to enforce the terms of a contract of adhesion, courts have looked not only to the take-it-or-leave-it nature or the standardized form of the document but also to the subject matter of the contract, the parties' relative bargaining positions, the degree of economic compulsion motivating the "adhering" party, and the public interests affected by the contract. Applying those criteria to the project notes, we find insufficient reason to invalidate the notice-by-publication term.
III
The three considerations that lead us to that conclusion derive primarily from the fact that the project notes were publicly-traded securities. First, no investor was under any economic pressure to buy the notes. The notes were not consumer necessities. Prospective investors could choose from a vast selection of alternative equity and debt investments, including bonds and notes with various call and notice provisions. They were not driven to accept the Commission's notes because of a monopolistic market or any other economic constraint. Accordingly, the Commission did not enjoy a superior bargaining position permitting it to dictate its own terms. In short, the principal justifications for invalidating terms of a contract of adhesion are simply not present in a fully open and competitive securities market. Professor Slawson has cogently explained that reality:
What economists call "perfectly competitive markets" (the markets for commodities or corporate securities, for example) automatically balance supply and *357 demand at a "market price," below which no buyer can hope to buy and above which no seller can hope to sell. A buyer for whom the products on such a market are essential buys them at prices and with other terms of sale that are adhesive, since he has no reasonable choice but to buy and, when he buys, no reasonable choice but to pay the prices and accept the other terms set by the market. Similarly, a seller for whom selling the product is essential sells at prices and other terms that are adhesive for him. But if the market is working free from improper influence, its lawmaking is legitimate. It is the mechanism through which society has implicitly chosen to enforce on buyers and sellers alike the prices and terms that meet the standards of supply and demand. Society has decided through its legitimate democratic processes that it wants those prices and terms imposed because theory teaches that they tend toward an optimum allocation of resources and are an incentive to efficiency. This decision serves as a standard of legitimacy, and since the contract is within this standard, it is legitimate and should be enforced. [Slawson, supra, 84 Harv. L.Rev. at 553-54.]
Cf. Madden v. Kaiser Found. Hosps., 17 Cal.3d 699, 131 Cal. Rptr. 882, 552 P.2d 1178 (1976) (where employee could select among several medical plans, some without arbitration provisions, arbitration provision of plan selected would be enforced against him).
Second, although securities are offered to the public on a take-it-or-leave-it basis, enforcement of their terms advances rather than contravenes well-established and important public policies. Securities are governed by Article 8 of the Uniform Commercial Code, N.J.S.A. 12A:8-101 to -408. See N.J.S.A. 12A:8-102; N.J.S.A. 12A:8-105(1). The Legislature has mandated that terms incorporated in such instruments shall be effective "[e]ven against a purchaser for value and without notice." N.J.S.A. 12A:8-202(1). That provision, unique to investment securities and unlike the general Uniform Commercial Code principle that "[a] person `knows' or has `knowledge' of a fact when he has actual knowledge of it," N.J.S.A. 12A:1-201(25), is designed to provide certainty and stability in the marketing of securities. Its purpose is explained in the Official Comment:
A purchaser must have some method of learning the terms of the security he is purchasing. The printing on the certificate or on the initial transaction statement ("ITS") is designed to notify the purchaser of those terms. If he purchases without examining the certificate or ITS, he does so at his peril, since *358 he is charged with notice of terms stated thereon. [U.C.C. § 8-202 cmt. 1 (1977).]
We have recently observed that "the U.C.C. represents a comprehensive statutory scheme that satisfies the needs of the world of commerce, and courts should pause before extending judicial doctrines that might dislocate the legislative structure." Spring Motors Distribs., Inc. v. Ford Motor Co., 98 N.J. 555, 577, 489 A.2d 660 (1985). The aim of Article 8 is to confer negotiability on securities; the statutory provisions should be implemented to ensure "`the freedom of transferability which is essential to the negotiability of investment securities.'" 8 Anderson, Uniform Commercial Code § 8-105:3, :4 (3d ed. 1985) (quoting E.H. Hinds, Inc. v. Coolidge Bank & Trust Co., 6 Mass. App. 5, 372 N.E.2d 259, 263 (Mass. App. Ct. 1978)). Subjecting the terms of Article 8 securities to continual judicial determinations of fairness would seriously impair the reliability and transferability of such instruments.[2]
Third, judicial review of the fairness of negotiable securities would be inconsistent with federal and state securities laws. Central to those statutes is the requirement of full disclosure of all material facts and the prohibition of fraudulent conduct in connection with the purchase or sale of securities. See 15 U.S.C.A. § 78j(b); N.J.S.A. 49:3-52(a) and (b). Both Congress and our Legislature have chosen to protect investors by assuring that they be given all materials necessary to make an informed decision; accordingly, the federal and state legislative schemes do not provide for governmental review judicial or otherwise of the risk, fairness, good sense, or other substantive qualities of the offered security. Introducing a judicial-fairness review would effectively reject those legislative judgments *359 in favor of a view that full disclosure does not provide adequate protection to an investor.[3] Similarly inappropriate is the Appellate Division's suggestion that terms of securities should be subject to a judicial-fairness review because the documents "are lengthy and difficult to understand." 238 N.J. Super. at 49, 568 A.2d 1213. The forms of documents are dictated by, and their sufficiency is reviewable under, the securities laws.
We are satisfied that in light of the considerations we have stated, the asserted unfairness of the notice provision is not sufficient to justify judicial intrusion. Notice by publication does not contravene or frustrate any legislative policy. Moreover, although such notice may be constitutionally insufficient in certain settings, see, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), plaintiffs have not demonstrated any established judicial policy against contractual provisions for notice by publication. We recognize that the Securities and Exchange Commission's recent guidelines for bond redemptions, SEC Exchange Act Release No. 23, 856 (Dec. 3, 1986), encourage notice by mail and that the Model Debenture Indenture Provisions of the American Bar Foundation, American Bar Foundation Corporate Debt Financing Project, Model Debenture Provisions All Registered Issues § 1105 at 68 (1967), also suggest that notice of early redemption should be given to registered holders by mail. Moreover, we have no doubt that notice by mail here would have been preferable. But those considerations are not of sufficient weight to overcome the policy considerations that *360 properly restrain judicial oversight of the terms of publicly-traded securities.[4]
We do not read Van Gemert v. Boeing Co., 520 F.2d 1373 (2d Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 364, 46 L.Ed. 2d 282 (1975), relied on by plaintiffs, as holding that a court may properly invalidate a notice-by-publication term of a security. In Van Gemert, holders of Boeing's convertible debentures challenged as unreasonable the published notice given by Boeing of redemption of the debentures. Although the plaintiffs argued that the indenture agreement was "in the nature of a contract of adhesion" and thus any "unconscionable features * * * are unenforceable as a matter of policy," id. at 1380, that court did not agree. Rather, it found that the newspaper notice was inadequate because the investors had not been adequately informed "by the prospectus or by the debentures" of the notice to be given. Id. at 1383. The court classified the limited scope of that holding in its later opinion after remand. See 553 F.2d 812 (1977). There the court stated that it had found "significant * * * the fact that the debentures did not explicitly set forth the type of notice [that the debenture holders] could expect" in the event of an early redemption, and accordingly had "held as a matter of law" what notice the debenture holders "were entitled to expect." Id. at 815. See also Meckel v. Continental Resources Co., 758 F.2d 811 (2d Cir.1985), in which the same court described the Van Gemert holding as follows:
Those debentures contained no indication as to the type of notice of redemption that was to be provided. It was the total lack of a notice provision in the debentures that we held necessary as a condition precedent to an imposition of a duty to provide "reasonable" notice. [Id. at 816.]
As we have already noted, plaintiffs here do not dispute that the notes and the Official Statement fully disclosed that notice *361 of redemption would be given by publication. If anything, Van Gemert suggests that such a fully disclosed term should be enforced.
We therefore conclude that although the project notes fit our literal definition of contracts of adhesion, plaintiffs are bound by the provision for notice by publication because of the unique policy considerations attendant on securities offerings.
IV
Having disagreed, then, with the Appellate Division's sole basis for its decision, we would ordinarily remand the matter to the Appellate Division for consideration of whether plaintiffs' complaint stated a cause of action for relief on any of the other theories pleaded, supra at 351, 605 A.2d at 684, such as negligence, conversion, or constructive trust. Because the case is now more than five years old, we believe it best to resolve those claims on the record before us. After oral argument, we afforded the parties and the amici the opportunity to file supplemental briefs on any theory of liability or defense previously pleaded.
Although we disagree with our concurring member, Judge Petrella, on the issue of whether the notice provisions of these notes should be enforced, we agree with that part of his factual analysis that demonstrates the overwhelming inequity of allowing Fidelity to notify its customers of the redemption date while keeping the other investors in the dark and, as a result, perhaps benefiting from the use of the retained money. Because the trial court granted defendants' motion for summary judgment, we must grant to plaintiffs all the inferences that are favorable in the circumstances of this case.
Judge Petrella has outlined that Fidelity wore many hats with respect to this transaction. As an underwriter, it earned income (although it undoubtedly incurred a risk) by subscribing to a percentage of the notes for resale to its customers or for its own account. In addition, it served as an indenture trustee, *362 which we take to mean that plaintiffs' money was to pass through Fidelity's hands as a stakeholder or escrow agent for the benefit of the noteholders. We believe that familiar principles of constructive trust apply to this latter function and entitle plaintiffs to at least a partial return of the interest earned on their money while it was retained by Fidelity.
Although plaintiffs' Appellate Division brief may inartfully describe their complaint as "establish[ing] a cause of action for conversion," the relief that they plainly sought under the first and third counts of the complaint established the theory of constructive trust as an alternative basis for relief. In their supplemental memorandum, plaintiffs asked the Court as an alternative to the 7 7/8% interest under the notes, that they be awarded the "interest on such [unredeemed] funds" by virtue of a general duty of a trustee to invest funds of a beneficiary. For while plaintiffs sought to "reform the terms of the notes issued to require notice by mail," they also sought to "impos[e] a constructive trust upon the unclaimed funds with all interest accrued thereon." With all of the favorable inferences that we must accord to plaintiffs' proofs, their complaint surely sets forth a claim to at least a partial return of any interest earned on these funds. Fidelity asserts that it deposited those funds in a non-interest-bearing account. There is no such thing as a non-interest-bearing account, for even those accounts that are denoted "non-interest-bearing" generate money for someone. For a bank, it might mean a change in margin requirements. The amici, American Bankers Association and New Jersey Bankers Association, make reference to the "float" on the unredeemed funds. Of such things we do not know but the clear implication is that interest was earned on those funds. We do know that in the companion litigation in the United States District Court, plaintiffs contended that the defendants' failure to state that the bank, not the investors, would earn interest on funds remaining unclaimed after any optional redemption constituted a material misrepresentation in violation of SEC Rule 10b-5.
*363 The district court concluded as a matter of law that Rule 10b-5 did not require the bank to disclose the fact that it would earn interest on the unclaimed deposits. That the bank was not required by federal law to disclose that fact does not entitle it to retain all the interest earned on the funds.
The Law Division misperceived plaintiffs' claims to be limited to the demand that they be paid interest at the 7-7/8% interest rate from June 23, 1986, until they submitted their notes for redemption. As plaintiffs argued in their Appellate Division brief, all that need be established on those counts of the complaint asserting "conversion" of the funds was that "to allow either the Commission or Fidelity to benefit as a result of their failure to provide adequate notice of the redemption to the noteholders" would be unjust. (Emphasis added). Plaintiffs pointed out that Fidelity had held the escrow account "as a trust fund separate and apart from all other funds of the Commission or of the escrow account of First Fidelity for the sole benefit of the prior noteholders [holders of the 1984 project notes]."
As we have repeatedly emphasized, the concept of a constructive trust "`is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should not belong to them.'" Bron v. Weintraub, 42 N.J. 87, 96, 199 A.2d 625 (1964) (quoting Latham v. Father Divine, 299 N.Y. 22, 85 N.E.2d 168, 170 (1949)). In the circumstances of this case, there can hardly be any doubt that this was a highly unusual situation in which one of the defendants was aware that it was holding other people's money as a result of selective unfairness. Deposition testimony of Alex Williams, Executive Vice-President of Fidelity, revealed that the bank's investment department gave written or oral notice to its customers prior to the June 23, 1986 call date that the notes had been called. This notice was given whether or not those customers had safe-keeping accounts with the bank. Williams stated that Fidelity felt it would be "good business" to inform its customers. According to Williams, Fidelity took this action essentially *364 because the bank wanted to sell new bonds to its customers, to continue good customer relations, and to insure that its customers received notice. How far in advance of the June 23, 1986 call date Fidelity began notifying its customers is unclear. Williams also expressed the opinion, in response to the questions of the bank's attorney, that Fidelity maintained the list of purchasers of the project notes in connection with its underwriting activities for the issuance of the notes. When asked if he could have obtained that information from the trust department, he speculated that the trust department would have said "[i]t would have been a conflict of interest on their part. I don't know what they would have said because we didn't ask for it."[5] If as the amici, Bankers' Associations suggest, an agreement on the "float" may have been part of the transaction between Fidelity and the Commission, a further tension in Fidelity's duties would be created.
Charles Hoos, Senior Vice-President of Fidelity, testified that he was in charge of the corporate trust department and was aware that Fidelity had elected to give written notice of the redemption of the notes to customers of its investment department. Fidelity took the position before the Law Division, and in a September 9, 1988 letter brief following the oral argument there, that nothing in the record indicated that the personal notifications given by the investment department of the bank were in any way a result of the bank's position as trustee. It pointed to the deposition testimony of Fidelity's personnel that the investment department routinely telephones customers with respect to any major developments as to securities it sold. Fidelity took the position that the deposition testimony demonstrated that a "Chinese wall" existed between the trust department *365 and the investment department that was kept intact during this transaction.
As trustee under the note issue (as well as in the other capacities) Fidelity presumably received significant fees for its responsibilities, which in part included protecting the rights of noteholders. In that fiduciary capacity, for which it was paid, Fidelity now insists that it had no obligation to notify any noteholders in any fashion other than by the method of publication as set forth in the Commission's resolution. On the other hand, Fidelity admits that in its capacity as a bank, its investment department, which also receives fees for its services, including protection of customers, apparently undertook to give special notice to its own customers past and potential, with no obligation to do so. See Rudbart, supra, 238 N.J. Super. at 51 n. 4, 568 A.2d 1213. Thus, Fidelity argues that it can demand the benefits of both worlds, but without any additional obligations, particularly toward those who did not purchase the notes through it.
We need not debate whether an indenture trustee may be held to any fiduciary duty beyond that spelled out in the trust agreement. It is one thing not to surcharge a trustee for such an omission; it is quite another to let a trustee profit unfairly from a lack of fair dealing with the beneficiaries of its trust. The fact is that Fidelity decided to notify selectively its own customers. It acted in a manner that exhibited at least a lack of fair dealing and possibly a lack of good faith. This is a compelling case in which to apply the fairness doctrine because Fidelity was aware of the noteholders' lack of notice but acted for only its own customers. Although Fidelity acted in multiple capacities it should not be allowed to assume duties with one hand and to reject them with the other to its own unjust enrichment.
In unjust-enrichment cases courts may presume that the parties "`intended to deal fairly with one another [and will] employ the doctrine of quantum meruit [] or equitable remedies *366 such as constructive or resulting trusts' in order to ensure that one party has not been unjustly enriched, and the other unjustly impoverished, on account of their dealings." Carr v. Carr, 120 N.J. 336, 352, 576 A.2d 872 (1990) (quoting Kozlowski v. Kozlowski, 80 N.J. 378, 390-91, 403 A.2d 902 (1979) (Pashman, J., concurring)). That principle of fair dealing pervades all of our contract law. See Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 207 A.2d 522 (1965). Although that principle will not alter the terms of a written agreement, Marini v. Ireland, 56 N.J. 130, 143, 265 A.2d 526 (1970), allowing plaintiffs some portion of the return on their withheld funds does not in any sense alter the written terms of the agreement between these parties. Here, the bank knew or should have known that a large percentage of the noteholders would fail to receive notice of the early redemption, and knew exactly who they were. Nonetheless Fidelity did not take any steps to minimize the consequences of that failure, except to notify only its clients.
We can think of no fair reason, then, for holding that either defendant should be entitled to all of the income on plaintiffs' unredeemed funds. Surely, Fidelity recognized that it was a sound business practice and therefore fair dealing to assume that the customers to whom it sold a share of the notes should receive additional notice of the redemption. This multi-hatted trustee cannot simply pick and choose among those with whom it had contractual relationships without invoking the law's concern for "bringing about justice without reference to the intention of the parties." St. Paul Fire & Marine Ins. Co. v. Indemnity Ins. Co. of N. Am., 32 N.J. 17, 22, 158 A.2d 825 (1960). There might be a case in which administrative inconvenience in calculating interest to noteholders who straggle in might justify a denial of any interest. But this is not such a case. The sums involved here were, by the Commission's own account, described in depositions as "astronomical."
In short, this case was far from ripe for summary disposition. No affidavit before this Court has resolved the question of *367 whether a profit was made on the unclaimed funds (once as high as $25,000,000). Clearly, if the Commission shared any of the benefits with Fidelity it should be required to disgorge that amount. The pleadings and the depositions set forth an actionable claim for some equitable share of any income earned on plaintiffs' funds. Because the liability we impose results from Fidelity's decision to prefer its customers over other noteholders so that its noteholders could redeem by June 23, 1986, that date should be the beginning point in calculating profit earned on the unclaimed funds. Plaintiffs suggest that the trial court should allow some reasonable time, after the June 23, 1986 redemption date, within which to expect that the funds would have been invested. Because we impose no duty on the fiduciary for failure to invest the funds, the use of the redemption date will simplify the remand. All that need be done is to determine what profit accrued to whom from the retention of plaintiffs' funds. Fidelity should be allowed all of its reasonable expenses but for any possible benefits it has unjustly accrued. Obviously, as the Commission points out, the funds had to be kept in liquid or very "short-term" investments or "overnights." We expect that the parties can readily develop the record necessary to conclude the matter with respect to this issue. We do not predicate our holding on 12 C.F.R. § 9.10 or N.J.S.A. 17:9A-35(D), although we note that both appear to assume that unclaimed fiduciary funds will not have been held uninvested, will reflect "short-term" market rates, and will allow for recognition of the fiduciary's cost or compensation for the services. Nor do we intend to create in this case, at this late date, a cause of action for breach of such directives. We intend only to remedy any unjust enrichment.
If the proofs disclose that the funds lay fallow and no benefit accrued to any of the defendants, then the court should dismiss the claims. We thus foresee no need for the trial court to have to resolve any issues of indemnification. By definition, it would appear that Fidelity will have suffered no loss (and needs no indemnification) when it disgorges only profit unjustly earned *368 on plaintiffs' funds. In addition, the court may choose to fashion a class remedy without requiring any further administrative effort by defendants, and determine a reasonable allocation, even if by rough measure, among the plaintiffs' claims.
The judgment of the Appellate Division is reversed. The matter is remanded to the Law Division for further proceedings in accordance with this opinion.
The Chief Justice, Justices Handler and O'Hern, and Judges Gaulkin and Keefe join in Parts I, II, and III of the opinion. The Chief Justice, Justices Handler and O'Hern, and Judge Petrella join in Part IV.
Judge Petrella dissents from Parts I, II, and III of the opinion and files a separate opinion.
Judge Gaulkin files a separate opinion in which Justice Clifford and Judge Keefe join on the issue in Part IV of the opinion. They would enter judgment for the defendants.
Justice Clifford files a separate dissenting opinion and would enter judgment for the defendants for the reasons stated in his separate opinion.
PETRELLA, P.J.A.D. (temporarily assigned), concurring in part and dissenting in part.
Because I am unable to agree fully with the Court's conclusions, I concur in part IV of the opinion and vote for that result, but I dissent from parts I through III. In my view, the "contract" under which the registered bearer notes were purchased by individuals or institutions is one of adhesion. That the notice provisions of the contract are not necessarily "unconscionable" does not resolve the issue of whether those provisions, if patently unfair to registered note holders under the circumstances, warrant judicial intervention.
In simplest terms a contract of adhesion, looked at from the dominant party's view, is merely one in which one party "adheres" to the terms which that party proposes, and does not *369 allow any realistic change or changes in the contract. See 3 Corbin on Contracts § 559A through I (Supp. 1991); Rakoff, Contracts of Adhesion: An Essay In Reconstruction, 96 Harv.L.Rev. 1174 (1983). The non-dominant party is left with little, if any, choice and must, if desiring to contract, adhere to the contract terms with but minimal, if any, bargaining ability. Black's Law Dictionary (5th ed. 1979), defines the term "adhesion contract" as follows:
Standardized contract form offered to consumers of goods and services on essentially `take it or leave it' basis without affording consumer realistic opportunity to bargain and under such conditions that consumer cannot obtain desired product or services except by acquiescing in form contract. Distinctive feature of adhesion contract is that weaker party has no realistic choice as to its terms. * * * Not every such contract is unconscionable. [Id. at 38 (citations omitted).]
I disagree with the majority's notion that it is significant that investors were not under any economic pressure to buy the project notes. Contrary to the majority opinion's view, the fact that consumer necessities are not involved should not be determinative of the issue. Contracts of adhesion are not limited to contracts for necessities or policies of insurance unless the Legislature, or perhaps a court, so declares based on stated policy reasons. In my view, there is neither viable reason nor necessity to exclude securities from contract scrutiny. Hence, applying definitional terms, investment securities of the type involved in this case are contracts of adhesion and should be treated as such unless specifically provided otherwise by statute.
Investment securities of a New Jersey issuer, including the type involved in this case, are subject to Article 8 of the New Jersey Uniform Commercial Code (UCC) as in effect at the pertinent times involved in this litigation. N.J.S.A. 12A:8-106[1] (as in effect prior to January 16, 1990), stated:
*370 The validity of a security and the rights and duties of the issuer with respect to registration of transfer are governed by the law (including the conflict of law rules) of the jurisdiction of organization of the issuer.
The validity of the project notes issued on June 15, 1984, and the rights of the issuer regarding registration of transfer are not at issue here. The issue is the fairness or reasonableness of notice to a registered note holder solely by publication on May 23, 1986, and June 9, 1986, in two newspapers published in New York City, New York, and one newspaper published in Newark, New Jersey.[2] This fairness-of-notice concept is readily encompassed within the ambit of the "duties of the issuer with respect to registration of transfer," which are determined as to this issuer (the Commission) and these project notes by the laws of this jurisdiction.
It is unnecessary to conclude that the notice by publication provision, despite any inherent unfairness or unreasonableness, is unconscionable. The organic law of this State and its statutes and case law apply, including the provisions of Article 1 of the UCC (generally applicable to all the UCC articles, except where stated to the contrary, see A. Abrams, Introductory Commentary to N.J.S.A. 12A:1-101 et seq.). See N.J.S.A. 12A:1-102.
N.J.S.A. 12A:8-202 does not limit inquiry into the issue of the fairness of notice provisions, particularly in light of the pertinent *371 language of N.J.S.A. 12A:8-106, which, as in effect at the pertinent times involved, applied New Jersey law to this issue of notes and the rights and duties of this issuer. N.J.S.A. 12A:8-202 makes various terms of the security applicable "[e]ven against a purchaser for value and without notice." The thrust of that section is to establish the right of an issuer to incorporate terms by reference to other documents or legal authorities. It does not affect challenges to the validity of the issue or security. N.J.S.A. 12A:8-202 recognizes the applicability of a state "constitution, statute, ordinance, rule, regulation, order or the like to the extent that the terms so referred to do not conflict with the stated terms."[3]
Certainly, application of the law of fair notice does not conflict with the stated terms of these securities. Publication should not be construed as a stated term, nor as being to the exclusion of fair notice to registered note holders, nor as inconsistent with mailed notice. To expect that the absence of a reference to any of the cited authorities would mean other provisions of law have been ceded to the exclusive discretion of private law-making, i.e., contract law, does not seem logical. Indeed, this section of the UCC has been interpreted as dealing with rights against the issuer, UCC § 8-202 (official comment). Because I would not construe Article 8 of New Jersey's UCC as limiting review of the fairness of the notice provisions for registered note holders whose names and addresses are readily ascertainable, I see no impediment to applying established principles of law to the notice.
*372 It needs to be emphasized that this appeal does not involve the financial provisions of the notes, the validity or genuineness of the notes, negotiability, or defenses of the issuer.
There is no basis in this record, based apparently on a "Stipulation of Facts,"[4] to conclude that the Appellate Division's determination in this case of unfair notice to registered note holders would have any adverse effect on the issuance of municipal securities. Indeed, since the January 19, 1990, decision of the Appellate Division, nothing has been brought to the attention of this Court regarding any untoward consequence of that decision on the issuance of tax exempt securities in this state, other than some ipse dixit speculative arguments. It was essentially conceded at arguments before the Appellate Division and this Court that, as a practical matter, what happened in this case would not be repeated because written notice to all holders of registered securities is now the general rule, as well as the strong suggestion in "guidelines" (with virtually the force of regulations) of the Federal Securities and Exchange Commission. See 238 N.J. Super. at 52, 568 A.2d 1213. The record before the Appellate Division demonstrated a total lack of fair dealing with respect to the registered note holders as to the adequacy of the notice given. Van Gemert v. Boeing Co., 520 F.2d 1373 (2d Cir.), cert. denied, 423 U.S. 947, 96 S.Ct. 364, 46 L.Ed.2d 282 (1975) (involving convertible debentures), and its progeny, on which the Appellate Division relied (see 238 N.J. Super. at 53-56, 568 A.2d 1213), present persuasive authority.
*373 The "Preliminary and Final Official Statement" dated May 16, 1984, on which defendants rely to support their claim that there was adequate notice and that plaintiffs individually, as well as all members of the class of registered note holders that they represent, should be bound by the contract, contains a provision somewhat inconsistent with defendants' argument. It provides that the "Official Statement is not to be construed as a contract or an agreement between the Commission and the purchaser or holder of any Notes...."[5]
If the offering statement is not considered to be part of any contract, then all that the purchaser is left with is the "fine print on the back of each note." 238 N.J. Super. at 44, 568 A.2d 1213. The record fails even to disclose whether plaintiffs received the offering statements before the purchase of the securities. See Id. at 49 n. 3, 568 A.2d 1213.
The Law Division judge appeared troubled at oral argument by the fact that First Fidelity Bank (First Fidelity) furnished its own customers with additional notice either by telephone or mail of the calling of the notes. The bank's attorney argued *374 then, and in a post-argument submission, that First Fidelity's trust department was separate and distinct from its investment department, was housed in a separate building, and was merely an "indenture trustee" and not a "common-law trustee." At that time, First Fidelity relied on a federal statute, presumably 15 U.S.C.A. § 77ooo(a)(1), and Meckel v. Continental Resources Co., 758 F.2d 811, 816 (2d Cir.1985). Counsel also argued that the bank did not have fiduciary responsibilities.[6]
Deposition extracts submitted to the Law Division judge after oral argument (partially in response to deposition references in plaintiffs' brief) included portions of the testimony of Alex Williams, Executive Vice-president of First Fidelity, to the effect that at some point in 1986 the bank's investment department gave written or oral notice of the call of the notes to its customers whether or not those customers had safe-keeping accounts with the bank, and that this was done prior to the June 23rd call date. He said that First Fidelity felt that it would be "good business" to inform its customers. The reasons given by Williams for First Fidelity's actions were essentially that the bank wanted to sell new bonds to its customers, to continue good customer relations, and its concern that its customers might not receive notice. It is unclear how far in advance First Fidelity commenced notifying its customers of the June 23, 1984, call date. Williams also expressed the opinion, in response to the questions of the bank's attorney, that First Fidelity maintained the list of purchasers of the project notes in connection with its underwriting activities for the issuance of the notes. When asked if he could have obtained that information from the trust department, he speculated that the trust department would have said "[i]t would *375 have been a conflict of interest on their part. I don't know what they would have said because we didn't ask for it."[7]
Charles Hoos, Senior Vice-president of First Fidelity, testified that he was in charge of the corporate trust department and was aware of the fact that First Fidelity elected to give written notice of the redemption of the notes to customers of its investment department.
The resolution adopted by the Commission on April 25, 1984, defined "fiduciary" as "the Trustee or Paying Agent." In section 504 of that resolution, as well as other sections, the trustee was charged with holding monies "in trust." Similar language appeared in Article VI of that resolution, entitled "The Fiduciaries," and also in a supplemental resolution dated May 23, 1984. Although the record does not contain the resolution appointing the bank as trustee or any document showing the trustee's actual acceptance of that appointment, it is undisputed that the bank acted not only as indenture trustee, and accepted responsibility under the resolutions, but also acted as a managing underwriter, Paying Agent, Registrar, and eventually Escrow Agent, and was presumably paid for each activity. A September 1, 1985, Escrow Deposit Agreement between the Commission and First Fidelity entered into in connection with First Fidelity being named "in its capacity as trustee" as "Escrow Agent" regarding the defeasance of the lien of the notes is attached as "Exhibit G" to the stipulation of facts.
First Fidelity took the position before the Law Division, and in a September 9, 1988, letter brief following the oral argument there, that nothing in the record indicated that the personal *376 notifications given by the investment department of the bank were in any way a result of the bank's position as trustee. It pointed to the deposition testimony of First Fidelity's personnel that the investment department routinely telephones customers with respect to any major developments as to securities it sold. First Fidelity took the position that the deposition testimony demonstrated that a "Chinese wall" existed between the trust department and the investment department that was kept intact during this transaction. It also claimed a narrower scope of responsibility as an indenture trustee as referred to in Meckel v. Continental Resources, supra, 758 F.2d at 816 (duties limited to duties set forth in indenture).
However, it was not First Fidelity's trust department that was appointed as trustee, but rather the bank. Indeed, if, as suggested in Meckel, an indenture trustee does not have a trustee's duties of undivided loyalty and "is more like a stakeholder whose duties and obligations are exclusively defined by the terms of the indenture agent," ibid., there is no need for the employment of a trust department and no need to hide behind one side of a "Chinese wall." First Fidelity was not only one of the underwriters, but it was one of the managing underwriters of this issue. It was also the registrar/paying agent, escrow agent, and the indenture trustee for the project notes. Rudbart, supra, 238 N.J. Super. at 44, 568 A.2d 1213.
As trustee under the note issue (as well as in the other capacities) First Fidelity presumably received significant fees for its responsibilities, which in part included protecting the rights of note holders. In that capacity, for which it was paid, First Fidelity now says it had no obligation to notify any note holders in any fashion other than by the method of publication as set forth in the Commission's resolution. On the other hand, First Fidelity argues that in its capacity as a bank, its investment department, which also receives fees for its services, including protection of customers, apparently undertook to give special notice to its own customers past and potential, with no obligation to do so. See Rudbart, supra, 238 N.J. Super. at 51 *377 n. 4, 568 A.2d 1213. Thus, First Fidelity argues that it can demand the benefits of both worlds, but without any additional obligations, particularly toward those who did not purchase the notes through it.
Although First Fidelity has a trust department, an investment department, and other departments or functions, it was First Fidelity that was appointed trustee, not one of its departments. It had fiduciary responsibilities under the terms of the resolutions, and those were not negated by federal law or a lesser standard of trusteeship.[8] The bank is charged, or should be charged here, with knowledge of all of the actions of all its departments and subdivisions, whether or not one department had actual contact with another. The fact is that First Fidelity elected to notify selectively its own customers. It acted in a manner that exhibited at best a lack of fair dealing and at worst, bad faith. It should not be allowed to assume duties with one hand and to reject them with the other. This case is a more compelling one to apply the fairness doctrine because First Fidelity knew about the situation with respect to note holders, but acted for only its own customers. It acted in multiple capacities and should not be allowed to claim a judicially sanctioned split personality and hide behind an artificially created "Chinese wall" that it alternatively erects or dissolves based on whether it claims a trust duty, a stakeholder's duty, or some other function. It was First Fidelity, the entity, that assumed multiple positions and was appointed with the responsibility of indenture trustee, however defined. The existence of separate divisions for business purposes does not allow it to act in a disparate manner when it knows the names and addresses of registered note holders who are both customers and noncustomers. *378 See Buonviaggio v. Hillsborough Township Committee, 122 N.J. 5, 15, 583 A.2d 739 (1991).
The majority opinion chooses to ignore the fact that in the related case of Ellovich v. First Fidelity Bank, N.A., N.J., No. 87-650 (D.N.J. 1988), it was established that prior to issuance of the offering statement, First Fidelity's counsel suggested that notice of early redemption be given by mail rather than publication, based on his understanding that that was the usual form of notice to holders of registered securities. Rudbart, supra, 238 N.J. Super. at 53 n. 5, 568 A.2d 1213. Moreover, the "Stipulation of Facts" submitted in connection with the summary judgment motions stated: "Prior to the publication of the notices, Julie Saloveitch Miller, Administrator of the bond offering at First Fidelity, discussed the notice to be given with Gerald Volpe, Comptroller of the Commission." The Commission insisted on the publication notice. Ibid. Nonetheless, nothing requires that the published notice had to be the exclusive method of notice. There is also a reference in the argument before the Law Division on September 2, 1988, and in submitted deposition testimony, to a discussion between the representatives of the Bank and the Commission about the type of notice to be given just before the time of notice by publication. To compound the problem, First Fidelity refused to deposit in an interest-bearing account the sums due the note holders who had not sought timely redemption even after the Commission had requested that action after the redemption date.[9]
That a public entity may have participated in what resulted in unfair notice should not be a basis to excuse such action merely because rate payers may be affected. When dealing with the public, "government must `turn square corners' rather than exploit litigational or bargaining advantages that might otherwise be available to private citizens." W.V. Pangborne & Co. *379 v. New Jersey Dep't of Transp., 116 N.J. 543, 561, 562 A.2d 222 (1989). The government must act fairly and "with compunction and integrity." Id. at 562, 562 A.2d 222 (quoting F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 427, 495 A.2d 1313 (1985)).
The Appellate Division decision is essentially limited to the notice provisions under the unique circumstances of this case. It does not affect the financial terms of the project notes in any way. Moreover, with that limitation highlighted, it is clear that the Appellate Division holding regarding the lack of fairness of limiting the notice provisions of the notes to publication in unspecified (in the prospectus or note) newspapers circulating in New York City and Newark[10] and has nothing to do with:
(1) the financial terms of the notes;
(2) the sale and issuance of the notes;
(3) the risk of investment [That hardly includes the risk that the issuer would forget about the registered owner];
(4) the price or pricing of the security;
(5) the operation of the issuer or the underwriters; or
(6) damage or loss to the issuer or the bank [the cost of any written notice to individual registered bond holders would be de minimis and could even be deducted from interest after the redemption date].
In actuality there is no real burden placed on the securities industry by a requirement that fair notice be given to note holders in the issuance of registered securities. What occurred here was an atypical situation. The limited record before us indicates that with respect to all other issues, and particularly future tax exempt issues, individual notice to the registered security holders is the general practice, encouraged and in effect required by the SEC.
Simply stated, fair dealing should be required. Cf. New Brunswick Savings Bank v. Markouski, 123 N.J. 402, 423-426, *380 587 A.2d 1265 (1991) (actual notice of an execution sale must be provided to judgment creditors whose names and addresses are reasonably ascertainable). Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 182, 425 A.2d 1057 (1981) (implied conditions include fairness and justice); Bak-a-Lum Corporation of America v. Alcoa Building Products, Inc., 69 N.J. 123, 129-130, 351 A.2d 349 (1976) (implied covenant of good faith and fair dealing in every contract).
Although I differ with some of the reasoning in the Court's opinion, I concur in the result reached in Part IV. However, my preference would be to affirm substantially for the reasons expressed by the Appellate Division as reported at 238 N.J. Super. 41, 568 A.2d 1213 (App.Div. 1990).
GAULKIN, P.J.A.D. (temporarily assigned), concurring in part and dissenting in part.
Part III of the per curiam opinion concludes that, although the project notes are contracts of adhesion, "plaintiffs are bound by the provision for notice by publication because of the unique policy considerations attendant on securities offerings." Ante at 361, 605 A.2d at 689. But Part IV then gives plaintiffs what the notice provision denies them: interest after the published redemption date. I join in Part III but dissent from the patently contradictory holding of Part IV.
The law and policy considerations recited in Part III persuasively support the conclusion that "the asserted unfairness of the notice provision is not sufficient to justify judicial intrusion." Ante at 359, 605 A.2d at 688. However, in Part IV, the Court holds that such an intrusion is warranted because of the "overwhelming inequity" in Fidelity's "perhaps benefiting from the use of the retained money." Ante at 361, 605 A.2d at 690. That inconsistency is neither overcome nor explained away by the Court's application without any invitation or argument of the parties of labels of constructive trust and "fair dealing."
*381 The Court acknowledges that the "principle [of fair dealing] will not alter the terms of a written agreement." Ante at 366, 605 A.2d at 692. The same must be said of constructive trust principles: a party to a contract cannot be said to be unjustly enriched by a benefit granted by an otherwise enforceable term of the agreement. The Court says, however, that "allowing plaintiffs some portion of the return on their withheld funds does not in any sense alter the written terms of the agreement between these parties." Ante at 366, 605 A.2d at 692. Saying that does not make it so. The project notes provide that they "shall cease to bear interest" from the published redemption date, yet the Court awards plaintiffs an "equitable share of any income earned on [their] funds" after the redemption date. Ante at 366, 605 A.2d at 692. The Court has altered or negated the contractual term.
The Court implicitly recognizes that constructive trust or fair dealing principles could not overcome the contractual terms solely on a showing that the stakeholder, Fidelity, earned money on the unredeemed proceeds. Rather, the Court bases its finding of unjust enrichment on the fact that "Fidelity was aware of the noteholders' lack of notice but acted for only its own customers." Ante at 366, 605 A.2d at 692. Why that should trigger the cause of action is unexplained. The Court does not suggest that Fidelity's investment department used inside information or otherwise acted improperly in notifying its customers of the redemption; nor does the Court hold that Fidelity's trust department had any fiduciary duties beyond those spelled out in the documents. Ante at 366, 605 A.2d at 692. If each department acted appropriately, how is it that their combined conduct was inequitable? Would the unfairness perceived by the Court evaporate if Fidelity had not informed even its own customers of the early redemption?
Simply stated, the Court's award of interest after the published redemption date cannot be squared with the purported enforcement of the contract. Melding the two holdings is not only logically unsustainable, it creates a new uncertainty about *382 the rights and liabilities of parties to securities transactions. Indeed, the Court's instructions for the remand proceedings, ante at 367-368, 605 A.2d at 692-693, indicate how unclear the obligations of Fidelity and the Commission remain even now. As Part III of the per curiam opinion convincingly demonstrates, avoidance of such uncertainty is one of the "unique policy considerations" justifying enforcement of the contract as written. Those policy considerations should at least restrain the Court from announcing rights and duties the litigants have never argued.
I would reverse the judgment entered in the Appellate Division and reinstate the Law Division judgment.
Judge KEEFE joins in this opinion.
CLIFFORD, J., dissenting.
On the only issue raised in the petition for certification and addressed at oral argument, the plurality opinion declares that the Appellate Division erred in "holding that the subject securities constitute a contract of adhesion." Ante at 348, 605 A.2d at 683. The opinion then muddies the waters by acknowledging, as surely it must, that "[t]he project notes involved here unquestionably fit our definition of contracts of adhesion," ante at 354, 605 A.2d at 686, a concession repeated ante at 360, 605 A.2d at 689. And so the plurality creates a little paradox, the jurisprudential equivalent of saying that even though something walks like a duck and quacks like a duck, it must be a donkey.
Aside from the distracting confusion generated by the plurality's foregoing flip-flop, I agree with so much of the opinion as holds that the notice provision is not unfair to the holders of the notes. Notice of redemption effected by publication was within the reasonable expectations of the noteholders, because the notice provision was legibly printed in the offering statement and investors are charged by N.J.S.A. 12A:8-202(1) with notice of terms set forth in the offering statement. The notice *383 provision was not unconscionable or against public policy or unduly oppressive.
Beyond all of that, I join in Judge Gaulkin's dissent from Part IV of the plurality opinion.
To recapitulate: I agree with Judge Petrella that the project notes are contracts of adhesion. I agree with the plurality that the notice provision is not unfair. And I agree with Judge Gaulkin's dissent from Part IV.
I would reverse the judgment of the Appellate Division and reinstate the Law Division's judgment in favor of defendants.
For reversal; remandment Chief Justice WILENTZ, Justices HANDLER and O'HERN, and Judge PETRELLA 4.
For reversal; reinstatement Justice CLIFFORD, and Judges GAULKIN and KEEFE 3.
PETRELLA, Judge, concurring in remandment; dissenting in part 1.
NOTES
[1] The Commission and the underwriters negotiated the terms of the notes. However, although the underwriters presumably sought to enhance the attractiveness of the offer to prospective purchasers, the record does not indicate whether the negotiation addressed the interests of individual noteholders with respect to the form of early redemption notice or otherwise. See Lawrence E. Mitchell, The Fairness Rights of Corporate Bondholders, 65 N.Y.U.L.Rev. 1165, 1183 (1990). We thus reject defendants' suggestion that the noteholders had in fact negotiated the notice provision through the underwriters.
[2] Subjecting Commission notes to a judicial-fairness review could also undermine the statutory assurance that "[all] * * * provisions" of such obligations are "valid and legally binding contracts * * * enforceable by any * * * holder or holders." N.J.S.A. 58:5-48.
[3] The ability of the courts to conduct such evaluations of securities is, at the very least, questionable. Some state securities laws do provide for a fairness review, commonly performed by a specially-constituted executive commission prior to the issuance of a security. That procedure not only provides some degree of expertise and consistency but also assures that an investor can still rely on the express terms of the security once issued. See Louis Loss, Fundamentals of Securities Regulation 13 n. 21 (1988).
[4] We also note that in the special circumstances of this case, invalidation of the "notice" provision might have a peculiarly unfortunate effect: the Commission, a public agency, and hence its ratepayers, might be required to pay interest on an escrow fund that was not under its control and that may have generated no income for the Commission.
[5] Williams's statement is premised on principles of fiduciary law that Fidelity at other points disavows, despite its designation as "trustee," the fact that under the resolutions it was holding funds "in trust," and the heading "The Fiduciaries" in the Commission's resolution of April 25, 1984, which Fidelity apparently accepted. Moreover, the September 1, 1985, Escrow Deposit Agreement refers to the bank "in its capacity as trustee."
[1] The note holders here are governed by the provisions of that section in effect prior to a 1990 amendment. That section was amended by L. 1989, c. 348, § 7, effective January 16, 1990, to read:
The law (including the conflict of laws rules) of the jurisdiction of organization of the issuer governs the validity of a security, the effectiveness of registration by the issuer, and the rights and duties of the issuer with respect to:
(a) Registration of transfer of a certificated security;
(b) Registration of transfer, pledge, or release of an uncertificated security; and
(c) Sending of statements of uncertificated securities.
This appeal does not involve the validity of the security. It involves the effectiveness of registration by the issuer as well as the rights and duties of the issuer with respect to transfer of a certificated security.
[2] The call notice was also published in Moody's Municipal & Government Manual on June 3, 1986.
[3] The legal opinion attached to the offering statement recites, among other things, that the "notes have been duly and validly authorized and issued in accordance with the Constitution, the Act and the applicable statutes of the State of New Jersey and in accordance with the Resolution; ..." It goes on to state: "The enforceability of rights or remedies with respect to the Notes and with respect to the Contracts may be limited, however, by bankruptcy, insolvency, moratorium or other laws heretofore or hereby enacted affecting creditors' rights or remedies; ..." That is an acknowledgement that the notes are subject to law, including case law.
[4] The so-called stipulation submitted in plaintiffs' appendix bears no signatures and does not even contain a signature block for the Commission. Perhaps that was because the Commission did not participate in the proceedings before the trial court until a default was belatedly vacated before argument on the cross-motions for summary judgment. The Commission did not participate in the appeal before the Appellate Division. See 238 N.J. Super. at 47 n. 2, 568 A.2d 1213. The Commission's present attorneys were not involved in the earlier proceedings. At this Court's request, the attorneys for First Fidelity submitted a copy of a stipulation bearing the signatures of only plaintiffs' attorneys. In any event, no party disputes the stipulation.
[5] This official statement contains, amoung other things, the following disclaimers:
The information and the expressions of opinion herein are subject to change without notice, and neither the delivery of this Official Statement, nor any sale made hereunder, shall under any circumstances create an implication that there has been no change in the affairs of the Commission, the Bank or the WSP Contracting Municipalities since the date hereof.
* * * * * * * *
This Official Statement is not to be construed as a contract or an agreement between the Commission and the purchaser or holder of any Notes. Any statements made in this Official Statement involving matters of opinion, whether or not expressly so stated, are intended merely as opinion and not as representations of fact. The information and the expressions of opinion herein are subject to change without notice and neither the delivery of this Official Statement nor any sale made hereunder shall, under any circumstances, create any implication that there has been no change in the affairs of the Commission or the Bank since the date hereof.
[6] This argument may have been raised because of the existence of 12 C.F.R. § 9.10 and N.J.S.A. 17:9A-35(D), which seem to require investment of unclaimed fiduciary funds. These authorities were not brought to the court's attention by any party, and might well impact on the bank's obligations and duties here.
[7] Williams' statement is premised on principles of fiduciary law that First Fidelity at other points disavows, despite its designation as "trustee," the fact that under the resolutions it was holding funds "in trust," and the heading "The Fiduciaries" in the Commission's resolution of April 25, 1984, which First Fidelity apparently accepted. Moreover, the September 1, 1985, Escrow Deposit it Agreement refers to the bank "in its capacity as trustee."
[8] This is aside from obligations imposed by law. 12 C.F.R. § 9.10 and N.J.S.A. 17:9A-35(D) appear to assume that unclaimed fiduciary funds are not to be held uninvested longer than reasonably necessary for proper account management. See supra at 374 n. 6, 605 A.2d at 696 n. 6.
[9] The bank apparently settled with some "good customers."
[10] I doubt whether any court would have difficulty with the adequacy or fairness issue here if notice to registered note holders were to be solely in newspapers published and circulating, for instance, in Nome, Alaska and/or a designated city in any non-contiguous sister state of the United States. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1730717/ | 741 S.W.2d 470 (1987)
SHENANDOAH ASSOCIATES, Appellant,
v.
J & K PROPERTIES, INC., Appellee.
v.
HOME SAVINGS ASSOCIATION FAMILY DEVELOPMENT CORPORATION, A-1 Inc., and John Bushman, Appellees.
No. 05-85-00629-CV.
Court of Appeals of Texas, Dallas.
March 31, 1987.
On Motion for Rehearing October 6, 1987.
Rehearing Denied November 9, 1987.
*473 Royal H. Brin, Jr., Dallas, for appellant.
Jordan, Dunlap & Prather, Robert C. Prather, Dallas, Don Windle, Denton, for appellees.
Before STEPHENS, STEWART and HOLLINGSWORTH[1], JJ.
STEPHENS, Justice.
This multiple-party suit was brought by Shenandoah Associates, the dissatisfied purchaser of a mobile home park in Odessa, Texas. Shenandoah seeks rescission and damages under the Texas Deceptive Trade Practices Act of the Business and Commerce Code as amended in 1979. After a jury trial of several weeks, and the submission of several hundred special issues, the trial court entered its judgment rescinding the sale of the park from J & K to Shenandoah, yet charging Shenandoah with liability for the unpaid balances of the first and second mortgages, and awarding attorney's fees against Shenandoah for having brought its suit in bad faith and for the purposes of harrassment against all defendants except J & K.
*474 On appeal, Shenandoah presents twelve points of error for our consideration. J & K Properties, Inc., a co-appellant, presents seven points of error, and Home Savings Association, Family Development Corporation, A-1 Inc., and John Bushman, appellees, present one cross-point. We agree with Shenandoah's points of error number one, and number six, and we agree with J & K's point of error number one, accordingly, we reverse the judgment of the trial court and remand the case for a new trial.
CHRONOLOGY OF FACTS
In 1982 J & K held legal title to the park, encumbered by a first mortgage of $830,000.00, in favor of Home Savings. This note was guaranteed by Bill J. Jacobson, President of J & K. Coupled with the loan, J & K had granted an exclusive sales contract to Family Development for sale of the park. At the time of this transaction, John Bushman solely owned Home Savings and A-1 Inc., and Home Savings was the sole owner of Family Development.
Later in 1982, negotiations for the sale of the park began between J & K and Steven K. Babbidge & Associates. These negotiations fell through in December 1982. Later negotiations began between Bushman's group and Babbidge without the participation of J & K. These negotiations resulted ina sale of the park to Babbidge, or its nominee, and at closing, January 4, 1983, Shenandoah, Babbidge's nominee, became the title holder of the park.
The sale was consummated by the payment of $135,000.00 in cash, the execution by Shenandoah of a six-months second lien note for $135,000.00 payable to J & K, which was simultaneously endorsed to Family Development, and the assumption by Shenandoah of the $830,000.00 note to Home.
Some time after closing, and after Shenandoah occupied the property, difficulties arose between the parties resulting in this suit. Prior to the filing of the suit, J & K filed for bankruptcy; however, before the trial of the case, the automatic stay afforded J & K by the bankruptcy filing, was lifted by the Federal Court.
TRIAL COURT'S JUDGMENT
The trial court's final judgment is paraphrased as follows:
1. A-1 Inc., Home Savings, and Bushman were awarded a take-nothing judgment as to Shenandoah.
2. A-1 Inc., was awarded judgment against Shenandoah for: (a) attorney's fees of $173,003.00, expenses of $10,852.81; (b) if appealed to this court, an additional $27,000.00 attorney's fees, and an additional $5,000.00 expenses; and (c) if appealed to the Texas Supreme Court, an additional $13,500.00 as attorney's fees, and an additional $2,500.00 as expenses.
3. Bushman was awarded the same judgment against Shenandoah as was A-1 Inc.
4. Home Savings was awarded judgment against Shenandoah for $893,047.35, as the sum due on the principal and interest of the note through August 1, 1984, together with pre-judgment and post judgment interest on the principal balance of the note, together with foreclosure of its lien on the park, together with a money judgment for any deficiency resulting from the sale of the property, and ordering reimbursement to Shenandoah for any excess of the sale over the debt. Home, additionally, was awarded the same sum as was awarded A-1 Inc., and Bushman, for its attorney's fees and expenses.
5. Family Development was awarded judgment against Shenandoah for $155,240.32 on its note through August 1, 1984, together with pre-judgment and post-judgment interest on the balance of its $135,000.00 note. Additionally, Family was awarded foreclosure of its lien and a money judgment against Shenandoah for any deficiency resulting from the sale, and likewise ordering the payment of any excess received from the sale to Shenandoah. Family was also awarded judgment against Shenandoah for its attorney's fees of $179,603.00, together with its *475 expenses of $52,325.14, and the additional sums of $27,000.00 and $13,500.00, together with $5,000.00 and $2,500.00 respectively for attorney's fees and expenses in the event of an appeal.
6. Shenandoah was awarded judgment against J & K rescinding:
(a) Sale of the mobile home park.
(b) Sale of certain personalty contemporaneously made with the sale of the park.
(c) Assignment of certain leases coupled with the sale of the park.
(d) Assignment of warranties coupled with the sale of the park.
(e) An agreement between J & K, Bill Jacobson and Shenandoah.
7. Bushman and J & K were also awarded post-judgment interest of 10% on their attorney's fees and expenses awards.
8. Court costs were taxed 80% against Shenandoah and 20% against J & K.
SHENANDOAH'S CLAIMS
Shenandoah's first point of error complains that the trial court erred by granting partial rescission of the sale of the park instead of full rescission, and by not placing all the parties in the status quo, because partial rescission, not recognized under Texas law, leaves the Bushman group with all the benefits of the transaction.
Shenandoah argues that the rescission is not complete because it still requires Shenandoah to pay $830,000 evidenced by the assumption agreement and the second lien promissory note for $135,000.
RESCISSION
Rescission is an equitable remedy that may be granted upon certain grounds, such as fraud. Boyter v. MCR Construction Co., 673 S.W.2d 938, 941 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). The defrauded purchaser is put to an election whether he will keep the property and recover damages, or rescind the sale and return the property while recovering the value he has parted with. O'Con v. Hightower, 268 S.W.2d 321, 322 (Tex.Civ.App.-San Antonio 1954, writ ref'd). This court in Boyter set out the prerequisites to the granting of rescission:
To be entitled to the equitable remedy of rescission, however, a party must show either (1) that he and the other party are in the status quo, i.e., that he is not retaining benefits received under the instrument without restoration to the other party, Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83, 91 (1955); Freyer v. Michels, 360 S.W.2d 559, 562 (Tex.Civ. App.-Dallas 1962, writ dism'd), or (2) that there are special equitable considerations that obviate the need for the parties to be in the status quo, Turner v. Agricultural Credit Corp., 601 S.W.2d 61, 65 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.); see also Texas Employers Insurance Association v. Kennedy, 135 Tex. 486, 143 S.W.2d 583, 585 (1940).
Boyter, 673 S.W.2d at 941.
Shenandoah complains that the court's judgment requiring it to give up the property, but to continue to pay on the assumption agreement of the first lien note and to pay the second lien note constitutes a partial rescission.
A down-payment of $270,000 was required to purchase the Park. On January 4, 1983, at closing, Shenandoah paid $135,000 in cash and signed a promissory note payable to J & K secured by a second lien deed of trust in which it unconditionally promised to pay J & K $135,000. The second lien deed of trust specifically states that the note "represents a portion of the consideration ... for the purchase of the property" described in the deed. Simultaneously with closing, the second lien note was endorsed by J & K, stating that it did "sell, transfer, assign and set over the within note together with all liens securing same to Family Development" with recourse. When the trial court granted the rescission of the sale of the property to Shenandoah, it should have cancelled Shenandoah's indebtedness on the second lien note, to return the parties to the status quo. See Boyter, 673 S.W.2d at 941. This *476 lien is an indivisible part of the contract for the purchase of the Park; the rescission without cancellation of the note constitutes a prohibited "partial rescission." Raney, 504 S.W.2d at 534. Having elected to sue for rescission, Shenandoah should have recovered the value it parted with. O'Con, 268 S.W.2d at 322.
In addition to the cash payment and the execution of the second lien note, Shenandoah assumed the unpaid balance of the original first lien note in the amount of $830,000.00, as a part of the consideration of the sale. Generally, an assumption agreement in a deed of conveyance creates a new contract under which the one making the assumption becomes the principal obligor and the original maker becomes the surety. Straus v. Brooks, 136 Tex. 141, 148 S.W.2d 393, 396 (Tex.Com.App.1941). The agreement is an unconditional contract within itself; an unconditional promise to pay the debt. See Barber v. Federal Land Bank, 204 S.W.2d 74, 78 (Tex.Civ.App.- Texarkana 1947, writ ref'd n.r.e.). The promisor has made the debt his own, has become primarily liable for its discharge, and has assumed an independent duty of payment, irrespective of the liability of the principal debtor. Id. However, when the assumption of an agreement is a part of the consideration of the underlying contract, the cancellation and rescission of the underlying contract creates a demand that equity be performed by cancelling the assumption agreement. When the equitable relief of rescission is granted the original status of the parties must be restored. See Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83, 91 (1955); Boyter, 673 S.W.2d 941; Proctor v. Green, 673 S.W.2d 390, 393 (Tex.App.-Houston [1st Dist.] 1984, no writ).
A recognized exception to this rule is when the purchaser terminates the contract and the court has examined the circumstances and determined that it would be more equitable to grant the recission without the complete or partial restoration of the consideration received by the purchaser while in possession of the purchased item. See Boyter, 673 S.W.2d at 941; Turner v. Houston Agricultural Credit Corp., 601 S.W.2d 61, 65 (Tex.Civ.App.- Houston [1st Dist.] 1980, writ ref'd n.r.e.). We hold that the trial court properly considered the circumstances of this case and found it was more equitable not to require Shenandoah to return to J & K the rental payments and other monies obtained while it was in control of the property.
The trial court granted Shenandoah's request for the equitable relief of rescission; therefore, it follows, and equity dictates, that the Shenandoah should be returned to the status quo by requiring J & K to return the rescinded sales agreement purchase money in the sum of $135,000.00, by cancelling the second lien note of $135,000, and by cancelling Shenandoah's assumption agreement of the original loan. Shenandoah's first point of error is granted.
Shenandoah frames its second point of error as follows:
There being no finding by the trial court in the one final judgment required by law that this action was groundless and brought in bad faith, or brought for the purpose of harassment, the trial court erred in rendering judgment against Shenandoah for the Defendants' attorney's fees and court costs.
The facts giving rise to this cause of action occurred after the 1979 amendment ot § 17.50(c) of the Texas Deceptive Trade Practices Act which states:
(c) On a finding by the court that an action under this section was groundless and brought in bad faith, or brought for the purposes of harassment, the court shall award the defendant reasonable and necessary attorney's fees and court costs.
TEX.BUS. & COM.CODE ANN. § 17.50(c) (Vernon Supp.1986).
Prior to the 1979 amendment, the courts consistently construed section 17.50(c) to require a jury finding of bad faith or harassment and a court finding of groundlessness. Computer Business Services, Inc. v. West, 627 S.W.2d 759, 761 (Tex.App. -Tyler 1981, writ ref'd n.r.e.); Brunstetter v. Southern, 619 S.W.2d 557, 560 (Tex. Civ.App.-San Antonio 1981, writ ref'd n.r. *477 e.); Genico Distributors, Inc. v. First National Bank, 616 S.W.2d 418, 420 (Tex.Civ. App.-Texarkana 1981, writ ref'd n.r.e.). However, in Leissner v. Schott, 668 S.W.2d 686 (Tex.1984) a case arising after the 1979 amendment, the jury found no violation of the Deceptive Trade Practice Act, but did find that the suit was brought in bad faith and for purposes of harassment. The trial court refused to award attorney's fees because the court did not find the suit to be groundless. On appeal, the Court of Appeals construed the amended act to allow fees based on (a) a finding of harassment, or (b) a finding that the suit was groundless and brought in bad faith. Because there was a jury finding of harassment, the Court of Appeals awarded attorney's fees. On review by the Supreme Court, the Court of Appeals decision was upheld, although the Supreme Court declined to decide the question of whether the Court of Appeals was correct in its interpretation that issues of bad faith and harassment are for the jury, and reserved judgment on the issue of whether section 17.50(c) requires the trial court to make all the necessary findings. Likewise, in Wickersham Ford, Inc. v. Orange County, 701 S.W.2d 344, 350 (Tex. App.-Beaumont 1985, no writ), an award of attorney's fees based solely on a jury finding of harassment was upheld. In the case at bar, the jury did specifically find that Shenandoah's suits against all appellees were brought in bad faith and for the purpose of harassment. Under Leissner v. Schott, 668 S.W.2d at 686 a jury finding of harassment alone is enough to entitle a defendant to an award of attorney's fees under section 17.50(c).
Furthermore, as to Shenandoah's argument that attorney's fees were improperly awarded, findings of fact and conclusions of law concerning the award of attorney's fees were neither requested nor entered. Shenandoah argues that it was not required to request findings of fact and conclusions of law since the trial was by jury. Ordinarily this is correct. However, the parties and attorneys all agreed to an order that "the fact issues of reasonable and necessary attorney's fees and expenses incurred in prosecuting or defending these actions and counterclaims, including representation at various appellate court levels, shall be tried to the court in a separate trial, such trial to be set by the court." (emphasis added). Such a trial was held by the court on the issue of attorney's fees, therefore, since Shenandoah failed to request any findings of fact or conclusions of law on the separate attorney's fees trial to the judge, the trial court judgment implies all necessary fact-findings in support of its judgment. Rosestone Properties, Inc. v. Schliemann, 662 S.W.2d 49, 51 (Tex.App. -San Antonio 1983, writ ref'd n.r.e.). The trial court did award attorney's fees in its judgment. All findings of fact and conclusions of law necessary to uphold the attorney's fees award are therefore deemed in favor of the judgment. Shenandoah's second point of error is overruled.
In point of error number six, Shenandoah complains that testimony by an expert witness far exceeded the boundaries of a pre-trial order, which limited the expert's testimony to reasonable attorney's fees and the amount of damages. Shenandoah asserts that the testimony was prejudicial because, contrary to the court's order, the witness testified freely concerning the reliance of the parties on certain documents, proper documents for a closing, the lack of certain documents at the closing, the generally accepted interpretation of documents and their meanings, whether the attorney for Shenandoah acted with propriety, and the witness also interpreted the Canons of Ethics. These were only a few of the areas of dispute on which the witness testified. We are mindful of the general proposition that the determination of the admissibility of opinion testimony is a matter within the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of abuse. UMC, Inc. v. Coonrod Electric Co., 667 S.W.2d 549, 559 (Tex.App. -Corpus Christi 1983, writ ref'd n.r.e.). However, we are of the opinion that in light of the complexity of the case before us, admission of the testimony of this particular witness, far in excess of the limitations placed upon him by the trial court's pretrial order, was highly prejudicial and *478 the trial court abused its discretion by admitting such testimony. Appellee argues correctly that if the improper evidence given by the witness is supported by other evidence in the case, admitted without objection, or of the same character or effect, adduced or elicited by the complaining party, the error is harmless, Drake v. Walls, 348 S.W.2d 62, 69 (Tex.Civ.App.-Dallas 1961, writ ref'd n.r.e.); see Missouri-Kansas-Texas Railroad Co. v. Shelton, 383 S.W.2d 842, 848 (Tex.Civ.App.-Dallas 1964, writ ref'd n.r.e.), cert. denied 382 U.S. 845, 86 S. Ct. 54, 15 L. Ed. 2d 85 (1965); City of Houston v. Howe & Wise, 323 S.W.2d 134, 138 (Tex.Civ.App.-Houston 1959, writ ref'd n.r.e.). See Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Columbia Engineering International, Ltd. v. Dorman, 602 S.W.2d 72, 77 (Tex.Civ. App.-Beaumont 1980, writ ref'd n.r.e.). However, appellee has not pointed out to this court what other evidence, properly admitted, would justify a finding that the testimony of this witness was harmless, and we decline to search the thirty eight hundred pages of testimony to attempt to find such other evidence. Appellant's sixth point of error is sustained.
J & K's CLAIMS
J & K first contends that the trial court erred by admitting into evidence, depositions that were taken without notice to J & K. Notice was only given to A-1.
Texas Rule of Civil Procedure 200(2) states the notice requirements for an oral deposition:
2. Notice of Examination: General Requirements; Notice of Deposition of Organization.
a. Reasonable notice must be served in writing by the party, or his attorney, proposing to take a deposition upon oral examination, to every other party or his attorney of record. ...
[Emphasis added.] When other parties are not given notice of the deposition, an "ex parte" deposition is not admissible. See Reilly v. Buster, 125 Tex. 323, 82 S.W.2d 931, 933 (1935); Woodall v. Adams, 7 S.W.2d 922, 925 (Tex.Civ.App.-Galveston 1928, no writ); see also Pouncy v. Garner, 626 S.W.2d 337, 344 (Tex.App.-Tyler 1981, writ ref'd n.r.e.).
In the present case, the trial court entered an interlocutory default judgment against J & K and the other defendants, on November 23, 1983, which: (1) rescinded the sales contract; (2) set aside the general warranty deed and bill of sale; (3) cancelled the $135,000 promissory note and second lien deed of trust; (4) cancelled the assumption agreement; and (5) ordered Shenandoah to reconvey the property to the defendants "upon receipt of the restitution and incidental damages hereafter ordered to be paid Plaintiff, by this Court." The court stated that a hearing would be held to determine the amount of damages to be paid to Shenandoah. Clearly, this interlocutory default judgment only determined J & K's liability to Shenandoah; the issue of damages was not answered. Therefore, J & K should have been given notice of the taking of depositions since it is a party to the suit in which damages were yet to be determined.
J & K objects to the admission of the deposition testimony of Steve Brindle, Stanley Black, Stephen Babbidge, Michael Jackson, and Geno Olivas. (The other depositions cited by J & K in its brief were never read into evidence and, therefore, are not crucial.) At trial, the depositions of Jackson and Olivas were read into the record without J & K asserting its notice objection. After half of Brindle's deposition had been read into the record, J & K presented its objection for lack of notice. The trial court ruled that the objection was untimely as it applied to the depositions that had already been read into the record, but stated:
The objection insofar as it relates to use of depositions to prove liability and not damages is overruled inasmuch as at the time the depositions were taken, liability had been determined by default judgment against J & K Properties, Incorporated, and when the Court vacated interlocutory default judgment the day before trial commenced J & K Properties, Incorporated, withdrew its motion *479 for continuance, which would have been the proper remedy to allow the retaking of the depositions.
As to the objection insofar as it relates to use of depositions or portions thereof not yet read before the jury and insofar as they relate to the issue of damages against J & K Properties, Incorporated, the Court takes that under advisement and carries it and will make a decision later on that issue.
You've preserved your objection on the record as to all portions not yet read, any portion read will be read over your objection, over your motion to strike. If the Court determines that you are correct, it will take such action as necessary later in the trial or after the verdict to prevent any harm with respect to damages.
The court made no further ruling on the admissibility of the depositions as they relate to the issue of damages.
J & K re-urged its objection to the remainder of Brindle's deposition and to the depositions of Black and Babbidge. Upon reviewing the depositions that were admitted into evidence without objection and those that were admitted over objection, we find damaging evidence that was admitted before the jury that is not "offset" by properly admitted deposition testimony. See Richardson, 677 S.W.2d at 501. (eg. Brindle had testified about defectively built septic tanks before the objection, and continued to testify concerning various other defective septic tanks after the objection. Brindle then went on to describe defective water lines. Black testified that he was in charge of collecting rent, maintenance, and leasing. He stated that the rent receipt books were "moderately" accurate; that the water lines were not properly attached at the faucets; and there was a great danger of the lines "breaking off at the main," causing the water to be cut off for repairs "several times" due to this fault.)
We hold that the remaining portion of Brindle's deposition and Black's deposition were improperly admitted for purposes of determining damages after proper objection by J & K. Brindle and Black's deposition testimony was damaging to J & K as it presented evidence of bad workmanship and improper bookkeeping that supports Shenandoah's request for damages.
Having made the determination that this deposition testimony was improperly admitted, absent notice to J & K, and being unable to conclude that such admission was harmless error, we sustain J & K's first point of error.
The judgment of the trial court is reversed, and the cause is remanded for a new trial.
Before STEPHENS, STEWART and ROW[1], JJ.
ON MOTION FOR REHEARING
STEWART, Justice.
We grant the motion for rehearing filed by Home Savings Association, Family Development Corporation, A-1, Inc., and John Bushman (the Bushman group). We deny the motion for rehearing filed by J & K Properties, Inc. (J & K), and we deny the motion for rehearing filed by Shenandoah Associates (Shenandoah). Accordingly, we set aside our former judgment and enter judgment in accordance with this opinion.
Shenandoah originally sued J & K and Home Savings Association (Home), alleging breach of contract, misrepresentations, deceptive trade practices, breaches of warranty, and fraud by J & K in the construction and sale of a mobile home park to Shenandoah and by Home in relation to the assumption agreement between Shenandoah and Home, whereby Shenandoah assumed J & K's indebtedness on the park. Later Shenandoah added as defendants Family Development Corporation (Family), A-1, Inc. (A-1), and John Bushman. By amended petition, Shenandoah added a suit for civil conspiracy against all five defendants. The Bushman group counterclaimed for attorneys' fees and court costs on grounds that Shenandoah's deceptive trade practices *480 claim against them was groundless and brought in bad faith or brought for purposes of harassment. In addition, Home sued for judgment and foreclosure of lien under the note and deed of trust assumed by Shenandoah, and Family sued for the same relief under the second lien note executed by Shenandoah at closing. After a jury trial of several weeks, the trial court entered its judgment rescinding the sale of the park from J & K to Shenandoah, yet charging Shenandoah with liability for the unpaid balances of the first and second mortgages, held by Home and Family, respectively, and awarding attorney's fees against Shenandoah to Home and Family on their respective notes and to A-1 and John Bushman for having brought its suit in bad faith and for the purposes of harassment against them.
On appeal, Shenandoah presents twelve points of error for our consideration. J & K Properties, Inc., a co-appellant, presents seven points of error, and Home Savings Association presents one cross-point. We agree with Shenandoah's point of error number four and reverse the trial court's award of expenses to the Bushman group. In all other respects, the trial court's judgment is affirmed.
CHRONOLOGY OF FACTS
In 1982, J & K held legal title to the mobile home park, encumbered by a first mortgage of $830,000 in favor of Home. This note was guaranteed by Bill J. Jacobson, president of J & K. Coupled with the loan, J & K had granted an exclusive sales contract to Family for sale of the park. At the time of this transaction, John Bushman solely owned Home and A-1, and Home was the sole owner of Family.
Later in 1982, negotiations for the sale of the park began between J & K and Steven K. Babbidge & Associates (Babbidge). These negotiations fell through in December 1982.
Later negotiations began between Home, A-1, and J & K, through its broker, Family, and Babbidge, but without the participation of John Bushman. These negotiations resulted in a sale of the park to Babbidge, or its nominee, and at closing, January 4, 1983, Shenandoah, Babbidge's nominee, became the title holder of the park. The sale was consummated by the payment of $135,000 in cash, the execution by Shenandoah of a six-months' second lien note for $135,000 payable to J & K, which J & K simultaneously endorsed to Family, and the assumption by Shenandoah of the $830,000 note to Home.
Sometime after closing, and after Shenandoah occupied the property, difficulties arose between the parties resulting in this suit. Prior to the filing of the suit, J & K filed for bankruptcy; however, before the trial of the case, the automatic stay afforded J & K by the bankruptcy filing was annulled by the federal court only as to Shenandoah's causes of action against J & K.
TRIAL COURT'S JUDGMENT
The trial court's final judgment is paraphrased as follows:
1. Shenandoah received a take nothing judgment as to A-1, Home, Family, and Bushman.
2. A-1 was awarded judgment against Shenandoah for: (a) attorney's fees of $173,003, expenses of $10,852.81; (b) if appealed to this court, an additional $27,000 attorney's fees, and an additional $5,000 expenses; and (c) if appealed to the Texas Supreme Court, an additional $13,500 as attorney's fees, and an additional $2,500 as expenses.
3. Bushman was awarded the same judgment against Shenandoah as was A-1.
4. Home was awarded judgment against Shenandoah for $893,047.35, as the sum due on the principal and interest of its note through August 1, 1984, together with prejudgment and postjudgment interest on the principal balance of the note, together with foreclosure of its lien on the park, together with a money judgment for any deficiency resulting from the sale of the property, and ordering reimbursement to Shenandoah for any excess of the sale over the debt. *481 Home, additionally, was awarded the same sum as was awarded A-1 and Bushman for its attorney's fees and appellate expenses but received $48,825.14 for expenses in the trial court.
5. Family was awarded judgment against Shenandoah for $155,240.32 on its note through August 1, 1984, together with prejudgment and postjudgment interest on the balance of its $135,000 note. Additionally, Family was awarded foreclosure of its lien and a money judgment against Shenandoah for any deficiency resulting from the sale, and the judgment likewise ordered the payment of any excess received from the sale to Shenandoah. Family was also awarded judgment against Shenandoah for its attorney's fees of $179,603, together with its expenses of $52,325.14, and the additional sums of $27,000 and $13,500, together with $5,000 and $2,500 respectively for attorney's fees and expenses in the event of an appeal.
6. A-1, Bushman, Home, and Family were awarded their taxable costs of court.
7. Shenandoah was awarded judgment against J & K rescinding:
(a) Sale of the mobile home park.
(b) Sale of certain personalty contemporaneously made with the sale of the park.
(c) Assignment of certain leases coupled with the sale of the park.
(d) Assignment of warranties coupled with the sale of the park.
(e) An agreement between J & K, Bill Jacobson, and Shenandoah.
8. Bushman and A-1 were also awarded post-judgment interest of 10 percent on their attorney's fees and expenses awards.
9. Court costs were taxed 80 percent against Shenandoah and 20 percent against J & K.
SHENANDOAH'S CLAIMS
Shenandoah's first point of error complains that the trial court erred by granting partial rescission of the sale of the park instead of full rescission, and by not placing all the parties in the status quo, because partial rescission, not recognized under Texas law, leaves the Bushman group with all the benefits of the transaction. Shenandoah argues that the rescission is not complete because the judgment still requires Shenandoah to pay $830,000 evidenced by the assumption agreement and the second lien promissory note for $135,000.
For purposes of deciding this point, we assume, without deciding, that the trial court properly rescinded the conveyance of title to the park from J & K to Shenandoah. We agree with Shenandoah that as between it and J & K, upon this rescission, it is entitled to recover all the consideration it paid for the park. However, it does not necessarily follow that Shenandoah is entitled to cancellation of its liability for the first lien note under the assumption agreement between it and Home nor to cancellation of the second lien note for $135,000 held by Family. We will address each of the notes separately.
The First Lien Note
In this case, we have a written assumption agreement executed by the grantor, the grantee, and the creditor. When Shenandoah assumed the unpaid balance of the original first lien note in the amount of $830,000 as part of the consideration that it gave to J & K for sale and conveyance of the park, Shenandoah, in effect, held back that portion of the consideration which was due Home from the purchase price. It undertook to pay Home as holder of the note, not to benefit J & K, but in order to discharge an incumbrance which Home held against the property being purchased. Hill v. Hoeldtke, 104 Tex. 594, 142 S.W. 871 (1912). In obligating itself to pay Home, Shenandoah was not obligating itself to pay a debt it owed J & K; rather, it was obligating itself to pay a debt to J & K's creditor, Home, and when Home agreed with J & K to accept Shenandoah's promise to pay the note, Shenandoah became the principal debtor on the note and J & K became a surety for the debt. *482 Id. at 873, 142 S.W. 871. The arrangement embraced all the elements of a binding contract. There was valuable consideration and mutuality of obligation. Shenandoah was no longer a debtor of J & K; rather, it was a debtor of Home. J & K has no cause of action against Shenandoah on the note unless Shenandoah fails to pay Home, and then only upon the principle that the surety may recover from the debtor whose debt he has been compelled to pay. Id.
Thus, the assumption agreement created a separate unconditional contract within itself. Straus v. Brooks, 136 Tex. 141, 146, 148 S.W.2d 393, 396 (Tex.Com.App.1941). Shenandoah made the debt its own and assumed an independent duty of payment, irrespective of the liability of the original debtor, J & K. Barber v. Federal Land Bank, 204 S.W.2d 74, 78 (Tex.Civ.App.- Texarkana 1947, writ ref'd n.r.e.).
Nevertheless, Shenandoah contends that because J & K's misrepresentations and/or breaches of warranty justified rescission of the sale, it should not be liable under the assumption agreement. This might be a valid argument if Shenandoah had obtained affirmative findings on its allegations of conspiracy or at least concerted action by J & K and the Bushman group in inducing Shenandoah to purchase the property. However, the jury found to the contrary. While it is true that the lender's actionable fraud constitutes a legal basis for the borrower's avoidance of the transaction, Turner v. Houston Agricultural Credit Corp., 601 S.W.2d 61, 65 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.), the jury in this case exonerated Home from any actionable misrepresentation, fraud, breach of warranty, or deceptive trade practice in either the sale or financing of the park. We have found no authority for holding that the original debtor's fraud may be used as a defense to the assumptor's liability on a note in the absence of any wrongdoing by the creditor. To the contrary, this court has held that any alleged fraud of the original maker is not a defense to the assumptor's liability on a note. Presidential Village, Ltd. v. Lone Star Gas Co., 585 S.W.2d 335 (Tex. Civ.App.-Dallas 1979, no writ). In that case, the separate assumption agreement released the original makers of the note. In this case, Home did not release J & K, but we do not consider the release of the original maker as critical to the holding in Presidential Village, because the court there relied in part on language from Hill v. Hoeldtke. The court in Presidential Village set forth the following quotation from the Hill case:
In those cases where it is held if the mortgagee has in some manner acted upon the promise of the grantee that the liability of the latter becomes fixed, it is not claimed that this action must be such as would create an estoppel against the grantee. It seems to be sufficient if it is such as to evince an acceptance or an adoption of the promise by the mortgagee.
Id. at 336, (quoting Hill v. Hoeldtke, 142 S.W. at 874-75). Here, Home clearly exhibited by its execution of the assumption agreement its acceptance of Shenandoah's promise to pay the note at issue. It further relied and acted on Shenandoah's assumption of J & K's indebtedness by: (1) waiving Home's due-on-sale clause in the note and (2) forebearing to exercise its right to enforce the admittedly delinquent note against the original obligor, J & K, and its guarantors.
Accordingly, we hold that Shenandoah cannot rely on its grounds against J & K for rescission of the sale as a defense against its liability to Home on the first lien note. For the above reasons, we further hold that the assumption agreement was separate and divisible from the sale transaction.
The Second Lien Note
A down-payment of $270,000 was required to purchase the park. On January 4, 1983, at closing, Shenandoah paid $135,000 in cash and signed a promissory note payable to J & K secured by a second lien deed of trust on the park in which it unconditionally promised to pay J & K $135,000. The second lien deed of trust specifically states that the note "represents a portion *483 of the consideration ... for the purchase of the property" described in the deed. Simultaneously with closing, the second lien note was endorsed by J & K, stating that it did "sell, transfer, assign and set over the within note together with all liens securing same to Family Development" with recourse. When the trial court granted the rescission of the sale of the property, Shenandoah maintains that it should have cancelled Shenandoah's indebtedness on the second lien note to return the parties to the status quo. Boyter v. MCR Construction Co., 673 S.W.2d 938, 941 (Tex.App.-Dallas 1984, writ ref'd n.r.e.).
On the other hand, Family argues that it took the second-lien note for value, in good faith, and without notice that it was overdue or had been dishonored or of any defense against or claim to it on the part of any person and, consequently, it is a holder in due course. TEX.BUS.COM. CODE ANN. § 3.302(a) (Vernon 1968) (Tex. UCC). Every note holder is presumed to be a holder in due course of the instrument absent evidence to the contrary. Jonwilco, Inc. v. C.I.T. Financial Services, 662 S.W.2d 664, 666 (Tex.App.-Houston [14th Dist.] 1983, no writ); Favors v. Yaffe, 605 S.W.2d 342, 343 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.).
Section 3.305 of the Texas Business and Commerce Code states in pertinent part:
To the extent that a holder is a holder in due course he takes the instrument free from
. . . . .
(b) all defenses of any party to the instrument with whom the holder has not dealt except
. . . . .
(2) such ... illegality of the transaction, as renders the obligation of the party a nullity; and
(3) such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms.
TEX.BUS. & COM.CODE ANN. § 3.305 (Vernon 1968) (Tex.UCC).
Although Shenandoah attempted to prove that Family had knowledge of or had participated in some misrepresentation, fraud, or deceptive trade practice that, within the meaning of section 3.305(b)(3), deprived it of treatment as a holder in due course, the jury found Family innocent of any wrongdoing. We conclude there is no basis for denying Family treatment as a holder in due course. Consequently, Shenandoah's defenses against liability to J & K cannot be urged to defeat liability to Family. Id.
For all of the foregoing reasons we hold that the trial court properly granted judgment to Home and Family for debt and foreclosure of lien on their respective notes. Shenandoah's first point of error is overruled.
Shenandoah frames its second point of error as follows:
There being no finding by the trial court in the one final judgment required by law that this action was groundless and brought in bad faith, or brought for the purpose of harassment, the trial court erred in rendering judgment against Shenandoah for the Defendants' attorney's fees and court costs.
The facts giving rise to this cause of action occurred after the 1979 amendment to section 17.50(c) of the Texas Deceptive Trade Practices Act, which states:
On a finding by the court that an action under this section was groundless and brought in bad faith, or brought for the purposes of harassment, the court shall award the defendant reasonable and necessary attorneys' fees and court costs.
TEX.BUS. & COM.CODE ANN. § 17.50(c) (Vernon Supp.1986).
Prior to the 1979 amendment, the courts consistently construed section 17.50(c) to require a jury finding of bad faith or harassment and a court finding of groundlessness. Computer Business Services, Inc. v. West, 627 S.W.2d 759, 761 (Tex.App.-Tyler 1981, writ ref'd n.r.e.); Brunstetter v. Southern, 619 S.W.2d 557, 560 (Tex.Civ.App.-San Antonio 1981, writ *484 ref'd n.r.e.); Genico Distributors, Inc. v. First National Bank, 616 S.W.2d 418, 420 (Tex.Civ.App.-Texarkana 1981, writ ref'd n.r.e.). However, in Leissner v. Schott, 668 S.W.2d 686 (Tex.1984), a case arising after the 1979 amendment, the jury found no violation of the Deceptive Trade Practices Act, but did find that the suit was brought in bad faith and for purposes of harassment. The trial court refused to award attorney's fees because the court did not find the suit to be groundless. On appeal, the court of appeals construed the amended act to allow fees based on (a) a finding of harassment, or (b) a finding that the suit was groundless and brought in bad faith. Because there was a jury finding of harassment, the court of appeals awarded attorney's fees. On review by the supreme court, the court of appeals decision was upheld, although the supreme court declined to decide the question of whether the court of appeals was correct in its interpretation that issues of bad faith and harassment are for the jury and reserved judgment on the issue of whether section 17.50(c) requires the trial court to make all the necessary findings. Likewise, in Wickersham Ford, Inc. v. Orange County, 701 S.W.2d 344, 350 (Tex.App.-Beaumont 1985, no writ), an award of attorney's fees based solely on a jury finding of harassment was upheld. In the case at bar, the jury did specifically find that Shenandoah's suits against all appellees were brought in bad faith and for the purpose of harassment. Under Leissner v. Schott, 668 S.W. 2d at 686, a jury finding of harassment alone is enough to entitle a defendant to an award of attorney's fees under section 17.50(c).
Furthermore, as to Shenandoah's argument that attorney's fees were improperly awarded, findings of fact and conclusions of law concerning the award of attorney's fees were neither requested nor entered. Shenandoah argues that it was not required to request findings of fact and conclusions of law since the trial was by jury. Ordinarily this is correct. However, the parties and attorneys all agreed to an order that "the fact issues of reasonable and necessary attorney's fees and expenses incurred in prosecuting or defending these actions and counterclaims, including representation at various appellate court levels, shall be tried to the court in a separate trial, such trial to be set by the court." (Emphasis added.) Such a trial was held by the court on the issue of attorney's fees; therefore, since Shenandoah failed to request any findings of fact or conclusions of law on the separate attorney's fees trial to the judge, the trial court judgment implies all necessary fact-findings in support of its judgment. Rosestone Properties, Inc. v. Schliemann, 662 S.W.2d 49, 51 (Tex.App. -San Antonio 1983, writ ref'd n.r.e.). The trial court did award attorney's fees in its judgment. All findings of fact and conclusions of law necessary to uphold the attorney's fees award are therefore deemed in favor of the judgment. Shenandoah's second point of error is overruled.
In its third point of error, Shenandoah contends that the trial court erred in admitting lengthy evidence regarding filing of a certificate of partnership, in permitting lengthy and prejudicial argument about its legality as the nominee, and in charging expenses of investigation of the question to Shenandoah in the judgment. Shenandoah states that because all parties pleaded that it was a partnership, it had no burden to prove that fact, Lafield v. Maryland Casualty Co., 119 Tex. 466, 471, 33 S.W.2d 187, 188 (1930), and its existence as a partnership was therefore not at issue. Thus, it contends that the trial court erred in allowing lengthy testimony to establish that a certificate of limited partnership had not been recorded in California or in Texas; in permitting Bushman to testify that it would have made a difference if he had known no certificate had been filed; in allowing the Bushman group some $3,200 in expenses for an investigation to determine that no certificate had been filed in California and for a witness, Jay Soni, to *485 attend the trial and so testify; and in permitting the Bushman group's attorney to argue about the nonregistration of the certificate, all to the great prejudice of Shenandoah.
In reply, the Bushman group notes that in their counterclaim they refer to Shenandoah as a "California partnership" with Opdahl and Babbidge as "general partners." They maintain that whether Shenandoah had filed its certificate of limited partnership was vigorously contested; that in their third amended answer, both in their plea in abatement and in their special denials, they denied the existence of Shenandoah as a valid limited partnership and its legal capacity to sue. By such pleadings, they argue that the burden was placed on Shenandoah to prove its proper formation and legal existence under California law.
In attempting to meet its burden, Shenandoah offered the testimony of one of its general partners, Gary Opdahl, and introduced into evidence its certificate of limited partnership. In order to address Shenandoah's third point, the chronology of the testimony and evidence with regard to this issue must be summarized:
July 31, 1984 Testifying on direct examination, Opdahl proves up limited partnership certificate and testifies same was filed in Los Angeles County, California, resulting in admission of plaintiff's certificate of limited partnership into evidence as plaintiff's exhibit 19.
August 3, 1984 On cross-examination, Opdahl testifies that between December 17, 1982, and January 3, 1983, he did nothing, "other than forming the partnership," to syndicate the property.
August 6, 1984 On cross-examination, Opdahl admits he does not know by "personal knowledge" where certificate was filed, if anywhere, or if filing fee was paid, but can only say his office staff would have taken care of the filing under his supervision.
August 6, 1984 On redirect examination, Opdahl testifies it was his duty as general partner to supervise and be responsible for filing of limited partnership certificates with proper authorities and that he received in normal course of his duties a report on whether or not certificate was filed. Immediately thereafter, plaintiff rested.
August 9, 1984 Defendants' witness J. Soni testified on direct examination that no certificate of limited partnership had been filed in Los Angeles County, California, the county where the statute required such filing.
August 15, 1984 On redirect examination, Opdahl testified he and Babbidge had entered into the Shenandoah partnership "by December 1, 1982," as evidenced by plaintiff's exhibit 19, and subsequently entered into a formal agreement of limited partnership (plaintiff's ex. 263, signed 3/12/83, more than two months after the closing) "in support of" plaintiff's certificate of limited partnership. Opdahl was further permitted to testify over objection that on January 4, 1983, on October 20, 1983, and at the time of trial, he "believed" the plaintiff's certificate had been filed in the Los Angeles County records, but he only found out otherwise during the course of the trial.
From this summary, we conclude that Opdahl's conflicting testimony placed his credibility in issue and raised fact questions, thereby entitling the Bushman group to disprove Shenandoah's allegations and Opdahl's testimony when they presented their case-in-chief. Further, Shenandoah waived any objection to Soni's testimony by proceeding on cross-examination to elicit from him that Shenandoah was required to file its certificate in Los Angeles County and that no certificate was filed during *486 1982 or 1983, the relevant time periods. Missouri-Kansas-Texas Railroads Co. v. Shelton, 383 S.W.2d 842, 848 (Tex.Civ. App.-Dallas 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 845, 86 S. Ct. 54, 15 L. Ed. 2d 85 (1965). We hold that the trial court did not err in admitting testimony about the non-recording of the certificate of limited partnership.
Shenandoah also complains under this point that the trial court erred in allowing the Bushman group's attorney "to argue at great length and prejudicially over the non-registration of a certificate, in his closing arguments." We have read the portion of the argument about which Shenandoah complains and find that Shenandoah failed to object in the trial court to any statement made by the Bushman group's attorney at that time. Before improper argument can constitute reversible error, a complainant must prove seven factors, the third of which is that error, if any, was preserved by proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial. Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835, 839 (Tex.1979). Shenandoah has waived any error that it may have had based on its contention that the trial court allowed improper argument.
Finally, Shenandoah complains of the trial court's allowance of expenses to the Bushman group for investigating whether any certificate had been filed in California and for witness expenses to attend trial. This portion of point three will be discussed under point four; otherwise, Shenandoah's third point is overruled.
Shenandoah complains in its fourth point that the trial court erred in awarding the Bushman group expenses not taxable or allowable by law. The trial court judgment made the following awards for expenses:
Defendant Expenses
1. A-1
(trial court) $10,852.81
(court of appeals) 5,000.00
(supreme court) 2,500.00
2. Bushman
(trial court) $10,852.81
(court of appeals) 5,000.00
(supreme court) 2,500.00
3. Home
(trial court) $48,825.14
(court of appeals) 5,000.00
(supreme court) 2,500.00
4. Family
(trial court) $52,325.14
(court of appeals) 5,000.00
(supreme court) 2,500.00
Additionally, the court awarded A-1, Bushman, Home, and Family their "taxable costs of court."
We first address the awards for expenses in the appellate courts. We have found no authority supporting an award of expenses based on an estimate of charges that may be incurred in the appeal of a case, and the Bushman group have cited none. Further, there is no evidence in the record to show the nature of the anticipated expenses on appeal. Thus, we sustain Shenandoah's fourth point as to the amounts awarded to A-1, Bushman, Home, and Family for expenses in the court of appeals and in the supreme court.
We now consider the awards for expenses incurred in the trial court. Shenandoah claims that many of the items included under trial court expenses are not recoverable because they consist of expenses in preparation for trial. It is the general rule in Texas that expenses incurred in prosecuting or defending a suit are not recoverable as costs or damages unless recovery of those items is expressly provided for by statute, is available under equitable principles, Phillips v. Wertz, 579 S.W.2d 279, 280 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.), or is expressly provided for by contract. Berts v. Businesspeople Personnel Services, Inc., 620 S.W.2d 861, 863 (Tex.Civ.App.-Dallas 1981, no writ). This rule applies to a litigant's loss of time and that of his employees. Id. The rule has also been held to apply to a premium for a replevy bond and to traveling expenses incident to prosecuting or defending a suit, Brandtjen & Kluge v. Manney, 238 S.W.2d 609, 612 (Tex.Civ.App.- Fort Worth 1951, writ ref'd n.r.e.); to a premium for a supersedeas bond, Hammonds v. Hammonds, 158 Tex. 516, 518-19, *487 313 S.W.2d 603, 605 (1958); to attorney's fees, costs of experts, and "other expenses in preparation for trial," City of Houston v. Biggers, 380 S.W.2d 700, 705 (Tex.Civ.App.-Houston 1964, writ ref'd n.r.e.); to a fee for an auditor who was not appointed by the court under rule 172 of the Texas Rules of Civil Procedure, Taormina v. Culicchia, 355 S.W.2d 569, 575 (Tex.Civ.App.-El Paso 1962, writ ref'd n.r. e.); to certified copies of deeds, Whitley v. King, 581 S.W.2d 541, 544 (Tex.Civ.App.- Fort Worth 1979, no writ); and to loss of earnings due to time lost because of pendency of suit, such as time required for depositions and attendance at trial, Phillips v. Latham, 523 S.W.2d 19, 27 (Tex.Civ. App.-Dallas 1975, writ ref'd n.r.e.), appeal after remand, 551 S.W.2d 103 (Tex. Civ.App.-Waco 1977, writ ref'd n.r.e.). On the other hand, the expense of taking depositions is an item of court costs and properly chargeable as such. Wallace v. Briggs, 162 Tex. 485, 491, 348 S.W.2d 523, 527 (1961).
In the foregoing cases, the court examined each item sought to be charged as court costs or to be recovered as damages and ruled on the items individually. Consequently, we must examine the separate items that make up the total amounts awarded each member of the Bushman group by the trial court as "expenses" to determine if they are recoverable under the general rule stated above.
The trial judge granted its award of expenses in the trial court to A-1 and Bushman, individually, as part of their recovery under the DTPA on grounds that Shenandoah's suit against them was groundless and brought in bad faith, or brought for the purposes of harassment. TEX.BUS. & COM.CODE ANN § 17.50(c). The prevailing party under this section is entitled to recover "reasonable and necessary attorneys' fees and court costs." Id. Because the items making up the $10,852.81 awarded to A-1 and Bushman are identical, we consider their awards simultaneously.
We have examined the itemizations of charges totalling $10,852.81. We hold that the following categories of charges are expenses of litigation that are not recoverable from Shenandoah under the Texas general rule and authorities cited above: delivery services, such as Federal Express; travel; long distance calls; bond premiums; postage; reproduction expense; binding of brief; transcripts of testimony elicited during trial; office air-conditioning (75 percent of weekend); and secretarial overtime.
We further hold that the following categories of charges contained in the itemization of the $10,852.81 are recoverable as court costs: filing fee, court reporter fee, transcript fees, subpoena/citation fees, and deposition costs. These items total $2,808.66 of the $10,852.81, and they are all recoverable as court costs. Because A-1 and Bushman are entitled to recover $2,808.66 under that portion of the judgment awarding them their taxable costs of court and because we have found no items that are otherwise recoverable, we set aside the awards of expenses in the trial court of $10,852.81 to A-1 and Bushman.
The trial court awarded Home $48,825.14 as expenses in the trial court. It is apparent from the record that the judge arrived at this figure by awarding Home the same $10,852.81 that he awarded A-1 and Bushman, plus "Additional Fees, Expenses" incurred by Home alone. These additional sums, in part, consisted of expenses incurred by employees of Home for time spent on the case and for their travel, hotel and meals while in attendance at depositions or at the trial. Other charges were for consultant fees; for travel expense for nonemployee witnesses; for legal fees to the California firm of Angel & Niestat in relation to the investigation of whether Shenandoah had filed its certificate of limited partnership in Los Angeles County; for the charges of Legal Support Services, Los Angeles, California, for actually searching the records to determine if the limited partnership certificate had been filed and for the expense of Jay Soni of that firm to travel to Texas and testify in the case; for copies of the papers in J & K's bankruptcy case; and for deposition costs.
The court awarded Home its expenses based on the provisions in the $830,000 *488 note and in the accompanying deed of trust that Shenandoah assumed under the assumption agreement at closing. Those instruments provide that the holder of the note may recover all reasonable costs and expenses of suit. Home specifically argues that the expenses charged by Legal Support Services and the California attorneys are expenses of collection under the specific provisions of its note. We disagree. These charges were not incurred in aid of Home's counterclaim for debt and foreclosure on its note. Instead, they were incurred in defending against Shenandoah's claims. The evidence resulting from the California investigation was used to attack Opdahl's credibility and Shenandoah's capacity as a limited partnership to prosecute its suit against the Bushman group, of which Home was a member.
We have found no authority for the proposition that the provision in a note for recovery of all reasonable "costs and expenses of suit" means anything other than the usual court costs and expenses ordinarily allowed under the general Texas rule in other types of litigation. Home has cited none. None of the items of additional expense and fees sought by Home are provided for by statute. None are expressly provided for under the terms of the note. However, the deposition costs are recoverable as court costs. Wallace v. Briggs, 162 Tex. at 485, 348 S.W.2d at 523. Accordingly, we hold that Home may likewise recover, as taxable costs, $2,808.66 of the $10,852.81 awarded as expenses, plus $4,656.39 for deposition costs that were added to its "Additional Fees, Expenses" on Home Exhibit 276 through testimony, for a total of $7,465.05. Further, we hold that no other items comprising Home's trial court expenses are recoverable; consequently, we set aside the $48,825.14 award to Home as expenses in the trial court.
Finally, Family Development was granted $52,325.14 as trial court expenses, which included the same $10,852.81 awarded A-1, plus the same additional expenses and fees awarded Home to bring the total to $48,825.14, and, in addition, Family was awarded $3,500 for "expenses of collection" as authorized by the terms of the $135,000 second lien note. We have already held that of the $48,825.14 award, only $7,465.05 is recoverable. Thus, we only address the appropriateness of the extra $3,500 award to Family Development. That figure appears on page 2 of Home Exhibit 276 as "Estimated Costs/Expenses." There is no evidence to show the nature of any of the costs or expenses making up the $3,500. To the extent any such charges are taxable as costs, Family has been otherwise awarded those in the judgment. We hold under this record that the $3,500 in estimated costs/expenses are not recoverable under the trial court's judgment as "expenses of collection." Accordingly, we set aside the award of $52,325.14 to Family Development as expenses in the trial court, and we hold that it may recover $7,465.05 of the charges listed under "expenses" as taxable costs under the trial court's judgment. To the extent of the above adjustments, Shenandoah's fourth point of error is sustained.
In point number five, Shenandoah complains that the trial court committed reversible error by allowing parol evidence as to the meaning and intent of the rental agreement between Shenandoah and A-1, which was executed on January 4, 1983, during the closing of the sale of the property. This point is without merit.
Shenandoah is mistaken in its argument that there are no pleadings of mistake to justify the admission of parol evidence in relation to the rental agreement. To the contrary, A-1 pleaded mutual mistake of fact as an affirmative defense to its failure to sign a master lease prepared by Shenandoah under the terms of the rental agreement. That issue was tried and the jury found that there was a mutual mistake of fact between Shenandoah and A-1 concerning the amount of money A-1 was to pay under the rental agreement.
Parol evidence is admissible to show the true terms of a contract when mutual mistake or fraud is at issue; Santos v. Mid-Continent Refrigerator Co., 471 S.W.2d 568, 569 (Tex.1971); Alkas v. United Savings Association, 672 S.W.2d 852, 858 *489 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.). The trial court did not err in admitting the parol evidence of which Shenandoah complains. Shenandoah's fifth point of error is overruled.
In its sixth point of error Shenandoah complains that testimony by an expert witness far exceeded the limitation of a pretrial order, which limited the witness' testimony to the areas of reasonable attorney's fees and to the amount of damages. Shenandoah contends that this testimony was prejudicial because, contrary to the court's order, the witness testified freely as to reliance of the parties, proper documents for a closing, lack of certain documents at the closing, the generally accepted interpretation of documents and their meanings, whether or not the attorney for Shenandoah acted with propriety, and the witness' interpretation of the Canons of Ethics.
Shenandoah initially complains that Barker, the expert witness, was an unlisted witness and, therefore, should not have been allowed to testify at all. Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243, 246 (Tex.1985). The court there held that, because defendant did not show good cause for its failure to amend its answer to interrogatories to add the witness, the trial court did not abuse its discretion in refusing to allow defendant's unlisted witness to testify. Id. Here, after trial began, J & K filed a request for leave to introduce the testimony of Barker, during the presentation of its case-in-chief. The trial court signed an order granting the request in part and denying it in part. The court deleted one paragraph of the order that stated:
FURTHER APPEARING to the court that said request was not timely made and that the granting of same in its entirety would work a hardship and an injury to [Shenandoah]; ....
We conclude that when the trial court deleted this portion of the order and granted the request in part, it impliedly found that J & K had shown good cause for presenting the testimony of a previously undisclosed expert witness. Shenandoah has not attacked the trial court's ruling as an abuse of discretion. We overrule Shenandoah's contention that the unlisted witness should not have been allowed to testify at all.
We now address Shenandoah's primary complaint in its sixth point, which is that the trial court erred in allowing Barker, J & K's expert witness, to testify beyond the limits set in the court's pretrial order. That order provides that J & K could present Barker's testimony in its case-in-chief only in the following respects:
1. Testimony relating to his personal history, professional experience, and qualifications as an expert witness;
2. Testimony which relates to the damages which plaintiff has alleged it has incurred due to the actions or inactions of J & K Properties, Inc.; and
3. Testimony which relates to the reasonableness and amount of attorney's fees involved in the above referenced litigation if he is qualified to so do;
. . . .
We have reviewed Barker's testimony in its entirety. We hold that the testimony elicited by J & K on direct examination of Barker was within the limitations set forth in the pretrial order.
To the extent that Shenandoah is complaining that testimony elicited from Barker by the Bushman group was outside the scope of the pretrial order, we note first that the order is not directed to any member of the Bushman group. Second, the trial court held on August 6 that Shenandoah had not propounded any discovery question or any other pretrial question which would have required disclosure of Barker so as to preclude the Bushman group from calling him as an expert witness. The trial court then ruled that any objection based on the July 31 pretrial order would be overruled as to any testimony elicited from Barker by the Bushman group. Shenandoah has not complained of this ruling; thus, the error, if any, regarding the ruling is waived. TEX.R.APP.P. 52(a).
Shenandoah has not attacked Barker's testimony on any other specific ground. *490 However, it makes a general statement that Barker attempted to infringe upon the prerogative of the court to pass on questions of law and that his testimony was highly prejudicial. Shenandoah has referred us to various portions of Barker's testimony that was admitted "over objection" but has neither attacked any specific ruling of the court nor cited any authority to show that any particular ruling was error. Moreover, Shenandoah did not object to much of his testimony.
Having reviewed all of Barker's testimony, we conclude that the vast majority of it was proper to disprove Shenandoah's damage claims, the propriety of its claim for attorney's fees, and its reliance on alleged fraud and misrepresentation. Further, the trial court also ruled that Barker's testimony was admissible on the issue of whether a given act is a deceptive trade practice. Shenandoah did not object to this ruling; therefore it waived error, if any, in regard to this ground for admitting the evidence of which it complains. Id.
The standard of review of evidentiary points is whether the trial court abused its discretion. UMC Inc. v. Coonrod Electric Co., 667 S.W.2d 549, 559 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). Shenandoah does not address this standard. The record reflects that the court ruled on a question-by-question basis as to whether Barker's testimony was admissible and limited his testimony to the purposes that are outlined in the preceding paragraph. The record does not reflect that the trial court abused his discretion.
Finally, reversible error is not ordinarily shown in evidentiary rulings unless the whole case turns on the particular evidence admitted or excluded. Bridges v. City of Richardson, 349 S.W.2d 644, 649 (Tex.Civ.App.-Dallas 1961), writ ref'd n.r.e. per curriam, 163 Tex. 292, 354 S.W.2d 366 (1962). In view of the length of the trial and the volume of testimony from other witnesses before the jury on all contested issues, we hold that Shenandoah's whole case did not turn on Barker's testimony. Consequently, we further hold that if the trial court erred in admitting some portions of this testimony, the error does not call for reversal. Id. The sixth point is overruled.
In Shenandoah's seventh point of error, it complains that the jury's finding that no conspiracy existed among the five defendants (the four members of the Bushman group and J & K) was contrary to the overwhelming weight and preponderance of the evidence. We disagree.
The Texas Supreme Court, in Massey v. Armco Steel Co., 652 S.W.2d 932 (Tex. 1983), recognized an actionable civil conspiracy to consist of:
a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635 (Tex. 1964); State v. Standard Oil Company, 130 Tex. 313, 107 S.W.2d 550, 559 (1937). The essential elements are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.
Id. at 934.
Shenandoah readily agrees that the object to be accomplished, the sale of the park, was not unlawful, yet contends that the sale was accomplished by unlawful means through the false representations and false warranties, knowingly made, by members of the Bushman group to induce Shenandoah to close. Shenandoah relies principally on the admittedly false warranty by Home in the assumption agreement that the seller "has as of the date hereof, timely performed all of its obligations under the promissory note, the deed of trust, and ... the lender hereby warrants that the seller is not presently in default under any of its obligations to lender." However, the jury found that Home alone made the representations regarding J & K's performance of its obligations under the $830,000 note to which the assumption agreement refers, and the record contains evidence that Shenandoah knew J & K was in default prior to signing the assumption agreement. The jury found that Home's representation *491 in this regard was not a producing cause of damages, that it was not inducing, and that it was not material. Thus, Shenandoah wholly failed to prove that the defendants participated in an unlawful act on which to base liability for civil conspiracy. Shenandoah's seventh point of error is overruled.
Shenandoah contends in its eighth and ninth points of error that there is no evidence that Shenandoah brought this action in bad faith and for purposes of harassment or, alternatively, that the jury's findings that the action was brought in bad faith and for purposes of harassment are against the great weight and preponderance of the evidence. Shenandoah relies on Home's admission that it falsely warranted in the assumption agreement that J & K was not delinquent and had performed all of its obligations under the note assumed by Shenandoah. Shenandoah argues that the admitted falsity of the representations was overwhelming evidence of good faith and lack of harassment on its part in pursuing its legal rights under the DTPA. We disagree.
As we pointed out in the seventh point, there is evidence in the record that Shenandoah knew the warranty in the assumption agreement was false when the agreement was signed. There is also other conflicting evidence regarding this paragraph of the agreement in the record. The jury resolves conflicting testimony. Fichtner v. Richardson, 708 S.W.2d 479, 483 (Tex.App.-Dallas 1986, writ ref'd n.r.e.) Shenandoah's eighth and ninth points are overruled.
In points ten and eleven, Shenandoah complains that there is no evidence that it waived its right to complain of the closing documents and condition of the park, or, alternatively, that the jury's findings in that regard are contrary to the great weight and preponderance of the evidence. Although Shenandoah, under its points of error as to waiver, seems to argue as well against the findings by the jury as to ratification, we conclude that no point of error was levelled against the jury's finding as to ratification; thus this question is not before this court. We address only Shenandoah's waiver point.
In determining a no evidence point, only evidence tending to support the trial court's judgment and reasonable inferences therefrom are to be considered. If there is some evidence of probative force to support the jury's finding, the no evidence attack fails. DeBenavides v. Warren, 674 S.W.2d 353, 356 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.).
In reviewing the factual sufficiency, we must weigh all the evidence to determine if the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). Where evidence is conflicting, we are bound by the findings of the fact finder. Holly v. Cannady, 669 S.W.2d 381 (Tex.App.-Dallas 1984, no writ).
Shenandoah contends there is no evidence, or insufficient evidence, of its intention to waive its rights to complain of the condition of the park or of the closing documents. Waiver may be established by proof that the party possessing a known right expressly relinquishes it or acts in a manner inconsistent with, or fails to act in a manner consistent with, an intent to claim the right. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213-14 (Tex.Civ. App.-Amarillo 1981, writ ref'd n.r.e.). The record reflects that Shenandoah discovered the majority, if not all, of the defects in the park of which it complains no later than January of 1983. Nevertheless, Shenandoah continued to operate the park and accept rents through trial and continued to make payments on the $830,000 note until September of 1983. We hold that this evidence is sufficient to support the jury finding that Shenandoah waived its right to complain of the condition of the park. Id.
Regarding Shenandoah's complaint of the closing documents, the record reveals evidence that its attorney prepared and/or reviewed the closing documents and that, before closing, it knew of the falsity of Home's warranty that the assumed note was current and that Family had an interest *492 in and potential lien on the property. This evidence is sufficient to support the jury finding that Shenandoah waived its right to complain of the closing documents by closing the sale, executing closing documents, and accepting the deed from J & K. Shenandoah's tenth and eleventh points are overruled.
In its twelfth and final point of error, Shenandoah contends that the jury's findings to subdivisions 14 and 15 of special issue number three and subdivisions 15 and 16 to special issue number nine, all of which deal with whether or not J & K performed all of its obligations under the first lien note and was not in default, substantially ignore the testimony and the judicial admissions that the note was in fact in default at the time of closing. We disagree. The jury found in answer to subpart (a) of each of these four subdivisions that Home warranted or represented that J & K had timely performed all of its obligations under the $830,000 note and was not in default at closing. Thus, the jury did not ignore the testimony or judicial admissions to that effect. Shenandoah does not challenge the additional findings under the other subparts to these subdivisions, which provide that the warranties were not a producing cause of damages (issue 3, subparts 14(c) and 15(c)) and that the representations were either not inducing (issue 9, subpart 15(d)) or not material (issue 9, subpart 16(c)).
Further, Shenandoah has failed to cite us to portions of the record to sustain its argument that all of the evidence points to the fact that these representations and warranties were relied upon in Shenandoah's purchase of the park. Shenandoah's failure to cite the record constitutes waiver of this argument under this point of error. Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 351 (Tex.App.- Houston [14th Dist.] 1984, writ ref'd n.r.e.). This court declines to make an independent search of thirty-eight hundred pages of testimony in an attempt to support Shenandoah's claims. Saldana v. Garcia, 155 Tex. 242, 248, 285 S.W.2d 197, 200-01 (1955); Kropp v. Prather, 526 S.W.2d 283, 288 (Tex.Civ.App.-Tyler 1975, writ ref'd n.r.e.). Shenandoah's point of error number twelve is overruled.
J & K's CLAIMS
J & K first contends that the trial court erred by admitting into evidence depositions that were taken without notice to J & K. Texas Rule of Civil Procedure 200(2) states the notice requirements for an oral deposition:
2. Notice of Examination: General Requirements; Notice of Deposition of Organization.
a. Reasonable notice must be served in writing by the party, or his attorney, proposing to take a deposition upon oral examination, to every other party or his attorney of record. ...
TEX.R.CIV.P. 200(2) (emphasis added). When other parties are not given notice of the deposition, an "ex parte" deposition is not admissible. See Reilly v. Buster, 125 Tex. 323, 328, 82 S.W.2d 931, 933 (1935); Woodall v. Adams, 7 S.W.2d 922, 925 (Tex. Civ.App.-Galveston 1928, no writ); see also Pouncy v. Garner, 626 S.W.2d 337, 344 (Tex.App.-Tyler 1981, writ ref'd n.r. e.).
In the present case, the trial court entered an interlocutory default judgment against J & K and Home on November 23, 1983, which: (1) rescinded the sales contract; (2) set aside the general warranty deed and bill of sale; (3) cancelled the $135,000 promissory note and second lien deed of trust; (4) cancelled the assumption agreement; and (5) ordered Shenandoah to reconvey the property to the defendants "upon receipt of the restitution and incidental damages hereafter ordered to be paid Plaintiff, by this Court." The court stated that a hearing would be held to determine the amount of damages to be paid to Shenandoah. The court later set aside the default judgment against Home and granted it a new trial. J & K did not attempt to set aside the default judgment against it until July 9, 1984, after the depositions at issue were taken.
*493 Clearly, the default judgment granted against J & K only determined J & K's liability to Shenandoah; the issue of damages was not answered. Therefore, J & K should have been given notice of the taking of the depositions since it was still a party to the suit.
J & K objects to the admission of the deposition testimony of Luther Forman, Steve Brindle, Stanley Black, Stephen Babbidge, Michael Jackson, and Geno Olivas. (The other depositions cited by J & K in its brief were never read into evidence and, therefore, are not crucial.) At trial, the depositions of Jackson and Olivas were read into the record without J & K asserting its notice objection. After more than half of Brindle's deposition had been read into the record, J & K presented its objection for lack of notice. The trial court ruled that the objection was untimely as it applied to the depositions that had already been read into the record, but stated:
The objection insofar as it relates to use of depositions to prove liability and not damages is overruled inasmuch as at the time the depositions were taken, liability had been determined by default judgment against J & K Properties, Incorporated, and when the Court vacated interlocutory default judgment the day before trial commenced J & K Properties, Incorporated, withdrew its motion for continuance, which would have been the proper remedy to allow the retaking of the depositions.
As to the objection insofar as it relates to use of depositions or portions thereof not yet read before the jury and insofar as they relate to the issue of damages against J & K Properties, Incorporated, the Court takes that under advisement and carries it and will make a decision later on that issue.
You've preserved your objection on the record as to all portions not yet read, any portion read will be read over your objection, over your motion to strike. If the Court determines that you are correct, it will take such action as necessary later in the trial or after the verdict to prevent any harm with respect to damages.
The court made no further ruling on the admissibility of the depositions as they relate to the issue of damages.
J & K reurged its objection to the remainder of Brindle's deposition and to the subsequent offers of the depositions of Black, Forman, and Babbidge. Initially, J & K has not specifically attacked the trial court's ruling that it waived its objection based on lack of notice as to the depositions of Michael Jackson, Gene Olivas, and as to that portion of Steve Brindle's deposition that was read before J & K urged its objection. Consequently, J & K has waived error, if any, in regard to that ruling, and we treat the deposition testimony elicited prior to J & K's notice objection as properly admitted.
J & K argues that its due process rights were violated by the admission of depositions taken without notice to J & K, and it contends that the deposition testimony admitted provided the jury with the only credible evidence it had to support its findings against J & K relating to the conditions of the park. It, therefore, contends that the trial court reversibly erred in admitting such testimony.
Although we agree that the trial court erred in admitting any deposition testimony adverse to J & K after it made its objection thereto for lack of notice, our inquiry does not end there. Reversible error is not ordinarily shown in evidentiary rulings unless the whole case turns on the particular evidence admitted or excluded. Bridges v. City of Richardson, 349 S.W.2d at 649. In addition, before we can reverse the trial court's judgment, we must conclude that the admission of the deposition testimony complained of was such a denial of J & K's rights as would reasonably be calculated to cause and probably did cause the rendition of an improper judgment against it. Id.; TEX.R.APP.P. 81(b).
After J & K's notice objection, the trial court admitted other portions of Brindle's deposition and excerpts from the depositions of Black, Forman, and Babbidge. Both before and after objection, Brindle testified to defects in the septic system at the park. His testimony after objection *494 was cumulative of his prior testimony on that subject; after objection, he also testified to some minor problems with the water system. Black testified in more detail to defects in the water lines and to electrical problems in rows one and three at the park.
On the other hand, after Brindle and Black's testimony was admitted, Shenandoah called Lindal Murray as a live witness. Murray testified, without objection by J & K, to the same or similar defects in the septic system and water lines to which Brindle testified and to the same or similar defects in the water lines and the same electrical problems in rows one and three at the park to which Black testified.
According to the general rule, error in the admission of testimony is deemed harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984). Thus, we hold that the trial court's admission, over J & K's objection, of Brindle's and Black's testimony was harmless. Id.
Luther Forman testified by deposition after Murray. His testimony concerned the electrical problems in rows one and three of the park and the cost to bring the park up to 100 amps and/or 200 amps per trailer pad. Forman's testimony was cumulative of that elicited from Murray. An erroneous ruling upon the admissibility of cumulative evidence is not ordinarily reversible, Whitener v. Traders and General Insurance Co., 155 Tex. 461, 467, 289 S.W.2d 233, 236 (1956), and the admission of incompetent evidence does not constitute reversible error when there is other competent evidence in the record on the same question. Mandril v. Kasishke, 620 S.W.2d 238, 249 (Tex.Civ.App.-Amarillo 1981, writ ref'd n.r.e.). Based on these authorities, we hold that the admission of Forman's testimony was harmless error.
Finally, Babbidge's deposition testimony made no mention of J & K or of the condition of the park. J & K was not harmed by its admission.
In summary, an examination of the record as a whole shows that the deposition testimony of which J & K complains was not the only credible testimony before the jury to support its findings against J & K. Consequently, we hold that the admission of this testimony does not amount to such a denial of J & K's rights that it reasonably caused and probably did cause the rendition of an improper judgment against J & K. TEX.R.APP.P. 81(b).
In its second point, J & K argues that the trial court erred, over objection, in deeming admitted J & K's answers to Shenandoah's request for admissions and in admitting into evidence said requests and deemed answers and J & K's answers to Shenandoah's interrogatories. J & K argues three theories to support its position that its answers to Shenandoah's request for admissions and interrogatories are inadmissible: (1) some questions were multiple, confusing, and abusive to J & K, by and through its president, Bill Jacobson, who had no counsel present at the time he answered the interrogatories and requests in the presence of Shenandoah's counsel; (2) Jacobson's answers were obtained upon misinformation and/or misrepresentations to him by Shenandoah's counsel; (3) Jacobson's answers to Shenandoah's request for admissions numbers 13, 15, 16, 17, and 18 should not have been deemed admitted based upon the automatic stay that was in effect at the time of the instigation of the case at bar.
We need not address the merits of J & K's argument under this point because, assuming that the trial court erred in deeming J & K's answers admitted to Shenandoah's requests numbers 13, 15, 16, 17, and 18 and assuming it erred in admitting into evidence those answers and its answers to Shenandoah's interrogatories, we hold that such error does not call for reversal. The only relief awarded against J & K in the trial court's judgment is that awarded Shenandoah in rescinding the sale of the property to it from J & K and the assessment of court costs against J & K, which we address in point six below. The question thus presented here is whether there *495 are any jury findings unrelated to the matters contained in J & K's answers to Shenandoah's request for admissions, and to its interrogatories, that are sufficient to otherwise support the rescission of the sale.
The trial court's judgment of rescission against J & K is based on the jury's answers to various subdivisions of special issues one, two, three, and nine. Although some of the jury's answers are clearly tainted by the admission of the deemed answers and answers to other requests that J & K admitted in Shenandoah's request for admissions, the jury also found adversely to J & K on other issues which were not addressed in either Shenandoah's request for admissions or in its interrogatories to J & K.
For example, the jury found that J & K warranted that the operating statements relating to the park were true and correct, that they were not in conformity with the warranty, that this nonconformity was a producing cause of actual damages to Shenandoah, and that this warranty was made knowingly. The jury made these same findings as to the alleged warranty that the improvements including the sanitation and sewage system were constructed in accordance with the plans provided Shenandoah by J & K. Neither Shenandoah's interrogatories nor its request for admissions addressed these matters. These findings are sufficient to support the trial court's judgment against J & K under the DTPA. See TEX.BUS. & COM.CODE ANN. § 17.50(a)(2).
When a judgment is based on two or more findings and at least one of the findings supports the judgment, there is no necessity to consider the other findings or questions pertaining to the admission or exclusion of evidence having no relation to the particular findings that support the judgment. McMillion v. Wilkinson, 135 S.W.2d 231, 235 (Tex.Civ.App.-Dallas 1939, writ dism'd judgmt cor.) Accordingly, we hold that the trial court's rulings with regard to J & K's answers to Shenandoah's request for admissions and its interrogatories were harmless error. J & K's second point is overruled.
J & K next contends that the trial court erred in instructing the jury to return for additional deliberation to determine an amount of damages to award Shenandoah after the jury initially found that no actual damages had been incurred by Shenandoah for breach of warranty and/or false representations. The special issues involved in this point of error are reproduced below:
SPECIAL ISSUE NO. 5
What sum of money, if any, if paid now in cash to Shenandoah, do you find from a preponderance of the evidence would put Shenandoah in the position it would have been in had it not purchased the Park?
Answer in dollars and cents, if any.
ANSWER; None
SPECIAL ISSUE NO. 6
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Shenandoah for the actual damages it has incurred, if any?
You are instructed that the term "actual damages" means the difference between the value of the Park as represented or promised to Shenandoah and its actual value in the condition in which it was delivered to Shenandoah at the time of the closing.
Answer in dollars or cents, if any.
ANSWER: 0
This answer was changed after further jury deliberation to $44,500.
SPECIAL ISSUE NO. 8
What amount of money, if any, do you find from a preponderance of the evidence should be awarded to Shenandoah for a representation or warranty or failure to disclose information, if any, found by you in Special Issue Nos. 1, 2, 3, or 4, to have been made knowingly? Answer separately as to each applicable Defendant, if any. You may in your discretion, award an amount not more than three times the amount of actual damages in excess of $1,000, if any, found by you in Special Issues 6 or 7, or award none.
*496 Answer in dollars and cents, if any.
J & K $44,500
A-1 -0-
[Family] -0-
[Home] -0-
Bushman -0-
This issue was resubmitted to the jury with the last sentence corrected to read:
You may in your discretion, award an amount not more than three times the amount of actual damages in excess of $1,000, if any, found by you in Special Issues 5 or 6, or award none.
When the trial court judge first read the jury's answers to the attorneys, Shenandoah's attorney noted that the jury's answer in issue eight conflicted with the answers in issues six and seven (which the jury left blank). The court noted that issue eight should have been conditional upon the answers to issues five and six instead of issues 6 or 7. The court sent the following note to the jury:
Members of the jury, I have reviewed your verdict, in light of your answers to issues five, six and eight, you are instructed to reconcile your answer with respect to J & K. You are further instructed that the reference to "special issue six or seven" is amended to read "special issues five or six," in special issue number eight.
J & K made the following objection to sending the note to the jury:
I want to state an objection to having that question submitted to the jury because as a matter of law their findings on special issues five and six require as a matter of law the Court to disregard their finding on special issue number eight under the provisions of the statute and to resubmit that matter to the jury has a possibility to confuse or mislead the jury as to what it is that's in conflict.
Texas Rules of Civil Procedure 195 governs defective verdicts. It states:
If the verdict is informal or defective, the court may direct it to be reformed at the bar. If it is not responsive to the issue submitted, or contains conflicting findings, the court shall call the jury's attention thereto in writing and send them back for further deliberation.
TEX.R.CIV.P. 195. The court not only has the authority to instruct the jury to retire and attempt to reconcile conflicting answers, but it has a duty to call the jury's attention to conflicts. City of Dallas v. Riddle, 325 S.W.2d 955, 957 (Tex.Civ.App. -Eastland 1959, writ ref'd n.r.e.); see Pon Lip Chew v. Gilliland, 398 S.W.2d 98, 101 (Tex.1965); Harris County v. Patrick, 636 S.W.2d 211, 213-14 (Tex.App.-Texarkana 1982, no writ). The court correctly pointed out the conflict in the answers and required the jury to reconsider their conflicting answers. J & K's point of error three is overruled.
In its fourth point, J & K argues that the trial court erred in awarding Shenandoah the remedy of rescission because the jury found that the contract of December 31, 1982, was terminated and rescinded by agreement of the parties prior to the actual real estate closing on January 4, 1983. J & K presents no new argument to support its fourth point; instead, it refers us to its arguments under its points one, two, and three. In effect, J & K is arguing that the only actionable representations or warranties that J & K made were contained in the December 14, 1982, contract as reaffirmed in the amendment thereto on December 31, and that when the parties terminated those contracts at lunch on January 4, 1983, no representation or warranty by J & K to Shenandoah existed as of the closing later that day. We disagree.
The jury found that Shenandoah waived and ratified the closing papers and the sale and condition of the park. These common law defenses defeated Shenandoah's recovery under all theories pleaded except its DTPA claims, which are not subject to common law defenses. Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex.1980); Joseph v. PPG Industries, Inc., 674 S.W.2d 862, 865 (Tex.App.-Austin 1984, writ ref'd n.r.e.) (op. on reh'g). Oral representations can also serve as the basis of a DTPA action. Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex.1985). There was sufficient evidence before the jury to support the jury *497 findings of J & K's violations under the DTPA. We have previously considered J & K's other arguments under points one, two, and three and have rejected them. J & K's fourth point of error is overruled.
In its fifth point, J & K asserts that the trial court erred in denying its motion for judgment n.o.v. because the jury could not have made the findings adverse to J & K in special issues 1, 2, 3, and 9 if the court had not erroneously admitted into evidence (a) Shenandoah's request for admissions with J & K's deemed admissions, (b) its answers to Shenandoah's interrogatories, and (c) certain depositions. We have already held that there was sufficient evidence to support the jury's findings from sources other than the deemed admissions, the answers to the interrogatories, and those portions of the depositions to which J & K timely objected. Accordingly, J & K's fifth point is overruled.
Next, J & K contends that the trial court erred in taxing a portion of the court costs against it because the jury could not have found adverse to J & K in its answers to special issues 1, 2, 3, and 9 if the trial court had not admitted into evidence its answers to Shenandoah's request for admissions and interrogatories and certain depositions. We have already ruled adversely to J & K on the argument asserted. J & K's sixth point is overruled.
Finally, J & K urges in its seventh point that the trial court erred in granting Shenandoah any relief because it was not an authorized limited partnership in California nor any other type of valid entity. In other words, J & K contends that Shenandoah lacked the capacity to sue. J & K cites no applicable authority to support its contention. Consequently, it has waived this point.
HOME'S CROSS-POINTS
Home urges that its counterpoint 1.B. be considered as a separate cross-point if it is more proper to so consider it. Home contends under this counterpoint that the trial court erred in rescinding the sale of the park from J & K to Shenandoah. We perceive this contention as a defense of the trial court's judgment granting Home judgment, foreclosure of lien, and attorney's fees under the $830,000 note and deed of trust. Since we are affirming the trial court's judgment granting Home this relief, we need not address this "cross-point."
In its one formal cross-point, Home contends that the trial court's finding that Shenandoah's action against Home was not groundless is contrary to the great weight and preponderance of the evidence. Because of our disposition of this case in which we affirm the trial court's award to Home of attorney's fees and court costs under its counterclaim on its note, we hold this cross-point moot, because Home has already received all the relief to which it would be entitled under section 17.50(c) of the DTPA.
We reverse the trial court's judgment awarding the Bushman group expenses, and we render judgment that they take nothing for expenses in the trial and appellate courts. In all other respects, the trial court's judgment is affirmed.
STEPHENS, Justice, dissenting.
The original opinion handed down by this court March 31, 1987, reversed and remanded the cause to the trial court for a new trial. I adhere to the original disposition of the case, and disagree with the majority opinion issued on Motion for Rehearing, accordingly, I dissent.
This multiple-party suit was brought by Shenandoah Associates, the dissatisfied purchaser of a mobile home park in Odessa, Texas. Shenandoah seeks rescission and damages under the Texas Deceptive Trade Practices Act of the Business and Commerce Code as amended in 1979. After a jury trial of several weeks, and the submission of several hundred special issues, the trial court entered its judgment rescinding the sale of the park from J & K to Shenandoah, yet charging Shenandoah with liability for the unpaid balances of the first and second mortgages, and awarding attorney's fees against Shenandoah for having brought its suit in bad faith and for the purposes of harassment against all defendants except J & K.
*498 On appeal, as recited by the majority, Shenandoah presents twelve points of error for our consideration. J & K Properties, Inc., a co-appellant, presents seven points of error, and Home Savings Association, Family Development Corporation, A-1 Inc., and John Bushman, appellees, present one cross-point. I agree with Shenandoah's points of error number one, and number six, and I agree with J & K's point of error number one, accordingly, I would reverse the judgment of the trial court and remand the case for a new trial.
CHRONOLOGY OF FACTS
The majority opinion correctly recites the chronology of facts, and the judgment rendered by the trial court.
SHENANDOAH'S CLAIMS
Shenandoah's first point of error complains that the trial court erred by granting partial rescission of the sale of the park instead of full rescission, and by not placing all the parties in the status quo, because partial rescission, not recognized under Texas law, leaves the Bushman group with all the benefits of the transaction.
Shenandoah argues that the rescission is not complete because it still requires Shenandoah to pay $830,000, as evidenced by the assumption agreement, together with the second lien promissory note for $135,000. For purposes of deciding this point the majority assumes without deciding that the trial court properly granted Shenandoah rescission of its purchase of the park, yet would hold Shenandoah liable on its assumption of the first lien note. This conclusion expresses a rationale with which I cannot agree.
RESCISSION
Rescission is an equitable remedy that may be granted upon certain grounds, such as fraud. Boyter v. MCR Construction Co., 673 S.W.2d 938, 941 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). The defrauded purchaser is put to an election whether he will keep the property and recover damages, or rescind the sale and return the property while recovering the value he has parted with. O'Con v. Hightower, 268 S.W.2d 321, 322 (Tex.Civ.App.-San Antonio 1954, writ ref'd). This court in Boyter set out the prerequisites to the granting of rescission:
To be entitled to the equitable remedy of rescission, however, a party must show either (1) that he and the other party are in the status quo, i.e., that he is not retaining benefits received under the instrument without restoration to the other party, Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83, 91 (1955); Freyer v. Michels, 360 S.W.2d 559, 562 (Tex.Civ. App.-Dallas 1962, writ dism'd), or (2) that there are special equitable considerations that obviate the need for the parties to be in the status quo, Turner v. Agricultural Credit Corp., 601 S.W.2d 61, 65 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ); see also Texas Employers Insurance Association v. Kennedy, 135 Tex. 486, 143 S.W.2d 583, 585 (1940).
Boyter, 673 S.W.2d at 941.
Shenandoah complains that the court's judgment requiring it to give up the property, but to continue to pay on the assumption agreement of the first lien note and to pay the second lien note constitutes a partial rescission. I agree with this argument.
A down-payment of $270,000 was required to purchase the Park. On January 4, 1983, at closing, Shenandoah paid $135,000 in cash and signed a promissory note payable to J & K secured by a second lien deed of trust in which it promised to pay J & K $135,000. The second lien deed of trust specifically states that the note "represents a portion of the consideration ... for the purchase of the property" described in the deed. Simultaneously with closing, the second lien note was endorsed by J & K, stating that it did "sell, transfer, assign and set over the within note together with all liens securing same to Family Development" with recourse. When the trial court granted the rescission of the sale of the property to Shenandoah, it should have cancelled Shenandoah's indebtedness on the second lien note, to return the parties to the status quo. See Boyter, 673 S.W.2d at 941. This lien is an indivisible part of *499 the contract for the purchase of the Park; the rescission without cancellation of the note constitutes a prohibited "partial rescission." Raney v. Mack, 504 S.W.2d 527, 534 (Tex.Civ.App.-Texarkana 1973, no writ). Having elected to sue for rescission, Shenandoah should have recovered the value it parted with. O'Con, 268 S.W.2d at 322.
In addition to the cash payment and the execution of the second lien note, Shenandoah assumed the unpaid balance of the original first lien note in the amount of $830,000.00, as a part of the consideration of the sale. Generally, an assumption agreement in a deed of conveyance creates a new contract under which the one making the assumption becomes the principal obligor and the original maker becomes the surety. Straus v. Brooks, 136 Tex. 141, 146, 148 S.W.2d 393, 396 (Tex.Com.App. 1941). The agreement is an unconditional contract within itself; an unconditional promise to pay the debt. The promisor has made the debt his own, has become primarily liable for its discharge, and has assumed an independent duty of payment, irrespective of the liability of the principal debtor. Id.
However, when the assumption of an existing debt is a part of the consideration for the underlying contract of sale, the cancellation and rescission of the sale demands that equity be done by cancelling the debt assumption. For a purchaser to successfully rescind the purchase of real estate in a court of law, and yet be held to the assumption of the underlying debt is unconscionable. An exception would lie if it be shown that the mortgagee released the original obligor from the debt in reliance on the purchaser, or otherwise altered its position, as a consideration of the sale. This was not shown to be the case here, nor has the majority cited any authority in support of its position that rescission lies, yet the underlying original debt should be paid by Shenandoah. When the equitable relief of rescission is granted the original status of the parties must be restored. See Texas Co. v. State, 154 Tex. 494, 507-08, 281 S.W.2d 83, 91 (1955); Boyter, 673 S.W.2d 941; Proctor v. Green, 673 S.W.2d 390, 393 (Tex.App.-Houston [1st Dist.] 1984, no writ).
A recognized exception to this rule is when the purchaser terminates the contract and the court has examined the circumstances and determined that it would be more equitable to grant the rescission without the complete or partial restoration of the consideration received by the purchaser while in possession of the purchased item. See Boyter, 673 S.W.2d at 941; Turner v. Houston Agricultural Credit Corp., 601 S.W.2d 61, 65 (Tex.Civ.App.- Houston [1st Dist.] 1980, writ ref'd n.r.e.). I believe that the trial court properly weighed the circumstances of this case and found it more equitable not to require Shenandoah to return to J & K the rental payments and other monies obtained while it was in control of the property.
The trial court granted Shenandoah's request for the equitable relief of rescission; therefore, it follows, and equity dictates, that Shenandoah should be returned to the status quo by requiring J & K to return the rescinded sales agreement purchase money in the sum of $135,000.00, by cancelling the second lien note of $135,000, and by cancelling Shenandoah's assumption agreement of the original loan. Shenandoah's first point of error should be granted.
In point of error number six, Shenandoah complains that testimony by an expert witness far exceeded the boundaries of a pretrial order, which limited the expert's testimony to reasonable attorney's fees and the amount of damages. Shenandoah asserts that the testimony was prejudicial because, contrary to the court's order, the witness testified freely concerning the reliance of the parties on certain documents, proper documents for a closing, the lack of certain documents at the closing, the generally accepted interpretation of documents and their meanings, whether the attorney for Shenandoah acted with propriety, and the witness also interpreted the Canons of Ethics. These were only a few of the areas of dispute on which the witness testified. I am mindful of the general proposition that the determination of the admissibility of *500 opinion testimony is a matter within the sound discretion of the trial court, which will not be disturbed on appeal absent a showing of abuse. UMC, Inc. v. Coonrod Electric Co., 667 S.W.2d 549, 559 (Tex.App. -Corpus Christi 1983, writ ref'd n.r.e.). However, I am of the opinion that in light of the complexity of the case before us, admission of the testimony of this particular witness, far in excess of the limitations placed upon him by the trial court's pretrial order, was highly prejudicial and the trial court abused its discretion by admitting such testimony.
Appellee argues correctly that if the improper evidence given by the witness is supported by other evidence in the case, admitted without objection, or of the same character or effect, adduced or elicited by the complaining party, the error is harmless. Drake v. Walls, 348 S.W.2d 62, 69 (Tex.Civ.App.-Dallas 1961, writ ref'd n.r. e.); see Missouri-Kansas-Texas Railroad Co. v. Shelton, 383 S.W.2d 842, 848 (Tex. Civ.App.-Dallas 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 845, 86 S. Ct. 54, 15 L. Ed. 2d 85 (1965); City of Houston v. Howe & Wise, 323 S.W.2d 134, 138 (Tex. Civ.App.-Houston 1959, writ ref'd n.r.e.); see Richardson v. Green, 677 S.W.2d 497, 501 (Tex.1984); Columbia Engineering International, Ltd. v. Dorman, 602 S.W.2d 72, 77 (Tex.Civ.App.-Beaumont 1980, writ ref'd n.r.e.). However, appellee has not pointed out to this court what other evidence, properly admitted, would justify a finding that the testimony of this witness was harmless, and I decline to search the thirty-eight hundred pages of testimony to attempt to find such other evidence. Appellant's sixth point of error should be sustained.
J & K's CLAIMS
J & K first contends that the trial court erred by admitting into evidence, depositions that were taken without notice to J & K. Notice was only given to A-1.
Texas Rule of Civil Procedure 200(2) states the notice requirements for an oral deposition:
2. Notice of Examination: General Requirements; Notice of Deposition of Organization.
a. Reasonable notice must be served in writing by the party, or his attorney, proposing to take a deposition upon oral examination, to every other party or his attorney of record. ...
[Emphasis added.] When other parties are not given notice of the deposition, an "ex parte" deposition is not admissible. See Reilly v. Buster, 125 Tex. 323, 328, 82 S.W.2d 931, 933 (1935); Woodall v. Adams, 7 S.W.2d 922, 925 (Tex.Civ.App.-Galveston 1928, no writ); see also Pouncy v. Garner, 626 S.W.2d 337, 344 (Tex.App.- Tyler 1981, writ ref'd n.r.e.).
In the present case, the trial court entered an interlocutory default judgment against J & K and the other defendants, on November 23, 1983, which: (1) rescinded the sales contract; (2) set aside the general warranty deed and bill of sale; (3) cancelled the $135,000 promissory note and second lien deed of trust; (4) cancelled the assumption agreement; and (5) ordered Shenandoah to reconvey the property to the defendants "upon receipt of the restitution and incidental damages hereafter ordered to be paid Plaintiff, by this Court." The court stated that a hearing would be held to determine the amount of damages to be paid to Shenandoah. Clearly, this interlocutory default judgment only determined J & K's liability to Shenandoah; the issue of damages was not answered. Therefore, J & K should have been given notice of the taking of depositions since it is a party to the suit in which damages were yet to be determined.
J & K objects to the admission of the deposition testimony of Steve Brindle, Stanley Black, Stephen Babbidge, Michael Jackson, and Geno Olivas. (The other depositions cited by J & K in its brief were never read into evidence and, therefore, are not crucial.) At trial, the depositions of Jackson and Olivas were read into the record without J & K asserting its notice objection. After half of Brindle's deposition had been read into the record, J & K presented its objection for lack of notice. The trial *501 court ruled that the objection was untimely as it applied to the depositions that had already been read into the record, but stated:
The objection insofar as it relates to use of depositions to prove liability and not damages is overruled inasmuch as at the time the depositions were taken, liability had been determined by default judgment against J & K Properties, Incorporated, and when the Court vacated interlocutory default judgment the day before trial commenced J & K Properties, Incorporated, withdrew its motion for continuance, which would have been the proper remedy to allow the retaking of the depositions.
As to the objection insofar as it relates to use of depositions or portions thereof not yet read before the jury and insofar as they relate to the issue of damages against J & K Properties, Incorporated, the Court takes that under advisement and carries it and will make a decision later on that issue.
You've preserved your objection on the record as to all portions not yet read, any portion read will be read over your objection, over your motion to strike. If the Court determines that you are correct, it will take such action as necessary later in the trial or after the verdict to prevent any harm with respect to damages.
The court made no further ruling on the admissibility of the depositions as they relate to the issue of damages.
J & K re-urged its objection to the remainder of Brindle's deposition and to the depositions of Black and Babbidge. Upon reviewing the depositions that were admitted into evidence without objection and those that were admitted over objection, I find damaging evidence that was admitted before the jury that is not "offset" by properly admitted deposition testimony. See Richardson, 677 S.W.2d at 501. (e.g. Brindle had testified about defectively built septic tanks before the objection, and continued to testify concerning various other defective septic tanks after the objection. Brindle then went on to describe defective water lines. Black testified that he was in charge of collecting rent, maintenance, and leasing. He stated that the rent receipt books were "moderately" accurate; that the water lines were not properly attached at the faucets; and there was a great danger of the lines "breaking off at the main," causing the water to be cut off for repairs "several times" due to this fault.)
I would hold that the remaining portion of Brindle's deposition and Black's deposition were improperly admitted for purposes of determining damages after proper objection by J & K. Brindle and Black's deposition testimony was damaging to J & K as it presented evidence of bad workmanship and improper bookkeeping that supports Shenandoah's request for damages.
Having made the determination that this deposition testimony was improperly admitted, absent notice to J & K, and being unable to conclude that such admission was harmless error, I would sustain J & K's first point of error.
The judgment of the trial court should be reversed, and the cause remanded for a new trial.
NOTES
[1] The Honorable Cynthia Hollingsworth, Justice, concurred in the result of this opinion prior to the end of her term.
[1] The Honorable Cynthia Hollingsworth, Justice, concurred in the results of the former opinion prior to the end of her term.
The Honorable Gordon Rowe participated in this opinion on rehearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899649/ | NO. 07-09-0046-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 6, 2009
______________________________
MARC E. ROUNSAVALL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2007-442,973; HON. LARRY B. âRUSTYâ LADD, PRESIDING
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
          Following a plea of not guilty, appellant, Marc E. Rounsavall, was convicted by a jury
of driving while intoxicated and sentenced to 30 days incarceration in the Lubbock County
Jail and $2,000 fine. The fine was, however, probated. The clerkâs record was filed on
February 26, 2009.
          Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter
a Certification of Defendantâs Right of Appeal each time it enters a judgment of guilt or
other appealable order. Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d
906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if the certification has not
been made part of the record under the applicable rules. Tex. R. App. P. 25.2(d). An
appellate court that has an appellate record that includes a certification is obligated to
review the record to ascertain whether the certification is defective. Dears v. State, 154
S.W.3d 610, 615 (Tex.Crim.App. 2005).
          Pursuant to an amendment to Rule 25.2(d), which became effective on September
1, 2007, the certification of defendantâs right of appeal must be signed by the defendant
and a copy must be given to him. Tex. R. App. P. 25.2(d). Additionally, the certification
shall include a notice that the defendant has been informed of his rights concerning appeal,
as well as his right to file a pro se petition for discretionary review.
          The certification contained in the clerkâs record does not contain the defendantâs
signature. Furthermore, it does not reflect whether a copy of the certification was given to
the defendant nor does it indicate whether the defendant was given the required
admonishments. Therefore, the certification on file is defective.
          Consequently, we abate this appeal and remand the cause to the trial court for
further proceedings. Upon remand, the trial court shall utilize whatever means necessary
to secure a Certification of Defendantâs Right of Appeal in compliance with Rule 25.2(d).
Once properly executed, the certification shall be included in a supplemental clerkâs record
and filed with the Clerk of this Court on or before April 6, 2009.
          This order constitutes notice to all parties of the defective certification pursuant to
Rule 37.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 37.1. If a
supplemental clerkâs record containing a proper certification is not filed in accordance with
this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P.
25.2(d).
          It is so ordered.
Per Curiam
Do not publish.
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NO. 07-11-00027-CR
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL A
Â
JULY
27, 2011
Â
Â
RICHARD N. TREVINO, APPELLANT
Â
v.
Â
THE STATE OF TEXAS, APPELLEE
Â
Â
FROM THE 426TH DISTRICT COURT OF
BELL COUNTY;
Â
NO. 65377; HONORABLE FANCY H. JEZEK, JUDGE
Â
Â
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Â
Â
MEMORANDUM OPINION
           Appellant,
Richard N. Trevino, was convicted of indecency with a child by contact[1]
and sentenced to twenty years imprisonment.Â
On appeal from his conviction, he complains that the trial court erred
by including in its charge to the jury a definition of female genitalia. Appellant maintains that the trial courtÂs
inclusion of this definition constitutes an improper comment on the weight of
the evidence because a witness had testified to a substantially similar
definition at trial. We will affirm.
Factual and Procedural History
           Because
appellant does not challenge the sufficiency of the evidence to support his
conviction, we provide only so much of the factual background as is necessary
to provide a context and to address appellantÂs issue. When she was in sixth grade, V.H. was the
only passenger on the school bus that appellant drove. The two talked regularly. After V.H. moved to a different bus route in
the seventh grade, fifty-two-year-old appellant made arrangements to take then
thirteen-year-old V.H. to various extra-curricular activities, making certain
to take longer routes and to arrange stops so that V.H. was either the last
remaining or the only passenger on the bus.Â
The two began to talk regularly by phone and exchanged text messages and
letters. Their relationship eventually
took on certain romantic characteristics.
           In
the spring of 2009, appellant drove V.H. to a newly-developed neighborhood,
parked the bus, and began kissing and touching her as he had done in the
past. He removed V.H.Âs pants and kissed
and touched her Âgenital area.ÂÂ At a
later encounter, appellant once again removed her pants and penetrated her
vagina with his penis for, according to V.H., about fifteen seconds.
           The
State presented testimony from Heather Young, registered nurse and sexual
assault nurse examiner (SANE). In
pertinent part and in reference to a diagram, Young testified as follows:
The external structures, the first thing [you] have, this is called the
 the fatty outer lips of the  of the genitalia is called the labia majora. Okay. That is where pubic hair grows. Okay.
Also, part of the external genitalia is called the mons
pubic  pubis. It is the area up here. It is a fatty layer of tissue over the pubic
bone that also has pubic hair growth on it as well.
. . .
And I apologize. I did forget to
mention the fatty outer lips which is the labia majora, then you have the inner lip which is the labia minora, itÂs the thin inner lip, as well.
Appellant lodged no
objection to this testimony.
           In
its charge to the jury, the trial court included the following language:
The genitals or genitalia of a female consist of an internal group and
an external group. The internal group is
situated within the pelvis and consists of the ovaries, uterine tubes, uterus
and vagina. The external group is
situated below and in front of the pubic arch and consists of the mons pubis (the rounded mound in front of the joinder of the pubic bones that becomes covered with hair
at the time of puberty), the labia majora and minora (longitudinal folds of skin at the opening of the
female orifice) and certain glands situated within the vestibule of the vagina.
Appellant objected to the
inclusion of this definition. Appellant
contended and maintains on appeal that inclusion of this definition constituted
an improper comment by the trial court on the weight of the evidence because it
so closely resembled the testimony of Young.Â
We will overrule appellantÂs sole issue presented and affirm the trial
courtÂs judgment of conviction.
Standard of Review and Applicable Law
           A
person commits the offense of indecency with a child by contact if, with a
child younger than 17 years of age and not the personÂs spouse, the person
engages in sexual contact with the child or causes the child to engage in
sexual contact. Tex. Penal Code Ann. § 21.11(a)(1). ÂSexual contact means Âany touching by a
person of Âany part of the genitals of a child or Âany touching of any part
of the body of a child with Âany part of the genitals of a person, Âif
committed with the intent to arouse or gratify the sexual desire of any
person. Id. §
21.11(c). The Texas Penal Code
does not define the term Âgenitals.Â
           The
trial courtÂs charge to the jury must satisfy the following definition:
a written
charge distinctly setting forth the law applicable to the case; not expressing
any opinion as to the weight of the evidence, not summing up the testimony,
discussing the facts or using any argument in his charge calculated to arouse
the sympathy or excite the passions of the jury.
Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2007). The trial courtÂs charge must contain an
accurate description of the law. Ex parte Varelas, 45 S.W.3d 627,
633 (Tex.Crim.App. 2001). But the trial court must not convey any
personal opinion in the jury charge as to the truth or falsity of any
evidence. Russell
v. State, 749 S.W.2d 77, 78 (Tex.Crim.App. 1988). A charge that Âassumes the truth of a controverted issue is an improper comment on the weight of
the evidence. Whaley
v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986);
Delapaz v. State, 228 S.W.3d 183, 212 (Tex.App.ÂDallas 2007, pet. refÂd).
           A
trial court has broad discretion in submitting proper definitions and
explanatory phrases to the jury. Macias v. State, 959 S.W.2d 332, 336 (Tex.App.ÂHouston
[14th Dist.] 1997, pet. refÂd). A trial court must define any legal phrase
that a jury must necessarily use in properly resolving the issues. See Breckenridge
v. State, 40 S.W.3d 118, 123 (Tex.App.ÂSan
Antonio 2000, pet. refÂd); Macias, 959 S.W.2d
at 336. As a general rule, a term
that is not legislatively defined is to be understood as ordinary usage allows,
and jurors may give them any meaning which is acceptable in common
parlance. See Breckenridge,
40 S.W.3d at 123 (citing Medford v. State, 13 S.W.3d 769, 771-72 (Tex.Crim.App. 2000)).
           As
the Breckenridge court pointed out, however, there are exceptions to
this general rule:
Justice is better served, and more consistently applied, if jurors are
provided a precise, uniform definition to guide their determination regarding
the meaning of certain words and phrases.Â
For example, justice is better served by defining words and phrases
which have a known and established legal meaning, or which have acquired a
peculiar and appropriate meaning in the law, as where the words have a
well-known common law meaning.
Id. (citing Medford, 13 S.W.3d at
772). (Internal citations omitted).
           Applying
this exception, the Breckenridge court addressed a contention similar to
the one made by appellant in the instant case.Â
Breckenridge had been convicted of indecency with a child by exposure
and argued on appeal that the trial court should not have included a definition
of female genitalia that was identical to the one included in the instant
case. Id. at
121. The San Antonio court
rejected the appellantÂs argument that the definition Âsingled out testimony
and commented on the weight of the evidence.ÂÂ
Id. at 122, 124. Because the testimony at trial drew
distinctions between the terms Âvagina and Âpubic area and because Âthe
jurors were required to understand the legal meaning of the term genitals to
properly resolve the issue, the trial court did not abuse its discretion by
including a definition of Âgenitals in its charge to the jury.[2] Id. at 124.
           In
arriving at its conclusions directly relevant to the issues at bar, the Breckenridge
court discussed Clark v. State, 558 S.W.2d 887, 888Â89 (Tex.Crim.App. 1977).Â
In Clark, the appellant challenged the sufficiency of the
evidence to sustain his conviction for indecency with a child and urged a
narrow definition of Âsexual contact and Âgenitals. See id. at
889. The Texas Court of Criminal Appeals
rejected the appellantÂs interpretations and concluded that Section 21.11
prohibited the touching of any part of the genitals, which includes more than
just the vagina. See id. The court continued: Âthe definition of
Âgenitals includes the vulva which immediately surrounds the vagina. Id.; see Carmell
v. State, 331 S.W.3d 450, 460 (Tex.App.ÂFort
Worth 2010, pet. refÂd).
           Authority
from the Austin court is consistent with ClarkÂs conclusions and its
treatment of the term Âgenitals as one having an established legal meaning.[3] See Aylor
v. State, 727 S.W.2d 727, 729Â30 (Tex.App.ÂAustin
1987, pet. refÂd) (quoting ClarkÂs definition
of Âgenitals to support conclusion that, similarly, Âfemale sexual organÂ
included more than the vagina).Â
Authority from this Court is likewise consistent. We recently applied ClarkÂs definition
of Âgenitals in determining that evidence that the appellant touched the
Âpubic hair area of the victim was sufficient to support a conviction for
indecency with a child by contact. See
Salcido v. State, No. 07-10-00170-CR,
2011 Tex. App. LEXIS 1791, at *6Â8 (Tex.App.ÂAmarillo
Mar. 11, 2011, pet. refÂd) (mem.
op., not designated for publication).Â
And in an analogous case, we concluded that the trial court did not
abuse its discretion by including in its charge a definition of the term
Âfemale sexual organ as it related to the charges of aggravated sexual
assault. See Gonzales v. State,
No. 07-07-00036-CR, 2010 Tex. App. LEXIS 4962, at *3 (Tex.App.ÂAmarillo
June 28, 2010, no pet.) (mem. op.,
not designated for publication).
Analysis
           Here,
V.H. testified that appellant kissed and touched her Âgenital area.ÂÂ She described appellant touching her on Âthe
top of her genital area where she had begun to grow hair. So, the jury heard evidence
as to the where and how appellant touched V.H. As was the case in Breckenridge, the
jury was called on to understand the legal meaning of the term Âgenitals to
resolve an issue in this case: whether appellantÂs actions met the definition
of Âsexual contact.ÂÂ See Breckenridge,
40 S.W.3d at 124.Â
The trial court did not abuse its discretion by providing the jury with
the meaning of the term Âgenitals in order to accurately set forth the law
applicable to this case. See Tex. Code Crim. Proc. Ann. art 36.14. The trial court, therefore, did not abuse its
discretion by including a definition of Âgenitals in its charge to the
jury. We overrule appellantÂs sole issue
on appeal.
Â
Conclusion
           Having
overruled appellantÂs sole issue, we affirm the judgment of the trial court.
Â
Â
                                                                                               Mackey
K. Hancock
                                                                                                           Justice
Â
Do
not publish.Â
Â
[1]
See
Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). In
companion case, Trevino v. State, 07-11-00026-CR, appellant appealed his
conviction for aggravated sexual assault of a child.
Â
[2]
Appellant relies heavily on the dissenting
opinion in Breckenridge, 40 S.W.3d at 128 (Hardberger,
J., dissenting). We are not persuaded to
adopt the dissenting opinionÂs rationale and respectfully decline to do so.
Â
[3]
This appeal was originally filed in the Third
Court of Appeals but was transferred to this Court pursuant to the Texas
Supreme CourtÂs docket equalization efforts.Â
See Tex. GovÂt Code Ann. § 73.001 (West 2005). As we point out, we are aware of no conflicts
between the authority of the Austin court and this Court which would invoke the
conflicts considerations of Rule 41.3 of the Texas Rules of Appellate Procedure. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2610357/ | 76 Cal. App. 2d 330 (1946)
THE PEOPLE, Respondent,
v.
CHARLES E. HILL, Appellant.
Crim. No. 4015.
California Court of Appeals. Second Dist., Div. One.
Oct. 3, 1946.
Henry Poyet for Appellant.
Robert W. Kenny, Attorney General, Frank W. Richards, Deputy Attorney General, Fred N. Howser, District Attorney, and Jere J. Sullivan and Robert Wheeler, Deputies District Attorney, for Respondent.
WHITE, J.
The district attorney filed an information in the Superior Court of Los Angeles County wherein the defendant was charged with the commission of five (5) felonies as follows:
Count 1: Kidnapping;
Counts 2 and 5: Rape;
Counts 3 and 4: Violation of section 288a of the Penal Code.
Trial before a jury resulted in the conviction of defendant on all five counts. A motion for a new trial was denied and defendant was sentenced to state prison for the terms prescribed by law on all counts, the sentences to run concurrently.
From the judgment of conviction and the order denying motion for a new trial, defendant prosecutes this appeal.
Because the sole ground of appeal is that the court erred in refusing certain instructions offered by the defendant, we do not deem it necessary to here recite in detail the sordid circumstances which gave rise to this prosecution. The evidence pertinent to a consideration of this appeal may be thus epitomized: *333
Between 9 and 10 o'clock on the evening of September 20, 1945, the prosecutrix, a woman divorced from her husband and the mother of two children aged 8 and 6 years, was sitting with a male companion in the latter's parked automobile on a public scenic drive in the Palos Verdes Hills in Los Angeles County. Defendant approached the automobile on the side where the man was sitting behind the steering wheel, opened the door and shoved an object into the man's side, whereupon the latter told the prosecutrix seated beside him to run away. She ran about half way down the hill on the asphalt road, turned up a bank to a bush behind which she secreted herself. She heard the defendant following her, and when he too turned running off the road she ran to the other side of the bush, down the bank, and across the road. The defendant continued to pursue her, calling out, "You stop or I'll kill you."
When the defendant was within 8 or 10 feet behind her, the prosecutrix stopped. Walking up to him she observed that he had a flat, gunmetal- colored revolver in his right hand. When the prosecutrix inquired of the defendant what he wanted, he told her to "shut up"; that he was not a "cop" and that "you will find out what I want." The defendant then turned the prosecutrix around, put the gun "behind my heart, in my back" and asked her to go back to the automobile or "I'll plug you here." The prosecutrix testified that she was "desperately afraid" of the defendant's gun, and that "by the tone of his voice and the way that he was acting" the prosecutrix testified she "didn't doubt for one instant" that he would shoot her if she failed to obey him.
With the defendant behind her, holding her left arm, and with the gun pressed against her back, the prosecutrix, in obedience to the defendant's command, and with him "pushing and shoving" her, proceeded back to her companion's automobile.
When the defendant and prosecutrix arrived at her companion's automobile he was not in sight and did not respond to calls for him uttered by the prosecutrix. There is testimony that the defendant was very nervous and highly excited, that he insisted to the prosecutrix that if she did not get her male companion back to the car he would shoot her then and there. At this time, defendant was still holding his gun to her back. After the prosecutrix, at the defendant's command, made further *334 outcries for her companion, the latter came from behind the car with his hands up.
Defendant told him that he did not want money but wanted the woman and that he would kill her companion if the latter came any closer. Defendant threatened "very often" to kill the companion of the prosecutrix and finally instructed him to stay at the car for 50 minutes and to then come to a spot at the end of the road where he would find his automobile keys.
The defendant again emphasized that if the man did not remain at the automobile he, the defendant, would kill the prosecutrix. During all of his talking, the defendant continued to keep his gun pressed to the prosecutrix's back, and, according to her testimony, she was at all times in fear and apprehension that defendant would shoot her companion if she and the defendant stayed at the automobile. She thereupon said to the defendant, "If it is me you want, let's go."
After proceeding some 50 feet, the defendant turned the prosecutrix off the road, took her across a field and up a hill. He inquired of her as to whether she was married to her companion, to which she replied in the negative, and told the defendant her companion was her boss.
At the top of the hill, about a block from the aforesaid automobile, the defendant commanded the prosecutrix to get in the front seat of another automobile and drove off with her, circling around the hills for "a long time." All of this time, the prosecutrix testified, she was trying to talk to the defendant but that the latter was "very brutal in his voice" telling her that he did not intend to bring her back as she would "squeal" on him and that, therefore, he would kill her where they were. According to the testimony of the prosecutrix, her one thought was to convince the defendant that she would not "tell on him" and she so stated to him. She thereupon suggested that she and the defendant go to a beer parlor or to his apartment, which invitation the defendant refused. She then told the defendant of her children. During all of this time, according to her testimony, the prosecutrix was frightened "practically out of her wits." While in the automobile the defendant kept his gun in the front of his unbuttoned shirt. He drove around the hills for about 30 minutes, never on the highway, and then drove the car off into and across a large Decalite pit hewn from the side of a hill, and to a lonely spot overgrown with weeds with room for just one automobile going one way. There were no houses or people around nor were any house lights to be seen. At this point the defendant *335 said, "Here is where I get some of that loving." At defendant's command, made while he had a gun in his hand, the prosecutrix practically disrobed. She testified she did so because of her fear of the defendant and the thought that he would kill her if she refused. Thereupon, defendant consummated the acts forming the basis of counts 2, 3, 4 and 5. After the consummation of the aforesaid acts, defendant stated to the prosecutrix that she was "pretty nice" and that he wanted her address and telephone number. Fearful of consequences that might ensue if she refused this request, she gave the defendant the requested information as well as the name of the place where her former husband had worked and also the address of her companion. Defendant stated to the prosecutrix that he could probably get her a better job than she had. He then drove her past her house and, at about 11 o'clock, to within half a block of her sister's house.
Defendant told the prosecutrix that if she reported him to the police, he would kill her or disfigure her by throwing acid upon her when he got out of prison. He further told her that he would be back in four or five nights and that he intended to keep in touch with her. After that he compelled her to kiss him, whereupon she turned and walked to her sister's house while the defendant drove away. Immediately upon admission into her sister's house the prosecutrix made complaint of the defendant's conduct. The prosecutrix was then driven by a friend Gene Baker back to the hills where they found the companion of the prosecutrix circling about with his car. The prosecutrix testified that she was then driven home and did not call the police immediately because she was "too mentally sick."
The following morning, at about 11:50 o'clock, the defendant telephoned the prosecutrix at her house. He wanted to see her again, but she told him she was too tired and nervous and that she was having a birthday party next day, Saturday, for her little boy. Defendant insisted upon seeing her Sunday, to which she agreed. Immediately after this telephone conversation, the prosecutrix communicated with the police. She testified that she was ill and went to bed where she stayed until the next morning, September 22, when she consulted her family physician. Upon her return from the doctor's office, the prosecutrix observed the defendant drive by her house smiling at her. Shortly thereafter he telephoned to the prosecutrix saying that he was scared, was getting nervous, had *336 to see her right away, and would be over in five minutes. According to the testimony of prosecutrix, she agreed to his coming, in order to aid in his apprehension. Immediately after this conversation, the prosecutrix again telephoned the police department. In less than five minutes, the defendant arrived and a few minutes thereafter the officers were on the scene. The defendant was taken into custody. The prosecutrix went out to the police car and identified defendant as her assailant. At the trial the prosecutrix identified the gun that the defendant pressed against her back and which, at times, he carried in his shirt, and also another gun which the defendant had in his automobile and had exhibited to her.
The male companion of the prosecutrix testified at the trial. He corroborated the testimony of the prosecutrix as to what occurred at all times when he was present.
On the day of the defendant's arrest, one Gene Baker testified that he saw the defendant drive by the prosecutrix's home twice and that, after the defendant parked in front of the home of the prosecutrix and upon the approach of Mr. Baker, he seemed about to drive away, the latter, with a shotgun, blew the rear tire off the defendant's automobile. At the time of his arrest, the defendant had with him a tear gas bomb, which was introduced into evidence. At the same time, defendant's Colt automatic with a shell in the firing chamber, was found in the rear of the front seat cushion of his automobile, shoved down between the back cushion and the seat cushion with the butt protruding up, while a fully loaded clip of cartridges was found in the glove compartment. Also found in the vehicle was his fully loaded 30-20 revolver stuck down and just to the left of where the driver would sit in the car and between the front seat frame and the cushion.
Subsequent to his arrest, the defendant had conversations, in the presence of several persons, with a Los Angeles police officer, the Chief of Police of Torrance, and a deputy sheriff of Los Angeles County. While waiting in the automobile at the scene of his arrest, the defendant stated, "I'm the guy you are after ... I am the guy that had the girl up in the hills." At the Torrance Police Station the defendant stated that he had sexual intercourse with the prosecutrix at the Decalite pit and had her commit upon him an act of sexual perversion. As to the latter, when asked if he had to force her, he said, "I had to push her head down." At the Vermont substation of the sheriff's office, the defendant stated that at *337 the Decalite pit he had engaged in an act of sexual intercourse with the prosecutrix, that he then committed an act of sexual perversion upon her, that he then had her commit a similar act upon himself, and that he then had another act of sexual intercourse with her. At this point the defendant was asked, "Was this all done by the girl's own free will?" to which the defendant replied, "I guess it was all by force."
At the trial, the defendant introduced the testimony of a private investigator who stated that on November 25, 1945, he saw a man take a woman from the apartment of the prosecutrix, drive her to the beach, where it appeared to him that "a loving affair was had in the automobile," but when the prosecutrix stood some 14 feet from the witness stand the investigator was not positive that she was the woman he had seen, nor could he identify the man. The witness admitted he might have confused the woman with the sister of the prosecutrix who was also in court and confronted him. The sister of the prosecutrix testified that it was she who had been driven to the beach, and the man who accompanied her testified that it was she and not the prosecutrix with whom he was keeping company and whom he took to the beach on the occasion in question, at which time the prosecutrix remained in her own apartment. The witness testified that in fact, the prosecutrix never at any time was in his automobile.
The defendant testified at the trial that as he drove by the car in which the prosecutrix and her male companion were sitting, he thought a fight was in progress, though he did not hear anything. After proceeding to the top of the hill he turned around, parked about 100 yards from the automobile in which the prosecutrix was seated, took his gun, flashlight and a handful of dirt. He testified that when he arrived at the car the man was in the back thereof buttoning up his trousers, that he threw the sand or dirt in the man's face when it appeared that the latter was going to rush him. Defendant stated that the prosecutrix ran away from the automobile, that he did not know her name to call her so we went after her. He testified that he encountered her and they walked back to the automobile, during which time the prosecutrix stated to him that the man she was with was her foreman, that she was desperately in need of money and that was the only reason she was out with him. According to the defendant, the prosecutrix asked him, "What do you want? Money?" to which he said, "No; I don't want money; I don't want a *338 thing. I just thought you was in trouble." That the prosecutrix thereupon said, "You couldn't use some loving now, could you?" According to the defendant, he said, "Well, no, not hardly; I don't think so." to which, according to his testimony, the prosecutrix replied, "I can fix you up if you do."
Defendant testified that when they reached the automobile he pulled his gun when the male companion of the prosecutrix came from behind the automobile after she had called him. That the prosecutrix suggested that she and the defendant leave and not have any trouble. Defendant testified that he started backing away and she followed him and entered his automobile. That the prosecutrix suggested that they go to his apartment but that he said, "No, we can't go to my apartment. I know a place we can go to I guess." That he then drove to the spot in the Decalite pit where they, with her consent, engaged in an act of sexual intercourse. The defendant denied committing any acts of sexual perversion upon or with the prosecutrix. In detailing the manner in which he obtained her telephone number, he testified that they made an engagement to meet the following Sunday. In explanation of his telephone call on the following day, he said that it was with reference to his promise to obtain a position for her. He admitted driving by the home of the prosecutrix and exchanging smiles with her. He also admitted the telephone conversation with her and testified that she invited him to come over to her house, which he did. That he was there met by two men, one with a shotgun, that his rear tire was shot off, that he was knocked down by one of the men and shortly thereafter the police arrived and took him into custody.
While testifying that the officers were not "rough" in questioning him, the defendant at the trial could remember only "snatches" of the questions asked of him and the answers given by him because he said that he was ill, "half-way dizzy" and had "a terrific headache."
In urging a reversal of the judgments and order herein, appellant states, "When the evidence, as in this case, is of such an unusual and unique character, the court should extend themselves to see that juries have in mind these broad principles of law in simple and concise language as was offered in these instructions and should not be compelled upon their own to apply deductions and inferences which some general instructions may inferentially be held to apply when profound and intricate theories must be supplied in order to *339 make them appear legally sufficient. It is our contention that none of the instructions which the court gave to the jury would direct a jury to a consideration of the defendant's defense." As to what appellant's defense was, it would appear from a reading of the record that in substance, as reflected by his own testimony, his defense was that the prosecutrix voluntarily left her male companion, willingly accompanied the defendant whom she had never before met, to a lonely spot in the hills, where she made advances to him and solicited from him acts of sexual intercourse, or as stated in appellant's brief, "he of course fell for seduction, was seduced and finds himself in his present position." As to the charges of kidnapping and violations of section 288a of the Penal Code, he denied that he committed any of the acts forming the gravamen of these offenses. The evidence introduced by the prosecution and evidently believed by the jury, was amply sufficient to prove the offenses charged. Indeed, it is not here contended that the evidence fails to support the guilty verdicts rendered. True, the evidence introduced for the defense created a conflict, but that was a question addressed to the triers of fact for solution and with their determination we cannot interfere.
It therefore becomes our duty to determine whether the instructions given, fully, fairly and correctly advised the jury of the law applicable to the issues presented by the information and pleas of the defendant or raised by the evidence.
[1] Appellant's first refused instruction pertains to the presumption of innocence, the doctrine of reasonable doubt, and emphasizes the fact that the presumption of innocence is not a mere form to be lightly disregarded, but is an essential and substantial part of the law of the land. The court instructed the jury on the doctrine of reasonable doubt and the presumption of innocence in the language of section 1096 of the Penal Code. Section 1096a of the same code specifically provides that no further instructions on these subjects need be given.
[2] The second refused instruction was to the effect that a defendant is entitled to the individual opinion of each juror. This instruction was properly refused because it was covered by another instruction which advised the jury that they must reach a verdict just to both sides "and which will express the individual opinion of each juror." (See, also, People v. Daskam, 123 Cal. App. 545, 546 [11 P.2d 670].) *340
[3] The next rejected instruction to the effect that the law presumes a defendant to be of good character, was properly refused. There is no such presumption (People v. Griffith, 146 Cal. 339, 345 [80 P. 68]; People v. Conte, 17 Cal. App. 771, 787 [122 P. 450]; People v. Grandi, 33 Cal. App. 637, 642 [165 P. 1027]; People v. Hopper, 42 Cal. App. 499, 502 [183 P. 536]; People v. Oakleaf, 66 Cal. App. 314, 317 [226 P. 24]). The court did instruct the jury that the defendant was presumed to be innocent until his guilt was established by evidence beyond a reasonable doubt.
A defendant's good reputation as to traits involved in the charges against him, if proved, should be weighed as any other fact established (People v. Griffith, supra, p. 345).
In the instant case, such evidence was offered and the court instructed the jury that "evidence of good character is evidence relevant to the question of whether the defendant is guilty or not guilty, and is to be considered by you in connection with the other facts and circumstances in the case. Such evidence may raise a reasonable doubt in a case in which otherwise no such doubt would exist. ..."
[4a] The fourth and fifth instructions refused pertained to the credibility of witnesses. For the reason that in lengthy instructions the court fully covered this subject, defendant's proffered instructions, which in great part amounted to mere repetition and argument, were properly refused.
[5] Appellant offered instructions number seven and sixteen to the effect that the opinion or remarks of the deputy district attorney that the defendant is guilty, or any statements of counsel, should not be considered by the jury. These were properly refused. It is not contended and the record does not disclose that the deputy district attorney expressed any such opinion or made any such remarks. Furthermore, the court instructed the jury that they should be careful not to regard statements by counsel on either side concerning the facts of the case as evidence.
The case of People v. Knight, 44 Cal. App. 2d 887, 893, 894 [113 P.2d 226], is authority for refusal by the court of defendant's proposed instructions pertaining to the credibility of appellant as a witness in his own behalf. Further, the court fully instructed the jury on the credibility of witnesses.
[4b] Instructions offered by the defendant numbered six, nine, ten, eleven and thirteen covering the doctrine of reasonable doubt and the presumption of innocence were properly *341 refused because, as heretofore stated, both doctrines were clearly and fairly presented to the jury in other instructions.
Defendant's instruction number fourteen to the effect that the filing of an information did not constitute evidence of guilt was fully covered in another instruction by which the jury was admonished that, "The information is merely the formal charges against the defendant. It is not evidence and must in no degree be considered as such." The instruction given was taken from People v. Phillips, 56 Cal. App. 291, 294 [205 P. 40].
[6] Appellant complains of the refusal of the court to give his proffered instruction to the effect that if the evidence presented two sets of facts or circumstances, one tending to establish the defendant's innocence and the other his guilt, the jury should adopt that hypothesis tending to establish his innocence. No prejudicial error was committed in rejecting this instruction. The court fully covered this subject in other instructions. Furthermore, where the proof, as in this case, was not entirely or even substantially circumstantial, no error was committed in rejecting the instruction offered (People v. Savage, 66 Cal. App. 2d 237, 247 [152 P.2d 240]).
[4c] Appellant also complains of the refusal of the court to give his proffered instructions numbers seventeen and eighteen to the effect that such charges as rape and violation of section 288a of the Penal Code are easy to make, and difficult to disprove, and that the jury must exercise the utmost care and caution in examining the evidence in cases of this kind and should view the testimony of the prosecutrix with caution. These instructions were properly refused because they were covered by another instruction in which the court admonished the jury that "charges of the nature involved in this case can easily be made and are often difficult to disprove. I instruct you that it is your duty to examine with caution the testimony of the prosecuting witness." Furthermore, in the case at bar, where the evidence of the prosecution was credibly and impressively corroborated it would not have been prejudicial error had the court refused to give any cautionary instructions (People v. Roberts, 50 Cal. App. 2d 558, 568, 569 [123 P.2d 628]).
Other instructions offered by appellant were either varying forms of the statements of law, as presented in other instructions given by the court, and therefore needless repetition, or they were mere arguments and, therefore, out of place. *342 [7] It is not proper to select certain material facts, or those which are deemed to be material, and endeavor to force the court to indicate an opinion favorable to the defendant as to the effect of such facts, by incorporating them into instructions containing a correct principle of law. Such practice amounts simply to a request for the court to comment on the facts as disclosed by the evidence. While section 1127 of the Penal Code provides that the court "may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case," the same code section emphatically declares that "Either party may present to the court any written charge on the law, but not with respect to matters of fact. ..." (Emphasis added.) Therefore, instructions bearing on the weight to be attached to a particular piece of evidence are properly refused.
[8] In the instant case, the court correctly, fully and fairly instructed the jury on the definition of kidnapping, rape, and what constituted a violation of section 288a of the Penal Code. Defendant offered instructions amplifying these instructions with what could well be referred to as mere argument upon the question of the use of force or violence or the presence or absence of fear on the part of the prosecutrix. Such instructions were properly rejected. For illustration, after the crime of kidnapping had been succinctly defined by the court in the language of the statute, what could be the virtue of following such definition with a statement that if the alleged victim went with the defendant willingly and without any force, threats or violence on his part, the jury should acquit?
[9] We do not deem it necessary to here set forth in detail some six other instructions offered by the defendant and refused by the court, for to do so would unduly prolong this opinion. Suffice it to say that a complete answer to the contentions advanced by the appellant herein with reference to instructions offered by him and refused by the court, is found in the case of People v. Bickerstaff, 46 Cal. App. 764 [190 P. 656], cited by appellant, wherein the Supreme Court in denying a petition for hearing, stated at page 775: "We think it necessary to say, however, that we do not approve of all that is said in the opinion of the district court of appeal on the subject of the instructions given and refused."
"The opinion appears to approve the pernicious practice *343 sometimes indulged in by the trial courts of repeating, over and over again, instructions couched in varying language, but embodying the same principle of law. This is especially prevalent with regard to instructions relating to the presumption of innocence, reasonable doubt, and the degree of proof required of the prosecution. Repetitions of this character are not necessary and should be avoided as far as possible. Several of the instructions criticised in this case were given, in effect, in other instructions using somewhat different forms of expression but having the same meaning. The trial judge should take care to give to the jury, once in clear language, every principle of law applicable to the particular case. When he has done this, he is not required to repeat any of them, no matter how many separate instructions are asked which may include them. Such continual repetition tends to give undue emphasis to the particular point to which they may relate and operates to confuse the jury in their consideration of the evidence."
[10] In the case with which we are here concerned, the court in its instructions defined the offenses of kidnapping, rape and violation of section 288a of the Penal Code charged in the information. The court also defined an accomplice with reference to the charged violation of section 288a and gave instructions on the presumption of innocence, reasonable doubt, credibility of witnesses, and the degree of proof required to warrant a conviction. The jury was also instructed to view with caution testimony of the prosecutrix, that the jury in determining the guilt or innocence of the defendant must not consider the fact that he was armed with a deadly weapon unless the jury should find that such weapon was actually used by the defendant in a threatening manner toward the prosecutrix and her male companion and as an element of force to compel the former to go with defendant, against her will, and commit the acts included in the charges. The instructions given by the court sufficiently advised the jury of the law applicable to the issues confronting them. [11] Where, as here, the jury was properly instructed upon all phases of the law applicable to the facts in the case, the defendant is not entitled to have instructions on like matters given in any particular phraseology (People v. Tedesco, 1 Cal. 2d 211, 220 [34 P.2d 467]). [12] Instructions should not be considered singly, but in their entirety. A reading of all the instructions given persuades us that the trial judge fully, fairly and correctly *344 advised the jury as to the kind, quality and degree of proof required before appellant could be convicted of any or all of the charges lodged against him. This is all the law requires (People v. Curtis, 36 Cal. App. 2d 306, 322 [98 P.2d 228]).
We have now given consideration to all the reasons and arguments advanced for a reversal, and having fully examined and considered the whole record, have found no reason for setting at naught the result arrived at in the court below.
The judgments and the order denying defendant's motion for a new trial are and each is accordingly affirmed.
York, P. J., and Doran, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610359/ | 76 Cal. App. 2d 418 (1946)
HOWARD C. BALLEW, Appellant,
v.
WILFRID DAVIS, Respondent.
Civ. No. 15365.
California Court of Appeals. Second Dist., Div. Two.
Oct. 9, 1946.
Hahn, Ross & Goldstone for Appellant.
Boyle, Holmes, Fry & Garrett for Respondent.
McCOMB, J.
From a judgment in favor of defendant after trial before the court without a jury in an action to recover damages for an alleged assault and battery, plaintiff appeals. *419
The evidence being viewed in the light most favorable to defendant (respondent), the essential facts are these:
On April 12, 1945, about 11:30 a. m., plaintiff, a newspaper photographer, and defendant, associate manager of the Southern California Symphony Association, were waiting at the Pasadena railroad station for the arrival of a train upon which Signor Toscanini was traveling. Defendant approached plaintiff and asked him if he intended to take a flashbulb picture of Signor Toscanini. In response plaintiff replied, "Who the hell are you?" Defendant stated that he was the associate manager of the Southern California Symphony Association and again inquired whether plaintiff intended to take a flashbulb of Signor Toscanini. Upon receiving an affirmative reply defendant requested plaintiff not to take such a photograph and stated to plaintiff that the discharging or igniting of flashbulbs in the presence of Signor Toscanini was harmful to the latter, would cause him physical pain, hurt his eyes and might incapacitate him from conducting the benefit performance of the Los Angeles Philharmonic Orchestra. In reply, plaintiff said, "Who the hell is Toscanini. Get out of my way." While the above conversation was in progress the train bearing Signor Toscanini stopped at the station and he was standing in the vestibule of one of the cars. Defendant placed himself between plaintiff and Signor Toscanini, whereupon a scuffle ensued between plaintiff and defendant as a result of which plaintiff suffered injuries to his back and lacerations of three fingers of his right hand.
The trial court found that defendant acted in self-defense. The finding being thus:
"That at the time and place mentioned in paragraph I of plaintiff's complaint, the plaintiff repeatedly threatened to assault and actually assaulted the defendant and would have struck him with a camera or camera tripod or with his fists if defendant had not defended himself against the plaintiff; that in order to defend himself against said repeated assaults, defendant necessarily pushed plaintiff off his balance and laid his hands on plaintiff and held him with barely sufficient force to restrain plaintiff from doing or attempting to do bodily injury to defendant."
[1] Since the sufficiency of evidence to sustain the foregoing finding is not questioned and no other attack is made upon it, it is clear that defendant, in the altercation between the parties, used only such force as was necessary to protect *420 himself from bodily injury. This he had a legal right to do. (Civ. Code, 50.)
In view of the fact that defendant acted in self-defense, it is immaterial whether or not (1) he used only sufficient force to prevent plaintiff from causing injury to Signor Toscanini, (2) the trial court erred in excluding expert testimony as to the effect of flashbulbs, (3) the trial court erred in permitting evidence relative to instructions given defendant by his employer, and (4) the court erred in finding that the force used by defendant was necessary after plaintiff offered to take pictures without a flashbulb.
[2] There is likewise no merit in plaintiff's contention that the trial court based its judgment upon what defendant believed was necessary under the circumstances rather than upon what a reasonably prudent man would have believed under the circumstances. Since the record does not disclose the rule applied by the trial judge it will be presumed, in the absence of a showing to the contrary, that he applied the correct rule of law. [3] Also in view of the unquestioned finding that defendant acted in self- defense, plaintiff's contention that the freedom of the press is being violated is devoid of merit. There is nothing in the evidence in this case which shows that defendant attempted or intended to prevent publication of photographs of Signor Toscanini in the public press. On the contrary the evidence established that arrangements had been made to supply the newspapers with such photographs.
For the foregoing reasons the judgment is affirmed.
Moore, P. J., and Wilson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1528091/ | 982 F. Supp. 503 (1997)
PLAYBOY ENTERPRISES, INC., Plaintiff,
v.
RUSS HARDENBURGH, INC., Defendant.
No. 1:93 CV 0546.
United States District Court, N.D. Ohio, Eastern Division.
November 25, 1997.
*504 Daniel F. Gourash, Porter, Wright, Morris & Arthur, Cleveland, OH, David P. Peterson, Douglas Hancock, John D. Vandenberg, Klarquist, Sparkman, Campbell, Leigh & Whinston, Portland, OR, for Plaintiff.
Thomas Schick, Thomas P. O'Donnell, McNeal, Schick, Archibald & Biro, Cleveland, OH, for Defendants.
*505 Order
SAM H. BELL, District Judge.
This case raises the question of a computer bulletin board system operator's liability for copyright and trademark infringement regarding information available to its customers through their home computers. Plaintiff Playboy Enterprises, Inc. ("PEI") asks the court to find that Defendants Rusty-N-Edie's, Inc. ("RNB") and Russ Hardenburgh are liable for direct and/or contributory copyright infringement with respect to 412 graphic image files ("GIFs") which were allegedly available to paying customers of Defendants' bulletin board service (the "BBS"). These files, asserts PEI, contain illegal copies of adult photographs from PEI's Playboy Magazine. PEI also claims that Defendants' violated section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), by removing the name or trademark of PEI and distributing the photographs under other names for a profit. Defendants answer that there are genuine issues of material fact with respect to each of Plaintiff's claims, precluding summary judgment.
The court has considered the evidence and arguments of the parties, and is now prepared to offer its decision in this matter.
Plaintiff's motion for summary judgment is granted with respect to its claims of direct and contributory copyright infringement against both RNE and Mr. Hardenburgh. Plaintiff's motion is denied with respect to its Lanham Act claim, which claim shall be set forth for trial.
The court's reasoning in this matter is set forth below.
Background
A computer bulletin board service ("BBS") offers home computer owners a method for obtaining information from a central source by use of a modem.[1] Remote computers access the central service through telephone lines. Files of information are stored in the central system, and subscribers may either "download" information into their home units, or "upload" information from their home units into the central files. The owner of the service controls the terms by which remote computer owners will be able to access the system, and typically will control the conditions under which information may be downloaded or uploaded.
BBS owners often provide other services to subscribers, including electronic mail capabilities, "chat rooms" where many subscribers may communicate at once, and Internet access to the World Wide Web. Local bulletin board services such as the one in this case might be distinguished from massive on-line services such as America On-Line or Compuserve, which provide similar services to customers on a much larger scale.
Defendant RNE and its President, Russ Hardenburgh, began operating a local BBS out of Boardman, Ohio in the early days (relatively speaking) of this technology. In July of 1988, "Rusty-N-Edie's BBS" became available to owners of home computers. (2nd Hardenburgh Aff. ¶ 1.) For a fee, subscribers received access to certain files which were otherwise off limits to the general public, and had the right to download a set number of megabytes of electronic information from these files every week. (Hardenburgh dep. pp. 120-122.) The BBS also provided e-mail services, chat lines, advertisements for goods, computer technical assistance, and a "matchmaker" dating service. (2nd Hardenburgh Aff. ¶ 3.)
By January of 1993, the central BBS had grown to 124 computers, with nearly 6000 subscribers. (2nd Hardenburgh Aff. ¶ 6.) Approximately 105,000 to 110,000 files were *506 available for downloading, nearly half of which were graphic image files, or "GIFs." (Id.) A GIF is created by scanning a photograph to create digital data that can be run through a computer. GIFs from Rusty-N-Edie's BBS could be downloaded by the customer to his or her home computer, and could be viewed only with the assistance of certain specialized software. (Id.) Approximately 40,000 of the GIFs available to subscribers at this time, Defendants admit, contained "adult" photographs. (1st Hardenburgh Aff. ¶ 6.)
To increase its stockpile of available information, and thereby its attractiveness to new customers, Defendants provided an incentive to encourage subscribers to upload information onto the BBS. Subscribers were given a "credit" for each megabyte of electronic data that they uploaded onto the system. For each credit, the subscriber was entitled to download 1.5 extra megabytes of electronic information, in addition to the megabytes available under the normal terms of subscription. (Hardenburgh dep. p. 157.) According to Defendants, information uploaded onto the BBS went directly to an "upload file" where an RNE employee briefly checked the new files to ascertain whether they were "acceptable," meaning, not pornographic, and not blatantly protected by copyright. (Hardenburgh dep. p. 138-142.)
PEI is understandably concerned that on-line systems can be used to transmit copies of its copyrighted photographs to people who have not themselves purchased Playboy Magazine. In the early 1990s, PEI employee Anne Steinfeldt was given the job of scanning on-line systems to determine whether such photographs were available to subscribers via their home computers. (2nd Steinfeldt Aff. ¶ 1.) In November of 1992, Ms. Steinfeldt subscribed to Rusty-N-Edie's BBS under the pseudonym "Bob Campbell." (Id. at ¶ 2.) She conducted key word searches in the files available on the BBS, and claims to have downloaded approximately 100 GIFs from the BBS which contained reproductions of PEI's photographs. (Id. at ¶ 5.) She transferred these files to floppy disks, and then delivered the disks to PEI photo-librarian Timothy Hawkins. (Hawkins Aff. ¶¶ 2,3.) Mr. Hawkins states that he examined the files by displaying the images on his computer monitor and comparing those images with photographs from Playboy Magazine. (Id. at ¶¶ 3,4.)
On March 11, 1993, PEI filed its original complaint against RNE and Mr. Hardenburgh in this court, alleging copyright and trademark infringement. (Docket # 1.) The case was assigned to District Judge Battisti. On January 7, 1994, PEI moved for summary judgment on its claims of copyright infringement with respect to 99 GIFs allegedly downloaded from the BBS by Ms. Steinfeldt and reviewed by Mr. Hawkins. (Docket # 28.) PEI listed the titles of the 99 GIFs at issue in its Exhibit A but only submitted ten actual copies of the allegedly infringing images. (Docket # 29.) PEI paired these ten reproductions of computer screens with ten virtually identical photographs from Playboy Magazine. (Id.) PEI also produced the certificates of copyright for each of the PEI photographs listed in its Exhibit A. (Id.) Based upon these submissions and the accompanying affidavits of its employees, PEI argued that Defendants could raise no genuine issue of material fact to dispute the assertion that all 99 GIFs had appeared on the BBS. (Id.) Defendants, PEI argued, were jointly and severally liable for copyright infringement as a matter of law.
On January 31, 1994, PEI moved for summary judgment on its Lanham Act unfair competition claim. (Docket # 33.) PEI argued that Defendants had falsely implied that they were the source of PEI's images by adding text to PEI photographs that was not present originally, and by deleting text that was originally present. (Id.) PEI claimed that the words "Rusty-N-Edies" had been added to some of the photographs, along with the telephone number for one of Defendants' BBS phone lines. (Docket # 34.) PEI provided one actual example of this activity. (Id.)
Defendants responded to PEI's motions for summary judgment on February 24, 1994, arguing that there were genuine issues of material fact with respect to each of PEI's claims. (Docket # 40.) Defendants argued that PEI's submissions did not prove that the *507 99 GIFs listed in Exhibit A were actually present on the BBS. (Id.) Mr. Hardenburgh claimed that he had reviewed the floppy disks in question, and had found them to contain 85 GIFs, not 99. Only 82 of the files on the disks, he asserts, were even listed in Plaintiff's Exhibit A, four of which were created or modified after Ms. Steinfeldt turned the disks over to Mr. Hawkins. (1st Hardenburgh Aff. ¶ 5.) Defendants argued that these inconsistencies cast doubt on the credibility of PEI employees Steinfeldt and Hawkins, and precluded summary judgment in PEI's favor. (Docket # 40.)
PEI replied to Defendants on June 10, 1994, and in doing so brought new evidence to light. (Docket # 46.) PEI explained to the court that on January 30, 1993 the Federal Bureau of Investigation had conducted an unrelated search of the Hardenburgh premises pursuant to a search warrant, and had seized Defendants' BBS equipment. (Id.; 1st Hardenburgh Aff. ¶ 2.) In connection with this search, the FBI had created computer tapes (the "FBI Tapes") which contained all of the information present on the BBS at that time, including all GIFs available to subscribers for downloading. (1st Tesnakis Aff.) Both sides of the litigation, PEI explained, were in possession of copies of these tapes. (Gibson Aff. ¶¶ 4,5,6.) Having reviewed the tapes, PEI withdrew its motion for summary judgment with respect to 79 of the 99 GIFs originally at issue. PEI was apparently unable to confirm that these 79 GIFs were on the BBS at the time of the FBI search. (Docket # 46.) With respect to the other 20 GIFs, however, PEI asserted that the FBI Tapes conclusively established that these files were present on Defendants' BBS on January 30, 1993, and that they directly infringed PEI's copyrights. (Id.) PEI submitted copies of these 20 GIFs as extracted from the FBI Tapes, and also submitted the corresponding 20 photographs from Playboy Magazine. (Exhibit 2 to Tesnakis Aff.) PEI noted that it would continue to study the FBI Tapes to determine whether a future motion for summary judgment could be filed with respect to other files present on the BBS which may have infringed PEI's copyrights. (Docket # 46.)
Defendants surreplied to Plaintiff's answer on July 11, 1994. (Docket # 51.) Defendants implied that any PEI photographs which appeared on the BBS were placed there by RNE subscribers, not RNE employees. (Id.) Because Defendants had not themselves taken part in any infringing activity, they asserted, they could not have directly infringed PEI's copyrights. (Id.)
On September 14, 1994, Magistrate Judge Bartunek issued a Report and Recommendation regarding PEI's motions for summary judgment. (Docket # 60.) The Magistrate recommended that the court grant Plaintiff's motion for summary judgment regarding Defendants' liability for direct copyright infringement. (Id.) The Magistrate found that there was no dispute that PEI owned the copyrights in question and that the 20 GIFs at issue had, in fact, appeared on Defendants' BBS. (Id.) Also, it was abundantly clear to the Magistrate that the GIFs produced by Plaintiff were copies of the 20 PEI photographs submitted into evidence. (Id.) As to Defendants' claim that it was BBS subscribers who uploaded the information onto the system, the Magistrate felt that this argument was immaterial in relation to a finding of copyright infringement. (Id.)
With respect to any Lanham Act violations, alternatively, the Magistrate recommended that the court deny Plaintiff's motion. (Id.) The Magistrate felt that in order to prevail on their Lanham Act claim, PEI would have to prove that it was Defendants, and not their subscribers, who engaged in activity which misled consumers about the source of the images. (Id.)
Both Plaintiff and Defendant filed objections to the Magistrate's Report and Recommendation. (Docket # s 64, 66, 69.)
On November 1, 1994, following Judge Battisti's death, the case was transferred to Senior Circuit Judge Krupansky. (Docket # 71.) Soon thereafter, on January 17, 1995, PEI filed its third motion for summary judgment. (Docket # 74.) As promised, PEI had scrutinized the FBI Tapes and announced that it was now prepared to prove that 392 additional GIFs containing copies of PEI photographs were present on Defendants' BBS at the time of the FBI search. *508 (Docket # 75.) PEI produced, for the court's consideration, copies of each and every one of the GIFs at issue, in addition to the corresponding PEI photograph. (Exhibit D to 2nd Tesnakis Aff.) PEI also produced certificates of copyright for each photograph. (Exhibit B to 2nd Tesnakis Aff.) PEI repeated their claim that Defendants were liable for direct copyright infringement, but argued in addition that Defendants were liable for contributory copyright infringement. (Docket # 75.) PEI produced the deposition testimony of three RNE employees, each of whom stated that any GIFs which were uploaded onto the BBS were placed in an upload file, and were not released onto the system for subscribers until they were reviewed by RNE staff. (Hardenburgh dep., Little dep., McFarland dep.) Defendants responded, echoing many of the arguments they had made previously. (Docket # 88.) Defendants also argued that a finding of copyright infringement on the part of a computer bulletin board service would "halt the computer age at its inception" by overburdening BBS owners with the "impossible" task of screening their systems for any and all copyrighted material. (Id.) On March 1, 1996 the case was transferred here. (Docket # 104.)
The parties have offered numerous submissions and arguments in addition to those described above, some of which will be touched upon below. The question presented in this litigation, however, has remained fundamentally the same throughout. It is: has PEI produced sufficient evidence to warrant summary judgment on its claims of copyright and trademark infringement?
Standard of Review
The Court of Appeals for the Sixth Circuit recently summarized the standard of review governing motions for summary judgment under Federal Rule of Civil Procedure 56:
Summary judgment is appropriate where `there is no genuine issue of material fact ... and the moving party is entitled to judgment as a matter of law.'.... [The] court must view all facts and inferences drawn therefrom in the light most favorable to the non-moving party.
The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim.
`By its very terms, this standard provides that the existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.' The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict in favor of the nonmoving party. If the disputed evidence `is merely colorable or is not significantly probative, summary judgment may be granted.'
Leo LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993) (citations omitted). With this standard in mind, the court shall analyze the PEI's motions for summary judgment.
Law and Analysis
PEI has moved for summary judgment on three independent claims. Each claim, the court will assume, applies to the 412 GIFs submitted into evidence.
I.
Direct Copyright Infringement
To sustain a case of direct copyright infringement, Plaintiff must first satisfy two threshold requirements. Plaintiff must prove "(1) ownership of a valid copyright, and (2) copying [by the defendants] of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296, 113 L. Ed. 2d 358 (1991); Hi-Tech Video Prods., Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1095 (6th Cir.1995); Wickham v. Knoxville Int'l Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir.1984). PEI's certificates of copyright create a presumption of the validity of the copyrights in this case. 17 *509 U.S.C.A. § 410(c). Although the presumption may be rebutted, it is the burden of the party challenging the copyright to do so. Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 831 (10th Cir.1993). Defendants have not rebutted the ownership or validity of PEI's copyrights, which the court takes as established.
To prove the "copying" element, Plaintiff may either produce direct evidence that Defendants copied their material, or may create an inference that copying occurred by showing: (1) that Defendants had access to the protected work, and (2) that the two works are substantially similar. Wickham, 739 F.2d at 1097; Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir.1977). Plaintiffs have no difficulty establishing the "copying" element. First, Defendants clearly had access to Playboy Magazine and the photographs contained therein at the time that the GIFs allegedly appeared on their BBS. Playboy Magazine is publicly available material. Second, there is no arguing that the 412 GIFs produced by PEI are not substantially similar to the 412 PEI photographs in evidence. They are virtually exact reproductions.
Having satisfied these threshold requirements, Plaintiff can establish direct infringement by proving that Defendant used the accused copies in any of the ways described in Section 106 of the Copyright Statute. Under 17 U.S.C. § 106, a copyright owner has the exclusive right to, among other things: (a) reproduce the copyrighted work, (b) distribute copies of the copyrighted work to the public by sale or other transfer of ownership, and (c) display the copyrighted work publicly.
A.
Findings of Fact
This court is bound to construe all of the evidence in a light most favorable to Defendants, the non-moving parties. In so doing, the court finds that Plaintiff has conclusively shown the following to be true: (1) in January of 1993, Defendants were operating a computer BBS; (2) prior to this date, Defendants adopted an incentive program to encourage their subscribers to upload information onto the BBS in order to increase the stockpile of information available to customers (Hardenburgh dep. p. 157); (3) information uploaded onto the system from subscribers' home computers was held in an upload file where it was briefly screened by RNE employees before it was released, by those employees, onto the general BBS; (Hardenburgh dep. p. 138-142); (4) Defendants had notice that PEI was in the habit of enforcing its copyrights against BBS owners (Hardenburgh dep. p. 192, Hardenburgh Aff. ¶ 5); (5) as of January 30, 1993, when the FBI Tapes were created, 412 GIFs were available on Defendants' general BBS which contained virtually exact reproductions of copyrighted photographs from Playboy Magazine. (Exhibit 2 to 1st Tesnakis Aff., Exhibit D to 2nd Tesnakis Aff.)
B.
Defendants' Arguments
According to Defendants, the facts described above are insufficient to warrant a judgment of direct copyright infringement. First, they argue that they did not in any way usurp one of the protected rights of PEI as a copyright owner. Defendants claim that they did not "reproduce" copies of PEI photographs by simply providing an incentive to subscribers to upload electronic data onto the BBS. It was the subscribers who scanned the copyrighted photographs and turned them into electronic data, and it was subscribers who uploaded the information onto the system. Similarly, they claim that they never "distributed" PEI photographs to their customers because it was the customers themselves who chose whether or not to download the GIFs from the central system to their home computer. Defendants describe themselves as passive providers of the space in which the pictures were passed from one party to another. Defendants argue that they never "publicly displayed" PEI photographs either, because subscribers to the BBS could only view the GIFs on their own computers in the privacy of their own home, and only with the help of certain specialized software.
Defendants make a number of policy arguments as well. They point out that BBS *510 operators must develop methods of obtaining new information in order to stay competitive in the crowded on-line computer market. New customers will be drawn to the BBS or on-line service which provides the most information. The incentive system developed by RNE was a reasonable way, then, to maintain competitiveness and allow the company to grow. At the same time, they argue that it would have been impossible to police each and every uploaded file to ensure that it did not contain copyrighted material. While RNE employees could quickly view an uploaded file to determine whether it contained clearly inappropriate material such as, for instance, child pornography, it would be unthinkable to require these employees to determine the source of each and every photograph to ensure that there was no possibility of copyright infringement. To place such liability on the owners of a BBS, Defendants argue, is an excessive burden on the rights of free speech as embodied in the First Amendment.[2] In addition, they claim that such liability threatens to dismantle the computer on-line industry.
Even if, Defendants continue, the on-line industry as a whole is not destroyed by imposing copyright liability on service providers, such liability will irreversibly disadvantage local BBS owners in relation to massive on-line systems. Local BBS operators are less able to spread the cost of copyright liability to their more limited pool of subscribers. The outcome of a regime which imposes direct liability on owners of on-line systems, they warn, is the eventual extinction of local providers. Defendants claim that such an outcome could not be consistent with the primary objective of copyright law, which is "not to reward the labor of authors, but `[t]o promote the progress of Science and useful Arts.'" Feist, 499 U.S. at 349, 111 S.Ct. at 1290.
C.
Plaintiff's Arguments
Plaintiff, on the other hand, argues that copyright laws are meant to protect copyright owners from a situation in which their private material is used, without permission, by a non-owner for profit. Defendants, PEI claims, profited from a system in which PEI photographs were illegally provided to consumers who did not themselves purchase Playboy Magazine. Instead, these consumers purchased subscriptions to Rusty-N-Edie's BBS, and received the Playboy pictures for free.
Plaintiff notes that Defendants were aware that PEI was in the habit of enforcing its copyrights. Defendants should have, therefore, used their screening procedures to keep any and all PEI photographs off of the BBS. Instead, PEI asserts, Defendants adopted a policy of willful blindness, ignoring the strong likelihood that PEI pictures were being copied and sent onto the system, yet encouraging subscribers to continue to upload any and all photographs. Procedurally, RNE employees viewed each and every photograph that was uploaded onto the system, and then moved those photographs that were not discarded from the upload file to the central files where they became available to RNE customers. If direct copyright infringement carries with it a volitional element, Plaintiff argues, that requirement is satisfied by the participation of the RNE employees in the screening process.
In response to Defendants' policy arguments, Plaintiff admits that it may have been costly for Defendants to police their system to prevent copyrighted information from passing through it. Plaintiff asserts that it is more reasonable, however, to place the cost of protecting against copyright infringement on the parties who provide the system which facilitates infringement, rather than the innocent owner of the copyright. Even if this type of liability regime favors larger on-line providers, Plaintiff argues that the diversity of the on-line computer industry is not the responsibility of copyright owners. If Defendants cannot divine an efficient way to operate *511 a computer BBS free of copyrighted material, Plaintiff argues, then Defendants have the option of leaving the industry.
Plaintiff also points out, correctly, that a finding of direct copyright infringement carries no scienter requirement. PEI need not show that Defendants had any knowledge that PEI materials were available to their subscribers. PEI need only establish the threshold elements, ownership and copying, and that Defendants violated an exclusive right of a copyright owner.
According to Plaintiff, the mere fact that Defendants provided the space in which PEI photographs were copied and exchanged is sufficient to warrant a finding of direct copyright infringement. In the event that the court finds there is a further volitional requirement, PEI points to the screening procedures and the participation of RNE employees in moving PEI photographs onto the system. These facts, Plaintiff argues, establish Defendants' direct participation in the infringement which took place.
D.
Case Law
The case law in this area is relatively sparse, and the matter is one of first impression in our circuit. The court offers a brief discussion of the major cases in the area, to provide a foundation for its decision today.
In Playboy Enterprises v. Frena, 839 F. Supp. 1552 (M.D.Fla.1993), District Judge Schlesinger was presented with facts not unlike those which are presently before this court. PEI had sued the owner of a BBS for direct and contributory copyright infringement because copies of its photographs were available to BBS subscribers. Id. at 1554. The defendant BBS owner argued that it was his subscribers, and not he, who had placed the photographs on the system. Id.
The differences between Frena and this case are few, but should be mentioned. First, in the Frena case, the defendant admitted that the photographs appeared on his BBS. There has been no such concession here, though Defendant has made no factual showing to the contrary. Second, and more importantly, there is no discussion in the Frena case of any screening procedure utilized by the defendant's BBS before uploads were released onto the general system. It appears that subscribers to Mr. Frena's BBS were able to upload information directly into the central files where they became immediately available to other subscribers. Mr. Frena, then, was even more of a passive participant in the copying and exchange of copyrighted photographs than are the Defendants in this case.
District Judge Schlesinger held that Mr. Frena was liable for direct copyright infringement. Id. at 1556-57. As in our case, PEI easily established the threshold elements of ownership/validity and copying. Moving on to the more difficult consideration, the court found that defendant had violated PEI's exclusive "distribution" and "display" rights. Id.
The court found that defendant had "distributed" PEI photographs simply by providing the space in which those photographs were uploaded and downloaded. The court stated that, "[t]here is no dispute that Defendant Frena supplied a product [the BBS] containing unauthorized copies of a copyrighted work. It does not matter that Defendant Frena claims he did not make the copies itself [sic]." Id. at 1556. Judge Schlesinger apparently felt that a finding of direct copyright infringement does not carry with it a volitional element, or, if it does, that such requirement was satisfied by defendant's past action of setting up the BBS.
In regard to the violation of PEI's "display" rights, the court defined the word broadly, to include:
the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system.
Id. (citing H.R.Rep. No. 1476, 94th Cong., 2d Sess. 64 (Sept. 3., 1976), reprinted in U.S.Code Cong. & Admin. News 1976 p. 5659, 5677). The fact that PEI materials were only available to BBS subscribers did not change the public nature of the "display." *512 Id. (citations omitted). The court did not consider whether Mr. Frena was liable for contributory copyright infringement.
In Sega Enterprises Ltd. v. Maphia, 857 F. Supp. 679 (N.D.Cal.1994), a computer software company sued the owner of a BBS for copyright infringement because copyrighted video games were available to BBS subscribers. The court granted plaintiff's request for a preliminary injunction, finding that plaintiff had shown a likelihood of success on the merits with respect to its claims of direct and contributory copyright infringement. Id. at 686. Plaintiff had shown its ownership of valid copyrights, and had proven that its games were available on defendant's system. Id.
The court was explicit in its discussion of contributory copyright infringement, holding that defendant's knowledge and encouragement of the infringing activity was sufficient to establish contributory liability. Id. at 687. The court was less clear on the specific factors that led it to its finding of direct infringement. The court stated:
Sega has established a prima facie case of direct copyright infringement under 17 U.S.C. § 501. Sega has established that unauthorized copies of its games are made when such games are uploaded to the MAPHIA bulletin board, here with the knowledge of Defendant Scherman. These copied games are thereby placed on the storage media of the electronic bulletin board by unknown users.
Sega has established that unauthorized copies of these games are also made when they are downloaded to make additional copies by users, which copying is facilitated and encouraged by the MAPHIA bulletin board.
Id. at 686 (citations omitted). Because knowledge is not an element of direct infringement, the court seems to be saying, as in Frena, that the mere creation of a BBS is sufficient to establish direct infringement liability where copyrighted material appears on the system.
In Religious Tech. Center v. Netcom On-Line Comm., 907 F. Supp. 1361 (N.D.Cal. 1995), District Judge Whyte departed from the reasoning of Frena and Sega. The owner of certain copyrighted religious material sued a BBS operator when the material was unlawfully copied and criticized on his BBS. The court in Netcom, however, refused to hold the BBS liable for direct infringement based simply on the creation of a space where infringing activity occurred. The court reasoned:
Netcom's act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it. Although some of the people using the machine may directly infringe copyrights, courts analyze the machine under the rubric of contributory infringement, not direct infringement.
Id. at 1369. To impose direct infringement liability on a BBS where the operator did nothing more than provide space where information is exchanged, "would result in liability for every single ... server in the worldwide link of computers transmitting [subscriber's] message to every other computer." Id. Although the copyright statute creates a strict liability regime, the court noted that "there should still be some element of volition or causation which is lacking where a defendant's system is merely used to create a copy by a third party." Id.
E.
Defendants' Liability for Direct Copyright Infringement
As a legal matter, the court would agree with Judge Whyte that a finding of direct copyright infringement requires some element of direct action or participation, for two primary reasons. First, the statute is cast in terms of activities which are reserved to copyright owners. 17 U.S.C. § 106. It follows that an infringer must actually engage in one of those activities in order to directly violate the statute. Setting up a computer bulletin board is not one of those activities. Merely encouraging or facilitating those activities is not proscribed by the statute. Second, it is the area of contributory liability which allows "the imposition of liability on certain parties who have not *513 themselves engaged in the infringing activity." Sony Corp. v. Universal Studios, Inc., 464 U.S. 417, 435, 104 S. Ct. 774, 785, 78 L. Ed. 2d 574 (1984) (footnote omitted). There would be no reason to bifurcate copyright liability into the separate categories of direct and contributory if any remote causal connection to copyright infringement could be analyzed under theories of direct infringement.
That being said, the facts in this case, unlike Frena, Sega, and Netcom, are sufficient to establish that Defendants themselves engaged in two of the activities reserved to copyright owners under 17 U.S.C. § 106. The court finds that Defendants distributed and displayed copies of PEI photographs in derogation of PEI's copyrights. This finding hinges on two crucial facts: (1) Defendants' policy of encouraging subscribers to upload files, including adult photographs, onto the system, and (2) Defendants' policy of using a screening procedure in which RNE employees viewed all files in the upload file and moved them into the generally available files for subscribers.
These two facts transform Defendants from passive providers of a space in which infringing activities happened to occur to active participants in the process of copyright infringement. Defendants admit that they were operating a service where the quantity of adult files available to customers increased the attractiveness of the service. Defendants actively encouraged their subscribers to upload such files. Defendants had control over which files were discarded and which files were moved into the general system. Defendants knew that there was a possibility that PEI photographs were being uploaded onto the system, but failed to adopt procedures which ensured that any and all PEI photographs would be discarded. It is inconsistent to argue that one may actively encourage and control the uploading and dissemination of adult files, but cannot held liable for copyright violations because it is too difficult to determine which files infringe upon someone else's copyrights.
Distributing unlawful copies of a copyrighted work violates the copyright owner's distribution right and, as a result, constitutes copyright infringement. Hotaling v. Church of Jesus Christ of Latter Day Saints, 118 F.3d 199, 203 (4th Cir.1997). In order to establish "distribution" of a copyrighted work, a party must show that an unlawful copy was disseminated "to the public." National Car Rental v. Computer Associates, 991 F.2d 426, 434 (8th Cir.1993). The phrase "to the public," in this sense, includes paying subscribers to an otherwise publicly available service. See Thomas v. Pansy Ellen Products, 672 F. Supp. 237, 240 (W.D.N.C.1987) (display at trade show was public even though limited to members); Ackee Music, Inc. v. Williams, 650 F. Supp. 653 (D.Kan. 1986) (performance of copyrighted songs at defendant's private club constituted public display). Defendants disseminated unlawful copies of PEI photographs to the public by adopting a policy in which RNE employees moved those copies to the generally available files instead of discarding them.
Similarly, Defendants violated PEI's right of public display. The comment to 17 U.S.C. § 106 states that a display is public if "it takes place `at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.'" H.R.Rep. No. 1476, 94th Cong., 2d Sess. 64 (Sept. 3, 1976), reprinted in U.S.Code Cong. & Admin. News 1976 p. 5659, 5677. "The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service." Id. Defendants displayed copies of PEI photographs to the public by adopting a policy which allowed their employees to place those photographs in files available to subscribers.
Defendant RNE, the corporate owner of "Rusty-N-Edie's BBS," is liable for direct copyright infringement based on its policies of active participation in the infringing activities. This summary judgment is also applicable to President Russ Hardenburgh. Mr. Hardenburgh may not use the corporate veil as a defense to this action.
In Southern Bell Tel. & Tel. v. Associated Tel. Directory Publishers, 756 F.2d 801 (11th *514 Cir.1985), the 11th Circuit Court of Appeals stated that "an individual, including a corporate officer, who has the ability to supervise infringing activity and has a financial interest in that activity, or who personally participates in that activity is personally liable for the infringement." Id. at 811; Vitabiotics, Inc. v. Krupka, 606 F. Supp. 779, 785 (E.D.N.Y.1984) (holding an individual defendant jointly liable with three corporations active in marketing infringing materials). PEI has shown that Mr. Hardenburgh is the president and sole shareholder of the defendant corporation. (Hardenburgh dep. pp. 20-21.) Mr. Hardenburgh is also a paid employee of the corporation. (Id. at 62.) He has the sole ability to hire and fire employees on behalf of the corporation, and receives royalties paid to him by the corporation. (Id. at 56, 64-69.) Mr. Hardenburgh has the authority, right and ability to control the content of the BBS and its operations. (Id. at 73-91.) The summary judgment of direct copyright infringement is equally applicable to the corporation RNE and its President, Mr. Hardenburgh.
II.
Contributory Copyright Infringement
A party shall be liable for contributory copyright infringement where it, "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." Gershwin Publishing Corp. v. Columbia Artists, 443 F.2d 1159, 1162 (2d Cir.1971). In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984), the Supreme Court stated that:
[t]he absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringement on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold an individual liable for the actions of another.
Id. at 435, 104 S.Ct. at 785.
The recent 9th circuit case of Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir.1996) is instructive. In Fonovisa, the District Court had granted summary judgment in favor of defendant, who operated a "swap meet" where consumers purchased merchandise from individual and independent vendors. Plaintiff sued defendant for providing the space in which its copyrighted material was illegally sold, but the District Court concluded that there was no liability for contributory infringement where defendant had neither supervised nor directly profited from the vendors' sales. Id. at 262. The 9th Circuit reversed the District Court's dismissal, holding that contributory liability could attach where "infringing performances enhance the attractiveness of the venue to potential customers" Id. at 263; Columbia Pictures Industries Inc. v. Aveco Inc., 800 F.2d 59 (3rd Cir.1986) (providing the site and facilities for known infringing activity is sufficient to establish contributory liability.)
In the present case, Defendants clearly induced, caused, and materially contributed to any infringing activity which took place on their BBS. Defendants admit that they encouraged subscribers to upload information including adult files. Defendants admit that they benefitted from having more files available to their customers. Also, Defendants had at least constructive knowledge that infringing activity was likely to be occurring on their BBS. Defendants were aware that PEI was enforcing its copyrights against BBS owners. Moreover, Playboy Magazine is one of the most famous and widely distributed adult publications in the world. It seems disingenuous for Defendants to assert that they were unaware that copies of photographs from Playboy Magazine were likely to find their way onto the BBS. Defendants are liable for contributory copyright infringement.
III.
Unfair Competition
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), provides:
*515 (a)(1) Any person who, or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact which
(A) is likely to cause confusion or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
15 U.S.C. § 1125(a). The Sixth Circuit has not addressed the elements necessary to prove a Lanham Act claim. Recent case law establishes that the following must be shown in order to prevail: (1) the advertisements at issue are false or misleading and the advertisements actually deceived or had the tendency to deceive a substantial segment of the audience, (2) the deceptive or misleading portions of the advertisement were material, in other words they were likely to influence the purchasing decision, (3) defendant caused the advertised goods to enter interstate commerce, and (4) plaintiff has been or is likely to be injured either by direct diversion of sales from itself to defendant or by lessening the goodwill or acceptability its products enjoy with the buying public. Telxon Corp. v. Symbol Technologies, Inc., 961 F. Supp. 1113, 1122 (N.D.Ohio 1996); Hobart Corp. v. Welbilt Corp., 1989 WL 449696 (Oct. 4, 1989 N.D.Ohio) (quoting Alpo Petfoods, Inc. v. Ralston Purina Co., 720 F. Supp. 194, 213 (D.D.C.1989) (citing Skil Corp. v. Rockwell Int'l Corp., 375 F. Supp. 777, 783 (N.D.Ill. 1974)); U-Haul Int'l, Inc. v. Jartran, Inc., 522 F. Supp. 1238, 1243 (D.Ariz.1981), aff'd, 681 F.2d 1159 (9th Cir.1982)).
Plaintiff has failed to satisfy at least one of these elements, that the deceptive or misleading portions of the copied photographs were material, that is, likely to influence the purchasing decision of BBS subscribers. Plaintiff has not shown that subscribers to "Rusty-N-Edie's BBS" were drawn to that system because they believed that the adult photographs contained therein were created by Defendants. Plaintiff has not shown that Defendants made any attempt, or had any incentive, to pass off PEI photographs as if they were created by "Rusty-N-Edie's," other than to avoid copyright liability. Plaintiff will need to produce further evidence at trial to prevail on its Lanham Act claim that Defendants misled consumers about the source of the images.
Conclusion
For the reasons set forth above, Plaintiff's motion for summary judgment is granted on its claims of direct and contributory copyright infringement against Defendants. Plaintiff's motion for summary judgment is denied on its claim of unfair competition under the Lanham Act. All remaining claims shall be set forth for trial. A final pre-trial conference will take place on Monday, January 26, 1998 at 1:30 p.m. Jury trial shall be scheduled to begin on February 3, 1998, with the parties on two-week standby.
IT IS SO ORDERED.
NOTES
[1] For background information in this area, the court consulted a number of articles on the subject of computer bulletin boards and copyright infringement. See Keith Stephens & John P. Summer, Catch 22: Internet Service Providers' Liability for Copyright Infringement over the Internet, 14 No. 5 Computer Law I (1997); John Gladstone Mills III Entertainment on the Internet: First Amendment and Copyright Issues, 79 J. Pat. & Trademark Off. Soc'y 46 I (1997); Joseph V. Myers, Note, Speaking Frankly About Copyright Infringement on Computer Bulletin Boards: Lessons to be Learned from Frank Music, Netcom, and the White Paper, 49 Vand. L.Rev. 439 (1996); Scott K. Pomeroy, Comment, Promoting the Progress of Science and the Useful Arts in the Digital Domain; Copyright, Computer Bulletin Boards, and Liability for Infringement by Others, 45 Emory L.J. 1035 (1996).
[2] Defendants have not gone so far as to say that a finding of copyright liability in this case would result in a deprivation of their rights under the First Amendment. Defendants have rather asked the court to weigh the interests protected by the First Amendment in determining the applicability of the copyright statute to the facts before it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611887/ | 884 P.2d 707 (1994)
The PEOPLE of the State of Colorado ex rel. G.F. SANDSTROM, District Attorney, Tenth Judicial District, State of Colorado, Petitioner,
v.
The DISTRICT COURT In and For the COUNTY OF PUEBLO, State of Colorado, and the Honorable John R. Tracey, one of the Judges Thereof, Respondents.
No. 94SA235.
Supreme Court of Colorado, En Banc.
November 15, 1994.
Rehearing Denied December 5, 1994.
G.F. Sandstrom, Dist. Atty., Tenth Judicial Dist., Karrick A. Burrows, Deputy Dist. Atty., Pueblo, for petitioner.
David F. Vela, Colorado State Public Defender, Douglas K. Wilson, Elizabeth A. Martinez, Deputy State Public Defenders, Pueblo, for defendant Paul Vince Maurello and on behalf of respondents.
Raymond T. Slaughter, Executive Director, Katherine M. Clark, Staff Atty., Colorado Dist. Attys. Council, Denver, Gale A. Norton, Colorado Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy *708 M. Tymkovich, Sol. Gen., John D. Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., for amici curiae Colorado Dist. Attys. Council and Colorado Atty. General's Office.
Justice VOLLACK delivered the Opinion of the Court.
In this original proceeding pursuant to C.A.R. 21,[1] we issued a rule directing the respondent district court (the district court) to show cause why it should not be prohibited from removing the petitioner, the District Attorney for the Tenth Judicial District, State of Colorado (the district attorney[2]), from prosecution of a criminal case against Paul Vince Maurello (Maurello) on the ground that the district attorney had an interest in the outcome of the case since the district attorney was simultaneously prosecuting a civil forfeiture case. We now make the rule absolute.
I.
On November 12, 1993, Maurello was charged by information with possession of marijuana with intent to distribute, in violation of section 18-18-406(8)(b), 8B C.R.S. (1994 Supp.), and possession of eight ounces or more of marijuana, in violation of section 18-18-406(4)(b), 8B C.R.S. (1994 Supp.).[3] During its investigation of Maurello, the Pueblo Police Department (police department) searched Maurello's home and seized $4,912.00 in currency. Shortly thereafter, the police department sent a forfeiture request to the district attorney, asking the district attorney to initiate seizure and forfeiture proceedings against the $4,912.00. On December 14, 1993, the district attorney filed a civil forfeiture action against the $4,912.00 pursuant to the Abatement of Public Nuisance Act, § 16-13-301 to -316, 8A C.R.S. (1986 & 1994 Supp.).[4] The complaint alleged that Maurello used the $4,912.00 to "conduct, maintain, aid, abet or facilitate" a public nuisance act through his possession of marijuana with intent to distribute and his possession of more than eight ounces of marijuana. The complaint designated the police department and the district attorney as the seizing agencies, and requested the court to forfeit the currency to those agencies "for their lawful activities." The currency was subsequently turned over to the district attorney, and placed in an interest-bearing account, according to agency procedure.[5]
After a preliminary hearing, the district court found that there was probable cause for the charges against Maurello, and ordered the case set for trial. On March 21, *709 1994, Maurello filed a motion to dismiss the information and, in the alternative, to appoint a special prosecutor. Maurello argued that the district attorney had a financial interest in the outcome of the criminal case because the district attorney was designated as one of the agencies entitled to receive a portion of the forfeited currency if the forfeiture case was successful. Maurello also argued that the involvement of the district attorney in both the criminal and civil cases created an appearance of impropriety under the ethical rules.
The trial court held a hearing on the motion on May 6, 1994. Several witnesses testified at the hearing, including Detective Lewis C. Andrew, Deputy District Attorney Patrick Avalos, and District Attorney Gus F. Sandstrom.[6] Detective Andrew, an officer with the Narcotics Unit of the police department, testified that he arrested Maurello and was present when the currency was seized from Maurello's home. Detective Andrew said that, based on his involvement in plea negotiations involving defendants with pending criminal and civil forfeiture cases, he was under the impression "that the two are not to be combined." He also testified that there is no separate civil forfeiture unit, and that District Attorney Sandstrom typically handles forfeiture cases.
District Attorney Sandstrom confirmed that he personally handles the forfeiture cases, including the forfeiture involved in this case. He said that, when his office prevails on a civil forfeiture case under the Abatement of Public Nuisance Act, the forfeited currency is divided between the district attorney and the police department. He explained that the two agencies have an agreement whereby the district attorney generally receives one-third of the seized currency, and the police department receives two-thirds. District Attorney Sandstrom testified that there is a separate fund for forfeited currency, and that the fund is controlled by a Board of Directors, of which he is a member. He explained that the funds are used "for the use and benefit of prosecution," including buying books and computer supplies, paying for audits, and providing funds for drug purchases by undercover officers.
District Attorney Sandstrom further testified that it is office policy to keep civil forfeiture cases and criminal cases completely separate. To that end, he said that the police are required to make forfeiture requests independently from the requests on criminal cases, and that each case must receive a copy of all discovery documents. District Attorney Sandstrom testified that criminal plea negotiations are also handled separately from forfeiture plea negotiations, except in rare cases when joint negotiations are initiated by a defense attorney. He said that his office does not stand to benefit, nor suffer disadvantage, from the outcome of a criminal case. Finally, District Attorney Sandstrom explained that forfeiture cases are stayed pending the resolution of the criminal case. He acknowledged that a conviction in the criminal case could be important in proving the subsequent forfeiture case, with its civil burden of proof by a preponderance of the evidence.
Deputy District Attorney Patrick Avalos (Avalos) told the court that he is a supervising attorney, and that he was recently elected to a seat on the Pueblo City Council. Avalos further testified that, as one of seven city council members, he must vote to approve or disapprove a budget for the City of Pueblo. Avalos said that he does not have the power to hire or fire anyone at the police department. He explained that the city manager is responsible for hiring and firing department heads such as the Chief of Police, and that the city manager, in turn, is retained by the city council. Lastly, he testified that he had never used his position as a city council member to influence a criminal *710 case, and that he was not involved in the present case.
At the conclusion of the hearing, the district judge took the motion under advisement. On May 12, 1994, the district court issued its order. The court first found that Avalos' dual roles as Deputy District Attorney and Pueblo City Council member did not create an appearance of impropriety. The court found that Avalos may have more influence over the police department than other deputy district attorneys. However, the court held that the integrity of the criminal justice system was not compromised, because the public's perception would reasonably be that the district attorney and the police department "are in the same camp anyway."
The district court nevertheless appointed a special prosecutor to handle the criminal case against Maurello because the court found that the district attorney was "interested" in the criminal case, under section 20-1-107, 8B C.R.S. (1986).[7] The court reasoned that a conviction in the criminal case, although not dispositive, would support the district attorney's allegation in the forfeiture case that the currency was used to "`conduct, maintain, aid, abet or facilitate a Class One Public Nuisance [possession of marihuana, and possession of marihuana with intent to distribute].' " The court concluded that since the district attorney would receive some of the forfeited funds if the forfeiture case was successful, the district attorney was "interested" in the outcome of the criminal case. The court therefore appointed a special prosecutor.
The People then filed this original proceeding, arguing that the district court erred in appointing a special prosecutor.
II.
The People argue that the district court abused its discretion when it found, pursuant to section 20-1-107, 8B C.R.S. (1986), that the district attorney was "interested" in the criminal case against Maurello. We agree. We find that the district attorney's involvement in the criminal case as it relates to the pending forfeiture case is too attenuated to create a conflict of interest.
Under section 20-1-107, the district court has discretion to disqualify the district attorney from a case and appoint a special prosecutor if the district attorney is "interested" in the outcome of the case. Section 20-1-107 provides, in relevant part, as follows:
If the district attorney is interested or has been employed as counsel in any case which it is his duty to prosecute or defend, the court having criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause.
Although the statute does not define the word "interested," we have held that the district attorney's disqualification is proper when the district attorney has some involvement in the defendant's case which would impair that office's ability to prosecute the case fairly. See Wheeler v. District Court, 180 Colo. 275, 278-79, 504 P.2d 1094, 1096 (1973).
In those cases where disqualification is justified, a member of the district attorney's office generally has a direct interest in the case which is likely to create an appearance of impropriety.[8] In Pease v. District Court, 708 P.2d 800, 802 (Colo.1985), we held that the district attorney should be disqualified from prosecuting a case in which two attorneys in that office were material witnesses in the case.
Similarly, in People v. Stevens, 642 P.2d 39 (Colo.App.1981), the prosecuting attorney had an attorney-client relationship with the defendant prior to the attorney's employment as a prosecutor. The court held that the district court should have appointed a special *711 prosecutor to avoid the appearance of impropriety. Id. at 41. See also People v. County Court, 854 P.2d 1341 (Colo.App.1992) (holding that the court properly appointed a special prosecutor where the deputy district attorney pursued a warrant check on the defendant, personally effected the defendant's arrest by subduing him, and later planned to appear as a witness in the case arising from the altercation).
Section 20-1-107 does not require the district court to disqualify the district attorney simply because the district attorney has some interest in the case. In People v. District Court, 189 Colo. 159, 162, 538 P.2d 887, 889 (1975), we held that section 20-1-107 was designed to permit the appointment of a special prosecutor "only when the district attorney has an interest in the litigation apart from his professional responsibility of upholding the law." (Emphasis added.) In that case, the defendant sought to disqualify the district attorney from prosecuting the case against him. The district attorney, who was also a candidate for mayor, bought a newspaper campaign advertisement. In the advertisement, the district attorney quoted a newspaper editorial which said that the district attorney was successful in most cases, giving as an example "`[the defendant's] shaky financial deals.'" Id. at 161, 538 P.2d at 888. We held that the only possible inference from the editorial was that the district attorney was "properly performing his responsibilities and duties as district attorney in the [defendant's] case," and that the editorial was not evidence that the defendant would be subjected to an unfair trial. Id. at 162-63, 538 P.2d at 889.
In this case, the district attorney is not interested in the outcome of the criminal case against Maurello apart from an interest in fulfilling its duties. In fact, the district attorney is obligated by law to "faithfully discharge the duties of [the district attorney's] office," which duties include representing the People in enforcing the laws of the state. See §§ 20-1-101 and 20-1-102(3), 8B C.R.S. (1986 & 1994 Supp.). By pursuing both the criminal case against Maurello, and the forfeiture case against the seized currency, the district attorney was merely discharging the obligations of that office.
In Gray v. District Court, 42 Colo. 298, 304, 94 P. 287, 289 (1908), we said that "[t]he interest which requires the removal of a district attorney for the particular occasion ... is such a concern in the outcome of the matter that he will either reap some benefit or suffer some disadvantage." The district attorney has no improper involvement in either case, and the members of that office will not personally receive benefit or detriment from the outcome of either case. Rather, the district attorney is fulfilling its duties by pursuing both statutory remedies, as it is authorized to do. See § 20-1-102, 8B C.R.S. (1986 & 1994 Supp.) ("The district attorney, when enforcing support laws pursuant to statute, contract, or request of the court, may use any remedy, either civil or criminal, available under the laws of this state.").
While a conviction in the criminal case would be beneficial to the district attorney in proving its forfeiture case under the Abatement of Public Nuisance Act, the forfeiture is not dependent on a conviction in the criminal case. The forfeiture case and the criminal case are independent causes of action, requiring separate trials and proof of separate elements. Although the district attorney bears the burden to prove the criminal case beyond a reasonable doubt, the district attorney must only prove the forfeiture case, which is civil in nature, by a preponderance of the evidence. People v. Milton, 732 P.2d 1199, 1207 (Colo.1987). The function of the forfeiture action is also separate from the punitive function of a criminal conviction. See People v. Garner, 732 P.2d 1194, 1196 (Colo.1987) (holding that, in a forfeiture case, the property itself is the offender "and may thereby be subject to forfeiture even though the owners of the property might well be innocent of any wrongdoing"). Therefore, while there is some overlap in the elements to be proved under the two cases, the district attorney only stands to benefit from a criminal conviction to the extent that the office's duty to prosecute crimes is fulfilled, and its duty to abate public nuisances is furthered.[9]
*712 For substantially the same reasons, we reject Maurello's argument that the district attorney's simultaneous involvement in the criminal case and the forfeiture case creates an appearance of impropriety which requires the disqualification of the district attorney. The district attorney's involvement in both the criminal and civil forfeiture cases, under the facts of this case, does not undermine public confidence in the impartiality of the criminal justice system.
In sum, we conclude that the district court abused its discretion in disqualifying the district attorney and appointing a special prosecutor to handle the criminal case against Maurello. We hold that the district attorney may proceed with both the criminal and forfeiture cases, and that the district attorney is not "interested" in the outcome of the criminal case merely because it is seeking to forfeit the seized currency. The rule is made absolute, and the case is remanded for further proceedings consistent with this opinion.
NOTES
[1] This court has original jurisdiction to issue a writ of mandamus or prohibition where the district court is proceeding without or in excess of its jurisdiction, or where the district court has abused its discretion and where an appellate remedy would be inadequate. Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 905 (Colo.1992).
[2] In the Petition for Writ in the Nature of Prohibition, the petitioner is identified as "The People of the State of Colorado ex rel. G.F. Sandstrom, District Attorney, Tenth Judicial District, State of Colorado." In this opinion, we refer to the petitioner as "the district attorney," and use the term to refer interchangeably to either the person of the District Attorney for the Tenth Judicial District or the Office of the District Attorney for the Tenth Judicial District.
[3] The information charged a codefendant, Cherie Felice Maurello, with the same crimes. The charges against Cherie Felice Maurello were later dismissed.
[4] Under the Abatement of Public Nuisance Act, the district attorney has a duty to bring an action "to restrain, prevent, abate, and perpetually enjoin any ... public nuisance and to seek the forfeiture of property." § 16-13-302, 8A C.R.S. (1994 Supp.). The statute provides that a class 1 public nuisance includes "[a]ll currency ... furnished or intended to be furnished by any person in exchange for any public nuisance act," § 16-13-303(3)(a), 8A C.R.S. (1994 Supp.), "[a]ll proceeds traceable to any public nuisance act," § 16-13-303(3)(b), 8A C.R.S. (1994 Supp.), and "[a]ll currency ... used or intended to be used to facilitate any public nuisance act," § 16-13-303(3)(c), 8A C.R.S. (1994 Supp.). A "public nuisance act" is defined by § 16-13-301(2.3), 8A C.R.S. (1994 Supp.), and includes the "unlawful... distribution of any controlled substance," and the "unlawful possession of any controlled substance." § 16-13-303(1)(c)(I)-(II), 8A C.R.S. (1994 Supp.).
[5] The district attorney issued a receipt for the currency. The receipt indicates that the district attorney received $4,893.00 from the police department. At the motion hearing, Detective Lewis C. Andrew testified that the department retained $19.00 of the total $4,912.00 seized, because the $19.00 was in foreign currency.
[6] Detective Andrew was called to testify regarding his involvement with the investigation of Maurello. Although Deputy District Attorney Avalos was not involved with the prosecution of either the criminal or forfeiture case, Maurello apparently argued at the motion hearing that Avalos' employment by the district attorney and his membership on the Pueblo City Council created an appearance of impropriety. Avalos therefore testified regarding his dual roles. District Attorney Sandstrom was called to testify in his supervisory capacity, and because he is handling the forfeiture case.
[7] Under § 20-1-107, 8B C.R.S. (1986), the district court may disqualify the district attorney and appoint a special prosecutor if the district attorney is "interested ... in any case which it is his duty to prosecute."
[8] The district court may also disqualify the district attorney if the district attorney's participation in the case creates an appearance of impropriety, i.e., by undermining the public trust in the criminal justice system, or creating an appearance that the defendant will not be fairly tried. See People v. Garcia, 698 P.2d 801, 806 (Colo.1985); People v. County Court, 854 P.2d 1341, 1344 (Colo.App.1992).
[9] We reject the suggestion that the district attorney is "interested" in the outcome of the criminal case because it chooses to seek forfeiture of the currency under the Abatement of Public Nuisance Act, rather than under the Colorado Contraband Forfeiture Act, §§ 16-13-501 to -508, 8A C.R.S. (1986 & 1994 Supp.). The district attorney's decision to proceed under one statute and not another is a matter within its sound prosecutorial discretion. See Myers v. District Court, 184 Colo. 81, 85, 518 P.2d 836, 838 (1974). | 01-03-2023 | 10-30-2013 |
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