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https://www.courtlistener.com/api/rest/v3/opinions/840252/ | 744 N.W.2d 135 (2008)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Henry Charles DAVIS, Defendant-Appellant.
Docket No. 134208. COA No. 275419.
Supreme Court of Michigan.
February 19, 2008.
By order of September 10, 2007, the prosecuting attorney was directed to answer the application for leave to appeal the May 4, 2007 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND these cases to the Wayne Circuit Court for entry of an amended Judgment of Sentence in No. 03-002568. As the prosecution concedes, the Judgment of Sentence entered in that file on January 25, 2006 erroneously states that the sentences are to run consecutively with the sentences in Nos. 03-001582, 03-001583 and 03-002554, contrary to the plea agreement provision, which was sanctioned by the circuit court, that all sentences are to run concurrently. See PT, 6, 10-11, 22 and 23. In all other respects, leave to appeal is DENIED, because we are not persuaded that the, remaining questions presented should be reviewed by this Court. The motions for miscellaneous relief are DENIED as moot.
We do not retain jurisdiction. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1111966/ | 512 So.2d 862 (1987)
Robert E. LaRUE, et al.
v.
CROWN ZELLERBACH CORPORATION, Lonnie Massey and Marjorie Margaret Cherniak.
No. 86 CA 0195.
Court of Appeal of Louisiana, First Circuit.
June 23, 1987.
Dissenting Opinion June 29, 1987.
Rehearing Denied September 2, 1987.
Writ Denied November 20, 1987.
*863 Thomas J. Hogan, Jr., Greensburg, for Robert LaRue, et al.
Duncan S. Kemp, III, Hammond, for Lonnie Massey.
Charles Hughes, Jr., Bogalusa, for Crown Zellerbach.
Anthony Rollo, New Orleans, for Marjorie Cherniak.
Before LOTTINGER, EDWARDS, WATKINS, CARTER and LeBLANC, JJ.
EDWARDS, Judge.
The issue in this case is whether landowners in a subdivision subject to a restrictive covenant have a right and cause of action against the timber cutter and the corporation who bought the timber when it was cut down in violation of the covenant. We hold that they do not.
FACTS
Plaintiffs and defendant Marjorie Cherniak are neighboring landowners in the Whispering Pines Subdivision in St. Helena Parish. Their land is subject to a recorded restrictive covenant which stipulates the minimum number of trees per acre to be maintained on each lot. Made defendants were Mrs. Cherniak, the landowner; Lonnie Massey, the timber cutter; and Crown Zellerbach, the timber buyer. Plaintiffs' petition alleges that defendants had actual knowledge of the restrictive covenant, yet cut all of the timber on a portion of Mrs. Cherniak's property in violation of the restrictive covenant.
Massey filed exceptions of no cause and no right of action, Crown Zellerbach moved for summary judgment, and the trial court dismissed plaintiffs' suit against them. Plaintiffs settled with and dismissed Mrs. Cherniak. On appeal, plaintiffs contend that the petition discloses both their right and cause of action against defendants Massey and Crown Zellerbach under four theories: (1) timber trespass, LSA-R.S. 56:1478.1; (2) trespass; (3) conversion; and (4) general delictual liability under art. 2315 of the Civil Code.
Crown Zellerbach's motion for summary judgment was neither supported nor opposed by any documents other than pleadings and briefs, and consequently the case is presented to us as if on an exception of no cause of action. LSA-C.C.P. arts. 966-67; Owens v. Martin, 449 So.2d 448, 450 (La.1984). Our inquiry, then, is whether, taking the factual allegations of the petition as true, plaintiffs have a right and cause of action against defendants. Id.
TIMBER TRESPASS
It is unlawful for "any person to cut, fell, destroy or remove any trees, ... growing or lying on the land of another, without the consent of the owner or legal possessor." LSA-R.S. 56:1478.1 A (emphasis added). A violator is liable in damages "to the owner or legal possessor of the trees." LSA-R.S. 56:1478.1 B. (emphasis added).
The petition states that Mrs. Cherniak sold the timber to Crown Zellerbach. Plaintiffs did not allege that they are owners or legal possessors of the trees, or that the trees were taken without the consent of the owner or legal possessor. Therefore there is no cause of action for timber trespass.
TRESPASS
Trespass, a common law tort actionable under article 2315 of the Civil Code, is "the unlawful physical invasion of the property or possession of another." Versai Management, Inc. v. Monticello Forest Prods. Corp., 479 So.2d 477, 482 (La.App. 1st Cir.1985). "The action for trespass is designed to protect the interest in exclusive possession of the land in its intact physical condition." W. Prosser & W.P. Keeton, The Law of Torts § 13 at 77 (5th ed. 1984) [hereinafter Prosser]. One who is neither an owner nor possessor has no right to sue for trespass upon the property. Id. at 78; 87 C.J.S. Trespass § 21 (1954). Plaintiffs did not allege that they are the owners or possessors of Mrs. Cherniak's property, or that Massey and Crown Zellerbach acted without the consent *864 of the owner. Consequently there is no cause of action in trespass.
CONVERSION
Conversion, likewise actionable under article 2315 of the Civil Code, is "any wrongful exercise or assumption of authority over another's goods, depriving him of the possession, permanently or for an indefinite time." Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756, 760 (La. 1985). Conversion is an act in derogation of a plaintiff's possessory rights. Id. As in trespass, the lack of consent by the owner or possessor is a prerequisite. Plaintiffs, not having alleged that they are owners or possessors of the trees, or that the trees were removed without the owner's consent, have no right to sue for their conversion. See Prosser, supra § 15; 89 C.J.S. Conversion § 73.
GENERAL DELICTUAL LIABILITY UNDER ARTICLE 2315
Plaintiffs' allegation in the petition that Mrs. Cherniak violated the restrictive covenant to which her land was subject, thereby causing them damage, clearly states a cause of action against her for damages. See LSA-C.C. art. 781; Queensborough Land Co. v. Cazeaux, 136 La. 724, 737; 67 So. 641, 646 (1915). Yet plaintiffs have chosen to dismiss this claim and proceed only against the cutter and the purchaser of the timber.
The restrictive covenant created a duty on the part of Mrs. Cherniak, as well as future owners of the land, to abide by its terms. It was the breach of that duty, i.e., the duty of each landowner owed to all others in the subdivision to maintain a minimum number of trees, that caused the damages.
We know of no duty to the subdivision landowners that Massey and Crown Zellerbach breached. While the petition does indeed state that plaintiffs' damages were caused by the acts of Massey and Crown Zellerbach, which would bring this case within the broad terms of article 2315 of the Civil Code, the element of fault is missing. Because we can find no duty to plaintiffs that Massey and Crown Zellerbach breached, we cannot find fault, and consequently there is no cause of action. Accordingly the judgment of the trial court is affirmed at appellants' cost.
AFFIRMED.
WATKINS, J., dissents and assigns reasons.
WATKINS, Judge, dissenting.
I agree with the majority that plaintiffs have not stated a cause of action in trespass, timber trespass, or conversion, but I disagree with their finding that plaintiffs have not stated a cause of action in tort.
Plaintiffs allege that they are the beneficiaries of a recorded restrictive covenant or building restriction; that under the restrictive covenant they are entitled to a minimum number of trees on Mrs. Cherniak's land; and that the defendants were given actual notice of plaintiffs' property rights but proceeded to violate those rights by cutting the trees. These well pleaded facts must be taken as true for the purposes of this exception of no cause of action. Darville v. Texaco, Inc., 447 So.2d 473, 475 (La.1984). The elements of a cause of action under Civil Code articles 2315 and 2316 are fault, causation, and damages, Seals v. Morris, 410 So.2d 715, 718 (La.1982) (on reh'g).
I do not understand the majority's finding that "the element of fault is missing." A legal duty coupled with a breach of that duty is a prerequisite to any determination of fault under articles 2315 and 2316. Whether a legal duty is owed by one party to another depends on the facts and circumstances of the case and the relationship of the parties. Seals v. Morris, 410 So.2d at 718. As a general proposition, defendants had the obligation to conform to the standard of a reasonable man under like circumstances. Id. I believe that, under the circumstances alleged, defendants owed a duty not to unreasonably injure plaintiffs' property rights and defendants breached that duty.
Plaintiffs, the beneficiaries of a restrictive covenant or building restriction, have a *865 limited, but nevertheless protectable, property right. See Comment, Some Observations on Building Restrictions, 41 La.L. Rev. 1201, 1202 (1982), 2 A. Yiannopoulos, Louisiana Civil Law Treatise: Property § 161 at 433 (2d ed. 1980) [hereinafter "Civil Law Property".] Building restrictions are incorporeal immovables and real rights likened to predial servitudes. LSA-C.C. art. 777. As real rights, building restrictions confer on the persons benefitted a direct and immediate authority over the property which is operative against the world. See Civil Law Property, supra § 144 at 385. They may be enforced against any violator by actions for injunction or damages. 4 A. Yiannopoulos, Louisiana Civil Law Treatise: Predial Servitudes § 194 at 509 (1983). See LSA-C.C. art. 777, comment (b); LSA-C.C. art. 779, comment (d); Queensborough Land Co. v. Cazeaux, 136 La. 724, 737, 67 So. 641, 646 (1915).
Here, defendants allegedly knew of plaintiffs' property right. Plaintiffs do not allege that their injury was caused by simple mistake or ignorance. We are not confronted here with mere constructive knowledge of the contents of the public records. The irreversible harm to plaintiffs' rights was foreseeable. The acts alleged were intentional and must have been done with great certainty that irreparable harm would result. Under the circumstances, I believe defendants breached even a slight duty of care. Although defendants were acting under a contract with the landowner, a contract cannot authorize an otherwise wrongful act. Even those under contract must exercise reasonable care. When it becomes apparent that his principal has no right to act, the contractor proceeds, without further investigation, at his own risk.
The majority notes that plaintiffs have dismissed their claim against Mrs. Cherniak. This fact has no bearing on the question of whether these defendants breached an independent duty owed to these plaintiffs. The relative culpability of the defendants and of Mrs. Cherniak should be determined after a trial on the merits.
I respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899792/ | NO. 07-08-0340-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
FEBRUARY 10, 2009
______________________________
EMILIO CHAVEZ, JR., APPELLANT
V.
CYNTHIA GALE HILL, APPELLEE
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-540,380; HONORABLE RUBEN REYES, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Emilio Chavez, Jr., proceeding pro se and in forma pauperis, appeals
from the trial court’s order granting Cynthia Gale Hill’s no-evidence motion for summary
judgment in his action against her for legal malpractice and violations of the Deceptive
Trade Practices–Consumer Protection Act (DTPA).
We affirm.
Procedural Background
On April 27, 2006, pursuant to a guilty plea, Chavez was convicted of theft and
sentenced to five years confinement. His court-appointed counsel was Hill. Later that
year, while Chavez was incarcerated, he filed a complaint in the United States District
Court for the Northern District of Texas against several defendants, including Hill, alleging,
among other claims, ineffective assistance of counsel and deprivation of liberty and
property without due process of law. On December 22, 2006, the trial court signed an
order which dismissed, as frivolous, all of Chavez’s claims against Hill.
The following year, Chavez filed the underlying suit against Hill alleging legal
malpractice and violations of the DTPA. Specifically, Chavez alleged that Hill breached her
fiduciary duties and standard of care by fraud, misrepresentation, forgery, deception, and
coercion. Chavez further alleged that Hill’s wrongful acts caused him to suffer “damages
in excess of $100 million U.S. dollars.”
By a special denial contained within her amended answer, Hill contended that,
under § 17.49(c) of the DTPA, she was exempt from a claim for damages based upon the
rendering of a professional service. She also raised the affirmative defense of res judicata
based upon the final order rendered in Chavez’s case filed in the United States District
Court.
After a deluge of paperwork from Chavez and adequate time for discovery, Hill filed
a no-evidence motion for summary judgment. By her motion, she alleged there was no
evidence of one or more of the elements of Chavez’s claims of legal malpractice, breach
of fiduciary duty, fraud, misrepresentation, forgery, deceit, and coercion. She also alleged
that Chavez did not present any evidence entitling him to relief under the DTPA. Finally,
Hill raised the affirmative defense of res judicata.
Chavez filed an objection to Hill’s no-evidence motion and, because of his
incarceration, requested the trial court to take judicial notice of exhibits previously filed with
his brief in support of his suit.
Those exhibits include motions, correspondence,
documents relating to his guilty plea in the theft case, unanswered interrogatories to Hill,
and Chavez’s “Affidavit of Forgery and Pleas non est factum an Alteration.” After reviewing
the evidence, the trial court signed an order granting Hill’s no-evidence motion and
dismissing all of Chavez’s claims. This appeal followed.
After the appellate record was filed, on October 16, 2008, Chavez filed his brief and
this Court acknowledged the filing by letter to both parties the following day. On October
21, 2008, this Court received a letter from Hill in which she indicated she received the
Court’s notification letter but had not been served with a copy of Chavez’s brief. This Court
immediately notified Chavez of the defect and requested proof of service. In response, on
October 31, 2008, Chavez filed “Appellant’s Amended Brief,” which was provided to Hill.
Again Chavez was notified by letter that the amended brief superceded his original brief.
Hill timely filed her brief on December 8, 2008, and on January 7, 2009, Chavez filed a
request to rebrief, which was denied. Chavez then filed a “Memorandum of Closing
Statements” on January 16, 2009, and this Court notified him that briefing deadlines had
passed and no further filings would be considered.
Summary Judgment Standards of Review
I. Affirmative Defense - Res Judicata
A defendant who moves for summary judgment on the basis of an affirmative
defense has the burden to prove conclusively all the elements of the affirmative defense
as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp, 988 S.W.2d
746, 748 (Tex. 1999). The doctrine of res judicata is an affirmative defense. Tex. R. Civ.
P. 94. In reviewing the evidence, we take as true the non-movants’ summary judgment
evidence and indulge every reasonable inference in favor of the non-movant. See
American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997), citing Nixon v.
Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985).
II. No-Evidence Motion for Summary Judgment
A no-evidence motion for summary judgment is essentially a motion for a pretrial
directed verdict. See Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997). In a no-evidence summary judgment motion, the movant contends there is no
evidence of one or more essential elements of the claims for which the non-movant would
bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). Once the motion is filed, the
burden shifts to the non-movant to present evidence raising an issue of material fact as to
the elements specified in the motion. The trial court must grant the motion unless the non-movant produces more than a scintilla of evidence raising a genuine issue of material fact
on the challenged elements. See Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
The non-moving party is “not required to marshal its proof; its response need only point out
evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i),
Notes and Comments (1997). We review the summary judgment evidence in the light
most favorable to the party against whom summary judgment was rendered, crediting
evidence favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not. See Hamilton v. Wilson, 249 S.W.3d 425,
426, (Tex. 2008), citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). See
also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When the judgment
does not specify the ground relied on, we will affirm the summary judgment if any of the
theories advanced in the motion are meritorious. Western Investments, Inc. v. Urena, 162
S.W.3d 547, 550 (Tex. 2005)
Discussion
I. Affirmative Defense - Res Judicata
Res judicata, or claim preclusion, “gives a plaintiff one bite at the cause of action
apple.” Weiman v. Addicks-Fairbanks Road Sand Co., 846 S.W.2d 414, 418
(Tex.App.–Houston [14th Dist.] 1992, writ denied). If the defendant wins the original suit,
then the plaintiff is barred from bringing another action on the claims actually litigated in
the action, as well as claims that could have been litigated in the original action. Barr v.
Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).
To successfully assert the affirmative defense of res judicata, a defendant must
prove the following elements: (1) a prior final judgment on the merits by a court of
competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second
action based on the same claims as were raised or could have been raised in the first
action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008). Hill
alleged the required elements of res judicata in her motion for summary judgment. She
attached as evidence a certified copy of an order of dismissal from the United States
District Court for the Northern District of Texas dismissing Chavez’s ineffective assistance
and due process claims against her. The order and Chavez’s amended complaint, which
is also included as evidence, provides the identity of the parties. Hill also asserted that the
underlying legal malpractice suit with “an array of causes typically known as elements of
legal malpractice,” was the same as the “administrative malpractice” referenced by Chavez
in his “Motion for Judgment” filed in the federal lawsuit and which is included in Hill’s
summary judgment evidence.
The only potential competent summary judgment evidence presented by Chavez
is his affidavit in which he avers that Hill forged his name to the plea agreement while
representing him in his theft case. Mindful that we review summary judgment evidence in
the light most favorable to the party against whom summary judgment was rendered, a
conclusory statement unsupported by facts is not competent summary judgment evidence.
Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). A conclusory statement is
one that does not provide the underlying facts to support the conclusion. 1001 McKinney
Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex.App.–Houston
[14th Dist.] 2005, pet. denied). The mere recitation that an affidavit is based on personal
knowledge is inadequate if the affidavit does not affirmatively show a basis for such
knowledge. Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 542-43
(Tex.App.–Houston [14th Dist.] 2007, pet. denied). Chavez’s statement that Hill forged his
name without any underlying factual details is self-serving and conclusory and insufficient
to raise a genuine issue of material fact to defeat Hill’s motion for summary judgment.
In the absence of any genuine issue of material fact that would preclude Hill’s
entitlement to the affirmative defense of res judicata, Chavez’s legal malpractice claims
actually litigated in the federal lawsuit, as well as claims that could have been litigated in
that suit, were barred.
II. Hill’s No-Evidence Motion for Summary Judgment
By her no-evidence motion, Hill alleged there was no evidence of one or more of the
elements of Chavez’s claims of legal malpractice, breach of fiduciary duty, fraud,
misrepresentation, forgery, deceit, coercion, and violations of the DTPA. Hill set forth each
element of every claim in her motion and she then challenged at least one element of each
claim. In response to the motion, Chavez filed his objection raising legal and factual
insufficiency and requesting the trial court to take judicial notice of certain documents filed
by him. As previously discussed, the only potential summary judgment evidence presented
by Chavez was his affidavit, which we have found was not competent summary judgment
evidence because of its conclusory nature. Thus, Chavez has failed to present any
evidence raising a genuine issue of material fact on any of the elements challenged by Hill.
III. Proximate Cause as to Damages
In the context of a criminal matter, the client’s criminal conduct is, as a matter of law,
the sole proximate or producing cause of the client’s eventual conviction and damages,
such that a legal malpractice claim may not be brought absent a showing that the plaintiff
has been exonerated from the criminal conviction, either by direct appeal, post-conviction
relief, or otherwise. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995).
Chavez has not been exonerated of the offense that was the basis of Hill’s representation
giving rise to his malpractice claim. Thus, Chavez would not have been able to negate the
sole proximate cause bar to his legal malpractice claim against Hill. Id.
Conclusion
Because Hill established the affirmative defense of res judicata to Chavez’s legal
malpractice claims, and because Chavez did not raise a genuine issue of material fact as
to the contested element of each cause of action asserted against Hill, including proximate
cause as to damages, we conclude the trial court did not err in granting Hill’s motion for
summary judgment. Having disposed of Chavez’s contentions on the theories of res
judicata and no evidence, we need not consider any other complaints presented by him.
See Urena, 162 S.W.3d at 550. All contentions raised by Chavez are overruled.
Accordingly, the trial court’s summary judgment is affirmed.
Patrick A. Pirtle
Justice | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3102241/ | NUMBER 13-11-00217-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ARIN ANTWINE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On Appeal from the 252nd District Court
of Jefferson County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion Per Curiam
Appellant, Arin Antwine, by and through his attorney, has filed a motion to dismiss
his appeal because he no longer desires to prosecute it. See TEX. R. APP. P. 42.2(a).
Without passing on the merits of the case, we grant the motion to dismiss pursuant to
Texas Rule of Appellate Procedure 42.2(a) and dismiss the appeal. Having dismissed
the appeal at appellant's request, no motion for rehearing will be entertained, and our
mandate will issue forthwith. Any pending motions are dismissed as moot.
PER CURIAM
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
11th day of August, 2011.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1413002/ | 139 S.E.2d 272 (1964)
Elizabeth Ann ROBERTS, an infant, who sues by her mother and next friend, Ruth Roberts,
v.
Richard O. GALE.
No. 12287.
Supreme Court of Appeals of West Virginia.
Submitted September 8, 1964.
Decided December 15, 1964.
*273 Chauncey H. Browning, Jr., Charleston, for appellant.
Barley & Goode, Albert A. Barley, Welch, Hudgins & Coulling, Paul S. Hudgins, Bluefield, for appellee.
CAPLAN, Judge.
Elizabeth Ann Roberts, an infant, who sues by her mother and next friend, Ruth Roberts, instituted this action against the defendant, Richard O. Gale, a physician, for damages which she alleges she sustained as a result of the defendant's negligence in administering certain medical treatment. In the trial of this case the court, at the conclusion of the plaintiff's evidence, directed the jury to return a verdict for the defendant, entered a judgment for the defendant and dismissed plaintiff's cause of action.
The plaintiff here complains that such action of the trial court constitutes error. Although several assignments of error are relied upon for reversal of this case, full consideration of such assignments presents for determination a single issue. Did the plaintiff, in the presentation of her evidence, establish a prima facie case of negligence against the defendant, upon which the jury properly could have returned a verdict in her favor?
The plaintiff's primary allegation is that the improper application of dry ice to her face constituted negligence. She also claims that the defendant was negligent in failing to further treat her or advise that additional treatment was necessary. In order to determine the validity of the plaintiff's position it is essential to consider the evidence adduced at the trial.
Ruth Roberts, the mother of the plaintiff, testified that the plaintiff was born in the City of Welch on November 15, 1951; that at the time of her birth she appeared to be a normal, healthy baby; that approximately three weeks thereafter a small red spot about the size of a "pin scratch" appeared on the left side of the infant's face; and that over the period of the next few weeks she observed that the red spot was growing. Being concerned with this blemish on her child's face, she took her to see Doctor Saunders, who advised her to have the child examined by Doctor Gale, the defendant herein.
Her further testimony reveals the following: When the plaintiff was approximately three months of age she, accompanied by her father, took the child to Doctor Gale's office. Doctor Gale looked at the child and told Mrs. Roberts that the red spot was a small blood tumor and that he would burn it off with dry ice. Upon obtaining a piece of dry ice, he shaved it to a point in preparation for its use on the child's face. After telling her that this treatment would result in a bad burn, the defendant applied the dry ice to the spot on the baby's cheek. It was applied with some force for over a minute, during which time the child cried and apparently suffered great discomfort. This treatment caused the plaintiff's cheek to become discolored over an area estimated to be the size of a quarter and a depression or hole in the tissue of her cheek became apparent. Also, a sore developed inside the child's cheek. Within a few days after this treatment the child's face began to swell and continued to swell for a period of approximately fourteen months. During this period she took her child to Doctor Gale several times but the defendant did not further treat the child, saying that "mother nature would take it off".
Describing the condition of the child, Ruth Roberts testified that "Elizabeth Ann's face was blue, every vein in her eyes was broken, across her mouth, up in here and a big one behind her car. Q. Was her face swollen? A. Yes, sir. Q. Had it continued to swell or had it reached a point where it was stopped? A. No, sir. It was still breaking."
Mrs. Roberts' father also testified as to the application of the dry ice by the defendant. *274 His testimony was similar to that of his daughter, although he estimated that the dry ice may have been applied for as long as two minutes. The testimony of other lay witnesses supported that of Mrs. Roberts as to the condition of the plaintiff after she had been treated by the defendant.
When it became apparent that the child's condition was not improving, her mother took her to Cincinnati, Ohio, where she was examined and treated by Doctor Esther C. Marting of that city. Doctor Marting, a radiation therapist, whose deposition has been made a part of the record, described the child's condition as follows: "Well, this lesion consisted of a large puffy swelling on the left cheek, extending up onto the bridge of the nose and down into the upper lip. It had a bluish color. On the surface there was some splotches of bright red coloring. I think there was about, as I remember it, there was some scarring along the cheek, the lower part of the cheek." She described the condition as a thick, cavernous type of hemangioma.
In her deposition she stated that she could not have known the condition of the child's face when Doctor Gale treated her; that the use of dry ice is an accepted method of treatment of a capillary hemangioma; that the growth on the child's face could not have been caused by the dry ice treatment; that there was no hole or perforation in the cheek when she saw her; that the only evidence of former treatment was some scar tissue on the cheek, but that the amount of scarring was not unusual; and that, in her opinion, the child had both the surface and cavernous types of hemangioma at the time she was brought to her for treatment.
It further appears from the deposition of Doctor Marting that she administered radium treatments to the plaintiff nine times between May 5, 1953 and March 30, 1956. These treatments caused considerable regression of the growth and, as a result thereof, the lesion was about one half of its original size. Doctor Marting then told the child's mother that she had accomplished as much as could be hoped for with radium and advised her to take the plaintiff to a plastic surgeon.
In accordance with this advice, Mrs. Roberts contacted Doctor Clyde Litton, a plastic surgeon in Charleston, and arranged to have plastic surgery performed on her daughter. The operation was performed on August 17, 1956. Mrs. Roberts testified that the operation resulted in a great improvement in the appearance of her child's face, but that two additional operations will be required.
During the trial several physicians were called as witnesses by the plaintiff. Also, the deposition of Doctor Marting, of Cincinnati, was read to the jury. The matters to which Doctor Marting testified have been related above. None of the other physicians called as witnesses had treated or examined the plaintiff. They were queried, on the basis of a hypothetical question, as to the propriety of the treatment administered to the plaintiff by Doctor Gale.
In response to the hypothetical question which set out many of the facts of this case and particularly those dealing with the actual dry ice treatment, Doctor Stephen Mamick stated that, in his opinion, the treatment was adequate and that other doctors in the area "would probably do it in a similar fashion". This witness had never treated a capillary hemangioma but said that the use of dry ice was an accepted method of treatment.
Doctor F. L. Johnston, upon being asked the same hypothetical question, testified as follows: "It is my opinion that the treatment you describe is acceptable and that the result you describe is to be expected if you expect to cure the tumor. Q. So that we may be sure we understand you, Doctor, you are referring not only to the use of the dry ice but the method in which it was applied in this case? A. Yes. Q. For a surface capillary hemangioma? A. Yes."
*275 Doctor A. J. Villani testified that he had treated several patients who had capillary hemangiomas and that his method of treatment was the application of dry ice. While his testimony indicated that he may use the dry ice in treating a patient in a manner different from that employed by the defendant, he did not say that the defendant's treatment constituted negligence. He stated that he never timed the application of dry ice but applied it until the lesion became "blanched and looked like frost". Furthermore, he said that one could not say how long the treatment should last because it was dependent upon the condition of the hemangioma. This witness said that the hypothetical question could not be answered with a yes or no. He did, however, upon further questioning, say that "If it comes to the question as to holding the dry ice on the baby's face until a hole is produced, I think any medical opinion would be that is not the proper procedure".
Doctor Jorge Ribeiro testified that he had used dry ice in the treatment of capillary hemangiomas; that the application of dry ice should not last for more than thirty seconds but may be longer depending upon the size of the lesion; and that such application must cause a depression in the skin because it has to be applied with some force. In response to the hypothetical question, this witness stated that the manner and method of treatment were proper. Counsel for the plaintiff claimed surprise and was permitted by the court to examine him as a hostile witness. Upon further examination Doctor Ribeiro refused to assume as true the facts stated in the hypothetical question.
On avowal, Doctor Ribeiro persisted in his position that the treatment by dry ice could not produce a hole in the child's face as described in the hypothetical question. He testified: "A. As I said before, I don't believe that can happen. Q. But assuming that it did happen, it was not proper treatment or not? A. Assuming that it did happen, it was not proper treatment, but I don't believe and don't think it could happen. Q. I understand that, but assume it could happen, which you must do for the purpose of this question, was it proper or not? A. If it happened, it would not be the proper treatment." The court did not permit this testimony to go to the jury. We think it was properly within the discretion of the court to withhold such testimony. It did not unequivocally assume the truth of the facts and could do nothing but confuse and mislead the jury.
The complaint in this case relates to the puffy and swollen condition of the child's face which developed after the treatment administered by the defendant. The testimony of Doctor Marting, the only expert witness who examined the plaintiff, clearly reveals that the child's affliction was a cavernous hemangioma. This is an unnatural growth of blood vessels deep beneath the surface of the skin as opposed to a capillary hemangioma which involves veins at the surface of the skin. The evidence is undisputed that Doctor Gale was employed to treat a capillary hemangioma, not the cavernous type which developed later. Furthermore, all of the expert testimony establishes that the treatment administered to the plaintiff by the defendant could not produce a cavernous hemangioma or cause its development.
This brings us to the consideration of whether the defendant was negligent in his treatment of the capillary hemangioma. The plaintiff seeks to establish through certain lay witnesses that the defendant's treatment constituted negligence. Although the plaintiff also produced expert witnesses, none of them testified that the treatment administered by the defendant for the capillary hemangioma was in any manner improper. There is no medical evidence which would indicate negligence in the administration of the treatment for which the defendant was employed.
In an action for damages against a physician for negligence and want of professional skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of professional *276 skill and that it resulted in the injury of which complaint is made. Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147; White v. Moore, 134 W.Va. 806, 62 S.E.2d 122. In such case the plaintiff must not only prove negligence but also must show that such negligence was the proximate cause of the injury. In this respect actions involving medical malpractice do not depart from the ordinary rules of negligence. The evidence in this case falls short of showing that the defendant's act was the proximate cause of the plaintiff's ultimate condition. To the contrary, Doctor Marting and Doctor Ribeiro testified that the treatment administered by the defendant could not produce or cause the development of a cavernous hemangioma.
In the instant case the only proof of negligence offered was that of lay witnesses. None of the medical testimony supported the charge of negligence in the treatment administered to the plaintiff by the defendant. It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses. White v. Moore, supra; 41 Am.Jur., Physicians and Surgeons, Section 129; 70 C.J.S. Physicians and Surgeons § 62d(2). This rule has been qualified to permit negligence to be established by lay witnesses in cases where negligence or want of professional skill is so obvious as to dispense with the need for expert testimony. Buskirk v. Bucklew, 115 W.Va. 424, 176 S.E. 603; Howell v. Biggart, 108 W.Va. 560, 152 S.E. 323. We are of the opinion, however, that the rule set out in the two latter cases has no application to the instant case. Here the plaintiff's condition required specialized treatment. To prove negligence or want of professional skill in such treatment the testimony of one with special knowledge is essential. An examination of the record reveals that no such testimony was adduced in the presentation of the plaintiff's case.
Although not strongly urged in the argument or brief made and submitted on her behalf, the plaintiff alleges in her complaint that the defendant was negligent in failing to treat her condition or to advise her that further treatment was necessary. In the circumstances of this case we think that this contention is without merit.
The evidence in the record clearly shows that Doctor Gale was employed to remove a small red spot from the plaintiff's face; that he undertook only the removal of that blemish; that he did so in an approved manner; and that the portion of the plaintiff's face which he treated, that is, the capillary hemangioma, healed in the usual and expected manner. The medical testimony revealed that the scar tissue which resulted from the treatment by dry ice was not unusual.
There is no showing in the record which would in any manner indicate that the defendant caused the condition of which the plaintiff complains. The medical evidence expressly reveals that the dry ice treatment could not cause the condition which developed. The swelling on the plaintiff's cheek was the result of a cavernous hemangioma, an ailment entirely separate and apart from that which the defendant treated. He was under no duty to treat this new condition which developed, not as a result of his treatment, but entirely independent thereof. Furthermore, there is no showing that the defendant ever undertook treatment of the cavernous hemangioma. Clearly one can not be negligent for the existence of a condition which he did not undertake to treat.
We come now to the consideration of the principal question presented in this case, that is, whether the plaintiff established a prima facie case of negligence upon which the jury could have returned a verdict in her favor. The well settled rule requires the plaintiff in making his case to present evidence which, when considered in the light most favorable to him, establishes a prima facie right of recovery, and if he fails to do so the defendant is not required to offer any evidence and a verdict will be directed in favor of such defendant. White v. Moore, 134 W.Va. 806, 62 S.E.2d 122; Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147; Hi Williamson *277 & Co. v. Nigh, 58 W.Va. 629, 53 S.E. 124. See also Prettyman v. Hopkins Motor Co., 139 W.Va. 711, 81 S.E.2d 78; Howell v. Biggart, 108 W.Va. 560, 152 S.E. 323; Buskirk v. Bucklew, 115 W.Va. 424, 176 S.E. 603; Diddle v. Continental Casualty Co., 65 W.Va. 170, 63 S.E. 962, 22 L.R.A.,N.S., 779; 88 C.J.S. Trial § 208; 53 Am.Jur., Trial, Section 162, et seq.
Upon consideration of all of the evidence in the record of this proceeding we are of the opinion that the plaintiff did not establish a prima facie case of negligence against the defendant. Therefore, the judgment of the Circuit Court of McDowell County is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1636095/ | 982 So. 2d 1185 (2008)
BANEGAS
v.
STATE.
No. 3D08-1411.
District Court of Appeal of Florida, Third District.
June 11, 2008.
Decision without published opinion. Belated App.granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899886/ | NO. 07-07-0072-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY 21, 2009
______________________________
IN THE INTEREST OF G.K.D., A CHILD
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 96-558,341; HON. PAULA LANEHART, PRESIDING
_______________________________
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.
(footnote: 1)
MEMORANDUM OPINION
In one point, appellant Sherry Kay Lesley (Lesley) contends the trial court erred in failing to award sufficient retroactive child support in its order increasing child support to be paid by appellee Grant Dukes (Dukes). In its December 21, 2006 order giving rise to this appeal, the trial court increased the amount of monthly child support due by Dukes retroactively from October 1, 2006. In this appeal, Lesley argues that the increased child support payments should have been ordered from the January 17, 2006 filing of Dukes’ answer to her request for increased child support. Disagreeing that the trial court erred, we affirm its judgment.
Discussion
The Family Code gives a trial court authority to retroactively modify child support obligations accruing after the earlier of the date of service of citation or the date of the appearance of the respondent in such an action. Tex. Fam. Code Ann. §156.401(b) (Vernon 2008). The record reveals that Lesley’s motion to increase child support was filed on December 20, 2005, Dukes was served with citation on December 26, 2005, and he answered the motion on January 17, 2006.
The trial court originally set the hearing on the motion on May 22, 2006. Because of a death in his family, Lesley’s counsel sought and obtained a continuance until July 11, 2006. On July 10, 2006, Lesley’s counsel, alleging that both he and Dukes’ attorney had conflicting trial settings, obtained a continuance and the matter was reset for August 10, 2006. On August 9, Lesley’s counsel sought another continuance on the basis that he would be out of town on August 10, and that Dukes’ attorney was set for appearance in another court. This motion was granted and the hearing reset for October 19, 2006.
On September 15, 2006, Lesley’s counsel amended her motion to modify and added a count seeking the modified child support retroactive to the earlier of the time of service of citation upon Dukes or the time of his appearance on the modification motion. The motion was heard at the scheduled time of October 19, 2006. On December 21, 2006, the trial court entered the order giving rise to this appeal. In the order, as material to this appeal, it included a provision providing for increased child support from October 1, 2006. As we have noted, in her one issue, Lesley contends the trial court reversibly erred in not ordering the increased child support retroactive to January 17, 2006, the date of Dukes’ answer to her motion seeking increased child support.
We review the decision of the trial court in matters such as this under an abuse of discretion standard which occurs when the judge acts without reference to any guiding rules or principles.
See In re Tucker
, 96 S.W.3d 662, 668 (Tex. App.–Texarkana 2003, no pet.).
In making that decision, we bear in mind that while the existence of evidence supporting the trial court’s decision depends not only on whether it acted without reference to guiding rules and principles but whether the evidence supports it decision.
Nordstrom v. Nordstrom,
965 S.W.2d 575, 582 (Tex. App.–Houston [1
st
Dist.] 1997, pet. denied);
In re Hamer,
906 S.W.2d 263, 265 n.1(Tex. App.–Amarillo 1995, no writ).
Also, in performing that task, we review the evidence in a light most favorable to the trial court’s decision, and we must indulge in every presumption favoring the judgment.
In re Tucker
, 96 S.W.3d at 665.
Here, the evidence was focused chiefly upon Dukes’ increased net resources. There was evidence that while Lesley provided the child’s residence in Marble Falls, she agreed that they also lived in Horseshoe Bay. There was evidence she had remarried and occupied a home valued at one million dollars. Her husband was in the real estate business while she operated a property renovation business. Dukes testified that he had purchased a duplex in Horseshoe Bay and when he traveled from his home in Abilene to spend his designated weekends with G.K.D., he stayed there because that living arrangement provided a better environment for G.K.D. than a hotel room. The evidence also showed that Dukes frequently traveled to G.K.D.’s Thursday night junior varsity games. He furnished an expense summary showing that the cost of the trips to Horseshoe Bay and the purchase expenses of the duplex amounted to some $4,000 per month.
The purpose of awarding retroactive child support is to remove any motive by an obligor to delay proceedings because absent such power, there would be considerable motive to do so.
In re H.S.N.
, 69 S.W.3d 829, 833 (Tex. App.–Corpus Christi 2002, no pet.). Although for apparent good reasons, and with the agreement of Dukes, Lesley’s three motions for continuance nevertheless added five months to the pretrial period.
We also note that it was only after obtaining three continuances and with trial a month away that Lesley sought retroactive child support for the first time. Although Lesley’s motion contained fair notice of her claim for retroactive child support, we find that the timing of that request, together with the evidence produced at the hearing, is sufficient to justify the trial court’s discretion in limiting the period of the retroactivity to October 1, the first day of the month following service of Lesley’s amended motion.
Accordingly, Lesley’s issue is overruled, and the order of the trial court is affirmed.
John T. Boyd
Senior Justice
FOOTNOTES
1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon 2005). | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876877/ | 247 S.W.3d 17 (2008)
Adolfo GONZALES, Plaintiff,
v.
LEWIS & CLARK MARINE, INC., Defendant/Respondent/Cross-Appellant, and
American Commercial Terminals, LLC, Defendant/Appellant/Cross-Respondent.
No. ED 89680.
Missouri Court of Appeals, Eastern District, Division Four.
February 19, 2008.
Sandor Korein, Saint Louis, MO, for Plaintiff.
Michael D. O'Keefe, Saint Louis, MO, for Appellant.
James Vincent O'Brien, Saint Louis, MO, for Respondent/Cross/Appellant.
Before MARY K. HOFF, P.J., SHERRI B. SULLIVAN, J., and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM.
American Commercial Terminals, LLC (ACT) appeals from the trial court's grant of Lewis & Clark Marine, Inc.'s (Lewis & Clark) motion for summary judgment and denial of ACT's motion for partial summary judgment. Lewis & Clark cross-appeals from the trial court's denial of its second motion for summary judgment. We have reviewed the briefs of the parties and the record on appeal and conclude that Lewis & Clark was entitled to judgment as a matter of law, and its cross-appeal is moot. ACT's appeal of the trial court's denial of its motion for partial summary judgment is also dismissed as moot. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610302/ | 485 P.2d 698 (1971)
STATE of Montana ex rel. Neil H. HART, Relator,
v.
The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF YELLOWSTONE, and the Honorable Robert H. Wilson, as Judge thereof, Respondents.
No. 12068.
Supreme Court of Montana.
Submitted May 12, 1971.
Decided May 20, 1971.
*699 Arnold A. Berger, argued, Billings, for relator.
G. Todd Baugh, argued, Billings, for respondents.
PER CURIAM.
Original proceeding. Relator Neil H. Hart petitions this Court for an appropriate writ to permit him to make a showing in the respondent district court that he is not and was not a fugitive from Wyoming justice.
From the record it appears that on March 10, 1971, relator was arrested at Billings, Montana, upon a warrant issued by the Governor of this state upon request from the Governor of Wyoming, the extradition papers asserting that relator stands charged with the crime of grand larceny, committed in the state of Wyoming, that he had fled from Wyoming and was a fugitive from the justice thereof.
On March 10, 1971, relator and his counsel appeared before the district court at Billings and requested an extension of time for hearing a petition for a writ of habeas corpus and this was granted. Relator then petitioned for such writ of habeas corpus and therein contended that the Governor of this state had not complied with the provisions of section 94-501-4, R.C.M. 1947, prior to the issuance of the warrant in that no hearing was held; that by reason thereof the arrest of petitioner was and is unlawful and illegal. The writ of habeas corpus was issued and the hearing thereon set for April 22, 1971. Return thereto was filed contending that the requisition papers were in conformity with the applicable statutes; that the Governor's warrant was properly issued; that petitioner's arrest was and is lawful.
Among the supporting papers annexed to the requisition in the extradition papers is the affidavit of the complaining witness setting forth the contended facts as to the crime charged against relator in Wyoming. It is there averred that at approximately 12:05 p.m. on February 11, 1971, two witnesses observed a man take at least two fur coats and run from a store in Sheridan, Wyoming; that the man was identified by them as Neil H. Hart; that the coats were of the value of $2,325.00; that said offense constitutes a felony, grand larceny, under the laws of Wyoming.
At the habeas corpus hearing relator was sworn and testified that at 9:00 a.m. on February 11, 1971, he was at the city hall in Billings, Montana, which is across the street from the courthouse, paying a traffic ticket that he had received. The deputy county attorney objected to this line of questioning and the objection was sustained by the court. Relator then made an offer of proof to show by the relator Hart that at 9:00 a.m. he was in the police court at Billings, Montana, and while in such court received a fine for a traffic offense and paid such fine in the amount of $18.00. Verification of this would be made by a clerk of the police court. Relator then would further testify that from the police court he got into his pickup, a green Chevrolet, and went to the home of one Gus Aipperspach and borrowed $20 from said Aipperspach at the approximate hour of 10:00 a.m., which will be verified by Aipperspach as to the time and also that said witness is acquainted with relator's pickup and recognized it in front of the house; that Hart then got in his pickup and left. Hart will then testify that he went a distance of approximately 320 miles to Browning, Montana, and that in the same pickup he went to a ranch where he met a rancher and his wife and they executed *700 at the approximate hour of 3:00 p.m. a contract for the purchase and sale of some cattle. That thereafter and at the approximate hour of 4:00 p.m. he met with Rowland Harper, who is the government brand inspector for the Blackfoot Tribe, with reference to the inspection of the cattle to be sold. Further, that by the testimony of the rancher, his wife, and the brand inspector Hart will prove he was in Browning, Montana, between 3:00 and 4:00 p.m.
Following argument to the court, the court observed that it must follow the statute, section 94-501-20, R.C.M. 1947, which reads:
"Guilt or innocence of accused, when inquired into. The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime."
The court, on this authority, denied the offer of proof. Upon this application to this Court for an appropriate writ the county attorney's office of Yellowstone County appears by counsel and such counsel and counsel for the relator have stipulated that the matter be heard and decided by this Court without requiring the issuance of an order to show cause, and both counsel were heard in oral argument and the matter submitted.
Relator here contends that this quotation from 39 C.J.S. Habeas Corpus § 39, p. 554, states the general rule:
"Status as Fugitive. Habeas corpus is a proper proceeding to determine whether the prisoner is a fugitive from justice.
"Habeas corpus lies to secure a discharge on the ground that the prisoner is not a fugitive from justice from the demanding state. Accordingly, on habeas corpus, accused is entitled to show that he is not a fugitive from justice within the meaning of the Constitution and laws of the United States, the question being one of fact, on which the executive determination is not conclusive, and on which accused is entitled to introduce evidence.
"The governor's warrant is prima facie evidence that accused is a fugitive from justice and the burden of overcoming the prima facie case made by the warrant is on accused. In view of the settled meaning of the term `fugitive from justice,' as a general rule the only inquiry permissible on this issue is whether or not accused was physically present within the demanding state at the time the crime charged is alleged to have been committed, or within the demanding state at any time when it was possible for him to have committed the crime charged, or whether or not he is the person intended and actually charged with the offense, * * *".
This is the general rule in Montana. We stated in State v. Booth, 134 Mont. 235, 328 P.2d 1104, that:
"Likewise it is the general rule, from which there seems no dissent, that proof of an alibi, or absence from the scene of the crime at the time of its commission assuming that such proof does not negative the presence of the prisoner within the demanding state will not warrant the discharge of the person sought to be extradited. In fact, such proof will not even be received by the courts; the usual way of stating the rule being that habeas corpus is not the proper proceeding to try the question of alibi or any question as to the guilt or innocence of the accused."
Apparently the emphasis given to the last sentence of the quote, though applicable to the fact situation appearing in Booth, has caused confusion and results in overlooking the exception "* * * assuming that such proof does not negative the presence of the prisoner within the demanding state" which is clearly applicable to the fact situation in this case.
*701 There is a wealth of authority for this position throughout the federal and state courts of this country and while we do not wish to unduly extend this opinion we will clarify the matter further by reference to some of these appropriate decisions.
In Smith v. State of Idaho, 373 F.2d 149, the Ninth Circuit Court of Appeals stated:
"When the governor of the asylum state receives the authenticated indictment or complaining affidavit from the governor of the demanding state, there are only two inquiries relevant to the decision to issue a rendition warrant for the arrest of the accused. The first is whether the accused has been substantially charged with a crime under the laws of the demanding state. The second is whether the person demanded is a fugitive, that is, whether he was within the demanding state at the time of the alleged offense. The first is a question of law; the second, a question of fact.
"`Under 18 U.S.C.A. § 3182 * * * the governor of the asylum state has for decision the legal question whether the demanded person has been substantially charged with a crime and the factual question whether he is a fugitive from justice (citations omitted). * * * On habeas corpus review of his order in a court of the asylum state, the inquiry is limited to the same two questions.' Bruzaud v. Matthews, 93 U.S.App.D.C. 47, 207 F.2d 25, 26 (1953). See also Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 29 L. Ed. 544 (1885)."
Colorado has the same ruling, stating:
"The question as to whether a defendant is a fugitive from justice is one of fact. The presumption raised by a governor's warrant in an asylum state in a habeas corpus proceeding may be overcome either by a petitioner showing that he was not within the demanding state at the time the crime was committed or that he has not since left the state which Harding failed to do here." Harding v. People, 161 Colo. 571, 423 P.2d 847, (Colo. 1967.)
Delaware expresses the same view in Dickerson v. State, Del.Super., (1970), 267 A.2d 881:
"This is an appeal from denial of a writ of habeas corpus.
"The petitioner is being held in custody under a Governor's Warrant for extradition to the State of New Jersey for prosecution there on a charge of armed robbery. After a hearing on the petition for a writ of habeas corpus contesting the legality of the arrest, the Superior Court denied the writ on the ground that it was satisfied that the petitioner was the person named in the Warrant. The petitioner presented the issue of whether he was in the State of New Jersey on the date of the offense. Although the Superior Court admitted the testimony of several witnesses to the effect that the petitioner was in Delaware on the date of the offense, the Court stated that issue was not properly before it; that the only factual issue for its determination was whether the petitioner was the person named in the Warrant. In this the Trial Court erred.
"We hold that upon tender of the issue by the petitioner, the Trial Court was obliged to determine whether the petitioner, by clear and convincing proof, had overcome the prima facie case presented by the Governor's Warrant on the issue of his presence in the demanding State at the time of the offense charged. Upon the tender of such issue, before being delivered, the petitioner was entitled to a ruling by the Trial Court not only that he is the person named in the Warrant, but also that he is a fugitive from the justice of the demanding State. Grano v. State, Del.Super., 257 A.2d 768 (1969); 31 Am.Jur.2d `Extradition' §§ 65, 66; Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 28 S. Ct. 58, 52 L. Ed. 121 (1907); Ex parte Shoemaker, 25 Cal. App. 551, 144 P. 985 (1914)."
*702 Minnesota also follows the general rule in State v. Limberg, 274 Minn. 31, 142 N.W.2d 563, stating:
"While, as noted above, the asylum state has no power to inquire into the guilt or innocence of the person whose extradition is demanded, and while proof of absence from the demanding state at the time the alleged offense was committed necessarily involves facts that would constitute an alibi, it is generally held that a person confined pursuant to an extradition warrant may, in a habeas corpus proceeding, assert his absence from the demanding state as a fact defeating the power of the asylum state to render him. There is a distinction, though often subtle, between proof of absence from the state for purposes of negativing the condition of extradition and proof of an alibi as such for purposes of establishing innocence.
"The bare assertion of the person whose extradition is sought that he was not present in the demanding state will be of no avail in the absence of evidence since the rendition warrant of the governor of the asylum state is itself presumptive or prima facie proof of his presence.
"Where the person whose extradition is sought does present evidence of his absence from the demanding state, the presumptive effect of the rendition warrant places the burden upon him to prove his absence. That burden is a strenuous one, not being satisfied by a mere preponderance of the evidence, but requiring evidence that `clearly and satisfactorily' or `conclusively' proves absence. Conversely stated, `the question of alibi is not open for consideration if there is fair evidence that the appellant was at the place of the crime at the time of it.'"
Most of the states supporting this rule require proof beyond a reasonable doubt as expressed by the Maryland court in Solomon v. Warden, 256 Md. 297, 260 A.2d 68:
"The issuance of a warrant of rendition by the Governor of the asylum state raises a presumption that the accused is the fugitive wanted and it is sufficient to justify his arrest, detention and delivery to the demanding state. See, e.g., Johnson v. Warden, 244 Md. 384, 388, 223 A.2d 584 (1966); Koprivich v. Warden, 234 Md. 465, 468-469, 200 A.2d 49 (1964), and the cases therein cited. In order to rebut the presumption the accused must prove beyond a reasonable doubt either that he was not present in the demanding state at the time of the alleged offense or that he was not the person named in the warrant, and upon proof of the one or the other he is entitled to be released. Id. Moreover, in this kind of habeas corpus proceeding `[t]he guilt or innocence of the accused * * * may not be inquired into * * * except as it may be involved in identifying the person * * * charged with the crime.' Code, Art. 41, § 34 (1965 Repl.Vol.). It should be noted also that the presumption must be rebutted by `overwhelming' evidence, Mason v. Warden, 203 Md. 659, 661, 99 A.2d 739 (1953), thus `[m]ere contradictory evidence on the question of presence in or absence from the state demanding the accused is not sufficient * * *.' Koprivich v. Warden, supra, 234 Md. at 469, 200 A.2d at 52."
Since the district court erred, as hereinbefore pointed out, let an appropriate writ issue to the respondent district court and judge reversing the denial of the offer of proof and permitting relator to make his showing in the respondent court that he is not and was not a fugitive from Wyoming justice in accordance with the standards we have heretofore set forth.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2907240/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-09-00189-CV
____________________
IN RE APOLLO GLOBAL MANAGEMENT, L.L.C.,
APOLLO MANAGEMENT, L.P., APOLLO MANAGEMENT IV, L.P.,
APOLLO MANAGEMENT V, L.P., APOLLO MANAGEMENT VI, L.P.,
APOLLO INVESTMENT FUND IV, L.P., APOLLO OVERSEAS PARTNERS IV, L.P.,
APOLLO ADVISORS IV, L.P., APOLLO INVESTMENT FUND V, L.P.,
APOLLO OVERSEAS PARTNERS V, L.P., APOLLO NETHERLANDS
PARTNERS V(A), L.P., APOLLO NETHERLANDS PARTNERS V(B), L.P.,
APOLLO GERMAN PARTNERS V GMBH & CO. KG, APOLLO ADVISORS V, L.P.,
APOLLO INVESTMENT FUND VI, L.P., APOLLO OVERSEAS PARTNERS VI, L.P., APOLLO OVERSEAS PARTNERS (DELAWARE) VI, L.P.,
APOLLO OVERSEAS PARTNERS (DELAWARE 892) VI, L.P.,
APOLLO OVERSEAS PARTNERS (GERMANY) VI, L.P.,
APOLLO ADVISORS VI, L.P., LEON BLACK and JOSHUA J. HARRIS
Original Proceeding
MEMORANDUM OPINION
In this petition for writ of mandamus, the relators are third-party defendants in a
business tort case who contend the trial court abused its discretion by denying the relators'
motion for summary judgment and by failing to dismiss the contribution claims asserted
against them by Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc.
Trial is set to commence June 8, 2009.
Mandamus relief is available only to correct a clear abuse of discretion for which the
relators have no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135-36 (Tex. 2004). We determine the adequacy of an appellate remedy by balancing the
benefits of mandamus review against its detriments. Id. at 136. We consider whether
mandamus review of a significant ruling is "essential to preserve important substantive and
procedural rights from impairment or loss," to provide "helpful direction to the law that
would otherwise prove elusive" on appeal, or to "spare private parties and the public the time
and money utterly wasted enduring eventual reversal of improperly conducted proceedings."
Id. "[M]andamus is generally unavailable when a trial court denies summary judgment, no
matter how meritorious the motion." In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465
(Tex. 2008).
The relators have not shown that the benefits of a mandamus review in this case
outweigh the detriments of pre-trial review of the issues raised in the motion for summary
judgment. Accordingly, we deny the petition for writ of mandamus.
PETITION DENIED.
PER CURIAM
Submitted on May 11, 2009
Opinion Delivered May 15, 2009
Before Gaultney, Kreger, and Horton, JJ. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2899754/ | NO. 07-08-0516-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 12, 2009
______________________________
CURTIS LEE SMITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 242nd DISTRICT COURT OF HALE COUNTY;
NO. B17591-0803; HON. EDWARD LEE SELF, PRESIDING
_______________________________
ON ABATEMENT AND REMAND
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant appeals from his conviction for possession of a controlled substance. Neither the clerk’s record nor the reporter’s record have been filed. Extension motions were filed by the clerk and court reporter on February 9, 2009. Movants represented that appellant has not submitted a request for the clerk’s or reporter’s record and has not paid or made arrangements to pay for the clerk’s record.
Accordingly, we abate this appeal and remand the cause to the 242nd District Court of Hale County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant desires to prosecute the appeal;
2. whether appellant is indigent; and,
3. whether the appellant is entitled to a free appellate record due to his indigency.
The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk’s record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing, if any. Additionally, the district court shall then file the supplemental records and reporter’s records transcribing the hearing with the clerk of this court on or before March 16, 2009. Should further time be needed by the trial court to perform these tasks, then same must be requested before March 16, 2009.
It is so ordered.
Per Curiam
Do not publish. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1158979/ | 879 P.2d 1180 (1994)
110 Nev. 581
UNIVERSITY OF NEVADA; University of Nevada, Las Vegas; Dr. Leonard Goodhall, as President of the University of Nevada, Las Vegas, and Officer of the University of Nevada; and Frankie Sue Del Papa, Lilly Fong, Dorothy Gallager, Chris Karamanos, Joan Denny, Daniel J. Klaich, John McBride, JoAnn Sherrin and June Whitely as Members of the Board of Regents of the University of Nevada, Appellants,
v.
Jerry TARKANIAN, Respondent.
No. 23494.
Supreme Court of Nevada.
July 7, 1994.
*1183 Jones, Jones, Close & Brown and Gary R. Goodheart, Las Vegas, Donald Klasic, Gen. Counsel University System, Reno, for appellants.
Lionel Sawyer & Collins, Las Vegas, for respondent.
OPINION
PER CURIAM:
This litigation between basketball coach Jerry Tarkanian (Tarkanian) and his former employers the University of Nevada at Las Vegas and its Board of Regents (collectively referred to as UNLV) has had a long and tortuous history. It began in 1977, when the National Collegiate Athletic Association (NCAA) concluded that Coach Tarkanian had violated numerous NCAA rules and urged UNLV to suspend him from his coaching duties.
Coach Tarkanian responded by filing this lawsuit, in which he ultimately sued both UNLV and the NCAA for allegedly violating his federal due process rights. See 42 U.S.C. § 1983 (1979). Coach Tarkanian prevailed in the district court. The case then commenced a lengthy appellate journey making two trips to this court and one to the United States Supreme Court which eventually resulted in affirmance of the judgment against UNLV and reversal of the judgment against the NCAA. At the conclusion of these initial appeals, the case returned to the district court, which ordered UNLV to pay Tarkanian's costs and attorney's fees in an amount of $150,725.58 plus interest.
UNLV now appeals from the district court's order granting Coach Tarkanian his costs and attorney's fees. In what we hope will be the final ruling in this lengthy litigation, we affirm the district court's order.
FACTS
In 1977, following a lengthy investigation, the NCAA concluded that UNLV and Tarkanian had violated numerous NCAA rules.[1] The NCAA accordingly imposed sanctions against UNLV and recommended that UNLV suspend Tarkanian or else face even stiffer sanctions. UNLV decided to follow this recommendation and thereafter informed Tarkanian of its decision.
The day before the suspension was to take effect, however, Tarkanian sued UNLV in district court for declaratory and injunctive relief. Tarkanian alleged, inter alia, that UNLV's suspension of him would violate the Fourteenth Amendment of the Constitution by depriving him of property and liberty interests without due process of law.
*1184 Tarkanian prevailed at trial, and UNLV appealed to this court. This court reversed the judgment of the district court on the grounds that Tarkanian had failed to join a necessary party, the NCAA. See University of Nevada v. Tarkanian, 95 Nev. 389, 594 P.2d 1159 (1979).
Tarkanian again sued in district court, this time adding the NCAA as a party. On June 25, 1984, after a bench trial, the district court held that both UNLV and the NCAA had deprived Tarkanian of procedural and substantive due process in attempting to suspend Tarkanian from his position as head basketball coach for two years. Tarkanian was denied his claim for attorney's fees as damages under state law but obtained his requested injunctive relief as well as attorney's fees and costs pursuant to 42 U.S.C. § 1988 (1980). The district court permanently enjoined both defendants from severing Tarkanian's relations with the UNLV intercollegiate athletic program.
The NCAA brought a motion to retax and settle costs, which was heard on December 4, 1984. On January 21, 1985, the district court entered an order denying the NCAA's motion to retax and settle costs and awarding Tarkanian $195,951.92 in costs, including attorney's fees. The district court further ordered that the costs were to be apportioned as follows: (1) the NCAA was to pay ninety percent ($176,356.73) of the award, and (2) UNLV was to pay ten percent of the award ($19,595.19).
The NCAA alone appealed from the district court judgment and order apportioning costs. UNLV did not appeal, and Tarkanian cross-appealed only from the district court's denial of his state law attorney's fees as damages claim.[2] This court upheld the injunction but partially reversed the award of attorney's fees because it included fees for the first trial and $5,000.00 in undocumented costs. See Tarkanian v. Nat'l Collegiate Athletic Association, 103 Nev. 331, 741 P.2d 1345 (1987). Accordingly, this court remanded the matter for a recalculation of attorney's fees. Id.
On September 9, 1987, Tarkanian filed a motion for an award of attorney's fees incurred on appeal to this court. By order entered February 25, 1988, this court denied Tarkanian's motion without prejudice to his right to file the same in district court and stated that Tarkanian was entitled to reasonable attorney's fees for services rendered on appeal. Pursuant to this court's mandate, Tarkanian moved to recalculate costs. The district court granted the motion, awarding costs and attorney's fees of $336,859.78 against the NCAA, which included costs of the appeal to this court.
In the meantime, the NCAA appealed to the United States Supreme Court. See NCAA v. Tarkanian, 488 U.S. 179, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988). In a 5-4 decision, the Court reversed, concluding that the NCAA could not be held liable because its actions did not constitute state action and were not performed under color of state law pursuant to 42 U.S.C. § 1983 (1979). The Court held that UNLV was the entity that actually suspended Tarkanian, which suspension was the state action that created liability under the statute. The case was then remanded to this court for further proceedings.
Upon remand from the United States Supreme Court, this court remanded the case *1185 to the district court and ordered the district court to enter an order vacating the injunctive decree against the NCAA and also vacating any orders assessing attorney's fees against the NCAA. This court refused to address the NCAA's request for vacatur of the injunction against UNLV, stating: "[W]e remand this matter to the district court for further proceedings in which all the original parties to this litigation shall have an opportunity to address the propriety of the NCAA's request." Tarkanian v. NCAA, Docket No. 16256 (Order of Remand at 6, September 28, 1989). This court further suggested that the district court "receive appropriate evidence, entertain appropriate legal argument from all concerned parties, and enter appropriate findings of fact and conclusions of law on any or all matters it deems pertinent to a proper constitutional and equitable result." Id. at 3.
Accordingly, the district court vacated all prior orders holding the NCAA liable for Tarkanian's attorney's fees and vacated the injunctive decree insofar as it pertained to the NCAA. The district court left undisturbed the injunction against UNLV, stating that it remained in full force and effect. Additionally, the district court expressly declared: "This order is without prejudice to plaintiff's right to file an application for costs and fees against all defendants other than the NCAA, and the Court hereby retains jurisdiction for that purpose."
Tarkanian subsequently moved for an order seeking to impose his costs, including attorney's fees, against UNLV. On June 8, 1992, the district court granted Tarkanian's motion. The district court found that as a prevailing plaintiff in a civil rights action, Tarkanian was entitled to reimbursement for his costs, including attorney's fees, pursuant to 42 U.S.C. § 1988 (1980) and Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).[3] Accordingly, the district court awarded Tarkanian $150,725.58 in costs, plus interest thereon. UNLV appeals.
DISCUSSION
Tarkanian was awarded attorney's fees as costs under 42 U.S.C. § 1988 (1982) as a prevailing plaintiff in a section 1983 civil rights action. In pertinent part, the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1982), provides: "In any action or proceeding to enforce a provision of section[ ] ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Notwithstanding the discretionary language of section 1988, "[t]he legislative history indicates that a prevailing plaintiff should receive fees almost as a matter of course." Davis v. Murphy, 587 F.2d 362, 364 (7th Cir.1978); accord Ackerly Communications, Inc. v. City of Salem, 752 F.2d 1394, 1396 (9th Cir.), cert. denied, 472 U.S. 1028, 105 S.Ct. 3503, 87 L.Ed.2d 634 (1985). The Supreme Court has recently explained that a civil rights plaintiff "prevails" when "actual relief on the merits of his [or her] claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, ___ U.S. ___, ___, 113 S.Ct. 566, 569, 121 L.Ed.2d 494 (1992).
The civil rights statutes were enacted "to vindicate the rights of parties who had suffered violations of civil rights laws and to encourage private enforcement of these laws through compensation to attorneys." Hall v. Hall, 738 F.2d 718, 721 (6th Cir.1984). "[T]he purpose of § 1988 [is] to enable litigants with valid claims to present their claims without having to bear the burden of the costs." J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir.1985). In Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Supreme *1186 Court stated, "the logical place to look for recovery of fees is to the losing party the party legally responsible for relief on the merits." Id. at 164, 105 S.Ct. at 3104. The Court further stated that "liability on the merits and responsibility for fees go hand in hand." Id. at 165, 105 S.Ct. at 3104.
As a general rule, a prevailing plaintiff may recover reasonable attorney's fees as costs under section 1988 unless the losing defendant can establish the existence of special circumstances which would make the award unjust. See Graham, 473 U.S. at 163-64, 105 S.Ct. at 3103-04. The defendant bears the burden of showing the existence of special circumstances, and "must make a `strong showing' to justify denial of section 1988 fees to [a] prevailing plaintiff[ ]." Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir.1985). Because the civil rights statutes do not expressly provide such a "special circumstances" exception, moreover, "the judicially imposed provision should be narrowly construed so as not to interfere with the congressional purpose in passing such statutes." Id.
Standard of Review.
On appeal from an order awarding costs and attorney's fees to a prevailing civil rights plaintiff, the reviewing court must determine whether the order represents an abuse of the trial court's discretion. See Jones v. Continental Corp., 789 F.2d 1225, 1229 (6th Cir.1986). As this court has explained: "The award of attorney's fees resides within the discretion of the court. Moreover, in the absence of a manifest abuse of discretion, the court's decision on the issue will not be overturned." County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d 1217, 1220 (1982); accord Chowdry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993); Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 562-63, 598 P.2d 1147, 1149 (1979).
Simply to label the matter discretionary, however, is to tell only part of the story. The degree of the trial court's discretion depends on the nature of the particular ruling being challenged. For example, the district court has "virtually no discretion to deny a fee award to a prevailing plaintiff." Dan B. Dobbs, Awarding Attorney Fees Against Adversaries: Introducing the Problem, 1986 Duke L.J. 435, 448 (1986); see Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975). By contrast, in fixing the amount of an award, the trial judge has broader discretion as the amount must merely be "reasonable." See 42 U.S.C. § 1988 (1982). In the "relatively unsettled" area of the law concerning apportionment of fees assessments, moreover, it appears that the trial judge's discretion is tempered only by reason and fairness. See Grendel's Den, Inc. v. Larkins, 749 F.2d 945 at 959-60 (1st Cir.1984); accord Kosters v. Perales, 903 F.2d 131 (2d Cir. 1990).
UNLV challenges the district court order awarding attorney's fees to Tarkanian on three main grounds. First, UNLV contends that the district court abused its discretion by ordering UNLV to pay one hundred percent of Tarkanian's attorney's fees incurred in this litigation, even though the district court's original order held UNLV responsible for only ten percent of Tarkanian's fees. Second, UNLV raises the related contention that the district court's January 21, 1985, order awarding attorney's fees became a final judgment and res judicata as to UNLV since UNLV did not appeal from the original order, and that the district court therefore erred by imposing a new cost and fee order. Finally, UNLV argues that this court lacked jurisdiction to consider or modify the order apportioning attorneys fees. We address each contention in turn.
The District Court Order Awarding Attorney's Fees.
We first consider whether the district court abused its discretion on remand by ordering UNLV to pay all of Tarkanian's costs, including attorney's fees, incurred in this litigation. To resolve this issue, we must initially look to the district court's fee award itself. The original order awarding fees provides, in pertinent part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to N.R.S. 18.005 et seq. and 42 U.S.C. *1187 § 1988 plaintiff is awarded the amount of $195,951.92 as costs including attorney's fees.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the award of costs including attorney's fees shall be apportioned among defendants as follows: (1) defendant NCAA shall be assessed and shall pay to plaintiff the amount of $176,356.73, which is equal to 90% of the award; and (2) defendant UNLV shall be assessed and shall pay to plaintiff the amount of $19,595.19, which is equal to 10% of the award.
UNLV contends that this order should be read to have made UNLV and the NCAA severally liable for only the amount awarded against each, and the trial court accordingly abused its discretion when it construed the order to say otherwise. UNLV seeks support for its position from the decision in Koster v. Perales, 903 F.2d 131 (2nd Cir. 1990), which stated that a trial court "may allocate the fee award between the responsible parties, setting the percentage for which each is liable where the claims against the defendants are separate and distinct or where culpability is significantly unequal, or it may hold the responsible parties jointly and severally liable for the fee award." Id. at 139 (citation omitted; emphasis added). UNLV argues that this "or" in the above-quoted language from Koster is disjunctive and stands for the proposition that a court may either allocate liability for a specific percentage of the award (thus indicating the imposition of several liability), or it may hold the parties jointly and severally liable for the entire amount awarded. A review of the case law addressing the issue of apportionment of attorney's fees reveals that UNLV's argument is not persuasive.
As with most attorney's fee rulings, apportionment of attorney's fees by a trial court amongst section 1983 defendants is discretionary. See Koster v. Perales, 903 F.2d 131 (2nd Cir.1990); Grendel's Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir.1984). The Second Circuit put it thusly in Koster:
The allocation of fee liability is a matter committed to the district court's discretion and will not be disturbed unless the determination evidences an abuse of discretion. Although the law governing apportionment of attorney's fees assessments remains relatively unsettled, district courts have appropriately considered a variety of factors in allocating fee liability including the relative culpability of the parties, and the proportion of time spent litigating against each defendant.
Koster, 903 F.2d at 139 (citations omitted).
Similarly, in Grendel's Den, the court acknowledged that "the law concerning apportionment of fees assessments remains relatively unsettled and ... a number of theories for apportioning fees have been advanced." Grendel's Den, 749 F.2d at 959. The court discussed "the simplest approach of dividing the award equally among the defendants," and "the more sophisticated approaches of apportionment by degree of each defendant's liability ... and apportionment by relative time spent litigating against each defendant." Id. at 959-60 (citations omitted). The court noted "[e]ach of these theories may be more or less valid in a given case. For example, where discrete injuries have been demonstrably caused by different parties, apportionment on the basis of degree of liability may be most practical and equitable." Id. at 960.
In this case, there were no such "discrete injuries," and thus the most common basis for fee apportionment does not exist here. Instead, Tarkanian's injury was singular and was caused by the combined actions of both the NCAA and UNLV. Justice White put it best when he observed that UNLV suspended Tarkanian "because it embraced the NCAA rules governing conduct of its athletic program and adopted the results of the hearing conducted by the NCAA, as it had agreed it would. Under these facts, ... the NCAA acted jointly with UNLV." NCAA v. Tarkanian, 488 U.S. 179, 203, 109 S.Ct. 454, 468, 102 L.Ed.2d 469 (1988) (White, J., dissenting).
Courts have traditionally imposed joint and several liability under such circumstances that is, where two or more defendants combine to cause a single, indivisible injury, courts have generally held each defendant responsible for the entire amount of *1188 the judgment. See, e.g., Price v. Aztec Ltd., Inc., 108 Idaho 674, 701 P.2d 294, 297 (Ct. App.1985); Azure v. City of Billings, 182 Mont. 234, 596 P.2d 460, 470 (Mont.1979); Powell v. Powell, 370 P.2d 909, 911 (Okla. 1962); see generally W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 52, at 347 (5th ed. 1984).
While we recognize that fee liability is not altogether analogous to liability on the merits, we see no reason to prohibit the imposition of joint and several fee liability where the losing defendant has caused the plaintiff to suffer a single, indivisible harm. We accordingly agree with those courts that have afforded trial courts discretion to impose such fee liability. See, e.g., Smith v. Updegraff, 744 F.2d 1354, 1368 (8th Cir.1984); Riddell v. National Democratic Party, 712 F.2d 165, 169 (5th Cir.1983); and see Dan B. Dobbs, Awarding Attorneys Fees Against Adversaries: Introducing the Problem, 1986 Duke L.J. 435, 458 (1986).
Specifically, we adopt in Nevada the following statement of the law:
The only limitation on the district court's discretion to award fees jointly and severally is that it must do so consistently with the pre-existing background of substantive liability rules. See Kentucky v. Graham, 473 U.S. at 171, 105 S.Ct. at 3108; Dean v. Gladney, 621 F.2d 1331, 1339-40 (5th Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981) (defendants must be joint tortfeasors). Of course, the district court should "make every effort to achieve the most fair and sensible solution that is possible." Grendel's Den, 749 F.2d at 960.
Thus, although apportionment may in some cases be a more equitable resolution, there is no rule in this circuit that requires it whenever possible....
Koster v. Perales, 903 F.2d 131, 139 (2nd Cir.1990) (emphasis added).
Applying this rule here, we conclude that the district court acted within its discretion when it held UNLV responsible for the entire fee award, because UNLV helped cause Tarkanian to suffer a single, indivisible injury. We caution, however, that our opinion should not be construed to mean that the imposition of joint and several fee liability is required whenever joint and several liability is imposed. Rather, we emphasize that the matter is purely a discretionary one.
UNLV also contends that a plaintiff who obtains relief against only one out of several defendants cannot recover a full fee award, which necessarily includes fees incurred litigating against the successful defendant. While there is some support for this position, see Pawlak v. Greenawalt, 713 F.2d 972, 979 (3rd Cir.1983), it does not represent a hard and fast rule. Ultimately, a trial court must award a reasonable fee, however the method upon which a reasonable fee is determined is subject to the discretion of the court. For instance, the Court of Appeals for the Ninth Circuit acknowledged that a district court has the discretion to reduce a lodestar[4] figure to account for a plaintiff's "limited success." The court explained:
In cases in which a plaintiff's success is limited, we have instructed the district court to apply a two-part analysis: First, the court asks whether the claims upon which the plaintiff failed to prevail were related to the plaintiff's successful claims.... If the unsuccessful and successful claims are related, then ... the court evaluates the "significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended." If the plaintiff obtained "excellent results," full compensation may be appropriate, but if only "partial or limited success" was obtained, full compensation may be excessive.
Corder v. Gates, 947 F.2d 374, 379 (9th Cir. 1991) (quoting Cabrales v. County of Los *1189 Angeles, 864 F.2d 1454, 1465 (9th Cir.1988)), vacated on other grounds, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), reinstated, 886 F.2d 235 (9th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1838, 108 L.Ed.2d 966 (1990)). After emphasizing that the "`purpose of a fee award is to encourage litigation and voluntary compliance with civil rights laws,'" Corder, 947 F.2d at 379 (quoting Woods v. Graphic Communications, 925 F.2d 1195, 1207 (9th Cir.1991)), the Ninth Circuit explained:
In cases such as the present one, where a plaintiff brings an action against a large number of defendants, but manages to prevail only with regard to a few, perhaps an award granting 100% of the accrued attorney's fees encourages too much litigation. While it is true that the plaintiffs succeeded in proving a civil rights violation, they did so at the cost of forcing many individuals to bear the expense of defending against apparently meritless allegations.... Plaintiffs initially accused more than fifty defendants of violating their civil rights, yet obtained a verdict against three.... Obviously, then, the district court would have sound reasons for reducing a fee award in this type of a situation.
On the other hand, our cases also make clear that the district court could have awarded plaintiffs the full lodestar amount. In Rivera v. City of Riverside, 763 F.2d 1580 (9th Cir.1985), aff'd on other grounds, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986), plaintiffs sued thirty-two defendants, including thirty individual police officers. Plaintiffs prevailed against only six officers.... Nevertheless, we held that the district court did not abuse its discretion when it declined to reduce the attorney's fee award for limited success, despite the plaintiffs' failure to prevail against the majority of the original defendants. Thus, Cabrales and Rivera together indicate that district courts have considerable discretion in determining attorney's fees, a rule that is in conformity with the teachings of Blanchard [Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)] and Hensley [Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)].
Corder, 947 F.2d at 379-80 (footnotes omitted). In Cabrales, the plaintiff was the mother of former inmate Sergio Cabrales, who brought suit against more than twenty sheriff's deputies and the county after her mentally ill son hanged himself while in solitary confinement. She succeeded only on her claim that the county maintained a policy of indifference to the safety and medical needs of the inmates. The Ninth Circuit upheld the district court's twenty-five percent reduction for limited success. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1465 (9th. Cir.1988), vacated on other grounds, 490 U.S. 1087, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), reinstated, 886 F.2d 235 (9th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1838, 108 L.Ed.2d 966 (1990).
Tarkanian could be considered a "limited success" plaintiff since he did not ultimately prevail on his claim against the NCAA. However, it is most significant that Tarkanian was given all the relief he sought under his section 1983 action. The Corder court stated: "If a plaintiff ultimately wins on a particular claim, she [or he] is entitled to all attorney's fees reasonably expended in pursuing that claim even though she may have suffered some adverse rulings." Corder, 947 F.2d at 379 n. 5 (quoting Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir.1991)). Applying either a "limited success" analysis, or viewing Tarkanian as having prevailed on his claim despite some adverse rulings, we conclude that the district court did not abuse its discretion in awarding one hundred percent of the fee award to Tarkanian against UNLV. We note that the original fee award was reduced for Tarkanian's ultimately unsuccessful first trial, and the award of fees for defending against the NCAA's appeal was vacated. Tarkanian was in fact ordered to pay some of the NCAA's fees on appeal. Thus, Tarkanian's unsuccessful claims have been considered at various points throughout this litigation, and the fees were accordingly reduced to arrive at a reasonable fee award.
A logical construction of the order itself mandates the same result. As a general rule, judgments are to be construed *1190 like other written instruments and given the most reasonable and consistent construction as possible. See Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950). This court has previously stated:
Where a judgment is susceptible of two interpretations, that one will be adopted which renders it the more reasonable, effective and conclusive, and which makes the judgment harmonize with the facts and law of the case, and be such as ought to have been rendered.
Id. at 292, 217 P.2d at 365 (quoting Aseltine v. District Court, 57 Nev. 269, 273, 62 P.2d 701, 702 (1936)); see also Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95 (1929).
As discussed previously, the district court first found that Tarkanian was a prevailing plaintiff. It then awarded Tarkanian his statutory fees under section 1988 against both defendants. At the behest of the parties, the district court then apportioned the award. The apportionment of the attorney's fees was secondary and incidental to the finding of liability on the part of UNLV and the NCAA. There is also evidence in the record to indicate that the district court intended to impose joint and several liability on the NCAA and UNLV. The district court's original conclusions of law provide:
4. Both the Defendant NCAA and the Defendant UNLV have deprived the Plaintiff Tarkanian of procedural due process....
5. Both the Defendant NCAA and the Defendant UNLV have deprived the Plaintiff Tarkanian of substantive due process.... [T]he decision by NCAA was arbitrary and capricious, and the decision of UNLV was vicariously so.
The district court continued: "(UNLV) carried out the real aim of the NCAA (severing Tarkanian), not out of respect for the NCAA's `Findings,' but due to fear of the seemingly omnipotent Enforcement Division of NCAA." Thus, a reasonable, effective, and conclusive interpretation of the judgment and award of attorney's fees supports joint and several liability for the fee award.
UNLV argues that it is unfair to burden it with the entire fee award since Tarkanian litigated primarily against the NCAA, the "true villain" in this case. We recognize that this appeal involves a battle between two relatively "innocent" parties. Nonetheless, we are bound by the doctrine of law of the case; this court must adhere to the determination of the United States Supreme Court that the NCAA is not a state actor. Additionally, it must be remembered that UNLV did suspend Tarkanian, and the district court found UNLV violated Tarkanian's due process rights in so doing. It is not inequitable that UNLV pay the attorney's fees incurred in vindication of Tarkanian's civil rights, as the district court has unfailingly found that UNLV violated Tarkanian's civil rights. UNLV has consistently been a "losing party" in this civil rights litigation, and Tarkanian has consistently prevailed against UNLV. On remand, the district court was presented with the option of imposing responsibility for the payment of the attorney's fees on either a prevailing civil rights litigant or a losing defendant. We perceive no abuse of discretion in its choosing to impose the costs of this lawsuit on the latter.
Moreover, this court is mindful of the purpose of the fee award in civil rights litigation. Attorney's fees under section 1988 "are not awarded to punish defendants. Attorney's fees are awarded to encourage meritorious civil rights actions by ensuring reasonable compensation for victorious plaintiffs' attorneys." Corder v. Gates, 947 F.2d 374, 383 (9th Cir.1991). "The basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights." Farrar v. Hobby, ___ U.S. ___, ___, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992); Carey v. Piphus, 435 U.S. 247, 254 (1978).
In light of the express purpose of section 1988, the fact that Tarkanian obtained all the relief he sought under section 1983, and given a reasonable construction of the original judgment and order awarding and apportioning attorney's fees, we conclude that the district court did not abuse its discretion on remand when it ordered that UNLV must pay all of Tarkanian's costs, including attorney's fees.
*1191 Res Judicata.
UNLV did not appeal from the June 25, 1984, judgment or the January 21, 1985, order apportioning costs. UNLV contends that the order awarding and apportioning costs was thus a final judgment and res judicata as to UNLV. UNLV maintains that the original judgment and order apportioning fees imposed several liability on UNLV for ten percent of the fees and on the NCAA for ninety percent of the fees. UNLV urges that the doctrine of res judicata precluded Tarkanian from seeking a reapportionment of costs on remand.
Generally, the doctrine of res judicata precludes parties or those in privity with them from relitigating a cause of action or an issue which has been finally determined by a court of competent jurisdiction. Horvath v. Gladstone, 97 Nev. 594, 597, 637 P.2d 531, 533 (1981); Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979). The doctrine is intended to prevent multiple litigation causing vexation and expense to the parties and wasted judicial resources by precluding parties from relitigating issues they could have raised in a prior action concerning the same controversy. Hulsey v. Koehler, 218 Cal. App.3d 1150, 267 Cal.Rptr. 523, 526 (Ct.App. 1990). For res judicata to apply, three pertinent elements must be present: (1) the issue decided in the prior litigation must be identical to the issue presented in the current action; (2) the initial ruling must have been on the merits and have become final; and (3) the party against whom the judgment is asserted must have been a party or in privity with a party to the prior litigation. Horvath, 97 Nev. at 597, 637 P.2d at 531.
Additionally, there are two different species of res judicata that might arguably apply here: issue preclusion and claim preclusion.
Issue preclusion, or collateral estoppel, may be implicated when one or more of the parties to an earlier suit are involved in subsequent litigation on a different claim. Issues that were determined in the prior litigation arise in the later suit. If the common issue was actually decided and necessary to the judgment in the earlier suit, its relitigation will be precluded. Charles Wright states:
The general rule of issue preclusion is that if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties.... For purposes of issue preclusion, a final judgment includes any prior adjudication of an issue in another action that is "determined to be sufficiently firm to be accorded conclusive effect."
Charles A. Wright, Law of Federal Courts § 100A, at 682 (4th ed. 1983); see Restatement (Second) of Judgments § 13 (1982). Collateral estoppel is generally invoked when separate causes of action are presented in the first and second suits. The doctrine provides that any issue that was actually and necessarily litigated in one action will be estopped from being relitigated in a subsequent suit.
Collateral estoppel thus applies to issues that were "actually and necessarily litigated." UNLV argues that the district court judgment and order apportioning costs imposed several liability on UNLV for ten percent of the judgment. To apply collateral estoppel to the instant case, the issue of the NCAA's and UNLV's relative liability to Tarkanian must have been actually and necessarily litigated. The record on appeal does not contain any indication that the parties raised or litigated the issue of each defendant's relative liability to Tarkanian or culpability for the deprivation of Tarkanian's due process rights. Nor does the district court order state that its apportionment was based on such a determination of relative culpability. To give preclusive effect to an issue, it must be clear that the issue was actually adjudicated. Thus, there is no issue preclusion here.
Claim preclusion, or merger and bar, is triggered when a judgment is entered. A valid and final judgment on a claim precludes a second action on that claim or any part of it. See Gilbert v. Warren, 95 Nev. 296, 594 P.2d 696 (1979). The preclusive effect is generally as to a subsequent action on the same claim or part thereof, not as to subsequent proceedings in the same litigation. *1192 See Office Services Corp. of America v. CAS Systems, Inc., 63 Or.App. 842, 666 P.2d 297 (Ct.App.), rev. denied, 295 Or. 773, 670 P.2d 1036 (1983); Charles A. Wright, Law of Federal Courts § 100A (4th ed. 1983). The claim of a prevailing plaintiff is merged into the judgment. If the defendant prevails, the plaintiff is thereafter barred from subsequent suits on the same claim. See Restatement (Second) of Judgments § 24 (1982). The modern view is that claim preclusion embraces all grounds of recovery that were asserted in a suit, as well as those that could have been asserted, and thus has a broader reach than collateral estoppel. See Batterman v. Wells Fargo Ag. Credit Corp., 802 P.2d 1112 (Colo.Ct.App.1990); Matter of Herbert M. Dowsett Trust, 7 Haw.App. 640, 791 P.2d 398 (Ct.1990); Madsen v. Borthick, 769 P.2d 245, 247 (Utah 1988).
Because the issue of UNLV's relative culpability and inter se liability was not actually litigated, the inquiry in the instant case becomes whether the issue might have been properly litigated in the district court. A careful consideration of the original posture and nature of this litigation compels a negative response. Tarkanian sought injunctive relief; the NCAA and UNLV were jointly named as defendants in Tarkanian's section 1983 action. The central issues were whether the NCAA and UNLV deprived Tarkanian of a federal right under color of state law. UNLV was not adverse to the NCAA, and there were no monetary damages at stake, thus the issue of each defendant's degree of culpability or liability inter se was not in issue. For res judicata purposes, a judgment against several defendants settles nothing as to their relative rights and liabilities inter se, unless their hostile and conflicting claims were actually brought in issue, litigated and determined. See Burrell v. Southern Pacific Co., 13 Ariz.App. 107, 474 P.2d 466 (Ct.1970); B & E Installers v. Mabie & Mintz, 25 Cal.App.3d 491, 101 Cal. Rptr. 919 (Ct.App.1972); Gies v. Nissan Corp., 57 Wis.2d 371, 204 N.W.2d 519, 523 (1973). We conclude, therefore, that the doctrine of res judicata did not prevent the district court from awarding all the costs against UNLV on remand.
The record in this lengthy litigation does not support UNLV's argument that the apportionment award determined each defendant's relative culpability and liability inter se. Rather, the judgment in this case was the determination that both the NCAA and UNLV violated Tarkanian's civil rights under section 1983. Accordingly, Tarkanian had a statutory right to recover attorney's fees under section 1988. The district judge then had the discretion to apportion the fees as he deemed fit. Counsel for UNLV and for Tarkanian both requested that the court apportion the award of attorneys fees. This apportionment did not reflect a determination of several liability. As discussed previously, there is no relevant statutory or case law, state or federal, that mandates that fees be apportioned in accord with liability or culpability in section 1983 actions. Because the issue of whether the defendants were severally liable or jointly and severally liable was not in issue nor decided, the apportionment order cannot be given conclusive or preclusive effect on that issue. We thus conclude that the doctrine of res judicata did not preclude the district court from awarding Tarkanian his costs and ordering that UNLV pay said costs on remand.
Jurisdiction.
Tarkanian cross-appealed only from that portion of the order and judgment entered June 25, 1984, denying him attorney's fees as damages. UNLV contends that "under well-settled principals of appellate procedure," reversal or modification of a judgment against a defendant who appeals does not affect the judgment against a non-appealing co-defendant, which is final, res judicata and cannot be modified. Thus, UNLV argues that this court, and the United States Supreme Court, never acquired jurisdiction to consider, modify, or vacate the district court order awarding costs against UNLV. UNLV seeks support from Mahaffey v. Investor's Nat'l Sec., 102 Nev. 462, 725 P.2d 1218 (1986), wherein this court dismissed an untimely cross-appeal, stating that "a timely notice of cross-appeal is jurisdictional with respect to the cross-appeal." Id. at 464, 725 P.2d at 1219. UNLV also cites to two federal appellate court decisions which stand for the proposition *1193 that a reviewing court may not enlarge the rights of an appellee when no cross-appeal is filed. See Davis v. Murphy, 587 F.2d 362, 365 (7th Cir.1978) ("If [plaintiff] were dissatisfied with the district court award [of attorney's fees], he should have filed a cross appeal in this court. Lacking such an appeal this court cannot review the district court's decision."); North Texas Producers Ass'n v. Metzger Dairies, Inc., 348 F.2d 189, 197 (5th Cir.1965) ("[I]n the absence of a cross-appeal, this Court cannot enlarge the rights of the appellee.").
For purposes of this appeal, we find it unnecessary and inappropriate for this court to address the issue of whether the United States Supreme Court had jurisdiction to consider, modify, or vacate the district court judgment as it pertained to UNLV. There are, however, several aspects of UNLV's jurisdiction argument that we feel compelled to address. First, Tarkanian received full relief in the initial judgment and order awarding costs, thus he had no occasion to appeal from it. We are not persuaded that Tarkanian could or should have anticipated the outcome of the NCAA's appeal to the United States Supreme Court. Indeed, because Tarkanian received full relief initially, he was not an aggrieved party and could not have appealed from the original judgment.[5]See NRAP 3A(a); In re Estate of Hughes, 96 Nev. 178, 605 P.2d 1149 (1980); Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133 (1937); see also Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26 (1964) (successful party is not an aggrieved party and thus is not entitled to file cross-appeal).
UNLV's argument that this court lacked jurisdiction to consider or modify the district court's costs award is also flawed.[6] Significantly, the NCAA appealed from the entire June 25, 1984, judgment. Since the NCAA's notice of appeal designated the entire judgment and the fee award, this court had jurisdiction to consider the same on appeal. See NRAP 3(c). Further, this court's adjudication of the NCAA's rights and Tarkanian's rights would necessarily have an impact on UNLV's rights. Where a non-appealing party's rights under a judgment are dependent upon and interwoven with the parts of a judgment determining the appealing parties' rights, an appellate court can reverse the entire judgment if justice so requires. See Grouse Creek Ranches v. Budget Financial Corp., 87 Nev. 419, 488 P.2d 917 (1971); Blache v. Blache, 37 Cal.2d 531, 233 P.2d 547 (1951); Kvenild v. Taylor, 594 P.2d 972 (Wyo.1979). The rule under which a judgment becomes final as to a non-appealing party, even though a judgment is reversed on appeal, is not applied where portions of a judgment adverse to the non-appealing party are so interwoven with the whole that an *1194 appeal from a part affects other parts. In such a situation, a reviewing court can reverse an entire judgment if necessary to do justice. In re Sanderson's Estate, 183 Cal. App.2d 740, 6 Cal.Rptr. 893 (Ct.App.1960).
We acknowledge the principle argued by appellant that "a judgment will not be set aside or altered on appeal in favor of a person who has not filed a timely notice of appeal, whether an appellee or a co-party of the appellant" is well recognized and quite generally applied. 9 James Moore, Moore's Federal Practice § 204.11[5] (1993). Nonetheless, the facts of this case do not warrant an application of that principle. In the prior appeal, this court did not alter a judgment in favor of an appellee who did not cross-appeal. Rather, this court upheld the injunction ordered by the district court, partially reversed the award of attorney's fees, and remanded the matter for further proceedings, which included a recalculation of attorney's fees. See Tarkanian v. Nat'l Collegiate Athletic Association, 103 Nev. 331, 741 P.2d 1345 (1987).
Finally, we note that Tarkanian did not seek to attack the district court judgment. As the prevailing party below, he could argue in support of the judgment without filing a cross-appeal, even if his rationale differed from that of the district court. "[E]ven if an appellee does not file a cross-appeal or cross-petition, he may defend the judgment in his favor with any argument that is supported by the record." 9 James Moore, Moore's Federal Practice § 204.11[3] (1993); see United States v. American Railway Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087 (1924); see also Engleson v. Burlington N. R.R., 972 F.2d 1038, 1041 (9th Cir.1992) (a cross-appeal is not necessary to assert arguments in support of judgment as entered, even if alternative theories are raised); accord Johnson v. Enron Corp., 906 F.2d 1234, 1238 (8th Cir. 1990).
Further, with regard to any equitable concerns, UNLV was permitted to fully participate on remand to the district court even though it had not appealed. As noted by this court in its order of remand:
Although UNLV did not appeal the injunctive decree previously entered against it, that fact alone will not necessarily preclude the university from participating in further proceedings below. See System Federation v. Wright, 364 U.S. 642, 647 [81 S.Ct. 368, 371, 5 L.Ed.2d 349] (1961) (a court possesses continuing authority to modify injunctive decree where "the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen"); Foley v. Smith, 437 F.2d 115 (5th Cir.1971) (on remand, a trial court may pass upon any issues not expressly or impliedly disposed of on appeal); Hawkins v. Cleveland, C., C. & St. L. Ry., 99 F. 322 (7th Cir.1900) (where decision and mandate of a reviewing court reverses a lower court's judgment and remands the matter for further proceedings not inconsistent with the appellate decision, the lower court has the same authority to permit amendment of the pleadings for the purpose of enlarging the issues and of admitting further proofs as it had before the entry of the reversed decree).
Tarkanian v. NCAA, Docket No. 16256 (Order of Remand at 2-3, September 28, 1989). We conclude that UNLV's arguments are without merit as this court had jurisdiction to consider the entire judgment appealed from. Further, we note that the district court complied with the directions of this court on remand, and we perceive no abuse of discretion by the district court. We have considered all of the other issues raised by UNLV on appeal and find them unpersuasive.
CONCLUSION
Under Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), and 42 U.S.C. § 1988 (1982), the party legally responsible for relief on the merits is the party who should also bear fee liability. Tarkanian has consistently prevailed against UNLV and was given the requested injunctive relief he sought. As a prevailing civil rights litigant, Tarkanian is entitled to an award of reasonable attorney's fees. The amount of the award was found to be reasonable by the district court, and we have no evidence to indicate otherwise. We conclude that the district court did not abuse its discretion in *1195 awarding the total fee award against UNLV. Accordingly, we affirm the order of the district court.[7]
NOTES
[1] The NCAA sponsors and regulates intercollegiate athletic competition throughout the United States. Member institutions, such as UNLV, are required to abide by NCAA rules as a condition to participation in NCAA sponsored events. Where the NCAA determines that its rules have been violated by one of the member institutions, it has the power to impose a variety of sanctions.
[2] After the district court entered its order, UNLV sent Tarkanian's counsel (Lionel Sawyer & Collins) a check for ten percent of Tarkanian's award, along with a release and satisfaction. Tarkanian's counsel responded by letter dated February 25, 1985, which stated:
We received your letter of February 21, 1985 enclosing UNLV's check in the amount of $19,595.19, [and] a RELEASE and a SATISFACTION OF ORDER. As your letter requires execution of the release and satisfaction before we cash the check, we will just hold the check in trust pending resolution of the following problem.
Specifically, while we are willing to execute the satisfaction of order, neither Jerry Tarkanian nor this firm are willing to release UNLV at this time. As you have yourself acknowledged to me, it is possible that the NCAA will argue and the Nevada Supreme Court will agree that UNLV should pay more than 10% of the cost award. While we believe such a determination to be remote, that is a risk UNLV has decided to take by not appealing and is not a risk that is fairly passed off to the plaintiff and his counsel by way of the release.
UNLV thereafter agreed to let Tarkanian cash the check after he signed only the satisfaction but not the release.
[3] On December 6, 1993, UNLV filed with this court "Appellants' Motion that the Supreme Court take Judicial Notice of Papers filed in the Eighth Judicial District Court" (the Motion). The Motion requested that this court take judicial notice of statements made in an affidavit filed by Lionel Sawyer & Collins, in support of a motion filed in the Eighth Judicial District Court in another proceeding involving the parties to this appeal. We decline to take judicial notice of the affidavit as it is from a different proceeding that bears no relation whatsoever to this case. Occhiuto v. Occhiuto, 97 Nev. 143, 145, 625 P.2d 568, 569 (1981).
[4] "After a court has determined that attorney's fees are appropriate, it then must multiply the number of hours reasonably spent on the case by a reasonable hourly rate to reach what is termed the lodestar amount." Herbst v. Humana Health Ins. of Nevada, 105 Nev. 586, 590, 781 P.2d 762, 764 (1989); see also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564-66, 106 S.Ct. 3088, 3097-99, 92 L.Ed.2d 439 (1986); Patton v. County of Kings, 857 F.2d 1379, 1382 (9th Cir.1988); Southerland v. International Longshoremen's and Warehousemen's Union, 845 F.2d 796, 800-01 (9th Cir. 1988).
[5] As noted previously, Tarkanian did appeal from that portion of the judgment he was aggrieved by.
[6] Tarkanian cites to the case of Anthony v. Petroleum Helicopters, Inc., 693 F.2d 495, 497 (5th Cir.1982), for the proposition that appellate courts have the discretionary power to retain all the parties in a lawsuit on remand. UNLV argues, at some length, that Anthony is no longer viable in light of the United States Supreme Court's decision in Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).
In Torres, a notice of appeal from a judgment of dismissal listed the names of fifteen out of sixteen plaintiffs as parties to the appeal in the body of the notice, but did not list the petitioner. The Court held that failure to name a party in a notice of appeal, as required by FRAP 3(c), bars the appellate court from exercising jurisdiction over that party, even if the failure to do so was due to a clerical error. The Court held that because the petitioner was not named, and all others were specifically named, the notice of appeal failed to "give[ ] fair notice of the specific individual or entity seeking to appeal." Id. at 318, 108 S.Ct. at 2409. The use of the phrase "et al." in the caption also failed to provide notice of a particular defendant's intent to appeal, particularly since all the others were specifically named. Id. Thus, the Court held that the court of appeal had properly held that the dismissal was final as to the petitioner. From this, UNLV argues that this court did not have jurisdiction over UNLV as a non-appealing party and that the district court judgment was final, res judicata, and not subject to modification on remand.
The primary difficulty with UNLV's argument is that Torres did not announce a general rule of appellate procedure; it was interpreting a specific rule of procedure. See Chicano Educ. & Manpower Serv. v. Dept. of Labor, 909 F.2d 1320, 1329 (9th Cir.1990). That rule, FRAP 3(c), places certain requirements on parties bringing an appeal. Compare NRAP 3(c). The case at hand presents an entirely different question.
[7] The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1615292/ | 502 So.2d 626 (1987)
Deborah Lynn HICKOX, a Minor, By and Through Her Father and Next Friend and Guardian, Henry B. HICKOX, Separately and Severally
v.
Boyce HOLLEMAN, Individually, Boyce Holleman, a Professional Association; Philip Weinberg, Separately and Severally.
No. 56004.
Supreme Court of Mississippi.
January 21, 1987.
Rehearing Denied March 4, 1987.
*628 James W. Nobles, Jackson, Robert T. Cunningham, Donald Richard Bounds, Mobile, Ala., for appellant.
Jerry O. Terry, Greaves, Terry, Sheely & Holder, Gulfport, for appellee.
Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.
HAWKINS, Presiding Justice, for the Court:
Deborah Lynn Hickox and her father Henry B. Hickox appeal from a judgment of the circuit court of the First Judicial District of Harrison County sustaining a motion for a directed verdict and dismissing their legal malpractice suit against Boyce Holleman and Philip Weinberg individually, and Boyce Holleman, a professional association.
The circuit judge sustained the motion first, because there was no proof of a deviation in the proper standard of care by treating physicians of Deborah (Debbie) in New York, and second, that the statute of limitations had run against the plaintiffs barring a suit against the United States Government under the Federal Tort Claims Act before they ever retained the legal services of these defendants.
In the posture of this appeal, under the familiar guidelines stated herein, we consider all of the credible evidence in the case in the light most favorable to the plaintiff and indulge all reasonable inferences which will support plaintiffs' cause. See Smith v. Estate of Gilbert, 498 So.2d 823 (Miss. 1986); Evans v. Journeay, 488 So.2d 797, 799 (Miss. 1986); White v. Hancock Bank, 477 So.2d 265, 269 (Miss. 1985); Edwards v. Cleveland Foods, Inc., 437 So.2d 56, 58 (Miss. 1983).
Because the circuit court erred in excluding opinion testimony from a medical expert, we reverse.
FACTS
Debbie was born April 9, 1972, the third child of Henry B. and Claudine Hickox. Henry was in the United States Navy, stationed at Hempstead, New York, as a recruiter. The United States Naval Hospital at St. Albans (called St. Albans) was approximately twenty miles away. At the end of November, 1972, Debbie became ill with a high fever and sick to her stomach. On December 2 her parents took her to the pediatric clinic at St. Albans. Both parents testified they had first taken her to the hospital in November, but the records produced showed no visit prior to December 2.[1]
On the December 2 visit the attendants checked Debbie's temperature, her ears, nose and throat. The attendants prescribed Tylenol and lots of liquid, and told the parents to sponge bathe Debbie when her temperature got high. Her condition did not improve following this visit, so the parents called the hospital, and eventually brought Debbie back to the clinic on December 6. She was again examined and the same treatment prescribed.
Debbie's condition did not improve. Her parents thought she was getting worse, so they again returned to the hospital on December 15. At this visit the hospital performed *629 a spinal puncture which revealed Debbie had bacterial meningitis.
Debbie's final diagnosis was haemophilis influenza meningitis, with resultant permanent brain damage. She was hospitalized until January 5, 1973.
Her parents returned her to St. Albans on January 6, 1973, where she remained hospitalized until January 12. When the hospital discharged Debbie, they told the Hickoxes that Debbie suffered from hydrocephalus, post hemophilus influenza meningitis.[2]
Until November, 1972, Debbie was a healthy baby. Her disease caused permanent brain damage, whereby she became little more than a vegetable, totally dependent on others for her care and feeding. She could not speak, her excretions were controlled by diaper, she had to be spoon fed, and could not move her arms or legs. At eleven years of age, she weighed approximately forty pounds, and was four feet tall.
Henry retired from the Navy in May, 1974, and moved to Jackson County. According to Henry and Claudine, in the latter part of November, 1974, they both went to Holleman's office in reference to employing him for any claim they had for medical malpractice.
Holleman referred them to Weinberg, an associate in the firm, who interviewed them. The Hickoxes gave Weinberg Debbie's medical records, discussed their claim with him, and orally agreed to employ the firm for a one-third contingency fee.[3]
Hickox testified they heard nothing from Weinberg, so they returned to his office in April, 1975. Then Weinberg told them he had lost his notes. Weinberg interviewed Mr. Hickox again and took more notes.
The Hickoxes made two or three inquiries following this visit. Each time the firm reassured them, but on July 6, 1976, Ben Galloway, in Holleman's firm, wrote Claudine that Weinberg had left the firm and that Claudine should contact him about Debbie's case.
The Hickoxes became dissatisfied with this representation, and on some later date got their file from the Holleman law firm. On June 14, 1977, they employed J. Allan Sadler of the law firm of Bailey and Sadler in Ocean Springs to represent them. The same day the chancery court of Jackson County appointed Hickox legal guardian of Debbie and authorized him to file suit on her behalf.
On February 2, 1979, Debbie through her father, and Henry individually filed a complaint in the United States district court for the Southern District of Mississippi against the United States under 28 U.S.C. § 1346(b), the Federal Tort Claims Act. As to Debbie's medical history and the events following, the complaint alleged the facts above related, except no allegation was made that she had been taken to St. Albans prior to December 2, 1972. The complaint demanded $1,250,000 damages for Debbie, and $250,000 for Henry. The Hickoxes propounded interrogatories to the Government, asking the names and addresses of treating physicians and nurses, and for detailed facts as to her examination and treatment. The Government objected to answering the interrogatories, because the complaint on its face showed the cause was barred by 28 U.S.C. § 2401(b), since it had not been presented to any appropriate government agency within two years from *630 the time her claim arose, the plaintiff having first corresponded with the U.S. Navy on August 30, 1979. Even so, the Government filed an answer to the complaint, alleging as its first defense the claim was barred by the two-year limitation of 28 U.S.C. § 2401(b).
The answer admitted Debbie was a patient and received treatment in the emergency room at St. Albans on December 2, 1972, and stated affirmatively that on December 6 the pediatric clinic at St. Albans treated her, with Debbie having a history of fever running 103-104 degrees for a week, recurring vomiting and diarrhea for three days. The answer also alleged a physician diagnosed Debbie on that date with viral syndrome. The answer also admitted that the hospital admitted Debbie on December 15, took a spinal puncture test, and made a diagnosis of bacterial meningitis. The answer admitted that all physicians who saw Debbie were government employees.
On January 2, 1980, the Government filed a motion to dismiss because the claim was barred under 28 U.S.C. § 2401(b). The Government attached as an exhibit to this motion what was alleged to be everything in writing that it had received from the Hickoxes prior to filing the complaint. Among the papers in this exhibit was a dim photostatic copy of the narrative summary of Debbie's hospital record on December 15, 1972, consisting of two pages. The names of the doctors signing this summary are not legible.
On January 10, 1980, an order dismissing the case was entered, because of the failure to present a claim within two years as required by the federal statute.
The above record of the federal court proceedings was offered into evidence as Exhibit 3 to the plaintiffs' case for the trial of this cause.
This suit was brought on August 19, 1980, against Holleman and Weinberg individually, and the Boyce Holleman professional association in the circuit court of Harrison County, alleging legal malpractice. Debbie sued through her father as guardian and next friend claiming damages of $3,000,000 and Hickox also sued in his individual capacity for loss of his right against the government claiming damages of $500,000.
The Hickoxes asserted the Holleman firm negligently failed to file a claim within two years from its accrual as required under Title 28 U.S.Code Ann. § 2401(b). The Hickoxes asserted that the defendants were liable because their negligence caused Debbie to lose her right to pursue a meritorious medical negligence claim against the government.
Prior to trial the circuit judge excluded the St. Albans medical records which the plaintiffs proposed to offer into evidence.
Henry and Claudine were the first witnesses, who testified as above set forth.
Terry B. Carle, M.D., a specialist in physical medicine and rehabilitation, who examined Debbie in July, 1983, testified about her condition and gave his prognosis that she would be totally incapacitated for her life, due to the infectious encephalitis or meningitis.
Following the Hickoxes' move to Jackson County, Debbie was periodically taken to the medical center at Keesler Air Force Base for medical attention and treatment. The director of patient affairs and custodian of the medical center's records, Capt. Terry McCullough, pursuant to a subpoena, produced all the Keesler Air Force Base medical center's records pertaining to Debbie. In those records were what purported to be some of her medical records from St. Albans. Among these were the photostatic copy of notes made at a December 2 and a December 6, 1972, out-patient visit by some individuals who examined some patient on those dates (Debbie's name is not on them), and photostatic copies of the narrative summary of her clinical record in her December 15, 1972-January 5, 1973, hospitalization, and the narrative summary of her clinical record in her January 6-January 12, 1973, hospitalization. The December 2 and December 6, 1972, notes are handwritten, using medical terms and abbreviations, *631 with some of the writing quite dim. We cannot from this record determine with any assurance of accuracy the full meaning of these notes. The narrative summaries are typed and legible.
The court sustained the defendants' objection to admission of the record evidence of Debbie's examination and treatment at St. Alban's.[4]
David Leon Dugger, M.D., a pediatrician stationed at Keesler Air Force Base, first saw and treated Debbie in 1974. He described bacterial spinal meningitis as a common disease and claimed every medical student learns how to diagnose it. He added the meninges is a membrane covering of the brain, and when it becomes infected, unless treated promptly the germs will eat into the membrane and brain, causing permanent brain damage. He stated spinal meningitis is a common disease among children.
Dr. Dugger said the conditions related by the Hickoxes on December 2 through December 6 created an extremely high level of suspicion, indicating a need on December 6 for a spinal tap and examination of the spinal fluid to determine the presence of the germs which cause spinal meningitis. He said this test could be performed by a physician in 2-3 minutes, and its results would be known in just five minutes.
Dr. Dugger was asked if he knew whether the standard for the diagnosis and treatment of meningitis was different in one part of the country from another. He replied the standard was the same. The Hickoxes' attorney then asked him the following question:
Q. I will ask you then whether, based on your training, your education and your experience on the subject of meningitis, do you have an opinion, which you can state with a reasonable degree of medical certainty, whether or not there is a minimum standard of medical care that would apply to any licensed Physician, with regard to the diagnosis of meningitis.
Vol. IX, p. 1132.
The circuit judge sustained the defense objection to this question.
Following a considerable skirmish, the circuit judge reversed his ruling, and allowed the Hickoxes' attorney to ask Dr. Dugger the following hypothetical question: Assuming that Debbie was born April 9, 1972, developed normally and was able to sit up and crawl in late November of that year when she developed a fever and intermittent vomiting, was taken to the pediatric clinic at St. Albans, was seen by a physician and a history taken, and that after being sent home her parents gave her cool sponge baths and Tylenol, but she continued with the same symptoms, with her fever running from 101 to 104 degrees, that her parents returned her to the hospital clinic on December 2, where she was again seen by a physician, a history taken, and Debbie sent home, that the same treatment was continued and she had the same symptoms with diarrhea, that her parents returned to the hospital clinic on December 6, and no spinal tap was performed, that after this last visit her symptoms continued, and on December 15 her condition had gotten worse, she was returned to the hospital, and was hospitalized; and that on December 16 Debbie had seizures, a fixed gaze and spasticity in her limbs, which condition continued, and that Debbie's present condition was that of a spastic quadriplegic with severe brain damage and motor retardation. The question concluded as follows:
Q. Now, assuming those facts to be true, and based on your medical education, *632 your training, your experience, your care and treatment of Debbie Hickox, do you have an opinion, which you can state with a reasonable degree of medical certainty, as to the cause of Debbie's brain damage?
A. Yes, I do.
Q. And what is that opinion?
A. My opinion is that she did not receive appropriate medical care at the December 6 visit and between that point in time and December the 15th.
Q. All right, sir
Vol. IX, p. 1176.[5]
The defense objected that the doctor had not responded to the question posed. The circuit judge sustained the objection, but he allowed the doctor to testify that Debbie's brain damage had been caused by the presence of meningitis. The judge also permitted the doctor to testify that Debbie's condition was brought about by bacterial meningitis, caused by haemophilous influenzae, a particular bacteria. (Vol. IX, p. 1187) (Dr. Dugger explained in another part of his testimony that bacterial meningitis had nothing to do with ordinary influenza, that the two diseases were entirely different.)
Despite the circuit judge's ruling, he permitted the plaintiff to ask Dr. Dugger whether he thought a spinal tap should have been performed on Debbie on December 6, 1972. Dr. Dugger responded that a tap definitely should have been performed, because Debbie's symptom revealed an extremely high index of suspicion of meningitis.
The court also permitted Dr. Dugger to state that had a spinal tap been performed on December 6, 1972, in his opinion it definitely would have revealed spinal meningitis.
The doctor was not permitted to testify that if a spinal tap had revealed the bacteria, whether this would have prevented Debbie's brain damage. The trial court sustained the objection to this question.
Because Dr. Dugger was not personally familiar with the standard of treatment by physicians in New York, the Court did not allow him to specifically give an opinion of whether Debbie had been properly treated. (Vol. X, p. 1214)
However, following Dr. Dugger's cross-examination, on redirect, the circuit judge permitted him to testify that in his opinion a spinal tap on December 5 would have been positive, and if Debbie had received antibiotic treatment on that date, she would not have been brain damaged. He testified that antibiotic therapy should be instituted as soon as possible. Dr. Dugger testified that he had never had a patient to end up like Debbie.
Also on redirect examination plaintiffs' counsel asked Dr. Dugger to read from the December 15 narrative summary from plaintiffs' Exhibit 3. He responded:
History of present illness. This was the first St. Albans Naval Hospital admission for this eight month old white female, who had had a history of vomiting and diarrhea, with intermittent fever, for thirteen days, prior to admission.
The doctor was then asked what was the usual course of time for a virus to cause sickness. He replied that the sickness lasts two or three days then dissipates. Next, he was asked if a physician expects virus, but it lasts beyond the two or three day course and continues five to ten days, should the physician suspect more than just a virus. The Court sustained the objection to this question.
The Court also sustained the objection to the question of whether a doctor should suspect more than a virus when a child has fever, vomiting and diarrhea more than two or three days. The doctor was permitted to testify, however, that the usual course of a virus did not extend ten to twelve days.
The plaintiffs' next witness was Valentino D.B. Mazzia, M.D., an anesthesiologist. Dr. Mazzia also specialized in and had done *633 research in complications and death, associated with surgical, anesthetic, diagnostic and therapeutic procedures. He taught in medical schools in several states, and practiced in New York.
Dr. Mazzia had never seen or treated Debbie. He gave a thorough explanation of the human anatomy, the brain and spinal cord, and how bacteria caused spinal meningitis. He noted the vital importance of doing a spinal tap when the patient's history and examination gives the physician reason to suspect the presence of the bacteria. He also testified that the procedure for examination and diagnosis of meningitis was the same in New York as elsewhere else, and that every medical school graduate was thoroughly schooled in these procedures.
Dr. Mazzia gave no opinion, however, of the specific diagnosis, care and treatment indicated in Debbie's case.[6]
Finally, the plaintiff called Weinberg as an adverse witness. He admitted he did not research the statute of limitations applicable to the Federal Tort Claims Act. He simply assumed because Debbie was a minor, no statute of limitations problem presented itself, and claimed that he was taught that in law school. He conceded the importance of checking for the applicable statute of limitations in any case as it applied to the facts, but said he was overloaded and spent little time on this case.
The plaintiffs then rested.
Upon the defendants' motion for a directed verdict, the circuit judge ruled:
The Court having heard the Motion and argument of Counsel for both sides and having heard the evidence presented to this point, which is the point at which the Plaintiff has rested, and the Court considering this Motion for a Directed Verdict, must take the evidence adduced by the Plaintiff, prior to his resting, as most favorably in view of the Plaintiff. And in doing so, the court finds that the Plaintiff Deborah Hickox was a patient at St. Albans Naval Hospital on Long Island, beginning in November of 1972. That the Plaintiff has adduced here evidence from the parents of the child as to certain treatment that was given to the child; has adduced evidence from two experts as to the causal relation of the symptoms and as to the standard of care required.
The Court finds, in reviewing this evidence most favorably and for the Plaintiff, that there is no positive evidence in this case, in this record, which would show a deviation from the standard of care.
There is evidence that these Physicians would have performed their duties otherwise.
But the actions attributed to these Doctors, by the parents, who saw them, and that being the only record in this case of what transpired there, as far as these Physicians are concerned, all of those actions were in conformity with the standard of care. And there being no other record, the matter would be one of speculation for the Jury.
The court also finds that from the evidence in this case that the cause of action accrued when the parent discovered the defects in this child caused by meningitis. And, therefore, the statute began to run at that time.
And the Motion for a Directed Verdict is sustained.
Vol. XI, pp. 1528-1530.
LAW
This is a legal malpractice case. To recover in such a case in this state, it is incumbent upon the plaintiff to prove by a preponderance of evidence the following:
1. Existence of a lawyer-client relationship.
2. Negligence on the part of the lawyer in handling his client's affairs entrusted to him; and
3. Proximate cause of injury.
*634 In this case there is no dispute that a lawyer-client relationship existed between the plaintiffs and the defendants following the first visit to the Holleman office. There is a sharp dispute when this first visit occurred, however.
As to the second factor, a lawyer owes his client the duty to exercise the knowledge, skill, and ability ordinarily possessed and exercised by the members of the legal profession similarly situated. Failure to do so constitutes negligent conduct on the part of the lawyer.
As to the third essential ingredient, the plaintiff must show that but for their attorney's negligence, they would have been successful in the prosecution or defense of the underlying action. See: Thompson v. Erving's Hatcheries, Inc., 186 So.2d 756 (Miss. 1966); Nause v. Goldman, 321 So.2d 304 (Miss. 1975). In Thompson v. Erving's Hatcheries, Inc., infra, page 759, quoting with approval 7 Am.Jur.2d Attorneys at Law, § 188 at 156 (1963), this Court stated:
In an action against an attorney for negligence or violation of duty, the client has the burden of proving the existence of the relation of attorney and client, the acts constituting the alleged negligence, that the negligence was the proximate cause of the injury, and the fact and extent of the injury alleged. The last element mentioned often involves the burden of showing that, but for the negligence of the attorney, the client would have been successful in the prosecution or defense of an action.
In the context of the present action, the plaintiff/client carries this burden by trying the underlying medical malpractice claim as a part of this legal malpractice case, not by trying to prove or recreate what would or may have happened in some other court at some other time and place. More specifically, the "success" component of plaintiff's burden involves no attempt to show what would have happened if the Holleman firm had timely brought the Federal Tort Claims Act case. Rather, the issues that would have been tried there are made up and tried in the legal malpractice suit as the first step in plaintiff's claim here.
Any cause of action the Hickoxes had against the United States is based upon 28 U.S.C. § 1346(b) of the Federal Tort Claims Act:
§ 1346. United States as Defendant
* * * * * *
(b) Subject to the provision of chapter 171 of this title, the district courts, ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
The time for bringing any such action is limited by 28 U.S.C. § 2401(b):
§ 2401. Time for commencing action against United States
(b) a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.
THE DIRECTED VERDICT
The plaintiffs first argue that the circuit judge erred in directing a verdict in favor of the defendants. To decide this point, we consider not only the reasons given by the circuit judge in his ruling, but also the reasons given by the defendants to support the correctness of any such ruling. The plaintiffs' argue that we are restricted to the reasons the trial court gave for directing a verdict, namely: The uncontradicted evidence showed the two-year statute had *635 run when the defendants were employed, and also that the plaintiffs failed to show medical malpractice under New York standards.
The defendants on the other hand argue that we should consider other reasons urged by them in support of their motion for the directed verdict, namely: The action against the defendants was barred by Miss. Code Ann. § 15-1-29, this State's three-year statute of limitations on oral contracts, especially since it was pleaded in an affirmative defense without denial by the plaintiffs, Miss. Code Ann. § 11-7-59; and, finally the plaintiffs offered no expert to testify as to legal malpractice on the part of the defendants.
In making this argument, plaintiffs misconstrue the function of an appellate court. Appellate courts are not in the business of reversing a trial court when it has made a correct ruling or decision. We are first interested in the result of the decision, and if it is correct we are not concerned with the route straight path or detour which the trial court took to get there. See: Allgood v. Bradford, 473 So.2d 402, 411 (Miss. 1985); Briggs v. Benjamin, 467 So.2d 932, 934 (Miss. 1985); Tedford v. Dempsey, 437 So.2d 410, 418 (Miss. 1983); Huffman v. Griffin, 337 So.2d 715, 723 (Miss. 1976); Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351, 353 (1943); Chatham v. Johnson, 195 So.2d 62 (Miss. 1967). An appellee is entitled to argue and rely upon any ground sufficient to sustain the judgment below. Ferguson v. Watkins, 448 So.2d 271, 275 (Miss. 1984).
As this Court stated in McCain v. Wade, 181 Miss. 664, 180 So. 748, 749 (1938): "The action of the trial judge is presumed to be correct, ..." and unless it is shown to be erroneous, our duty is to uphold it.
We must hold the erudite and experienced circuit judge erred when he held there was no proof the Hickoxes retained the services of the Holleman firm prior to the running of the two years' statute of limitations; Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 655 (Miss. 1975). On this appeal we will not address the issue of when the Hickoxes' claim became barred by 28 U.S.C. § 2401(b), although it appears the statute could not have expired before December 15, 1974. Henry and Claudine Hickox testified that they retained the law firm's services before that date. Upon retrial of this cause, we would suggest that the trial judge first determine as a matter of law when the two-year statute began, and when it expired on the Hickoxes' claim. Then he should consider written questions to the jury to enable them to determine when the Hickoxes retained the services of the Holleman firm. See: MRCP 49(b).[7]
PROOF OF LEGAL MALPRACTICE
The defendants argue that the plaintiffs failed to prove their legal malpractice case because they did not present an expert to testify whether the defendant attorney failed to exercise the standard of care required of a member of the legal profession. Ordinarily we would agree:
The generally accepted rule is that expert testimony is ordinarily necessary to support an action for malpractice of a professional man in those situations where special skills, knowledge, experience, learning or the like are required.
Dean v. Conn, 419 So.2d 148, 150 (Miss. 1982).
Yet this rule does not apply when the attorney's conduct is negligent as a matter of law and the plaintiff is entitled to a directed verdict on liability. In Thompson v. Erving's Hatcheries, Inc., supra, we held that the failure of an attorney to file a suit prior to expiration of the statute of limitations was negligence as a matter of law and the plaintiff in such case was entitled to a directed verdict on liability.
Even though the Thompson case involved a Mississippi statute of limitations *636 and the Hickoxes' claim fell under a Federal statute, Thompson applies here. Weinberg candidly admitted that he made no effort to check any law to determine the nature of the Hickoxes' claim. Weinberg should have at least done some research in order to properly represent the Hickoxes, especially since he was totally unfamiliar with the Federal Torts Claim Act and its statute of limitations. See Togstad v. Vesely, 291 N.W.2d 686 (Minn. 1980); Horne v. Peckham, 97 Cal. App.3d 404, 158 Cal. Rptr. 714, 721 (1979); Smith v. Lewis, 13 Cal.3d 349, 118 Cal. Rptr. 621, 627, 530 P.2d 589, 595 (1975). Since Weinberg failed to even open a book, we hold that he was negligent as a matter of law. Any such negligence, of course, is attributable to Boyce Holleman, A Professional Association, via respondeat superior.
As the New Mexico Court said in George v. Caton, 93 N.M. 370, 600 P.2d 822, 829 (App. 1979):
It does not require expert testimony to establish the negligence of an attorney who is ignorant of the applicable statute of limitations or who sits idly by and causes the client to lose the value of his claim for relief. An attorney who delays the bringing of an action until the statute of limitations has run is guilty of negligence if the attorney did not act solely with a view to promote the interest of his client. (citation omitted) Ignorance of statutes or rules of limitation of legal remedies can in itself justify a finding of culpable negligence.
See also Watkins v. Sheppard, 278 So.2d 890, 892 (La. Ct. App. 1973); Central Cab Co. v. Clarke, 259 Md. 542, 270 A.2d 662, 668 (1970).
Moreover, attorneys involved in malpractice actions must always remember there is a pragmatic difference between the trial of other professional malpractice cases and a legal malpractice case. In the former class, the lawyers and judges are laymen. In professional malpractice cases, excepting extreme cases, we rely upon experts for guidance. The attorney who finds himself the defendant in a legal malpractice case, however, has a judge and the trial attorneys who are already experts.
LIMITATION OF ACTION BAR AGAINST THE DEFENDANTS
We likewise find the contention that the Hickoxes' legal malpractice claim was barred by the three-year statute on all contracts, Miss.Code.Ann. § 15-1-29, as opposed to the general six-year statute on torts, Miss.Code.Ann. § 15-1-49, equally unpersuasive. Although the claim in this case arose by virtue of an oral contract, this cause of action is based upon the negligence of the attorney, and is governed by the six-year statute. Hutchinson v. Smith, 417 So.2d 926 (Miss. 1982). The defendants assert this is a pre-rules case, and they pleaded the three-year statute. Because of this and because of the plaintiffs' failure to respond to this claim, the defense argues that the three-year statute should govern. Under the pleadings in this case, it was not necessary for the plaintiffs to reply to defendants' plea. See: Guthrie v. Merchants Nat. Bank of Mobile, 254 Miss. 532, 180 So.2d 309 (1965); Anderson v. Laurel Oil Co. & Fertilizer Co., 228 Miss. 95, 87 So.2d 556 (1956). Moreover, there was never any factual issue upon which the three-year statute could have been predicated.
We do not find the grounds argued by the defendants to support the directed verdict meritorious.
PROOF OF MEDICAL MALPRACTICE
Now we return to the core issue: Was a jury issue made on medical malpractice?
Intertwined with this question are the other two assignments of error, namely, that the circuit judge erred in excluding the testimony by Dr. Dugger as to the standard of care required in New York, and the minimum training required to make a diagnosis of spinal meningitis.
The plaintiffs argue that sufficient evidence was presented despite the circuit judge's ruling to survive a motion for a directed verdict. We do not agree. On the *637 other hand, if the trial court erred in excluding admissible evidence and that evidence added to the evidence presented to the jury would have survived a motion for directed verdict, then we must reverse.
Since this case was tried, this Court in Hall v. Hilbun, 466 So.2d 856 (Miss. 1985), effectively abolished the "locality rule" insofar as determining whether a medical expert opinion should be admitted. The circuit court did not have the benefit of this decision. We must, therefore, hold that he erred when he used the "locality rule" to determine the admissibility of medical expert opinion. Under Hall v. Hilbun Dr. Dugger was qualified to testify as an expert on whether the St. Albans medical personnel committed medical malpractice in treating Debbie. The exclusion of that portion of his testimony on this basis of the "locality rule" was error. For this reason we must reverse. Undoubtedly, had the circuit judge admitted this testimony, he would not have entered a directed verdict for the defendants.
Serious questions remain, however, as to the competency of Dr. Dugger's opinion. This either was not brought out in the trial or was not addressed by the circuit judge. The admission of expert testimony is ordinarily addressed to the sound discretion of the trial judge. Alman Bros. Farms & Feed Mill, Inc. v. Diamond Laboratories, Inc., 437 F.2d 1295 (5th Cir.1971); Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255 (6th Cir.1961); Lehigh Portland Cement Co. v. Dobbins, 282 Ala. 513, 213 So.2d 246 (1968); Sovereign Camp W.O.W. v. Davis, 5 So.2d 480, 242 Ala. 235 (1941); Texas Emp. Ins. Ass'n v. Steadman, 415 S.W.2d 211 (Tex.Civ.App. 1967); 51 C.J.S. Evidence, § 551(2)(a) (1964). Because from this record we are unable to determine whether or not the trial court in the exercise of sound discretion would, or should have permitted Dr. Dugger's testimony in full, we review these problems now, and give guidelines for retrial.
The basic question, aside from Dr. Dugger's professional qualifications, is whether a proper or sufficient predicate was laid for him to express an expert opinion.
In the first place, the circuit judge was manifestly correct in excluding the portions of the St. Albans medical record, and indeed the plaintiffs do not argue the court erred in doing so. The trial record shows that upon the defendants' motion the circuit judge entered an order on January 14, 1984, excluding from evidence all the St. Albans records because they had not been certified as required by Miss. Code Ann. § 41-9-101-119, and excluded any statements made by Henry and Claudine to hospital personnel or statements made by the St. Albans physicians to the Hickoxes.
Also, as above noted, at the trial of the cause, plaintiffs sought to introduce the handwritten notes of December 2 and 6, and the narrative summaries of Debbie's hospitalization through the testimony of Capt. McCullough, the medical custodian at Keesler Air Force Base, and the court sustained the objection to their introduction. The circuit judge was correct because of the plaintiffs' failure to comply with Miss. Code Ann. § 41-9-109.
As we have noted, attached as part of the exhibit to the federal government's motion to dismiss the Hickoxes' Federal Tort Claim is what purports to be a narrative summary from the clinical record of the December 15, 1972, hospitalization, the first paragraph of which recites:
HISTORY OF PRESENT ILLNESS:
This was the first St. Albans Naval Hospital admission for this 8 month old white female, who had had a history of vomiting and diarrhea with intermittent fever for 13 days prior to admission. On admission the child was felt to have gastorenteritis with dehydration, but after several hours of hydration it became apparent that nuchal rigidity was present with a bulging anterior fontanelle. A lumbar puncture was performed and proved positive for bacterial meningitis.
This summary gives the discharge diagnosis of:
*638 1. Haemophilis influenza meningitis.
2. Oral and cutaneous candidiasis.
This photostatic copy, however, fails to show Debbie's name and was made an exhibit to the government's motion to dismiss, solely for the purpose of showing all the documents which had been filed with the government by plaintiffs' attorneys pursuing their Federal Tort Claims Act claim. There is nothing to show that this is in truth and in fact part of Debbie's hospital record at St. Albans.
Without proper foundation, none of the purported medical records pertaining to Debbie's medical treatment in St. Albans is competent evidence and should be excluded.[8]
Dr. Dugger as a treating physician at Keesler Air Force Base on doubt became quite familiar with the St. Albans records on medical file at Keesler. It is not clear whether his medical opinions totally excluded information contained in those records, or indeed if it was possible for him to do so. No opinion based in whole or in part on information contained in the St. Albans medical records should be admitted. Clark v. State, 409 So.2d 1325, 1328 (Miss. 1982); Entex, Inc. v. Rasberry, 355 So.2d 1102 (Miss. 1978); Spears v. State, 241 So.2d 148 (Miss. 1970); City of Laurel v. Upton, 253 Miss. 380, 175 So.2d 621 (1965); Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965).
Furthermore, there is a serious question whether the hypothetical question contained sufficient factual information upon which Dr. Dugger could express an expert opinion. This was never addressed by the circuit court. The hypothetical question omits any medical diagnosis, omits tests leading to any diagnosis, and fails to indicate when, how, or if such tests were made. The hypothetical question in this case encompassed only the testimony of the parents, lay witnesses a skimpy predicate at most to express an opinion on proper medical treatment. Clearly, no expert should be permitted to express an expert opinion on a hypothetical question which omits necessary facts, or fails to give a sufficient factual basis for the expert witness to express a valid opinion. See: Bennett v. Punton Sanitarium Ass'n., 213 Mo. App. 363, 249 S.W. 666, 672 (1923) (hypothetical must contain all pertinent history). Kale v. Douthitt, 274 F.2d 476, 482 (4th Cir.1960): "The facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture." Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534, 540 (1972): "Of course, any assumption made must be grounded on a fair summation of the material facts in evidence and those material facts must be sufficient in scope, for the witness to formulate a rational opinion."
Also in McCraney v. Kuechenberg, 144 Ind. App. 629, 248 N.E.2d 171, 174 (1969), the Indiana Court noted:
Whether a witness' sources of information are sufficiently reliable to warrant reception of an opinion is for the trial court in the exercise of its discretion to determine and we hold that the admissibility of such opinion is necessarily dependent upon the laying of a proper factual predicate.
And, in Dean v. Carolina Coach Company, Inc., 287 N.C. 515, 215 S.E.2d 89, 91 (1975), the North Carolina Supreme Court stated:
As a general rule, a hypothetical question which omits any reference to a fact which goes to the essence of the case and therefore presents a state of facts so incomplete that an opinion based on it would be obviously unreliable is improper and the expert witness's answer will be excluded.
See also, Peppercorn v. Murphy, 114 Cal. App. 101, 299 P. 762 (1931); Jenson v. Findley, 17 Cal. App.2d 536, 62 P.2d 430, 435 (1972); In re Grahlman's Will, 248 Iowa 535, 81 N.W.2d 673, 681 (1957); Starr v. Oriole Cafeterias, 182 Md. 214, 34 A.2d 335, 336 (1943).
It therefore follows that any expert opinions by Dr. Dugger as to whether there *639 was proper medical treatment of Debbie by St. Albans personnel, must be based on sufficient competent evidence in the record before the jury to enable him to express an opinion. This can only be resolved by the trial judge on remand under the guidelines herein enunciated.
Although not assigned as error, we also note the trial court erred in sustaining defense objections to Dr. Dugger's opinions as to when a physician should expect a virus infection or something else in diagnosing a patient. He was competent to express such medical opinions. We make this observation to prevent this error recurring on retrial. We observe further, for purposes of the trial on remand, that the hypothetical question is by no means the only vehicle providing a legally sufficient foundation for an expert's opinion. See Rule 703, Mississippi Rules of Evidence, and comment thereto. Where feasible other means, such as having the expert witness sit in the courtroom and hear the testimony of foundation witnesses, are often superior to the hypothetical question.
REVERSED AND REMANDED.
ROY NOBLE LEE, P.J., DAN M. LEE, PRATHER, ROBERTSON and ANDERSON, JJ., concur.
WALKER, C.J., and SULLIVAN and GRIFFIN, JJ., not participating.
NOTES
[1] Also, in their suit against the United States, infra, their complaint made no allegations of Debbie being seen by any St. Albans' personnel before December 2, 1972.
[2] We note that the diagnosis and treatment of Debbie at the December 15, 1972, and January 6, 1973, hospitalizations as given come from what are purportedly portions of St. Albans medical records which are part of this record, but which the circuit judge excluded from being offered into evidence before the jury. We give this information solely for a more precise understanding of this infant's condition at the time, and do not in doing so vouch for its accuracy. For the reasons we will set forth in this opinion, the trial court correctly excluded these medical documents from being offered into evidence.
[3] Weinberg called as an adverse witness disputed the time the Hickoxes came, insisting it was in April, 1975, when they first arrived. On a pre-trial deposition, Holleman was equally positive the Hickoxes never came before April, 1975.
[4] However, as noted supra, a dim copy of the narrative summary of Debbie's December 15, 1972, hospitalization was in evidence as a part of plaintiff's Exhibit 3.
It should be further noted, however, that the very dim narrative summary contained in plaintiffs' exhibit 3 would leave some critical questions unanswered, one of which is the identity of the patient. Only by comparing the writing in Exhibit 3 to the narrative summary contained in the records produced by Captain McCullough can this Court know these two sheets are copies of the same original. The jury would not have had the benefit of this knowledge.
[5] The hypothetical never related a spinal tap being performed at the December 15 hospitalization, and never related what diagnosis was then made.
[6] At page 1337 of the record, plaintiffs' counsel stated that their only purpose in calling Dr. Mazzia as a witness was to testify to the standard of care in New York.
[7] A legal malpractice suit is in the nature of an indemnity action. Maryland Casualty Co. v. R.H. Lake Agency, Inc., 331 F. Supp. 574 (N.D. Miss. 1971), is an example of an indemnity case where special interrogatories to the jury were appropriately used.
[8] As indicated at trial, Vol. VII, pp. 980-990, the complete original St. Albans medical records may not presently exist. This does not change the correctness of the circuit judge's ruling. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913976/ | 981 A.2d 217 (2009)
COM.
v.
COKER.
No. 662 EAL (2008).
Supreme Court of Pennsylvania.
July 22, 2009.
Disposition of Petition for Allowance of Appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2041083/ | 590 N.E.2d 653 (1992)
GRAND LODGE Free & Accepted Masons, Appellant-Defendant,
v.
Susan Ann JONES, Appellee-Plaintiff.
No. 93A02-9108-EX-360.
Court of Appeals of Indiana, Fourth District.
April 22, 1992.
James E. Dowling, Lulich, Murphy & Dowling, Indianapolis, for appellant-defendant.
Edward F. Kelly, Indianapolis, for appellee-plaintiff.
*654 CONOVER, Judge.
The Worker's Compensation Board (Board) granted Susan Ann Jones (Jones) compensation for injuries sustained in a work-related accident. IND. CODE 22-3-3-2, et seq. Jones's employer, Grand Lodge Free & Accepted Masons (Grand Lodge) appeals claiming the Board lacks authority to award medical benefits for palliative methods.
We affirm.
Grand Lodge presents three issues which we consolidate as one:
1. whether the Full Board, pursuant to IC 22-3-3-4, had jurisdiction and authority to award medical benefits extending to palliative methods.
On October 11, 1986, Jones was employed as a dish room employee for Grand Lodge. She received serious back injuries in the course of her employment when lifting a heavy crate to her cart.
Her back injuries became permanent and she suffers from permanent partial impairment of 10% to the person as a whole. Grand Lodge paid her temporary total disability benefits for 52 weeks, plus an additional $371.71.
On December 11, 1990, the hearing judge found in pertinent part:
1. That plaintiff uses 4 electrodes a month [for her TENS unit] prescribed by Dr. Silbert [Grand Lodge's physician] at a cost of $132.00 a month,[1] and
2. That defendant shall be responsible for plaintiff's rehabilitation.
(R. 15). Having found Grand Lodge responsible for Jones's rehabilitation, the judge ordered it to pay $132 a month, or $1,584 per year for Jones's TENS unit.
Grand Lodge then filed an application for review by the Full Board contending the hearing judge's award was not supported by sufficient evidence and was contrary to law. Grand Lodge specifically objected to the order of future rehabilitation.
On August 9, 1991, the Full Board (one member dissenting), held in pertinent part:
It is further found that Dr. Silbert's permanent partial impairment rating, upon which this Board is basing its decision, took into consideration the use of a TENS unit, which unit is utilized to reduce pain, and pain is an element of a permanent partial impairment rating.
It is further found that since the TENS unit reduces pain, it is used therefore to reduce or limit the degree of permanent partial impairment of the plaintiff.
It is further found that the defendant should be responsible for the ongoing cost of the use of said TENS unit so long as Dr. Silbert or his appointed successor shall so prescribe the use of the unit.
(R. 29). Contending the Board lacked jurisdiction to order payments beyond the control of a case, Grand Lodge appeals.
When reviewing findings and conclusions of the Board, we consider only that evidence which tends to support its determination, together with any uncontradicted adverse evidence. Talas v. Correct Piping Co., Inc. (1982), Ind., 435 N.E.2d 22, 26. Only when the evidence leads unalterably to a conclusion contrary to that reached by the Board will its decision be disturbed. Id.
A decision is contrary to law when the evidence is without conflict and all reasonable inferences to be drawn therefrom lead to but one conclusion and the Board has reached a different one. Charles F. Broughton, D.M.D., P.C. v. Riehle (1987), Ind. App., 512 N.E.2d 1133, 1136. In making such a determination we will neither weigh the evidence nor judge the credibility of witnesses. Rensing v. Indiana State University Bd. of Trustees (1983), Ind., 444 N.E.2d 1170, 1172. When a conflict in the evidence arises we will consider only the evidence tending to support the Board's award and which is most favorable to the appellee. Id. Given substantial evidence supporting its determination, the Board's ultimate factual conclusion must be upheld although this Court *655 might have reached another had it been the trier of fact. National Biscuit Co. v. Roth (1925), 83 Ind. App. 21, 146 N.E. 410, 412.
Grand Lodge first claims the Board cannot extend its jurisdiction by ordering compliance after the expiration of jurisdiction. Relying on Gibson v. Industrial Board (1978), 176 Ind. App. 489, 376 N.E.2d 502, 503, Grand Lodge argues the Board lost jurisdiction and authority to order future action because the award was entered after one year following the last day for which compensation was paid.
In Gibson, a Board member determined he was without jurisdiction to consider a plaintiff's modification petition because IC XX-X-X-XX (Burns Code Ed. 1971) limited such review. 376 N.E.2d at 503. Likewise, the Full Board determined it was without jurisdiction to consider the petition to modify the award. Id.
Grand Lodge contends the same situation which occurred in Gibson, has occurred here. It claims the one year limitations period expired before the Board's award was entered. Grand Lodge's reliance on Gibson is misplaced, as it assumes the Board modified the order.
In Jones's case, unlike Gibson, no modification of an award is at issue. The Full Board did not modify the hearing judge's award. It merely affirmed the hearing judge's order after Grand Lodge appealed. Jones did not petition for modification. Thus, Grand Lodge cannot rely on Gibson to support its limitations argument.
Grand Lodge next maintains the Board cannot control payments beyond its own jurisdiction in cases of permanent partial impairment. Grand Lodge further claims the Board cannot order payment for medical services, namely the TENS unit, because the unit does not limit and reduce the amount and extent of Jones's impairment. While we agree an agency cannot exceed its jurisdiction, the Board did not do so here.
Whether medical benefits extend to palliative steps useful only to prevent pain and discomfort after all hope of cure is gone has produced a split of opinion throughout the states. See 2 A. Larson, The Law of Workman's Compensation § 61.14, 10-91 (1989). A ruling favorable to palliative measures hinges on the phrasing of the applicable worker's compensation statute. Id. at 10-97. Where the statute allows extended payments to effect "cure or rehabilitation" it has been held that diathermy to relieve pain, in a case of no hope of improvement or cure, could not be included in medical benefits. LeClair v. Textron Mills, Inc. (1950), 77 R.I. 318, 75 A.2d 309. In states where palliative methods are disallowed, the applicable statutes limit care to that which will substantially result in restoring earning power. See Noel v. Workmen's Comp. App. Bd., (1982), 70 Pa.Cmwlth. 567, 453 A.2d 724.
However, our supreme court has determined even under Indiana's restrictive statute, palliative treatment methods are allowed. Talas v. Correct Piping Co. (1982), Ind., 435 N.E.2d 22, 27. As a result of an industrial accident, the claimant in Talas became a permanent quadriplegic. Although his condition remained stable, no hope of cure existed. Our supreme court reversed the Board and awarded benefits for continuing palliative care. Id.
Our supreme court concluded nursing care which was required to prevent the development of life-threatening diseases could be said to limit the claimant's impairment by keeping him from 100% impairment, or death. Id. Thus, it allowed palliative methods under IC 22-3-3-4.
Here, as in Talas, the Board had discretion to award an employee continuing medical expenses for a time period which it deemed necessary to limit or reduce the amount and extent of such impairment. Gregg v. Sun Oil Co. (1979), Ind. App., 388 N.E.2d 588, 591.
The Board found Jones's pain could be reduced by use of the TENS unit and such pain reduction would limit the extent of her impairment. (R. 30). IC 22-3-3-4 allows the Board to award prospective noncurative relief to limit or reduce the amount and extent of impairment. The Board determined to the extent Jones's pain is reduced, the "amount" of her impairment is reduced. *656 (R. 30-31). Such pain relief may result in Jones's restored ability to perform tasks and functions she may have been previously unable to perform. Thus, the Board's award to Jones was not contrary to law.
Finally, Grand Lodge complains the Board lacks authority to order a particular pain medication or require a particular physician to treat an employee indefinitely. Grand Lodge's argument is without merit. The Board held:
It is further found that the defendant should be responsible for the ongoing cost of the use of said TENS unit so long as Dr. Silbert or his appointed successor shall so prescribe the use of the unit.
(R. 30). The order's language is clear and unambiguous. Such treatment is to continue only so long as it is prescribed, not indefinitely.
Affirmed.
CHEZEM and GARRARD, JJ., concur.
NOTES
[1] A TENS unit, as defined by Dr. Silbert, is a device used solely to reduce a patient's pain, and to reduce a patient's reliance on oral medications. Dr. Silbert opined the unit does not cause a cure, or alter the percentage of permanent partial impairment in a patient. (R. 27). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899846/ | NO. 07-08-0491-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 29, 2009
______________________________
IN RE MEGAN LEE DOZIER,
Relator
_______________________________
Dissent
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
I respectfully dissent from the majority opinion and would deny the application for writ of mandamus.
Dozier and Brian Barkley, a married couple who had a child together, were divorced via a lawsuit filed in Potter County. Dozier and the child allegedly had been living in Cottle County since the filing of the divorce petition. After doing so, she eventually filed a motion requesting the Potter County Court to modify aspects of the divorce and custody decree. So too did she move to transfer venue of the matter to Cottle County since she and the child purportedly had lived in that county for at least six months prior to initiation of the proceeding. The trial court convened an evidentiary hearing to consider the transfer request and ultimately denied it. Dozier believed this to be an abuse of discretion given the terms of the applicable venue statute.
(footnote: 1)
Underlying the trial court’s determination is the question of whether or not Dozier and the child had resided in Cottle County for the requisite period of time before seeking transfer. Though Dozier testified that they did, other evidence illustrated that the Cottle County house she supposedly lived in was vacant, that she periodically stayed with her boyfriend in a neighboring county, and that she told Barkley that she had a new address in Randall County.
Thus, the trial court was obligated to consider the credibility of the parties, weigh the evidence and decide if the child had indeed lived in Cottle County for the last six months. And, because it did, I would deny mandamus because an appellate court may not grant such relief when resolution of a fact issue underlies the trial court’s decision.
Mendoza v. Eighth Court of Appeals
, 917 S.W.2d 787, 789 (Tex. 1996) (prohibiting an appellate court from disturbing a trial court’s factual determinations via an original mandamus proceeding);
Brady v. Fourteenth Court of Appeals
, 795 S.W.2d 712, 714 (Tex. 1990) (recognizing that an appellate court may not deal with disputed issues of fact via a mandamus proceeding).
Brian Quinn Chief Justice
FOOTNOTES
1:According to that provision, “[i]f a suit to modify . . . is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court
shall
. . . transfer the proceeding to another county . . . if the child has resided in the other county for six months or longer.”
Tex. Fam. Code Ann
.
§155.201(b) (Vernon 2008) (emphasis added)
. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1762407/ | 993 S.W.2d 833 (1999)
Gregg LAMBERT, Appellant,
v.
FIRST NATIONAL BANK OF BOWIE, Erwin Davenport, and Glyn D. Darden, Appellees.
No. 2-98-392-CV.
Court of Appeals of Texas, Fort Worth.
May 13, 1999.
*834 Brian E. Powers, Bowie, for appellant.
J. Keaton Grubbs, Wichita Falls, Donohoe, Jameson & Carroll, P.C., G. Roland Love, Jeffrey L. Crouch, Dallas, for appellees.
Panel B: LIVINGSTON, BRIGHAM, and HOLMAN, JJ.
OPINION
WILLIAM BRIGHAM, Justice.
In this appeal we are asked to decide whether a bank's prior permissive relationship with a debtor requires that the bank do something other than what is statutorily required to inform the debtor that payment is demanded. We hold that such a relationship does not impose an additional duty on the bank.
Appellant Gregg Lambert sought financing from Appellee First National Bank of Bowie when he wanted to build a house on a 10-acre tract he owned. In March 1986, Lambert signed a promissory note and a deed of trust in favor of the bank. Lambert's note payments, as he admits in his brief, were "sporadic," but he made repeated arrangements with the bank to extend the lien. On July 11, 1996 when the note was again in default, the bank appointed Appellee Erwin Davenport to act as the trustee to enforce the deed of trust. Lambert then made one payment on the loan, and no foreclosure took place.
But Lambert soon after failed to make two additional payments on the loan; thus on December 23, 1996, the bank sent Lambert written notice of the past due status and stated that unless Lambert brought the note current, "the Bank will declare the note fully accelerated and thereafter demand payment of the entire balance." This notice was sent to Lambert at his last known address by first-class mail and by certified mail, return receipt requested. The certified mailing was returned to the bank unclaimed, but the first-class mailing was not returned. On February 11, 1997, Davenport, acting as trustee, mailed Lambert written notice of his default and the bank's intent to accelerate the note if Lambert did not cure the default. On March 7, 1997, Davenport sent Lambert notice that the note had been accelerated and that the property would be sold at foreclosure on April 1, 1997. Both these notices were sent to Lambert's last known address by certified and first-class mail. The certified mailings were returned unclaimed, but the first-class mailings were not.
On April 1, 1997, the property was sold at foreclosure to Appellee Glyn Darden for $25,000. The trustee's deed given to Darden stated that Lambert had received proper notice of default and notice of the sale. Darden then sought to have Lambert leave the property, but Lambert refused to leave.
On May 2, 1997, Darden filed a forcible entry and detainer action to get possession of the property.[1] That same day, Lambert filed suit against the bank, Davenport, and Darden, seeking to set aside the foreclosure sale and cancel the trustee's deed. Lambert argued that he "never received *835 any notice of the purported intention by [the bank] to accelerate the note, ... any notice that the note had been accelerated,... or any notice of the posting of the property for foreclosure." The bank, Davenport, and Darden filed motions for summary judgment and requested sanctions against Lambert for filing a frivolous action. The trial court granted the motions and entered final judgment in favor of the bank, Davenport, and Darden. Lambert appeals and argues that
→ the prior relationship between Lambert and the bank resulted in a waiver by the bank of its right to accelerate the note without first giving actual notice to him that strict compliance would be required in the future. This "unique relationship" equates to "equitable circumstances" that, when viewed in conjunction with the "gross inadequacy of [the] sales price," constitute adequate grounds for setting aside the trustee's sale.
→ he was not required to actually tender the amounts due to obtain recission of the trustee's sale.
We review the summary judgment granted in this case under the familiar standard: (1) the movants for summary judgment have the burden of showing that there is no issue of material fact and that they are entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
By statute, the bank was required to (1) notify Lambert by certified mail that the deed of trust was in default and give him at least 20 days to cure and (2) give Lambert at least 21 days' notice of the sale by certified mail. See TEX. PROP.CODE ANN. § 51.002(b)(3), (d) (Vernon 1995). Lambert concedes that all of the statutory requirements were met,[2] but argues that his prior relationship with the bank entitles him to some sort of additional notice of the bank's intent to accelerate. We do not agree. The bank assiduously followed the statutory requirements to foreclose on Lambert's property. Nothing further is required. Indeed, Lambert cannot point to any case law, after the effective date of section 51.002, that would impose any additional duty when the statute was complied with.
Lambert's argument that the sale should be set aside because there is no evidence that he actually received notice of the bank's intent to accelerate or of the sale is also meritless. "Service of a notice [of trustee sale] by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address as shown by the records of the holder of the debt." Id. § 51.002(e). The general purpose of the statute is to provide protection for the debtor, and it provides for only constructive notice of the foreclosure. See Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex. App.Houston [1st Dist.] 1993, writ denied). There is no requirement that the debtor receive actual notice. See Martinez v. Beasley, 616 S.W.2d 689, 690 (Tex. Civ.App.Corpus Christi 1981, no writ). We overrule Lambert's first issue.
We also overrule Lambert's second issue. Lambert sought rescission of the sale and offered to tender "all amounts due and owing" under the note and deed of trust. However, he never tendered these amounts to the court. In order to be entitled to recission, Lambert was required to actually tender the amounts due. In other words, to get equity, Lambert *836 had to do equity. See Loomis Land & Cattle Co. v. Diversified Mortgage Investors, 533 S.W.2d 420, 424 (Tex.Civ.App. Tyler 1976, writ ref'd n.r.e.); Price v. Reeves, 91 S.W.2d 862, 865 (Tex.Civ. App.Fort Worth 1936, writ dism'd).
Having overruled Lambert's issues, we affirm the trial court's judgment.
NOTES
[1] Darden's action is stayed, pending the outcome of Lambert's suit.
[2] At oral argument, Lambert's counsel stated there was "no question" that there was statutory compliance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1803462/ | 997 So. 2d 628 (2008)
LLP MORTGAGE, LTD.
v.
FOOD INNOVISIONS, INC., Leon J. Cabes & Cheryl S. Cabes.
No. 08-CA-422.
Court of Appeal of Louisiana, Fifth Circuit.
October 28, 2008.
Mark C. Landry, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
David F. Waguespack, Attorney at Law, New Orleans, LA, for Defendants/Appellees.
Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
WALTER J. ROTHSCHILD, Judge.
This is an appeal from a trial court ruling granting defendants' exception of prescription. For the reasons which follow, we affirm.
On May 25, 2006, LLP Mortgage, Ltd., filed the present petition against Food Innovisions, Leon Cabes, Jr., and Cheryl Cabes, alleging that plaintiff was the holder of certain notes which were executed by defendants in 1995.[1] These notes were *629 secured by two mortgages executed by Leon and Cheryl Cabes. Plaintiff alleged that the notes were in default and prayed for acceleration of all sums due thereon. Defendants filed an answer generally denying the allegations of the petition. Thereafter, defendants brought a peremptory exception of prescription. Following a hearing on November 26, 2007, the trial court maintained the exception and dismissed plaintiffs petition. This appeal followed.
The trial court ruled in favor of defendants that the promissory notes were prescribed pursuant to federal law, and plaintiff does not challenge this ruling. The sole issue presented for our review is whether the mortgages executed by Leon and Cheryl Cabes remain viable and enforceable notwithstanding the prescription of the underlying promissory notes.
At the exception hearing at the trial level, LLP argued that even assuming the promissory notes are prescribed under federal law, the mortgages are enforceable, as there is no federal rule for prescription of a mortgage. LLP relied on Farmers Home Administration v. Muirhead, 42 F.3d 964 (5th Cir.Miss.1/24/95), which held that a federal lien on property is not subject to state law statutes of limitations and is not subject to any prescriptive periods. Thus, LLP argued that pursuant to federal law the mortgages in this case are imprescriptable.
However, in the present case, defendants are not arguing that the mortgages are prescribed or are barred by a statute of limitations. Rather, defendants argue that the mortgages have been extinguished and are therefore unenforceable because the underlying notes have prescribed under both state and federal law. In support of this argument, defendants cite La. C.C. art. 3282, which provides:
Mortgage is accessory to the obligation that it secures. Consequently, except as provided by law, the mortgagee may enforce the mortgage only to the extent that he may enforce any obligation it secures.
The trial court agreed with defendants and found the mortgages to be unenforceable. By judgment dated November 26, 2007, the court granted defendants exception of prescription and dismissed plaintiff's suit for the reasons orally assigned. It is from this judgment that plaintiff now appeals.
The mortgages in this case are entitled "Louisiana Combination Mortgage" and each purport to contain all of the statutory requisites of a Louisiana mortgage. Although the mortgages were initially executed in 1995 in favor of the Small Business Administration, an agency of the United States Government, they were subsequently assigned to plaintiff by the SBA following a purchase of the loans which were in default.
Louisiana law clearly provides that a mortgage is an accessory to the obligation it secures and can only be enforced to the extent of the obligation. There is no dispute in the present case that the obligation (i.e., the promissory notes) secured by the mortgages is no longer enforceable. In light of the facts of the present case, we must consider whether state law regarding the accessory nature of a mortgage is applicable to these mortgages which were originally executed in favor of a federal agency.
*630 In support of its contention that the mortgages are valid and enforceable notwithstanding the prescription of the underlying notes, LLP relies on Farmers Home Admin. v. Muirhead, supra, 42 F.3d at 967, for the holding that the United States and its agencies are not subject to a statute of limitations unless Congress has provided otherwise. LLP recognizes that 28 U.S.C. Section 2415(a), which provides that actions for money damages brought by the United States "shall be barred unless the complaint is filed within six years after the right of the action accrues ...." contains an authorized prescriptive period for enforcement of promissory notes. However, 28 U.S.C. Section 2415(c) provides that there is no time limit under federal law for bringing an action to establish the title to, or right of possession of, real or personal property. Citing a line of federal cases, LLP contends that as there is no congressional action providing for a prescriptive period for mortgages, mortgages are imprescriptable under federal law. See, LLP Mortg. Ltd. v. Hotaling, 497 F. Supp. 2d 1217, 1219 (D. Colo.2007); U.S. v. Succession of Siddon, 812 F. Supp. 674 (W.D.La. 1993); General Financial Services v. Thompson, 987 F. Supp. 505 (M.D.La. 1997); U.S. v. Oliver, 2008 WL 215398 (W.D.La.1/24/08).[2]
We have reviewed each of the cases cited by LLP in its brief, and we fail to find this line of cases controlling of the present cause of action. Several of these cases refer to statutes from other states which clearly provide prescriptive period for enforcement of a mortgage. Even assuming that the prescriptive period contained in 28 U.S.C. Section 2415(a) is not applicable to foreclosure actions pursuant to the terms of Section 2415(c), we fail to find that the Louisiana statutory provisions violate federal law. La. C.C. art. 3282 is not a prescriptive period or a statute of limitations. Unlike the statutes relied upon in the jurisprudence cited by LLP, the Louisiana statute does not provide that the mortgages have prescribed, but rather provides that mortgages are accessories to the obligations they secure. We fail to interpret this statute as providing for an impermissible time limit for bringing an action to establish title to real property.
Accordingly, as La. C.C. art. 3282 does not confer a limitation or prescriptive period, we fail to find that it is supplanted by federal statutory and jurisprudential law. See, United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979). Rather, we find that the provisions of La. C.C. art. 3282 are applicable to the factual situation in the present case, and that LLP can only enforce the mortgages to the extent it can enforce the obligation it secured. As there is no dispute that the promissory notes secured by the mortgages have prescribed under both state and federal law, we find no error in the trial court's determination that the mortgages in this case are unenforceable.
For these reasons, the judgment of the trial court is affirmed. LLP is to bear all costs of this appeal.
AFFIRMED.
NOTES
[1] Plaintiff alleges that the notes were payable to the order of the United States Small Business Administration and were endorsed to the order of plaintiff on July 27, 2001. Plaintiff further alleges that on June 20, 2002 the Small Business Administration assigned the notes and mortgage to plaintiff.
[2] The court in this case held that La. C.C. art. 3285 and La. C.C. art. 3498, when read together, provide an impermissible prescriptive period for enforcement of a mortgage in favor of a federal agency. However, the court in that case miscited and misquoted La. C.C. art. 3285, and we decline to apply the holding to an interpretation of La. C.C. art. 3282, which is at issue herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2396980/ | 858 A.2d 91 (2004)
UNITED STATES STEEL CORPORATION (USX CLAIRTON WORKS)
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
Appeal of Wayne R. Wilson.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of John H. Brilhart.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Gary S. Kukler.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Stephen A. Williams.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Charles L. Gourn.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Robert J. Colabianchi.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Daniel J. Koon.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of John P. Kisielnicki.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Leroy J. Davis.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Richard W. Hannegan.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Leonard C. Stokes.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Jay P. Graft.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of James Grajcar.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Richard J. Hough.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of William C. Stoffel.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Thomas J. Norman.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Anton J. Kotar.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Danny J. Jancuski.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Samuel L. Fonner.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Gary L. Fine.
United States Steel Corporation (USX Clairton Works)
v.
Unemployment Compensation Board of Review
Appeal of Joseph A. Jenco.
Supreme Court of Pennsylvania.
Argued March 3, 2004.
Decided September 22, 2004.
*94 John Edward Stember, Pittsburgh, for Appellants.
Richard Eloit Gordon, Pittsburgh, for Appellant Amicus Curiae, United Steel Workers of America.
Clifford F. Blaze, Maribeth Wilt-Seibert, Harrisburg, for Appellee, Unemployment Compensation Bd. of Review.
Michael Patrick Duff, Pittsburgh, for Appellee, United States Steel Corp.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice SAYLOR.
The central issue in these consolidated appeals by allowance is whether the relinquishment, during collective bargaining, of a scheduled, future salary increase for employees, in return for a lump-sum payment by the employer into a pension fund for current and future retirees, constitutes an employee "contribution" to such fund for purposes of Pennsylvania's unemployment compensation statute and applicable federal law.
United States Steel Corporation ("Employer") contributes to, and maintains, the Carnegie Pension Plan (the "Plan") for retired employees. Employer's contributions to the Plan have been governed by *95 the terms of various agreements that have been executed by Employer and the United Steelworkers of America (the "Union"). The first such agreement relevant to the present matter was executed by the parties in 1977, and was set to expire on July 31, 1980. Under this contract, employees were scheduled to receive a cost-of-living adjustment ("COLA") in May of 1980. In early 1980, however, before the 1977 agreement expired and before the COLA took effect, Employer and the Union negotiated a second contract, dated April 15, 1980, that succeeded the 1977 contract. During the negotiations that preceded execution of the 1980 agreement, one important issue that concerned the parties pertained to the enhancement of pension funding. This issue was ultimately resolved when the Union agreed to relinquish the COLA that was scheduled to begin in May, and Employer agreed to provide a modest general pay increase and, additionally, make a lump-sum contribution to the pension fund. Thereafter, retirees and future retirees became eligible for increased pension benefits due, at least in part, to this lump-sum payment. The payment was placed directly into the general pension fund administered under the Plan; no special fund or account was created for the disbursement of these monies.
Appellant Wayne R. Wilson ("Claimant") worked for Employer in May of 1980, and thus, he would have been eligible for the COLA scheduled under the superseded 1977 contract.[1] In July of 2001, Claimant filed for unemployment compensation benefits and established financial eligibility based upon wages paid by Employer. Claimant initially received full unemployment benefits, reduced only by part-time wages. He also received monthly retirement pension disbursements under the Plan in the amount of $1,830.00. The local office of employment security (the "Job Center") ultimately reduced Claimant's weekly benefit by $212.00, a sum representing one half of the weekly prorated amount of Claimant's pension receipts.[2] This reduction was effected pursuant to Section 404(d)(2) of the Unemployment Compensation Law,[3] 43 P.S. § 804(d)(2), which provides, in relevant part:
(i) ... for any week with respect to which an individual is receiving a pension ... under a plan maintained or contributed to by a base period or chargeable employer, the weekly benefit amount payable to such individual for such week shall be reduced, but not below zero, by the pro-rated weekly amount of the pension as determined under subclause (ii).
(ii) If the pension is entirely contributed to by the employer, then one hundred per centum (100%) of the pro-rated weekly amount of the pension shall be deducted. If the pension is contributed to by the individual, in any amount, then fifty per centum (50%) of the pro-rated weekly amount of the pension shall be deducted.
43 P.S. § 804(d)(2)(i), (ii).[4] Hence, the decision to reduce Claimant's benefits by *96 only 50 percent of his pension receipts, rather than utilizing a dollar-for-dollar offset, necessarily reflected the position that Claimant had contributed, in some amount, to the pension fund while working for Employer.
Employer contested the 50 percent offset, and a hearing was held before an unemployment compensation referee, where the primary question focused upon whether Claimant had, indeed, made any contributions to the pension fund. Although it was undisputed that Claimant had not directly deposited money into the fund, Claimant argued that Employer's payment of the lump-sum monies pursuant to the 1980 agreement constituted an indirect employee contribution, inasmuch as the employees involved (including Claimant) had relinquished their scheduled COLA in return for such payment. Employer, on the other hand, asserted that, as all payments into the fund had been made solely by Employer, the employees did not make any contributions for purposes of Section 404(d)(2)(ii) of the Law, and hence, the Job Center should have applied a dollar-for-dollar offset against Claimant's unemployment benefits.
The referee agreed with Claimant, and determined that the bargained-for lump-sum payment by Employer constituted an employee contribution. In reaching this conclusion, he considered the matter to be governed by the Commonwealth Court's then recent decision in Ehman v. UCBR, 776 A.2d 1031 (Pa.Cmwlth.2001), which involved similar facts: there, the employees had agreed to relinquish a COLA that they had already begun receiving, and the employer utilized the funds derived from this COLA "give-back" to augment pension benefits. The Ehman court held that, under these circumstances, the employees had, in effect, funded enhanced pension benefits through a reallocation of monies from their future paychecks, with the employer acting only as a conduit for this process; the court stated that such arrangement was unusual and was qualitatively different from "swapping inchoate proposals during bargaining." Id. at 1036. Although the foregone salary increase in the present case was contained in the superseded agreement, and had not yet taken effect, the referee nonetheless concluded that Ehman could not be distinguished on its facts, and accordingly, upheld the 50 percent offset. The Unemployment Compensation Board of Review (the "Board") summarily affirmed.[5]
The Commonwealth Court reversed the Board, overruling Ehman in the process. See United States Steel Corp. (USX Clairton Works) v. UCBR, 817 A.2d 1251 (Pa.Cmwlth.2003) (en banc). Initially, the court reviewed the complex history of the labor negotiations in this case, and also referenced the primary purpose of the Law's offset provision, namely, to eliminate payment of duplicative, windfall benefits, and thereby to preserve unemployment benefits for individuals who need them most. See id. at 1260 (citing Attenberger v. UCBR, 682 A.2d 68 (Pa.Cmwlth.1996); Latella v. UCBR, 74 Pa.Cmwlth. 14, 459 A.2d 464 (1983); Novak v. UCBR, 73 Pa.Cmwlth. 148, 457 A.2d 610 (1983)). The court then cited to decisions from other *97 jurisdictions in which a direct contribution from the employee has been deemed necessary for anything less than a full offset of pension benefits. See id. at 1261-62 (citing Cardarelli v. Department of Employment and Training, Bd. of Review, 674 A.2d 398 (R.I.1996); Belmont v. State, Dep't of Labor, 745 P.2d 75 (Alaska 1987)). The court stated:
Based upon review of the statutory framework, caselaw from other jurisdictions, as well as the record in the case sub judice, it is now apparent that the difficulties of proof in allowing pension offset decisions to be guided by collective bargaining negotiations renders the Ehman doctrine unworkable from a practical standpoint.
Id. at 1262. Referencing the need for prompt resolution of unemployment compensation claims, as well as the problems of adducing historical evidence regarding the intent and purpose of collective bargaining agreements, the Commonwealth Court ultimately held that, under Section 404(d)(2)(ii), 43 P.S. § 804(d)(2)(ii), a 50 percent pension offset may only obtain where there is either a line-item deduction on the employee's pay stub reflecting the employee's contribution, or a specific provision in the pension plan indicating that the employee has made a contribution to the pension fund. See id. at 1264. As these conditions were not met here, the court determined that the Law required a 100 percent offset from Claimant's benefits. See id.
President Judge Colins issued a brief dissenting opinion, joined by Judge Smith-Ribner, in which he referred to the steelworkers having waived their scheduled COLA in exchange for a wage increase and a lump-sum payment into their pension fund. He stated, "[f]orbearance equals consideration; therefore, the employees contributed to the pension plan within the meaning of Section 404(d)(2) of the law." He thus indicated that the referee had properly applied Ehman. See id. at 1265 (Colins, P.J., dissenting).
Before setting forth the parties' respective positions, it is helpful to review some background information concerning the applicable legal authority. Unemployment compensation has been a joint federal-state undertaking ever since Congress passed the Social Security Act of 1935.[6]See generally Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 574-78, 57 S. Ct. 883, 884-87, 81 L. Ed. 1279 (1937) (discussing the statutory mechanism underlying the unemployment insurance program); Bliley Elec. Co. v. UCBR (Sturdevant), 158 Pa.Super. 548, 553-54, 45 A.2d 898, 901-02 (1946) (describing the history of unemployment compensation systems in England and the United States); PA. JUR.2D Unemployment Compensation § 4:17 (1994). This joint program involves the interaction of state laws with several federal enactments, including the Social Security Act and the Federal Unemployment Tax Act ("FUTA").[7] Under this scheme, states reap substantial benefits so long as their unemployment laws remain in compliance with federal requirements, as attested by the United States Secretary of Labor. Thus, primarily, Section 303(a) of the Social Security Act, 42 U.S.C. § 503(a), sets forth a number of conditions that state laws must meet in order to receive federal approval. Upon determining that a state's laws and practices satisfy these requirements, the Secretary of Labor "certifies" the state enactment, thereby making the state eligible to be reimbursed out of the federal treasury for the cost of *98 administering its unemployment compensation system. See 42 U.S.C. § 503(a); Fusari v. Steinberg, 419 U.S. 379, 382 n. 4, 95 S. Ct. 533, 536 n. 4, 42 L. Ed. 2d 521 (1975).
FUTA embodies another aspect of the cooperative federal-state program. Pursuant to that statute, employers pay federal unemployment taxes on wages paid. If the laws of a state comply with the minimum standards established under FUTA (in addition to the Social Security Act), employer-taxpayers in that state receive credit against their federal tax liability for any monies they pay into the state's unemployment fund. See 26 U.S.C. § 3302.
From time to time, the Department of Labor issues so-called "Program Letters" to inform the states of its interpretation of controlling federal law, including FUTA and the Social Security Act. These letters play an important role in maintaining federal certification for a given state. Thus, as one federal appellate court has explained:
Each year the Secretary of Labor examines the laws of each state and certifies those states which comply with the minimum federal standards. The Department of Labor informs state agencies of the minimum federal requirements they must meet to remain certified primarily by issuing Unemployment Insurance Program Letters. In determining whether a state's unemployment compensation system is in compliance with federal standards, the Secretary of Labor relies on the positions he has taken in the letters. A state which is not in compliance can be decertified....
Cabais v. Egger, 690 F.2d 234, 236 (D.C.Cir.1982) (footnote omitted).
Notwithstanding the various standards that a state law must meet for certification, Congress has generally "afforded great discretion to the states in the design and operation of their unemployment insurance programs." Watkins v. Cantrell, 736 F.2d 933, 937 (4th Cir.1984). As of 1976, however, it became apparent that some states were allowing retired persons who received social security or pension benefits to obtain unemployment compensation concurrently, although they were no longer attached to the work force. Therefore, Congress added to FUTA a provision requiring, as a condition of certification, that the state law ameliorate this practice by offsetting an individual's unemployment benefits by the amount of any public or private pension, or similar periodic retirement payment, received by the individual. See 26 U.S.C. § 3304(a)(15). Indeed, notwithstanding the "broad freedom" that states retain in establishing their unemployment compensation systems, New York Tel. Co. v. New York State Dep't of Labor, 440 U.S. 519, 537, 99 S. Ct. 1328, 1339, 59 L. Ed. 2d 553 (1979), this pension offset requirement has been deemed one of a limited number of "fundamental standards" that must be met for a state to receive the benefits of federal certification. See Watkins, 736 F.2d at 937 (citing, inter alia, Brown v. Porcher, 660 F.2d 1001, 1004 (4th Cir.1981); McKay v. Horn, 529 F. Supp. 847, 850 n. 4 (D.N.J.1981); H.R.Rep. No. 1343, Conf. Rep. on H.R. 3904, 96th Cong.2d Sess., U.S.Code Cong. & Admin.News 1978, 2918).
The pension offset mandated by the federal statute applies only if "such pension, retirement or retired pay, annuity, or similar payment is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law)." 26 U.S.C. § 3304(a)(15)(A)(i). Originally, the statute mandated a dollar-for-dollar offset of pension benefits against unemployment benefits in all cases. In 1980, however, Congress relaxed this requirement to permit *99 states to reduce the offset to take into account contributions that the individual employee made to the pension plan. See 26 U.S.C. § 3304(a)(15)(B).[8] In accordance with these provisions, the Pennsylvania General Assembly enacted Section 404(d)(2) of the Law, 43 P.S. § 804(d)(2); in 1988, Section 404(d)(2) was amended to its present form, set forth in relevant part above.
Presently, the parties do not dispute that the pension at issue is maintained by a base period or chargeable employer. Rather, as previously stated, the controversy centers on whether the COLA give-back constitutes a "contribution" pursuant to state and federal law.[9] The Board found that it did.[10] We must affirm this adjudication unless we determine that: it violates the appellant's constitution rights; it is not in accordance with law; it was reached in violation of applicable administrative procedure; or any fact necessary to the decision is not supported by substantial evidence. See 2 Pa.C.S. § 704; Grieb v. UCBR, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). As the issue for review is one of statutory interpretation, it is a question of law subject to plenary review by this Court. See Navickas v. UCBR, 567 Pa. 298, 303, 787 A.2d 284, 288 (2001).
Presently, Claimant argues that the bargain reached by Employer and the Union resulted in an employee contribution because, pursuant to the 1980 agreement, he relinquished a contractually-guaranteed COLA in return for Employer's payment of the agreed sum into the pension plan. In this regard, he asserts that the COLA give-back was an indirect contribution, and emphasizes that, as in Ehman, this exchange was qualitatively different from the *100 "swapping of inchoate proposals during bargaining." Claimant urges, further, that the Law should generally be broadly construed to achieve its remedial purposes, and that a liberal construction is particularly appropriate in this instance because the 50 percent reduction of the offset applies so long as the employee contributed "in any amount." In further support of this interpretation, Claimant points to cases in which this Court has applied a broad construction to the Law's benefit-eligibility requirements. See, e.g., Navickas v. UCBR, 567 Pa. 298, 787 A.2d 284 (2001); Lopata v. UCBR, 507 Pa. 570, 493 A.2d 657 (1985); Penn Hills Sch. Dist. v. UCBR, 496 Pa. 620, 437 A.2d 1213 (1981). The Union, as amicus curiae, adds that the Commonwealth Court usurped the legislative role by crafting specific criteria to define when an employee should be deemed to have contributed to a pension plan. It also suggests that that court should not have relied upon decisions from other states, as FUTA leaves each state free to define what constitutes a contribution under its own legislation.
Employer responds that the general rule of broad construction is inapplicable in the present case, because the single statutory term under review contribute has a specific, technical meaning under the Internal Revenue Code (IRC) of which FUTA is part. Specifically, Employer suggests that non-contributory pension plans (those funded solely by an employer) carry substantial tax benefits for employees as compared to contributory plans (those to which employees make after-tax contributions), see generally Howell v. United States, 775 F.2d 887, 887 (7th Cir.1985) (explaining the tax advantages of non-contributory pension plans),[11] and that this may be one reason that the Union favored having Employer maintain the Plan as a non-contributory one.[12] Employer states that this technical understanding of an employee "contribution" was never challenged during decades of unemployment compensation practice until Ehman, and that the court in that case erroneously deviated from the common understanding of what it means for an employee to contribute to a pension fund. For its part, the Board avers that the Commonwealth Court's present holding comports with the plain meaning of the statutory text, and additionally expands upon that court's conclusion that the Ehman rule is unworkable:
To treat the wage concession as an employee contribution would create a nebulous and potentially inequitable test for pension offsets. In almost all wage negotiations, there are trade-offs between cash wages and fringe benefits. [Thus,] the funding of any pension plan necessarily diminishes employer resources from which higher cash wages could be paid. In theory, almost every pension recipient can argue that they [sic] would have received higher cash wages, if not *101 for the employer's agreement to fund their pension.
Brief for Appellee (Board) at 12.
Claimant's arguments are not entirely untenable. He did forego a COLA that was contractually guaranteed, rather than merely inchoate, in exchange for the Employer's payment of a sum certain into the Plan. In an indirect sense, then, he can be seen to have "contributed" to the Plan. Ultimately, however, we find Appellees' contentions more persuasive. Under a plain meaning analysis, the statutory term contemplates a direct, out-of-pocket contribution;[13] in this regard, the Board's concerns about line-drawing if we were to overlay the meaning of "contribute" with ascending levels of indirectness are well founded. Here, although the COLA give-back ultimately formed the basis upon which Employer agreed to make a lump-sum payment, it is uncontested that Claimant did not make any out-of-pocket monetary contributions to the Plan. Further, Employer was not a mere conduit through which a portion of the employees' salary flowed into the Plan: the prospective COLA funds were entirely foregone, and the agreement reached did not contemplate that those specific monies were to be deposited into the Plan.[14] We therefore find that an employee "contribution," as contemplated under Section 404(d)(2)(ii), 43 P.S. § 804(d)(2), does not encompass an employer contribution made in return for a COLA give-back, such as occurred here.
Contrary to Claimant's suggestion, moreover, this understanding of the statutory text is not inconsistent with this Court's prior decisions in which the Law's eligibility requirements have been interpreted broadly (through a strict construction of eligibility exclusions) to support the statute's remedial purpose. Thus, for example, the Court has: determined that a school bus driver who lost several non-consecutive days of work due to snow-related school closures was eligible for compensation because the Law did not specifically preclude benefits in that situation, see Penn Hills, 496 Pa. at 626, 437 A.2d at 1216; broadly defined and applied the term "credit week" as a condition of eligibility, see Lopata, 507 Pa. at 576-79, 493 A.2d at 661-62; and refused to interpret the benefit-disqualifying "willful misconduct" standard to encompass ordinary negligence, see Navickas, 567 Pa. at 308-09, 787 A.2d at 291; Myers v. UCBR, 533 Pa. 373, 381, 625 A.2d 622, 627 (1993); Grieb, 573 Pa. at 602-03, 827 A.2d at 427. An important motivating principle underlying all of these decisions is that the Law *102 was intended to address the problem of indigency which can result from the sudden loss of employment, and should be liberally construed in keeping with that policy. See generally 43 P.S. § 752 (setting forth the General Assembly's declaration of legislative policy); Penn Hills, 496 Pa. at 624, 437 A.2d at 1215 (stressing that the legislative policy declaration is a substantive aid to interpreting the Law's individual provisions).[15]
Here, however, broadly interpreting employee contributions under Section 404(d)(2)(ii) would not have a similar effect, as it would only increase the size of payments provided to already-eligible individuals who are receiving additional financial support from an independent source, rather than enlarging the set of out-of-work persons considered eligible for compensation in the first instance. See Penn Hills, 496 Pa. at 625, 437 A.2d at 1215-16 (clarifying that the rule of liberal interpretation, as applied to the Law, pertains to the question of eligibility for benefits). As the Commonwealth Court stated, this could have the effect of depleting the trust fund of assets that would otherwise inure to the benefit of persons who stand most in need of them due to the lack of a pension or any other independent source of income. See United States Steel, 817 A.2d at 1260; see also Penn Hills, 496 Pa. at 624, 437 A.2d at 1215 (stating that the Law's purpose is to provide "some semblance of economic security" to individuals who become unemployed involuntarily); Department of Labor and Indus. v. UCBR (Lybarger), 418 Pa. 471, 485, 211 A.2d 463, 470 (1965) (observing that, to draw upon the unemployment trust fund for purposes other than that for which it was designed jeopardizes its solvency and destroys its trust characteristics). In that sense, Claimant's proposed interpretation could have an opposite result to that which this Court deemed consistent with legislative intent in the cases upon which he relies.
It is also worth noting that, allowing a COLA give-back to qualify as an employee contribution would impose a substantial administrative burden upon the Board. See Peak v. UCBR, 509 Pa. 267, 273, 501 A.2d 1383, 1387 (1985) (describing the Board as a "busy agency, whose swift disposition of the many cases before it is vital to the subsistence of our fellow citizens who suffer lack of work"); McNeill v. UCBR, 510 Pa. 574, 579, 511 A.2d 167, 169 (1986) (explaining that the Board's procedural rules were designed to "provide for the quickest possible disposition of claims" in furtherance of the Law's goal of relieving economic insecurity); Merida v. UCBR, 117 Pa.Cmwlth. 181, 186, 543 A.2d *103 593, 595 (1988) (stating that the Board "receives thousands of appeals each year"). This, in turn, could potentially affect the Commonwealth's ability to comply with federal mandates. The reason is that, to maintain federal approval, a state's unemployment law and practice must, inter alia,"be reasonably calculated to insure full payment of unemployment compensation when due." 42 U.S.C. § 503(a)(1). The United States Supreme Court has interpreted this requirement to mean that states must ensure prompt administrative provision of unemployment compensation after an initial determination of eligibility. See California Dep't of Human Res. Dev. v. Java, 402 U.S. 121, 133, 91 S. Ct. 1347, 1355, 28 L. Ed. 2d 666 (1971); Fusari, 419 U.S. at 388 n. 15, 95 S. Ct. at 539 n. 15. As the Commonwealth Court recognized,
[w]here litigation involves exploring the basis for a collective bargaining agreement, which may require investigating poorly documented matters that might have occurred decades ago, discovery and litigation are severely hampered and unduly prolonged. We conclude that such a result was, in fact, not contemplated by our legislature when it passed the pension offset provision.
United States Steel, 817 A.2d at 1264 (emphasis in original). This conclusion is further supported by the General Assembly's decision to apply a 50 percent reduction in all cases involving employee contributions, rather than closely tailoring the offset to the size of the contribution; in particular, the 50 percent figure represents a midpoint mark and its general applicability suggests an intention to avoid time-consuming factual inquiries at the administrative level. Cf. United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 218, 121 S. Ct. 1433, 1444, 149 L. Ed. 2d 401 (2001) (recognizing, as an aid to construction of certain provisions of the IRC, that Congress wished to minimize complexity and administrative confusion).[16]
Finally, it is apparent from the congruity of the language in Section 404(d)(2) with that of the FUTA offset provision that the Legislature enacted the former with the objective of complying with the latter, so as to ensure continued federal certification. Indeed, Claimant concedes as much. See Brief for Appellant at 11.[17] It is therefore relevant that, after the Commonwealth Court filed its opinion in this matter, the United States Department of Labor issued a Program Letter addressing the precise legal issue raised here. The letter states, in pertinent part:
Question 4: During a collective bargaining process, employees may give up pay raises or cost of living adjustments in return for an increased employer contribution to the pension plan. May states *104 consider these employer payments to be "contributions made by the individual?"
Answer: No. The controlling factor is whether the individual actually made any direct contributions to the plan. A direct contribution is one made by payroll deduction or otherwise from an employee's personal funds. A wage agreement that results in increased employer contributions to a retirement plan in exchange for a surrender in wages does not constitute a direct contribution to the pension plan by the employees.
This is consistent with other provisions of federal law. The Department of Labor's Pension, Welfare and Benefits Administration (PWBA) considers contributions made by an employer to a pension fund in these cases to be employer contributions for purposes of laws administered by PWBA. (Indeed, the Form 5500, Annual Return/Report of Employment Benefit Plan, filed by the employer, should reflect this.) Also, payments made by an employer to a retirement plan are not considered part of an employee's wages for federal income tax purposes under Section 3401 et seq., of the Internal Revenue Code (IRC). It would be inconsistent to attribute these contributions to employees for purposes of Section 3304(a)(15), FUTA (which is itself part of the IRC), when other provisions of the IRC do not consider them employee contributions.
Department of Labor, Employment and Training Administration, Workforce Security Programs: Unemployment Insurance Program Letter Interpreting Federal Law, 68 Fed. Reg. 15241, 15242 (filed March 28, 2003) (the "DOL letter").
In light of the above, we believe it unlikely that the General Assembly would want the employee contributions referenced in Section 404(d)(2)(ii) of the Law to be understood any more broadly than the counterpart portion of FUTA. Therefore, consistent with FUTA's minimum pension offset requirements as interpreted by the Department of Labor, see Whitaker Borough v. Pennsylvania Labor Relations Bd., 556 Pa. 559, 565, 729 A.2d 1109, 1112 (1999) (recognizing the appropriateness of harmonizing the interpretation of state legislation with federal laws that serve similar ends), and for the other reasons expressed above, we find that, for purposes of Section 404(d)(2)(ii) of the Commonwealth's Unemployment Compensation Law, 43 P.S. § 804(d)(2)(ii), an employee contribution signifies a direct contribution made by payroll deduction or otherwise from an employee's personal funds. This determination: reflects the plain meaning of the statute's text; assists in maintaining federal certification of the state's unemployment scheme; and advances the Law's twin goals of preserving funds for those individuals who would otherwise be at the highest risk of indigency, and promoting administrative efficiency and promptness in the distribution of benefits.
Accordingly, we affirm the order of the Commonwealth Court reversing the orders of the Board, and remand the matter to the Board for further proceedings consistent with this Opinion.
Justice BAER files a dissenting opinion.
Justice BAER, dissenting.
Because I cannot agree with the Majority's conclusion that employees must lose credit for the payment of wages to their pension fund, where, as here, an employer, due to legal necessity, wrote the check that contributed employees' wages to employees' pension fund, I respectfully dissent.
The facts of this case are not in dispute. A 1977 agreement between the United Steelworkers of America (Union) and United States Steel Corporation (Employer) *105 provided for a $.33 per hour cost-of-living adjustment (COLA) on May 1, 1980. On April 15, 1980, Union agreed that employees would forego their $.33 per hour contractually guaranteed COLA in exchange for an immediate and direct Employer contribution to the U.S. Steel Carnegie Pension Fund (Fund), which provided pension benefits for both current and future employees. Employer then made the lump sum payment directly to the Fund.[1]
In 2001, Appellant[2] was retired from Employer and receiving a monthly pension benefit from the Fund when he applied for and was awarded unemployment compensation.[3] Thus, the question presented herein is whether Appellant's forbearance of his entitlement to a pay raise in direct consideration for Employer's contribution of the foregone raise to the Fund equates to an employee contribution to the Fund for purposes of Section 404(d)(2)(ii) of the Unemployment Compensation Law, 43 P.S. § 804(d)(2)(ii).[4] If so, in accordance with the above provision of the Unemployment Compensation Law, it is uncontested that Appellant is entitled to 100 percent of his compensation benefits. If not, it is uncontested that he is entitled to only 50 percent of such benefits.
A fundamental axiom of contract law is that any bargained-for exercise, such as forbearance of a legal right, is valid consideration. Restatement (Second) of Contracts § 71 (1981);[5]Hillcrest Foundation, Inc. v. McFeaters, 332 Pa. 497, 2 A.2d 775 (Pa.1938) (holding that valid "consideration" confers a benefit upon the promisor or causes a detriment to the promisee and must be an act, forbearance or return promise bargained for and given in exchange for the original promise); Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228, 1232 (1978) (citing Hillcrest Foundation); see also 3 Williston on Contracts § 7:43 (4th ed.) (2004) (noting that just as a promisor may make an agreement for acts or promises to act, so he may bargain for forbearances or promises to forbear. Forbearance from exercising a right or doing an act which one has a right to do is legal consideration). *106 This simple, fundamental, and legally uncontestable rule is applicable to this case.
One of Union's primary goals during the 1980 negotiations was enhancement of the Fund. To accomplish this goal, Union voluntarily relinquished its members', including Appellant's, contractually vested right to a wage increase, in exchange for Employer's contribution to the Fund. The quid pro quo in this instance is unique because it involved the give-back of a specific wage increase vested three years earlier in exchange for a specific contribution of a substantially similar, if not identical, amount to the Fund. If the law had permitted, Appellant could simply have accepted his COLA and contributed it directly to the Fund. Because direct contributions were not permitted, the Union representing Appellant was forced to resort to the mechanism of foregoing the pay raise and constructively contributing it to the Fund, necessarily having it pass through Employer's hands. This legal necessity should not obfuscate or subvert what is substantively a simple and straightforward transaction through which Appellant contributed his forthcoming raise to his pension fund.
The majority supports its conclusion, in part, by noting that almost all negotiations involve two sides trading wages for benefits, however, the case sub judice is wholly distinguishable from such a general exchange in this regard. It did not involve either vague assertions or a union directed contribution of employer's funds. Rather, here Appellant ceding his absolute right to the COLA that three years earlier had been guaranteed to him in return for the contribution of that COLA to his pension fund.
The Majority justifies its position of ignoring the contract between Union and Employer by repeatedly asserting the importance of ensuring continued federal certification of Pennsylvania's Unemployment Compensation Fund.[6] As the Majority notes, the United States Department of Labor issued a program letter within which the following question was asked and, in pertinent part, answered:
Question 4: During a collective bargaining process, employees may give up pay raises or cost of living adjustments in return for an increased employer contribution to the pension plan. May states consider these employer payments to be "contributions made by the individual?"
Answer: No. The controlling factor is whether the individual actually made any direct contributions to the plan. A direct contribution is one made by payroll deduction or otherwise from an employee's personal funds. A wage agreement that results in increased employer contributions to a retirement plan in exchange for a surrender in wages does not constitute a direct contribution to the pension plan by the employees....
The Majority apparently considers this question and answer as controlling Pennsylvania's fate vis-a-vis federal unemployment compensation funds. I do not. This case does not involve the general forbearance of a pay raise or COLA in exchange for an increased contribution to a pension as part of a new collective bargaining agreement. Instead, a COLA specifically agreed to three years earlier and otherwise unrelated to the ongoing bargaining *107 process was relinquished solely to permit such monies to be contributed to the Fund.
Moreover, the answer to Question 4 amplifies the federal government's misunderstanding of the situation. It opines that a direct contribution can only be made through a payroll deduction from employee's paycheck. However, as already noted, under the facts of this case Appellant can never direct that personal funds be contributed through a payroll deduction. If it were otherwise, Union would not have had to employ the mechanism that has resulted in Appellant's current situation. I do not believe that the federal program letter represents a clear answer to the facts before us or the answer that would necessarily be provided by a federal court considering this matter.
In conclusion, I would again note that this is an atypical contribution arising from unique negotiations. The Union wished to give back its COLA so that the pension fund would be bolstered. Employer was willing to act as the conduit to permit this to occur. It is erroneous to ignore the intent of the parties. Likewise, it is erroneous to compare this case to one where vague promises of benefits are exchanged for speculative wage increases. Appellant relinquished not a mere bargaining position, but an actual amount of money with present value that Employer was obligated to pay him. Thus, in my view, the COLA give-back should be considered an employee contribution to the pension fund, and Appellant is entitled to have the offset against his unemployment benefits reduced from 100% to 50%.[7]
NOTES
[1] Wilson has been selected as the lead claimant for the other appellants, who are similarly situated.
[2] The proper disposition of any excess monies that Claimant may have received prior to this reduction of benefits is not at issue in this case.
[3] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897 (as amended, 43 P.S. §§ 751-914) (the "Law").
[4] These provisions are only applicable if the retiree is "eligible" for unemployment compensation in the first instance. 43 P.S. § 804. See generally Warner Co. v. UCBR (Gianfelice), 396 Pa. 545, 552, 153 A.2d 906, 910 (1959) (finding a retiree eligible where his retirement was involuntary). The question of whether the present appellants were properly deemed eligible for unemployment benefits is not before this Court, however, as Employer did not contest their eligibility before the referee or the Board. See Wing v. UCBR, 496 Pa. 113, 117, 436 A.2d 179, 180 (1981).
[5] The Board issued similar orders in all of the matters presently under consideration, which were consolidated on appeal to the Commonwealth Court.
[6] Act of August 14, 1935, c. 531, 49 Stat. 620 (as amended, 42 U.S.C. §§ 301-1397jj).
[7] Act of August 16, 1954, c. 736, 68A Stat. 439 (as amended, 26 U.S.C. §§ 3301-3311).
[8] Thus, Section (a)(15) now states:
(a) Requirements. The Secretary of Labor shall approve any State law submitted to him, within 30 days of such submission, which he finds provides that
* * * * *
(15) the amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week except that
(A) the requirements of this paragraph shall apply to any pension, retirement or retired pay, annuity, or other similar periodic payment only if
(i) such pension, retirement or retired pay, annuity, or similar payment is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law), and
(ii) in the case of such a payment not made under the Social Security Act or the Railroad Retirement Act of 1974 (or the corresponding provisions of prior law), services performed for such employer by the individual after the beginning of the base period (or remuneration for such services) affect eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity, or similar payment, and
(B) the State law may provide for limitations on the amount of any such a reduction to take into account contributions made by the individual for the pension, retirement or retired pay, annuity, or other similar periodic payment[.]
26 U.S.C. § 3304(a)(15).
[9] As discussed more fully infra, the proper construction of federal law is relevant here because the present version of Section 404(d)(2)(ii) was passed in order to comply with Congressional mandates.
[10] The Board asserts that it considered itself bound by Ehman in its orders, but argued on appeal that the Commonwealth Court should overrule Ehman, which it considers to have been wrongly decided. See Brief for Appellee (Board) at 8-9.
[11] In Howell, the court pointed out that employers are generally indifferent between the two options of contributing to a pension fund on behalf of employees, versus paying a higher salary, some of which flows into the fund, as the amount ultimately placed in the fund constitutes a tax-deductible business expense in either case. See id.
[12] The dissent does not discuss this possibility and maintains instead that the employees wished to contribute to the pension fund directly, but were legally precluded from doing so. See Dissenting Opinion, ___ Pa. at ___, 858 A.2d at 106, 107. There is nothing in the record, however, to indicate that the employees wished to make direct contributions, or to suggest that, during collective bargaining, the parties could not have agreed to establish a contributory pension plan (or supplemental plan) so that the employees could forward their COLA monies directly into the pension fund.
[13] The Law and FUTA both define "contribution," but these definitions pertain to deposits into an unemployment compensation fund, not into a pension plan. See 43 P.S. § 753(g); 26 U.S.C. § 3306(g).
[14] The dissent supports its position that Employer was, in fact, simply a conduit for the waived COLA monies by asserting that the lump-sum contribution was "substantially similar, if not identical" to the amount of the COLA wages foregone. Dissenting Opinion, at ___, 858 A.2d at 106. However, the record contains no indication of the size of Employer's lump-sum contribution as compared to the monetary value of the waived COLA wages. Indeed, during bargaining the parties could not have known the cumulative value of such wages, as that sum would depend upon unknown future events, such as plant closings and openings, and employee hirings, resignations, terminations, retirements, and deaths. Thus, if the parties had wished Employer to be a mere conduit, they would have agreed to a scheme of continuing, smaller contributions in the amount of the foregone COLA wages. Additionally, although the COLA waiver can be seen as supplying consideration for Employer's lump-sum payment, as the dissent emphasizes, see id. at ___-___, 858 A.2d at 105-06, and as recognized above, the legal standard established by the General Assembly is not consideration, but contribution. See 43 P.S. § 804(d)(2).
[15] Section 752 states:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages by employes during periods when they become unemployed through no fault of their own. The principle of the accumulation of financial reserves, the sharing of risks, and the payment of compensation with respect to unemployment meets the need of protection against the hazards of unemployment and indigency. The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
43 P.S. § 752.
[16] Claimant also argues that indirect employee contributions should qualify because the 50 percent offset applies where the employee has contributed "in any amount." However, the "any amount" condition pertains to the size of the contribution, not the circumstances under which the employee should be deemed to have contributed.
[17] The Legislature's intention to comply with federal law generally is reflected in Section 207 of the Law, 43 P.S. § 767, which states that Pennsylvania's Secretary of Labor and Industry
shall cooperate with the [United States] Department of Labor to the fullest extent consistent with the provisions of this act, and shall take such action through the adoption of appropriate rules, regulations, administrative methods and standards, as may be necessary to secure to this Commonwealth and its citizens all advantages available under the provisions of the Social Security Act that relate to unemployment compensation, the Federal Unemployment Tax Act [FUTA], the Wagner-Peyser Act and the Federal-State Extended Unemployment Compensation Act of 1970.
43 P.S. § 767(a)(1).
[1] As pointed out by the Majority, the Fund is non-contributory and contributions to the Fund can only be made by Employer. Thus, employees did not have the option of accepting their COLA and contributing it to the Fund through payroll deduction or otherwise. The record does not reflect the mathematical computations of the Union's salary concession or the employer's pension contribution. However, there is no dispute that this was a quid pro quo exchange.
[2] While this case was brought by multiple parties, each presents the identical factual matrix. Accordingly, for ease of discussion, I will refer to Appellant(s) in the singular, as did the Majority Opinion.
[3] It is not clear from the record how it came to be that so many employees were receiving retirement pensions and were, nevertheless, eligible for unemployment compensation. However, this fact is uncontested.
[4] Section 404(d)(2)(ii) of the Unemployment Compensation Law, 43 P.S. § 804(d)(2)(ii), provides as follows:
If the pension is entirely contributed to by the employer, then one hundred per centum (100%) of the pro-rated weekly amount of the pension shall be deducted. If the pension is contributed to by the individual, in any amount, then fifty per centum (50%) of the pro-rated weekly amount of the pension shall be deducted.
[5] Restatement (Second) of Contracts § 71 (1981) provides:
(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
* * * * *
(b) a forbearance
[6] As explained in the Majority Opinion, under the joint federal-state undertaking of unemployment compensation, states reap substantial benefits so long as their unemployment laws remain in compliance with federal requirements as determined by the United States Secretary of Labor.
[7] By holding that the COLA give-back is not an employee contribution, the majority implicitly approves the Commonwealth Court's reversal of its prior decision in Ehman v. UCBR, 776 A.2d 1031 (Pa.Cmwlth.2001). I recognize that Ehman's reasoning is consistent with my view, and believe that the Commonwealth Court handled this issue correctly the first time it considered this matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2513233/ | 234 F.Supp.2d 401 (2002)
Adela Chiminya TACHIONA, et al., Plaintiffs,
v.
Robert Gabriel MUGABE, Zimbabwe African National Union Patriotic Front, Stan Mudenge, et al. Defendants.
No. 00 CIV. 6666(VM).
United States District Court, S.D. New York.
December 11, 2002.
*402 *403 *404 Paul Sweeney, Hogan & Hartson, L.L.P., New York City, Theodore M. Cooperstein, Theodore M. Cooperstein, P.C., Washington, DC, for Plaintiffs.
DECISION AND ORDER
MARRERO, District Judge.
TABLE OF CONTENTS
Page
I. BACKGROUND ...........................................................405
II. DISCUSSION ...........................................................406
A. LIMITATIONS OF CHOICE OF LAW .................................................406
*405
B. EMERGENCE OF FEDERAL COMMON LAW POST-FILARTIGA....................418
C. CHOICE OF LAW ANALYSIS AND APPLICATION OF THE
PERTINENT RULES OF DECISION ......................................420
1. Torture and Extrajudicial Killing .............................420
a. Tapfuma Chiminya Tachiona ..................................420
b. David Yendall Stevens ......................................421
c. Metthew Pfebve .............................................421
2. Denial of Political Rights ....................................423
a. The Restatement of Foreign Relations .......................426
b. The Civil and Political Rights Covenant ....................427
c. Recognition by Court and Other Adjudicatory Bodies .........430
d. Application to the Case At Bar .............................432
e. Zimbabwe Law ...............................................434
3. Cruel, Inhuman or Degrading Treatment .........................435
a. International Law ..........................................435
b. Zimbabwe Law ...............................................438
4. Racial Discrimination and Unlawful Seizure of Property ........439
a. Racial Discrimination ......................................439
b. Seizure of Property ........................................440
III. CONCLUSION .........................................................441
A. CLAIMS ONE AND TWO ..............................................441
1. Extrajudicial Killing ........................................441
2. Torture ......................................................441
B. CLAIMS THREE AND FOUR ...........................................441
1. Loss of Enjoyment of Political Rights ........................441
2. Loss of Property .............................................441
C. CLAIM FIVE ......................................................441
D. CLAIMS SIX AND SEVEN ............................................442
1. Systematic Racial Discrimination .............................442
2. Loss Home, Destruction of Business and Seizure of Property ...442
IV. ORDER ..............................................................442
I. BACKGROUND
Plaintiffs in this matter, all citizens of Zimbabwe, brought suit alleging violations of the Alien Tort Claims Act (the "ATCA"),[1] the Torture Victim Protection Act (the "TVPA")[2], fundamental norms of international human rights law, and Zimbabwe law. In a Decision and Order dated October 30, 2001, the Court dismissed on jurisdictional grounds Plaintiffs' claims naming as defendants Zimbabwe President Robert Mugabe ("Mugabe") and other Zimbabwe government officials entitled to invoke sovereign or diplomatic immunity. But the Court found a sufficient basis to exercise jurisdiction over the claims asserted against the Zimbabwe African National Union-Patriotic Front "ZANU-PF," the country's ruling party, through process personally served on Mugabe, who is also ZANU-PF's titular head.[3]
*406 ZANU-PF failed to answer the complaint or otherwise appear in the case and a default judgment was entered against it. The Court then referred the matter to Magistrate Judge James C. Francis, IV for an inquest on damages. ZANU-PF did not appear in that proceeding as well. Consequently, the Magistrate Judge issued a Report and Recommendation on July 1, 2002 (the "Report") recommending awards of damages on Plaintiffs' claims under both the ATCA and the TVPA. The Court, in a Decision and Order dated August 7, 2002, adopted the Report's factual findings and determination of damages relating to the torture and extrajudicial killing claims under the TVPA, but reserved judgment as to the award recommended under the ATCA.[4]
With regard to the ATCA claims, the Court determined that under its reading of applicable Second Circuit doctrine, as articulated in Filartiga v. Pena-Irala,,[5] it was required to perform a choice of law analysis to determine the appropriate substantive law governing the adjudication of ATCA disputes alleging human rights abuses.[6] The Second Circuit recently reiterated this approach. In dictum in Wiwa v. Royal Dutch Petroleum Co.,[7] the court construed Filartiga I to hold that the "ATCA establishes cause of action for violations of international law but requiring the district court to perform a traditional choice-of-law analysis to determine whether international law, law of forum state, or law of state where events occurred should provide substantive law in such an action."
Because the choice of law question had not been addressed in prior proceedings on this matter, the Court directed the parties to brief the issue. Plaintiffs submitted a timely response. ZANU-PF did not respond. Consequently, the Court regards Plaintiffs' factual assertions, and the materials describing the content and meaning of Zimbabwe law as it pertains to the proceeding now before the Court, as unrefuted and accords them appropriate weight.
Noting that each of the seven ATCA claims they assert describes conduct that violates substantive rights recognized by the Zimbabwe Constitution and applicable municipal laws, Plaintiffs urge the Court to approve the corresponding award of damages recommended by the Report. For the reasons described below, the Court adopts the recommendations of the Report with one modification.
II. DISCUSSION
A. LIMITATIONS OF CHOICE OF LAW
Plaintiffs contend that the Court's ATCA choice of law inquiry should focus on the existence of substantive rights violated by particular unlawful conduct and not on whether the law of the state where the alleged deprivation occurred recognizes specific causes of action defining those rights and prescribes particular remedies for their violation.
Before undertaking the choice of law analysis Filartiga I instructs, the Court is obliged, as a context for its ruling, to express some conceptual challenges and practical constraints the task inherently presents. At the outset, a central question raised by the endeavor is the purpose the choice of law findings are to serve. Does *407 the analysis compel the application of one forum's pertinent law in its entirety? Or is it to be employed, as Plaintiffs suggest, for comparative ends, to identify various sources of relevant substantive rights and principles from which the Court may draw in fashioning the ATCA remedy most appropriate under the circumstances of the case?
Ordinarily, a choice of law assessment weighs the competing interests of the different jurisdictions that may have significant contacts and relationships with a given legal dispute and substantial stakes in the outcome. The task presupposes that in considering the various claims for application of one forum's decisional rules as opposed to another's, the substantive local law applied would be that of the jurisdiction which, in the final analysis, possesses the most significant relationships with the parties and the events and thus the most extensive interests in the outcome of the litigation.[8] Consequently, the governing rules the inquiry would compel would encompass the entire body of local law that normally would be brought to bear domestically to fully resolve the merits of the controversy were it litigated in that jurisdiction.[9]
Under strict obedience to these choice of law doctrines, courts may not disregard applicable municipal law that the analysis points to as the substantive decisional rule, and instead pick and choose from among other doctrinal sources to tailor a remedy specific to the occasion. As the Supreme Court has observed: "The purpose of a conflict-of-laws doctrine is to assure that a case will be treated [in] the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum."[10]
The adoption of these principles as the product of a choice of law evaluation of an ATCA claim poses a significant quandary. In some cases the relevant municipal law of the jurisdiction where the events occurred and where the parties reside, and thus whose application may be demanded under traditional choice of law precepts, may be inadequate or may conflict with federal principles embodied in the ATCA, or with international norms. In consequence, circumstances may arise, as in the instant case, in which rigid adherence to that local law may defeat the purposes of the ATCA.[11]
The rub here arises because a strict reading of Filartiga I may suggest the possibility of such an outcome. In pointing to the distinction between the ATCA jurisdictional threshold, which requires consideration of international law, and the question of the substantive law to be applied to determine liability, the Second Circuit indicated that the choice of law inquiry is "a much broader one, primarily *408 concerned with fairness."[12] The Circuit Court then intimated that in performing the choice of law assessment on remand, the district court could very well decide that considerations of fairness would require application of municipal law of the foreign state where the events occurred, in which event "our courts will not have occasion to consider what law would govern a suit under the [ATCA] where the challenged conduct is actionable under the law of the forum and the law of nations, but not the law of the jurisdiction in which the tort occurred."[13]
This Court, in performing the requisite choice of law inquiry in the instant case, grappled with the meaning and implications of the Filartiga I court's mandate. Under traditional choice of law inputs relevant to the matter at hand, the United States has a significant interest in providing a forum for the adjudication of claims under the ATCA alleging certain violations of international human rights law, thereby advancing the realization of the values embodied in universally recognized norms.[14] However, given the jurisdictional facts present here, Zimbabwe would have the predominant interests in the adjudication of this case pursuant to Zimbabwe law. All of the Plaintiffs are citizens of Zimbabwe. ZANU-PF is the country's ruling political party, headed by Mugabe. All of the events Plaintiffs describe as constituting the actionable conduct and corresponding injuries occurred in Zimbabwe, arising out of political conflicts and social conditions prevailing there. Thus, the pertinent relationships between this action and the parties and underlying events are predominantly connected with Zimbabwe.[15] Zimbabwe therefore has a strong interest in the application of its local law to the resolution of a controversy so fundamentally rooted in that country.
But what decisional rules should apply if, as discussed below, the governing law of Zimbabwe, while in general terms recognizing some of the rights Plaintiffs invoke here under the ATCA, does not define specific causes of action to vindicate the particular claims asserted, or does not permit recovery of the kinds of damages Plaintiffs seek, or may otherwise bar liability, so that the effect of applying the entire municipal law of Zimbabwe to address the violations of international law here alleged would be to defeat some or all of Plaintiffs' claims and thus the remedy the ATCA contemplated?
Similar concerns have been articulated by other courts that have encountered and addressed these complexities in determining the source of substantive law to apply in adjudicating ATCA claims. The doctrinal underpinnings of the dilemma is best captured in the divergent approaches expressed by the concurring opinions of the Circuit Court in Tel-Oren v. Libyan Arab Republic,[16] as to whether the ATCA, beyond *409 conferring federal court jurisdiction, creates a cause of action, and as to the sources of any substantive decisional rules governing suits invoking the statute.
As a threshold matter, as Judge Bork observed, international law ordinarily does not create causes of action conferring upon individuals a self-executing right to sue to vindicate particular violations of universally recognized norms.[17] Rather, many international human rights instruments merely enunciate in expansive generalities particular principles, aspirations and ideals of universal and enduring significance. These sources serve as fonts of broadly accepted behavioral norms that nations can draw upon in carrying out their obligations to their peoples. International law ordinarily leaves it to each sovereign state to devise whatever specific remedies may be necessary to give effect to universally recognized standards.[18] As noted by a leading commentator: "International human rights instruments do not legislate human rights; they `recognize' them and build upon that recognition [ ]," which assumes the human rights' "preexistence in some other moral or legal order."[19]
To these ends, various international declarations, covenants and resolutions catalogue rights all persons should enjoy; affirm the obligations of nations to ensure those rights by means of implementing legislation; exhort governments to protect and promote widely recognized rights; and pronounce the global community's condemnations and renunciations of wrongful practices.[20] In the words of Judge Bork: "Some define rights at so high a level of generality or in terms so dependent for their meaning on particular social, economic and political circumstances that they cannot be construed and applied by courts acting in a traditional adjudicatory manner."[21]
*410 These norms and practices acquire the status of customary "law of nations" only insofar as they ripen over time into settled rules widely recognized and enforced by international agreements, by judicial decisions, by the consistent usage and practice of states and by the "general assent of civilized nations."[22]
But, because such customary principles and practices of sovereign states do not derive and acquire the status of law from the authoritative pronouncements of any particular deliberative body, they generally do not create specific "causes of action" or a self-executing right to sue entitling victims to institute litigation to vindicate violations of international norms.[23] As one court expressed this point: "While it is demonstrably possible for nations to reach some consensus on a binding set of principles, it is both unnecessary and implausible to suppose that, with their multiplicity of legal systems, these diverse nations should also be expected or required to reach consensus on the types of actions that should be made available in their respective courts to implement those principles."[24]
Nonetheless, under Filartiga I, certain wrongful conduct violates the law of nations, and gives rise to a right to sue cognizable by exercise of federal jurisdiction under the ATCA, when it offends norms that have become well-established and universally recognized.[25]
The Filartiga I court, however, did not explicitly address whether the federal right of action it inferred existed under the ATCA in fact derives from and is to be substantively adjudicated by principles drawn from international law or from federal or municipal law. Manifesting some ambiguity on this point, the court construed the ATCA "not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law."[26] Rather, as stated above, the Second Circuit directed that once federal jurisdiction is properly exercised by means of the threshold determination that the claimant has asserted a recognized violation of international law, the rules of decision applicable to adjudication of the case must be decided by a choice of law inquiry employing the considerations set forth in Lauritzen.[27]
*411 In his Tel-Oren concurrence, Judge Edwards endorsed the view of the Second Circuit that ATCA itself creates a right to sue for alleged violations of the law of nations.[28] He voiced a reservation, however, that the Filartiga I formulation "is not flawless" and recognized that the task the ruling entrusts to the district court at the threshold jurisdictional finding is daunting.[29] On this point, he noted that the Filartiga I approach "places an awesome duty on federal district courts to derive from an amorphous entityÔÇöi.e., the `law of nations'ÔÇöstandards of liability applicable in concrete situations."[30]
The difficulty inherent in the Filartiga I charge is compounded by the second phase of the inquiry the ruling mandates, that of deciding the substantive standards to apply in evaluating ATCA claims involving human rights abuses. The challenge has engendered significant conceptual division and divergent practices among the courts that have addressed the question. In Tel-Oren, for example, Judge Edwards suggested, as an alternative formulation to the Filartiga I approach, that litigation may be brought under ATCA asserting substantive rights of action defined as common law torts, with the rules of decision supplied by domestic law of the United States, as long as a violation of international law is also alleged.[31] The alternative also has been the subject of considerable differences among the courts and has generated numerous permutations and adaptations variously applying, as the basis of substantive law in ATCA adjudications, rules of decision drawn from: federal common law; the forum state; the foreign jurisdiction most affected; international law; or a combination of these sources.
In Adra v. Clift,[32] for example, the court applied the alternative formulation where the tort, that of abducting a child from a parent entitled to custody, was defined by municipal law, and the violation of the law of nations consisted of the misuse of a passport as the means to carry out the wrongful conduct. A variation of this approach was followed in Trajano v. Marcos,[33] where the Ninth Circuit endorsed the district court's application of the Tel-Oren alternative as modified to rely upon the domestic law of the foreign jurisdiction, rather than that of the United States, to provide the cause of action. But in Doe v. Unocal Corp.[34] the Ninth Circuit determined the liability of a private third-party in an ACTA claim by reference to international law, rather than the municipal law of the foreign state, or federal or forum state law, where the alleged violations implicate only peremptory norms (jus cogens).[35] In *412 Hilao v. Marcos,[36] another panel of the same court held that ATCA creates a cause of action for violations of universal human rights standards and applied federal law to decide a survival of claim issue without any choice of law analysis or review of municipal law.
In Xuncax, however, the court rejected the domestic law right to sue alternative in favor of a different approach. The court applied violations of international law as the basis for both the exercise of ATCA jurisdiction and as the source of the pertinent substantive cause of action "without recourse to other law".[37] Noting that municipal law may be inadequate to address in a meaningful way alleged violations of international human rights, the court suggested that under the approach it proposed "courts will be freer to incorporate the full range of diverse elements that should be drawn upon to resolve international legal issues than they would if bound to straightforward recurrence to extant domestic law."[38]
In Wiwa, the Second Circuit acknowledged these fundamental qualms and alternative formulations, but declined to reach the issue because its decision to sustain ATCA jurisdiction in the case before it was based on other grounds.[39] However, several considerations counsel against a narrow reading and rigid application of Filartiga I as compelling unyielding allegiance to municipal law derived from choice of law analysis to supply the exclusive substantive cause of action and rules of decision governing adjudication of the merits of international human rights claims invoking the ATCA.
First is the treatment of the issue by the district court on remand. Grappling with the difficulties its mandate from the Second Circuit presented, Judge Nickerson addressed the open questions head on.[40] While conducting the choice of law analysis enunciated by the Circuit Court's ruling, Judge Nickerson considered whether the "tort" to which that statute refers means "a wrong `in violation of the law of nations' or merely a wrong actionable under the law of the appropriate sovereign state?"[41]
Judge Nickerson responded to this question by determining that the court's inquiry was not circumscribed by, nor did it necessarily end with, the municipal law of the foreign state where the alleged international tort occurred. The interests of the foreign state were relevant in this context, but only "to the extent they do not inhibit the appropriate enforcement of the applicable international law or conflict with the public policy of the United States."[42] Rather, the district court determined that definition of the relevant wrongful conduct should be guided by the norms and practices universally recognized by the international community, and not by the laws of a particular state. "[W]here the nations of the world have adopted a norm in terms so formal and unambiguous as to make it international `law,' the interests of the global community transcend those of any one state."[43] Consistent with these principles, Judge Nickerson found that:
*413 [T]here is no basis for adopting a narrow interpretation of [the ATCA] inviting frustration of the purposes of international law by individual states that enact immunities for government personnel or other such exemptions or limitations. The court concludes that it should determine the substantive principles to be applied by looking to international law, which, as the Court of Appeals stated, "became a part of the common law of the United States upon the adoption of the Constitution."[44]
According to the broader view of the scope of the ATCA that Judge Nickerson propounded, Congress entrusted to the federal courts the task of determining the substantive rights to be applied to ATCA claims by reference to international standards, as well as the "power to choose and develop federal remedies to effectuate the purposes of the international law incorporated into United States common law."[45] On this basis, the district court determined that the laws defining substantive rights recognized by the foreign state in the case before it (Paraguay) prohibited torture. The court applied that body of law to determine liability, but also found no provision in it authorizing punitive damages. Nonetheless, Judge Nickerson awarded such damages in order to effectuate the federal policy embodied in the ATCA and the clear objectives reflected in the international prohibition against state-promoted torture.[46]
Second, the broader approach adopted by the district court in Filartiga II has gained recognition and acceptance by other federal courts that have considered ATCA claims in the face of inadequate or conflicting municipal law of the foreign state. Under these circumstances, rather than relying wholesale on foreign municipal law, the courts uniformly have undertaken to fashion a remedy by reference to the full range of available decisional guides and sources, in particular principles derived from federal common law. These precedents speak to the shortcomings of an approach that would compel an undeviating or even primary reliance on municipal law to adjudicate claims under the ATCA.
In Xuncax, for example, given the ATCA's silence concerning a claimant's standing to bring suit to vindicate harms to another victim, the district court sought a suitable rule of decision to adjudicate claims for summary execution and disappearance based on injuries to third persons. Relying on the doctrine that where federal legislation creates a cause of action without specifying vital details the courts look to analogous state law insofar as it would not defeat the purposes of the federal statute, the Xuncax court determined that the TVPA provided the most analogous remedy.[47] The court also invoked the TVPA to apply Guatemala law, rather than a forum state rule of decision which would have barred recovery, to decide the right of a sibling to sue under the ATCA.[48]
*414 Similarly, in Forti I the district court faced a choice of whether to apply a federal or state limitations period. It found a germane analogy in the federal Civil Rights Act,[49] and did not feel compelled to look beyond the relevant body of federal law to formulate an appropriate decisional rule.[50]
Third, several conceptual, policy and practical constraints caution against strict adherence to municipal rules of the foreign state in defining the scope of substantive rights and causes of action to be applied in adjudicating ATCA claims, and counsel instead a measure of flexibility, as reflected by the cases cited above, to enable the courts to fashion remedies compatible with the principles of federal common law and the content of universally recognized norms of international law.
Just as the sources from which universal norms of international conduct derive are often articulated as generalities or conclusory precepts, equally so many principles of the organic law of sovereign states are typically expressed in terms that are no less sweeping nor any more self-executing. Pronouncements recognizing fundamental rights governing the state's conduct in relation to its people are not always accompanied by corresponding promulgations of specific definitions and causes of action authorizing enforcement through private suits. In consequence, in their assessments of ATCA claims, courts looking to foreign municipal law are likely to encounter common situations, as experienced in the cases discussed above and by this Court in reviewing principles of Zimbabwe law in the matter at hand, that raise significant choice of law impediments to the application of the ATCA and hinder the furthering of the goals of international standards.
The municipal law, for example, may manifest general domestic recognition of a fundamental norm without specifically elevating it further into a defined private right of action. Local rules may also provide a remedy that may not suffice to adequately highlight and respond to the gravity of the conduct and the import of the case. Or else the foreign law may contain no relevant decisional rule at all. Or it may provide a standard that, if applied to adjudicate specific ATCA claims, would dispose of the case in a manner that would defeat a remedy consistent with fostering the purposes of federal and international law. As succinctly phrased by the Xuncax court: "Simply put, municipal law is ill-tailored for cases grounded on violations of the law of nations."[51]
This situation may prevail for several reasons. Even todayÔÇödespite evidence of more widespread recognition of universal standards through the proliferation of international instruments among the many sovereign nations in the world, with their multiplicity of histories, cultures and customs, and diverse stages of developmentÔÇö there are many jurisdictions in which the rule of law as we know it remains a relatively recent and still incipient adaptation. Thus, in these states the enunciation of substantive definitions, and elaboration of causes of action and corresponding decisional rules necessary to govern all aspects of the full range of mature, enforceable *415 rights common in our jurisprudence, remain at various rudimentary stages, if they exist at all.
Another limitation inherent in placing undue reliance on municipal law of the foreign state in choice of law analysis is reflected in actions, such as the case at bar, that charge egregious misconduct by the sitting government itself through measures taken by the highest ranking officers of the regime. These are the very officials whose public duties encompass enacting, enforcing and construing domestic laws, and deciding the state's compliance with international norms. It is unlikely to escape the notice of government leaders who defile the powers of their offices by resorting to the barbarism of state-sponsored torture and murder, and to the brutalities characteristic of inhuman treatment of their nation's own people, to equally dishonor the municipal justice system and its laws in order to immunize themselves from accountability and liability for their wrongs. Doctrines such as absolute or qualified immunity for the state and government personnel, statutes of limitations, and definitions of state action and other exemptions, may be easily perverted by self-serving enactments specifically designed to shield the misconduct of the selfsame offenders whose deeds define the deviation from universal norms, thereby subverting international law. Were the federal courts obliged to give unremitting recognition and deference to the substantive laws and defenses compelled by municipal law under a choice of law analysis, in some instances such application of foreign law could frustrate the right of action the ACTA was designed to confer upon the victims of international lawlessness.
Moreover, as described above, well-established, universal, and obligatory norms defining rules of international conduct, evolve by custom and usages of nations over time. They are further elaborated by the works of reputable jurists and scholars and settled through longstanding practice and application in judicial decisions recognizing and enforcing those rules.[52] In consequence, because customary international norms are not always fixed in codifications or treaties, not every nation will necessarily reflect clearly in its domestic jurisprudence principles that manifest its unequivocal assent and adherence to universal standards that may override municipal rules.
By the same token, under customary practice in many global bodies, the declarations, resolutions and covenants that embody international practices are adopted by consensus. This procedure, while giving some legitimacy to the content of the instrument as evidence of broad recognition, at times conceals the degree of unstated reservations or dissent among regimes that do not voice their objections and instead silently join the consensus in response to the pushes and pulls of internal and external social and political pressures. Accordingly, while it may be expedient for a state to refrain from objecting to the international community's promulgation of particular standards to govern relations among nations and their subjects, its tacit acceptance does not always translate into enactment of corresponding municipal law giving meaning and force to the generalities articulated in the instruments with which the state publicly associates itself.
Thus, a gap sometimes exists between the public concurrence the state professes abroad to norms of international conduct in their relations with the community of nations and the measures it actually adopts at home to enable its people to *416 realize the benefits of those universal rules. It is not uncommon in international practice for states to pay lip-service homage to the promulgation of particular international instruments, and even to ratify binding covenants, but then delay or fail altogether to adopt the municipal implementing legislation necessary to give the enunciated international rights meaningful domestic legitimacy and create an effective national means to vindicate them.[53]
For much of the same reasons, adjudication of claims that assert violations of customary international law and seek to vindicate universally recognized rights often engenders conceptual anomalies between the gravity of the offenses, the high promise conveyed in lofty terms by universally recognized rights, and the limited scope of available municipal remedies. Human rights offenses universally held to contravene the law of nations occupy the low ground reserved by civilized people to rank the most heinous of human behavior. Typically these wrongs are correspondingly branded in language employing the most profound opprobrium, fittingly portraying the depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce. These expressions mark the high stakes enshrined by universally outlawed practices such as genocide; slavery; torture; summary execution; forced disappearance; war crimes and crimes against humanity.[54]
Between the horrid deeds these recognized atrocities proclaim, and the ringing words and promises with which they are universally condemned and renounced in solemn international instruments, lies a reality: that extant municipal law may not be available or may lag behind the need in providing adequate or readily accessible remedies to redress universally recognized wrongs, and that not infrequently, in the absence of any particular right of action specifically defined and promulgated to fit the real wrongs at hand, such means of relief as may exist are achieved only by Procrustean analogies that do not always capture or do justice to the actual grievousness associated with the offenses. Thus, for example, under municipal law of some jurisdictions, the magnitude of genocide and murder by torture and extrajudicial killing may have to be adjudged and remedied in accordance with ordinary civil tort standards prescribed in wrongful death statutes. Wholesale degradations and deprivations of all traces of human dignity perpetrated by cruel, inhuman or degrading treatment may be civilly prosecuted under local principles defining assault and battery or infliction of emotional distress. Forced disappearance and prolonged arbitrary detention may be classified as false imprisonment.[55]
To be sure, some aspects of international offenses may share elements with the ordinary municipal law torts. But, in *417 practice, the acute form of misconduct entailed in international violations in many cases amounts to more than mere differences in degree, and assumes differences in kind so fundamental as to compel distinct treatment under universally recognized rules. The "enemy of all humankind", in legal if not in genetic terms, often ranks as a different species from the ordinary tortfeasor of the typical case.[56] Equally so is the class of universal rules that outcast the international outlaw, and thus declare him unworthy of all sovereign protections, distinguished from the global community's exhortations of aspirational norms or even from customary international law.[57]
The difficulties, as evidenced by the courts that have addressed the issues, arise not merely as a question of semantics that demean the international standards. Rather, the greater concern lies in potential results that could frustrate efforts to fashion relief commensurate with the real repugnance of international wrongs and their profound effects, in other words, remedies that do not vindicate and recompense the victims of state-sponsored genocide and murder as if they had suffered nothing more than common law defamation and battery.[58]
Tel-Oren, for example, involved what Judge Edwards characterized as a "barbaric rampage" in which terrorists took 121 civilians hostage and "tortured them, shot them, wounded them and murdered them," killing 22 adults and 12 children and seriously wounding 73 adults and 14 children, before police managed to stop the "massacre."[59] Although the dismissal of the case was sustained on substantive grounds, the district court had ruled alternatively that the action was also barred by the local one-year statute of limitations applicable to certain torts, such as assault and battery.[60]
For the same reasons, other courts, in order to reflect the true magnitude of the universally recognized wrongs at issue and confer relief proportionate to the harms engendered, have felt compelled to pick and choose from among available remedial options one that advances the purposes of the ATCA and international law, in doing so sometimes ignoring constraints of municipal law to fashion relief even when the foreign law did not specifically recognize a remedy. The underlying decisional rules at issue in these cases have involved, for *418 example, survival of a cause of action after defendant's death;[61] the right of a sibling of the victim to bring an action under the ATCA;[62] the applicable statute of limitations;[63] and punitive damages.[64]
A final drawback to a choice of law approach mandating strict adherence to municipal law in redressing international law violations in ATCA cases is the practical and jurisprudential complexities that inhere in discerning, construing and enforcing substantive rules of decision formulated by foreign courts, legislatives or administrative bodies.[65] The intricacies and challenges are compounded in ATCA adjudications by the integral links and interplay that exist between the application municipal and international law for both jurisdictional and decisional purposes. Though the Federal Rules of Civil procedures provide guidance for federal courts in applying foreign law,[66] this authority does not mitigate the conceptual and pragmatic obstacles always associated with in the task.
B. EMERGENCE OF FEDERAL COMMON LAW POST-FILARTIGA
In synthesis, the foregoing case law reflects the emergence of a set of decisional rules federal courts have crafted to give scope and content to the cause of action the ATCA creates as it relates to international human rights law. Under these principles, as regards to misconduct that violates universally recognized norms of international law, the cases suggest several standards to guide ATCA choice of law determinations: (1) the local law of the state where the wrongs and injuries occurred and the parties reside may be relevant and may apply to resolve a particular issue insofar as it is substantively consistent with federal common law principles and international law and provides a remedy compatible with the purposes of the ATCA and pertinent international norms;[67] (2) in the event the local law of the foreign state of the parties' residence and underlying events conflicts with federal or international law, or does not provide an appropriate remedy, or is otherwise inadequate to redress the international law violations in question, a remedy may be fashioned from analogous principles derived from federal law and the forum state, or from international law embodied in federal common law;[68] (3) should the application of law from federal and forum state principles as to some aspect of the claim defeat recovery, an analogous rule drawn from the municipal law of the foreign jurisdiction may be applied to the extent it supplies a basis for a decisional rule that *419 may permit relief;[69] (4) if some part of the claim cannot be sustained as a violation of international law, a remedy might be found by application of the foreign state's municipal law under the federal court's pendent jurisdiction if so invoked.[70]
In essence, what these precedents represent is the natural evolution of common law, and the organic branching of federal substantive rules through the ATCA, which "established a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law."[71] This growth of federal decisional law gives expression to the longstanding principle that the law of nations has always been part of federal law.[72]
As a body of federal law develops under this approach, so as to give content to an ATCA right of action and thus fill in the interstices with federal decisional rules, the federal courts' response acquires the virtues of uniformity and recognition of more diverse sources of substantive standards to draw upon in shaping remedies for adjudication of ATCA claims. The advantages of this approach were noted by the Xuncax court's observation that: "[b]y not tethering [the ATCA] to causes of action and remedies previously developed under roughly analogous municipal law, federal courts will be better able to develop a uniform federal common law response to international law violations, a result consistent with the statute's intent in conferring federal court jurisdiction over such actions in the first place."[73]
Finally, a recent Second Circuit explication of Filartiga I is consistent with a reading that in appropriate cases would permit a choice of law determination not necessarily compelling dispositive application of foreign law where the municipal rule of decision may conflict with federal law or international standards. In Wiwa, the Circuit Court noted that under the choice of law analysis required by Filartiga I, the district court would determine whether international law, the law of the forum, or the law of the state where the events occurred should provide the substantive law to adjudicate the action.[74]
Wiwa acknowledges significant developments in the progression of international human rights law since Filartiga I was decided that affect the application of the doctrine enunciated by that case. Most significant of these advances was the enactment of the TVPA in 1991, which the Wiwa court construed as both ratifying the holding in Filartiga I and significantly carrying it further.[75] The court noted that the TVPA not only grants federal jurisdiction, but makes it clear that it creates liability under United States law for torture and extrajudicial killing, and extends its remedy not just to aliens but to any individual.[76] "The TVPA thus recognizes what was perhaps implicit in [the ATCA]ÔÇö *420 that the law of nations is incorporated into the law of the United States and that a violation of international law of human rights is (at least with regard to torture) ipso facto a violation of U.S. domestic law."[77]
Implicit in all of these developments is that whatever virtue the Lauritzen choice of law analysis may have in the context of a maritime case, the evolution of international human rights law in the light of contemporary realities as reflected in the Second Circuit's recognition of these developments, points to the necessity of staking out a more flexible course in the determination of the substantive law to be applied in adjudicating ATCA cases. Against this more ample exposition of the considerations that guide its decision, the Court proceeds to conduct its choice of law inquiry as it pertains to Plaintiffs' ATCA claims.
C. CHOICE OF LAW ANALYSIS AND APPLICATION OF THE PERTINENT RULES OF DECISION
Having examined the pertinent provisions of the Zimbabwe Constitution and relevant legal doctrine called to the Court's attention in Plaintiff's submission,[78] the Court is persuaded that this authority, though not explicitly creating defined causes of action as to all claims, sufficiently proscribes wrongful conduct and protects substantive rights encompassing Plaintiffs' claims asserting (1) torture and extrajudicial killing, (2) cruel, inhuman or degrading treatment, (3) denial of political rights, and (4) systematic racial discrimination. The Court is not persuaded that a sufficient basis for recovery exists under international law for Plaintiffs' claims asserting uncompensated seizure of their property. However, Plaintiffs have also sufficiently established legitimate grounds for recovery on their expropriation claims under Zimbabwe law.
1. Torture and Extrajudicial Killing
In their Claims One and Two, Plaintiffs seek monetary relief under the TVPA and ATCA to redress the torture and extrajudicial killing of Matthew Pfebve, David Stevens and Tafuma Chiminya Tachiona. The Magistrate Judge found that these individuals had been subjected by an organized mob of ZANU-PF members to severe pain and suffering by means of torture before being brutally murdered.[79] Specifically, the Magistrate Judge found as follows:[80]
a. Tapfuma Chiminya Tachiona
Tapfuma Chiminya Tachiona was a founding member of the [Movement for Democratic Change "MDC"], the National Youth Organizer for the MDC, and a close companion of Morgan Tsvangirai, the President of the MDC. On April 15, 2000, whole Mr. Chiminya was campaigning with Mr. Tsvangirai, a group of ZANU-PF supporters attacked them. Managing to escape, Mr. Chiminya drove injured colleagues to the hospital, after which he reported the incident to the police. On his way home from the police station, he and two other *421 MDC supporters, Sanderson Makombe and Talent Mabika, were again stopped by ZANU-PF members, who began attacking them with knives and sticks. Mr. Makombe was able to escape through the window of the vehicle and hid in the nearby brush, but Mr. Chiminya and Ms. Mabika remained trapped inside the truck as the assailants continued to beat them. Mr. Chiminya was hit repeatedly in the head with the butt of a gun, according to Mr. Makombe. At that point, the assailants doused the vehicle with gas, causing the whole truck to go up in flames. The attackers then jumped in their vehicle and fled, soon after which Mr. Chiminya and Ms. Mabika managed to tumble out of the burning truck. Mr. Chiminya "was just like a ball of flames running across the tarred road," according to Mr. Makombe. He ran toward a field and collapsed, but died before Mr. Makombe could reach him.
b. David Yendall Stevens
David Stevens and his wife, Maria, owned a private commercial farm in Zimbabwe. Mr. Stevens was a known supporter of the MDC. On February 12, 2000, their farm was invaded by twenty-six ZANU-PF and ZWVA members and supporters. After that initial invasion, there have been a number of incidents of violence. For example, on two occasions, several female farm workers were assaulted and on one occasion, one was raped. Complaints to the police went unheeded.... On April 15, 2000, ZANU-PF and ZWVA members killed the Stevens' dog and abducted David Stevens and five others. All six were severely beaten and tortured, and Mr. Stevens was forced to drink diesel oil.
Several of Mr. Stevens' neighbors observed the kidnapping and attempted to come to his aid by following his abductors to the police station. Once there, they were taken hostage as well, bound with rope, and driven away in two different vehicles. The men were tortured in a variety of ways, including being burned with cigarettes; beaten on the soles of their feet; beaten with rods, rocks and iron bars; hit in the face; and whipped with a fan belt from a car. In addition, their legs were cut with knives and they were threatened with having their ears and testicles cut off. Mr. Stevens was summarily executed later that same day.
c. Metthew Pfebve
[O]n April 29, 2000, ZANU-PF supporters approached the Pfebve home wielding axes, spears, sticks, and stones. The Pfebve family ran in different directions. Metthew Pfebve's mother managed to run into the outhouse, but was eventually found and pelted with stones by the assailants. The plaintiff and his father were attacked with stones, sticks and fists, then dragged down the road. The plaintiff's father was eventually dropped unconscious on the road, suffering deep lacerations to his head and several broken fingers. Meanwhile, Metthew Pfebve was carried away by the assailants. He was found dead the next day, naked and lying in the middle of the road, approximately one and one-half kilometers from his home. He had been severely beaten. The plaintiffs allege that he was in all likelihood tortured prior to his death at or nearby a primary school which the defendant had turned into a torture camp.
To vindicate Plaintiffs' rights asserted in Claims One and Two, the Magistrate Judge recommended recovery of compensatory and punitive damages against ZANU-PF under both the TVPA and the ATCA. In Tachiona III, the Court *422 adopted the Report's recommendation of damages with regard to Plaintiffs' claims of torture and extrajudicial killing under the TVPA.[81]
In considering Plaintiffs' Claims One and Two under the ATCA, the Court notes that the Zimbabwe Constitution contains provisions that explicitly prohibit both torture and extrajudicial killing. Article 12(1) states that "No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offense of which he has been convicted."[82] Similarly, Article 15(1) declares in relevant part, with elaborations and exceptions not pertinent here, that: "No person shall be subjected to torture[.]"[83] To vindicate rights protected by these provisions, the Zimbabwe legal system establishes civil remedies for victims of certain unlawful deprivations of an individual's rights to life, person or property, as well as for infringements of dignity, reputation or liberty, committed by intentional conduct, including assault, extrajudicial killing and murder.[84] These remedies enable claimants to recover both compensatory and punitive damages from the wrongdoers. The Court finds this authority sufficient to sustain the Magistrate Judge's recommendation of awards under ATCA of compensatory and punitive damages on Plaintiffs' claims of torture and extrajudicial killing.
Plaintiffs point out that their claims for torture and extrajudicial killing were filed under both the ATCA and the TVPA. They therefore urge that in addition or alternatively the Court consider the damages Plaintiffs are entitled to recover under the TVPA as undifferentiated damages awarded under the ATCA as well. The Court agrees.
In enacting the TVPA to effectuate this country's commitments under the Torture Convention, Congress gave express definition to causes of action arising under United States law specifying substantive rights and protections of individuals to be free from state-sponsored torture and extrajudicial killing.[85] The Second Circuit has construed this Congressional mandate as embodying recognition that these actions, when committed by foreign states under color of law in violation of international law, "is `our business,' as such conduct not only violates the standards of international law but also as a consequence violates our domestic law."[86] The Circuit Court thus not only gave expression to Congressional intent favoring the adjudication of TVPA claims in federal courts as a matter of United States policy, but also implicitly recognized that in considering the substantive law governing a cause of action invoking the TVPA the courts may apply federal law rights embodied in the TVPA's definitions of torture and extrajudicial killing to adjudicate the dispute.
The practical effect of this approach is to obviate the need, in connection with torture and extrajudicial killing claims asserted under the TVPA and the ATCA, to *423 conduct and adhere to a strict choice of law analysis in accordance with Filartiga I, and to offer the courts the ability to apply substantive rights defined by federal law in cases where the law of the foreign state in question may be ambiguous, silent or even incompatible. To this effect, the Second Circuit noted in Kadic that: "[t]he [TVPA] permits [claimants] to pursue their claims of official torture under the jurisdiction conferred by the [ATCA] and also under the general federal question jurisdiction of [28 U.S.C.] section 1331 ...."[87]
Accordingly, the Court adopts the Report's recommendation that Plaintiffs be awarded compensatory and punitive damages on their Claims One and Two for torture and extrajudicial killing under the TVPA and the ATCA.
2. Denial of Political Rights
Plaintiffs' Claims Three and Four under the ATCA assert violations of certain political freedoms: denials of the rights of association, assembly, expression and beliefs and of the right to run for political office and participate in the state's government. The Magistrate Judge recommended awards of compensatory and punitive damages with respect to these claims, finding that ZANU-PF systematically hounded its political opponents through repeated acts of terror and violence. According to the Magistrate Judge, ZANU-PF specifically targeted Plaintiffs' association with the Movement for Democratic Change ("MDC"), an opposition political party:
MDC supporters were constantly harassed, peaceful assemblies were interrupted by mobs of ZANU-PF supporters attacking MDC supporters, assassination attempts were made on MDC candidates, and MDC supporters were killed.[88]
The freedoms of political association, speech, beliefs and participation that Plaintiffs assert are recognized in various international instruments. The Universal Declaration contains several provisions itemizing individual rights that go to the essence of a person's political expression and participation, including freedoms of thought and conscience; of opinion and expression; of peaceful assembly and association; and of participation in the government of the person's country.[89]*424 Corresponding provisions are more particularized in the Civil and Political Rights Covenant.[90]
None of these sources, or other authorities elaborating on the scope, content and practical application of these rights, offers *425 a particular definition or explicit guidance as to whether and to what extent universal consensus exists concerning the kinds of deprivations of political rights that are cognizable as violations of customary international law. However, the Second Circuit has recognized the significance of the Universal Declaration in "specify[ing] with great precision the obligations of member nations under the [United Nations] Charter."[91] In this regard, the Filartiga I Court acknowledged scholarly opinion, which it cited favorably, for the view that the Universal Declaration "no longer fits into the dichotomy of `binding treaty' against `non-binding pronouncement,' but is rather an authoritative statement of the international community."'[92] Consistent with this proposition, the Circuit Court also noted that "several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law."[93] Thus, the elemental principles embodied in the Universal Declaration are not only repeatedly invoked by the international community in general pronouncements but have been adopted as part of the constitutions of many states around the world and as such are reflected concretely in applied organic law.
In considering with greater specificity the content and degree of universality accorded to the political rights at issue in the instant case, the Court must note that the world is characterized by fundamental diversity of political systems and established orthodoxies. A vast range of political thought and channels of expression exists around the globe. So, too, common tensions often prevail between individual and aggregate rights, and majorities versus minorities, on the one hand, and, on the other, the imperatives of maintaining territorial integrity, national security and internal public order, safety and health. Given these realities, the absence of a more particularized expression defining the precise contours of individual civil and political rights as customary international law is not surprising.
Nonetheless, as sources of guidance for what qualifies as internationally recognized norms relating to the political rights Plaintiffs invoke, the Court may draw from general principles derived from international agreements, declarations and pronouncements on the particular subject, as well as from the general principles common to the world community's major legal systems.[94] In this connection, the Court considers relevant doctrine and expressions reflected in the Restatement of Foreign Relations and federal law principles, provisions of the Universal Declaration and the Civil and Political Rights Covenant, and interpretations and applications of these instruments by authoritative international and domestic bodies.
*426 a. The Restatement of Foreign Relations
Reflecting the absence of greater particularity and universal understanding as to the civil and political rights encompassed within internationally recognized and obligatory norms, 702 of the Restatement of Foreign Relations does not specifically enumerate denial of civil and political rights among the distinct state policies or practices that violate customary international human rights law. The Restatement 702 lists as customary law the following violations of human rights: (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, and (g) a consistent pattern of gross violations of internationally recognized human rights. The Restatement notes that the human rights prohibitions enumerated in clauses (a) through (f) are peremptory norms (jus cogens) and are not subject to derogation in times of emergency.[95]
Nonetheless, in 702(g) the Restatement identifies a general category of international human rights violations where, as a matter of policy, a state practices, encourages or condones "a consistent pattern of gross violations of internationally recognized human rights."[96] Among consistent patterns deemed "gross," the Restatement cites as examples: "systematic harassment, invasions of the privacy of the home, arbitrary arrest and detention (even if not prolonged); ... denial of freedom of conscience ...."[97]
Several observations about 702(g) are notable and pertinent to the instant case. First, because each of the violations listed in clauses (a) through (f) stands alone as having already acquired the requisite universal acceptance and definition to qualify as customary international law, the reference in clause (g) to "internationally recognized human rights" must comprise a residual body of protections and violations that, though articulated in global human rights declarations and instruments, standing alone presumably may not as yet have attained the authority of customary international law when considered as isolated incidences, but may rise to acquire such status when they satisfy the two specified standards: being both part of a "consistent pattern" and "gross" violations. In Kadic, the Second Circuit considered a somewhat analogous situation. It ruled that certain atrocities involving rape, torture and summary execution attributed personally to the offender that ordinarily would require state action to qualify as violations of international law were cognizable under the ATCA without regard to state action insofar as they were committed in furtherance of misconduct, such as genocide or war crimes, that did constitute recognized jus cogens violations of international law for which private individuals may be held liable even absent state action.[98]
This reading and application would also be consistent with analogous federal law principles which hold that wrongful conduct by federal or municipal government *427 officials is not actionable as violating certain constitutional prohibitions unless the underlying actions constitute a custom, policy or practice or, in the case of other constitutional standards, demonstrates conduct sufficiently gross to comprise reckless disregard or deliberate indifference for human life.[99]
Second, an interpretation of clause (g) that would define the violations it encompasses by reverting back to those already enumerated in clauses (a) through (f) would be tautological and render clause (g) meaningless. Third, the underlying concept of clause (g) is consistent with that of clause (f). Racial discrimination as such is universally denounced as incompatible with international norms.[100] But under 702(f) racial discrimination, when practiced, encouraged or condoned by the state, violates international human rights law only when it is "systematic".[101]
Expressions of a concept similar to that embodied in Restatement 702(g), articulating international concern and condemnation of "gross and systematic" violations of fundamental human rights, are reflected in various international pronouncements.[102] As it pertains specifically to certain political rights, this principle is affirmed in the Proclamation of Teheran,[103] which declares that: "Gross denials of human rights arising from discrimination on grounds of race, religion, belief or expressions of opinion outrage the conscience of mankind and endanger the foundations of freedom, justice and peace in the world."
b. The Civil and Political Rights Covenant
The Civil and Political Rights Covenant does offer greater specific definition and guidance with regard to the freedoms here in question. It makes clear that even if perhaps not all of the civil and political rights enunciated in the Universal Declaration may garner global recognition satisfying the requisite standards of universality *428 and specificity, and thus qualify as customary international law, not all of the proclaimed rights necessarily stand on the same footing. In fact, the Covenant itself manifests that some universal human rights already have attained sufficient definition and recognition among the individual freedoms that are entitled to protection as peremptory norms. The listing includes proscriptions concerning: the right to life (Art. 6); freedom from torture (Art. 7) and slavery (Art. 8); imprisonment for debt (Art. 11); criminal convictions under ex post facto laws (Art. 15); and the right to recognition as a legal person (Art. 16).[104] Article 4(2) specifically enumerates the right to freedom of thought, conscience and religion enunciated in Article 18 among the provisions of the Covenant that are not subject to derogation in time of public emergency, and is thus accorded special rank among those standards that have acquired firm standing as customary international law.[105]
Moreover, Article 18(3) of the Covenant articulates specific standards clearly defining the scope of freedom of thought, conscience and religion and the circumstances under which interference with exercise of these rights may be permissible. In particular, no restraints are allowed on these freedoms as such; Article 18(3) of the Covenant recognizes limitations only on a person's freedom to manifest his religion or beliefs, and then only insofar as such restrictions "are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."[106]
A very similar framework defining the bounds of restraints on exercise of the right to freedom of opinion and expression is contained in Article 19. First, Article 19(1) recognizes the right of every person to hold opinions without interference. The right is expressed in absolute terms, with no permitted infringements. Freedom of expression, on the other hand, is made subject to specific limitations, but only as provided by law and necessary (a) for respect of the reputations or rights of others, or (b) for the protection of national security, or of public order, or of public health or morals.[107]
So structured, freedoms of thought, conscience and religion, and the related freedoms of opinion and expression,[108] may be regarded as ordered on a higher plane on the scale of universal acceptance and definition, *429 and thus vested with a higher grade of protection, than associational and participatory rights such as freedom of association, assembly and political participation in government, each of which is subject to many more practical constraints associated with other public imperatives.[109]
On this point, the Preamble of the Universal Declaration itself eloquently affirms that "the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people."[110] For, internal intrusions into the workings of the mind in formulating thought and opinion, and on their manifestations as beliefs and legitimate expression, may be inherently more invasive and perverse, and thus may be more fundamentally harmful to the individual and society, than some external restraints affecting an individual's associational and participatory political rights.[111] The Restatement of Foreign Relations also implicitly acknowledges the special significance of the person's mental freedoms in its specific mention of denial of freedom of conscience among its illustrations of the violations of internationally recognized human rights that would fall within the proscription of 702.[112]
Similar recognition of the unique value, and the priority among human rights norms, vested by the Civil and Political Rights Covenant in freedom of conscience, thought, opinion and expression is also *430 conveyed in other authoritative sources and scholarly views. The Supreme Court has described freedom of opinion and expression as "the matrix, the indispensable condition of nearly every other form of freedom."[113] These freedoms have also been characterized as "the `touchstone of all the freedoms to which the United Nations is consecrated.'"[114]
Article 2 of the Universal Declaration embodies this recognition by placing enjoyment of rights and freedoms without discrimination based on "political or other opinions" on par with other impermissible distinctions, such as race, color, sex, language, religion and national or social origin.[115] This provision is reinforced by the affirmative prescriptions set forth in Article 7, which recognize every person's right to equal protection of the law against any form of discrimination or incitement to discrimination, and in Article 19, which specifically enunciates the "right to freedom of opinion and expression," including "freedom to hold opinions without interference ...."[116]
These longstanding, consistent, widely recognized expressions uniformly convey a basic principle that "[t]he differential treatment of individual human beings entirely on the basis of political and other opinions is clearly incompatible with the values of human dignity."[117] Beyond its political and moral grounding, this precept also possesses other utilitarian value insofar as "abundant production and wide sharing of all values are profoundly affected by the degree to which the members of a community enjoy freedom of opinion."[118]
c. Recognition by Courts and Other Adjudicatory Bodies
The level of the recognition and definition accorded to the rights to freedom of thought and beliefs and of opinion and expression as binding international norms is reflected in official interpretations and applications of the relevant provisions of the Civil and Political Rights Covenant by various international courts and adjudicatory bodies. These authorities uniformly reaffirm three essential principles that define and embody the specific content of these rights: (1) that the right to enjoy and exercise these freedoms is a fundamental and obligatory international norm; (2) that any interference with the exercise of these rights may be justified only (a) when provided by law, (b) when the restraint is necessary to protect essential rights of others or to further vital public *431 purposes grounded on national security, public order, safety, health or morals, and (c) when the interference is proportionate to the legitimate aims pursued; and (3) that violation of these standards is actionable and compensable in damages to the victims.
These principles emerge from rulings rendered by the United Nations Human Rights Committee in the course of carrying out its adjudicatory role under the Optional Protocol to the Civil and Political Rights Covenant (the "Optional Protocol").[119] These authoritative interpretations and applications of the Covenant reflect an index of the scope of the global community's recognition and acceptance of the principles of the Covenant in this regard as obligatory. In Aduayom v. Togo,[120] for example, the Human Rights Committee considered a claim under Article 19 of the Civil and Political Rights Covenant brought by a group of authors who were arrested and suspended from their public employment for various political offenses, including possession of pamphlets and other documents critical of the government of Togo and outlining the organization of a new political party. The Committee determined that the Togo government's refusal to reinstate the claimants to their jobs and compensate for lost wages constituted a violation of Article 19's right to freedom of political opinion and expression for which the state had provided no justification pursuant to any of the exceptions recognized under Article 19(3). In so ruling, the Committee observed that:
the freedom of information and expression are cornerstones in any free and democratic society. It is on the essence of such societies that its citizens must be allowed to inform themselves about alternatives to the political system/parties in power, and that they may criticize or openly and publicly evaluate their governments without fear of interference or punishment, within the limits set by [A]rt. 19(3).[121]
Decisions in a similar vein construing the freedom of conscience, opinion and expression provisions of the European Convention,[122] which parallel those of the Civil *432 and Political Rights Covenant, have been rendered by the European Court of Human Rights, as well as by some national courts. In Surek v. Turkey,[123] the European Court found a violation of Article 10 of the European Convention in the conviction and sentencing of two journalists for publication of interviews with the leader of a Turkish separatist organization that was declared illegal under national law, where there was no evidence that the political opinions expressed in the interviews could be construed as incitement to violence and the state action could not otherwise be justified as necessary under the exceptions of Article 10(2) of the Convention, a provision the court noted must be strictly construed.[124] Among the essential premises the court reaffirmed in its determination, which awarded compensatory damages to the claimants, was that freedom of expression constitutes "one of the basic conditions ... for each individual's self-fulfillment."[125]
It follows from the interpretation and application given by these international bodies and national courts to the exercise of freedom of political opinion and expression that if the state violates the right when it employs its legal process to prosecute and punish individuals who profess views at odds with the government's orthodoxy, it would contravene those fundamental human rights principles and ends even more readily in instances where the state resorts to utter violence and lawlessness as the means to commit the internationally proscribed offenses. Hence, a systematic campaign of terror and violence conceived and arbitrarily waged by state agents arising not from any legitimate response to a demonstrable need related to the protection of public order, health or safety or other imperative governmental purpose, but rather hatched and calculated to suppress political opinion and expression, is neither provided by law, necessary to safeguard other vital rights or public purposes, nor proportionate to any justifiable state aims pursued. When accompanied by extreme deprivations of life and liberty and unwarranted invasions of privacy as the instruments employed to achieve these repressive ends, the state's actions present unique dimensions that should qualify under a standard requiring a consistent pattern of gross violations of internationally recognized human rights.[126]
d. Application to the Case At Bar
Here, the infringements committed by ZANU-PF of Plaintiff's rights of freedoms *433 of political belief, opinion and expression were sufficiently systematic and gross to warrant a finding of a violation of international law and corresponding liability, as well as an award of consequential damages under the ATCA in accordance with the Magistrate Judge's recommendations in this case.
Undoubtedly, states may differ on the general content of certain political freedoms and the depth of their commitment to protect them. Their practices may vary as to the scope of the state's obligations to initiate defined measures to ensure meaningful exercise by their nationals of political rights universally recognized. And while nations may concede certain wrongful human rights practices as culpable excesses, or deny the existence of alleged violations of certain individual freedoms as grounded on legitimate political particularities of sovereign states, or as not supported by pertinent facts, few would justify or defend by legally supportable reasons that, as a matter of domestic or international law, a sufficient mandate exists for a state, as a means of advancing valid public purposes, to engage in an affirmative campaign of systematic harassment, egregious organized violence and terror, and arbitrary invasions of individual life, liberty and privacy specifically intended to deprive its people of freedoms of political thought, conscience, opinion and expression. This standard should govern especially where, as here, these rights are professedly recognized by the state's own organic law and avowed by the state as universal norms it has pledged to confer, honor and protect.[127]
It is true that under certain exigencies threatening safety, security or public order, the state may justifiably impose reasonable restraints on the exercise of these freedoms.[128] Article 19(3) of the Civil and Political Rights Covenant expressly recognizes that exercise of freedom of expression is subject to restrictions. But the exception, strictly construed by the authorities that have ruled on it, are circumscribed by the limitations. There is no evidence in this case of the existence of any public emergency officially proclaimed, or any necessity of national security or public order, that may have presented even colorable grounds to justify the state's actions as a warranted derogation from its obligations to ensure Plaintiffs' rights.[129]
Another consideration may weigh in the balance of gradations that may tip the measure of misconduct into the more severe scale deemed sufficiently gross or systematic for the purposes of assessing state violations of internationally recognized standards. In general, sovereign hypocrisy and cynicism, manifest in a state's failure to invest its domestic law and justice system with substance and force enough to enable its citizens meaningfully to exercise internationally recognized civil and political rights the state itself publicly embraces, may not suffice by itself to comprise a violation of universal norms. But hypocrisy exposed and materialized in the power of the state committed to organized brutality and violence inflicted against its own people and specifically calculated to deny political freedoms of conscience, opinion *434 and expression the state itself ostensibly has conferred, may be a different matter. For, when the state undertakes to give expression and force of law not to foster the protection of fundamental human rights it publicly proclaims, but rather to execute systematic denials of those freedoms, the action may cross over the imprecise line and assume the added dimension of virulence necessary to transgress into the domain of what qualifies as a pattern of gross violations of universal norms.
By affirmatively unleashing a consistent pattern of violence and terror upon people led to believe, by the state's own domestic and international pronouncements, that those rights were theirs to enjoy, naked cynicism then not only substantiates the state's public deception in not sufficiently safeguarding those human rights, but may compound a failure to act that by itself may not be cognizable under one measure of illegality into a fury of affirmative wrongs and injuries actionable under another. This consideration is similar, albeit in a different context, to the principle of the common law of torts that a state may not be held liable for taking no action to enact remedial measures to address a potentially harmful condition it has no duty to correct, but may be found responsible for injuries when its agents do interject themselves into the situation and undertake related actions in the course of which they do not exercise the requisite standard of care the circumstances demand.[130] In the final analysis, when a state not only so eviscerates its own duty to ensure fundamental domestic and internationally recognized human rights as to render them nothing more than a hollow formalism, but also itself intentionally perpetrates gross violations of those very rights, the resulting combination of harms crosses the threshold of individual protections prevailing under universally recognized human rights norms.
On the basis of the preceding considerations and analysis, the Court concludes that Plaintiffs have established a violation of an internationally recognized norm to a right of freedom of political beliefs, opinion and expression without arbitrary and unjustified interference by the state.
e. Zimbabwe Law
The Court also notes that apart from the status of the political freedoms Plaintiffs assert under international law, these rights are also recognized under Zimbabwe law, although the scope of a municipal cause of action for monetary damages to vindicate these rights is somewhat ambiguous. The Zimbabwe Constitution contains explicit guarantees and prohibitions safeguarding freedoms of expression, of conscience, and of assembly and association.[131] Specifically, these rights are defined to proscribe that no person shall be hindered in the enjoyment of "freedom to hold opinions and to receive and impart ideas and information without interference,"[132] as well as the "right to assemble freely and associate with other persons and in particular to form or belong to political parties ... or other associations for the protections of his interests."[133]
*435 Under the foregoing provisions, a private action ordinarily does not exist to recover monetary compensation for violations of the specified rights, except that persons aggrieved by the unlawful conduct, including decedents' spouses and dependents, may be entitled to sue for damages where the wrong is also founded on a cause of action that falls within principles such as those comprising common law assault, torture or wrongful death.[134] The Court construes these provisions as sufficient to warrant a finding of liability and an award of compensatory damages to Plaintiffs with respect to ZANU-PF's violations of Zimbabwe law.[135]
As the Magistrate Judge determined here, an analogous basis for liability exists under federal law for violations of First Amendment rights, which include freedoms of speech, assembly, protest and association.[136] Insofar as the Court has determined that Plaintiffs' injuries resulted from violations of the law of nations also recognized under federal law, Plaintiffs are entitled to compensation under the ATCA.
On the basis of the foregoing authority, the Court adopts the Magistrate Judge's recommendation to award compensatory damages and punitive damages with regard to Plaintiffs' Claims Three and Four.
3. Cruel, Inhuman or Degrading Treatment
Plaintiff's Claim Five describes ZANU-PF's acts of cruel inhuman or degrading treatment. The Magistrate Judge recommended an award of compensatory and punitive damages with respect to this claim. The wrongful conduct upon which the Magistrate Judge found liability, encompasses:[137]
ÔÇö The suffering of Tapfuma Chiminya, Mathew Pfebve, and David Stevens, prior to their death, including being bound and gagged and forced to ride in a vehicle for hours, being dragged down the street in front of neighbors and loved ones, and being placed in fear of impending death;
ÔÇö The suffering of Efridah Pfebve, who had watched her elderly mother being stoned by an angry mob, saw her brothers and elderly father being dragged down the street and beaten, and observed her home being ransacked; and
ÔÇö The harms to Evelyn Masiti and Elliot Pfebve, who lived in constant threat of death by defendant and suffered repeated attacks upon their persons, families and property.
a. International Law
Other courts which have considered the issue have expressed divergent views as to whether cruel, inhuman or degrading treatment, though broadly expressed and accepted in the abstract as an international norm, possesses the requisite elements of universality and specificity to constitute a recognized proscription under the customary law of nations. In Forti v. Suarez-Mason,[138] for example, the court *436 sustained its earlier dismissal of a claim of cruel, inhuman or degrading treatment upon concluding that there was not a sufficiently universal consensus defining the content of the prohibited conduct as a distinct international tort so as to be actionable under the ATCA.
The Xuncax court, however, reached a different result.[139] The court did note that the prohibition against cruel, inhuman or degrading treatment poses more complex definitional problems than other recognized international norms. Nonetheless, the court concluded that "[i]t is not necessary for every aspect of what might comprise a standard... be fully defined and universally agreed before a given action meriting the label is clearly proscribed under international law...."[140] It then held that any conduct proscribed by the United States Constitution and by a cognizable principle of international law falls within the scope of cruel, inhuman or degrading treatment and is thus actionable under the ATCA.[141]
Other courts have expressed no reservations in accepting cruel, inhuman or degrading treatment as a "discrete and well recognized violation of international law," and a separate ground for liability under the ATCA, at least insofar as the unlawful conduct in question would also violate the Fifth, Eighth and/or Fourteenth Amendments to the United States Constitution.[142]
Grounds for doubts as to the scope of consensus and definitional content of the prohibition against the cruel, inhuman or degrading treatment arise by reason of ambiguous evidence of what unlawful conduct falls within the ascertainable contours of the action, beyond the bounds of what is already accepted as encompassed by prohibitions of torture, summary execution and prolonged arbitrary detention.[143] The conceptual difficulties are compounded because while the experts concur as to the existence of the norm, they offer little analytic guidance helpful in charting its precise frontiers as distinct wrongful conduct.[144] Thus, while most international declarations and covenants that proscribe torture also extend by conjunction to cruel, inhuman or degrading treatment or punishment,[145] those instruments contain specific *437 definitions of torture but not of cruel, inhuman or degrading treatment.[146]
Despite the absence of a distinct definition for what constitutes cruel, inhuman or degrading treatment, various authorities and international instruments make clear that this prohibition is conceptually linked to torture by shades of misconduct discernible as a continuum. The gradations of the latter are marked only by the degrees of mistreatment the victim suffers, by the level of malice the offender exhibits and by evidence of any aggravating or mitigating considerations that may inform a reasonable application of a distinction. Several courts and other authorities have recognized that: "[g]enerally, cruel, inhuman or degrading treatment includes acts which inflict mental or physical suffering, humiliation, fear and debasement, which do not rise to the level of `torture' or do not have the same purposes as `torture'."[147]
That it may present difficulties to pinpoint precisely where on the spectrum of atrocities the shades of cruel, inhuman, or degrading treatment bleed into torture should not detract from what really goes to the essence of any uncertainty: that, distinctly classified or not, the infliction of cruel, inhuman or degrading treatment by agents of the state, as closely akin to or adjunct of torture, is universally condemned and renounced as offending internationally recognized norms of civilized conduct. Nor should the challenges of drawing distinctions deter from the task of supplying content drawn from real experience. It is well to recall that among the major sources of customary international law are judicial decisions rendered on the specific subject, rulings that may illuminate the meaning of particular standards, manifest guidance as to the course of the law and measure the breadth and strength of international consensus with regard to a given behavioral norm.
Like the growth of the common law, universally recognized norms ripen into settled law incrementally by the accretions of teachings informed by real events. Insofar as actual cases offer proper opportunities to resolve doubts and fill in gaps, the natural evolution of the law will be advanced by the authorized and principled exercise of judicial jurisdiction to decide them. Conversely, where uncertainty persists by dearth of precedent, declining to render decision that otherwise may help clarify or enlarge international practice, and thereby foster greater understanding and assent regarding the content of common behavioral rules, creates a self-fulfilling prophecy and retards the growth of customary international law. Accordingly, following the reasoning and guidance of the courts that have applied the standard, *438 this Court finds that the unlawful conduct the Magistrate Judge described as grounds for liability and damages under Plaintiffs' Claim Five constitutes cruel, inhuman or degrading treatment prohibited under principles of international law.
Though clearly there are areas of overlap insofar as the more aggravated torture misconduct ordinarily would also encompass cruel, inhuman or degrading of treatment, there are also instructive differences that offer guidance as to some proper demarcations. As may have occurred in the instant case, a victim who has been tortured and dies from the assaults, and whose corpse is then dragged through the streets by the assailants, at that point is conceptually no longer himself personally a subject of torture or even cruelty. The notion of inflicting severe pain and suffering on the dead is a tautology. But life's veneration of life does not end at the grave; death does not extinguish organized society's reverence for human dignity or the law's recognition of all aspects of life's experience; nor does it diminish protection against life's degradation. Throughout the ages, in almost every culture, civilization has embodied rites with emblems and taboos signaling that the dignity of the human body is worthy of safeguards against desecration even after death. To that end, laws, customs and practices generally define separate classes of offenses whose focal wrong is not the conscious infliction of physical pain and suffering on the living, but the hurt perpetrated upon the living by the defiling of the dead.[148]
By any measure of decency, the public dragging of a lifeless body, especially in front of the victim's own home, for close kin and neighbors to behold the gruesome spectacle, would rank as a degradation and mean affront to human dignity. By the same token, the relatives necessarily made to bear witness to the torture and degradation of their kin, or the ransacking of their common property, are technically not themselves victims of torture. Few would quarrel, however, that the offenders' lawlessness would cause these individuals themselves to suffer the severe emotional pain and indignities associated with forms of cruelty and inhuman treatment. Thus, wherever the nuances of conduct may blend at the frontiers that define the limits of cruel, inhuman or degrading treatment, this Court has no hesitation finding that the wrongs committed by ZANU-PF in this case fall well within the realm of the execrableÔÇöunlawful conduct that would be condemned and rejected as contravening well-established and universally recognized norms of international law.
b. Zimbabwe Law
Zimbabwe law also contains prohibitions against cruel, inhuman or degrading treatment. Specifically, the Zimbabwe Constitution provides that "no person shall be subjected to torture or to inhuman or degrading punishment or other such treatment."[149] It is not clear from the Zimbabwe law presented to the Court whether, behind this general proscription, Zimbabwe law recognizes a distinct, clearly defined *439 private cause of action encompassing cruel, inhuman and degrading treatment. Some of the wrongs Plaintiffs charge under this claim, however, describe unlawful conduct that clearly would fall within the scope of assaults entailing homicide, injury to persons, destruction or damage to property. Such claims would be compensable under principles of Zimbabwe common law.[150]
Moreover, whether or not such injuries, inflicted by state agents or under the color of law, would state cognizable rights of action under Zimbabwe law, there can be no dispute that the actions describe violations other courts have found to fall within the proscriptions of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution.[151] The dimension the offenses involved in these cases have in common include the wanton infliction of mental or physical suffering or assaults that manifest callous disregard for human dignity committed by the state or its agents through sustained, systematic and deliberate conduct engaged in the service of no legitimate public purpose.
4. Racial Discrimination and Unlawful Seizure of Property
With regard to Plaintiffs' Claims Six and Seven, the Magistrate Judge recommended an award of compensatory and punitive damages to Maria and David Stevens for the racial violence and terror they suffered through ZANU-PF unlawful conduct, and for damages caused by the Zimbabwe government's racially motivated confiscation of their farm, home and possessions motivated by racial animus. With respect to these claims, this Court found no basis to recognize that a taking of property by a sovereign state from its own citizens, as asserted here, constitutes a violation of well-established, universal norms of international law.[152] The Court left open the theoretical possibility of exercising pendent jurisdiction over the claim, but expressed reluctance to do so given the absence of a proof of relevant Zimbabwe municipal law to provide a grounds for such a remedy.
a. Racial Discrimination
Systematic racial discrimination and racially-motivated violence, especially where practiced as a matter of state policy, is proscribed as violations of international instruments.[153] Plaintiffs' claims of such misconduct are also closely analogous to contraventions of well-established principles *440 embodied in the Fourteenth Amendment of the United States Constitution and related federal civil rights statutes making such violations actionable.[154]
Plaintiffs have submitted evidence to establish that the Zimbabwe Constitution and other laws guarantee fundamental individual rights regardless of race, origins, color, creed or sex, and prohibits all forms of discrimination on these grounds.[155]
b. Seizure of Property
The Zimbabwe Constitution forbids the state's seizure, damage or destruction of property without fair compensation.[156] Plaintiffs cite no authority, however, to support a determination that the state seizure of property of its own nationals without fair compensation described in Claim Seven constitutes a violation of well-defined, universal and obligatory norms of international conduct. It is true that the Universal Declaration, Art. 17, contains references the right to own property and not be arbitrarily deprived of it.[157] However, no corresponding right was included in the Civil and Political Rights Covenant, an omission that diminishes any claim to universal consensus concerning the status of this right as customary international law.
The Court has found no other persuasive evidence that universal consensus exists recognizing contravention of this principle as customary international law and defining the boundaries of the offenses with sufficient specificity. To the contrary, the case law that exists has rejected such a claim. In Dreyfus v. Von Finck,[158] the Second Circuit held that a state's seizure of the property of its nationals, even if racially motivated, was not a violation of the law of nations. Insofar as Plaintiffs assert that the invasions and unlawful takings of property for which ZANU-PF were racially-inspired, such misconduct is encompassed within the actions the Court *441 sustained as recognized violations of international law under Claim Six.
Nonetheless, Plaintiffs' complaint invoked the Court's pendent jurisdiction under 28 U.S.C. 1367 and asserted claims under Zimbabwe law.[159] The Court therefore will exercise its discretion to assert authority over those claims. Having examined the provisions of the Zimbabwe Constitution and related law called to its attention, the Court is satisfied that Plaintiffs have asserted rights and cognizable actions under Zimbabwe law that would entitle them to the compensatory damages recommended by the Magistrate Judge with respect to Claim Seven.
In connection with Claims Six and Seven, Plaintiffs made a general request for punitive damages, unlike the specific request they asserted with regard to their other five claims. However, because there is no evidence on the record to support a finding that Zimbabwe law would authorize the awarding of punitive damages in connection with unlawful seizure of property, the Court does not accept the portion of the Report that recommends Plaintiffs' recovery of exemplary damages with regard to Claim Seven.
III. CONCLUSION
The Court adopts the Magistrate Judge's recommendation, as modified above, that Plaintiffs be awarded compensatory and punitive damages as follows:
A. CLAIMS ONE AND TWO:
1. Extrajudicial Killing
Compensatory Punitive
Estate of Tapfuma Chiminya $ 2,500,000 $ 5,000,000
Estate of Metthew Pfebve $ 2,500,000 $ 5,000,000
Estate of David Stevens $ 2,500,000 $ 5,000,000
2. Torture
Estate of Metthew Pfebve $ 1,000,000 $ 5,000,000
Estate of David Stevens $ 1,000,000 $ 5,000,000
B. CLAIMS THREE AND FOUR:
1. Loss of Enjoyment of Political Rights
Adella Chiminya $ 500,000 $ 1,000,000
Efridah Pfebve $ 500,000 $ 1,000,000
Elliott Pfebve $ 1,000,000 $ 2,000,000
Evelyn Masaiti $ 1,000,000 $ 2,000,000
2. Loss of Property
Efrideh Pfebve $ 230,909
C. CLAIM FIVE
Cruel, Inhuman or Degrading Treatment
*442
Estate of Tapfuma Chiminya $ 1,000,000 $ 4,000,000
Estate of Metthew Pfebve $ 1,000,000 $ 4,000,000
Estate of David Stevens $ 1,000,000 $ 4,000,000
Efridah Pfebve $ 1,000,000 $ 3,000,000
Evelyn Masaiti $ 750,000 $ 1,500,000
Elliott Pfebve $ 750,000 $ 1,500,000
D. CLAIMS SIX AND SEVEN
1. Systematic Racial Discrimination
Estate of David Stevens $ 500,000 $ 1,000,000
Maria Stevens $ 500,000 $ 1,000,000
2. Loss of Home, Destruction of Business and Seizure of Property
Maria Stevens $ 1,000,000
Evelyn Masaiti $ 19,544
___________ ___________
TOTAL $20,250,453 $51,000,000
IV. ORDER
For the foregoing reasons, subject to the modifications discussed above, the Court adopts the Report and Recommendation of Magistrate Judge James Francis, dated July 1, 2002. Accordingly, it is hereby
ORDERED that Judgment be entered in favor of Plaintiffs and against defendant ZANU-PF in a total amount of $71,250,453.00 representing compensatory damages of $20,250,453.00 and punitive damages of $51,000,000.00 in accordance with the apportionment set forth above in the Conclusion section of this Decision and Order.
The Clerk of Court is directed to close this case.
SO ORDERED.
NOTES
[1] See 28 U.S.C. 1350.
[2] See Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350 Note).
[3] See Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y.2001) ("Tachiona I"). The United States (the "Government"), which had filed a Suggestion of Immunity on behalf of Mugabe, moved for reconsideration, arguing that the Court's exercise of jurisdiction over ZANU-PF grounded on personal service on Mugabe was impermissible under federal law and international principles governing sovereign and diplomatic immunity that the Government suggested applied to Mugabe. The Court denied the Government's motion. See Tachiona v. Mugabe, 186 F.Supp.2d 383 (S.D.N.Y.2002) ("Tachiona II").
[4] See Tachiona v. Mugabe, 216 F.Supp.2d 262 (S.D.N.Y.2002) ("Tachiona III").
[5] 630 F.2d 876 (2d Cir.1980) ("Filartiga I").
[6] See Tachiona III, 216 F.Supp.2d at 268-69.
[7] 226 F.3d 88, 105 n. 12 (2d Cir.2000), cert. denied, 532 U.S. 941, 121 S.Ct. 1402, 149 L.Ed.2d 345 (2001).
[8] See Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 284 (1963); Restatement (Second) of Conflict of Laws (1971) 6 cmt. f. ("In general, it is fitting that the state whose interests are most deeply affected should have its local law applied.").
[9] See Restatement (Second) of Conflict of Laws, supra 6 cmt. f; see also Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962) (holding that under the Federal Tort Claims Act the reference to "law" is to "the whole law of the State where the act or omission occurred," including its choice of law rules).
[10] Lauritzen v. Larsen, 345 U.S. 571, 591, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); see also Richards, 369 U.S. at 13-14, 82 S.Ct. 585.
[11] See, e.g., Filartiga v. Pena-Irala, 577 F.Supp. 860, 863 (E.D.N.Y.1984)("Filartiga II"),; Xuncax v. Gramajo, 886 F.Supp. 162, 189-91 (D.Mass.1995); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1547-48 (N.D.Cal. 1987) ("Forti I").
[12] Filartiga I, 630 F.2d at 889 (citing Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74 L.Ed. 926 (1930)); see also Jeffrey M. Blum and Ralph G. Steinhardt, Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pena-Irala, 22 Harv. Int'l L.J. 53, 97-98 (1981).
[13] Filartiga I, 630 F.2d at 889.
[14] See Wiwa, 226 F.3d at 106; Filartiga I, 630 F.2d at 887.
[15] See Filartiga II, 577 F.Supp. at 864 (finding on remand that choice of law analysis required application of Paraguay law because all of the parties were residents of that country and the underlying events happened there); see also Restatement (Second) of Conflict of Laws, supra 6 cmt. f.
[16] 726 F.2d 774 (D.C.Cir.1984).
[17] See id. at 816-17.
[18] See Restatement (Third) of the Foreign Relations Law of the United States (1987) 703 cmt. c. [hereinafter the "Restatement of Foreign Relations"].
[19] The International Bill of Rights 12, 15 (Louis Henkin, ed.) (1981) [hereinafter "The International Bill of Rights"].
[20] See, generally, Universal Declaration of Human Rights (the "Universal Declaration"), G.A. Res. 217A(III), 3 U.N. GAOR, U.N. Doc. A/810 (1948), reprinted in United Nations Centre for Human Rights, Human Rights: A Compilation of International Instruments (hereinafter "International Instruments"), Vol. I, Pt. 1, at 1-7 (1994); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention"), G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1984), reprinted in International Instrument, supra, Vol. I, Pt. 1, at 293-307; International Covenant on Civil and Political Rights (the "Civil and Political Rights Covenant" or the "Covenant"), G.A. Res. 2200A(XXI), 21 U.N. GAOR Supp. (No. 16), at 52, U.N. Doc. A/6316 (1966), reprinted in International Instruments, supra, Vol. I, Pt. 1, at 21-40; African Charter on Human and Peoples' Rights (the "African Charter"), OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), reprinted in International Instruments, supra, Vol. II (1997), at 330-346; American Convention on Human Rights (the "American Convention"), OEA/Ser. K/xvi/1.1, Doc. 65, Rev. 1. Corr. 1, Jan. 7, 1970, 9 I.L.M. 101 (1970), reprinted in International Instruments, supra, Vol. II at 14-36; European Convention for the Protection of Human Rights and Fundamental Freedoms (the "European Convention"), 213 U.N.T.S. 211, E.T.S. 5 (1950), reprinted in International Instruments, supra, Vol. II at 73-91.
[21] Tel-Oren, 726 F.2d at 818 (Bork, J., concurring); see also Xuncax, 886 F.Supp. at 180; but see Tel-Oren, 726 F.2d at 778 (Edwards, J., concurring) (noting that in some cases, as in the United Nations Genocide Convention, states have specifically committed to carry out their international obligations through explicitly prescribed means, such as declaring a form of conduct as defined to constitute a crime).
[22] The Paquete Habana, 175 U.S. 677, 694, 20 S.Ct. 290, 44 L.Ed. 320 (1900); see also United States v. Smith, 18 U.S. 153, 160-61, 5 Wheat. 153, 5 L.Ed. 57 (1820); Filartiga I, 630 F.2d at 880; Restatement of Foreign Relations, supra 102; Statute of the International Court of Justice, June 26, 1945, Art. 38, 59 Stat. 1055, T.S. No. 993, 3 Bevans 1179.
[23] See Tel-Oren, 726 F.2d at 778 ("[T]he law of nations never has been perceived to create or define the civil actions to be made available by each member of the community of nations; by consensus, the states leave that determination to their respective municipal laws.") (Edwards, J., concurring).
[24] Xuncax, 886 F.Supp. at 180; see also Louis Henkin, Foreign Affairs and the Constitution 224 (1972) ("International law, itself, finally, does not require any particular reaction to violations of law...."); Restatement of Foreign Relations, supra 703 cmt. c.
[25] 630 F.2d at 888; see also Alvarez-Machain v. United States, 266 F.3d 1045, 1050 (9th Cir.2001)(to be actionable under the ATCA, international norms must be "specific, universal and obligatory."); Xuncax, 886 F.Supp. at 184 (citing Forti I, 672 F.Supp. at 1540).
[26] 630 F.2d at 887.
[27] See Lauritzen, 345 U.S. at 571, 73 S.Ct. 921. The Supreme Court in Lauritzen, a maritime case, articulated seven factors to be weighed in the relevant choice of law analysis: (1) place of the wrongful act; (2) law of the flag; (3) allegiance or domicile of the injured party; (4) allegiance of the defendant; (5) place of contract; (6) inaccessibility of foreign forum; and (7) the law of forum. See id. at 583-90, 73 S.Ct. 921.
[28] 726 F.2d at 780.
[29] Id. at 781.
[30] Id.
[31] Id. at 782.
[32] 195 F.Supp. 857 (D.Md.1961). In Tel-Oren, Judge Edwards questioned the sufficiency of the Adra court's determination that misuse of a passport could rise to the level of a violation of international law for the purposes of invoking ATCA jurisdiction. 726 F.2d at 787 (Edwards, J., concurring).
[33] 978 F.2d 493, 503 (9th Cir.1992) ("Marcos I").
[34] 2002 WL 31063976, at *11, ___ F.3d ___, ___ (9th Cir.2002).
[35] But see id. at *27, ___ F.3d ___, ___ (Reinhardt, J., concurring) (rejecting the majority's application of international law and noting that "courts should not substitute international law principles for established federal common law or other domestic law principles ... unless a statute mandates that substitution, or other exceptional circumstances exist.") (emphasis in original).
[36] 25 F.3d 1467, 1475-76 (9th Cir.1994) ("Marcos II").
[37] 886 F.Supp. at 182-83.
[38] Id.; see also Filartiga II, 577 F.Supp. at 863.
[39] 226 F.2d at 88 n. 12.
[40] See Filartiga II, 577 F.Supp. at 862.
[41] Id. at 862.
[42] Id. at 863-64.
[43] Id. at 863.
[44] Id. (quoting Filartiga I, 630 F.2d at 886) (emphasis in original).
[45] Id.
[46] See id. at 867.
[47] 886 F.Supp. at 191 (citing the TVPA and its legislative history as supporting the court's approach); see also The Rules of Decision Act, 28 U.S.C. 1652. The statute provides that: "The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." 28 U.S.C. 1652.
[48] See Xuncax, 886 F.Supp. at 191-92.
[49] 42 U.S.C. 1983.
[50] 672 F.Supp. at 1547-48; see also Marcos II, 25 F.3d at 1476 (applying federal Eighth Amendment and Civil Rights Act decisional law in determining whether plaintiffs' cause of action extinguished on defendant's death); Unocal, 2002 WL 31063976, at *11, ___ F.3d ___, ___ (applying international law principles to determine the liability of a private third-party for violations of international law).
[51] 886 F.Supp. at 192.
[52] See The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290; Filartiga I, 630 F.2d at 880.
[53] See Louis Henkin, The Age of Rights ix-x (1990) (noting that despite universal acceptance of the concept of international human rights, that consensus "is at best formal, nominal, perhaps even hypocritical, cynical," though still maintaining that even giving hypocrisy its due, it is the idea of human rights, to which no state has offered a preferable alternative, that has dominated the global community's debate and gained international currency in recent decades).
[54] See generally Restatement of Foreign Relations, supra 702; Blum & Steinhardt, supra at 90-96.
[55] See, e.g., Xuncax, 886 F.Supp. at 183, 200; Filartiga II, 577 F.Supp. at 865-66; Mehinovic v. Vuckovic, 198 F.Supp.2d 1322, 1357 (N.D.Ga.2002).
[56] See Filartiga I, 630 F.2d at 890 ("[F]or the purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.").
[57] See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 715-16 (9th Cir.1992) (describing the distinction under international law principles between peremptory norms (jus cogens), the obligations of which are binding on all states and from which there can be no derogation, and customary international law that derives from the consent of states).
[58] See Mehinovic, 198 F.Supp.2d at 1359 (recognizing that under international law, compensation for a broad range of physical, emotional and social harms should be commensurate to the injury) (citing M. Whiteman, Damages in International Law 718-19 (1943)).
[59] 726 F.2d at 776 (Edwards, J., concurring).
[60] See id. at 799 n. 2 (citing Tel-Oren v. Libyan Arab Republic, 517 F.Supp. 542, 550-51 (D.D.C.1981)); cf. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, G.A. Res. 2391 (XXIII), 23 U.N. GAOR Supp. (No. 18), at 40, U.N. Doc. A/7218 (1968) Art. 1, reprinted in International Instruments, supra, Vol. I, Pt. 2 at 679 (declaring that no statutory limitation shall apply to bar the prosecution of war crimes and crimes against humanity irrespective of the date of their commission).
[61] See, e.g., Marcos II, 25 F.3d at 1476.
[62] See, e.g., Xuncax, 886 F.Supp. at 191-92.
[63] See, e.g., Forti I, 672 F.Supp. at 1547-48; see also Tel-Oren, 726 F.2d at 799 n. 2 (Bork, J., concurring) (noting that the district court had dismissed the case on the alternate ground that it was barred by the forum's statute of limitations for certain torts).
[64] See, e.g., Filartiga II, 577 F.Supp. at 865-66; but see Xuncax, 886 F.Supp. at 198, 201 (awarding punitive damages in connection with ATCA claims but denying them as regards municipal law claims on account of doubt as to whether recovery of such damages was permissible under the municipal law of Guatemala).
[65] See Xuncax, 886 F.Supp. at 183; see also Tel-Oren, 726 F.2d at 787 (Edwards, J., concurring).
[66] See Fed.R.Civ.P.44.1.
[67] See Filartiga II, 577 F.Supp. at 863.
[68] See id.; Unocal, 2002 WL 31063976, at *11; Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir.1996); Marcos II, 25 F.3d at 1476; Xuncax 886 F.Supp. at 189-91; Forti I, 672 F.Supp. at 1547-48.
[69] See Xuncax, 886 F.Supp. at 191-92.
[70] See id. at 194-97.
[71] Abebe-Jira, 72 F.3d at 848 (citing Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir.1995); Filartiga I, 630 F.2d at 887; Xuncax, 886 F.Supp. at 179-183) see also Filartiga II, 577 F.Supp. at 863.
[72] See Filartiga II, 630 F.2d at 885-86 (citing The Nereide, 13 U.S. (9 Cranch) 388, 422, 3 L.Ed. 769 (1815); The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290); see also Kadic, 70 F.3d at 246; Wiwa, 226 F.3d at 104-05.
[73] 886 F.Supp. at 182. (citing Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n. 25, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964)).
[74] 226 F.3d at 105 n. 12.
[75] See id. at 104.
[76] See id. at 104-05.
[77] Id. (citing H.R.Rep. No. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86).
[78] See Fed.R.Civ.P. 44 (In determining the content and meaning of the laws of a foreign country, a court may examine and consider "any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidences"); see also Overseas Dev. Disc. Corp. v. Sangamo Constr. Co., 840 F.2d 1319, 1324 (7th Cir.1988).
[79] See Tachiona, 216 F.Supp.2d at 275.
[80] See id. at 270-74 (internal citations omitted).
[81] See id. at 267-68.
[82] Zimbabwe Const. Art. 12(1). The Zimbabwe Constitution was submitted as Attachment C of Affidavit of Kevin Laue, dated 27 September 2002 ("Laue Aff."), attached to Plaintiff's Memorandum of Law Addressing Choice of Law Analysis Applicable to their claims for Relief Under the Alien Tort Claims Act, dated October 7, 2002.
[83] Id. at Art. 15(1).
[84] See Laue Aff., ÂÂ 11, 12 and 13.
[85] See 28 U.S.C. 1350 (statutory note); Wiwa, 226 F.3d at 104-05; Kadic, 70 F.3d at 245-46.
[86] Wiwa, 226 F.3d at 106.
[87] 70 F.3d at 246 (citing Xuncax, 886 F.Supp. at 178).
[88] Tachiona III, 216 F.Supp.2d at 280-81.
[89] See Universal Declaration, supra, Arts. 2, 7, 18, 19, 20, 21, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 2-5. These provisions declare in pertinent part:
Art. 2:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status....
Art. 7:
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any incitement to such discrimination.
Art. 18:
Everyone has the right to freedom of thought, conscience and religion...;
Art. 19:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers;
Art. 20:
(1) Everyone has the right to freedom of peaceful assembly and association;
Art. 21:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
[90] See Political and Civil Rights Covenant, supra, Arts. 18, 19, 20, 21, 22, 25 and 26, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 27-30. The related provisions of the Covenant state in relevant part:
Art. 18:
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Art. 19:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Art. 20:
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Art. 21:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Art. 22:
1. Everyone shall have the right to freedom of association with others ...
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Art. 25:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Art. 26:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
See also American Convention, supra, Arts. 12, 13, 15, 16, 23, 24, reprinted in International Instruments, supra, Vol. II at 9, 20, 22; African Charter, supra, Arts. 8, 9, 10, 11, 13, reprinted in International Instruments, supra, Vol. II at 333-34; European Convention, supra, Arts. 9, 10, 11, 14 reprinted in International Instruments, supra Vol. II at 77-78.
[91] Filartiga I, 630 F.2d at 883.
[92] Id. (quoting E. Schwelb, Human Rights and the International Community 70 (1964)).
[93] Id. (citations omitted). This opinion is supported as well by other commentators who have urged that, taken as a whole, the Universal Declaration, as supplemented and elaborated by other international human rights instruments and practices of states, through constant invocation, widespread acceptance and global recognition as an authoritative definition and construction of the content of human rights, has acquired the status of customary international law prohibiting the violation of any of the rights enumerated in the Universal Declaration. See Myers McDougal, Harold Lasswell and Lung-Chu Chen, Human Rights and World Public Order 273-74, 325-27 (1980).
[94] See Filartiga I, 630 F.2d at 883; Restatement of Foreign Relations, supra 102.
[95] See Restatement of Foreign Relations, supra 702; id. cmt. n and Reporters' Note 11.
[96] Id. at 702(g).
[97] Id. cmt. m; see also id. Reporters' Note 10 (noting that "`[c]onsistent pattern of gross violations' generally refers to violations of those rights that are universally accepted and that no government would admit to violating as state policy," including political and civil rights such as those described above).
[98] 70 F.3d at 243-44; accord Unocal, 2002 WL 31063976, at *9, ___ F.3d ___, ___.
[99] See Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Monell v. Dep't Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 393, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("An agent actingÔÇö albeit unconstitutionallyÔÇöin the name of the United States possesses far greater capacity for harm than an individual trespasser exercising no authority other than his own."); see also Unocal, 2002 WL 31063976, at *34, ___ F.3d ___, ___ (Reinhardt, J., concurring).
[100] See, e.g., Universal Declaration, supra, Arts. 2, 7, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 2-3; Convention on Racial Discrimination, supra, Arts. 1-8. reprinted in International Instruments, supra, Vol. I, Pt. 1, at 66-71.
[101] Restatement of Foreign Relations, supra 702(g).
[102] See e.g., Vienna Declaration and Programme of Action (the "Vienna Declaration"), Â 80, U.N. Doc. A/CONF. 157/23 (1993) (expressing condemnation of various "gross and systematic violations and situations that constitute serious obstacles to the full enjoyment of all human rights ..."); Beijing Declaration and Platform for Action (the "Beijing Declaration"), ch. IV.E. ÂÂ 114, 131, U.N. Doc. A/CONF. 177/20 (1995) (same, and specifically referencing "systematic rape"). The Vienna Declaration was adopted by the World Conference on Human Rights on June 25, 1993. See Vienna Declaration, supra, Note by the Secretarial. The Beijing Declaration was adopted by the Fourth World Conference on Women on September 15, 1995. See Beijing Declaration, supra, Resolution 1.
[103] See Proclamation of Teheran, Final Act of the International Conference on Human Rights (the "Proclamation of Teheran"), Â 11, U.N. Doc. A/CONF. 32/41 at 3 (1968), reprinted in International Instruments, supra, Vol. I, Pt. 1, at 51-54. The Proclamation of Teheran was adopted by the International Conference on Human Rights at Teheran on May 13, 1968. See International Instruments, supra, Vol. I, Pt. 1, at 51.
[104] See International Instruments, supra, Vol. I, Pt. 1 at 22, 23, 25, 27; see also Restatement of Foreign Relations, supra 702, cmt. n.
[105] See International Instruments, supra, Vol. I, Pt. 1 at 22.
[106] Id. at 27; see also Karl Josef Partsch, Freedom of Conscience and Expression, and Political Freedoms, published in The International Bill of Rights, supra at 212.
[107] See International Instruments, supra, Vol. I, Pt. 1, at 28. Article 19(3)(a) and (b) add respect for the reputations of others and protection of national security to the grounds permitting limitations on freedom of expression. These concerns are not mentioned in Article 18(3) as regards freedom of thought, conscience and religion. See id. at 27-28.
[108] By placing freedom of thought and freedom of opinion in separate Articles, the Covenant seems to imply a distinction between them. Any difference is tenuous. For, "thought" may include not only religious belief but social and political conceptualization as well. See The International Bill of Rights, supra at 214. One commentator endeavored to describe the nuances as follows: "[T]here are no clear frontiers between `thought', and `opinion'; both are internal. `Thought' is a process, while `opinion' is the result of this process. `Thought' may be nearer to religion' or other beliefs, `opinion' nearer to political convictions. `Thought' may be used in connection with faith or creed, `opinion' for convictions in secular and civil matters." Id. at 217.
[109] As regards the rights of peaceful assembly, of association with others, and of participation in political affairs, Articles 21, 22 and 25 of the Covenant elaborate other qualifications that clearly manifest the hierarchy of the arrangement among these various civil and political rights. See International Instruments, supra, Vol. I, Pt. 1, at 28-20. As in Articles 18 and 19, limitations are placed by Articles 21 and 22 on exercise of the rights of peaceful assembly and association; any interference is subject to the condition that the restriction be "necessary" in connection with the specified public purposes. Articles 18 and 19, however, require that any limitation on freedom to manifest beliefs or religion, as well as exercise freedom of expression, must be necessary to "protect" public safety, order, health or morals. Id. at 27-28. Articles 21 and 22, on the other hand, provide that the interference must be necessary "in a democratic society" and "in the interests" of national security or public safety or public order. Moreover, Article 21 differs in that restrictions are permitted if "imposed in conformity with law," as opposed to the apparently stricter standard of "prescribed" or "provided" by law that is employed in other formulations of the limitation. Id. at 28. These modifications would have the effect of rendering the recognition of freedoms associated with manifestation of beliefs and expression more rigorous as well as more broadly based.
By way of further contrast evidencing the distinctions and priorities built into the Covenant's hierarchical order, the rights of participation in political affairs set forth in Article 25 are not subject to the strict standards reflected in the "prescribed" or "provided" by law and "necessary" formulations that apply to the rights contained in Articles 18, 19, 21 and 22. Rather, these participatory rights are qualified by a far more ample and flexible condition that any restriction on them not be "unreasonable." Id. at 29-30.
[110] International Instruments, supra, Vol. I, Pt. 1 at 1.
[111] See Civil and Political Rights Covenant, supra, Arts. 19, 21, 22, 25 International Instruments, supra, Vol. I, Pt. 1 at 28-30 (categorically delineating a "right to hold opinions without interference" while providing for "reasonable" and "necessary" restrictions on rights to freedom of peaceful assembly, association and public governance and election); see also International Bill of Rights, supra at 217 ("The right to hold opinions may be seen as a special aspect of the right of privacy dealt with in Article 17 [of the Covenant], but there only arbitrary and unlawful interferences are prohibited; the privacy of thought and opinion is subject to no interference whatever.").
[112] See Restatement of Foreign Relations, supra 702, cmt. m.
[113] Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 82 L.Ed. 288 (1937).
[114] McDougal, Lasswell and Chen, supra at 700-01 (quoting Annotations on the Text of the Draft International Covenants on Human Rights, 10 U.N. GAOR, Annexes (Agenda Item No. 28) at 50, U.N. Doc A/2929 (1955)). See also The International Bill of Rights, supra at 216 ("It is an old commonplace that freedom of opinion and expression is one of the cornerstones of human rights and has great importance for all other rights and freedoms.").
[115] See International Instruments, supra, Vol. I, Pt. 1 at 2.
[116] Universal Declaration, supra, Art. 19, reprinted in International Instruments, supra, Vol. 1, Pt. 1, at 4; see also Civil and Political Rights Covenant, supra, Arts. 2(1), 26, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 21, 26; African Charter, supra, Art. 2, reprinted in International Instruments, supra, Vol. II at 331; American Convention, supra, Art. 13, reprinted in International Instruments, supra, Vol. II at 19; European Convention, supra, Art. 14, reprinted in International Instruments, supra, Vol. II at 78; Proclamation of Teheran, supra  5, reprinted in International Instruments, supra, Vol. I, Pt. 1 at 52.
[117] McDougal, Lasswell and Chen, supra at 697.
[118] Id. at 697-98.
[119] See G.A. Res. 2200 A(XXI), U.N. Doc. A/6316 (1966), reprinted in International Instruments, supra, Vol. I, Pt. 1, at 44-45. As of August 21, 2002, of the 156 state signatories of the Civil and Political Rights Covenant, 107 had signed and 102 had acceded to the Optional Protocol. See Status of Ratifications of the Principal International Human Rights Treaties, at http://www.unhchr.ch/pdf/report.pdf (August 21, 2002).
[120] 1 B.H.R.C. 653 (1996).
[121] Id. at  7.4; see also Ross v. Canada, 10 B.H.R.C. 219,  11.1-11.6 (U.N. H.R. Cmtee 2000) (finding no violation of Article 19 of the Covenant where the state demonstrated that the challenged interference with freedom of expression satisfied the standards set forth in Article 19(3), in that the restriction was imposed by law and did not go farther than necessary to achieve a legitimate protective function); Faurisson v. France, 2 B.H.R.C. 1,  9.1ÔÇö10 (1996) (same); HKSAR v. Ng Kung Siu, 6 B.H.R.C. 591 (Hong Kong Ct.App. 1999) (finding a violation of Article 19(3) in the conviction of a defendant under a national flag ordinance for defacing a flag during a peaceful demonstration).
[122] Article 10 of the European Convention provides:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
International Instruments, supra, Vol. II at 77.
[123] 7 B.H.R.C. 339, ÂÂ 57-64 (Eur.Ct.H.R.1999).
[124] Id. Â 57.
[125] Id.; see also Redmond-Bate v. Dir. of Pub. Prosecutions, 7 B.H.R.C. 375, Â 20 (High Ct., Qns. Bench 1999) (same).
[126] The United States Foreign Assistance Act of 1961 bars assistance to the government of "any country which engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person ...." 22 U.S.C. 2151n(a). See also 22 U.S.C. 2304; International Financial Assistance Act of 1977, 22 U.S.C. 262d (expressing United States policy to oppose assistance to such governments by international financial institutions).
[127] Zimbabwe is a signatory of the United Nations Charter, the Civil and Political Rights Covenant and the African Charter. (Laue Aff., Â 15.)
[128] See, e.g., Gitlow v. New York, 268 U.S. 652, 666-67, 45 S.Ct. 625, 69 L.Ed. 1138 (1925); Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919).
[129] See Civil and Political Rights Covenant, supra, Arts. 4(1), 4(2) and 19(3), reprinted in International Instruments, supra, Vol. I, Pt. 1, at 22, 28.
[130] See, e.g., Raucci v. Town of Rotterdam, 902 F.2d 1050, 1055-56 (2d Cir.1990); Sorichetti v. City of New York, 65 N.Y.2d 461, 492 N.Y.S.2d 591, 482 N.E.2d 70, 74-75 (1985).
[131] See Zimbabwe Const. Arts. 11, 20, 21; Laue Aff., Â 14.
[132] Zimbabwe Const. Art. 20(1).
[133] Id. Art. 21(1).
[134] See Laue Aff., Â 14.
[135] However, there is no indication in the materials presented to the Court as to whether punitive damages could be awarded under Zimbabwe law with regard to a violation of these political rights.
[136] See Tachiona III, 216 F.Supp.2d at 280 (citing Petramale v. Local No. 17 of Laborers Int'l Union of N. Am., 847 F.2d 1009, 1013 (2d Cir.1988), and Phillips v. Bowen, 115 F.Supp.2d 303, 306 (N.D.N.Y.2000), aff'd, 278 F.3d 103 (2d Cir.2002)).
[137] See Tachiona III, 216 F.Supp.2d at 281.
[138] 694 F.Supp. 707, 711-12 (N.D.Cal.1988) ("Forti II").
[139] See Xuncax, 886 F.Supp. at 186-87.
[140] Id. at 187.
[141] Id.
[142] Jama v. United States Immigration and Nat. Serv., 22 F.Supp.2d 353, 363 (D.N.J. 1998); Mehinovic, 198 F.Supp.2d at 1347-48 (citing Abebe-Jira, 72 F.3d at 847; Cabello v. Fernandez-Larios, 157 F.Supp.2d 1345, 1362 (S.D.Fla.2001)).
[143] See Forti I, 672 F.Supp. at 1543; Xuncax, 886 F.Supp. at 186.
[144] See Forti II, 694 F.Supp. at 711-712.
[145] See, e.g., Universal Declaration, supra, Art. 5, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 2 ("[N]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Declaration"), Art. 1, G.A. Res. 3452, U.N. Doc. A/10034 (1975), reprinted in International Instrument, supra, Vol. I., Pt. 1, at 290 ("Any act of torture or other cruel, inhuman or degrading treatment or punishment is an offense to human dignity[.]"); Civil and Political Rights Covenant, supra, Art. 7, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 23 ("No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment."); African Charter, supra, Art. 5, reprinted in International Instruments, supra, Vol. II at 332 (same); European Convention, supra, Art. 3, reprinted in International Instruments, supra, Vol. II at 74 (same); Restatement of Foreign Relations, supra 702 (same).
In Xuncax, the court noted that the provisions of the Torture Convention relating to torture are more explicit and forceful than those describing cruel, inhuman or degrading treatment. 886 F.Supp. at 186 n. 33. While that Convention defines "torture," it contains no explicit definition of cruel, inhuman or degrading treatment. Moreover Article 14 prescribes that every member state ensure in its legal system that victims of torture obtain redress and have an enforceable right to fair and adequate compensation. In contrast, Article 16 commits states only to undertake to prevent other acts of cruel, inhuman or degrading treatment that do not amount to torture. See id.
[146] See, e.g., Torture Declaration, supra, Art. 1, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 293-94.
[147] Mehinovic, 198 F.Supp.2d at 1348; see also id. ("`[T]orture is at the extreme end of cruel, inhuman or degrading treatment.'") (quoting Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 101 Senate Exec. Rep. 30, at 13 (1990)); Torture Declaration, supra, Art. 1(2) International Instruments, supra, Vol. I, Pt. 1, at 290 ("Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.").
[148] See, e.g., Restatement (Second) of Torts: Interference with Dead Bodies 868 (1982) (defining a cause of action for interference with dead bodies); Model Penal Code 250.10 (Proposed Official Draft 1962) (making treatment of a corpse in a way that would "outrage ordinary family sensibilities" a misdemeanor); Criminal Code, R.S.C., ch. C-46, 182 (1985) (Can.) (criminal law provision protecting the dignity of a corpse); see also Tyler Trent Ochoa, et al., Defiling the Dead: Necrophilia and the Law, 18 Whittier L.Rev. 539, 542-543 ("All societies for which there is any record have had customs concerning respect for corpses and the treatment of the bodies of the dead.").
[149] See Zimbabwe Const. Art. 15(1).
[150] See Laue Aff., ÂÂ 11-13.
[151] In the United States' ratification of the Civil and Political Rights Covenant the Senate expressed a reservation to Article 7, which relates to torture and cruel, inhuman or degrading treatment or punishment. It provides that "Art. 7 protections shall not extend beyond protections of the 5th, 8th and 14th Amendments of the U.S. Constitution." Senate Comm. on Foreign Relations Report on the International Covenant on Civil and Political Rights, S. Exec. Report. No. 23, 102nd Cong., 2d Sess. (1992), reprinted in 31 I.L.M. 645, 646 (1992). See Mehinovic, 198 F.Supp.2d at 1347-48; Cabello, 157 F.Supp.2d at 1360; Jama, 22 F.Supp.2d at 363; Xuncax, 886 F.Supp. at 187.
[152] See Tachiona III, 216 F.Supp.2d at 267.
[153] See, e.g., Universal Declaration, supra, Arts. 2, 7, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 2, 3. These provisions declare in pertinent part:
Art. 2:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Art. 7:
All are equal before the law and are entitled without discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Id.; see also Civil and Political Rights Covenant, supra, Arts. 2, 4(1), 26, reprinted in International Instruments, supra, Vol. I, Pt. 1, at 22, 23, 30; African Charter, supra, Arts. 2, 3, 4, 5, reprinted in International Instruments, supra, Vol. II at 331, 332; International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, Arts. 2, 3, 4, 5, 660 U.N.T.S. 195, 5 I.L.M. 352 (1966), reprinted in International Instruments, supra, Vol. I, Pt. 1, at 68-71; Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277 (1951), reprinted in International Instruments, supra, Vol. I, Pt. 2, at 669; International Convention on the Suppression and Punishment of the Crime of Apartheid, Arts. II, III, IV, G.A. Res. 3068, 28 U.N. GAOR, Supp. 30, U.N. Doc. A/9030 (1973), reprinted in International Instruments, supra, Vol. I, Pt. 1, at 82-83; Restatement of Foreign Relations, supra 702(e).
[154] See 42 U.S.C. 1983; Johnson v. Smith, 890 F.Supp. 726, 728-29 (N.D.Ill.1995).
[155] See Zimbabwe Const. Arts. 11, 23; Laue Aff., ÂÂ 14, 15.
[156] See Zimbabwe Const. Art. 16; Laue Aff., Â 12(iii).
[157] See International Instruments, Vol. I, Pt. 1, at 4.
[158] 534 F.2d 24, 30 (2d Cir.1976), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976); see also Jafari v. Islamic Republic of Iran, 539 F.Supp. 209, 214-15 (N.D.Ill. 1982) (holding that the expropriation by a state of property of its own nationals does not contravene the law of nations); Restatement of Foreign Relations, supra 702 cmt. k (noting that "[t]here is ... wide disagreement among states as to the scope and content of that right, which weighs against the conclusion that a human right to property generally has become a principle of customary law."); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428-30, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (noting the wide divergence of authority as to international limitations on a state's taking of alien property).
[159] See Compl. ÂÂ 7, 210. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610289/ | 207 Kan. 484 (1971)
485 P.2d 1290
In the Matter of the Estate of Edward E. Barnett, Deceased;
EDWIN W. BARNETT and ROBERT F. BARNETT, Executors, et al., Appellees,
v.
FRANCES D. BARNETT, Appellant.
No. 45,997
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Adrian M. Farver, of Burlingame, argued the cause and was on the brief for appellee, Robert F. Barnett.
Harry T. Coffman, of Lyndon, argued the cause and was on the brief for appellee, Robert F. Barnett.
Leonard W. McAnarney, of Lyndon, argued the cause for the appellee, Edwin W. Barnett.
The opinion of the court was delivered by
FOTH, C.:
This appeal involves the right of a surviving widow to have allocated to her the family homestead and statutory allowances, where she has elected to take under a joint, mutual and contractual will which she executed together with her late husband. The answer to the question posed, as in most probate questions to reach this court, turns on the particular circumstances of the parties and the terms of the will. Insofar as we are able to determine and the briefs of counsel do not indicate otherwise the question has not previously been decided in this state.
The testator, Edward H. Barnett, and the appellant, Frances D. Barnett, had four children, two daughters and two sons, all now adults. Neither party to the will had other than the mutual children to be concerned about.
*485 The will in question was executed by Edward H. Barnett and Frances D. Barnett on August 6, 1953. Insofar as it is pertinent here, it provides basically that the survivor should have a life estate in all of the property of the testators, with full power of disposal. Upon the death of the survivor, the daughters were to share in the testators' household goods, with the remainder of all property to be sold by the executors they to pay specific bequests of $6,000 each to the daughters and to divide the residue among the four children. Provisions were made for a pro rata abatement of the specific bequests in the event the estate was insufficient to fulfill them at the death of the survivor, and for the disposition of the share of any child who should predecease the survivor. The two sons, Edwin and Robert, were named as co-executors.
Edward E. Barnett died on February 26, 1968, and the will was offered for probate to the probate court of Osage County by the widow and all four children. The will was admitted to probate and the named executors duly appointed. Shortly thereafter, the widow filed in the probate court her petition to set aside to her the 160 acre homestead and the statutory allowances provided for in K.S.A. 59-403, as amended. Edwin, one of the co-executors, in such capacity filed his defense to the petition, and after hearing the probate court granted the petition and set aside to the widow the homestead, the items of property set out in 59-403 (1), and other property in the amount of $1,650 under 59-403 (2).
Edwin, again in his capacity as co-executor, timely appealed this decision to the district court of Osage County. In that court there was a brief stipulation of the parties as to the facts, including the marriage of the parties to the will and their occupancy of the real estate in question as their residence. It was also stipulated that the only issues were those of law. The district court found that the will was not only joint and mutual, but also contractual. Allowing homestead rights and statutory allowances, the court found, would impair the contract implied by the will. The probate court was therefore reversed as to its order in favor of the widow.
In due course she appealed to this court, with both co-executors named as appellees. Here we are faced with an anomalous situation: The appellant naturally urges reversal; one appellee, Robert, joins her in her position; and the other appellee, Edwin, whose position was sustained by the trial court's decision, chooses not to favor this court with any brief attempting to support that decision.
*486 Although it does not appear in the record, there lurks in the background a suspicion that this entire controversy stems from a dispute between the two brothers as to who should farm the homestead during the period of administration. If so, the matter may now be moot, but since mootness is not suggested by the parties and does not appear from the record, this court feels bound to decide this case on the questions and record submitted to it, within the terms of K.S.A. 60-2101 (b).
The parties agreed that the will was unambiguous, and no extrinsic evidence was offered concerning negotiations prior to its execution. The trial court therefore correctly decided that the nature of the will is to be determined solely from its terms. As noted above, it found that, in addition to its joint and mutual nature, it was contractual. With this finding we are not prepared to disagree. See the recent discussions of this aspect of the problem in In re Estate of Thompson, 206 Kan. 288, 478 P.2d 174, and In re Estate of Chronister, 203 Kan. 366, 454 P.2d 438.
Such a finding, however, does not dispose of the question presented by this particular will. Before a widow can be deemed to have waived the statutory benefits of homestead and allowances by consenting to the terms of her husband's will, K.S.A. 59-404 provides that it must clearly appear from the will that its provisions were intended to be in lieu of such rights. See e. g., In re Estate of Morrison, 189 Kan. 704, 371 P.2d 171.
In its conclusion of law the district court stated:
"It is the conclusion of the Court that the instrument is the joint, mutual, and contractual will of the decedent and his surviving spouse wherein statutory allowances are provided for each in a clear and concise manner.
"That the survivor takes under the last will and testament and under the terms thereof cannot take partly under the law and also take under last will and testament. The survivor in connection with the execution of the instrument elected to take under the instrument at the time of the execution thereof and neither could have claimed both under the will and the law.
"That to allow homestead rights or statutory allowances to either would be to allow a breach of the contract and agreement."
However, in the light of the language of K.S.A. 59-404, it does not appear to us that a joint, mutual and contractual will and the right to homestead and statutory allowances are necessarily mutually exclusive. Under the will here in question the widow was given not only the right of occupancy of the homestead granted by K.S.A. 59-401, but full power of disposition. The same may be said of *487 the personal property alloted under what is now K.S.A. 1970 Supp. 59-403.
As we see it, the instant petition by the surviving spouse does no violence to any of the terms of her contract with her deceased husband. As noted above, the will gives to her full power of disposition of all of deceased's property, including the homestead. Setting it aside to her as a homestead gives her no more title than the will gives her, and for all practical purposes the same may be said of the statutory allowances.
As to the statutory allowances, they are, of course, designed for the immediate needs of the surviving spouse and minor children, if any. O'Dell v. O'Dell, 157 Kan. 351, 139 P.2d 376. In each case, by taking under the statute the widow is given an additional element of protection against judgment creditors, if any, and the right to immediate possession as against the executors. We find nothing in the will which clearly shows an intent to deprive her of these advantages.
There is no evidence in this case that the widow, in exercising her right of disposition, has given or intends to give away any of the property involved, or take any other action which would defeat the purpose of the contract between the parties. In this respect the case differs from In re Estate of Buckner, 186 Kan. 176, 348 P.2d 818, and does not give rise to the basic concern of the court in In re Estate of Jones, 189 Kan. 34, 366 P.2d 792, upon both of which the trial court said it relied heavily. Should such event occur the remaindermen would not be without remedy. See In re Estate of Buckner, supra; In re Estate of Chronister, supra; Menke v. Duwe et al., 117 Kan. 207, 216, 230 P. 1065.
We have examined the other cases cited by the trial court. While they generally support the finding that the will here was contractual, we do not regard them as controlling on the right of the widow, under this will, to make the election she did.
To summarize, we do not find either a clear intent that the testamentary provisions for the widow should be in lieu of her homestead rights and statutory allowances, or that to grant them to her would constitute a breach of the contractual aspects of the will.
The judgment is therefore reversed with directions to enter judgment for the appellant Frances D. Barrett.
APPROVED BY THE COURT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610291/ | 79 Wash. 2d 302 (1971)
485 P.2d 71
W.W. COLE et al., Appellants,
v.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION et al., Respondents.
No. 41542.
The Supreme Court of Washington, En Banc.
May 13, 1971.
Rutherford, Kargianis & Austin, by George Kargianis, for appellants.
Slade Gorton, Attorney General, and Robert E. Simpson, Assistant, for respondent Washington Util. & Transp. Comm'n.
Cartano, Botzer & Chapman, by John W. Chapman, for respondent Washington Natural Gas Co.
McGOVERN, J.
This is an appeal from an order of the Superior Court for Thurston County which affirmed a ruling of the Washington Utilities and Transportation Commission that certain promotional practices of Washington Natural Gas Company were appropriate for a regulated public service corporation. The appeal also challenges the commission's refusal to allow the intervention of the Oil Heat Institute in the administrative hearing or the amendment of the appellants' complaint to include the institute's charges. Stated simply, the suit involves an attempt by the fuel oil industry to halt a program of Washington Natural Gas Company that has dramatically expanded the latter's market at the expense of other competitive fuel dealers.
In 1957, Washington Natural Gas Company (hereinafter the gas company) began offering new home "dry-out" gas service to home builders at a lower rate than that which it normally charged its residential customers. It was hoped that the practice would build service on existing gas mains *304 and promote the use of gas in areas of new construction. The cheaper "dry-out" rate did induce more builders to use gas heating and appliances, but the gas company felt that further promotions were necessary to realize the potential consumer use of existing facilities. In 1961, the utility started renting conversion burners to home owners for $1.95 per month. Thus, for a low monthly charge, residents along existing gas mains were able to convert their oil furnaces to gas use without having to purchase an expensive unit. The program was successful to the extent that the gas company expanded its leasing service in 1964 to include gas circulating heaters, furnaces and water heaters.
Cole, a fuel oil dealer and residential customer of Washington Natural Gas Company, complained, in 1965, to the Washington Utilities and Transportation Commission (hereinafter the commission) that the low-cost leasing program and "dry-out" rate were being operated as "loss leaders" to gain new gas customers at the expense of the gas company's existing customers, who were forced to subsidize the promotions with higher rates. (An amended complaint was filed shortly thereafter by 25 other gas consumers who failed to appear at the subsequent proceedings.)
In February 1966, public hearings were held on the rate complaint. The Oil Heat Institute (hereinafter the institute), an association of independent fuel oil dealers, attempted to intervene in the proceedings in order to show the adverse impact of the gas company's promotional practices on local fuel oil dealers. The commission twice denied the institute's petition for leave to intervene and denied subsequent motions by the appellants to amend the pleadings to include this broader area of concern. The commission determined that, under existing law, a rate complainant entitled to be heard had to be a gas consumer and that the institute, therefore, had no standing to intervene. Secondly, the commission held that it had no jurisdiction to examine the economic effects of practices of a regulated public service utility upon nonregulated competitors. Commission counsel also raised the question of whether or not *305 the leasing program of the gas company was a "jurisdictional" activity of a regulated public service utility.
The commission's final order in 1968 approved the challenged activities of the gas company as permissible under state law. On appeal, the Superior Court for Thurston County affirmed the ruling of the commission, including its ruling that the attempted intervention of the institute and the related motions to amend the complaint were improper. This appeal followed.
Appellants reargue here the same issues which were resolved adversely to them at both the administrative and trial court levels. And for the same reasons announced in those proceedings, we affirm the commission and trial court rulings in favor of the gas company.
We believe that the trial court correctly affirmed the commission's denials of the institute's petitions to intervene and the appellants' motions to amend the complaint. Appellants contend that the institute should have been allowed to participate in the proceedings because the commission is required under RCW 80.01.040(3) to "regulate in the public interest" and the public interest is best served by a thorough examination of the competitive imbalances caused by the gas company's promotional practices.
[1] However, rule 7.3 of the commission's Rules of Practice and Procedure, now WAC 480-08-070(3), delineates the factors which the commission should consider in deciding whether or not to grant a petition to intervene:
If it appears ... that the petition or motion discloses a substantial interest in the subject matter of the hearing, or that participation of the petitioner may be in the public interest, the Commission may grant the same ...
(Italics ours.)
Under the facts before us, it is doubtful whether the institute can prove a "substantial interest" in rates charged to customers of a competitor who is regulated by different laws and who provides an entirely different type of fuel service. Secondly, it is clear that the institute's objections *306 are beyond the concern of the commission under a reasonable interpretation of the term "public interest." At page 12 of the proposed order, the commission concluded that it had
jurisdiction only to consider the effects of competitive practices of one regulated utility upon another regulated utility and no other business. Although the words "public interest" are used extensively throughout the Public Service Laws, this interest of the public which is to be protected is that only of customers of the utilities which are regulated.
[2] This interpretation by the commission of its regulatory power is amply supported by statute and case law. Although RCW 80.01.040(3) demands regulation in the public interest, that mandate is qualified by the following clause "as provided by the public service laws ..." Appellants fail to point out any section of title 80 which suggests that nonregulated fuel oil dealers are within the jurisdictional concern of the commission. An administrative agency must be strictly limited in its operations to those powers granted by the legislature. State ex rel. PUD 1 v. Department of Pub. Serv., 21 Wash. 2d 201, 150 P.2d 709 (1944). We conclude that the commission correctly determined that it had no authority to consider the effect of a regulated utility upon a nonregulated business.
Our viewpoint is in accord with the weight of authority elsewhere. Re Promotional Activities by Gas & Elec. Corps., 68 P.U.R.3d 162 (1967); Re Promotional Practices of Elec. & Gas Util., 65 P.U.R.3d 405 (1966); Virginia State Corp. Comm'n v. Appalachian Power Co., 65 P.U.R.3d 283 (1966); Superior Propane Co. v. South Jersey Gas Co., 60 P.U.R.3d 217 (1965); Illinois Coal Operators' Ass'n v. Peoples Gas Light & Coke Co., 7 P.U.R. (n.s.) 403 (1934).
[3] Since the commission had neither express nor implied authority to examine the institute's contentions, its denial of the institute's petition to intervene was both proper and reasonable. We also note that even if the institute could demonstrate that it has a "substantial interest" that is cognizable under title 80, the commission still retains the discretion to grant intervention. There was no *307 showing that such discretion was manifestly abused by the denial of the institute's petitions. For similar reasons, we hold that the appellants' motions to amend the complaint to require consideration of the effect of the gas company's promotional practices upon nonregulated fuel dealers were properly denied.
Appellants next argue that the leasing of gas appliances is not a "jurisdictional" activity of a regulated utility. They find support for that contention in Re Intermountain Gas Co., 67 P.U.R.3d 511 (1967) and RCW 80.04.270. The latter statute requires that profits and losses associated with the "sale of merchandise or appliances" by public service companies be separately accounted and excluded from those accounts used to determine rates. Because the leasing program has virtually displaced sales, appellants maintain that the gas company is merchandising gas appliances within the spirit of the statute.
[4] We disagree. As noted by the commission's order, Re Intermountain Gas Co., supra, cited by the appellants, is readily distinguishable and is clearly a minority view. Such cases as Re Promotional Activities by Gas & Elec. Corps., 68 P.U.R.3d 162 (1967), Re Lakeland Natural Gas Ltd., 70 P.U.R.3d 1 (1967), Re Promotional Practices of Elec. & Gas Util., 65 P.U.R.3d 405 (1966), and Re City Gas Co., 64 P.U.R.3d 518 (1966), suggest that this leasing activity of the gas company is an appropriate method of stimulating growth of the utility enterprise.
[5] It is also apparent that there is a well-recognized difference in meaning between the terms "sale" and "lease," and that the jurisdictional exclusion of RCW 80.04.270 relates only to the former. Absent proof by the appellants of incidents of sale in the agreement between the gas company and its customers, appellants cannot expect the commission to decide that a common lease falls within the purview of RCW 80.04.270. An administrative agency cannot amend its statutory framework under the guise of interpretation. State v. Spino, 61 Wash. 2d 246, 377 P.2d 868 *308 (1963); Fisher Flouring Mills Co. v. State, 35 Wash. 2d 482, 213 P.2d 938 (1950).
[6] Applying the rule that the words of a statute must be given their usual and ordinary meaning (King County v. Seattle, 70 Wash. 2d 988, 425 P.2d 887 (1967); In re Estate of Phillips, 193 Wash. 194, 74 P.2d 1015 (1938)), we cannot see how the word "sale" in RCW 80.04.270 can include this ordinary leasing activity.
The respondent commission also supports its conclusion that the leasing of appliances is a jurisdictional activity by references to RCW 80.04.130 and .150 which refer to a "rental" charge or to RCW 80.28.010 and .100 which refer to charge for "any other service rendered" or "in connection therewith." Because no clause or individual words of a statute should be deemed superfluous (Kasper v. Edmonds, 69 Wash. 2d 799, 420 P.2d 346 (1966)), we assume that the legislature contemplated that public service corporations would engage in rental and leasing programs. More persuasive is a decision of one of the commission's predecessor commissions suggesting that the legislature early recognized the need for regulated utilities to engage in promotional activities similar to those which are challenged here. Department of Pub. Serv. v. Pacific Power & Light Co., 13 P.U.R. (n.s.) 187 (1936).
We concur with the conclusion in Re City Gas Co., 64 P.U.R.3d 518, 521 (1966), that "the appliance-leasing practice ... is a justifiable means of promoting the sale of natural gas."
Finally, appellants urge that the leasing program and the "dry-out" rate are violative of state statutes prohibiting discriminatory, noncompensatory and unreasonable rates. They argue that the figures and computations of the gas company failed to include certain associated costs of these programs and improperly included subsequent gas revenues with the revenues directly attributable to the rental charges. According to the appellants' accounting, these programs are being operated at a loss and thus in violation of *309 RCW 80.28.020.[1] They also suggest that RCW 80.28.090[2] and RCW 80.28.100[3], which prohibit rate discrimination, are being contravened by the different rates charged to "dry-out" contractors and to existing residential customers for the same basic type of service.
[7] We start with the presumption that the findings of the commission are prima facie correct and that the burden of proof is upon the appellants to demonstrate that those findings and conclusions are unlawful, unsupported by the evidence, arbitrary or capricious. State ex rel. Bremerton Transfer & Storage Co. v. Washington Util. & Transp. Comm'n, 67 Wash. 2d 876, 410 P.2d 602 (1966); Northern Pac. Transp. Co. v. Washington Util. & Transp. Comm'n, 69 Wash. 2d 472, 418 P.2d 735 (1966). This is especially true where, as here, the issues involve complex factual determinations peculiarly within the expertise of the commission and where the proceedings were only concluded after 13 days of testimony and 1,700 pages of transcript.
We are persuaded that the commission and the trial court *310 correctly found that the leasing program was legal, fully compensatory and of great benefit to the utility and to its consumers. Typical of the theme of the commission's conclusions is their statement at page 31 of the proposed order (adopted as the final order on November 1, 1968) "that the rental program has resulted in the company being able to improve earnings, reduce rates and gain more customers.... It has been of benefit to all its customers." We believe that the reasons given by the respondent gas company for its accounting processes are logical, proper and well supported by the evidence. And we would be hesitant to challenge those findings upon the testimony and exhibits of the appellants' witnesses, which evidence the commission termed "inadequate, unreliable, and erroneous ... based upon unsupported assumptions, conjectures, opinions ... errors and broad, unsupported `estimates.'" Commission finding of fact 5.
We conclude that the leasing program is providing a "reasonable compensation" within the meaning of RCW 80.28.020 and that the customers of the gas company are in no way subsidizing this program. Similarly, the commission found that the interim "dry-out" revenues exceeded the actual and direct costs of the service offered to building contractors. We also conclude that this program is fully compensatory, that it promotes new gas customers and that it provides additional revenues usually unavailable prior to occupancy of the homes involved.
[8] It is contended that the difference in rates offered to a contractor and a residential consumer constitutes an illegal rate discrimination. There is a valid distinction between temporary service to a vacant and perhaps untenantable structure and regular service to an occupied residence. Rate classifications premised on reasonable differences in conditions and costs are an accepted part of utility rate making. Re Potomac Edison Co., 68 P.U.R.3d 155 (1967). This court previously considered a suit based on the statute that is now RCW 80.28.100 in State ex rel. Model Water & Light Co. v. Department of Pub. Serv., 199 Wash. 24, 90 *311 P.2d 243 (1939). While determining that there was no unlawful discrimination in the different electrical rates charged to local water districts, we remarked, at page 36:
A mere difference in rates does not, of itself, constitute an unlawful discrimination. State ex rel. Puget Sound P. & L. Co. v. Department of Public Works, 181 Wash. 105, 42 P. (2d) 424. A comparison of rates may be persuasive and may be controlling, but only when it is also shown that the conditions are comparable and that the rates used for comparison are just, fair, reasonable, and sufficient. Logan City v. Public Utilities Commission, 77 Utah 442, 296 P. 1006.
We agree with the commission and the trial court that the conditions here are not comparable. In any case, the statute condemns "undue or unreasonable preference" between similarly situated customers. If there is a preference demonstrated, it is patently reasonable in inducing the use of gas service at an earlier date than actual occupancy. RCW 80.28.090 and RCW 80.28.100 are thus not offended by this practice.
The judgment of the Superior Court for Thurston County is affirmed.
HAMILTON, C.J., FINLEY, HUNTER, HALE, NEILL, STAFFORD, and WRIGHT, JJ., concur.
ROSELLINI, J., concurs in the result.
Petition for rehearing denied July 1, 1971.
NOTES
[1] RCW 80.28.020. "Whenever the commission shall find, after a hearing had upon its own motion, or upon complaint, that the rates or charges demanded, exacted, charged or collected by any gas company ... for gas ... are insufficient to yield a reasonable compensation for the service rendered, the commission shall determine the just, reasonable, or sufficient rates ... to be thereafter observed and in force, and shall fix the same by order."
[2] RCW 80.28.090. "No gas company, electrical company or water company shall make or grant any undue or unreasonable preference or advantage to any person, corporation, or locality, or to any particular description of service in any respect whatsoever, or subject any particular person, corporation or locality or any particular description of service to any undue or unreasonable prejudice or disadvantage in any respect whatsoever."
[3] RCW 80.28.100. "No gas company, electrical company or water company shall, directly or indirectly, or by any special rate, rebate, drawback or other device or method, charge, demand, collect or receive from any person or corporation a greater or less compensation for gas, electricity or water, or for any service rendered or to be rendered, or in connection therewith, except as authorized in this chapter, than it charges, demands, collects or receives from any other person or corporation for doing a like or contemporaneous service with respect thereto under the same or substantially similar circumstances or conditions." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610311/ | 485 P.2d 984 (1971)
82 N.M. 650
Steven J. MAYNERICH, Jr., a minor by and through Steven J. Maynerich, his father and next of friend, and Steven J. Maynerich, individually, Plaintiffs-Appellants,
v.
LITTLE BEAR ENTERPRISES, INC., a corporation, Milton Black and Ellis Hamblin, Defendants-Appellees.
No. 578.
Court of Appeals of New Mexico.
May 21, 1971.
*985 Richard B. Cole, Civerolo, Hansen & Wolf, Albuquerque, for plaintiffs-appellants.
Charles B. Larrabee, John P. Salazar, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees.
OPINION
SPIESS, Chief Judge.
The principal question presented upon this appeal is whether the Workmen's Compensation Act, § 59-10-1 et seq., N.M.S.A. 1953 (Rpl. Vol. 9, pt. 1) precludes an illegally employed minor from maintaining a common law action against the employer seeking damages for injuries based upon negligence. The appeal is from a summary judgment in favor of the employer.
Facts before the court upon consideration of the motion for summary judgment are as follows: Steven J. Maynerich, a minor, fifteen years of age, was employed by Little Bear Enterprises, Inc., (the employer). His duties included waiting on customers in the hardware and feed departments, and performing such other tasks as were required of him. Steven was called upon from time to time to participate in the operation of a machine known as a fork lift. The fork lift was used in moving heavy objects, loading and unloading trucks. During the afternoon of July 26th, Steven was assisting in unloading hay from a truck and was directed to climb upon the fork lift to designate the placement of bales of hay after they had been unloaded from the truck. To avoid a fall from the machine Steven placed his right hand on or within certain working parts of the lift resulting in the amputation of three of his fingers and injury to the remaining fingers. At the time of injury Steven was fifteen years of age.
For the purpose of the motion for summary judgment, Steven's work with and upon the fork lift was treated as an employment "* * * dangerous to lives and limbs, * * *"
The Child Labor Law, § 59-6-5, N.M.S.A. 1953 (Rpl. Vol. 9, pt. 1) provides:
"No child under the age of sixteen (16) years shall be employed or permitted to labor at any of the following occupations or in any one of the following positions: * * * nor in any employment dangerous to lives and limbs, * * *"
As we have indicated, the trial court, in rendering summary judgment, assumed this case to be controlled by the Workmen's Compensation Act to the end that Steven was barred from maintaining a common law action, and was limited to the remedies provided by the Workmen's Compensation Act. (§ 59-10-6, N.M.S.A. 1953 (Rpl. Vol. 9, pt. 1).
The Workmen's Compensation Act is based upon an employer-employee relationship. Perea v. Board of Torrance County Commissioners, 77 N.M. 543, 425 P.2d 308 (1967). The Act, (§ 59-10-12.9, N.M.S.A. 1953 (Rpl. Vol. 9, pt. 1, 1969 Supp.) defines workman as follows:
"Workman.As used in the Workmen's Compensation Act [59-10-1 to 59-10-37], unless the context otherwise requires, `workman' means any person who has entered into the employment of or works under contract of service or apprenticeship, with an employer, except a person whose employment is purely casual and not for the purpose of the employer's trade or business. The term `workman' shall include `employee' and *986 shall include the singular and plural of both sex."
It is clear from this definition that employer-employee relationship, to which the Act applies, is one created by contract between the parties; consequently, if the employer in this case seeks to avail itself of the Workmen's Compensation Act as a bar to a common law action, then it must show a valid contract of employment between it and Steven.
In our opinion, a contract, the performance of which violates a penal statute, is illegal and at least voidable, and will not provide a basis for the assertion of rights under such contract, particularly by the party upon whom the statute imposes the penalty. See Measday v. Sweazea, 78 N.M. 781, 438 P.2d 525 (Ct.App. 1968); Farrar v. Hood, 56 N.M. 724, 249 P.2d 759 (1952); Acklin Stamping Co. v. Kutz, 98 Ohio St. 61, 120 N.E. 229, 14 A.L.R. 812 (1918); also 6A Corbin, Contracts, § 1540.
The extension of coverage under Workmen's Compensation Acts to illegally employed minors is now generally provided by specific statutory provisions. See 1A Larson, Workmen's Comp., Sec. 47.52(a), page 789. Cases employing these statutes as a basis for barring a common law remedy to an illegally employed minor are of no assistance here. Our Act, by its terms contains no specific language bringing illegally employed minors within its terms.
In our view, the weight of authority, as applied to statutes similar to ours, supports the proposition that an illegally employed minor may pursue a common law action. Hadley v. Security Elevator Co., 175 Kan. 395, 264 P.2d 1076 (1953); Cox Cash Stores v. Allen, 167 Ark. 364, 268 S.W. 361 (1925); Pigg v. Stacey, 210 Tenn. 144, 354 S.W.2d 593 (1962). See also authorities cited Annot. 14 A.L.R. 818; 142 A.L.R. 1018.
Nothing in Benson v. Export Equipment Corporation, 49 N.M. 356, 164 P.2d 380 (1945), is contrary to the conclusions here expressed because in Benson the minor was not illegally employed at the time the injury was sustained.
We hold that Steven is not barred by the Workmen's Compensation Act from maintaining a common law action, and that the trial court erred in denying him such remedy.
We have carefully considered authorities cited by employer. They do not, however, in our opinion, compel a conclusion different from that herein expressed.
Employer contends that Steven waived any rights he may have had to pursue a common law action because he accepted workmen's compensation benefits. The record does show that Steven received certain checks (which he cashed) issued by an insurance company. He testified, in substance, that he did not know that the checks were payments under the Workmen's Compensation Act.
It is fundamental that both waiver and estoppel require knowledge of the facts by the person against whom they are asserted. First Nat. Bank of Hastings v. Davis, 123 Neb. 304, 242 N.W. 655 (1932).
In Addison v. Tessier, 62 N.M. 120, 305 P.2d 1067 (1957), the court, in discussing the question of estoppel by acceptance of benefits, said:
"In order to create estoppel by acceptance of benefits it is essential that the person against whom estoppel is claimed, should have acted with full knowledge of the facts and of his rights, * * *"
See Miller v. Phoenix Assur. Co. Limited, of London, 52 N.M. 68, 191 P.2d 993 (1948).
In view of the fact issue presented by the record with respect to the claim of waiver this matter is not properly subject to summary judgment.
Reversed with direction to vacate the summary judgment and proceed in a manner not inconsistent herewith.
It is so ordered.
WOOD and HENDLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610316/ | 207 Kan. 338 (1971)
485 P.2d 190
LIZZIE BOHAN HARPER, Appellant,
v.
JACK J. KUNTZ and MARY E. KUNTZ, Appellees.
No. 45,983
Supreme Court of Kansas.
Opinion filed May 15, 1971.
Wilmer E. Goering, of Clarkson, Goering and Silver, of Wichita, argued the cause, and Earl M. Clarkson, Jr. and Michael J. Silver, of the same firm, were with him on the brief for the appellant.
H.E. Jones, of Hershberger, Patterson, Jones and Thompson, of Wichita, argued the cause, and Greer Gsell, of the same firm, was with him on the brief for the appellees.
The opinion of the court was delivered by
SCHROEDER., J.:
This is a negligence action brought by the plaintiff to recover for injuries sustained as a result of a fall from an inadequately lighted step while on the defendants' premises The trial court sustained a motion for summary judgment and appeal has been duly perfected.
The controlling question on appeal is whether the state of the *339 record is sufficient to warrant the disposition of the case by a motion for summary judgment.
At the time the motion for summary judgment was interposed the pleadings were on file, pretrial had been conducted and the deposition of the plaintiff had been taken.
At all times material hereto the defendants owned and, together with four of their children, occupied the premises next door to the plaintiff.
During the early part of the month of December, 1966, a party was planned for Patsy Kuntz, the eldest daughter of the defendants, to be held at the Kuntz home on the evening of December 14, 1966. The plaintiff alleged in her petition that she had previously been invited by the defendant, Mary E. Kuntz, to attend a "Stanley Party" on that evening, when she was caused to step and fall off the porch stairs onto an open and unprotected area and across a framework of metal chair backs stuck into the ground alongside and in front of the residence, by reason of the negligent conduct of the defendants in failing properly to protect, light and guard the same and in failing to warn the plaintiff of the dangers and hazards thereof. As a result the plaintiff sustained personal injuries.
When the plaintiff was asked in her deposition to explain what a "Stanley Party" was like, she said:
"A. Oh, they have all kinds of things they want to sell, you know, even sprays for the house and cologne and different stuff of that nature.
"Q. Well, this is held as a little social gathering?
"A. Yes.
"Q. In someone's home, is that correct?
"A. Yes, that's right.
"Q. And someone and this is the way someone sells goods?
"A. Yes. They insisted.
"Q. And the person who has the party may reap some kind of benefit from it?
"A. Yes, they get a little extra bonus.
"Q. And they invite their friends in?
"A. And they also get a bonus if they get somebody else to give one of the parties."
In her deposition the plaintiff testified that a week or so before the time for the party, the defendants' daughters the two younger girls, Mary, age 9, and Kathleen, age 13 expressly invited the plaintiff to attend the party. Again on the day of the party the two younger girls came to Mrs. Harter's home and insisted on her coming to the party.
*340 Mrs. Harter went to the defendants' home at approximately 7 o'clock. It was after dark. When she arrived at the party she was served refreshments, visited a bit, was shown the merchandise, made some purchases, and was the first to leave the party about 9 o'clock.
When the plaintiff left the party Kathleen accompanied her through the front door which opened onto a covered porch across the front of the house. The steps leading off the porch were about four in number, there was no hand rail, and at the foot of the steps was a concrete platform. As the plaintiff stepped off the platform she fell. The large porch light, which ordinarily illuminated the area, had been removed and replaced with a connection to run a string of small colored Christmas lights across the front of the porch. A large evergreen tree cast a shadow across the area where the plaintiff fell.
The motion alleged the deposition of the plaintiff and the admissions of the parties left no question concerning any material fact relative to the plaintiff's relationship to the defendants while on their premises in dispute, in that the plaintiff's visit was purely social.
At the pretrial conference the parties announced the factual issues in the case to be the negligence of the defendants, if any, and the contributory negligence of the plaintiff, if any. The plaintiff maintained that the defendants failed to keep their property in a reasonably safe condition in that they did not maintain sufficient lighting. The defendants maintained that the plaintiff herself refused aid and assistance and failed to keep a proper lookout for her own safety.
A further factual issue was the status of the plaintiff upon the defendants' property whether she was "a social guest or a business invitee or licensee."
The appellant contends the trial court erred in finding the plaintiff's relationship to the defendants while upon the defendants' premises to be purely social thereby making her legal status that of a licensee. The appellant argues she was a business invitee as to the appellees, relying upon Graham v. Loper Electric Co., 192 Kan. 558, 389 P.2d 750; and Lemon v. Busey, 204 Kan. 119, 461 P.2d 145.
A person's status when entering upon the property of another by invitation is determined by the purpose for which the person comes upon the property. (Lemon v. Busey, supra.)
*341 To support the appellant's position that she was a business invitee, counsel for the appellant in his brief argues concerning the "Stanley Party:"
"Such a merchandising plan is not new. However, it has recently gained considerable popularity and continues to do so. It has become big business. Large organizations are using this method or merchandising solely for the selling of household goods, cookware, toiletries, cosmetics, clothing and many other articles. Many persons are engaged on a full time basis to assist hostesses to arrange `parties' where their wares may be displayed and hopefully sold to the persons invited to the party.
"This, appellant urges, is business, big business, and not social in purpose. The fact that it is held in one's home, usually in the evening hours and in a relaxed or informal atmosphere does not detract from the real and true reason for the `party.'
"The motive of the company representative in assisting the host in arranging the party certainly would bear the marks of having a business purpose.
"The prime purpose of the host in having the party was to `obtain bonuses,' again more of a business purpose, and, appellant submits the purpose in her being there was to view the merchandise for sale for the purpose of enticing her to make a purchase, which she did."
The evidence ultimately presented at the trial of the case may confirm the appellant's position as to the business nature of a "Stanley Party," and the purpose for which the appellant attended, but the record at this point in the proceeding is not sufficient to establish these facts. Certainly the court cannot take judicial notice of these facts. In other words, a factual issue as to the status of the appellant on the appellees' premises remains to be determined.
In Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964, it was held:
"Where a motion for summary judgment is sought, the provisions of K.S.A. 60-256 (c) authorize the judgment to be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Syl. ¶ 1.)
While the appellees concede the appellant is entitled to have her claim submitted to a jury if she was their "invitee" at the time of the injury, they argue that a business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land, citing Lemon v. Busey, supra. While the appellees concede they were unquestionably possessors of the land within the meaning of the foregoing rule, it is argued the appellant was invited to *342 enter the appellees' land by their daughters, who, by the appellant's own testimony, had organized and hosted the party, invited the appellant, and received whatever "bonus," if any, was distributed by the selling company. They argue there is no evidence that the appellees, or either of them, had any connection whatsoever, either direct or indirect, with the party other than allowing their daughters the use of their residence. The appellees contend they simply had no dealings, business or otherwise, with the appellant in this matter, and as to them the appellant could not have been a "business visitor" as defined in our cases.
The appellees' assumption from the appellant's deposition that the daughters of the appellees had organized and hosted the party is too broad.
At the pretrial, and made a part of the pretrial order, the appellant announced she would use as witnesses herself, her husband, five members of the Kuntz family (naming them) including the appellees, and Dr. A.J. Wray. The appellees announced they would use all of the same witnesses.
The appellees argue they took the appellant's deposition and no further discovery was conducted by either party. They contend at no time did the appellant request or conduct any further discovery or file any affidavits in opposition to the appellees' motion for summary judgment. On this point the appellees conclude:
"Having made no attempt to oppose defendants' Motion with additional evidence, plaintiff cannot now complain, and must be bound by the evidence in the Record on Appeal which contains no genuine issue of a material fact."
We fail to see merit in the foregoing argument of the appellees.
It has heretofore been said that a motion for summary judgment cannot be converted into a trial by affidavits. When there is a good faith dispute over the facts the parties must be afforded a trial at which the evidence is presented and the live facts determined. (Brick v. City of Wichita, supra.)
In view of the allegations of the petition, and the issues framed at the pretrial conference, we have carefully examined the appellant's testimony as recorded in her deposition to determine whether the appellant has in any manner negated the charges made by her.
At no time during the taking of the deposition was any inquiry made of the appellant as to her purpose in attending the party; nor was there inquiry as to the presence of Mr. and Mrs. Kuntz (the appellees) at the party. No inquiry was made as to any authorization *343 or directive given by the appellees to their daughters, who were minors, concerning the party. The deposition is devoid of any such testimony, but it is conceded the appellees possessed the premises upon which the party was conducted. That being true, the trial court had before it material allegations set forth in the petition, controverted by the appellees' answer, which were followed by a pretrial order delineating the factual issues.
In proceeding on a motion for summary judgment K.S.A. 60-256 (c) provides in pertinent part:
"... The adverse party prior to the day of hearings may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, ... on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law...." (Emphasis added.)
Since the allegations of the appellant's petition, and the issues defined in the pretrial order, were not negated by the deposition of the appellant's testimony, and the motion for summary judgment was not supported by any other testimony, there would be no occasion for the appellant to file an affidavit.
On similar facts a motion for summary judgment was held improper in Horvath v. Fisher Foods, Inc., 28 Ohio Op. 2d 113, 93 Ohio L. Ab. 182, 194 N.E.2d 452, 99 A.L.R. 2d 721.
Here the petition named Jack J. Kuntz and Mary E. Kuntz (appellees), the father and mother of Mary, Kathleen and Patsy, as the defendants and charged them with negligence. The pretrial order stated as one of the factual issues to be determined at the trial the negligence of the defendants, if any, in failing to maintain their property in a reasonably safe condition in that they did not provide sufficient lighting.
The deposition of the appellant, in view of the foregoing discussion, would not preclude evidence at the trial showing that the "Stanley Party" was conducted as a family venture for which the appellees would be responsible. But it is unnecessary to speculate as to what course the evidence on this point may eventually take; needless to say, the factual issue is still undetermined. Undoubtedly at the trial testimony of the members of the Kuntz family, whom the appellant named as witnesses at the pretrial conference, will supply the testimony to resolve this issue.
On the record here presented a motion for summary judgment is unwarranted.
The judgment of the lower court is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1431164/ | 94 Cal. App. 2d 885 (1949)
THE PEOPLE, Respondent,
v.
JOHN McDONNEL, Appellant.
Crim. No. 2151 Third Dist.
California Court of Appeals.
Dec. 1, 1949.
Chester Monette for Appellant.
Fred N. Howser, Attorney General, and Gail A. Strader, Deputy Attorney General, for Respondent.
THOMPSON, J.
The defendant was charged with an assault with a deadly weapon, to wit, a loaded revolver, with intent to kill Tommy Young. He was tried with a jury and convicted of the lesser offense of assault with a deadly weapon. From the judgment which was rendered accordingly this appeal was perfected.
The appellant contends that the verdict and judgment are not supported by the evidence; that he went with two companions to a Negro Christmas night celebration to try to identify a Negro who his companion Albro said had previously beaten him; that Tommy Young was the aggressor in an affray which ensued, and that he (the defendant) shot him in what he believed to be necessary self-defense to prevent imminent bodily harm. It is also insisted the court erred in giving to the jury and in refusing to give certain instructions.
Mr. and Mrs. Burks were entertaining some friends in their rooms in the upper story of an apartment house in Eureka, on Christmas night. The hosts and guests were Negroes. The defendant and his companions were white people. The defendant was acquainted with Mr. Burks, having previously worked with him in a Eureka foundry. Upon that Christmas night the defendant met his friend Albro, who was then disheveled and intoxicated. His clothes were torn and muddy. He told the defendant he had been beaten by a Negro, and asked the defendant to go with him to the Burks' Christmas celebration to see if they could find the man who assaulted him. The defendant consented to do so, and arming himself with his revolver they met and persuaded another companion by the name of Van Cleve to accompany them. The three men proceeded *887 to the apartment house where the Burks' party was being held. They arrived shortly before midnight, and entering the front door they climbed a flight of 26 stairs to the second story upon which the Burks' rooms were located. They rapped at the door, and when Mr. Burks appeared the defendant told him his friend Albro had been beaten by a Negro, and said they wanted to see if that man was there. Burks told him he didn't know anything about the affair; that they were having a little Christmas party, and did not want any trouble. He requested the defendant and his companions to leave them alone and to go away. But when the defendant and his associates insisted on seeing the Negro guests, Burks called them from the room. Ten or a dozen of them came trooping out into the hallway and stood in a group upon the landing at the head of the stairway. Tommy Young was among them. The defendant, evidently being surprised at the large number of guests who came swarming out of the room, decided that "discretion was the better part of valor," and saying "We don't want any trouble, let's go," hastily ran down the stairs to a safe place near the bottom, where he stopped and turned around. The defendant claimed that Young shoved him downstairs, but several witnesses denied that statement. The defendant asserted that Young followed him part way down the stairway, and that he threatened him with bodily harm. But that statement was denied by Young and several other witnesses. Young testified that he put his hand on the shoulder of Van Cleve, a very tall and large man, as he stood at the head of the stairway, and told him they were having a Christmas party and didn't want any trouble, and that he asked the defendant and his companions to go away and to leave them alone. Van Cleve claimed that Young shoved him down the stairway. In any event Van Cleve and Albro proceeded to follow the defendant down the stairway. Young stood at the head of the stairway with one leg thrown over the bannister. None of the Negroes were armed, and none of them threatened the defendant or his companions with harm. There was no demonstration or effort on the part of Young or the other Negroes to follow them downstairs.
Suddenly, without warning, the defendant, who stood in a safe place near the bottom of the stairs, drew his revolver and shot Mr. Young in the leg. The defendant and his companions immediately fled through the front door and disappeared. Young was seriously injured and was taken to a hospital for medical treatment. The defendant was subsequently *888 arrested and charged with the crime as previously stated.
[1] If we assume that the foregoing circumstances constituted an affray, it was the sole province of the jury to determine who the aggressor was in that affray.
[2] We are satisfied the evidence amply supports the verdict and judgment convicting the defendant of the lesser offense of an assault with a deadly weapon. There appears to have been no sufficient provocation or justification for the shooting of Mr. Young or any other person involved in that affair. The defendant deliberately armed himself with his revolver and went with two companions to that Christmas party, seeking some unknown Negro who Albro said had previously assaulted him. The Negro guests were called from the reception room at the request of the defendant. None of the Negroes were armed, and none of them attempted to attack the defendant or his companions, nor did they threaten to do so. They were not pursuing the defendant down the stairway. Mr. Young stationed himself at the top of the stairway where he stood unarmed, with his leg thrown over the bannister. The defendant occupied a safe position at the bottom of the stairway near the front door, through which he could have easily escaped to absolute safety if he had been threatened with bodily harm. There is an abundance of evidence that no such harm was threatened. The circumstances would not warrant the defendant in believing as a reasonable man that he was then in imminent danger of receiving great bodily harm. [3] The question of whether the defendant, as a reasonable man, was justified in believing, under the circumstances of this case, that he was then threatened with imminent danger so as to justify the use of a deadly weapon in necessary self-defense is a problem for the sole determination of the jury. (People v. Zuckerman, 56 Cal. App. 2d 366, 374 [132 P.2d 545].) The implied finding of the jury upon that issue was adverse to the contention of the defendant. With that conclusion we may not interfere, in view of the record in this case. Certainly Young was not the aggressor in that alleged affray between himself and the defendant.
[4] The court properly instructed the jury that a person who seeks or instigates a quarrel with another person must, in good faith, first desist or retire from the affray, before he will be justified in the use of a deadly weapon in self-defense, or in using force and violence against his adversary. (People v. Holt, 25 Cal. 2d 59, 66 [153 P.2d 21].) Moreover, the court *889 gave to the jury the following instruction favorable to the defendant upon that identical principle:
"It is lawful for a person who is being assaulted and who has reasonable grounds for believing that bodily injury is about to be inflicted upon him to stand his ground and defend himself from such attack; and in so doing, he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person in the same or similar circumstances to be necessary to prevent the injury which appears to be imminent. A person who has been attacked and who is exercising his right of lawful self-defense is not required to retreat and he not only may stand his ground and defend himself against the attack but may also pursue his assailant until he has secured himself from danger, if that course appears to him and would appear to a reasonable person in the same situation to be reasonably and apparently necessary; and this is his right, even though he might have gained safety by withdrawing from the scene."
[5] It did not constitute reversible error for the court to refuse to give defendant's proposed instruction to the effect that he had testified in his own behalf and that his credibility and the weight of his evidence should be determined by the jury in the same manner applicable to any other witness. The court elsewhere fully charged the jury with respect to the rule to be followed in determining the credibility and weight of the testimony of each and all witnesses alike. It has been repeatedly held to be improper for the court to single out a particular witness and to charge the jury how his evidence should be considered. (People v. Barnett, 99 Cal. App. 409, 416 [278 P. 885]; People v. Young, 88 Cal. App. 2d 129, 134 [198 P.2d 384]; People v. Jeans, 79 Cal. App. 464 [249 P. 1089]; People v. Jackson, 63 Cal. App. 2d 586, 595 [147 P.2d 94]; 8 Cal.Jur. 394, p. 356.) That instruction was properly rejected.
The judgment is affirmed.
Adams, P. J., and Peek, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900650/ | Becker v. State
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
RUSS RUTZEN,)
No. 08-02-00189-CR
)
Appellant,)
Appeal from
)
v.)
168th District Court
)
THE STATE OF TEXAS,)
of El Paso County, Texas
)
Appellee.)
(TC# 20010D03073)
MEMORANDUM OPINION
Russ Rutzen appeals from his conviction for possession with intent to deliver more than four
but less than 200 grams of cocaine. Appellant waived his right to a jury trial and entered a
negotiated plea of guilty. The trial court assessed his punishment in accordance with the plea bargain
at a fine of $1,000 and imprisonment for a term of ten years, probated for ten years. We affirm.
FACTUAL SUMMARY
Jose Hernandez, an El Paso County Deputy Sheriff, was on patrol in the lower-valley area
of El Paso when he observed a truck exceeding the posted speed limit of 35 miles per hour. The
driver stopped his truck at a red light, then spun his tires in an exhibition of speed when the light
turned green. Hernandez turned on his overhead lights and stopped the truck for both traffic
offenses. Due to heavy traffic on the street, Hernandez asked the driver, whom he identified as
Appellant, to exit the vehicle and step to the side of the street. Hernandez noticed that Appellant
appeared much more nervous than would be expected for a traffic stop. Appellant's hands were
visibly shaking and he kept looking around. Hernandez then asked Appellant to have a seat in the
backseat of the patrol car while he ran a license and warrants check. Appellant gave Hernandez
permission to search the truck and he signed a written consent to search form.
Hernandez requested assistance from another unit to search the vehicle so he waited until
Deputy Quiroz arrived. Quiroz watched Appellant while Hernandez conducted the search.
Hernandez found a club in the vehicle and he placed Appellant under arrest for unlawfully carrying
a weapon. When Hernandez handcuffed Appellant, he saw a white powdery substance scattered
around the backseat of the patrol car where Hernandez had been sitting. Hernandez knew the
powdery substance was not in his car prior to Appellant sitting in the backseat because he had
inspected his car when he went on duty and no one else had been in the backseat. The substance
proved to be cocaine.
Appellant filed a "Motion to Suppress the Arrest," alleging he was arrested without a warrant
or probable cause. In order to establish standing, Appellant testified at the suppression hearing that
he had possessed the cocaine on his person prior to Hernandez finding it in the backseat of the patrol
car. Appellant argued "that the stop was bad from the onset" and the State had failed to prove he
committed an offense because it did not prove the posted speed limit. He also argued that the State
had failed to affirmatively link him to the cocaine found in the backseat. The trial court denied the
motion to suppress.
LEGALITY OF THE DETENTION
In his sole point of error, Appellant contends that the trial court erred in denying the motion
to suppress because the detention exceeded the scope of the traffic stop, and therefore, the consent
to search is a product of the unlawful detention. He also argues that the State failed to prove that his
detention was based on reasonable suspicion. Appellant did not make any of these arguments in the
trial court.
To preserve error for review on appeal, a defendant's complaint on appeal must comport with
the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997). By his
written motion to suppress and brief arguments in the trial court, Appellant challenged the lawfulness
of his arrest by arguing that it was without a warrant or probable cause. He did not argue that his
detention exceeded the scope of the traffic stop or that his consent to search was the product of an
unlawful detention. Based on comments made at the suppression hearing, both the State and trial
court understood the motion to suppress as aimed at the basis for the traffic stop and not the scope
of the detention. Because Appellant's objections made in the trial court do not comport with the
argument made on appeal, the issue is not preserved for our review. See Leno v. State, 934 S.W.2d
421, 423 (Tex.App.--Waco 1996), pet. dismissed as improvidently granted, 952 S.W.2d 860
(Tex.Crim.App. 1997)(defendant's arguments on appeal regarding confession were not preserved
where they varied from the arguments he made in his motion to suppress); Foster v. State, 874
S.W.2d 286, 289 (Tex.App.--Fort Worth 1994, pet. ref'd)(grounds argued on appeal as to why
affidavit and search warrant were defective were waived because they did not comport with
arguments made in motion to suppress). We overrule Appellant's sole point of error and affirm the
judgment of the trial court.
August 7, 2003
ANN CRAWFORD McCLURE, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish) | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2241405/ | 349 Ill. App. 243 (1953)
110 N.E.2d 460
Edna Fink, Appellant,
v.
Benjamin I. Simpson et al., Appellees.
Gen. No. 45,938.
Illinois Appellate Court.
Opinion filed February 2, 1953.
Released for publication February 20, 1953.
Bernard Allen Fried, for appellant.
Joseph V. Murphy, for appellees.
Stephen J. Sullivan, of counsel.
(Abstract of Decision.)
Opinion by JUSTICE BURKE.
Decree reversed and cause remanded with directions.
Not to be published in full. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2418212/ | 327 S.W.2d 751 (1959)
Jack Austin BILLS, Appellant,
v.
STATE of Texas, Appellee.
No. 30761.
Court of Criminal Appeals of Texas.
June 24, 1959.
*752 McKool & Bader, by Mike McKool, Dallas, for appellant.
Henry Wade, Dist. Atty., H. Dustin Fillmore, Ben F. Ellis and Merle Flagg, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is for sodomy; the punishment, 15 years.
Appellant entered a plea of guilty before a jury and filed application for a suspended sentence.
At the trial the prosecuting witness named in the indictment, who was an eleven year old boy, testified that on the night in question he went with the appellant and two other boys to a drive-in theatre where they parked in a station wagon on the third row from the back; that he went to the concession stand with one of the boys and when they returned the appellant and the other boy were in the back of the station wagon; that, at appellant's request, he then got in the back where appellant committed an act of sodomy upon him, after which he returned to the front seat and the boy who had accompanied him to the concession stand got in the back with appellant.
Appellant's written confession was introduced in evidence in which he admitted taking the prosecuting witness and the other two boys to the drive-in theatre on the night in question and further admitted that he committed an act of sodomy upon the prosecuting witness and upon one of the other boys.
As a witness in his own behalf, appellant testified in support of his application for a suspended sentence that he had never been convicted of a felony and admitted that the statements contained in his written confession were true.
Appellant predicates his appeal upon the contention that the court committed reversible error in admitting evidence before the jury, over his objection, of other crimes and offenses which did not relate to the offense charged against him and that the prosecuting attorney committed reversible error in referring to such other crimes and offenses in his argument to the jury.
It is first insisted that the court erred in overruling appellant's motion, made at the beginning of the trial, requesting the court to instruct State's counsel not to elicit any testimony pertaining to any crimes or offenses other than those which related directly to the charge against appellant. In overruling the motion the court did not err as a motion to suppress evidence is not a recognized procedure in this State. Dominguez v. State, 161 Tex. Crim. 124, 275 S.W.2d 677, and Williams v. State, 164 Tex. Crim. 347, 298 S.W.2d 590.
A careful examination of the record reflects that the only evidence admitted by the court of any extraneous crime or offense committed by appellant was the evidence of appellant's acts and conduct on the night in question in getting in the back of the station wagon with the other two boys who were with the prosecuting witness and committing an act of sodomy upon one of them. Such acts and conduct were a part of the res gestae of the offense charged and the evidence thereof was admissible. 18 Tex.Jur. par. 39, page 77; Bowles v. State, 156 Tex. Crim. 548, 244 S.W.2d 811; Gephart v. State, 157 Tex. Crim. 414, 249 S.W.2d 612, and Botello v. State, 161 Tex. Crim. 207, 275 S.W.2d 814.
*753 The argument of State's counsel of which appellant complains was clearly in reference to the appellant's association with the three boys who were with him on the night in question and to the families of the prosecuting witness and the other boy upon whom he committed the acts of sodomy. The argument was warranted by the evidence and did not infer that appellant had committed other crimes or offenses upon boys other than those present on the occasion when the offense was committed upon the injured party.
Finding no reversible error, the judgment is affirmed.
Opinion approved by the Court.
WOODLEY, Judge (concurring).
The case of Hemmeline v. State, Tex.Cr. App., 310 S.W.2d 97, controls the disposition of the contention that the act of sodomy by appellant and another boy on the same occasion was inadmissible because it showed the commission of an extraneous offense.
In the Hemmeline case the offense was auto theft to which plea of guilty was entered and application was made for suspended sentence. Evidence that narcotics were found in appellant's possession and that a burglary had been committed in the area where he was first seen was held to be admissible.
The unanimous opinion in Hemmeline v. State points out that the offenses were contemporaneous with and a part of the case on trial, and were not disconnected. The contention that since Hemmeline plead guilty it was error for the court to permit the State to prove that a burglary had been committed and that appellant was in possession of narcotics was overruled.
Williams v. State, Tex.Cr.App., 215 S.W.2d 627, was distinguished: "because the offenses there proved were disconnected in point of time from the offense to which appellant (Williams) had plead guilty, while the offenses in the case at bar (Hemmeline) were contemporaneous with and a part of the case on trial." [310 S.W.2d 98.]
The act of sodomy with another boy, being admissible as a part of the transaction, could be shown by appellant's confession or on his cross-examination, as well as by an eye witness.
It is the act of sodomy with the second boy which was admissible under the so-called res gestae rule. Appellant's confession was admitted under the confession statute, Vernon's Annotated Code of Criminal Procedure, art. 726, not as a res gestae statement.
With these expressions, I join in the approval of Commissioner DICE'S opinion.
DAVIDSON, Judge (dissenting).
Proof of other and extraneous offenses committed by the accused is admissible only when proof thereof tends to solve some disputed issue in the case. Branch's P. C., 2d Edition, Vol. 1, § 188.
The disputed issue must be one of fact. Daniel v. State, Tex.Cr.App., 212 S.W.2d 636.
This being a plea of guilty before a jury, there was no issue, either under the pleadings or the facts, which would authorize proof of acts of sodomy committed by the appellant with third parties.
If proof of such other acts or offenses was admissible it was admissible only because it tended to prove some disputed fact issue in the case. If there was a disputed issue as to appellant's guilt, the case could not proceed to final conclusion upon the plea of guilty before the jury. Burks v. State, 145 Tex. Crim. 15, 165 S.W.2d 460.
So if the evidence of the other crimes was admissible, there was before the jury an issue as to appellant's guilt and the plea of guilty should have been withdrawn and the trial conducted under a plea of not guilty.
*754 If the plea of guilty was to remain, then proof of the other crimes was inadmissible because there existed no issue in the case whereby proof thereof would be authorized.
In any event, both the plea of guilty and the proof of extraneous crimes can not exist in the case, being repugnant one to the other.
The majority opinion says that proof of the other acts of sodomy was a part of the res gestae of the transaction for which appellant was on trial.
Res gestae is the transaction speaking. As applied to this case, that transaction was the one for which appellant was on trial and to which he had pleaded guilty and which the proof showed was concluded and made final before the subsequent acts of sodomy were committed.
Proof of those other and subsequent crimes could not therefore be a part of the res gestae of preceding and closed transactions.
Moreover, where proof of other crimes becomes and is a part of the res gestae such crimes are subject to the same limitation as is proof of the other crimeswhich is that proof thereof must tend to establish some disputed issue in the case.
Here is the rule announced by this court in Lockhart v. State, 53 Tex. Crim. 589, 111 S.W. 1024, 1026:
"Statements of parties engaged in a trouble, or declarations or acts or matters occurring at the time of the supposed transaction, are not admissible as res gestae simply because they were stated at the time; but these acts and declarations, when sought to be used on the trial of a party accused, must have some relevancy or materiality or bearing upon the issue or issues involved in such trial."
The state finds itself upon the horns of a dilemma. If the plea of guilty stands, proof of the other offenses was not admissible. If proof of the other offenses was admissible, then such proof destroyed the plea of guilty.
In a concurring opinion, my brother WOODLEY, seeks to justify the affirmance of this case under authority of Hemmeline v. State, Tex.Cr.App., 310 S.W.2d 97.
That case is neither in point nor controlling, here.
The conclusion reached in that case was bottomed upon the proposition that the evidence objected to was a part of the offense for which the accused was on trial. Such is made evident, because Beard v. State, 146 Tex. Crim. 96, 171 S.W.2d 869, 875, is relied upon to sustain that conclusion.
I call attention to the fact that the Beard case makes clear that the proof of other offenses was there authorized because they were deemed part of the crime of murder, for which Beard was being tried. To make that clear, the court said:
"This court has long been committed to the proposition, and to which we tenaciously adhere, that a party accused of crime must be tried upon the particular accusation, and may not be shown by evidence of any character to be a criminal generally unless under the facts of the particular case evidence of other offenses or convictions becomes pertinent under some exception to the general rule of exclusion."
That the Hemmeline case is not in point here is further demonstrated by the fact that Goodman v. State, 118 Tex. Crim. 636, 39 S.W.2d 893, and Williams v. State, Tex. Cr.App., 215 S.W.2d 627, were held not to control the disposition of that case (Hemmeline).
Both the Goodman and Williams cases directly support this appellant's position and my dissent here, because in those cases, as here, the evidence of other offenses was no proof of the offense for which the accused was on trial, and there were no issues *755 of fact which would render them admissible.
The Hemmeline case supports rather than challenges my position that proof of appellant's other and separate crimes was not admissible.
When the state proved the act of sodomy it made a complete case and sustained, by proof, the plea of guilty.
Other offenses committed by appellant with other persons subsequent thereto which had no connection whatsoever with the offense to which he had pleaded guilty but which were separate and distinct therefrom should not have been admitted in evidence, especially in view of the fact that appellant was not shown to have ever been convicted thereof or charged thereon.
The conviction ought to be reversed. All the law that this court has written upon the subject, as above pointed out, ought not to be destroyed, as my brethren are here doing.
I dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2899872/ | 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-CRÂ
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
Â
JANUARY 27, 2009
______________________________
ILDEFONSO SANTIAGO MARTINEZ,
                                                                                                 Appellant
v.
THE STATE OF TEXAS,
                                                                                                 Appellee
______________________________
FROM THE 251ST 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.
          Appellantâs appointed counsel has filed motions to withdraw, together with an
Andersâ
brief, wherein he certifies that, after diligently searching the record, he has
concluded that appellantâs appeals are without merit. Along with his brief, he has provided
a copy of a letter sent to appellant informing him of counselâs belief that there was no
reversible error and of appellantâs 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 courtâs 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 appellantâs 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 counselâs
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.
Â
                                                                           Brian Quinn
                                                                          Chief Justice
Â
Do not publish.
Accent 5"/>
NO. 07-09-00191-CV
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL A
Â
JUNE
23, 2011
Â
Â
IN THE MATTER OF THE MARRIAGE OF VICKI SKARDA AND GREGORY WAYNE SKARDA
Â
Â
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
Â
NO. 2008-544,204; HONORABLE JUDY C. PARKER, JUDGE
Â
Â
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
Â
Â
OPINION
Â
In this appeal from a divorce
proceeding, appellant Gregory Skarda challenges the
trial court=s characterization of a tract of real
property as one-half his separate property and one-half the separate property
of appellee Vicki Skarda.[1] We will affirm.
Background
In June 2003, Gregory purchased real
property located at 7913 FM 1264 in Lubbock County. Payment was by promissory note secured by a
vendor=s lien and deed of trust.
Gregory and Vicki married in May
2004. They occupied a house on the FM
1264 property. On January 17, 2006,
Gregory obtained refinancing of the FM 1264 property. In connection with the refinancing, on that
date he and Vicki signed a warranty deed conveying the FM 1264 property to
Gregory and Vicki as Ajoint tenants with right of
survivorship.@[2]Â
A deed of trust executed the same date identified Gregory and Vicki
jointly as Aborrower.@
Vicki filed for divorce in July 2008,
and the case was assigned to County Court at Law No. 3 of Lubbock County. No children were born to the marriage and
their dispute on divorce concerned division of their marital estate. Following a bench trial, a decree of divorce
was rendered which included the following finding concerning the FM 1264
property:
The court finds that [Gregory] owned the real property located at 7913 FM
1264 . . . before marriage. After marriage [Gregory and Vicki] refinanced that property.
During the refinancing process [Gregory] executed a deed transferring, by gift,
a one-half interest to [Gregory] and a one-half separate property interest to
[Vicki].
No separate findings of fact and
conclusions of law were requested.[3]Â This appeal followed.
Issues
Through three issues, Gregory challenges
the decree=s finding concerning the FM 1264
property. First, he assails the
subject-matter jurisdiction of the trial court.Â
Second, he argues the finding of joint ownership of the FM 1264 property
was in derogation of a Rule 11 agreement between him and Vicki. Finally, he challenges the factual
sufficiency of the evidence supporting the finding that Gregory gifted a
one-half interest in the FM 1264 property to Vicki.
Analysis
In his first issue, Gregory asserts
the trial court lacked subject-matter jurisdiction to characterize his separate
real property as the joint property of the parties. His jurisdictional challenge is founded on
Government Code ' 26.043(8), which provides that in
civil matters a county court lacks jurisdiction in a suit for recovery of
land. Tex. Gov=t Code Ann. ' 26.043(8) (West 2004).
Whether a trial court possesses
subject-matter jurisdiction is a question of law we review de novo. Texas Natural Res.
Conservation Comm=n
v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In Title 2 of the Government Code, regarding
the judicial branch of our state government, the phrase Acounty court@ means the court created in each
county by Article V, Section 15 of the Texas Constitution. Tex. Gov=t Code Ann. ' 21.009(1) (West 2004); Tex. Const.
art. V, ' 15. Because it is a court enumerated in the Texas
Constitution, such a court often is referred to as the Aconstitutional county court.@Â
See Tex. GovÂt
Code Ann., ch. 26 (West 2004 & Supp. 2010)
(entitled Constitutional County Courts); Santana v. Tex. Workforce Comm=n, No. 03-05-0452-CV, 2007 Tex. App. Lexis 6561, at *4 (Tex.App.--Austin Aug. 16, 2007, pet. denied) (mem. op.) (citing 1 Roy W. McDonald & Elaine A. Grafton Carlson,
Texas Civil Practice ' 3:3 (2d ed. 2004)). Conversely, a Astatutory county court,@ such as Lubbock County Court at Law No. 3, is a county court
created by the Legislature under Article V, Section 1, of the Texas
Constitution. See Santana, 2007 Tex. App. Lexis 6561 at *7; Tex.
Gov=t Code Ann. ' 21.009(2) (West 2004); Tex. Gov=t Code Ann. ' 25.1541(a)(3)
(West 2004) (providing that County Court at Law No. 3 of Lubbock County is a
statutory county court).Â
The general grant of jurisdiction of
a statutory county court includes concurrent jurisdiction with constitutional
county courts and district courts in civil cases with an amount in controversy
between $500 and $100,000. Tex. Gov=t Code Ann. ' 25.0003(a),(c)(1)
(West Supp. 2010). Additionally, in
family law cases and proceedings the Legislature has specifically granted the
county courts at law of Lubbock County concurrent jurisdiction with the
district court. Tex. Gov=t Code Ann. ' 25.1542 (West 2004). In Government Code Chapter 25 (Statutory
County Courts) the phrase Afamily law cases and proceedings@ incorporates suits for divorce
Âincluding the adjustment of property rightsA and Âevery other matter incident to divorce . . .
proceedings.@Â
Tex. Gov=t Code Ann. ' 25.0002 (West 2004).
Gregory cites Loville
v. Loville as supporting his argument. 944 S.W.2d 818 (Tex.App.--Beaumont 1997, writ denied) (per curiam).Â
There, the appellate court dismissed the appeal from a Jefferson County
court at law, finding the underlying suit was for recovery of land. Id. at 819. Looking to Government Code ' 25.0003(a) and (c)(1),
the court found the county court at law was vested with the same jurisdiction
as the constitutional county court in original civil proceedings. Id.Â
The court found that since the constitutional county court lacked
jurisdiction of a suit for recovery of land because of the restriction of §
26.043(8), the statutory county court also lacked such jurisdiction. Id.
Government Code ' 26.043 is part of Government Code
Chapter 26 (Constitutional County Courts).Â
It contains no reference to statutory county courts, and by its plain
language thus affects the jurisdiction only of constitutional county
courts. In Loville, as noted, the court
found § 26.043 applicable to the statutory county court only by virtue of the provisions
of § 25.0003(a) granting those courts the jurisdiction prescribed by law for
constitutional county courts. 944 S.W.2d at 819.[4]Â
In Santana, the Austin court pointed out that the jurisdiction given
statutory county courts in Travis County exceeded that given similar courts in
Jefferson County, so the logic employed in Loville did not apply to restrain
the jurisdiction of the Travis County court.Â
Santana, 2007 Tex. App. Lexis
6561, at *9; see Tex. Gov=t Code Ann. ' 25.1252 & statutory history (West
2004) (Jefferson County court at law provisions). For the same reason, Loville is inapposite here. The Legislature has given the county courts
at law of Lubbock County concurrent jurisdiction with the district courts in
family law cases and proceedings.Â
Resolution of disputed characterizations of property held by the parties
on divorce is a matter incident to divorce.[5]Â The trial court did not lack subject-matter
jurisdiction. See generally Dubai
Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.
2000) (Âjurisdiction refers to authority of a court to adjudicate the type of
controversy involved in the action).
GregoryÂs first issue is overruled.
In his second issue, Gregory urges
the trial court abused its discretion by ignoring the parties= Rule 11 agreement concerning the FM
1264 property. See Tex. R. Civ.
P. 11.
The community estate of the parties
was divided through a contested hearing.Â
The only Rule 11 agreement we find in the record is in the clerk=s record. Neither side placed it in evidence at the
hearing. AA trial judge is presumed to consider only the testimony and
exhibits properly in evidence. When
reviewing the merits of the trial court=s decision, we are limited to considering the material that
was before the trial court at the time that it ruled.@Â
Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex.App.--Fort
Worth 2004, pet. denied) (citations omitted).Â
But even had the agreement been in
evidence, the trial court could not have abused its discretion by failing to
take its terms into account in characterizing and dividing the parties= marital estate. We construe a Rule 11 agreement according to
the rules for construction of contracts.Â
Dallas County v. Rischon
Development Corp., 242 S.W.3d 90, 93 (Tex.App.--Dallas
2007, pet. denied). In so doing,
we look to the plain meaning of the words used to determine the extent of the
parties agreement. Cross
Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App.--Amarillo
2000, no pet.).
The agreement is expressly
conditioned on the trial court finding the FM 1264 property was not included in
the parties community estate. On that
happening, the agreement specifies that Vicki will sign a Acorrection deed stating that such
real property is the sole and separate property of [Gregory].@Â
The Rule 11 agreement does not purport to be a stipulation to a
particular characterization of the property, nor does it limit or constrain the
trial court in its task of resolving the parties dispute over its
characterization. Regardless whether the trial courtÂs characterization
required some action by the parties under the Rule 11 agreement, a matter not
presented and on which we express no opinion, the agreement does not
demonstrate an abuse of discretion by the trial court in its characterization. Gregory=s second issue is overruled.
By his third issue, Gregory asserts
the evidence was factually insufficient to support the trial court=s finding that Gregory gifted a
one-half interest in the FM 1264 property to Vicki.
In a decree of divorce, a trial court must
Âorder a division of the estate of the parties in a manner that the court deems
just and right.ÂÂ Tex.
Fam. Code Ann. § 7.001 (West 2006).Â
Only the community property of the parties is subject to division. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985). To determine whether the trial court erred in characterizing
property, we apply an abuse of discretion standard. Raymond v. Raymond, 190 S.W.3d 77, 80 (Tex.App.--Houston
[1st Dist.] 2005, no pet.).Â
Gregory challenges the factual sufficiency of the evidence supporting
the finding of gift. But under the abuse
of discretion standard we employ, the legal and factual sufficiency of the
evidence are not independent grounds of error, but relevant factors for
determining whether the trial court abused its discretion. Zieba v. Martin, 928 S.W.2d 782, 786 (Tex.App.--Houston
[14th Dist.] 1996, no writ); Crawford v. Hope, 898 S.W.2d 937, 940-41 (Tex.App.--Amarillo 1995, writ denied). If an abuse of discretion is shown, we then
consider whether the error was harmless.Â
See Tex. R. App. P. 44.1(a).
It is
presumed that property possessed by spouses on the dissolution of marriage is
community property. Tex.
Fam. Code Ann. ' 3.003(a) (West 2006). But the presumption is overcome by clear and
convincing evidence that the asset is the separate property of a spouse.  Id. at ' 3.003(b). Property a spouse owns before marriage or
acquires during marriage by gift is separate property. Tex. Const. art. XVI, ' 16; Tex. Fam. Code Ann. '
3.001(2) (West 2006). The
separate or community character of property is determined by the inception of
title to the property. Jensen v. Jensen, 665 S.W.2d 107, 109 (Tex. 1984).
A deed
for property from one spouse as grantor to the other spouse as grantee creates
a rebuttable presumption that the grantee spouse received the property as
separate property by gift. Magness v. Magness, 241
S.W.3d 910, 913 (Tex.App.--Dallas 2007, pet. denied)
(citing Raymond, 190
S.W.3d at 81; Dyer v. Dyer, 616 S.W.2d 663, 665 (Tex.Civ.App.--Corpus
Christi 1981, writ dism=d w.o.j.). A gift is a transfer of property made
voluntarily and gratuitously, without consideration. Ellebracht v. Ellebracht, 735 S.W.2d 658,
662 (Tex.App.--Austin 1987, no writ). The existence of a gift requires sufficient
proof of: (1) intent to make a gift; (2) delivery of the property; and (3)
acceptance of the property. Hayes v. Rinehart, 65 S.W.3d 286, 289 (Tex.App.--Eastland
2001, no pet.); In re Estate of Hamill, 866
S.W.2d 339, 344 (Tex.App.--Amarillo 1993, no writ). The intent of the donor is the principal
issue in determining whether a gift was made.Â
Hayes, 65 S.W.3d at 289.Â
Â[Joint] tenants have one and the same
interest, accruing by one and the same conveyance, commencing at one and the
same time, and held by one and the same undivided possession. Neither can be exclusively seised of any particular part of the property, and is
cotenant of the other; but each has an undivided moiety of the whole, and not
the whole of an undivided moiety.ÂÂ Calvert v. Wallrath,
457 S.W.2d 376, 377-378 (Tex. 1970) (quoting In re TilleyÂs Estate, 166 A.D. 240, 151 N.Y.S. 79, 80-81
(1915), affÂd 215 N.Y. 702, 109 N.E. 1094 (1915)). Â Â[J]oint tenancy is
a form of separate property ownership and is wholly incompatible with community
property concepts.ÂÂ Holmes v. Beatty, 290 S.W.3d 852, 859 (Tex. 2009) (quoting W. Reed Quilliam, Jr., A
Requiem for Hilley: Is Survivorship Community
Property a Solution Worse than the Problem?, 21 Tex. Tech L. Rev. 1153, 1167
(1990)).Â
AWhether property given by one spouse
to the other is a gift and the recipient=s separate property is a fact-intensive decision.@Â
Hardy v. Hardy, No. 03-02-0780-CV, 2003 Tex.
App. Lexis 5106, at *11 (Tex.App.--Austin June 19,
2003, no pet.) (mem.
op.). A trial court, sitting as trier of fact, is the sole judge of the credibility of the
witnesses and the weight assigned their testimony. Hatteberg v. Hatteberg, 933 S.W.2d 522, 530
(Tex.App.--Houston [1st Dist.] 1994, no writ). As such, the trial court may consider all the
facts and surrounding circumstances in connection with the testimony of each
witness and accept or reject all or any part of that testimony. Id.  Â
Here, trial began with the
presumption that the FM 1264 property was community property. Without dispute from Vicki, inception of
title in Gregory before marriage was established. The January 17 deed created a joint tenancy
in the FM 1264 property in Gregory and Vicki.Â
Otherwise, evidence of characterization was meager. Gregory testified he intended only to
refinance the property and not give a half interest to Vicki. Vicki agreed she received a one-half interest
in the property by gift Aor otherwise@ but also agreed the property was
community in which she owned a one-half interest by deed. There was no evidence the January 17
deed was procured by fraud, accident, or mistake. By its nature, the joint tenancy created in
Vicki by the January 17 deed was her separate property. On this record, we are unable to say
the trial court abused its discretion in finding Vicki received a one-half
interest in the FM 1264 property by gift.Â
See Magness, 241 S.W.3d at 913 (reaching same conclusion on
similar facts). Gregory=s third issue is overruled.
Â
Â
Conclusion
Having overruled each of Gregory=s issues, we affirm the judgment of
the trial court.
Â
James T. Campbell
Justice
Â
[1] For simplicity, we will refer to the
parties by their given names. While not
material to the merits of this appeal, the decree granted Vicki=s request for name change.   Â
[2] The deedÂs granting clause
identified the grantor as ÂGregory Skarda, a married
man and joined by his spouse Vicki Skarda, and its
grantee as ÂGregory Skarda and Vicki Skarda, husband and wife as joint tenants with right of
survivorship.Â
[3] On the request of a party, a trial
court rendering a decree of divorce dividing the marital estate shall make
findings of fact and conclusions of law.Â
The findings and conclusions must characterize and value each asset and
liability on which disputed evidence was presented. Tex. Fam. Code Ann. '
6.711 (West 2006).
[4] See Merit Mgmt. Partners I, L.P. v.
Noelke, 266 S.W.3d 637,
643 (Tex.App.--Austin 2008, no pet.) (applying same logic to jurisdiction of statutory county
court in Tom Green County).
[5] In
a decree of divorce, a trial court must Âorder a division of the estate of the
parties in a manner that the court deems just and right. Tex. Fam. Code Ann. § 7.001
(West 2006). Inherent in this
process is the characterization of each partyÂs assets. See
Tex. Fam. Code Ann. § 6.711(a)(1) (West 2006) (in suit for divorce where court
has divided marital estate of parties, on request court shall make written
findings of fact and conclusions of law concerning inter alia the characterization of each partyÂs assets);Â Boyd v.
Boyd, 131 S.W.3d 605, 617 (Tex.App.--Fort Worth
2004, no pet.) (if mischaracterization of property is
to degree affecting just and right division of community estate appellate court
must remand for just and right division based on correct characterization). | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876870/ | 283 So. 2d 302 (1973)
Elizabeth ROTOLO, wife of James LOYACANO
v.
CONTINENTAL INSURANCE COMPANY and Winn-Dixie, La. Inc.
No. 5518.
Court of Appeal of Louisiana, Fourth Circuit.
September 26, 1973.
C. Edgar Cloutier, Chistovich & Kearney, New Orleans, for defendants-appellants.
Robert E. McDonald, New Orleans, for plaintiff-appellee.
Before LEMMON, BOUTALL and SCHOTT, JJ.
BOUTALL, Judge.
This is an appeal from a judgment in favor of plaintiff, Elizabeth Rotolo Loyacano, *303 awarding her a total of $2,838.75 in damages due to personal injury, and against defendants, Winn-Dixie, La. Inc. and its insurer Continental Insurance Company (later acknowledged to be The Fridelity and Casualty Company of New York).
On or about May 18, 1970, plaintiff purchased a sealed package of ground meat from a Winn-Dixie food store which is located at 1418 Lafayette Street in Gretna, La. The ground meat was packaged in a plastic bottom container with a clear celluloid covering. Plaintiff returned home and placed the meat, still packaged, into her refrigerator. Within a couple of days she decided to prepare the ground meat into hamburger patties. She unpackaged the meat, prepared patties, seasoned them with salt, and placed them into a pan which she in turn placed into her oven. When the patties were cooked plaintiff placed the pan containing the patties on her kitchen counter. She then broke off a piece from one of the patties and bit into it. She thereupon bit onto a hard substance causing her to suffer a broken upper right second bicuspid.[1] The tooth had to be surgically extracted, along with the necessary bridge work.
In its reasons for judgment the trial court stated that defendant is liable in damages to plaintiff for the breach of warranty implied in the sale of food. Defendants contend that since plaintiff's petition does not contain allegations charging breach of warranty but speaks only in terms of negligence, the judgment is subject to reversal. We are of the opinion that to dismiss plaintiff's suit under this line of reasoning would do plaintiff a substantial injustice and would be contrary to our written law and jurisprudence on the subject.
LSA-C.C.P. art. 854 states as follows:
"Art. 854. Form of pleading
No technical forms of pleading are required.
All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances."
This article preserves the Louisiana system of pleading facts, and the fact that plaintiff did not mention breach of warranty in her petition will not be fatal to her suit for damages as long as the necessary facts have been pleaded.
Our jurisprudence is to the effect that pleadings should be liberally construed to the end that the pleader will have his day in court and that the ends of justice will be best served. See Phoenix of Hartford Ins. Co. v. United States Rub. Co., 245 So. 2d 436 (La.App. 1st Cir. 1970); J. Wilton Jones Co. v. Liberty Mutual Insurance Co., 248 So. 2d 878 (La.App. 4th Cir., 1970); Glass v. Vista Shores Club, 221 So. 2d 304 (La.App. 4th Cir., 1969). Also, in Boudreaux v. Allstate Finance Corp., 217 So. 2d 439 (La.App. 1st Cir. 1968) we find the rule that technical rules of pleading no longer obtain and all doubt must be resolved in favor of the pleader to the end that substantial justice be achieved. In our discussion we should also make note of LSA-C.C.P. art. 862 which states as follows:
"Art. 862. Relief granted under pleadings; sufficiency of prayer
Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief."
Defendant also contends that the trial court erred in finding that defendant *304 breached its warranty. We are referred to a number of cases setting forth the warranty of wholesomeness incumbent on sellers of food. In Walker v. American Beverage Company, 124 So. 2d 157 (La.App. 4th Cir., 1960) the court stated as follows:
"[1] The law is well-settled that any processor, bottler or packager of food or drink, for human consumption, warrants it to be absolutely free from harmful or deleterious substances. However, the consumer must prove that the drink or food caused his illness, not merely make it conjectural. LeBlanc v. Louisiana Coca Cola Bottling Co., 221 La. 919, 60 So. 2d 873."
In Mushatt v. Page Milk Company, 262 So. 2d 520 (La.App. 4th Cir., 1972), the court stated the rule that the buyer of food and drink in sealed containers is entitled to rely upon the fact that the manufacturer represents it to be wholesome and pure. Also, Deris v. Finest Foods, Inc., 198 So. 2d 412 (La.App. 4th Cir., 1967) states that the seller of food stuffs is bound to warrant their wholesomeness and everyone should know of qualities of things he manufactures and sells and that lack of such knowledge is imputed to him as a fault rendering him liable to the purchaser for any vices or defects of the things.
On the other hand, the defendant argues to us that a doctrine of strict liability should not be imposed in a case such as this. He urges that those cases which impose strict liability are cases in which some foreign substance was permitted to remain in the food, and that in the present case, the substance causing the damage was a piece of bone, which is natural to meat. He refers us to the case of Musso v. Picadilly Cafeterias, Inc., 178 So. 2d 421 (La. App. 1st. Cir., 1965). That case made an exhaustive view of jurisprudence around the country and pointed out the distinction in the duty of the preparer of food stuffs with respect to substances which are natural to the type of food being prepared, and cited with approval the case of Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 59 P.2d 144, in which the following statement appears:
"`* * * It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones. We have no hesitancy in so holding, and we are of the opinion that despite the fact that a chicken bone may occasionally be encountered in a chicken pie, such chicken pie, in the absence of some further defect, is reasonably fit for human consumption. Bones which are natural to the type of meat served cannot legitimately be called a foreign substance, and a consumer who eats meat dishes ought to anticipate and be on his guard against the presence of such bones. * * * Certainly no liability would attach to a restaurant keeper for the serving of a t-bone steak, or a beef stew, which contained a bone natural to the type of meat served, or if a fish dish should contain a fish bone, or if a cherry pie should contain a cherry stonealthough it be admitted that an ideal cherry pie would be stoneless.'"
After considering the jurisprudence, the court in Musso stated:
"The rationale of the majority rule as expressed in the cited authorities is that substances which are a natural part of the food served are not considered foreign matter or substances if inadvertently left therein. On this premise it is reasoned that the presence of substances natural to the ingredients or finished product does not constitute breach of the vendor's implied warranty that the food is wholesome and fit for human consumption. The cases further hold that the warranty implicit in the sale of food must be construed in the light of the common knowledge with reference to the nature and character of the food being served. In this respect it is further reasoned common experience dictates that one eating the meat of animals, fowl or fish should do so with the knowledge such foods may contain pieces of bone. * * *
*305 "[6-8] We believe the majority view on the subject under consideration to be reasonable and sound. It recognizes and affirms the high degree of care imposed upon the server of foods but does not inflict upon him the unconscionable burden of becoming the absolute, unrestricted and unqualified insurer of his customers. If the server permits alien, extraneous matter not constituting a natural part of the ingredients or finished product (such as glass or other noxious substances), to enter his product during preparation or processing, he is liable for breach of his implied duty to serve a product free of foreign, deleterious substances. However, should the restaurant keeper inadvertently leave in the food substances natural to the ingredients or finished product he is not liable to the customer, as the food is not thereby rendered unwholesome and unfit for human consumption. As a result there is no breach of the implied warranty of wholesomeness.
"[9] An obvious extension of the foregoing rule must perforce be made where the vendor of foods negligently permits substances natural to the ingredients or finished product to remain in the food served the customer and illness or injury results therefrom. Under such circumstances the restaurant keeper is liable because of his negligence."
We follow the majority view expressed in Musso. Of course there is a variance in the factual situation here, but we believe the principles announced to be controlling in a consideration of the facts of this case.
In Musso there was ample evidence to show the probability of expectancy of cherry pits in pitted cherries, but unfortunately there is no evidence in the present case concerning the probability of pieces of bone appearing in hamburger. Simply as a matter of general knowledge, we cannot say that we can take judicial notice that a hamburger patty should not contain any pieces of bone whatsoever. The ground meat in question was prepared from trimmings of other cuts of meat and scrapings from bones. The market manager testified that the meat is generally inspected for pieces of bone and other foreign matter and then run twice through the meat grinder. He testified that the meat grinder blade would stop if it hit a large piece of bone, but he readily admitted that it is possible that a small piece of bone could pass through without stopping the blade. The record does not make us aware of how large a piece of bone must be in order to stop the blade, nor how small a piece of bone may be and yet go through the blade.
The trial judge simply found that the substance upon which Mrs. Loyacano broke her tooth was a hard substance, and the dentist testified that it must necessarily be a hard substance in order to break Mrs. Loyacano's tooth in the fashion in which he found it.
It may be said that a product can be considered defective if it does not meet the reasonable expectations of the ordinary consumer as to its safety. It is not the fact that a defect is a natural one which is important to this inquiry, but the fact that the ordinary consumer would expect that he might encounter it, and thus he would normally take his own precautions. A package of ground meat is not expected to be consumed from the sealed package as a bottle of soda water or milk, but is expected to be processed or otherwise altered before consumption by the purchaser. Therefore, it seems to us that the strict liability imposed upon vendors of sealed packages of that nature, cannot be imposed upon the vendor here, except insofar as a foreign object would be concerned. For a natural object, such as a bone, from the only evidence produced in this case, it appears that the inquiry should be directed to the size of the bone left in the ground meat.
Examining the record with this in mind, we find no specification as to size of the pieces of bone, but we do find, as was found by the trial judge, that the bone was *306 of sufficient size and hardness to break a tooth. Since we find no negligence on the part of plaintiff in her handling of the ground meat, we would require, as did the court in Musso, that the defendant must present sufficient evidence to prove its lack of negligence in its handling of the ground meat.
We find that it has failed to carry this burden. The evidence presented is simply that of the market manager who explained in general that the meat was inspected, run through the grinder twice, and the second time placed on trays, which were then wrapped in clear plastic and tendered for sale. The testimony was in general terms, and did not apply specifically to the meat in question. There was no testimony as to the type of examination afforded, and the manager admitted that pieces of bone could get into the meat and through the grinder without one being aware of it. Certainly the reasonable expectation of the ordinary consumer is that the processor and vendor of ground meat would exercise the same care as that which a reasonably prudent man skilled in the art of meat handling would exercise in the removal of bones from the meat. We conclude that the defendant negligently left in the ground meat pieces of bone of a larger size than the consumer might reasonably expect, and is responsible for the damages caused.
We now turn our attention to defendant's contentions that the trial court's assessment of damages were too high. In his Reasons for Judgment the trial judge stated that the plaintiff sustained severe pain and discomfort in addition to the loss of her tooth. We will alter the amount of the judgment only when there has been an abuse of discretion on the part of the trial judge. See Lomenick v. Schoeffler, 250 La. 959, 200 So. 2d 127 (1967). We find no such abuse of discretion in the present case.
The record discloses much more difficulty than simple loss of a tooth. Mrs. Loyacano suffered immediate pain and bleeding upon biting into the patty, and went the next day to a dentist, Dr. Russell R. DiMarco. His examination revealed a broken upper right second bicuspid, broken down into the bone exposing the main nerve. He testified that this condition would cause considerable bleeding and pain, and after taking an x-ray and removing the portion of the tooth that was bothering her he referred her to an oral surgeon, Dr. Kim. Dr. Kim had to surgically extract the tooth by means of cutting into the gum and chiseling out the roots of the tooth involved. It was necessary to close the incision with sutures, and to follow up the operation by several visits for the purpose of removing the sutures and checking the healing process.
The area of the extracted tooth was painful for a considerable period of time, and it was three months before plaintiff was able to return to Dr. DiMarco and have a permanent bridge installed in place of the broken tooth. Considering the pain involved and the inconvenience caused to plaintiff, in the course of treatment which she undertook, we believe the assessment of damages by the trial court to be proper.
For the above reasons, the judgment of the trial court is affirmed and defendant is assessed all costs of this appeal.
Affirmed.
LEMMON, Judge (concurring).
If strict liability is the law of Louisiana in cases involving injury from consumption of food, I see no reason to decide this case on negligence concepts involving standards of care.[1] The majority opinion seems to *307 hold that Winn-Dixie failed to meet a burden of proving that it exercised due care in processing the ground meat, which indicates to me that Winn-Dixie would have won the case had it sustained this burden.
In my view the consumer of food is absolutely entitled to a packaged product which is reasonably safe for its intended use. When this consumer sustains an injury caused by normal use of the food product, he should be entitled to recover damages upon proving (1) that he has been injured by the product, (2) that the injury occurred because the product was defective or unreasonably unsafe, and (3) that the defect or unsafe condition existed when the product left the hands of the particular defendant.
In the present case the plaintiff adequately proved (1) that she was injured because of eating the ground meat, (2) that the injury occurred because the boneless ground meat contained bone particles which rendered the food unreasonably unsafe when eaten in a normal manner, and (3) that the unsafe condition existed when Winn-Dixie sold the meat to her. She is therefore entitled to recovery.
Whether or not Winn-Dixie used reasonable care in processing the meat is irrelevant to plaintiff's demand in this case (although the standard of care used in the processing operation by one of several defendants may be relevant as to the recovery between defendants on an incidental demand or as to recovery by a consumer from one of several defendants). After plaintiff satisfactorily proved that the boneless ground meat contained harmful bone particles when Winn-Dixie sold the food, then reasonable care by Winn-Dixie in the processing operation became irrelevant to its liability to the consumer.
The pronouncements in the Musso case were in my opinion too general and too broad.[2] The crucial issue in this type of case involving "natural" substances in food is whether the presence of the substance caused the food to be unreasonably unsafe. In other words, if the ordinary consumer would reasonably expect to encounter the "natural" substance in the food, then the food is not unreasonably unsafe. In such a case the consumer, being unable to prove the elements necessary to impose strict liability, may alternatively attempt to prove actual negligence, in which case the use of reasonable care is relevant. In the present case, however, I believe that the ordinary customer would not reasonably expect to encounter bone particles in boneless ground meat and that meat containing such particles is not reasonably safe. Therefore, the plaintiff has made out a case based on strict liability and should recover irrespective of proof of negligence.
NOTES
[1] The exact nature of the hard substance is unknown. Presumably it was a piece of bone since subsequent examination of the patty revealed pieces of bone remaining. Tr. 37.
[1] Inasmuch as liability of the food processor to the consumer is in tort and not in contract, I also see no reason to employ concepts of implied warranty borrowed from the law of sales contracts.
[2] I particularly disagree with the statement in Musso that absolute liability inflicts an "unconscionable burden" upon the server (or processor) of foods. That statement depends upon one's viewpoint as to whom the law should protect, the consumer of an unreasonably unsafe product or the seller or processor of such a product. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2474973/ | 176 F. Supp. 2d 855 (2001)
UNITED STATES of America, Plaintiff,
v.
Ferlando HONDRAS, Defendant.
No. 00-CR-164.
United States District Court, E.D. Wisconsin.
November 20, 2001.
*856 Stephanie G. Rothstein, Special Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Wisconsin, for Plaintiff.
Robert J. Dvorak, Milwaukee, WI, for Defendant.
DECISION AND ORDER
ADELMAN, District Judge.
The issue before me is the timeliness and adequacy of an arrest warrant issued to revoke a federal defendant's supervised release.
I. FACTUAL BACKGROUND
In March 1993, defendant Ferlondo Hondras was sentenced in the United States District Court for the Northern District of Alabama to a 36-month term of imprisonment, to be followed by a 5-year term of supervised release. The record before me in this case, surprisingly, does not indicate when Hondras was released from imprisonment, and thus does not allow me independently to determine when his 5-year supervised release term was due to expire. Nonetheless, the parties appear to agree, and Hondras does not dispute, that his term of supervised release was scheduled to expire April 20, 2001. I will therefore assume this to be true.
On April 17, 2001, three days before Hondras's supervised release term was due to end, a U.S. Probation Officer for this district filed a petition for an arrest warrant to be ordered, alleging that Hondras *857 had violated the terms of his supervised release.[1] I signed the requested order the following day, on April 18. Two days later, on the final day of supervised release, April 20, 2001, an arrest warrant was issued. This warrant was signed by a Deputy Clerk on behalf of the Clerk of Court.
II. STANDARD OF DECISION
Supervised release is governed by 18 U.S.C. § 3583. Subsection 3583(e)(3) provides that supervised release may be revoked if the court finds that the defendant violated a condition of supervised release. Subsection 3583(g)(1) provides that if the defendant possesses a controlled substance in violation of the conditions of supervised release, revoking the defendant's supervised release term is mandatory.
After the term of supervised release has expired, the court may nonetheless revoke the defendant's supervised release, provided that before the supervised release term expired, "a warrant or summons has been issued on the basis of an allegation" that the releasee violated a condition of supervised release. 18 U.S.C. § 3583(i). Whether a valid and timely warrant has been issued is jurisdictional. United States v. Naranjo, 259 F.3d 379, 381-82 (5th Cir.2001).
III. DISCUSSION
I accept Hondras's first contention, namely, that neither the April 17, 2001 petition to order an arrest warrant, nor my April 18 order that ordered that a warrant be issued, did anything to extend the power of the court to revoke his supervised release. In United States v. Crusco, No. 90 CR 945 JES, 2000 WL 776906, 2000 U.S. Dist. LEXIS 8236 (W.D.N.Y. June 15, 2000), the Department of Probation requested a summons on April 20, 2000, and the district judge signed the request and authorized the issuance of a summons on April 25. Nonetheless, no summons was issued, and the releasee's term of supervised release expired on May 4. The court held that it had no jurisdiction to revoke his supervised release, on the ground that a petition for a warrant or summons does not extend the court's jurisdiction, and the judge's signing such a petition is not the same as issuing a warrant and thus also does not extend the court's jurisdiction. Crusco, 2000 WL 776906, at *2. See also United States v. Rivard, 127 F. Supp. 2d 512, 516 n. 10 (D.Vt.2000) (citing Crusco for the proposition that "where no summons or warrant has issued before the expiration of the supervised release period, the court does not have jurisdiction to hear claims of such violations").
I reject Hondras's second argument, which is that the arrest warrant, issued on the last day of his supervised release, was issued a day too late to extend the court's power to revoke his supervised release. Section § 3583(i) provides that the court's jurisdiction is extended beyond the term of supervised release so long as, "before its expiration, a warrant or summons has been issued." Hondras does not dispute that his term of supervised release extended through April 20, and I find that because the warrant was issued before the end of April 20, it was issued timely.
Hondras's final argument is that even if the arrest warrant was timely issued, it was not valid, because a warrant issued to arrest a person on supervised release must be signed by a judge, and cannot be signed by a Clerk of Court.
*858 Section 3583(i) merely states in the passive voice that the court's power to revoke supervised release is extended if a warrant "has been issued"; sub-section (i) is silent as to who is to issue the warrant. Title 18, section 3606 provides that "[t]he court having supervision of the probationer or releasee ... may issue a warrant for the arrest of a probationer or releasee for a violation of a condition of release." Thus, only "the court" has the power to issue an arrest warrant for a releasee. The question is therefore whether the Clerk of Court may issue an arrest warrant on behalf of "the court" under § 3606, or whether a judge must personally sign the arrest warrant.
There appears not to be any caselaw on this question. A constitutional issue lurks in the background; the Fourth Amendment provides that, "no Warrant shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. amend. 4. Section 3606 requires probable cause before "the court" issues an arrest warrant, but is silent as to who must make the probable cause determination before the warrant is issued.
The Federal Rules of Criminal Procedure provide two different mechanisms by which a warrant or summons may be issued at the start of a criminal case. Under Rule 4(c), a magistrate judge must sign the arrest warrant or summons in a case brought by complaint; by contrast, Rule 9(a) requires "the court" to issue a warrant or summons in cases brought by information or indictment, and Rule 9(b) specifies that in such cases, the warrant or summons "shall be signed by the clerk."
It appears that the distinction between Rules 4 and 9 lies in the probable cause determination. Before a magistrate judge may issue an arrest warrant or a summons upon a complaint under Rule 4(c), he or she must first make a probable cause finding under Rule 4(a). An indictment may issue only upon the grand jury's finding of probable cause. United States v. Calandra, 414 U.S. 338, 343, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). "An information differs from an indictment in that the accusatory pleading comes directly from the United States Attorney, and on his authority, rather than from the grand jury." 1 Charles Alan Wright, Federal Practice & Procedure § 121 at 521 (3d ed.1999). Although an information may be filed without leave of court, under the final sentence of Rule 7(a), Rule 9(a) specifically provides that a warrant shall be issued in the case of an information only if the information is "supported by a showing of probable cause under oath as is required by Rule 4(a)." Thus, although Rule 9(b) does authorize a clerk to issue the warrant in cases brought by indictment or information, indictments are issued only upon a grand jury's probable cause determination, and the clerk may issue a warrant upon an information only if the information is supported by a showing of probable cause under oath.
In this case, the U.S. Probation Officer petitioned the court to order that a warrant be issued. The petition recited various facts tending to establish probable cause to believe that Hondras had violated the terms of his supervised release. By signing the petition and directing that an arrest warrant be issued, I signified that I found that there was probable cause to support a warrant. I now find that this level of judicial involvement in the probable cause determination is ample to safeguard the Constitution's requirement that a warrant may issue only upon probable cause. I moreover find that the requirements under § 3606 that a warrant be issued only upon probable cause and that "the court" issue the warrant are satisfied when a judge makes a probable cause determination and authorizes or orders *859 that a warrant be issued. Accordingly, I find that the arrest warrant issued by the Deputy Clerk on behalf of the Clerk of Court in the present case was a valid exercise of the court's power under § 3606.
NOW, THEREFORE, IT IS HEREBY ORDERED that defendant Ferlando Hondras's motion to quash warrant for arrest (R. 4) is DENIED.
IT IS FURTHER ORDERED that SENTENCING is set for Hondras's revocation for 1:30 p.m., Friday, December 14, 2001.
NOTES
[1] Under the terms of his plea agreement in United States v. Hondras, No. 01-CR-077 (E.D. Wis. sentencing Nov. 14, 2001), there is no doubt that Hondras did in fact violate the conditions of his supervised release. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610294/ | 207 Kan. 514 (1971)
485 P.2d 1297
SIGMA ALPHA EPSILON FRATERNAL ASS'N, a Corporation, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS, and BESSIE M. BENNETT, County Treasurer, Douglas County, Kansas, Appellees. ALPHA KAPPA LAMBDA BUILDING ASS'N, a Corporation, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS, and BESSIE M. BENNETT, County Treasurer, Douglas County, Kansas, Appellees. ALPHA KAPPA LAMBDA BUILDING ASS'N, a Corporation, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS, and BESSIE M. BENNETT, County Treasurer, Douglas County, Kansas, Appellees. SIGMA ALPHA EPSILON FRATERNAL ASS'N, a Corporation, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, KANSAS, and BESSIE M. BENNETT, County Treasurer, Douglas County, Kansas, Appellees.
No. 46,020
Supreme Court of Kansas.
Opinion filed June 12, 1971.
*515 Walter J. Kennedy, of Hoskins, King, Springer, McGannon and Hahn, Kansas City, Missouri, argued the cause, and Fred N. Six, of Barber, Emerson & Six, of Lawrence, was with him on the brief for appellants.
Daniel A. Young, county attorney, argued the cause and was on the brief for appellees.
The opinion of the court was delivered by
FATZER, J.:
These four consolidated actions were filed pursuant to K.S.A. 79-2005 to recover real and personal property taxes paid under protest. The actions also sought to enjoin the defendants, and each of them, from the assessment and collection of such taxes in the future.
The actions were consolidated for trial, and tried to the district court. There is no error alleged as to rulings on motions pertaining to the pleadings; no error is alleged as to the admission or exclusion of evidence, and since there were no post-trial motions, no error is alleged in that respect. The only evidence introduced at the trial was by the plaintiffs, hence, there is no dispute as to the evidence.
The parties make no claim of error with respect to the findings of fact made by the district court, and concede the findings correctly recite all of the facts necessary for decision. The error claimed revolves around the issue whether there was substantial evidence to support the findings of the district court that the real and personal property owned by the plaintiff corporations did not constitute property used exclusively for educational purposes within the purview of the Kansas Constitution and statutes. (Art. 11, Sec. 1 of the Constitution, and K.S.A. 79-101 and 201 Third.)
The district court made findings of fact and conclusions of law based upon the stipulation contained in the pretrial order and the evidence offered and received at the trial. Since all the issues are concisely stated and discussed in the district court's memorandum opinion, we quote its findings and conclusions in full:
"1. That the questions of fact and of law in cases numbered 24907 and 24925 now pending in this Court are the same as the questions of fact and of law which are involved in each of the above captioned cases which have been consolidated for trial.
"2. That the real and personal property taxes which were assessed against the respective properties of each of the plaintiffs in the above captioned cases for 1968 (the real estate assessments being as shown on Exhibits 21 through 29 and the personal property assessments being as shown in Exhibits 31 and 32) and which taxes became due on December 20, 1968 and June 20, 1969, were paid under protest by each of said plaintiffs on or before said due dates, *516 and within 30 days thereafter the above captioned cases were filed to recover the taxes so paid, the amounts involved in each case being as follows:
Case No. Amount paid under protest
25146 $1985.38
25147 2619.94
25260 2619.92
25261 1985.34
The personal property shown on Exhibits 30 and 31 consists of such items as refrigerators, deep freezes, vacuum cleaners, dishwashers, radio and record players, television sets, silverware, pianos and organs, furniture in the dining room, living room, bedrooms, basement, rugs, carpets, drapes, the filing cabinets, dishes, airconditioners, pictures, mirrors, and the food mixers.
"3. The two fraternities involved in this litigation are local chapters of member fraternities of the National Interfraternity Conference. Each chapter is organized and conducts its affairs through two basic units: the active chapter, and the alumni corporation. Each corporation is organized as a nonprofit unit, each is exempted from payment of income tax, and each so conducts its operation that neither it nor one of its members realizes or receives a profit therefrom. The function of the corporation is to acquire and hold title to the chapter house and its furnishings in order that members of the active chapter will have a home in which to live and take part in the activities of the fraternity while attending the University of Kansas as students. The active chapter is an unincorporated association, the membership of which is composed of students of the University of Kansas who have become affiliated with the chapter through the process known as `rush.' All male K.U. students are eligible to become members of such organizations, but only those who are asked and accept become members. Such members are first pledges, and following initiation, become actives. All initiated members of the active chapter become members of the corporation after they cease being students and thereby become alumni.
"4. The two fraternities involved herein are Alpha Kappa Lambda which shall hereinafter be referred to as AKL, and Sigma Alpha Epsilon which shall hereinafter be referred to as SAE.
"5. The building site and chapter house owned by the AKL corporation has a book value of approximately $315,000. Prior to a remodeling program estimated to cost from $275,000 to $300,000 and to have been completed by the fall of 1969, the building site and chapter house owned by the SAE corporation had a book value in excess of $230,000. The capacity of the AKL house is 82, and upon completion of the remodeling SAE will have rooms for 93 men. The chapter houses of AKL and SAE are so constructed that from 80 to 90 per cent of each is designed for or readily adaptable to study by members of each chapter.
"6. The major source of the income required to operate the AKL and SAE chapter houses is the house bill which is charged to and paid by each of the active members of such fraternities. The house bill of each fraternity is made up of three items: board, room, and dues. The amount of this house bill is so calculated that the amount budgeted for each item will be met. In this *517 connection each member of each chapter is required to sign an individual leasing agreement approved by his parent in which he agrees to make house payments for board, room and duties in the amounts stated in such agreement. Although these leasing agreements are made with the corporation of each chapter, the house bills are collected and accounted for by the treasurer of each active chapter. From the house bills so collected each active chapter pays the accruing grocery bills, utility bills, wages, repairs, national chapter obligations and other chapter expenses incurred, and also pays its alumni corporation the amount budgeted as rent. This rent which the corporation receives from the active chapter is budgeted and used for the retirement of debt, for taxes, for repairs, for replacement or enlargement of chapter house or furnishings, and other miscellaneous expenses. Plaintiffs in these cases are the respective alumni corporations of AKL and SAE which have paid the taxes in question under protest.
"7. The SAE house bill for the school year ending June, 1969, was $108 per month of which $12 to $16 was for dues. The SAE house bill for the school year beginning September, 1969 was figured at $115 per month of which $20 is for dues, $40 is for board and $55 is for rent. In recent years the AKL house bill has been $105 per month of which $12 to $14 is for dues. The amount received for dues is used by each chapter for payment of national chapter assessments and local chapter activities. Except for the amount charged for dues by fraternities the cost of living in a fraternity is about the same as the cost of living in a University Dormitory. For the year ending June 30, 1968, out of total expenses of $72,854.52 SAE paid the following amounts for the activities indicated:
Activity Amount
Yearbook $182.50
Campus activities 304.63
Intramurals 190.09
Homecoming 168.57
Rushing (to 9-30-67) 2750.00
Newspapers 234.75
Newsletters Alumni Relations 571.07
Convention 381.23
Flowers & Gifts 198.14
Social 2739.94
________
Total $7720.92
For the eleven months ended May 31, 1968, out of total expenses of $75,280 AKL had activities expenses as follows:
Activity Amount
Campus activities $350.00 Intramurals 217.00 Rushing 4269.00 Subscriptions 242.00 Convention Work Shop 48.00 Flowers & Gifts 149.00 *518 Social 1421.00 Homecoming 143.00 Yearbook 145.00 _________ Total $6984.00
"8. In order that they may operate in connection with K.U., AKL and SAE must, and have been recognized as duly constituted fraternities by the University and as such are subject to certain University controls, which controls are carried into effect for the most part through the Office of the Dean of Men and through the Interfraternity Council to which all fraternities must belong and contribute. Included among the controls just mentioned are: no alcoholic beverage may be had or served on fraternity premises; fraternity kitchens are inspected at least once a year; each fraternity must have either a resident director or housemother approved by the Dean of Men; in selecting its members fraternities are prohibited from discriminating on account of race, creed or national origin; and during rush week rushees must register with the Dean of Men's office and a list of pledges must be filed with designated offices shortly after pledging has been accomplished.
"9. In selecting pledges AKL and SAE are interested in young men with good high school records, with scholarship ability, with character and personality, with outside interests, and who will be compatible with the members of their respective fraternities. The initiation ritual is secret in SAE but not in AKL. The grade average of fraternities is better than that of non-fraternity men by about one-tenth of a point. In SAE a pledge must have a 1.2 average in order to be initiated and after initiation all actives must maintain a 1.0 average to remain in good standing. AKL requires a 1.3 average prior to initiation. Both AKL and SAE recognize that belonging to a fraternity affords the male student the opportunity to select those with whom he will live and work, and spend some of his leisure time while attending the University. Both AKL and SAE require that a member must be a student in K.U. in order to live in the chapter house. If a member of either chapter is dropped as a student he is also dropped as an occupant of the house.
"10. Through the Interfraternity Council fraternities plan to cooperate with the University in providing some meeting space for small study groups in connection with the College within a College program. AKL and SAE also take part in Greek Week, have three to five major parties a year, send a representative to the annual convention of the national organization of each, participate in the Rock Chalk Review, write alumni news letters, provide cultural opportunities for its members, take part in a charitable project in the community, and engage in intramural sports.
"The issues to be resolved are as stated in the pre-trial order, as follows:
"1. Is the real and personal property owned by the plaintiff corporations, property used exclusively for educational and benevolent purposes within the scope of Article XI, Sec. 1 of the Kansas Constitution and K.S.A. 79-101 and 201?
"2. Are the furnishings in the house of the plaintiffs exempt from taxation as household goods not used for profit as contemplated by Article XI, Sec. 1 of the Kansas Constitution and K.S.A. 79-201?
*519 "From the facts as found it is concluded that:
"1. The Court has jurisdiction of the subject matter and of the parties in each of the actions involved herein.
"2. That both of the issues above stated should be resolved against the plaintiffs. As to issue No. 1, see: Alpha Tau Omega v. Douglas County Commissioners, 136 Kan. 675; and annotation in 66 A.L.R. 2d 904. As to issue No. 2, see this Court's Memorandum of Decision in case number 24060, Association of Sigma of Gamma Phi Beta, Inc., et al. v. Brookover, et al., in which the identical issue was resolved against the plaintiff fraternities and sororities therein, included among which was SAE.
"3. That the respective claims of the plaintiffs herein to a refund of the taxes paid under protest and for an Order enjoining the assessment of real and personal property taxes against them in the future should be denied and the taxes so paid under protest should be released to the County general fund."
In harmony with its findings and conclusions, the district court entered judgment in favor of the defendants, and each of them, and against the plaintiffs.
The plaintiffs contend the district court erred in finding the evidence failed to show their real and personal property to be so used as to be exempt from taxation under the Constitution and statutes heretofore referred to. We are of the opinion, the findings of the district court are amply supported by the evidence, and we conclude that, as did the district court, this case is controlled by Alpha Tau Omega v. Douglas County Comm'rs, 136 Kan. 675, 18 P.2d 573, where it was held:
"A house which is used by members of a college fraternity as a home while attending college is not used exclusively for literary, educational or scientific purposes so as to cause it to be exempt from taxation under section 1 of article 11 of the constitution.
"Where it is sought to establish that property is exempt from taxation on account of a constitutional or statutory ground, the one claiming the exemption must bring himself clearly within the terms of the provision." (Syl. ¶¶ 1 and 2.)
It is abundantly clear from the evidence and the findings of the district court, that in addition to the educational use stressed by the plaintiffs, the property is used for fraternal purposes including initiations, for alumni reunions, homecoming activities, parties, rest, recreation, entertainment of guests, rush activities, and other social activities, and that the members of the active chapter of each fraternity participate in those activities as a fraternal group. In addition, the members send representatives to the conventions and meetings of the national fraternity and publish newsletters for its members and alumni. Over ten percent of the Sigma Alpha Epsilon income *520 is budgeted for activities as is nearly nine percent of the Alpha Kappa Lambda income.
Under the many decisions of this court, including Washburn College v. County of Shawnee, 8 Kan. [*] 334; St. Mary's College v. Crowl, 10 Kan. [*] 44; Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1-5, 293 P.2d 234, and Kansas State Teachers Ass'n v. Cushman, 186 Kan. 489, 500, 501, 351 P.2d 19, the plaintiffs' claim that whether the property in question is "used exclusively" for educational purposes, means whether the property is "used primarily" for that purpose, cannot be sustained. The two terms are not synonymous, and our decisions so hold. The case of Kansas Wesleyan Univ. v. Salina County Comm'rs, 120 Kan. 496, 243 P. 1055, upon which the plaintiffs rely, was discussed at length and distinguished in Alpha Tau Omega v. Douglas County Comm'rs, supra, as being inapplicable to support their claim. The Wesleyan case was likewise discussed and distinguished as being inapplicable to support the claim of exclusive educational use of property claimed to be exempt from taxation in Kansas Teachers Ass'n v. Cushman, supra. It was held the total use of the property must be measured, and that since the headquarters building owned by the association was used in part for the individual benefit of the teacher members, the property was not used directly, immediately, solely and exclusively for educational purposes as those terms are defined by the decisions of this court. And so here.
We next turn to the district court's conclusion the furnishings of the plaintiffs' chapter houses were not exempt from taxation as household goods not used for the production of income as contemplated by Article 11, Section 1 of the Constitution.
The identical issue here presented, was involved in the case of Association of Sigma of Gamma Phi Beta, Inc., et al. v. Brookover, et al., No. 24060, in Douglas district court. In rendering judgment in that case, the district court filed a memorandum decision which states succinctly the grounds upon which the court's decision was based denying the plaintiffs' claimed exemption of "household goods." Because the issues and contentions are thoroughly discussed in the court's memorandum opinion, the pertinent portions are quoted:
"6. The sole issue in this case is: Are the furnishings in the houses of plaintiffs, which furnishings consist of such items as are listed in finding No. 4, exempt from taxation? The contentions of the parties on this issue are in *521 substance as follows: Plaintiffs contend that the furnishings in their respective chapter houses are household goods as contemplated by Article 11, Sec. 1 of the Kansas Constitution and that such household goods are not used for the production of income. Defendants, on the other hand, contend that such furnishings are not household goods as contemplated by said constitutional provision, but that even if they are household goods, such household goods are used by plaintiffs for the production of income.
"The constitutional provision under which plaintiffs claim exemption was adopted November 3, 1964, is Article 11, Sec. 1, and reads as follows:
"`The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and all household goods and personal effects not used for the production of income, shall be exempted for taxation.'
"Prior to its amendment in 1964, that portion of said Article 11, Section 1, which follows the words `charitable purposes' read as follows: `and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.' (Emphasis supplied.)
"As will be noted the exemption of personal property to the amount of $200 for each family was dropped from the constitution and in its place the provision exempting all household goods and personal effects not used for the production of income was adopted.
"In 1965 the legislature amended the tax exemption statute in order to make provision for the change in Article 11, Sec. 1 of the Constitution. Such amendment is found in K.S.A. 1967 Supp., 79-201 and reads as follows:
"`That the property described in this section, to the extent herein limited, shall be exempt from taxation: ...
"`Thirteenth. All household goods and personal effects not used for the production of income: Provided, That the terms household goods and personal effects when used in this act, except as otherwise specifically provided, shall include all items of furniture, cooking utensils, refrigerators, deep freezers, washing and drying machines, dishwashers, stoves, ranges, ironers, vacuum cleaners, sewing machines, radio and record players, television sets, shop and hobby equipment used in or about the home, fishing equipment (not including boats), bicycles, yard and garden equipment, firearms, golf clubs, photographic equipment, jewelry, luggage, musical instruments, and air conditioners if not a part of the central heating and air conditioning system.'" (Emphasis supplied.)
"Applying the constitutional and statutory provisions just mentioned to the facts as above found, it is concluded that the furnishings of plaintiffs as assessed by Douglas County, Kansas are not exempt from taxation.
"The conclusion reached is based upon an interpretation of the constitutional provision in question in light of the $200 exemption which it re-placed and in light of the legislative definition of `household goods and personal effects' in the 1965 amendment to the tax exemption statute. In this connection it is to be noted that the $200 exemption was for each family. When this exemption *522 was replaced by exempting household goods and personal effects not used for the production of income it is clear that the word `household' was intended to be descriptive not only of the kind of goods which were to be exempt but also of the place where such goods were to be located and used at the time an exemption was claimed and in both instances the intention was that goods in the household or family home and the personal effects of the members of such household or family not used for the production of income were to be exempt. The relationship between the corporate plaintiffs and the members of their respective active chapters in the operation of their several chapter houses cannot be classified as a family or a household nor can their respective house furnishings be classified as `household goods' as those words are used in Article 11, Sec. 1 of the constitution. Beyond this there is no question but that plaintiffs do use their household furnishings for the production of income, which income plaintiffs use for the purposes hereinbefore found. The fact that plaintiffs are non-profit corporations which are exempt from income taxes does not in itself establish that plaintiffs are not using the furnishings in their respective chapter houses for the production of income.
"In their brief plaintiffs rely in part for relief in this action upon the fact that fraternities and sororities make a significant contribution to the University in the areas of housing, social and campus activities and in attracting better than average students to K.U. by rushing them. Commendable as this contribution is it has no probative value in respect to the issue in this case. An alumni corporation of a fraternity or sorority just is not a householder nor is it possessed of `household goods and personal effects' as those words are used in the constitutional provision in question.
"A party claiming an exemption from taxes has the burden of proof to bring himself clearly within the exemption and in this connection the provision creating the exemption is to be strictly construed. (Stahl v. Educational Ass'n, 54 Kansas 542; Taggart v. Holcomb, 81 Kan. 879; and Topeka Presbyterian Manor v. Board of County Comm'rs., 195 K. 90; see also 51 Am. Jur. 530, Sec. 527, et seq.). Plaintiffs' evidence does not sustain the burden placed upon them by the law and their respective claims for return of taxes paid under protest on the theory that the taxes were illegally assessed are denied."
This court is of the opinion the district court correctly interpreted and construed Section 1, Article 11 of the Constitution, and the provisions of Section 79-201 here in question. It is apparent the exemption afforded by Section 1, Article 11 for "household goods not used in the production of income" was intended to replace the former constitutional exemption of "$200 for each family." Likewise, the legislature, in amending 79-201 and describing the property to the extent therein limited, provided that household goods and personal effects not used in the production of income, shall include "all items of furniture, cooking utensils, refrigerators ... used in or about the home ..." (Emphasis supplied.)
The legislative intent to not exempt the personal property of *523 the plaintiff corporations is clear. The word "household" has been defined as substantially synonymous with the word family, and means those dwelling under the same roof with a domestic head. (2 Black's Law Dictionary, p. 1462.) If doubt persists as to the meaning intended, one need look only to K.S.A. 77-201 which defines household as follows:
"Twenty-fifth. The term `householder' shall be construed to mean a person of full age, and owning or occupying a house as a place of residence, and not as a boarder or lodger."
Members of each of the fraternities here involved do not legally comprise a family, and the corporate owners of each of the chapter houses and the personal property therein situated, may not be said to be householders.
The plaintiffs lastly argue the assessed personal properties are not used in the production of income, and attempt to show that the monthly house bills of the fraternity members are calculated to break even for the year's operation. The point is not well taken. The evidence clearly showed the plaintiffs are corporate owners which rent the houses and furnishings for cash, the proceeds of which are used to retire debts and acquire assets. The plaintiffs receive in excess of $140,000 income each year which they could not do without the property they claim is exempt from taxation.
The plaintiffs have not established any fact which tends to distinguish the operation of their fraternity houses from that of any other private person or corporate owner engaged in the sale of board and room to college students, and they are not entitled to the exemptions claimed. (Alpha Tau Omega v. Douglas County Comm'rs, Supra.) In the latter case, this court quoted with approval a portion of Mr. Justice Brewer's opinion for the court in Washburn College v. County of Shawnee, supra, as follows:
"`All property receives protection from the state. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is coextensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of the authority which protects. It is an exception to a rule and is justified and upheld upon the theory of peculiar benefits received by the state from the property exempted. Nevertheless, it is an exception, and they who claim under an exception must show themselves within its terms.'" (l.c. 680.)
*524 The district court properly concluded the plaintiffs failed to show themselves to be within the terms of any constitutional or statutory exemption from taxation, and it did not err in entering judgment in favor of the defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610309/ | 485 P.2d 1402 (1971)
26 Utah 2d 124
MARLOWE INVESTMENT CORPORATION, Plaintiff and Appellant,
v.
Zera D. RADMALL and L. Gene Radmall, Defendants and Respondents.
No. 12280.
Supreme Court of Utah.
June 15, 1971.
*1403 Peter M. Lowe, Salt Lake City, for plaintiff-appellant.
Don R. Peterson, of Howard & Lewis, Provo, for defendants-respondents.
CROCKETT, Justice:
Plaintiff, Marlowe Investment Corporation, sued to recover payments allegedly accrued on a uniform real estate contract by which the defendants purchased real property upon which there is a fruit stand in Pleasant Grove, Utah. Upon a plenary trial of the issues, the District Court made findings and gave judgment in favor of the defendants. Plaintiff appeals.
The contract was entered into on April 20, 1963, by which the defendants agreed to purchase the property from Joseph E. and Isabella Bird for the sum of $7800, $500 down and $75 per month. The vendors later assigned the contract to plaintiff corporation. In the fall of that year the defendants had determined to give up the project. In November they so advised Mr. Lowe, managing officer of plaintiff. Defendant testified that he walked into the plaintiff's office just as Mr. Lowe was leaving and stated he was returning the property and the padlock to the stand. Mr. Lowe left, remarking that he was busy and to "tell things to my secretary." Defendant explained to her that he was relinquishing the property and the contract and handed her the lock and keys. No disagreement with his proposal was voiced either by Mr. Lowe or the secretary. However, shortly thereafter the plaintiff filed an action in the Provo City Court for six months' "rent" on the property at $75 per month, a total of $450. Nothing was done in that action, and nothing further happened for over six years. In February 1970 plaintiff filed this action claiming $6000 as past due payments under the contract and attorney's fees in the amount of $1500.
Meanwhile there had been a mortgage on the property to the Utah Savings and Loan Association, executed by the plaintiff. In April 1970 a suit was filed to foreclose the mortgage against the plaintiff, and also joining these defendants. Defendants disclaimed any interest in the property, pointing out their relinquishment years earlier. The plaintiff here did not defend that suit and the mortgage was foreclosed.
In the instant case the trial court stated in its findings of fact:
Based upon the abandonment and the silence of the plaintiffs in failing to pursue the case in the Provo City Court, the defendants were lead to believe that the plaintiffs had accepted the property back * * * The plaintiffs have by their conduct and by allowing its default to be entered in Civil No. 34,427 [the foreclosure *1404 proceeding] failed to discharge its duty under the aforementioned contract and to mitigate its damages * * *.
The trial court's analysis and conclusion are supported by sound principles of law. The first relates to the subject of impossibility of performance by the vendor. It is true that ordinarily such a vendor does not necessarily have to have marketable title until the purchaser has made his payments.[1] Nevertheless, if it plainly appears that he has so lost or encumbered his ownership or his title that he will not be able to fulfill his contract, he cannot insist that the purchaser continue to make payments when it is obvious that his own performance will not be forthcoming.[2] This is particularly true under the instant contract which contains a provision that, "the seller further covenants and agrees that he will not default in the payment of his obligations against said property."
We are not persuaded that there is anything inconsistent with principles of equity and justice in the ruling that the plaintiff should not be allowed to recover under these circumstances:[3] where it had accepted from the defendant without objection the statement of relinquishment and the keys to the property in question, where it either knew or should have known that the defendants were assuming that they had relinquished the property and the contract, and were not in possession or making use of the property, and the plaintiff sat by for a period of six years, then defaulted in its own payments on the property until its ownership had either been lost, or its loss was imminent, and then came forward and asserted a claim to all of the payments that would have accrued under the contract.
The disadvantage to the defendants, necessary to the invocation of the doctrine of laches against the plaintiff,[4] is reasoned thus: if the plaintiff had not given the appearance of acquiescing in the relinquishment of the contract, but had insisted upon its performance, the defendants would have been aware of their continuing responsibility to so use or dispose of the property as to fulfill their obligations. Inasmuch as the trial court could reasonably believe that they were lulled into a sense of security, and thus put at a disadvantage by the conduct of the plaintiff, we see no reason to disagree with his refusal to allow the plaintiff to recover.
Affirmed. Costs to defendants (respondents).
CALLISTER, C.J., and TUCKETT and ELLETT, JJ., concur.
HENRIOD, J., concurs in the result.
NOTES
[1] See Woodard v. Allen, 1 Utah 2d 220, 265 P.2d 398.
[2] See Tremonton Inv. Co. v. Horne, 59 Utah 156, 202 P. 547; Leavitt v. Blohm, 11 Utah 2d 220, 357 P.2d 190; 55 Am. Jur. 624, Vendor and Purchaser, Sec. 154.
[3] That equitable principles may be applied in a law action see Art. VIII, Sec. 19, Utah Constitution; Rule 2, Utah Rules of Civil Procedure; see also Wasatch Oil Refining Co. v. Wade, 92 Utah 50, 63 P.2d 1070.
[4] See Mawhinney, et al. v. Jensen, et al., 120 Utah 142, 232 P.2d 769. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876861/ | 247 S.W.3d 92 (2008)
STATE of Missouri, Respondent,
v.
Luis RODRIQUEZ, Appellant.
No. WD 67646.
Missouri Court of Appeals, Western District.
March 11, 2008.
Margaret Mueller Johnston, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Jamie Pamela Rasmussen, Office of Attorney General, Jefferson City for respondent.
Before VICTOR C. HOWARD, Chief Judge, PAUL M. SPINDEN, Judge, and RONALD R. HOLLIGER, Judge.
ORDER
Luis Rodriguez appeals the circuit court's judgment convicting him of trafficking in the first degree in violation of § 195.222, RSMo 2000. We affirm in this per curiam order entered pursuant to Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2524349/ | 227 P.3d 1010 (2010)
STATE
v.
STOVALL.
No. 100704.
Court of Appeals of Kansas.
April 2, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610295/ | 207 Kan. 383 (1971)
485 P.2d 343
THE EVANGELICAL VILLAGE AND BIBLE CONFERENCE, INC., A Corporation, Appellant,
v.
THE BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, KANSAS, ROBERT R. DAVIS, REX F. PRICE, and VICTOR W. KEARNS, JR., as Commissioners thereof, DONALD J. CURRY, as County Clerk of Johnson County, Kansas, WILLIAM A. BAKER, as County Assessor of Johnson County, Kansas, and EDNA C. CRAIG, as County Treasurer of Johnson, Kansas, Appellees.
No. 46,108
Supreme Court of Kansas.
Opinion filed May 15, 1971.
Eugene T. Hackler, of Hackler, Anderson, Londerholm, Speer and Vader, of Olathe, argued the cause, and Eugene F. Gastl, of Shawnee, and Arthur L. Claussen, of Crane, Martin, Claussen and Ashworth, of Topeka, were with him on the brief for the appellant.
Bernis G. Terry, of Olathe, argued the cause and was on the brief for the appellees.
The opinion of the court was delivered by
HATCHER, C.:
This is an appeal from a judgment of the district court denying exempt status in an action to enjoin the levy and collection of taxes upon certain real property of the appellant, The Evangelical Village and Bible Conference, Inc., and to have the property declared exempt from taxation by virtue of constitutional and statutory provisions exempting from taxation property used exclusively for benevolent and charitable purposes.
The Evangelical Village and Bible Conference, Inc., is a Kansas corporation organized not for profit and without authority to issue *384 capital stock. It was formed in 1962, as a result of efforts by a group of area ministers for the purpose of building a home for elderly persons in Johnson County. The incorporators, who also served as the first board of directors, were drawn from this group. Of the five ministers who served as incorporators, three were from the Shawnee Mission area of Johnson County, one was from Kansas City, Kansas and one from Kansas City, Missouri. The overall group was known as the Evangelical Ministers Fellowship.
The principal purpose for which the corporation was formed, as expressed in its Articles of Incorporation, reads:
"To provide elderly persons on a nonprofit basis with housing facilities and services, specially designed to meet the physical, social and psychological needs of the aged, and contribute to their health, security, happiness and usefulness in longer living."
Upon dissolution of the corporation, none of the net assets was to go to any director, officer or other persons connected with the corporation. The assets were to be devoted exclusively for the benefit of religious, charitable, philanthropic, welfare, relief, educational, scientific and similar activities. Persons connected with the corporation and private individuals were prohibited from receiving any earnings or profit from its operations.
Under the articles of incorporation the board of directors elects the members of the corporation and these members are required, in turn, to be members of an evangelical church and to subscribe to a basic statement of religious faith. No more than two members may be from one church denomination. Upon election these members become members of the board of directors. In 1968, seven of the nine board members were area ministers. A twenty-one member advisory council, appointed to advise on religious and welfare matters affecting residents, has a membership drawn from nineteen area churches representing six different religious denominations. The by-laws of the corporation provide for a letter of intent whereby area church congregations may adopt the home as a project. Some nineteen area congregations had adopted the home as a project by 1968. These churches agree that it will be their "moral responsibility ... to ensure that the Home is maintained and fulfills the purpose for which it is being established." They also agree to take at least one special offering per year for the home in the event of need.
In December, 1964, the corporation completed the construction *385 of a three wing, five story home on a tract of land located at 9100 Park in Lenexa.
Construction financing was furnished by an FHA insured loan of $2,631,979.21 from the Morgan Guaranty Trust Company of New York and an additional $212,962.88 borrowed from local banks on the strength of guarantees by eight local individuals interested in the building of the home.
Approximately 80% of the accommodations at the home are single room apartments with a bath and, in some instances, a kitchen. For these rooms Lakeview Village collects an entrance fee (called a founder's fee) of $6,900.00 to $10,200.00 and a monthly subsistence charge of $155.00 to $175.00, depending on the size of the accommodations and whether cooking facilities are available. The monthly subsistence charge includes room and board, laundry and ordinary care with fourteen days infirmary care per year. The remaining accommodations are two room apartments with bath and kitchen. The founder's fee for these is $11,500.00 to $13,200.00 and the monthly subsistence charge is $215.00 to $225.00 for one person.
Of the one hundred ninety-nine persons in residence at Lakeview Village in May, 1968, thirty-seven were paying less than the requested monthly charges; five residents had paid no entrance fee; four residents had paid less than the requested entrance fee, and three persons had paid less than the requested entrance fee and also were paying less than the requested monthly charge.
The monthly subsistence rate paid by the Johnson County Welfare Department for clients in the Johnson County Home for the Aged is $240.00. The rate in the remaining homes in the county is $230.00. The Welfare Department also pays to each person an additional sum of $17.00 per month for incidental expenses. Lakeview Village has made offers to the Johnson County Welfare Department to take welfare patients and in 1968 had one welfare client in residence.
Residents of Lakeview Village have an occupancy agreement which provides in essence that they shall have the privilege of occupying their quarters throughout their lifetime. This is subject only to certain special conditions such as contagious disease, permanent disability or mental condition detrimental to the other residences, in which case transfer to an appropriate facility is made with Lakeview Village sharing the cost of outside care at a rate of 50% of the usual monthly charge and, if the transfer becomes permanent, *386 the entrance fee is also applied for use until exhausted. No resident has ever been removed from the home for non-payment of charges and where persons have been unable to pay, the charges either have been reduced to what the person can pay or else entirely waived.
The minimum age for entrance to the home is 62 years and the maximum age is 78 years. In 1968, the average age of the residents was approximately 78. Over one-half of the residents were between 75 and 84 years of age. At the time of entrance, residents must be ambulatory and able to dress and feed themselves.
The board of directors of the corporation receives no salary for its services. One of the original directors was paid a commission for securing residents for the home during its initial stages.
On May, 1968, Lakeview Village had received $5,212.00 in cash donations for the home. Over three thousand hours had been donated by religious workers, nurses and teachers and other items such as an organ and piano for the chapel area had been given to the home.
After hearing the evidence, the trial court made extended findings of fact and concluded:
"And now on this 7th day of July, 1969, the court, having considered the evidence, the suggested findings of fact and conclusions of law and the various briefs submitted by the parties hereto and the briefs submitted by the amicus curiae and being otherwise well and duly advised in the premises, announces and files its memorandum decision with the clerk of this court setting forth its findings of fact, conclusions of law, rationale and decision and order for judgment, which memorandum decision, less formal parts, is hereby incorporated herein by reference as though the same were set out herein in full, the court finding and concluding that plaintiff's real property is not being used exclusively for religious, benevolent or charitable purposes as provided in Article 11, Section 1, of the Kansas Constitution and K.S.A. 79-201 and that plaintiff is not exempt from Kansas real property taxation for the years 1965, 1966 and subsequent years. The court further finds that the costs hereof should be taxed against the plaintiff."
On appeal to this court, appellant listed its main statement of points relied upon as
"The evidence does not support, but contradicts the Court's finding and conclusion that plaintiff's real property is not being used exclusively for religious, benevolent or charitable purposes, as provided in Article 11, Section 1, of the Kansas Constitution and K.S.A. 79-201."
It then detailed seven secondary points challenging the court's findings and conclusions on the evidence submitted.
*387 In its brief before this court, appellant argues two points (1) "On the facts, this case is essentially identical with Topeka Presbyterian Manor v. Board of County Commissioners; that decision granting tax exemption should control here" and (2) "the trial court erroneously distinguished this case from prior Kansas decisions for reasons which are either insubstantial or immaterial."
The appellees now contend that the "Appellant has no right to be heard on this appeal for the reason that it has abandoned its statement of points."
Our attention is called to Rule No. 6 (d) of this court which provides:
"Each appellant shall serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. The points shall be without duplication, and each point shall state a particular and ultimate issue with reference to which reversible error is claimed to have been committed, but only such detail is required as will (1) enable opposing parties to judge the sufficiency of the designated record on appeal, and (2) inform the supreme court of the specific issues to be considered."
The rule further provides that no issue other than an issue going to the jurisdiction of the court over the subject matter may be considered unless it is included in the statement of points. In Schreppel v. Campbell Sixty-six Express, Inc., 201 Kan. 448, 441 P.2d 881, we stated at page 454:
"The reasons for this rule are two-fold: first, it enables the opposing party to judge the sufficiency of the record which has been designated on appeal and second, it informs the members of this court of the specific issues to be considered on appeal. The rule thus serves a legitimate and important purpose...." (See, also, Board of County Commissioners v. Brookover, 198 Kan. 70, 74, 422 P.2d 906.)
The rule serves an important and valid purpose and we do not care to relax in its application. However, it appears to us in the present case that none of the points have been abandoned or new ones added. The appellant has simply rearranged his classification of points to avoid repetition and simplify the presentation of the issues. No new issues are raised which would in anyway require additions to or subtractions from the record. We find no objection to the simplified classification of the points.
The chief issue for our determination is, did the evidence presented bring the appellant within the provisions of Article 11, Section 1, of the Kansas Constitution which provides in part:
*388 "... All property used exclusively for ... religious, benevolent and charitable purposes, ... shall be exempt from taxation."
and K.S.A. 79-201 which contains a similar provision?
The facts are not in serious dispute. Neither are the trial court's findings. The basic dispute is over the legal conclusions which the trial court drew from the findings made.
The appellant contends that the facts in this case are essentially identical with Topeka Presbyterian Manor v. Board of County Commissioners, 195 Kan. 90, 402 P.2d 802, and that decision granting tax exemption should control the decision in the case now before us.
We are forced to agree. In Topeka Presbyterian Manor we considered at length the meaning of the terms charitable and benevolent and stated:
"First of all let us look at what is meant by the terms charitable and benevolent. It has been said the word `charity,' like many others, has both a lay and a legal meaning, and that in legal parlance the term has a much more extended significance than in common speech. (See 15 Am. Jur., 2d Charities, §§ 2 & 3, pp. 7-8.)
"In Black's Law Dictionary, 4th ed., we find this discussion of charity:
"`It may mean or apply to:
"`Accomplishment of some social interest, In re Tollinger's Estate, 349 Pa. 393, 37 A.2d 500, 501, 502 ... Amelioration of persons in unfortunate circumstances, Second Nat. Bank v. Second Nat. Bank, 171 Md. 547, 190 A. 215, 111 A.L.R. 711 ... Any purpose in which the public has an interest, Collins v. Yyon, Inc., 181 Va. 230, 24 S.E.2d 572, 580... Assistance to the needy ... Improvement of spiritual, mental, social and physical conditions. Andrews v. Young Men's Christian Ass'n of Des Moines, 226 Iowa 374, 284 N.W. 186, 192 ... Whatever proceeds from sense of moral duty or feeling of kindness and humanity for relief or comfort of another. Doyle v. Railroad Co., 118 Mass. 195, 198, 19 Am. Rep. 431.' (pp. 296, 297.)
"The same work defines benevolent as follows:
"`Philanthropic; humane; having a desire or purpose to do good to men; intended for the conferring of benefits, rather than for gain or profit; loving others and actively desirous of their well being.' (p. 201.)
"In Mason v. Zimmerman, 81 Kan. 799, 106 P. 1005, it was stated:
"`"Charity" is a gift to promote the welfare of others in need, and "charitable," as used in such constitutional and statutory provisions, means intended for charity, and "benevolent" is, as used therein, entirely synonymous with "charitable."'" (Syl. ¶ 2.)
"In In re Estate of Carlson, 187 Kan. 543, 358 P.2d 669, we find this:
"`A charity is broadly defined as a gift for general public use ... Gifts for the purpose of establishing or maintaining hospitals, or like institutions for the benefit of the sick, injured, aged, infirm, or other persons in *389 unfortunate circumstances are for a purpose recognized by the courts as charitable.' (p. 546.)
"Thus it may be seen that the term `charity' in a legal sense is rather a matter of description than of precise definition, and therefore each case involving a determination of that which is charitable must be decided upon its own particular facts or circumstances." (p. 94.)
We also stated at page 95 of the opinion the effect of an entrance fee on tax exempt status of a claimed charitable institution
"Appellants first argue that the fact an entrance fee of $2,000.00 and the sum of $200.00 per month is sought, and received in about eighty-five percent of the cases, takes it out of the domain of charity. In the case of Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 P. 869, this court considered a similar contention and stated:
"`The fact that it charges and receives pay for patients able to pay, does not detract from the charitable nature of the service rendered. In Hospital Association v. Baker, [40 S.D. 226] ... 95 percent of the patients were pay patients. In City of San Antonio v. Santa Rosa Infirmary, [sic] [259 S.W. 926] ... 87 1/2 percent were pay patients. In St. Elizabeth Hospital v. Lancaster County, [109 Neb. 104] ... only a small percent did not pay.
..............
"`If these incomes from pay patients and donations are used for the purpose of caring for or relieving the sick or disabled and increasing the facility of the institution for that purpose, and are not used for the purpose of declaring dividends or the financial profit (other than the paying of necessary operating expenses) of those connected with or having charge of the institution, such use is simply an extended use for charitable purposes.' (pp. 559, 560.)"
The definitions appear to cover the field. It would serve no useful purpose to attempt to extend them with quotations from other authorities. We held that the Topeka Presbyterian Manor was exempt from taxation under the definitions given the terms charitable and benevolent. It remains to be determined whether or not the operations of the Evangelical Village and Bible Conference, Inc., are essentially identical with the operations of the Topeka Presbyterian Manor.
Each of the institutions was a home for the elderly; each was a nonprofit Kansas corporation with no capital stock; in each, upon dissolution, the assets would be used for tax exempt purposes and not for the benefit of any private individual; in each the purpose was to provide elderly persons with homes on a nonprofit basis; each requested residents to pay a resident fee and monthly charge differing only in amount; in each the admissions were not restricted to a single religious denomination; each had regular weekly religious *390 services and infirmary care with registered nurses and nursing facilities; each made services available to persons of limited means; in the operation of each no profit inures to anyone and only reasonable compensation is paid employees.
The average age of residents in the Topeka Presbyterian Manor is 82 while that of the appellant is 78. As in most other instances the difference is only in degree.
The trial court listed five propositions which it considered the rationale of its decision. These we shall discuss.
The trial court states that, "the different amounts and nature of the founder fees and monthly subsistence payments negate a charitable or benevolent purpose."
Here again we have only a matter of degree. The difference in the fees is not based so much on service as the accommodations furnished. The different amounts are based on the size of the accommodations, the number of rooms and the presence of kitchen facilities.
The trial court concluded:
"... Plaintiff relies on Manor, supra, as the basis of its alleged exemption. The Court feels the facts in this case clearly are distinguishable. In Manor the home was directly connected with a church or particular theology, whereas here the home has no specific non-profit organization backing it; ..."
The facts here show that a number of area church denominations are supporting Lakeview Village and, upon dissolution, its assets, if any, would go for charitable or other tax exempt purposes.
The trial court emphasized the fact that
"In Manor almost one-third of the construction cost of $400,000.00 was donated and the Manor had to have gifts to operate, the evidence being that in the first seven months it received $59,000.00. Here the entire cost of construction was financed. The only cash contribution being the sum of $5,212.00...."
It might be suggested that an additional $212,962.88 was borrowed from local banks on the signatures of eight local individuals interested in the building of the home. Also, over three thousand hours had been donated by religious workers, nurses and teachers and various items such as an organ and piano for the chapel area had been given to the home.
The trial court states that
"Plaintiff here operates a retirement home and not a home for the aged...."
*391 It is our understanding that people are retired because of age. Also, we are of the opinion that people averaging 78 years of age must be classified as elderly.
The trial court found that the occupancy agreement negates a charitable and benevolent purpose. The occupancy agreement for appellant provides for certain special conditions under which occupancy may be terminated, including permanent physical or mental disability. Lakeview Village is not a nursing home. It has made provision for cases where residents come under permanent disability and need care beyond that which can be provided within the home. The occupancy agreement provides for an adjustment in such cases. This provision is consistent with care and concern for residents and bespeaks an interest in providing them with proper care as required by circumstances.
Appellees make the contention:
"In addition to the issues in this case which were common to those in the Manor case and those additional issues heretofore mentioned, there exists in this case certain factors which draw into serious question the credibility, or at least the capability, of appellant to be entrusted with a tax exemption:"
The appellees are referring to the payments made to Dr. Berg. On this issue the trial court found:
"Dr. Berg acted as a promoter and was instrumental in getting the corporation started. He used the title of coordinator and performed services as locating the site for the proposed home, arranging for the necessary financing, securing the services of an architect and contractor, making arrangements for an FHA loan and conducting a campaign to publicize the location and purpose of the home and to secure residents to move into same when completed. He further set up an Iowa corporation of his own, Christian Services, Inc., in connection with the program of locating prospective occupants and was working with other groups at the same time."
We are not placing our approval on the payments made to Dr. Berg. We can only state that the record is lacking sufficient evidence of the value of his services to permit a specific finding that he was overpaid.
We are unable to find any logical basis for making a distinction between the Topeka Presbyterian Manor and the appellant in this case for tax exemption purposes.
There is another issue which should perhaps receive attention. At the close of the appellant's argument, counsel left with this court charts showing certain figures and their application. There was also left with this court certain pamphlets consisting of advertising *392 used by appellant. Appellees have filed written objections to the use of such material by this court.
It is made to appear that the figures in the plats are in dispute. The plats and pamphlets were not a matter of record and were not before the trial court, hence they will therefore not be considered by this court.
The judgment is reversed with instructions to the trial court to declare the appellant's real property pertaining to the home for the retired exempt from taxes for the years 1965, 1966, and subsequent years.
APPROVED BY THE COURT.
PRICE, C.J., dissents.
FONTRON, J., dissenting:
Although I joined the opinion in Topeka Presbyterian Manor v. Board of County Commissioners, 195 Kan. 90, 402 P.2d 802, I felt at the time we had proceeded in the direction of charitable exemptions about as far as we could rationally go. That feeling persists today. Hence, I do not favor extending the boundaries of that case.
In my judgment there are sufficient differences in the case before us now to distinguish it from Presbyterian Manor. Several distinctions are mentioned in the court's opinion although most of them, it must be conceded, are differences in degree rather than in kind.
In addition, the record reflects a suggestion of commercialism which was absent in the Manor case. There is also a vague hint of possible dispossession in certain letters addressed to residents whose financial resources were rapidly being depleted. Finally, the plaintiff has not been approved for nor has it been granted tax exemption status within the purview of U.S.C. Title 26, § 501 (c) or Title 26, § 170 (a).
Perhaps no one of the matters noted above would, standing alone, be of sufficient significance to warrant withholding tax exempt status under Kansas law. Taken together, however, they are sufficient in total, as I view them, to justify the trial court in its conclusion. I would affirm the judgment.
O'CONNOR, J., joins in the foregoing dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610303/ | 485 P.2d 778 (1971)
Dewey Earl JERNIGAN, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-15764.
Court of Criminal Appeals of Oklahoma.
May 26, 1971.
Rehearing Denied June 18, 1971.
Jay Dalton, Tulsa, Okl., for plaintiff in error.
Larry Derryberry, Atty. Gen., Gary M. Bush, Asst. Atty. Gen., for defendant in error.
*779 NIX, Judge:
Plaintiff in error, Dewey Earl Jernigan, hereinafter referred to as defendant, was convicted and sentenced to a term of 15 to 45 years by jury verdict for Robbery with Firearms in the District Court of Tulsa County, Oklahoma, Case No. CRF-69-1459. Judgment and sentence in accordance with the verdict was imposed on December 19, 1969, and this appeal perfected therefrom.
Briefly stated, the evidence establishes that on September 4, 1969, at approximately 10:30 P.M., a U-Tote-M Grocery Store in Tulsa County was robbed by a lone man armed with a gun. At the time Mr. Francis S. Elder, who operated the store, was mopping the floor, while his wife, Vivian Elder, a part time employee, was working behind the cash register. The robber entered the store holding a white cloth to his *780 nose, as if he had a nose bleed. He pulled a gun on Mr. Elder and told Mrs. Elder it was a hold-up. Mrs. Elder took $132.00 from the register, put it in a sack, and gave it to the robber who left the store threatening Mr. Elder not to follow him. The police were notified and a description given. Shortly thereafter an officer saw an Oldsmobile traveling at a high rate of speed away from the scene driven by a man resembling the description. Later officers arrested defendant, who matched the description, at the Playboy Lounge in front of which was parked the defendant's Oldsmobile next to a Chrysler in which was found a light colored trench coat similar to the one worn by the robber. The Elders identified defendant as the robber.
Defendant presented four witnesses who testified defendant was inside the Lounge at the time of the robbery.
It is defendant's first contention that the trial court committed error in overruling defendant's demurrer to the state's evidence because the arrest was illegal and the trench coat illegally seized. We are not persuaded the arrest was illegal. Title 22, O.S. 1961, § 196, authorizes an officer to arrest without a warrant when a felony has been committed and the officer has reasonable cause for believing the person arrested to have committed it. The arresting officers knew a felony was committed; had been given a good general description of the robber; knew defendant was seen driving away from the scene in his Oldsmobile; found defendant's Oldsmobile, the motor of which was still warm, in front of the lounge; and found defendant inside the lounge. This was sufficient to constitute "reasonable cause" to believe defendant committed the crime and therefore supported the arrest.
However, even if the arrest was not justified or legal, it does not affect the jurisdiction of the court, nor is it a ground for questioning the information; and it does not preclude trial of the accused. Harrison v. State, Okl.Cr., 461 P.2d 1007; Walters v. State, Okl.Cr., 403 P.2d 267.
As to the seizure of the trench coat from the car parked next to defendant's Oldsmobile, it should be remembered that it is the owner of that car who has standing to assert the privilege against unreasonable searches where defendant was neither the owner or occupant. Wafers v. State, Okl.Cr., 444 P.2d 825; Kyle v. State, Okl.Cr., 366 P.2d 961. But further defendant has no standing to raise this issue on appeal since there was no objection at the trial to the introduction of the coat. Wafers v. State, supra.
We, therefore, conclude the trial court did not err in overruling defendant's demurrer to the state's evidence.
Defendant's next contention concerns the more serious issues arising from the identification of the defendant at a pre-trial line-up. While Mr. Elder was testifying during the state's case in chief, defense counsel requested a hearing outside of the jury's hearing on the identification. An in camera hearing was then held during which Mr. & Mrs. Elder testified as to the circumstances of a police station line-up held two hours after the robbery in which they each picked out defendant during separate viewings. Defense counsel then said: "I realize that questioning of the line-up would be fruitless." The jury was called back and Mr. Elder continued to testify and under questioning by the prosecutor related the minute details of the line-up. Mr. Elder then identified defendant in the courtroom as the robber and further testified he had previously identified defendant at the preliminary hearing as the robber. Mrs. Elder likewise related details of the line-up where she picked out defendant, and identified defendant in the courtroom as the robber.
In Thompson v. State, Okl.Cr., 438 P.2d 287 (1968), this Court acknowledged the requirements of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), concerning all pre-trial line-ups after June 12, 1967, and set forth the guidelines for such line-ups. Under *781 these same cases it is mandatory for the trial court to hear evidence outside the jury's hearing on whether a pre-trial line-up absent counsel renders an in-court identification inadmissible. This procedure was followed in the instant case and we are persuaded the evidence presented outside the jury's hearing permitted an in-court identification by the witnesses having satisfied the test that "the in-court identification of the defendant had an `independent source' come at by `means sufficiently distinguishable to be purged of the primary taint' of the pre-trial exhibition and identification absent counsel." Stewart v. State, Okl.Cr., 458 P.2d 646, at 649 (1969). Accordingly, we find no violation of United States v. Wade, supra.
However, long before the Wade decision it was the rule of this Court that "it is error for the State to introduce into evidence, in the presence of the jury, the facts and circumstances surrounding a pre-trial identification of the defendant." Davis v. State, Okl.Cr., 467 P.2d 521, at 523 (1970). Testimony brought out by the prosecution in chief of an extra-judicial identification or pre-trial line-up identification of defendant is inadmissible and constitutes reversible error. Gillespie v. State, Okl.Cr., 355 P.2d 451; Cothrum v. State, Okl.Cr., 379 P.2d 860. In the instant case, the prosecutor elicited from both Mr. & Mrs. Elder the pre-trial line-up identification of defendant as well as their in-court identification of defendant as the robber. This was error notwithstanding the non-jury hearing concerning the lineup. Such a hearing under Wade and Thompson is to enable the trial court to rule on whether the witness may be allowed to identify the defendant in court before the jury; that is, whether the in-court identification is admissible or would be so tainted by a prejudicial pre-trial exhibition as to be inadmissible. Such a ruling and hearing have no bearing on the prohibition against the state presenting evidence in court before the jury as to any extra judicial identification or pretrial exhibition of defendant and such evidence would still be inadmissible by the state in chief.
However, in the instant case, defendant entered no objection when the prosecutor elicited the testimony from Mr. & Mrs. Elder before the jury concerning the line-up. Nor does he raise this issue on appeal. If the trial court allowed such evidence over defense counsel's objection, reversal would be required, but the error is waived without a timely objection. In Gillespie v. State, supra, we held:
"Failure of the defendant to object to the introduction of testimony and lengthy cross-examination relative to an extra-judicial identification may take the same out of the category of reversible error. * * *" 355 P.2d at 452.
Since defendant did not object and since the evidence shows the line-up, although absent counsel, was fair and not inherently prejudicial, we conclude that reversal is not required. The same occurrence under less fair circumstances might well require reversal.
It is defendant's final contention that the sentence is excessive, given under passion and prejudice resulting from the testimony of a rebuttal witness who stated he was a guard for the defendant. In rebuttal the state called Norman Lemons, a deputy sheriff, who testified that he was assigned as "a guard for the defendant" during which time defendant stated he had lost 45 pounds since he had been in jail. The purpose of this testimony apparently went to the question of identity and description.
We find no merit to defendant's argument that the witness stating he guarded defendant was unduly prejudicial or self-incriminating. This is quite a different situation than when the defendant is seen shackled in the courtroom or behind bars in a jail. See, French v. State, Okl. Cr., 416 P.2d 171; Moore v. State, Okl.Cr., 430 P.2d 340. This is not to say that the testimony of an accused's guard might not be so prejudicial as to constitute error. But in this case, the testimony was not inherently prejudicial and was material. *782 Furthermore, the sentence being well within the limits provided by 21 Ohio St. 1961, § 801, which carries the death penalty, does not appear an excessive term.
For the foregoing reasons, the judgment and sentence is hereby affirmed.
BUSSEY, P.J., and BRETT, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611872/ | 884 P.2d 712 (1994)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Marla DRACON, Defendant-Appellee.
No. 94SA238.
Supreme Court of Colorado, En Banc.
November 15, 1994.
*714 A. William Ritter, Jr., Dist. Atty., Second Judicial Dist., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.
DiManna & Jackson, Michael F. DiManna, Daniel A. Sweetser, Denver, for defendant-appellee.
Justice VOLLACK delivered the Opinion of the Court.
The prosecution brought this interlocutory appeal pursuant to C.A.R. 4.1 and section 16-12-102(2), 8A C.R.S. (1986 & 1993 Supp.), to challenge an order entered by the Denver District Court suppressing all statements made by the defendant, Marla Dracon (Dracon), in response to a custodial interrogation by police officers. The district court held that the failure of the police officers to issue a Miranda[1] warning made their initial interrogation illegal, and that the post-Miranda interrogation was the product of the initial illegal interrogation. We affirm the suppression order in part, reverse in part, and remand the case to the district court for further proceedings consistent with this opinion.
I.
Dracon was charged in the Denver District Court with child abuse resulting in the death of an eight-year-old child in violation of section 18-6-401(7)(a)(I), 8B C.R.S. (1986). Dracon filed a motion to suppress the statements she had made to the police during the custodial interrogations.
The district court conducted a suppression hearing in which the district court heard testimony from Officer Randall Smith of the Denver Police Department, Sergeant Doug Hildebrant of the Homicide Unit of the Denver Police Department, and from Detective Steven Luis Antuna of the Homicide Unit of the Denver District Attorney's Office. The following facts were established.
On September 2, 1993, Sergeant Bridges of the Denver Police Department arrived at the home of Allen Spencer to investigate the circumstances surrounding the death of a minor child, Robert Spencer. Allen Spencer, the boy's father, was taken from the residence to the police station by Sergeant Bridges where he was interrogated, and subsequently arrested.
Dracon, Allen Spencer's live-in girlfriend, was also present at the house, and Sergeant Bridges instructed Dracon to provide him with her keys to the residence.[2] Dracon agreed to accompany Officer Smith to the police station to discuss the circumstances surrounding Robert Spencer's death. During the trip to the police station, Dracon sat beside Officer Smith in the front seat of the patrol car without being handcuffed. Dracon asked several questions, and Officer Smith informed her that she would be instructed as to what would happen to her once she reached the police station. At no time did Officer Smith advise Dracon that she was free to leave, or that she was able to decline his invitation to escort her to the police station.
Officer Smith drove to the basement area of the Denver Police Department. He escorted Dracon in a freight elevator not available to the public and took her to the homicide bureau.[3] Officer Smith left Dracon alone in the homicide office waiting area, *715 where she was ultimately contacted by Sergeant Hildebrant.
Sergeant Hildebrant brought Dracon into his office for questioning. Sergeant Armedia Gordon was also present. Sergeant Hildebrant informed Dracon that he was a member of the Homicide Unit of the Denver Police Department and that he "needed to know what information she had" so that he could "figure out what happened." At no time either before or during the interview did the officers advise Dracon of her Miranda rights or tell Dracon that she was free to leave.[4] Further, at no time did either officer indicate to Dracon that she was under arrest. Conversely, Dracon neither indicated that she wanted to leave nor that she wanted to terminate the questioning.
Sergeants Hildebrant and Gordon interrogated Dracon from approximately 9:50 a.m. until 11:00 a.m. During the interrogation, Dracon made statements pertaining to the disciplinary action taken by Allen Spencer in punishing Robert Spencer's behavior. Dracon additionally made admissions regarding her knowledge that Allen Spencer paddle-spanked Robert the evening preceding the death of the child.
Based upon the information obtained in the interrogation, Sergeant Hildebrant told Dracon that he wished to record her statement and explained why he thought a videotaped statement was necessary. Dracon agreed to give a videotaped statement. Sergeant Hildebrant took Dracon to the videotape room where Dracon was never advised of her Miranda rights. The videotaped interrogation commenced at 11:20 a.m. and concluded at 12:56 p.m. The interrogation was temporarily halted when Dracon went to the restroom unaccompanied by anyone.
After the videotaped interrogation was completed, Sergeant Hildebrant brought Dracon to the lobby area of the homicide bureau, and directed Dracon to "have a seat,... and I'[ll] ... have someone get back ... [to you] that knows more about the investigation to let you know what's going on." Dracon remained unattended in the lobby area until Detective Antuna interviewed her.
Detective Antuna was assigned to interview witnesses and suspects concerning the suspicious death of Robert Spencer. Detective Antuna had completed his interview with Allen Spencer.[5] Detective Antuna walked out into the public hallway and spoke with Sergeant Hildebrant, who made him aware of the statements made by Dracon during the initial and videotaped interrogations.
Detective Antuna approached Dracon, identified himself to her, and asked if he could talk to her about the death of Robert Spencer. Dracon agreed. Detective Antuna escorted her into an interview room. Detective Antuna advised Dracon of her Miranda rights and then asked her whether she understood her rights as they were read to her. Dracon responded affirmatively and signed the written advisement form indicating that she had been advised of her rights.
The interrogation began at approximately 4:00 p.m. and lasted thirty to forty minutes. Detective Antuna did not advise Dracon that she was under arrest or that she was free to leave. After the interview was finished, Detective Antuna instructed Dracon to return to the lobby area. At that point, she was taken to her residence by a Denver police officer.[6]
At the conclusion of the hearing, the district court granted Dracon's motion to suppress all the statements Dracon had made to the officers. The district court suppressed the statements Dracon made to Sergeants Hildebrant and Gordon on the ground that the statements were made during a custodial interrogation that had not been preceded by Miranda warnings. Relying upon the standard enunciated by this court in People v. Trujillo, 784 P.2d 788 (Colo.1990), the district *716 court determined that a reasonable person in the defendant's position would have considered herself deprived of her freedom of action during the police interrogation. The district court concluded that all statements made during the interrogation with Sergeants Hildebrant and Gordon should be suppressed for all purposes since they were involuntary, and were the product of a custodial interrogation without the benefit of a prior Miranda warning. The district court additionally suppressed Dracon's subsequent statements to Detective Antuna, which were made after Dracon was advised of her Miranda rights, as the illegal product of the initial interrogation made without the benefit of a Miranda warning.
We hold that Dracon's statements were the product of a custodial interrogation. We further hold that Dracon's pre-Miranda statements were made voluntarily and can be used for impeachment purposes only. Lastly, we conclude that the district court erred in finding that Dracon's post-Miranda statements were tainted by the initial custodial interrogations.
II.
The district court determined that Dracon was in custody during the interrogations with Sergeants Hildebrant and Gordon and Detective Antuna at the police station. The district court suppressed Dracon's statements to Sergeants Hildebrant and Gordon as the product of a custodial interrogation without the benefit of a Miranda warning. The district court further suppressed Dracon's post-Miranda statements to Detective Antuna as the illegal product of the initial custodial interrogations.
The People claim that the record does not support the district court's finding that Dracon was in custody during both of the interrogations.[7] At the suppression hearing, the People presented evidence to support their contention that Dracon was not in custody, including that Sergeant Hildebrant considered Dracon to be a witness and not a suspect in the case; none of the officers told her that she was under arrest; the officers considered her free to be able to leave at any time; Dracon was not handcuffed at any time; Dracon sat in the front seat of the patrol car; a gun was never drawn on her; and she was left unattended in the lobby area of the homicide unit as opposed to being placed in a secure room or holding cell. The People further maintain that the fact that Dracon was not expressly told that she was under arrest or that she was free to leave was not sufficient evidence to support the conclusion that a reasonable person in her position would have considered herself deprived of her freedom in a significant way.
Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), a defendant's statements made during the course of a custodial police interrogation are inadmissible as evidence in a criminal case unless the prosecutor establishes that the defendant was advised of certain constitutional rights and has waived those rights.[8] Before a Miranda advisement is required, the following two prerequisites must be satisfied: the person to whom the advisement is given must be in custody at the time of the advisement, and the statements being made by the person must be the product of a police interrogation. People v. Haurey, 859 P.2d 889, 893 (Colo.1993); People v. Hamilton, 831 P.2d 1326, 1330-31 (Colo.1992); People v. Sharpless, 807 P.2d 590, 591 (Colo.1991).
In determining whether an individual is in custody at the time of questioning, the relevant inquiry is whether a reasonable person in the suspect's position would consider *717 herself deprived of her freedom of action in a significant way at the time of questioning. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317 (1984); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977); Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Haurey, 859 P.2d at 893; People v. LaFrankie, 858 P.2d 702, 705 (Colo.1993). This determination is a question of fact to be resolved by the trial court after assessing the credibility of the witnesses and weighing their testimony. LaFrankie, 858 P.2d at 706; Hamilton, 831 P.2d at 1331; Trujillo, 784 P.2d at 792. These findings will not be reversed on appeal if they are supported by competent evidence and if the trial court applied the correct legal standard. Haurey, 859 P.2d at 893; People v. Horn, 790 P.2d 816, 819 (Colo.1990).
To determine a reasonable person's belief, a court must evaluate the totality of the circumstances under which the questioning occurred, including such factors as the following:
The time, the place and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions.
People v. Horn, 790 P.2d at 818 (quoting Jones v. People, 711 P.2d 1270, 1275-76 (Colo.1986)); People v. Thiret, 685 P.2d 193, 203 (Colo.1984). Under the "reasonable person" objective standard, "neither the interrogating officer's subjective state of mind nor the suspect's mental state is conclusive on the issue of whether a reasonable person in that situation would have considered the interrogation to be custodial." Hamilton, 831 P.2d at 1330.
The district court considered evidence bearing on the circumstances surrounding the police questioning. Based on that evidence, the court concluded that a reasonable person in the defendant's position would have considered herself deprived of her freedom of action during the police questioning. Our review of the record satisfies us that the evidence amply supports the district court's determination that Dracon was in custody. Sergeant Bridges, the officer in charge of the investigation at the scene of the homicide, instructed Dracon to provide him with her keys to the house. Dracon was then transported in a police car to the police station for questioning concerning Robert Spencer's death. At the police station, Dracon was escorted by Officer Smith into a freight elevator, not available to the public, and was brought to the homicide bureau. Sergeants Hildebrant and Gordon, from the homicide division, questioned Dracon. The questioning lasted approximately one hour and ten minutes and was conducted in Sergeant Hildebrant's office with the two sergeants and Dracon present. A videotaped interview was then conducted for approximately one hour and forty minutes. After the videotaped interview was completed, Sergeant Hildebrant brought Dracon to the lobby area of the homicide bureau and directed her to have a seat. Sergeant Hildebrant told her that he "[would] have someone get back ... [to her] that knows more about the investigation to let [her] know what's going on." Dracon remained in the lobby area for approximately three hours. At 4:00 p.m., Detective Antuna contacted Dracon. Detective Antuna questioned Dracon after advising her of her Miranda rights. At no time during any of the questioning was Dracon advised that she was free to leave. After Detective Antuna completed his interrogation, Dracon was driven home by a Denver police officer.
Dracon was at the police station from approximately 9:45 a.m. to 4:45 p.m. Dracon spent approximately three hours with Sergeants Hildebrant and Gordon during the initial questioning and approximately forty minutes with Detective Antuna. While it is unclear as to what Dracon did during the three-hour period in which she was left unattended in the lobby area, the record does indicate that she did not leave the police *718 station. The record supports the trial court's finding that Dracon was in custody.
We must next consider whether her custodial statements were the result of police interrogation. For purposes of Miranda, the term "interrogation" refers both to express questioning by a police officer, and to any words or actions on the part of the officer that he or she should know are reasonably likely to elicit an incriminating response from the defendant. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297 (1980); People In the Interest of J.C., 844 P.2d 1185, 1189 (Colo.1993); People v. Probasco, 795 P.2d 1330, 1332 (Colo.), cert. denied, 498 U.S. 999, 111 S. Ct. 558, 112 L. Ed. 2d 564 (1990).
Our review of the record satisfies us that the district court's findings of fact are supported by competent evidence in the record and that the district court applied the correct legal standard in resolving the issue of custodial interrogations. The district court correctly found that Dracon was initially subjected to custodial interrogation by Sergeants Hildebrant and Gordon without the benefit of a Miranda warning. Accordingly, the district court properly suppressed the statements made by Dracon to Sergeants Hildebrant and Gordon during the initial interrogations.
III.
The prosecution next contends that the evidence was insufficient to support the district court's determination that Dracon's statements were coerced by official overreaching and were not voluntarily made.
The district court determined that the statements Dracon made to Sergeants Hildebrant and Gordon were not voluntary. The district court stated that the prosecution failed to sustain its burden of proving that, based upon the totality of the circumstances, the statements were made voluntarily. The district court made the following findings:
a. The Defendant was in custody and was not free to leave at the time of the interrogation by Sergeant Hildebrant;
b. Miranda warnings were not given prior to this interrogation;
c. The Defendant did not knowingly waive her Miranda rights;
d. The Defendant did not have the opportunity to confer with counsel, or anyone else, prior to the interrogations made by Hildebrant;
e. Statements made by the Defendant to Sergeant Hildebrant were made during an interrogation and were not volunteered;
f. The Court has viewed the videotape of the statement made to Sergeant Hildebrant by the Defendant. The confrontational tenor of the interrogation, as well as the demeanor of Sergeant Hildebrant leave no question that the statements made by the Defendant in response thereto were not voluntary;
g. The Defendant was interrogated by Sergeant Hildebrant for a significant period of time, all of which occurred either in Sergeant Hildebrant's office, or in the videotape interrogation room located at the Denver Police Department;
h. The prosecution failed to produce any evidence as to the educational background of the Defendant, her prior experience with law enforcement, or the criminal justice system. At the time of the interrogation conducted in this case, the Defendant was 24 years old;
i. The Defendant was not advised at any time prior to or during any of the three separate interrogations that she was free to leave.
When the voluntariness of a defendant's statement is challenged, the prosecution must establish by a preponderance of the evidence that, under the totality of the circumstances, the statement was made voluntarily. People v. Hutton 831 P.2d 486, 488 (Colo.1992). A statement is involuntary if coercive police activity played a significant role in inducing the statement. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521, 93 L. Ed. 2d 473 (1986); Hutton, 831 P.2d at 488; People v. Gennings, 808 P.2d 839, 843 (Colo.1991); People v. Branch, 805 P.2d 1075, 1080 (Colo.1991).
In determining the voluntariness of a statement, this court has articulated several factors to consider, including:
*719 whether the defendant was in custody or was free to leave and was aware of his situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the defendant had the opportunity to confer with counsel or anyone else prior to the interrogation; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant's mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.
Gennings, 808 P.2d at 844. The trial court order reveals that the trial court did consider the factors we articulated in Gennings, 808 P.2d at 844, 846, and Branch, 805 P.2d at 1081, in reaching its conclusion that Dracon's statements to Sergeant Hildebrant were involuntary. The trial court did not, however, indicate that it concluded that the conduct of Sergeant Hildebrant was coercive or, if coercive, played a significant role in inducing the statements. See Branch, 805 P.2d at 1080. Similarly, the trial court's order does not state that Dracon's will was overborne by improper state conduct. See People v. Mendoza-Rodriguez, 790 P.2d 810, 816 (Colo. 1990).
During the custodial interrogations, neither Sergeant Hildebrant nor Sergeant Gordon was in uniform and neither one of them displayed any weapons. The videotaped interrogation reveals that on several occasions during the approximately 100-minute interrogation Sergeant Hildebrant raised his voice, cut off Dracon's comments, demanded "yes" or "no" answers, conveyed disbelief of Dracon's statements, and employed sarcasm when asking leading questions. The videotape and the record of the suppression hearing constitute evidence supporting the trial court's finding that the tenor of Sergeant Hildebrant's second interrogation of Dracon was confrontational.
Our review of the record and the videotaped interrogation indicates that, although Sergeant Hildebrant displayed a stern demeanor and serious tone, Dracon, for the most part, did not appear intimidated by him during the lengthy interrogation. After Sergeant Hildebrant asked a question, Dracon frequently would reflect for several moments before answering and then would answer the question. In certain instances, however, Dracon responded promptly and answered the questions in a conversational tone. Throughout the course of the videotaped interrogation, Dracon manifested a deferential demeanor. She appeared somewhat nervous at times, but was generally calm and composed. Dracon answered every question posed to her and evidenced little difficulty in understanding Sergeant Hildebrant's questions and comments.[9]
Sergeant Hildebrant did not inform Dracon that charges would be filed against her regardless of her interview responses. Conversely, Dracon did not at any time request to terminate the interrogation.
Based upon our review of the record of the interrogations, we conclude that the evidence establishes that Sergeant Hildebrant's demeanor during the videotaped interrogation of Dracon was at times confrontational, as the trial court found. However, we also conclude that the record establishes that such conduct did not play a significant role in inducing Dracon's statements. Because this is the only conclusion supported by the record, the trial court's determination that Dracon's statements were involuntary must be reversed.
We therefore conclude that, under the totality of the circumstances, Dracon's statements made during the initial custodial interrogation were voluntary. We further hold that Dracon's statements made during the initial custodial interrogation can be used to impeach Dracon's testimony at trial. See Michigan v. Harvey, 494 U.S. 344, 110 S. Ct. 1176, 108 L. Ed. 2d 293 (1990); Branch, 805 *720 P.2d at 1081 (determining that, where the evidence does not establish coercive governmental action in obtaining the statement but the statement has nonetheless been obtained in violation of procedural safeguards, the statement may not be used by the prosecution as substantive evidence in its case-in-chief but may be used to impeach the defendant's testimony at trial).
IV.
The prosecution finally asserts that the district court erred in suppressing Dracon's post-Miranda statements to Detective Antuna on the ground that her statements were tainted by the involuntary statements made to Sergeants Hildebrant and Gordon. The prosecution further maintains that the district court applied an erroneous standard in making its determination that the prosecution failed to sustain its burden of showing by clear and convincing evidence that Dracon voluntarily waived her Miranda rights.
Statements which are both voluntary and obtained after a valid Miranda advisement are not automatically rendered inadmissible by pre-Miranda statements. Mendoza-Rodriguez, 790 P.2d at 814. Rather, a court must first determine whether the defendant's pre-Miranda statements were given voluntarily. Id. If they were, then the defendant's post-Miranda statements are admissible so long as they were voluntary. Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285, 1297, 84 L. Ed. 2d 222 (1985); Hamilton, 831 P.2d at 1333. "[T]he admissibility of [statements made subsequent to Miranda warnings] should turn ... solely on whether [they] are knowingly and voluntarily made." Mendoza-Rodriguez, 790 P.2d at 815 (quoting Elstad, 470 U.S. at 309, 105 S. Ct. at 1293). However, if the pre-Miranda statements were not made voluntarily, the defendant's post-Miranda statements will be admitted only if they were not tainted by the prior involuntary statements. Mendoza-Rodriguez, 790 P.2d at 814-15.
In light of our conclusion that Dracon's statements were made voluntarily during the initial custodial interrogation, coupled with Dracon's voluntary waiver of her Miranda rights, we find that the district court erred in ruling that Dracon's subsequent statements were tainted by prior involuntary statements made by Dracon to Sergeants Hildebrant and Gordon.
The district court additionally found that Detective Antuna advised Dracon of her Miranda rights prior to the interrogation but that the prosecution failed to sustain its burden of showing by clear and convincing evidence that Dracon voluntarily waived her Miranda rights.
Detective Antuna asked her whether she understood her rights as they were read to her. Detective Antuna checked each right after it was read to her. Dracon responded that she understood her rights and signed a written advisement form indicating that she had been advised of her rights. According to Detective Antuna's testimony, the record indicates that the Detective did not make any threats or promises to induce her to sign the form. The record does not support the district court's finding that Dracon did not voluntarily waive her rights after Detective Antuna gave her the Miranda advisement. Further, the district court imposed an incorrect clear-and-convincing burden upon the People in proving a waiver of Dracon's Miranda rights. See People v. Hopkins, 774 P.2d 849, 853 (Colo.1989) ("The prosecution's burden in establishing a valid Miranda waiver is to prove the waiver only by a preponderance of the evidence."). We therefore reverse the district court's suppression of the post-Miranda statements made to Detective Antuna.
V.
In summary, we hold that the district court properly found that the statements to Sergeants Hildebrant and Gordon were made during custodial interrogations absent a Miranda warning. In our opinion, the statements were voluntarily made and are admissible for impeachment purposes only. We further hold that the trial court erred in finding that Dracon's post-Miranda statements were tainted by the initial custodial interrogations. We therefore reverse the district court's suppression of the post-Miranda *721 statements made to Detective Antuna. Accordingly, the trial court's ruling is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
NOTES
[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] Dracon had been residing at the Spencer residence since early July 1992.
[3] Officer Smith testified that he parked the car in the basement level since that is the designated parking area. Officer Smith further stated that he chose the freight elevator because it is located closest to the homicide bureau.
[4] Sergeant Hildebrant testified that, at the time of the interrogation, he was under the impression that Robert Spencer had been beaten to death by some kids. Sergeant Hildebrant additionally testified that he did not advise Dracon of her Miranda rights since he was unaware that she was under investigation for Robert Spencer's death.
[5] Based upon that interview, Detective Antuna placed Allen Spencer under arrest.
[6] The defendant was not charged with child abuse until a month after she had been interrogated at the police station.
[7] The People additionally argue that the district court failed to apply the totality-of-the-circumstances standard. Although the district court does not articulate this standard, by relying on People v. Trujillo, 784 P.2d 788, 792 (Colo.1990), in making its custodial determination, the district court implicitly applied a totality-of-the-circumstances standard.
[8] Prior to interrogating a person in police custody, a police officer is obliged to inform the person of the following rights: that the person has a right not to say anything; that anything she says can be used against her in court; that she has a right to the presence of an attorney; and that, if she cannot afford an attorney, one will be appointed for her prior to questioning, if she so desires. Miranda, 384 U.S. at 478-79, 86 S. Ct. at 1629-30.
[9] The record reveals that Dracon was twenty-four years old at the time of the interrogation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2216864/ | 899 N.E.2d 753 (2008)
DONEGAN
v.
STATE.
No. 13A01-0807-CR-316.
Court of Appeals of Indiana.
December 9, 2008.
DARDEN, J.
Disposition of Case by Unpublished Memorandum Decision. Affirmed.
RILEY, J. Concurs.
VAIDIK, J. Concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326489/ | Lauriat, Peter M., J.
Benson Caswell (“Caswell”) brought this action against the Massachusetts Development Finance Agency (“MDFA”), alleging breach of contract in connection with his employment agreement with Massachusetts Health and Educational Facilities Authority (“HEFA"). Before the court is the MDFA’s motion to dismiss Counts I and II of Caswell’s complaint. For the following reasons, the motion is denied.
BACKGROUND
The court takes as true the following facts set forth in the Complaint. See Marshall v. Stratus Pharm., Inc., 51 Mass.App.Ct. 667, 670-71 (2001). Chapter 614 of the Acts of 1968 (“Chapter 614”) created HEFA, a “quasi-public” authority that helped provide tax-exempt financing to hospitals and educational facilities. Section 4(a) of Chapter 614 provided that HEFA consists of a nine-member board appointed by the governor for a term of seven years; the governor could remove any member for cause, including “misfeasance, malfeasance or willful neglect of duty.” Section 4(b) gave the board the authority to “appoint an executive director and assistant executive director, who shall not be members of the authority, who shall serve at the pleasure of the authority. They shall receive such compensation as shall be fixed by the authority.”
In March 2002, HEFA’s board appointed Caswell as the Executive Director of HEFA. An employment agreement (the “Agreement”) dated April 15, 2002, provided for an initial term of three years, to be extended each year for one additional year based on a satisfactory review of Caswell’s performance (the “term”), a salary of $155,000 plus benefits, and a discretionary bonus. The Agreement also provided that, in the event Caswell was terminated without cause, or his position eliminated or consolidated, he was entitled to:
a severance benefit payment equal in amount to (a) one year’s base salary (at the then current level) plus the estimated cost, as determined by the Authority, of one year’s health and other insurance benefits provided Caswell at the time of this termination (the “Base Severance Benefit”), plus (b) an additional one-sixth of the Base Severance Benefit for each completed year of service; provided, how*317ever, that in no event shall Caswell’s severance benefit exceed three full years of the Base Severance Benefit.
Caswell asserts that he specifically negotiated for this provision because not only was he aware of the potential for quasi-public authorities to be consolidated with other authorities, but also, while researching HEFA prior to accepting his position, he learned of past attempts to merge HEFA and the MDFA.
In subsequent years, Caswell received satisfactory or better performance reviews; accordingly his term of employment was extended by one year in 2003, 2004 and 2005. On April 15, 2005, Caswell and HEFA executed an Amended and Restated Employment Agreement (“First Amended Agreement”) which contained the same provision for extending Caswell’s term of employment as the initial agreement as long as neither party terminated the agreement. His salary increased to $200,000, plus benefits and a discretionary bonus. The terms of his severance remained the same.
On April 16, 2006, Caswell and HEFA executed a Second Amended and Restated Agreement (“Second Amended Agreement”), the provisions of which were substantially the same as those of the First Amended Agreement. In addition to his base salary and bonus, Caswell received one hundred percent paid medical and dental benefits, one hundred percent paid short-term disability, long-term disability and long-term care benefits, life insurance, transit pass, car allowance and various additional benefits. Like its predecessors, the Second Amended Agreement provided that Caswell would receive severance upon termination of the agreement without cause, or if his position was eliminated or consolidated. In addition, the Second Amended Agreement provided that Caswell would receive health insurance coverage under COBRA for the same period covered by his severance. Specifically, Section 7 reads, in relevant part:
If terminated by the Authority pursuant to Section 6(d) [without cause] before the expiration of the term of this Agreement, or upon the elimination or consolidation of the position of Executive Director such that Caswell no longer serves in such position prior to the expiration of the Term of this Agreement, Caswell shall receive, in addition to the Accrued Obligations: (a) a lump-sum severance benefit payment on the date of early termination in an amount equal to (i) the annual Base Salary (at the then cunrent level), plus (ii) an additional one-sixth of the annual Base Salary for each completed year of service, counted from the start of Caswell’s employment with the Authority on April 15, 2002, provided, however, that in no event shall the amount of this severance benefit payment exceed three full years of the annual Base Salary; and (b) subject to Caswell’s proper election under COBRA to continue on the Authority’s health coverage following termination, payment by the Authority of the cost to continue Caswell’s health coverage pursuant to COBRA for the period equal to one year, plus an additional two months for each completed year of service including the year of termination, counted from the start of Caswell’s employment with the Authority on April 15, 2002 (the “Continuation Period”); provided, however, that in no event shall the Continuation Period exceed three full years . . .
Caswell continued to receive positive performance reviews and his term of employment was therefore extended under the Agreement. As of April 15, 2010, his term was not due to expire until April 14, 2013. Caswell’s salary was increased in May 2008 to $225,000 and he received bonuses of $22,500 from 2008 through the year ending April 2010.
Caswell’s concern about a possible merger was well founded. In August 2010, Governor Patrick signed into law Chapter 240 of the Acts of 2010 (“Chapter 240”), also known as the Economic Development Reorganization Act, which merged HEFA into the MDFA effective October 1, 2010. Section 162 repealed §4 of Chapter 614. Section 109(b) provided that all employees of HEFA were to be merged into the MDFA as follows:
The employees of each transferor agency, including those who immediately before the effective date of this act hold permanent appointment in positions classified under chapter 31 of the General Laws or have tenure in their positions as provided by section 9A of chapter 30 of the General Laws or do not hold such tenure, or hold confidential positions, are hereby transferred to the respective transferee agency, without interruption of service, without impairment of seniority, retirement or other rights of the employee, and without reduction in compensation or salary grade, notwithstanding any change in title or duties resulting from such reorganization, and without loss of accrued rights to holidays, sick leave, vacation and benefits.
Chapter 240, § 190(f) also provided that “(a]ll duly existing contracts, leases, assets and obligations of each transferor agency shall continue in effect but shall be assumed by the respective transferee agency. No existing right or remedy of any character shall be lost, impaired or affected by this act.” Section 188(b) provided that “[a]ll duly existing contracts, leases, trusts, or obligations of the Authority that are in force immediately before the effective date of the dissolution of the Authority shall be deemed to be the obligations of the Agency.” Thus, all of HEFA outstanding con tracts and liabilities were assumed by the MDFA and all of HEFA’s employees were merged into the MDFA.
On September 28, 2010, the MDFA informed Caswell that, due to the merger, his position as Executive Director of HEFA was eliminated, and he would not be awarded the severance package as provided in *318the Second Amended Agreement. Caswell filed this action on October 20, 2010, asserting claims for breach of contract (Count I), breach of the covenant of good faith and fair dealing (Count II), and a violation of the Massachusetts Public Records Act (Count III). He takes the position that Chapter 240’s abolition of his position constitutes an “elimination or consolidation of the position of Executive Director such that Caswell no longer serves in such position prior to the expiration of the Term,” thus triggering the MDFA’s obligation to provide him with a severance package under Section 7 of the Second Amended Agreement. The MDFA has now moved to dismiss Counts I and II, pursuant to Mass.R.Civ.P. 12(b)(6), for failure to state a claim. The thrust of its argument is that the employment agreements are null and void because they contravene the legislature’s intent and exceed the authority provided by HEFA’s Enabling Act.
DISCUSSION
In order to withstand a motion to dismiss, a plaintiffs complaint must contain “allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect [a] threshold requirement . . . that the plain statement possess enough heft to shofw] that the pleader is entitled to relief.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1966 (2007) (internal quotations omitted). While a complaint need not set forth detailed factual allegations, a plaintiff is required to present more than labels and conclusions, and must raise a right to relief “above the speculative level . . . [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. See also Harvard Crimson, Inc. v. President & Fellows of Harvard Coll., 445 Mass. 745, 749 (2006).
The MDFA argues that the severance provision of Caswell’s employment agreement is unenforceable, since §4(b) of Chapter 614 provides that the executive director “shall serve at the pleasure of the authority.” It contends that the words “at the pleasure of’ indicate the Legislature’s intent that Caswell’s employment was “at will.” See, e.g., Appley v. Locke, 396 Mass. 540, 543 (1986); see also Corrigan v. School Committee of New Bedford, 250 Mass. 334, 338-39 (1924); Welch v. Contributory Retirement Appeal Bd., 343 Mass. 502, 507 (1962). The agreements, their argument goes, impermissibly transform an “at will” employment into one for a defined term.
Caswell, for his part, asserts that the elimination of his position did not affect the severance terms of the agreements. For this proposition he relies primarily on Carter v. Warren Five Cents Savs. Bank, 409 Mass. 73, 75-76 (1991). In Carter, the Supreme Judicial Court addressed similar wording in G.L.c. 172, §14, which provides that officers of banks “shall hold their respective offices during the pleasure of the directors.” Id. at 75. Carter and his employer /bank had negotiated an agreement that provided severance in the event Carter resigned if, as a result of a merger, a change in his responsibilities constituted a demotion. When these events came to pass, the bank refused to pay Carter’s severance. Id. at 76. The question before the court was whether, under the “during the pleasure of’ language the bank was “forbidden from offering enforceable ‘golden parachutes’ to its officers.” Id.
The court distinguished between the bank’s right to terminate an employee at will and a severance provision in an employment agreement. Id. at 75-76. It noted the general rule that “no inhibition on a board’s exercise of its pleasure to discharge an officer should be tolerated and that an obligation to pay future salary on a termination of an officer’s employment would be such an inhibition.” Id. at 75. However, the court then held that “We are unwilling to read into a statute that says nothing explicitly about executive compensation a rule that invalidates an arm’s-length transaction entered into to benefit the bank, by encouraging a key executive to stay in its employ in the face of the uncertain consequences of a possible merger of the employer-bank into another entity.” Id. at 76. See also Schmidt v. Park Avenue Bank, N.A., 558 N.Y.S.2d 779, 780 (1990) (applying the cognate federal statute). Therefore, although the “at the pleasure of’ language allows an employer to terminate an employ and stop paying salary, it does not affect a separate severance provision negotiated by the parties as part of an employee agreement.
Here, Caswell does not challenge the MDFA’s decision to eliminate his position, thereby terminating his employment. Rather, he challenges the MDFA’s failure to honor the severance package that the parties negotiated under his employment contract. As he also points out, Chapter 614, §4(b) explicitly gives the authority the power to fix the compensation of the executive director. He has therefore set forth sufficient facts, at this early stage of the proceedings, to support an entitlement to relief with respect to Count I. Whether the agreements in question were valid contracts is best addressed after further discovery.1
Caswell’s claim for a breach of the implied covenant of good faith and fair dealing is, effectively, a claim of disparate treatment. He alleges that executives in other governmental bodies terminated around the same time received severance, whereas the MDFA denied his severance package in retaliation for certain conduct with respect to the appointment of an assistant executive director. Accepting as true the allegations of the complaint, the court concludes that Caswell has alleged sufficient facts to withstand the MDFA’s motion to dismiss Count II.
ORDER
For the forgoing reasons, the Defendant Massachusetts Development Finance Agency’s Motion to Dismiss Counts I and II of Plaintiff s Complaint is DENIED.
To the extent that the MDFA argues that the Legislature *319eliminated the terms of the agreements when it abolished Caswell’s position, the court notes that § 188(b) of Chapter 240 provides that all HEFA’s existing contracts “shall be deemed the obligations of the Agency.” | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1000885/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7491
HERBERT ALONZO ROBINSON,
Plaintiff - Appellant,
versus
WILLIAM BRIGHTHARP, Captain at Lieber Correc-
tional Institution; MICHAEL SHEEDY, Associate
Warden of Lieber Correctional Institution;
THIERRY D. NETTLES, Captain; MAE BROWN, of the
Institutional Classification Committee, all in
their individual and official capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Joseph F. Anderson, Jr., District
Judge. (CA-99-2539-2-17AJ)
Submitted: February 10, 2000 Decided: February 14, 2000
Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Herbert Alonzo Robinson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Herbert Alonzo Robinson appeals from the district court’s
order denying relief on his 42 U.S.C.A. § 1983 (West Supp. 1999)
complaint. We have reviewed the record and the district court’s
opinion accepting the magistrate judge’s recommendation and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Robinson v. Brightharp, No. CA-99-2539-2-17AJ
(D.S.C. Sept. 20, 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.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610330/ | 485 P.2d 886 (1971)
A. J. ALLEN, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.
No. 23563.
Supreme Court of Colorado, In Department.
June 14, 1971.
*887 Moyers & Dunlap, Robert Dunlap, Colorado Springs, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Paul Rubner, Eugene C. Cavaliere, Asst. Attys. Gen., Denver, for defendant in error.
HODGES, Justice.
Defendant Allen was tried by a jury and convicted of attempted assault with a deadly weapon. On writ of error, the defendant urges reversal for two reasons: First, he contends there is no such crime as attempted assault with a deadly weapon, and second, he claims the trial court erroneously refused to give his tendered instruction on his theory of the case. Both of these contentions are valid. We therefore reverse the judgment of conviction.
The information charging defendant states that on October 24, 1967, the defendant did "[a]ttempt to make an assault upon one Earl Wayne Tysver with a deadly weapon * * * in violation of Colorado Revised Statutes 1963, 40-2-34 and 40-25-1 * * *."
The evidence at trial reveals that the defendant was stopped by police officers Tysver and Gearhart at about 12:45 a. m. on October 24, 1967 because defendant was driving an automobile with an expired temporary permit.
Officer Tysver testified that, after he stopped defendant's car, he approached defendant on the driver's side of the car and asked him for his driver's license. Defendant appeared to be reaching for his wallet, however, he pulled a gun out of his right rear pocket. Although he dropped the gun, his arm came across as if to point at Officer Tysver. Defendant then attempted twice again to reach for the gun but was restrained at gunpoint by Officer Tysver.
Defendant testified that he was trying to hide the gun in question and that he was carrying the gun for his own protection. This testimony was corroborated by the testimony of a female companion who was riding in the car with the defendant at the time he was stopped.
I.
With reference to the alleged offense of attempt to commit an assault with a deadly weapon, we hold that there is no such offense in Colorado.
The question of whether a crime exists or not is clearly one of statutory construction, since C.R.S.1963, 40-1-1 defines a crime in terms of a "[v]iolation of a public law * * *." This does not deprecate the principle, previously announced by this court, that the common law *888 may be used in aid of the meaning to be given statutory language, when such language is not defined in the statute. See Gallegos v. People, 159 Colo. 379, 411 P.2d 956.
The pertinent statutes to be construed in the instant case are C.R.S.1963, 40-2-33 and 40-2-34 and 1967 Perm.Supp., C.R.S.1963, 40-25-1.
C.R.S.1963, 40-2-33, entitled "What is an assault," defines an assault as "[a]n unlawful attempt coupled with present ability to commit a violent injury on the person of another." (emphasis added.) An assault is therefore a particular type of an attempt, as defined by our statute, and accordingly, we have no occasion to determine the common law definition of an assault. What then is a criminal attempt?
Prior to such inquiry, we note that although defendant was charged under C.R.S. 1963, 40-25-1, defining criminal attempt, that statute was repealed and re-enacted on April 7, 1967, several months prior to defendant's arrest. No claim is made in defendant's behalf as to the inaccurate statute citation set forth in the information. Criminal attempt is defined by 1967 Perm. Supp., C.R.S.1963, 40-25-1 as follows:
"An attempt to commit a crime requires that the person has an intent to perform any act, and to obtain any result which, if accomplished, would constitute such crime, and that he does any act toward the commission of the crime which demonstrates, under the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor."
As above defined, the commission of a criminal attempt under our statutes requires the intent to commit a specific crime. Attempting an assault would require a person to intend to "attempt * * * with present ability to commit a violent injury on the person of another." Perhaps philosophers or metaphysicians can intend to attempt to act, but ordinary people intend to act, not to attempt to act. As stated by one court, nearly one-hundred years ago, "[T]he refinement and metaphysical acumen that can see a tangible idea in the words `an attempt to attempt "to act" is too great for practical use. It is like conceiving of the beginning of eternity or the starting point of infinity.'" Wilson v. State, 53 Ga. 205; see generally, Annot. 79 A.L.R. 2d 597 (1961); Beale, Criminal Attempts, 16 Harv.L.Rev. 491 (1902). In State v. Davis, 108 N.H. 158, 229 A.2d 842, it is succinctly stated that:
"As to crimes of this sort it is true as argued by defendant that `there can be no crime of an attempt to commit an attempt.'"
The argument is made that an attempted assault should be construed to be an assault without the element of present ability. E. g., State v. Wilson, 218 Or. 575, 346 P.2d 115. We note that in Wilson the Oregon court had no statute defining the crime of assault alone. The court went on to uphold the validity of the charge of attempted assault with a deadly weapon on the theory that an assault should be viewed as a "separate substantive crime and not as an attempted battery." Our statute, C.R.S. 1963, 40-2-33, defines an assault in terms of an attempt to injure another, or an attempt to commit a battery. We therefore do not regard this Wilson case as persuasive in our analysis of this issue.
When a person is charged with an assault, it is clear that "present ability" must be construed in the light of the particular situation. The policy behind criminal statutes is to safeguard the public from harm from individuals. In construing the criminal assault statute therefore factors such as the gravity of the potential harm and the uncertainty of the result are to be included in appraising the actor's "present ability." Cf., Johnson v. People, Colo., 484 P.2d 110.
In view of our determination that the offense with which the defendant was charged is non-existent in Colorado, the judgment of the trial court must be reversed *889 and the information ordered dismissed.
II.
Although the defendant's contention that the court should have instructed the jury in some manner regarding his theory of the case, viz., that he was attempting to hide the gun from the police officers, is rendered moot in view of our holding hereinabove set forth, we deem it advisable to briefly comment on this subject.
We have examined all of the instructions given by the trial court, and we conclude that the court erred in not submitting defendant's theory of the case to the jury. Instruction No. 3 deals with the material allegations of the information and states that if the jury finds that the People proved each and every allegation beyond a reasonable doubt, then they should find the defendant guilty. In refusing defendant's tendered instruction, the trial court stated that, "[I]f the jury thinks that the People have proved [the allegations] * * * then obviously the jury is not willing to accept defendant's testimony that he was merely trying to get the gun out of his pocket and conceal it * * * and I feel that Instruction No. 3 covers the defendant's defense." Nothing in any instruction refers to defendant's defense that he was trying to hide the gun.
The law in Colorado is clear that if the defendant's theory of the case is supported by some evidence, he is entitled to an instruction on it so long as the instruction is in the proper form. See, Zarate v. People, 163 Colo. 205, 429 P.2d 309; Wertz v. People, 160 Colo. 260, 418 P.2d 169; Sterling v. People, 151 Colo. 127, 376 P.2d 676; Leopold v. People, 105 Colo. 147, 95 P.2d 811. Since defendant's theory of the case was supported by competent evidence, the court erred in not submitting an instruction relating to his theory of the case.
Judgment reversed and cause remanded with directions to dismiss the information.
PRINGLE, C. J., and DAY and GROVES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610334/ | 5 Wash. App. 137 (1971)
485 P.2d 1005
SEATTLE INVESTMENT COMPANY, INC., Respondent,
v.
BYRON KILBURN et al., Appellants.
No. 658-41386-1.
The Court of Appeals of Washington, Division One Panel 2.
June 14, 1971.
Horswill, Keller, Rohrback, Waldo & Moren and J. Anthony Hoare, for appellants.
Maslan & Hanan and Robert G. Maslan, for respondent.
FARRIS, A.C.J.
On August 8, 1967, Seattle Investment Company, Inc. entered into an exclusive listing agreement with the Kilburns wherein Seattle Investment Company *138 was granted the exclusive right and authority to sell a tavern owned by the Kilburns for a period of 90 days. The sale price was $65,000. In no event was the commission to be less than 10 per cent of the sales price. Kilburn was expressly prohibited from selling the property during the period. On August 23, 1967, Kilburn sent to Seattle Investment Company a letter purporting to cancel the exclusive listing agreement. On September 2, 1967, Kilburn sold the tavern through another agent for $65,000. Seattle Investment Company brought action to recover the agreed commission of $6,500 on grounds of breach of the listing agreement. The Kilburns appeal from a judgment of $6,500 entered in favor of Seattle Investment Company.
Kilburn contends that the proper measure of damages is the value of the services rendered and such prospective profits as can reasonably be established would have been earned but for the wrongful revocation of the authority to sell. Seattle Investment Company argues that the damages were the agreed commission.
[1] Kilburn argues that Seattle Investment Company must show by a preponderance of the evidence that it would have been successful in its efforts to sell the property. In the absence of such a showing, Kilburn argues, any recovery must be based on a theory of quantum meruit. Decisions dealing with the termination of a contingent fee agreement between attorney and client are cited as authority for this position. Although the contingent fee agreement is similar in nature to the listing agreement, the two are distinct in several important respects.
Because of the personal and confidential nature of the attorney-client relationship, the client may, at any time and for any reason or without any reason, discharge his attorney. This does not constitute a breach of the contract. The right to discharge an attorney is a term of the contract, implied from the particular relationship that exists between attorney and client. The client retains the power and the right to discharge the attorney. Recovery therefore is necessarily based on quantum meruit and not on the *139 grounds of breach of contract. See Wright v. Johanson, 132 Wash. 682, 233 P. 16 (1925). In such cases, an attorney can only recover for the value of services actually rendered. See Hamlin v. Case & Case, Inc., 188 Wash. 150, 61 P.2d 1287 (1936), Ramey v. Graves, 112 Wash. 88, 191 P. 801 (1920), and Dill v. PUD 2, 3 Wash. App. 360, 475 P.2d 309 (1970).
[2] The Kilburns had the power to withdraw from Seattle Investment Company the authority to sell the property but they did not have the right to revoke the contract. See 1 A. Corbin, Contracts § 50 (1963). The attempt to revoke the listing agreement was a breach of a bilateral contract, not a unilateral termination of the agreement as the Kilburns argue.
The purpose of awarding damages for breach of contract is neither to penalize the defendant nor merely to return to the plaintiff that which he has expended in reliance on the contract. It is, rather, to place the plaintiff, as nearly as possible, in the position he would be in had the contract been performed. He is entitled to the benefit of his bargain, i.e., whatever net gain he would have made under the contract. [Citing cases.]
The plaintiff is not, however, entitled to more than he would have received had the contract been performed. If the defendant, by his breach, relieves the plaintiff of duties under the contract which would have required him to spend money, an amount equal to such expenditures must be deducted from his recovery.
Platts v. Arney, 50 Wash. 2d 42, 46, 309 P.2d 372 (1957).
If ... the broker has been prevented from procuring a customer as a result of the principal's breach of contract, as for example, where the principal, having bound himself to give the broker a stipulated time in which to find a customer, wrongfully revokes, the broker can recover, as damages for breach of contract, the amount of the commission which he can show he would have earned, minus the expenses he would have had to incur to earn it.
Restatement (Second) of Agency, § 445, comment f (1958).
The trial court found as a fact that Seattle Investment Company had a party interested in the property. No finding *140 was made on the question of whether Seattle Investment Company would have sold the property within the 90-day period. Kilburn contends that the Investment Company had the burden of proving by a preponderance of the evidence that it would have been successful in its efforts to sell the property. We disagree. When there is a revocation and a subsequent sale within the period of the exclusive listing agreement, it will be presumed that the broker with the exclusive listing would have made the sale.
Where, ... a real-estate broker has an exclusive listing and has established that the property described in the listing agreement has been sold, a prima facie case is established for a commission upon the entire sales price.
Fleetham v. Schneekloth, 52 Wash. 2d 176, 179, 324 P.2d 429 (1958).
We find no evidence to rebut the presumption. Affirmed.
JAMES and SWANSON, JJ., concur.
Petition for rehearing denied September 14, 1971.
Review denied by Supreme Court October 18, 1971. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610335/ | 107 Ariz. 222 (1971)
485 P.2d 547
ELECTRIC CONSTRUCTION CO., Inc., Appellant,
v.
Kenneth G. FLICKINGER, Registrar of Contractors of the State of Arizona, Appellee.
No. 10187-PR.
Supreme Court of Arizona, In Banc.
May 27, 1971.
Rehearing Denied June 22, 1971.
Gary K. Nelson, Atty. Gen., Phoenix, Lewis & Roca, by John P. Frank, Special Deputy Attys. Gen., Phoenix, for appellee.
Lawrence K. Bret Harte, Tucson, for appellant.
STRUCKMEYER, Chief Justice.
The question on this appeal is whether a subcontractor who works on a federal job in Arizona is required to obtain a State contractor's license. The trial court answered this question in the affirmative, and enjoined certain subcontractors who were not licensed in Arizona from performing contracts at Davis Monthan Air Force Base in Tucson, Arizona. The injunctions were stayed pending the appeal of the Electric Construction Co., Inc., one of the subcontractors. We granted review. Opinion of the Court of Appeals, 12 Ariz. App. 500, 472 P.2d 111, vacated. Judgment of the Superior Court reversed.
The Electric Construction Company, a California corporation, is unlicensed in Arizona. It engaged in certain construction at the Davis Monthan Base pursuant to subcontracts with the general contractor, Forsberg and Gregory, also a California corporation unlicensed in Arizona. The jobsites at the Davis Monthan Base admittedly *223 do not have federal enclave status. 40 U.S.C. § 255.
The U.S. Supreme Court in Leslie Miller Inc. v. Arkansas, 352 U.S. 187, 77 S. Ct. 257, 1 L. Ed. 2d 231, held that a prime contractor, similar to the general contractor in this case, could not be fined because it worked on a federal jobsite in Arkansas and failed to obtain a license from the Arkansas Contractors Licensing Board. The Arkansas licensing law set forth certain factors which the contractors licensing board had to consider in its determination of the qualifications of an applicant for a contractor's license experience, ability, character, the manner of performance of previous contracts, financial condition, equipment, any fact tending to show ability and willingness to conserve the public health and safety. Arizona has like qualifications and others. A.R.S. § 32-1122.
The Supreme Court was of the opinion that the Arkansas licensing statutes conflicted with the Armed Services Procurement Act of 1947, 10 U.S.C. § 2305(c), providing that awards on advertised bids shall be made to the "lowest bidder" and the Procurement Regulations adopted pursuant to the Act set forth these guiding considerations defining a responsible contractor:
"(a) Is a manufacturer, construction contractor, or regular dealer * * *
(b) Has adequate financial resources, or ability to secure such resources;
(c) Has the necessary experience, organization, and technical qualifications, and has or can acquire the necessary facilities (including probable subcontractor arrangements) to perform the proposed contract;
(d) Is able to comply with the required delivery or performance schedule (taking into consideration all existing business commitments);
(e) Has a satisfactory record of performance, integrity, judgment, and skills; and
(f) Is otherwise qualified and eligible to receive an award under applicable laws and regulations." 77 S. Ct. at 258, 1 L.Ed.2d at 232-233.
It has been repeatedly held that regulations such as these have the force of law, see e.g., Public Utilities Commission of State of Cal. v. United States, 355 U.S. 534, 78 S. Ct. 446, 2 L. Ed. 2d 470; hence, the Court reasoned that the different requirements would give the state board a virtual power of review over the federal determination of responsibility, thus frustrating the "expressed federal policy of selecting the lowest responsible bidder."
Obviously, where the government makes a direct determination of a subcontractor's responsibility, Miller v. Arkansas would be controlling; but where the federal government does not make a direct determination, can the principle of the case extend to a subcontractor to relieve him from complying with the state law? We think so.
No precedent has been cited to us on this precise issue. Perversely, the Supreme Court of the United States has twice reached, but has not answered the analogous question of whether a state can regulate prices between a producer of milk and his distributor where the distributor sells the milk to the United States at a federal military installation. Paul v. United States, 371 U.S. 245, 83 S. Ct. 426, 9 L. Ed. 2d 292; Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 84 S. Ct. 378, 11 L. Ed. 2d 389. State regulation of milk prices between such a distributor and the United States is, of course, now recognized as a burden on the exercise by the United States of its power to maintain the armed forces and regulate federal territory through the use of procurement regulations. Paul v. United States, supra.
The Armed Services Procurement Regulations provide that determinations concerning prospective subcontractors' responsibility "shall generally be a function performed by the prospective prime contractor." The government may, however, determine *224 the responsibility of subcontractors to the same extent and on the same basis as the prime contractor. The regulations provide:
"Notwithstanding the general responsibility of a prospective contractor to demonstrate the responsibility of his prospective subcontractors, it may be in the Government's best interest to make a direct determination of the responsibility of one or more prospective subcontractors prior to award of the prime contract. * * * The determination of responsibility of a proposed subcontractor by the Government shall be based on the same factors as are applicable in a determination of responsibility of a prospective prime contractor." Armed Services Procurement Regulations, 32 CFR § 1.906(b) (1970).
The regulation recognizes that subcontractors are first the responsibility of the prime contractor, but in the end are but another arm of and, hence, the responsibility of the federal government.
The rationale for the decision in Miller v. Arkansas was expressed in a quote from Johnson v. Maryland, 254 U.S. 51, 41 S. Ct. 16, 65 L. Ed. 126, that if instrumentalities of the United States must desist from performance of their duties until they satisfy a state officer of their competence, qualifications are added to those which the federal government has pronounced sufficient. Arizona's qualifications would result in the identical conflict which was found to frustrate the federal policy of selecting the lowest responsible bidder whenever the government makes a direct determination of the responsibility of a prospective subcontractor. The federal policy, of course, will not be frustrated in those cases where the government does not invoke the provisions of the Armed Service Procurement Regulations to determine the responsibility of the subcontractor. But this is wholly aside from the issue here. The burden which may be imposed could in some instances frustrate the express federal policy. It is not the fact that there may not be a conflict concerning subcontractors' responsibility; it is the fact that there may be.
We hold Arizona's contractor's licensing act has no application to subcontractors engaged in the performance of duties for the benefit of the United States.
Judgment reversed.
HAYS, V.C.J., and UDALL, LOCKWOOD and CAMERON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610320/ | 207 Kan. 622 (1971)
485 P.2d 1349
GEORGE CLAUDE JONES, Appellant,
v.
STATE OF KANSAS, Appellee.
No. 46,290
Supreme Court of Kansas.
Opinion filed June 12, 1971.
Emil C. Anderson, Jr., of Shawnee Mission, argued the cause, and was on the brief for the appellant.
Mark L. Bennett, Jr., assistant county attorney, argued the cause, and Vern Miller, attorney general, and James A. Wheeler, county attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
O'CONNOR, J.:
In this K.S.A. 60-1507 proceeding appellant attacks his judgment and sentence for the crime of robbery in the first degree (K.S.A. 21-527). The district court, after holding a full evidentiary hearing, denied the motion; hence this appeal.
Although numerous grounds are urged for granting relief, disposition of the case centers on appellant's assertion that his plea of guilty was coerced and involuntary.
On April 19, 1969, appellant, whose correct name is Ralph A. Gragg, was charged in the magistrate court of Johnson county with three felonies: assault with intent to rape, assault with intent to rob, and first degree robbery. He had been apprehended the night before by Kansas City, Missouri, police and was identified by one Dorothy Monroe, who earlier in the evening had been assaulted and robbed in a parking lot located in Leawood. At a preliminary hearing held May 1 the alleged victim again identified appellant as her assailant, resulting in his being bound over to district court for trial.
*623 An information charging the three felonies was filed in district court May 2, and Robert G. Jones was appointed as appellant's counsel. On May 9 appellant appeared with his attorney before the district court and entered a plea of guilty to the robbery count. The transcript of proceedings at the time of the plea discloses appellant told the district court he understood the nature of the charge and the penalty therefor; that he understood he was entitled to a jury trial; and that no promises or threats had been made to induce a plea. After a brief statement of the facts pertaining to the crime by the assistant county attorney, the following transpired:
"THE COURT: Is that substantially correct, Mr. Jones?
"THE DEFENDANT: Well, I really don't know. I was drunk. I can't even recall what happened only that I was arrested and charged, and the police said the credit cards were found in my possession.
"THE COURT: You know they were found in your possession, though?
"THE DEFENDANT: Well they had them the next morning and said they was, so they must have been."
Thereupon, the plea of guilty was accepted, an allocution given, and sentence imposed to the state penitentiary for a term of not less than ten nor more than twenty-one years (K.S.A. 21-530). The other two felony counts were dismissed on motion of the state and commitment was ordered to issue.
From evidence before the district court at the 60-1507 hearing, it is apparent that considerable discussion occurred between appellant's counsel and the county attorney's office before entry of the guilty plea. Appellant was no stranger to the halls of justice inasmuch as his record bore four previous felony convictions, making him subject to a life sentence under the habitual criminal act. Numerous conferences were held by appellant and his counsel, and on one occasion they met with the assistant county attorney who advised them of the minimum and maximum punishment appellant was facing. Defense counsel was provided access to the county attorney's file on the case. Appellant himself was fully aware of the overwhelming evidence of guilt in possession of the state as a result of the preliminary hearing and his earlier identification by the complaining witness at the time of arrest. The plea discussions, which were in substantial compliance with the standards set forth and approved in State v. Byrd, 203 Kan. 45, 453 P.2d 22, resulted in appellant's plea of guilty to robbery in the first degree, the state's dismissal of the other two felony charges, and the state's forbearance from invoking the habitual criminal act.
*624 Appellant's contention that his plea of guilty was not freely, knowingly, and understandingly made because he was unable to recall and thus admit the acts constituting the crime may be laid to rest by what was said in North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160, by Mr. Justice White speaking for the majority:
"... Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
"Nor can we perceive any material difference between a plea which refuses to admit commission of the criminal act [nolo contendere] and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." (p. 171.) (Emphasis added.)
In Alford, the defendant accompanied his plea with the statement that he had not committed the murder. In the instant case, appellant's statement of not being able to remember what happened cannot be said to have detracted from the otherwise voluntary nature of his plea. He makes no claim that he did not understand the nature of the charge or the consequences thereof. Indeed, his own statements at the time of the plea and the allocution were specifically to the contrary. (See, Sharp v. State, 203 Kan. 937, 457 P.2d 14; State v. Angle, 197 Kan. 492, 419 P.2d 935. This case is readily distinguishable from Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, where it did not appear from the record that the judge asked any questions of the defendant or that defendant addressed the court when the pleas were entered.
At all times during the plea negotiations appellant had the benefit of able and competent counsel who diligently and faithfully acted in the best interests of his client. However, the ultimate decision rested squarely on the appellant. He was faced with a choice of pleading guilty to one count of the information and receiving a sentence as a "first time loser," or going to trial on the three counts, and if convicted, receiving a lengthy sentence under the habitual criminal act. After consulting with his counsel and being fully aware of the possible penalties, he chose to plead guilty. His choice of the alternatives brought him advantages of considerable magnitude, all of which stemmed from the earlier plea negotiations. Our *625 cases are legion that a guilty plea is not rendered involuntary by reason it was induced by the prosecutor's promise not to invoke the provisions of the habitual criminal act. (Weigel v. State, [No. 46,267, this day decided]; State v. Byrd, supra; Whaley v. State, 202 Kan. 175, 446 P.2d 397; Stiles v. State, 201 Kan. 387, 440 P.2d 592.) The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the accused. (North Carolina v. Alford, supra.)
Appellant's further argument that his plea of guilty was coerced as a result of the totality of circumstances existing during the 21-day period from the date of his arrest to the time of sentencing is so insubstantial that discussion is not warranted. It suffices to say that a petitioner in a 1507 proceeding has the burden of proving that his plea of guilty was involuntary. Here the district court's finding that appellant's plea was understandingly, knowingly, and voluntarily made is supported by substantial, competent evidence and will not now be disturbed on appeal. (Cox v. State, 205 Kan. 867, 473 P.2d 106; White v. State, 203 Kan. 687, 455 P.2d 562; Wippel v. State, 203 Kan. 207, 453 P.2d 43.)
Appellant also complains that his constitutional rights were violated because he was without counsel at the "one-man line up" in Kansas City, Missouri, he was held under excessive bail, and he was denied counsel at his preliminary hearing. These contentions completely overlook the impact of his guilty plea. It has long been the law of this state that when an accused enters a voluntary plea of guilty, he is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto. (Lee v. State, 207 Kan. 185, ___ P.2d ___; State v. Brown, 204 Kan. 430, 464 P.2d 161; State v. Kilpatrick, 201 Kan. 6, 439 P.2d 99.) This includes any constitutional question relating to the lack of counsel at the preliminary hearing (Brown v. State, 198 Kan. 345, 424 P.2d 576; Blacksmith v. State, 195 Kan. 523, 407 P.2d 486); any claim of excessive bail (State v. Way, 204 Kan. 375, 461 P.2d 820); and any question about the sufficiency of evidence to support guilt (Hughes v. State, 206 Kan. 515, 479 P.2d 850; Toland v. State, 200 Kan. 184, 434 P.2d 550; Dexter v. Crouse, 192 Kan. 151, 386 P.2d 263). Once a plea of guilty has been entered there is no necessity to introduce any evidence to maintain the conviction. Therefore, whether evidence of identification from the line up would have been admissible *626 at a trial is immaterial. Moreover, we should add that appellant has failed to show his substantial rights were in any way prejudiced by the lack of counsel either at the line up or at his preliminary examination. (See, State v. Fountaine, 196 Kan. 638, 414 P.2d 75.)
After a careful examination of the record, we are satisfied the district court properly concluded that appellant was not entitled to relief.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876863/ | 829 F.Supp. 24 (1993)
ALLSTATE INS. CO.
v.
Robert P. RUSSO and Armand G. DiNapoli.
Civ. A. No. 91-0510B.
United States District Court, D. Rhode Island.
July 30, 1993.
*25 John H. Blish, Stephen J. Reid, Jr., Blish & Cavanagh, Providence, RI, Peter J. Valeta, Ross & Hardies, Chicago, IL, for Allstate Ins. Co.
Richard R. Beretta, Peabody & Arnold, Providence, RI, Raymond A. Marcaccio, Providence, RI, for Robert P. Russo.
Eva Marie Mancuso, Hamel, Waxler, Allen & Collins, Providence, RI, for Armand G. DiNapoli.
OPINION
FRANCIS J. BOYLE, Senior District Judge.
This is a diversity case, 28 U.S.C. § 1332, governed by the substantive law of Rhode Island. Plaintiff Allstate Insurance Co. (Allstate) seeks a declaration that it is not obligated to defend or indemnify defendants Robert P. Russo and Armand G. DiNapoli under certain insurance policies. Defendants Russo and DiNapoli counterclaim seeking a declaration that Allstate is obligated to defend or indemnify them under these insurance policies. Although the precise legal issues are of the usual type, the circumstances under which the issues arise present a possibility of wide ranging results from the resolution of the issues. The defendants are two former directors of Central Credit Union, one of a number of credit unions located in the State of Rhode Island which have been taken over by the state because of their precarious financial conditions. The take over followed the financial collapse of the vehicle created to insure deposits of member credit unions. This case presents questions with wide spread public implications and some legal issues as to which this court has found no directly controlling Rhode Island precedent. As a result, this court decides certain issues and certifies other questions to the Rhode Island Supreme Court pursuant to Rhode Island Supreme Court Rule 6.
I. Background.
The parties have stipulated to the following facts. Defendants have been sued in connection with the collapse of Central Credit Union (hereinafter CCU) during the Rhode Island Credit Union crisis in January 1991. Defendant DiNapoli became manager of CCU in 1978. DiNapoli's annual salary as manager rose from $12,000 in 1978 to $50,000 plus benefits at the time CCU went into receivership in January of 1991. In 1979, DiNapoli was elected to the CCU Board of Directors and also elected Treasurer of CCU. As a Board member, DiNapoli received between $15.00 and $40.00 for each meeting of the Board of Directors he attended. DiNapoli had invested his life savings, approximately $50,000, in deposit or share accounts at CCU.
Defendant Russo was elected to the CCU Board of Directors in 1982. Russo attended approximately 9 meetings of the CCU Board of Directors each year and received $20.00 to $40.00 for each meeting attended. Russo's principle occupation was as an Allstate sales agent in East Greenwich, Rhode Island. Russo had invested between $8,000 and $11,000 in deposit or share accounts at CCU. Russo also had received loans totalling $150,000 from CCU to finance his Allstate sales office.
In January of 1991, CCU was placed into receivership. Later in 1991, CCU depositors filed a series of actions in Rhode Island Superior Court naming, among others, DiNapoli and Russo, in their respective capacities as officers and/or directors of CCU, as defendants. *26 To manage this litigation, a pretrial order required all plaintiffs in actions arising out of the failure, closing, and receivership of CCU to file a superseding consolidated complaint (Master Complaint). Accordingly, on April 16, 1991, the Master Complaint was filed against all officers and directors of CCU, including defendants DiNapoli and Russo. This is one of fifteen Master Complaints consolidating over one hundred (100) lawsuits.
At the time the original complaints against the defendants were filed, each of the defendants were insured by two policies issued by Allstate. Russo was insured under an Allstate Deluxe Plus Homeowners Insurance Policy. On this policy, Russo had added optional coverage for specified business pursuits and had specified "salesman without installation" as the business pursuit covered. DiNapoli also held an Allstate Deluxe Homeowners Policy. Unlike Russo, however, DiNapoli added no optional coverage to his policy. Russo and DiNapoli were each the named insured on separate Allstate Personal Umbrella Policies (PUPs). On his PUP application, Russo listed his position as a member of the CCU Board of Directors in response to a question asking him to list public, educational or charitable boards of which he was a member. Defendants paid all premium payments for all of the policies and Allstate accepted the payments. On February 19, 1991, Russo submitted a claim to Allstate under his policies. Likewise, on February 22, 1991, DiNapoli submitted a claim to Allstate under his policies. As a result of these claims, Allstate has brought this action for declaratory judgment. The stipulated facts and joint exhibits are included in the attached record.
II. Discussion.
Both parties seek a declaratory judgment concerning whether or not Allstate has a duty to defend or indemnify DiNapoli and Russo. As a general rule, "a duty to defend arises when the complaint in the underlying tort action contains facts sufficient to bring the case within or potentially within the coverage of the policy, regardless of whether the plaintiffs in the tort action will prevail on the merits." Hingham Mutual Fire Ins. Co. v. Heroux, 549 A.2d 265, 266 (R.I.1988). Therefore, "[b]y negative implication, [an] insurer has no duty to defend the insured against loss of [a] nature and kind ... not within the coverage of the policy." Allstate Ins. Co. v. LaPore, 762 F.Supp. 268, 270 (N.D.Cal.1991). This court decides the issues presented under the Homeowners Policies in Part A of the Discussion. In addition, the court certifies to the Rhode Island Supreme Court questions concerning both the scope of coverage and available exclusions under the Personal Umbrella Policies. The extent of the relevant law discovered by this court is set forth in Parts B and C of the Discussion.
A. The Homeowners Policies.
Allstate is entitled to declaratory judgment with regard to defendants' claims made under their Homeowners Policies.[1] Under Rhode Island law, "[t]he language used in the policy must be given its plain, ordinary, and usual meaning." Malo v. Aetna Casualty and Surety Co., 459 A.2d 954, 956 (R.I.1983). Accordingly, "[w]hen the terms are found to be clear and unambiguous, ... [they] must then be applied as written and the parties are bound by them." Id.
Each of the Homeowners Policies provides that "Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident." (Joint Exhibits 5 and 6, p. 23.) (emphasis added). The policies define "bodily injury" as meaning "physical harm to the body, including sickness or disease, and resulting death." Id. at 3. This definition of "bodily injury" is unambiguous and, as a result, the language must be given its plain, ordinary meaning. See Malo v. Aetna Casualty and Surety Co., 459 A.2d at 956. In addition, several courts *27 have construed the meaning of the term "bodily injury" in insurance policies. See Chatton, et al. v. Nat'l Union Fire Ins. Co., 10 Cal.App.4th 846, 854, 13 Cal.Rptr.2d 318 (1992) (listing numerous cases construing "bodily injury"). The weight of authority holds that "bodily injury" refers only to physical injury to the body and not nonphysical, emotional or mental damage. Id. "[W]here a term has been judicially construed, it is not ambiguous, and courts should apply the judicial construction given in previous decisions." Allstate Ins. Co. v. LaPore, 762 F.Supp. 268, 270 (N.D.Cal.1991). Although the Master Complaint prays for "actual and consequential damages" and "other and further relief that th[e] court deems just and proper," none of the allegations even remotely assert that the plaintiffs suffered "bodily injury" as defined by the Allstate Homeowners Policies. (Joint Exhibit 4, p. 70.) Accordingly, no coverage exists under the "bodily injury" provision.
"Property damage," as defined by the policies, "means physical injury to or destruction of tangible property, including loss of its use resulting from such physical injury or destruction." (Joint Exhibits 5 and 6, p. 4.) (emphasis added). Under this definition therefore, the Master Complaint plaintiffs suffered "property damage" only if the funds that plaintiffs entrusted to CCU constitute "tangible property." The Master Complaint characterizes the plaintiffs' losses as lost deposits or investments. (Joint Exhibit 4, p. 29) The general rule is that loss of investment is purely economic loss and not injury to or destruction of tangible property. See Hartford Accident & Indemnity Co. v. Case Foundation Co., et al., 10 Ill.App.3d 115, 122-124, 294 N.E.2d 7, 13-14 (1973). Furthermore, funds characterized as investments are analogous to funds deposited in a bank. Travelers Indemnity Co. v. State of Arizona, 140 Ariz. 194, 196, 680 P.2d 1255, 1257 (1984). Bank deposits create a debtor-creditor relationship between the bank and the depositor. White Rock Nat'l Bank of Dallas v. United States Fire Ins. Co., 562 S.W.2d 268, 273-74 (Tex.Civ.App.1978). A deposit, therefore, is not held in specie in the bank's vaults for the depositor, but rather is an intangible chose in action.[2]Somers v. Snihur, No. 282304, 1991 WL 25663, at *2 (Conn.Super.Ct., Feb. 5, 1991). Because neither lost investments nor lost deposits are "tangible property," as defined by the Homeowners Policies, no coverage exists under the "property damage" provision. Accordingly, because no coverage exists under either the "bodily injury" or "property damage" provisions, a judgment should enter declaring that Allstate is not obligated, under either of the Homeowners Policies, to defend or indemnify Russo[3] or DiNapoli. See Mellow v. Medical Malpractice Joint Underwriting Ass'n, 567 A.2d 367, 368 (R.I.1989).
B. The Personal Umbrella Policies Scope of Coverage.
The parties also seek a declaratory judgment as to coverage under the Personal Umbrella Policies (PUPs) held by defendants Russo and DiNapoli. The PUPs provide, in pertinent part, that: "Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence" (Joint Exhibit 7, p. 4.) "Property damage" is defined substantially the same under both the Homeowners Policies and the PUPs. As a result, for the reasons set forth above, no coverage exists under the "property damage" provision of the PUPs.
*28 The PUPs define "personal injury", in pertinent part, as: "c) libel; slander; misrepresentation; humiliation; defamation of character; [and] invasion of rights of privacy." (Joint Exhibit 7, p. 2.) (emphasis added). Because the Master Complaint contains counts for both intentional and negligent misrepresentation,[4] the defendants seek coverage under the PUPs' "personal injury" provisions.
Defendants argue that the term "misrepresentation" is clear and unambiguous and should be given its plain meaning, a meaning that provides coverage for economic loss of the type alleged by the Master Complaint plaintiffs. See B & D Appraisals v. Gaudette Machinery Movers, 752 F.Supp. 554, 557 (D.R.I.1990). In support of this argument, defendant DiNapoli offers a Restatement of Torts definition of negligent misrepresentation which closely mirrors the allegations in the Master Complaint.[5] In the alternative, defendants argue that any ambiguity in the term "misrepresentation" must be construed against Allstate. Under Rhode Island Law it is clear that "if the language employed in the policy is ambiguous or susceptible of one or more reasonable interpretations, it will be construed in favor of the insured." See Bush v. Nationwide Mutual Ins. Co., 448 A.2d 782, 784 (R.I.1982). A court should not, however, "through an effort to seek out ambiguity where there is none, make either party assume a liability not imposed by the policy." Id.
At least one commentator has observed that "misrepresentation ... runs all through the law of torts, as a method of accomplishing various types of tortious conduct which ... usually are grouped under categories of their own." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 105, at 725 (5th ed. 1984) (emphasis added). In fact, difficulty often arises in connection with the term "misrepresentation" because of "a failure to distinguish the requisites of the action in tort at law from those of equitable remedies, and to distinguish the different forms of misrepresentation from one another." Id. at 727. As a result, the term "misrepresentation", "has been merged to such an extent with other kinds of misconduct that neither the courts nor legal writers have found any basis to regard it as a separate basis of liability." Id. at 726 (emphasis added). Accordingly, if the defendants' argument is adopted, the "misrepresentation" clause would expose Allstate to liability not only for misrepresentation of the species contained in the Master Complaint, but also for a variety of torts against both tangible and intangible interests. See id. at 725-26.
Plaintiff argues that the court should apply the doctrine of construction known as "ejusdem generis" to limit the broad meaning of "misrepresentation." Black's Law Dictionary explains the "ejusdem generis rule" as meaning "that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned." See also George J. Couch *29 et al., Couch on Insurance 2d § 15.71 at 325 (Rev. ed. 1984). The "personal injury" provision in question in the Allstate PUP, however, seems incompatible with a classic application of the "ejusdem generis" rule. Generally, courts apply "ejusdem generis" to statutory or contract language where general language follows an enumeration of specific terms. See, e.g., Waranch et al. v. Gulf Ins. Co., 218 Cal.App.3d 356, 359, 266 Cal.Rptr. 827 (1990) (enumerated list of specific torts followed by general language "or other invasion of the right of private occupancy").
Here, the general term "misrepresentation", which carries a very broad meaning, is included in the midst of an enumeration of torts. The situation in this case appears better suited to an application of the closely related doctrine of "noscitur a sociis" which means "it is known from its associates." Norman J. Singer, Sutherland Stat. Const. § 47.16 at 183 (5th ed. 1992 Rev.). The current explication of this principle is the oft-quoted observation that "one is known by the friends he or she keeps." Under "noscitur a sociis," "when two or more words are grouped together, and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word." Id. Both "ejusdem generis" and "noscitur a sociis" have been employed as rules of construction under Rhode Island law. See Members of the Jamestown School Comm. v. Schmidt et al., 122 R.I. 185, 191, 405 A.2d 16, 20 (1979) (applying "noscitur a sociis" in context of statutory construction); see also Shulton, Inc. v. Apex, Inc., 103 R.I. 131, 135, 235 A.2d 88, 91 (1967) (recognizing application of "ejusdem generis" in context of contract interpretation); In re Opinion of the Governor, 90 R.I. 135, 138-39, 155 A.2d 602, 604 (1959) (applying "ejusdem generis" in context of statutory construction). Under "noscitur a sociis", the term "misrepresentation" would be limited and qualified by the torts of libel, slander, humiliation, defamation of character; and invasion of rights of privacy, which are listed along with it. Because these torts all represent invasions of personal or relational, and not economic, interests, application of this doctrine would seem to dictate that the term "misrepresentation" should not be construed to embrace the allegations of economic injury in the Master Complaint. See Waranch et al. v. Gulf Ins. Co., 218 Cal.App.3d at 359, 266 Cal.Rptr. 827 (construing other listed torts as limiting the term "other invasion of the right to private occupancy" to invasions of real property interests); see also Allstate Ins. Co. v. LaPore, 762 F.Supp. at 271 (torts such as defamation impair a "relational" interest).
Plaintiffs further argue that the overall tone of the PUPs bolsters this strict construction of the term "misrepresentation". The coverage and exclusions in the PUPs repeatedly limit the scope of the policy to personal activities and injuries. Furthermore, the PUPs do not include torts, such as deceit, which generally result in injury of an economic nature, in any of the four lists of injuries and torts that define "personal injury." Given that "[a] policy is not to be described as ambiguous because a word is viewed in isolation," plaintiffs argue that the tone of the PUPs, coupled with an application of the above doctrine of construction eliminates any ambiguity and compels a construction of the term "misrepresentation" in favor of the plaintiffs. See McGowan v. Connecticut Gen. Life Ins. Co., 110 R.I. 17, 18, 289 A.2d 428, 429 (1972).
C. The Business Activities Exclusions.
The PUPs contain two express business activities exclusions. First, the PUPs state that they do not apply "to any act, or failure to act, of any person in performing functions of that person's business." In addition, the PUPs exclude coverage for "any occurrence arising out of a business or business property." (Joint Exhibit 7, p. 9.) (emphasis added). The policies define "business" as "any full or part-time activity of any kind engaged in for economic gain." (Joint Exhibit 7, p. 2.)
Defendants argue that the PUPs' "business activities" exclusions do not apply because their service on the CCU Board of Directors constituted a "civic service" for which the PUPs expressly provide coverage. (Joint Exhibit 7, p. 4.) The PUPs require that a civic service be "a) not-for-profit; or b) not a function of an insured's business." *30 The policies fail to further define the term "civic service." Defendants claim that CCU was a nonprofit organization and that their service was not a function of their respective businesses. Black's Law Dictionary defines "civic" as "pertaining to a city or citizen, or to citizenship." Courts have defined a credit union as "a democratically controlled, cooperative, nonprofit society organized for the purpose of encouraging thrift and self-reliance among its members by creating a source of credit at a fair and reasonable rate of interest in order to improve the economic and social conditions of its members." La Caisse Populaire Ste. Marie v. United States, 563 F.2d 505, 509 (1st Cir.1977) (emphasis added). Similarly, under Rhode Island law, "the words `credit union' shall mean a co-operative association formed for the purpose of promoting thrift among its members and offering opportunities for members to use and control their own money in order to improve their economic and social condition." R.I.Gen.Laws § 19-21-1 (1989).
Russo additionally argues that information he supplied on his PUP application gives rise to coverage for his activities in connection with CCU. A question on the PUP application form asked Russo to "[l]ist the public, educational, or charitable boards of which you or a resident of your household are a member of." In response, Russo listed his position as a member of CCU's Board of Directors. Under Rhode Island law, "[a]n application for insurance is ordinarily an offer which must be unconditionally accepted before a contract comes into existence." Goucher v. John Hancock Mut. Life Ins. Co., 113 R.I. 672, 676, 324 A.2d 657, 660 (1974). Russo argues that, by accepting his application and issuing the PUP, Allstate accepted his offer and agreed to provide coverage in connection with his board position at CCU. Plaintiff notes, however, that the very beginning of the PUP provides that "Allstate agrees to provide the insurance described in this policy." (Joint Exhibit 7, p. 2) (emphasis added). Accordingly, plaintiff argues that, on its face, the policy expressly limits coverage to the terms contained within the policy. Nothing in the policy incorporates the contents of the application into the policy itself.
In addition, Russo argues that the information contained in the application is evidence of the parties' intent to include coverage for his CCU board position in the insurance contract. Specifically, Russo stated that:
[b]ased upon the questions asked in the application for the umbrella policy, my responses to those questions, and Allstate's silence in not informing me that my membership on the CCU Board of Directors would be excluded, I expected that I would receive full coverage for my position as a board member at CCU.
(Joint Exhibit 12, ¶ 11.) DiNapoli also claims that he expected the PUP to cover his activities in connection with CCU's Board of Directors. As a general rule, policy terms should be given their plain ordinary meaning. Elliott Leases Cars, Inc. v. Quigley, 118 R.I. 321, 325, 373 A.2d 810, 812 (1977). Only where there is sufficient doubt surrounding the meaning of a term should the court construe words in a policy in accord with "what the ordinary reader and purchaser would have understood them to mean." Id. The issue of whether defendants' service on CCU's board constituted a "civic service" appears to depend upon whether the term "civic service" is unambiguous and has plain meaning.
Allstate argues that because the claims against DiNapoli and Russo arise from their business activities with CCU, coverage is excluded. In support of its argument, Allstate cites T.R. Krings v. Safeco Ins. Co., in which the Court of Appeals of Kansas examined a factual scenario nearly identical to that in this case. 6 Kan.App.2d 391, 628 P.2d 1071 (1981). In T.R. Krings, Mr. Krings served on the Board of Directors of the Kansas Savings and Loan Association for seven years from 1969 to 1976. Id. 628 P.2d at 1073. From 1972 to 1976, Krings received between $25 and $50 for each meeting he attended. Id. Krings also invested $320,000 in Kansas Savings and Loan Association common stock. Id. Krings resigned from the board in 1976 and the Kansas Savings and Loan Association went into receivership in the summer of 1977. Id. Five different *31 lawsuits named Krings as a defendant in connection with his activities at the Kansas Savings and Loan Association. Id. Krings, a lifetime worker in the insurance business, demanded defense of these lawsuits under both his homeowners and excess liability policies. Id. Krings failed to specify, in applying for either policy, "the perils against which he wanted to protect." Id. Defendant Safeco Insurance Company denied coverage and Krings filed suit against Safeco for failure to defend. Id. Safeco moved for summary judgment claiming that Krings' activities were excluded from coverage by the "business pursuits" exclusion contained in both policies. Id. The trial court granted Safeco's motion. Id.
The Kansas Court of Appeals upheld the trial court's grant of summary judgment for the defendant insurance company and adopted pertinent portions of the trial judge's memorandum opinion. Id. 628 P.2d at 1076. Applying the two-pronged test for "business pursuits" followed in the majority of jurisdictions, the court examined Krings' activities for 1) continuity, and 2) profit motive. See id. at 1074. The trial court found that the $25 to $50 Krings received per meeting was "direct compensation for his services." Id. Furthermore, the trial court determined that Krings "obviously hoped to manage the business in such a way so as to gain ... the greatest possible profit from his [$320,000] investment." Id. As a result, the court of appeals adopted the trial court's finding that "[Krings'] service on the Board of Directors at Kansas Savings and Loan Association was a regular activity engaged in with a profit motive." Id. The trial court also found that "a reasonable man ... would have understood the purposes of homeowners and excess insurance policies." Id. at 1075. Finally, the court attached significance to Krings' extensive knowledge of the insurance business. Id.
In reaching its conclusion, the Krings court found the reasoning of Stern v. Insurance Co. of N.A. persuasive. 62 N.J. 582, 303 A.2d 883 (1973). In Stern, the plaintiff claimed that compensation he received for his service on the Board of Directors of a local bank was an "honorarium." See T.R. Krings, 628 P.2d at 1074. Unlike Krings, however, Stern had no money invested in the bank. Furthermore, Stern had served as a director for only nine months as opposed to Krings' seven years. Id. at 1075. Nevertheless, the New Jersey Supreme Court affirmed the lower courts' findings that Stern's service as an "outside" director constituted a business pursuit. Id. At least one other court has indicated that one who "holds a fiduciary position of responsibility, with its concomitant requirement of the rendition of services, ... [falls] within the `business pursuit' ambit of a liability policy." Shapiro v. Glens Falls Ins. Co., 47 A.D.2d 856, 858, 365 N.Y.S.2d 892, 897 (1975).
Defendants attempt to distinguish T.R. Krings. Both defendants argue that the monies they received for attending CCU Board meetings were a reimbursement of expenses and therefore not "economic gain." In support of this assertion, defendants cite R.I.Gen.Laws § 7-6-9. For the purpose of providing limited immunity from suit to "voluntary" directors of certain nonprofit corporations, Section 7-6-9 states that a "per meeting allowance, ... or reimbursement for out of pocket costs and expenses" is not "compensation." The PUPs provide that where a policy's terms conflict with a state statute, the state law controls. (Joint Exhibit 7, p. 3.)
DiNapoli further attempts to distinguish his case from T.R. Krings by pointing out that, unlike Krings, DiNapoli is not in the insurance business and owns no CCU stock. Russo asserts that, unlike Krings, he indicated "the perils against which he wanted to protect" in his application. See T.R. Krings, 628 P.2d at 1073. Russo also claims that the definition of business as a "trade, profession or occupation" in T.R. Krings is somehow broader than the PUP's definition of business as activity "engaged in for economic gain."
Thus court is mindful of the long and unique history of the Credit Union movement in Rhode Island. The beginnings of the movement certainly share some aspects of public service, providing a service to a population otherwise unable to enjoy the benefits of their financial services. The meager reimbursement, the lack of substantial compensation, *32 the voluntary nature of the services of directors of credit unions all suggest an interest to assist an important segment of society without a business purpose. As developed in Rhode Island, participation as a director of a credit union is arguably a public service which might be considered to be a non business activity. These are vital state law issues of far reaching consequences which the highest court of the state will and should ultimately be called upon to determine. It is therefore thought appropriate to request the Rhode Island Supreme Court to make the determination of such important and unresolved issues.
Plaintiffs are directed to prepare and to present to the court within ten days a form of Order certifying the stipulation of parties concerning the facts, a copy of this opinion and the following questions:
III. The Questions.
Given this background, the court certifies to the Rhode Island Supreme Court the following questions:
1. Does the term "misrepresentation", as used in the Allstate Personal Umbrella Policies held by defendants, extend coverage for the claims of negligent and intentional misrepresentation made against defendants in the Master Compliant?
2. If the answer to question number 1 is yes, does the defendants' service on Central Credit Union Board of Directors constitute a "civic service" and not a "business" activity as those terms are used in the Allstate Personal Umbrella Policies held by defendants?
IV. Conclusion
Because no coverage exists under any of the provisions of the Homeowners Policies held by defendants Russo and DiNapoli, a judgment should enter declaring that Allstate is not obligated to defend or indemnify Russo or DiNapoli with respect to the allegations contained in the RISDIC Master Complaint under these policies. With respect to the Personal Umbrella Policies held by defendants, the court will certify the foregoing questions to the Rhode Island Supreme Court.
NOTES
[1] It is not entirely clear whether defendants have abandoned their arguments under their Homeowners Policies. Defendants made no arguments concerning the Homeowners Policies at oral argument. Because DiNapoli and Russo did file claims under their Homeowners Policies and because both parties moved for declaratory judgment as to these policies, the court addresses the issue.
[2] A bank deposit specifically labelled as a "special deposit" is "the traditional designation of the bailment or agency or trust whereby the bank keeps or transmits identical property or funds entrusted to it [and] [t]he usual creditor-debtor relationship does not arise." White Rock Nat'l Bank of Dallas v. United States Fire Ins. Co., 562 S.W.2d 268, 273 (Tex.Civ.App.1978). The Master Compliant makes no reference to "special deposits" in its claims for damages.
[3] Optional Coverage P extended the Family Liability Protection of defendant Russo's Home-owners Policy to cover specified business pursuits. Russo specified "salesman without installation" (referring to Russo's occupation as an Allstate salesman) as the business pursuit for which he sought coverage. None of the Master Compliant claims against Russo arise from his occupation as an Allstate Insurance salesman. Accordingly, Russo's Optional Coverage P does not provide coverage for any of the underlying claims in the Master Complaint.
[4] Master Complaint Count IX and Count X against the Credit Union defendants. (Joint Exhibit 4, pp. 37-38.)
[5] Section 552 of the Restatement of Torts 2d defines negligent misrepresentation as:
(1) One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining and communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered:
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.
Restatement (Second) of Torts § 552 (1977). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561328/ | In the United States Court of Federal Claims
No. 20-605C
Filed: August 28, 2020
* * * * * * * * * * * * * * * * ** *
*
ELIZABETH PETERS,
*
Plaintiff, * Pro Se Plaintiff; Subject Matter
* Jurisdiction; Failure to State a Claim;
v. Motion to Dismiss; Social Security.
*
UNITED STATES, *
*
Defendant. *
* * * * * * * * * * * * * * * * ** *
Elizabeth Peters, pro se, Bloomington, IL.
Mariana T. Acevedo, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her were
Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division and
Ethan P. Davis, Acting Assistant Attorney General, Civil Division.
ORDER
HORN, J.
FINDINGS OF FACT
This case comes to the court on defendant’s motion to dismiss plaintiff’s complaint
pursuant to Rule 12(b) (2019) of the Rules of the United States Court of Federal Claims
(RCFC) for lack of jurisdiction. Pro se plaintiff Elizabeth Peters filed a complaint in the
United States Court of Federal Claims on May 11, 2020, alleging she was entitled to
enforcement of a judgment of the United States District Court for the Central District of
Illinois. According to plaintiff, “[t]he SSA [Social Security Administration] robbed plaintiff
of earned social security income, $5,817.00,” “because the SSA placed a wrongful
conviction date in her social security record.” Plaintiff also requests that an additional
“$1,000.00 be added to the money-mandated judgment to cover the cost-of-living
increases and court costs.” According to her complaint, plaintiff was involved in a lawsuit
previously in the “McLean County Illinois Court.”1 Plaintiff also asserts that she had filed
1 Ms. Peters references a “McLean County Illinois Court transcript,” but does not include
such a transcript in her complaint. Nor is there an indication in the complaint or in the
record before this court of a decision which ruled in plaintiff’s favor from the Circuit Court
of McLean County, Illinois. In her complaint before the United States District Court in the
Central District of Illinois against “Social Security Administration, Bloomington, Il,
suit in the United States District Court for the Central District of Illinois. In the District
Court, plaintiff alleged that the defendant had “placed a criminal conviction date in the
plaintiff’s social security record, which ceased three months of income” and that “the
defendant refused to remove the wrongful conviction date to enable the plaintiff to receive
social security income.” In the case currently before this court, plaintiff asserts that “[e]ven
though the defendant was provided a copy of the McLean County Illinois Court transcript,
which states as such, this agency refused to remove this date” for over two years. Plaintiff
alleges that defendant violated “federal law, R 37(e) [sic], which is electronically modifying
the plaintiff’s social security record by adding a conviction date causing the loss of income,
$5,817.00.” According to plaintiff in her complaint in this court, the United States District
Court for the Central District of Illinois “ruled this as a wrongful conviction date, which the
SSA refused to remove” and granted a default judgment “for $5,817.00 in the plaintiff’s
favor” on June 7, 2018.2
McFarland Mental Health Center, Springfield, Il.,” dated November 6, 2017, Ms. Peters
did not include any court transcripts, but referenced “a conviction date for a case that was
‘dropped’ by Judge Costigan, Eleventh Circuit Court, Bloomington Illinois, into my file in
the SSA of Bloomington, Illinois” on April 13, 2017. Compl. at 2, Peters v. Soc. Sec.
Admin., No. 1:17-cv-01494 (C.D. Ill. Nov 06, 2017). McLean County Circuit Court records
reveal that plaintiff was charged with several criminal offenses, including resisting arrest
and theft of leased property, on October 26, 2016. The People v. Peters, Case No.
2016CF001206 (Cir. Ct. McLean County, October 26, 2016). The United States Court of
Appeals for the Seventh Circuit took judicial notice of “records from Peters’s criminal
prosecution” submitted by defendant and stated:
These show that a state court found Peters unfit to stand trial for a criminal
offense and ordered her to receive mental health treatment. Peters was
then admitted to McFarland Mental Health Center and released almost four
months later. As the defendants argue, she was therefore ineligible for
social security benefits during her confinement at public expense. Indeed,
in trying to quantify the amount of her missed benefits, Peters herself filed
a letter from the Social Security Administration stating that she did not
receive checks for May 2017 through July 2017 “because you were
admitted to a mental institution.” The Due Process Clause entitles people
to hearings to resolve disputed issues of material fact that affect entitlement
to public benefits or the exercise of discretion about them. But no such
disputes have been identified, and there was no discretion to exercise:
Peters was ineligible for benefits during the months in question, and no one
is entitled to a hearing for the purpose of protesting the statutory criteria.
Peters v. Zhang, 803 F. App'x 957, 958 (7th Cir. 2020) (citations omitted).
2 Throughout her complaint, Ms. Peters alleges, without documentation, that she had
received a default judgment against the United States in the United States District Court
for the Central District of Illinois “for $5,817.00 in the plaintiff’s favor” on June 7, 2018.
Apparently, the default judgment Ms. Peters references is an unpublished Order from the
2
The relevant portion of plaintiff’s history and interactions with the federal courts on
the issues raised in the action currently before this court are as follows: Ms. Peters filed
suit in the United States District Court for the Central District of Illinois on November 6,
2017, alleging that defendants SSA and McFarland, a facility at which plaintiff was
confined from April 2017 until July 2017, “reported false information to SSA, causing them
to wrongfully withhold three months of social security payments.” Peters v. Soc. Sec.
Admin., 2018 WL 5928364, at *1 (C.D. Ill. Nov. 13, 2018); see also Peters v. Treanor, No.
17-CV-01494-JES-JEH, 2019 WL 3363529, at *1 (C.D. Ill. July 25, 2019), aff’d as
modified sub nom. Peters v. Zhang, 803 F. App’x 957 (7th Cir. 2020).3 According to the
Order and Opinion issued by United States District Court for the Central District of Illinois
on November 13, 2018:
The Court entered default against McFarland on May 8, 2018. On August
7, 2018, in a text order denying Plaintiff's Motions for Offer of Proof and
Writ, the Court instructed Plaintiff to show within fourteen days the basis for
this Court's jurisdiction over SSA. Plaintiff failed to sufficiently allege
grounds for such jurisdiction. Accordingly, the Court dismissed SSA from
the case and granted default judgment against McFarland in a text order on
August 29, 2018.
Peters v. Soc. Sec. Admin., 2018 WL 5928364, at *1 (internal citation omitted). In the
November 13, 2018 Opinion and Order, the District Court indicated,
[i]n a text order dated August 29, 2018, this Court granted default judgment
against McFarland Mental Health Center (“McFarland”) and noted that
Plaintiff did not have a valid claim against the Social Security Administration
(“SSA”). The SSA was dismissed in a text order dated September 4, 2018.
On the same day, the court entered judgment against McFarland.
See id. (internal citations omitted). In response, defendant McFarland filed a motion to
vacate the default judgment for lack of jurisdiction. See id. The District Court granted
McFarland’s motion to vacate judgment and voided the September 4, 2018 judgment
against McFarland, finding that the default judgment against McFarland was entered “in
District Court, dated June 7, 2018, granting plaintiff’s motion for final judgment and
entitling her “to the specific relief she seeks from the Defendants, $5,700.” Unpublished
Order, Peters v. Soc. Sec. Admin., No. 1:17-cv-01494 (C.D. Ill. Jun. 7, 2018)
(capitalization in original).
3 Although Peters v. Zhang, 803 Fed. App’x 957, is the decision of the United States Court
of Appeals for the Seventh Circuit, which is a direct appeal from the Central District of
Illinois decision involving Ms. Peters, Ms. Peters had amended the complaint to change
the defendants from the Social Security Administration and McFarland Mental Health
Center to two employees of a state mental hospital, Zhihong Zhang and Kathleen
Treanor. See Peters v. Treanor, 2019 WL 3363529, at *1.
3
error” because “the Court has no personal jurisdiction over McFarland because it is not a
suable [sic] legal entity” and is an arm of the Illinois Department of Human Services, “a
state entity immune from suit under the Eleventh Amendment.” Id. After vacating the
judgment against McFarland, the District Court gave plaintiff the opportunity “to amend
her Complaint in order to attempt to correct the above-listed deficiencies,” noting that the
plaintiff’s claim against a state entity was likely best addressed by the Illinois Court of
Claims. See id. at 4. The court noted that “[a]ny claim for monetary damages from
McFarland, IDHS, or their employees in their official capacities will be dismissed as barred
by the Eleventh Amendment,” but “monetary damages might be available in an individual-
capacity suit against a specific employee” or against “individual employees of McFarland.”
Id. at *3,4.
In 2019, Ms. Peters filed her amended complaint in the United States District Court
for the Central District of Illinois “against two individual employees of McFarland, whom
she claims are responsible for her lost Social Security wages.” Peters v. Treanor, 2019
WL 3363529, at *1. The United States District Court for the Central District of Illinois
granted defendants’ motion to dismiss for lack of jurisdiction and stated:
While Plaintiff alleges that she did not receive Social Security benefits
because of a clerical error involving the entry of a criminal conviction date
into a Social Security database, the records attached to Defendants' motion
clearly indicate (and Plaintiff does not dispute) that she was confined to
McFarland from April 2017 until July 2017 as unfit to stand trial for a criminal
charge. Plaintiff was not eligible to receive these benefits while she was
confined at McFarland in connection with her criminal trial. As such, the
relief she seeks in the Complaint is unavailable, even taking as true her
assertions that Defendants entered false criminal convictions into a Social
Security database.
Id. at *2 (internal citations omitted).
Ms. Peters then appealed the decision to the United States Court of Appeals for
the Seventh Circuit, which affirmed the District Court’s judgment, but clarified “that the
dismissal is not jurisdictional.” Peters v. Zhang, 803 F. App’x at 957. The Seventh Circuit
explained:
On appeal, Peters first argues that Zhang deprived her of due process
because she wrongfully entered a “felony or admissions” date on her
paperwork, causing the withholding of Peters’s social security benefits. But
the record forecloses this claim. In support of their motion to dismiss, the
defendants submitted records from Peters’s criminal prosecution. These
public documents are an appropriate subject of judicial notice, and therefore
the district court could consider them without converting the Rule 12 motion
into a motion for summary judgment. These show that a state court found
Peters unfit to stand trial for a criminal offense and ordered her to receive
mental health treatment. Peters was then admitted to McFarland Mental
4
Health Center and released almost four months later. As the defendants
argue, she was therefore ineligible for social security benefits during her
confinement at public expense. Indeed, in trying to quantify the amount of
her missed benefits, Peters herself filed a letter from the Social Security
Administration stating that she did not receive checks for May 2017 through
July 2017 “because you were admitted to a mental institution.” The Due
Process Clause entitles people to hearings to resolve disputed issues of
material fact that affect entitlement to public benefits or the exercise of
discretion about them. But no such disputes have been identified, and there
was no discretion to exercise: Peters was ineligible for benefits during the
months in question, and no one is entitled to a hearing for the purpose of
protesting the statutory criteria. . . . Finally, because the judgment states
that the dismissal is for lack of jurisdiction, which is, by definition, without
prejudice, and we conclude instead that the complaint failed to state a claim,
we MODIFY the judgment to be a dismissal on the merits, and therefore
with prejudice. (The judgment does not preclude an otherwise proper suit in
the Court of Claims, however.) As modified, the judgment is AFFIRMED.
Id. at 957-59 (citations omitted and capitalization in original).
On May 11, 2020, plaintiff filed a complaint in the United States Court of Federal
Claims, seeking “the money-mandated relief of $5,817.00, which the SSA has refused to
pay for three years.” (citation omitted). According to plaintiff, “[t]his complaint is being
presented to the Federal Claims Court,[4] because the plaintiff is unable to collect the
judgment, $5,817.00, by the District Court on June 7, 2018.” In this court, plaintiff asserts
that “[t]he $5,817.00 is the earned social security income denied the plaintiff, because the
SSA refused to remove the wrongful conviction date in violation of F.R.C.P. 37(e).”
Plaintiff also alleges:
Even though State and Federal Courts have ruled this as a wrongly entered
date, the SSA continues to ignore these rulings. Over three years, the
plaintiff has asked for the cooperation of the SSA to resolve this matter by
removing the conviction date in the social security database. The SSA’s
strategy of silence and delay led to the plaintiff submitting this complaint to
the Federal Claims Court.
(capitalization in original and internal citations omitted).
On July 10, 2020, defendant filed a motion to dismiss plaintiff’s complaint pursuant
to RCFC 12(b)(1) for lack of subject matter jurisdiction, arguing “this Court lacks
jurisdiction to consider Ms. Peters’s complaint and cannot grant her the relief she seeks.”
4 Plaintiff continually refers to this court, the United States Court of Federal Claims, as the
“Federal Claims Court” in her filings. The court leaves plaintiff’s incorrect identification of
this court in her quotations unchanged.
5
Defendant argues that plaintiff’s social security claims are beyond the jurisdiction of this
court because “[t]he social security statute is clear that challenges relating to social
security benefits ‘shall be brought in the district court of the United States for the judicial
district in which plaintiff resides.’” (quoting 42 U.S.C § 405(g) and citing Marcus v. United
States, 909 F.2d 1470, 1471 (Fed. Cir. 1990)).
On July 30, 2020, plaintiff filed a response to defendant’s motion to dismiss.
Plaintiff claims that defendant’s counsel “has based her argument on a complaint that
was ruled and concluded in the plaintiff’s favor on September 4, 2018, by Chief Judge
James E. Shadid, United States District Court for the Central District of Illinois.” Plaintiff
asserts that “[t]he opposing counsel is depriving the plaintiff of income by filing motions,
which only delay the payment of a Federal Court Order, issued in 2017, and compounds
this delays [sic] by attempting to retry a decided complaint, which ended with the Federal
Court Order.” (citing Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971)) (capitalization in
original). Although plaintiff does not raise the following issues in her complaint, she states
in her July 30, 2020 submission, “[t]he defendant violated the plaintiff’s First, Fifth, and
Fourteenth Amendment rights, Due Process, Rule 36 (e), corruption of a social security
record, ADA, and denied plaintiff’s right to a Catholic Bible.” Plaintiff now seeks “money-
mandated relief” of “$7864.06,” which includes “$5,817.00, plus an additional $1,047.06
for delays of three years, and cost of ongoing filings and court fees, which adds another
$1,000.00,” although, plaintiff asked for only $5,817.00 of damages in her complaint.
In defendant’s reply,5 defendant states:
Ms. Peters fails to overcome our demonstration that her complaint does not
purport to assert a claim that is based upon an express or implied-in-fact
contract with the United States, or a money-mandating provision of law, as
required by the Tucker Act. She seeks social security benefits, a claim
which this Court does have jurisdiction to review.
Defendant also states, “this Court lacks jurisdiction to enforce or otherwise review
decisions of Federal district courts.” Finally, defendant argues, “[i]n any event, the Court
lacks jurisdiction over the complaint because the judgment she seeks to enforce was not
against the Social Security Administration or any other agency of the United States, but
instead McFarland.”6
5 Defendant filed a motion to leave to file a reply out of time, which was opposed by the
plaintiff. Nonetheless, in order to have full benefit of the briefing by both parties, the court
granted the defendant’s motion and the reply brief was filed.
6Also on August 20, 2020, plaintiff filed a motion for entry of final judgment. With this
Order, that motion is now moot.
6
DISCUSSION
The court recognizes that plaintiff is proceeding pro se. When determining whether
a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, a pro se
plaintiff is entitled to a more liberal construction of the pro se plaintiff’s pleadings. See
Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se
complaint be held to “less stringent standards than formal pleadings drafted by lawyers”),
reh’g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976),
reh’g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750 F.3d 1320, 1322
(Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), aff’d, 603 F.
App’x 947 (Fed. Cir.), cert. denied, 575 U.S. 985 (2015). However, “there is no ‘duty [on
the part] of the trial court . . . to create a claim which [plaintiff] has not spelled out in his
[or her] pleading . . . .’” Lengen v. United States, 100 Fed. Cl. 317, 328 (2011) (alterations
in original) (quoting Scogin v. United States, 33 Fed. Cl. 285, 293 (1995) (quoting Clark
v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v.
United States, 96 Fed. Cl. 89, 94, aff’d, 443 F. Appx 542 (Fed. Cir. 2011); Minehan v.
United States, 75 Fed. Cl. 249, 253 (2007). “While a pro se plaintiff is held to a less
stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff,
nevertheless, bears the burden of establishing the Court’s jurisdiction by a preponderance
of the evidence.” Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v.
Rowe, 449 U.S. at 9; and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2002)); see also Pauly v. United States, 142 Fed. Cl.
157 (2019); Golden v. United States, 129 Fed. Cl. 630, 637 (2016); Shelkofsky v. United
States, 119 Fed. Cl. 133, 139 (2014) (“[W]hile the court may excuse ambiguities in a pro
se plaintiff’s complaint, the court ‘does not excuse [a complaint’s] failures.’” (quoting
Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995))); Harris v. United States, 113
Fed. Cl. 290, 292 (2013) (“Although plaintiff’s pleadings are held to a less stringent
standard, such leniency ‘with respect to mere formalities does not relieve the burden to
meet jurisdictional requirements.’” (quoting Minehan v. United States, 75 Fed. Cl. at 253)).
“Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g
en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); Gonzalez v. Thaler,
565 U.S. 134, 141 (2012); see also Int’l Elec. Tech. Corp. v. Hughes Aircraft Co., 476
F.3d 1329, 1330 (Fed. Cir. 2007). The Tucker Act, 28 U.S.C. § 1491 (2018), grants
jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.
7
28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);
see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable
under the Tucker Act. The claim must be one for money damages against the United
States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United
States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116
(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566
F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that
creates the right to recovery of money damages against the United States.”); Golden v.
United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United
States, the United States Court of Appeals for the Federal Circuit identified three types of
monetary claims for which jurisdiction is lodged in the United States Court of Federal
Claims. The Ontario Power Generation, Inc. court wrote:
The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
encompasses claims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’” (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal Claims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” Id.; see also [United States v. Testan, 424 U.S.
[392,] 401-02 [1976] (“Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
8
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a “money-mandating”
statute.
Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see
also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.
Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief
must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.
at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional
provision[] that operate[s] to waive sovereign immunity for claims premised on other
sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the
Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject
matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,
1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);
see also N.Y. & Presbyterian Hosp., 881 F.3d at 881; Fisher v. United States, 402 F.3d
1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-mandating source is
“fatal to the court’s jurisdiction under the Tucker Act”); Price v. United States, 133 Fed.
Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
In Maine Community Health Options v. United States, 140 S. Ct. 1308 (2020), the
United States Supreme Court described the test for determining whether a statute waives
sovereign immunity, as follows:
To determine whether a statutory claim falls within the Tucker Act’s
immunity waiver, we typically employ a “fair interpretation” test. A statute
creates a “right capable of grounding a claim within the waiver of sovereign
immunity if, but only if, it ‘can fairly be interpreted as mandating
compensation by the Federal Government for the damage sustained.’”
United States v. White Mountain Apache Tribe, 537 U.S. 475, 472, 123 S.
Ct. 1126, 155 L. Ed. 2d 40 (2003) (quoting Mitchell, 463 U.S. at 217, 103 S.
Ct. 2961); see also Navajo Nation, 556 U.S. at 290, 129 S. Ct. 1547 (“The
other source of law need not explicitly provide that the right or duty it creates
is enforceable through a suit for damages”). Satisfying this rubric is
generally both necessary and sufficient to permit a Tucker Act suit for
damages in the Court of Federal Claims. White Mountain Apache, 537 U.S.
at 472–473, 123 S. Ct. 1126.
9
Maine Cmty. Health Options v. United States, 140 S. Ct. at 1328 (emphasis in original;
footnote omitted).
When deciding a case based on a lack of subject-matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson
v. Pardus, 551 U.S. at 94 (“[W]hen ruling on a defendant’s motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint.” (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246, 1249
(Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as true all
factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))); Fid. &
Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir. 2015);
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
“Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff’s claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). Moreover, plaintiff need only state in the complaint “a short and plain
statement of the grounds for the court’s jurisdiction,” and “a short and plain statement of
the claim showing that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2020); Fed. R.
Civ. P. 8(a)(1), (2); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v.
Twombly, 550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory
allegations of law and unwarranted inferences of fact do not suffice to support a claim.”
Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Am. Bankers
Ass’n v. United States, 932 F.3d 1375, 1380 (Fed. Cir. 2019) (“To avoid dismissal under
RCFC 12(b)(6) [for failure to state a claim], a plaintiff ‘must allege facts ‘“plausibly
suggesting (not merely consistent with)” a showing of entitlement to relief.’” (quoting
Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. at 557))); McZeal v. Sprint Nextel Corp., 501 F.3d
1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting
C. WRIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d ed. 2004));
Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460
U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the
speculative level’ and cross ‘the line from conceivable to plausible.’” Three Consulting v.
United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated in
Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft
v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
10
As described above, Ms. Peters argues that defendant entered a wrongful
conviction date into her electronic social security record, resulting in three months of
withheld social security income. Ms. Peters bases her claims on an alleged default
judgment she allegedly obtained from the United States District Court for the Central
District of Illinois. Court records, however, reveal that the alleged default judgment Ms.
Peters seeks to enforce against the United States by the United States District Court for
the Central District of Illinois on September 4, 2018 was later vacated on November 13,
2018 by the same court. See Peters v. Soc. Sec. Admin., 2018 WL 5928364, at *1; see
also Peters v. Treanor, 2019 WL 3363529, at *1. Nonetheless plaintiff still argues in her
complaint in the above-captioned case that the defendant “continues to ignore these
rulings” and has “refused all written and oral requests to pay the money-mandated
judgment.” To the extent that Ms. Peters is attempting to enforce a United States District
Court decision against the United States, the judgment was later vacated, and no valid
default judgment has been entered against the United States in the United States District
Court for the Central District of Illinois, which, in fact, dismissed plaintiff’s case on July 25,
2019. See Peters v. Treanor, 2019 WL 3363529, at *3; see also Peters v. Soc. Sec.
Admin., 2018 WL 5928364, at *1; Unpublished Order, Peters v. Soc. Sec. Admin., No.
1:17-cv-01494 (C.D. Ill. Sept. 4, 2018). As also noted above, the United States District
Court for the Central District of Illinois’ decision vacating the default judgment by the
Central District of Illinois was then affirmed by the United States Court of Appeals for the
Seventh Circuit, which modified the judgment to dismiss the case against Mr. Zhang and
Ms. Treanor, with prejudice. Peters v. Zhang, 803 F. App’x at 959; see also Peters v. Soc.
Sec. Admin., 2018 WL 5928364, at *1 (stating that “[t]he judgment does not preclude an
otherwise proper suit in the Court of Claims”).
Because Ms. Peters is asking this court to enforce a decision of a Federal District
Court, and the United States Court of Federal Claims does not have jurisdiction to review
a Federal District Court decision, her claim must fail in this court. “Binding precedent
establishes that the Court of Federal Claims has no jurisdiction to review the merits of a
decision rendered by a federal district court.” Shinnecock Indian Nation v. United States,
782 F.3d 1345, 1352 (Fed. Cir. 2015) (citing Allustiarte v. United States, 256 F.3d 1349,
1352 (Fed. Cir.), cert. denied, 534 U.S. 1042 (2001)); see also 28 U.S.C. § 1291 (2018)
(“The courts of appeals (other than the United States Court of Appeals for the Federal
Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of
the United States . . . . except where a direct review may be had in the Supreme Court.”);
Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994); see also Kenyon v. United
States, 127 Fed. Cl. 767, 774 (2016), aff’d, 683 F. App’x 945 (Fed. Cir. 2017) (citing
Joshua v. United States, 17 F.3d at 380)).
In her complaint, Ms. Peters also argues that this court “has subject-matter
jurisdiction over the United States Social Security Administration (SSA) because it is an
independent agency of the U.S. federal government and is responsible for administering
the social insurance program of retirement, disability, and survivor’s benefits.” Ms. Peters
alleges that “[t]his violation of federal law is the subject-matter jurisdiction of the Federal
Claims Court to hear this complaint because the plaintiff’s social security income is a
benefit under the Social Security Act § 1331.” (emphasis in original). The United States
11
Court of Federal Claims, however, does not have jurisdiction over claims arising under
the Social Security Act. See Marcus v. United States, 909 F.2d at 1471 (holding “that the
Claims Court has no jurisdiction under the Tucker Act over claims to social security
benefits.” (internal citation omitted)); Hester v. United States, 136 Fed. Cl. 623, 627 (2018)
(citing 42 U.S.C. § 405); Addams-More v. United States, 81 Fed. Cl. 312, 315, aff’d, 296
F. App’x 45 (Fed. Cir. 2008) (citing Marcus v. United States, 909 F.2d at 1471); Jackson
v. United States, 80 Fed. Cl. 560, 564 (2008), appeal filed, No. 08-5060 (Fed. Cir. Mar
26, 2008) ; see also 28 U.S.C. § 1491(a)(1). A Judge of the United States Court of Federal
Claims has written, “[t]his Court has long recognized that it does not possess jurisdiction
to entertain” Social Security Act claims. Ross v. United States, 122 Fed. Cl. 343, 347
(citing Marcus v. United States, 909 F.2d at 1471), appeal dismissed, No. 15-5121 (Fed.
Circ. 2015). The Social Security Act specifically mandates that claims relating to social
security benefits must “be brought in the district court of the United States for the judicial
district in which the plaintiff resides, or has his principal place of business, or, if he does
not reside or have his principal place of business within any such judicial district, in the
United States District Court for the District of Columbia.” 42 U.S.C. § 405 (2018); see also
Treece v. United States, 96 Fed. Cl. 226, 230 (2010); Ross v. United States, 122 Fed. Cl.
at 348 (“Where the adjudication of a type of claim has been granted to the district courts
exclusively, this Court has no jurisdiction to hear the case and must dismiss the matter.”
(citing Del Rio v. United States, 87 Fed. Cl. 536, 540-41 (2009))). Accordingly, Ms. Peters’
claims against the United States regarding her claim for social security benefits are
dismissed for lack of subject matter jurisdiction.
Finally, the court notes that Ms. Peters has a long and litigious history in federal
courts. Ms. Peters previously filed a complaint in this court.7 Over the past seven years,
Ms. Peters has apparently presented fourteen court filings against the Social Security
Administration, various federal and state officials, and against private entities. See, e.g.,
Peters v. Sloan, 762 F. App’x 344, 345 (7th Cir.) (affirming the United States District Court
for the Central District of Illinois’ dismissal of plaintiff’s claim against bankers involved in
the foreclosure of her home for lack of personal jurisdiction, improper venue, and failure
to state a claim), reh’g and reh’g en banc denied (7th Cir. 2019); Unpublished Order,
Peters v. Ricketts, No. 1:19-cv-01273 (C.D. Ill. Sept. 11, 2019) (dismissing plaintiff’s pro
se complaint alleging that a store manager violated the Service Animal Access Act “by
‘verbally attack[ing] the plaintiff as irresponsible with a service dog’ and ‘pull[ing] the dog's
fur’” and for violations of the Occupational Safety and Health Administration regulations
7 In fact, plaintiff’s complaint in the above-captioned case before the undersigned, initially,
tried to use the prior case number and the prior Judge’s name in the caption. See Peters
v. United States, No. 20-247C, 2020 WL 2124396, at *1 (Fed. Cl. Apr. 30, 2020)
(dismissing plaintiff’s complaint “seeking review of a decision in a case she previously
filed in the United States District Court for the Central District of Illinois” alleging
“malfeasance by a sitting federal judge and parties to a case in federal district court” for
lack of jurisdiction because plaintiff “failed to allege any grounds for this court to exercise
jurisdiction” and “‘the Court of Federal Claims has no jurisdiction to review the merits of a
decision by a federal district court’”) (quoting Shinnecock Indian Nation v. United States,
782 F.3d at 1352))
12
by failing “to clean the shopping carts immediately after use,” and because plaintiff had
“failed to pay the filing fee or submit a petition to proceed in forma pauperis”) (internal
references omitted); Peters v. Sloan, No. 18-CV-01236-JES-JEH, 2018 WL 5621854, at
*1 (C.D. Ill. Oct. 30, 2018) (dismissing plaintiff’s amended claim against bankers involved
in the foreclosure of her home for lack of personal jurisdiction, improper venue, and failure
to state a claim upon which relief can be granted), aff'd, 762 F. App’x 344 (7th Cir. 2019);
Peters v. Sloan, No. 18-CV-01236-JES-JEH, 2018 WL 10721123, at *1 (C.D. Ill. Sept. 12,
2018) (granting plaintiff’s motion to amend judgment and amending the court’s prior error
by vacating the United States District Court for the Central District of Illinois’ judgment
against two parties involved in the foreclosure of plaintiff’s home over whom the court
lacked jurisdiction) (citing Fed. R. Civ. P. 59 (2018)); Peters v. Sloan, No.
118CV01236JESJEH, 2018 WL 4236368, at *2 (C.D. Ill. Aug. 29, 2018) (dismissing
plaintiff’s claim against private parties involved in the foreclosure of her home for lack of
personal jurisdiction), vacated, No. 18-CV-01236-JES-JEH, 2018 WL 10721123 (C.D. Ill.
Sept. 12, 2018); Peters v. Wells Fargo, No. 15-CV-4602 (WMW/FLN), 2016 WL 1222232,
at *1 (D. Minn. Mar. 28, 2016) (adopting the report and recommendation from the United
States District Court for the District of Minnesota and remanding plaintiff’s complaint to
the Iowa District Court for Dallas County); Peters v. Wells Fargo, No. CV 15-4602
(WMW/FLN), 2016 WL 1211798, at *1 (D. Minn. Mar. 8, 2016) (remanding plaintiff’s claim
to Iowa state court for improper venue and denying plaintiff’s motion for a refund of the
court filing fee), report and recommendation adopted, No. 15-CV-4602 (WMW/FLN), 2016
WL 1222232 (D. Minn. Mar. 28, 2016); Peters v. Wells Fargo, No. 4:16-CV-04002-LLP,
2016 WL 520984, at *2 (D.S.D. Feb. 5, 2016) (dismissing plaintiff’s claim against bankers
involved in the foreclosure of her home for improper venue and lack of jurisdiction), appeal
dismissed, No. 16-1666 (8th Cir. Sept. 8, 2016); Unpublished Order, Peters v. Iowa State
Patrol, No. 4:15-cv-00268 (S.D. Iowa Oct. 1, 2015) (remanding plaintiff’s claim against an
Iowa State Patrol officer to the Iowa District Court for Poweshiek County because
“[p]laintiff fails to allege a sufficient basis for removal of the case involving her speeding
ticket to federal court”); Peters v. Bray, No. 4:12-CV-582, 2013 WL 7137524, at *7 (S.D.
Iowa Apr. 1, 2013) (dismissing plaintiff’s claims against the Internal Revenue Service,
Department of the Treasury, and private parties for lack of jurisdiction, failure to state a
claim upon which relief can be granted, and insufficient service of process).
The court reminds Ms. Peters that litigation is serious business to be undertaken
carefully and thoughtfully. As stated in a discussion included in a case issued by the
United States Court of Appeals for the Federal Circuit: “This and other federal courts are
funded by the taxpayers of this country to adjudicate genuine disputes, not to function as
playgrounds for would-be lawyers or provide an emotional release for frustrated litigants.”
Constant v. United States, 929 F.2d 654, 659 (Fed. Cir.), cert. denied, 501 U.S. 1206
(1991). Further, “[w]here, as here, a party's argument flies in the teeth of the plain
meaning of the statute and raises arguments with utterly no foundation in law or logic . . .
the judicial process is abused and the funds provided by Congress via the taxpayers to
the Justice Department are wasted.” Abbs v. Principi, 237 F.3d 1342, 1351 (Fed. Cir.
2001); see also Aldridge v. United States, 67 Fed. Cl. 113, 123 (2005); McEnery v. Merit
Sys. Protection Bd., 963 F.2d 1512, 1516 (Fed. Cir.) (claims “which have no hope of
succeeding place an unnecessary and intolerable burden on judicial resources.”), reh'g
13
denied (Fed. Cir. 1992). The court finds the complaint filed by Ms. Peters in this court is
frivolous and instructs the Clerk’s Office to reject further complaints related to the one
currently before the court regarding adjudication of her social security benefits.
CONCLUSION
For the reasons stated above, defendant’s motion to dismiss plaintiff’s complaint
is GRANTED. Plaintiff’s complaint is DISMISSED. The Clerk’s Office shall enter
JUDGMENT consistent with this Order.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
14 | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1903796/ | 807 So.2d 250 (2002)
Amy SPOMER
v.
AGGRESSOR INTERNATIONAL, INC.
No. 2001-C-2886.
Supreme Court of Louisiana.
January 25, 2002.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236072/ | 929 N.E.2d 166 (2006)
367 Ill. App.3d 1086
MODROWSKI
v.
KOWALIS MOTORS, INC.
No. 1-05-2321.
Appellate Court of Illinois, First District
October 13, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610333/ | 485 P.2d 47 (1971)
The STATE of Montana, Plaintiff and Respondent,
v.
Robert BRECHT, Defendant and Appellant.
No. 11787.
Supreme Court of Montana.
Submitted February 10, 1971.
Decided May 10, 1971.
Rehearing Denied June 7, 1971.
*48 Howard Foreman (argued) Billings, for appellant.
Robert L. Woodahl, Atty. Gen., Helena, J.C. Weingartner, Asst. Atty. Gen., (argued) Helena, William Blenkner, County Atty., Columbus, for respondent.
DALY, Justice.
On May 18, 1967, defendant Robert Brecht was charged by information in the district court of the thirteenth judicial district, county of Stillwater, with murder in the first degree. The charge arose from the shooting death of defendant's wife, Mary Ann Brecht on May 17, 1967. Trial was had and the jury returned a verdict of murder in the second degree on February 24, 1968. The presiding judge sentenced the defendant to 30 years confinement in the Montana state prison on February 26, 1968.
Court appointed counsel at trial elected not to appeal and defendant, acting pro se, filed application for post conviction relief and present counsel was appointed by the district court to represent him. Hearing was had before the presiding judge on July 2, 1969. The matter was thereupon taken under advisement, but prior to decision the presiding judge died.
Upon proper application, this Court assumed jurisdiction and ordered transcripts furnished and briefs filed. 27 St.Rep. 379. Following preparation of the transcript of the trial and filing of briefs, the present cause was heard on oral arguments before this Court on February 10, 1971.
Defendant Robert Brecht, age 30, of Columbus, Montana and Mary Ann Brecht were married in November 1958. They had two children. At the time of trial the girl was 8 years old and the boy 7. Defendant had been a resident of Columbus since 1948 and graduated from high school there in 1955. He served in the military and earned his living in the construction trade.
At the time of the fatal shooting on May 17, 1967, the defendant and his wife had been separated for about six weeks. This had happened twice previously and reconciliation had followed both times. Mary Ann Brecht was employed as a bartender at the Ten Inn, located between Columbus and Park City, Montana. On the day of the shooting Mrs. Brecht was working the day shift and normally would have been off shift by 6 or 6:30 p.m. but that day she had stayed late at the request of the owner. Defendant was released from his job early that day and he went to the Ten Inn in the late afternoon to discuss with his wife the matter of both contributing toward a birthday present for their son. The record discloses that defendant was in debt and without ready funds. He testified that he discussed with his wife the possibility that she ask her employer, Bill Revell, to loan him $20 on his shotgun. This gun had been "hocked" on a previous occasion to a Mr. Mulvehill and redeemed in late April 1967. Mulvehill had been upset because of the long time involved before the gun was redeemed and further because the gun had a faulty firing mechanism and malfunctioned, which prevented a sale. Another witness affirmed the malfunction of the gun.
Defendant testified that prior to the homicide he had prepared to hunt crows with the shotgun and had removed the "plug" from the gun's magazine. The "plug" was a device to reduce the shell capacity of the gun from 5 shells to 3 shells when hunting game birds, as required by law. Afterward by habit, defendant ejected only 3 shells and 2 remained in the gun without his remembrance.
Defendant returned to his home after the initial visit with his wife and before returning to the Ten Inn, at about 8 p.m., placed the shotgun in his car. Defendant testified that when he entered the bar Bill Revell, the bar owner; Mary Ann, defendant's *49 wife; and a customer named John Strecker were there. Defendant's wife was behind the bar and the two men on stools in front of the bar. Defendant did not, at this time, bring the gun into the bar. He asked his wife if she had discussed the loan on the gun with Bill Revell and was informed that she had not. Defendant then told her he would get the gun and let Revell look it over. He went to his car, removed the gun, returned to the bar, and placed the shotgun on the top of the bar. Revell, upon seeing the gun, told him to "get that thing out of here". As defendant picked up the gun, the bar stool upon which he had his knee tipped forward and he let go of the gun with his left hand to catch hold of something and the gun fired. Defendant further testified that he pumped the gun because another shell was hung up on the ejector and in so trying to unload it, the gun went off again, firing out the door. At that time he noticed his wife, Mary Ann, was hurt. He tried to aid her but she did not respond. All other persons had fled from the bar. Defendant then picked up the gun and left the bar to go home to Park City.
When defendant walked out the front of the building Bill Revell, the owner, was approaching and he spoke to him in regard to getting an ambulance. Defendant then drove down along the river, gained some control, and remembering the two extra shells, threw the gun into the river. He then returned past the Ten Inn on his way home. When he reached home he was taken into custody.
John Strecker, who was not acquainted with defendant, testified he was in the bar when Brecht entered. Strecker went to the men's room and when he returned defendant had a gun. He heard defendant say that this was a 12-gauge. The gun was pointed at Mary Ann Brecht. He testified that when he first observed defendant holding the gun, it was with both hands; that thereafter defendant removed one of his hands from the gun and was holding it with one hand; that while he was holding the gun with one hand the gun was tilted so that Strecker observed a shell in the magazine; and, that when the gun went off he, Strecker, bolted from the room.
Bill Revell testified that John Strecker called his attention to the gun, and that defendant was pointing the gun directly at Mary Ann while the gun lay diagonally on top of the bar with defendant's hands on the gun. Further, that defendant made the statement "If I can't have you no one can" and the gun fired; that Brecht pulled another shell from his pocket and put it in the gun at which point Revell left the building through the front door. Revell decided to return and met defendant leaving. He does not recall defendant speaking to him.
Dr. Edwin Segard testified as to the autopsy findings. He described the wound sustained by Mary Ann Brecht as extending from the mid-portion of the left chest laterally to the side of the right chest. The pattern of the shotgun wound extended across her chest at the approximate level of the breasts. He stated that a lower gaping wound was probably made by wadding or possibly clothing.
J.W. Reineking, Sr., was qualified as a ballistic and gun expert and testified for the defendant. Reineking testified as to hie examination and observations at the scene of the homicide; and, that markings on the top of the bar at the Ten Inn were caused by a charge of shot striking the bar. He described the wound suffered by Mary Ann as not the usual shotgun pattern at the distance at which it had occurred. He described a series of tests that he conducted in which he duplicated the wound pattern by a ricocheted or deflected shot. Reineking testified to measurements and calculations made by him and that a deflected shot pattern would strike 49 to 50 inches in height from the floor and calculated on the victim's height would produce the wound. He further testified that in his opinion it would be impossible that the gun was pointed directly at Mary Ann Brecht.
*50 The record demonstrates no significant disagreement as to the events prior to the discharge of the shotgun the first time. John Strecker's impression was contrary to defendant's testimony but neither was it in agreement with owner Bill Revell's, whose version was the most damaging to the defendant. Revell agrees the gun was on top of the bar with defendant's hands on it but disagrees as to the position of the gun and the statement attributed to the defendant just prior to the discharge of the shotgun. The witnesses had departed the bar when the second shot was fired but they disagree with defendant's story that he was trying to eject a shell as they departed.
Dr. Segard's testimony together with the reconstruction by gun expert Reineking, appears to support defendant to the extent that their testimony together is consistent with a deflected shot and confirms that the gun was not pointed at the deceased.
Sandra Brumfield, 18 year old sister of the deceased, was allowed to testify to a telephone conversation on April 29, 1967, between the defendant and his wife. She testified she overheard the conversation on an extension phone in the kitchen of her mother's home where both she and the deceased were residing at the time. She testified she answered the telephone, recognized defendant's voice as the caller and at his request called Mary Ann to the phone. She then picked up the telephone extension and listened to the conversation between the defendant and his wife, Mary Ann. Her testimony as to this conversation was:
"Q. And what did you do then? A. I went to the kitchen and lifted the receiver on the other phone. * * *
"Q. Do you recall why you went to that other telephone and picked it up? A.
I just went out and picked it up."
Over objection by counsel, she testified as to the conversation she listened in on and testified as to a "threat":
"Q. What did you hear at that time, Miss Brumfield? A. They were arguing.
"Q. Who was arguing? A. Mary Ann and Bob.
"Q. Do you recall specifically overhearing any particular words at that time? A. He made a threat.
"Q. And what was that threat? A. He said `I got my shotgun out of hock, I am coming down and I will use it if I have to.'
"Q. Did you hear any more after that? A. No, I hung up."
Although defendant raises numerous issues for review, there is one controlling issue that requires a new trial. Additionally, since a new trial will be required under our ruling herein, one other issue will be briefly discussed to avoid possible error on the new trial.
We hold that the admission of Sandra Brumfield's testimony concerning the telephone conversation between defendant and his wife, which she overheard while listening on the extension phone, constitutes prejudicial and reversible error. Admission of this testimony violated the defendant's Fourth Amendment rights under the federal constitution as applied to state court criminal proceedings under the "due process" clause of the Fourteenth Amendment. It equally violated defendant's rights under Article III, Sec. 7 of the Montana Constitution. State ex rel. Samlin v. Dist. Ct., 59 Mont. 600, 198 P. 362; State ex rel. King v. Dist. Ct., 70 Mont. 191, 224 P. 862. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, established the principle that the "search and seizure" provisions of the Fourth Amendment to the United States Constitution protects persons and their right to privacy and is not confined to trespass against property rights. Katz also established that Fourth Amendment violations also offend Fifth Amendment guarantees against self-incrimination. See also Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453. The state admits this, but contends the protection is afforded only against violations by law enforcement *51 officers and not against violations by private citizens.
We think not. The violation of the constitutional right to privacy and against compulsory self-incrimination is as detrimental to the person to whom the protection is guaranteed in the one case as in the other. To distinguish between classes of violators is tantamount to destruction of the right itself. This Court in 1952, in a civil case not involving state or federal governmental agents or activity, recognized this principle in the following passage from Welsh v. Roehm, 125 Mont. 517, 523, 524, 241 P.2d 816, 819:
"Continuing, the article announces: `The common law has always recognized a man's house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands.'
"The `right of privacy' is embraced within the absolute rights of personal security and personal liberty. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68, 69, 69 L.R.A. 101, 106 Am. St.Rep. 104.
"The basis of the `right of privacy' is the `right to be let alone' and it is `a part of the right to liberty and pursuit of happiness * * *.' Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.(2d) 291, 294.
"`The type of cases in which the right of privacy has been recognized vary so widely that it might be concluded that this supposed right is nothing more than a catch-all to take care of the outer fringes of tort and contractual liability, and that it is not the product of any underlying general principle. The typical privacy cases are those involving the display, sale or publication of one's portrait, the public use of one's name, oppressive publicity in connection with the collection of debts, and wire-tapping and other forms of eavesdropping. Superficially, these cases may seem to involve entirely different principles and considerations. Yet, there is a pervading element, common to all the cases, of outraging one's feelings by depriving him of the privacy which most normal persons desire and have a right to demand, whether this deprivation is effected by publishing one's name or picture in an advertisement or by tapping one's telephone line or installing a detectophone so as to listen secretly to one's conversations with family or friends.' 138 A.L.R. 25, see annotation." (Emphasis supplied.)
This Court in the present case would be remiss were it not to recognize that evidence obtained by the unlawful or unreasonable invasion of several of the constitutionally protected rights guaranteed to its citizens by both the federal and Montana constitutions properly comes within the contemplation of this Court's exclusionary rule. To do otherwise would lend Court approval to a fictional distinction between classes of citizens: those who are bound to respect the Constitution and those who are not. Were the exclusionary rule to recognize such distinctions it would by indirection circumvent the rule established by this Court to enforce these rights and would in fact render the rule and the constitutional guarantees it protects meaningless.
Improperly admitted evidence must also be evaluated to determine if it contributed to the conviction of the defendant and was a violation of a substantial right of the defendant. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705; State v. Gallagher, 151 Mont. 501, 445 P.2d 45.
We find this evidence meets the standard above, was prejudicial and requires a new trial.
Previously we have said that one further issue would be discussed to avoid possible error on a new trial. Sheriff Paul Kober testified that he did not advise defendant of his constitutional rights at the time of his arrest. The sheriff was allowed to testify to the following questioning:
"Q. Did you say anything? A. I did.
"Q. What was that? A. I said, `Where is the gun?
*52 "Q. And what was Mr. Brecht's response to that? A. He said, `I don't have a gun.'
"Q. Did you say anything else to him? A. Yes, I did.
"Q. What? A. I said, `Did you have to kill her?'
"Q. And what was Mr. Brecht's response to that? A. He said, `I didn't kill anybody.'"
As to the foregoing testimony, no objection was made. However, state's counsel should refrain from using statements made prior to constitutional warnings except under unusual situations. The mandatory rules laid down in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 725, hold that a suspect while in custody or otherwise deprived of his freedom of action in any significant way must be advised as to the following rights:
1. Right to remain silent.
2. Anything said may be used against him.
3. Right to have an attorney present during questioning.
4. That if suspect could not afford to employ counsel, the Court would appoint counsel to represent suspect.
In Miranda the Supreme Court went on to say:
"The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by the defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to `admissions' of part or all of an offense. The privilege against self incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements to be merely `exculpatory'. If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement." (Emphasis supplied)
As stated in Miranda a truly exculpatory statement would never be used by the prosecution. This evidence tends to impeach the defendant's testimony at trial that the shooting was accidental and infers he lied to the officers and would do likewise at trial.
Although our decision herein turns upon the error in admitting Sandra Brumfield's testimony, we discuss the foregoing testimony of Sheriff Kober as inadmissible under Miranda in order to prevent error on retrial.
For the foregoing reasons, the judgment of the district court is reversed and this cause remanded there for a new trial.
JAMES T. HARRISON, C.J., and HASWELL, J., concur.
CASTLES, Justice (dissenting):
I dissent.
As to the testimony of Sandra Brumfield, the transcript reveals:
"Q. Does the date of April 29th, 1967, have any particular significance to you? A. It was Park City Junior-City Prom night.
"Q. Was there anything else that occurred on that day that you recall? A. A telephone call.
"Q. Beg pardon? A. A telephone call.
"Q. Miss Brumfield, are you related in any way or were you to Mary Ann Brecht? A. Yes.
*53 "Q. And what is that relationship? A. She was my sister.
"Q. Do you know Robert Brecht? A. Yes.
"Q. Have you from time to time stayed in the home of Mr. Brecht and your sister during their marriage? A. Yes.
"Q. For what purpose was that? A. To be with them and to babysit for them.
"Q. What other significance does the 29th day of April, 1967, have to you? A. A telephone call.
"Q. Where was that, did you receive a phone call? A. Yes.
"Q. And where were you when you received the phone call? A. At home in Park City.
"Q. And who was making that phone call? A. Robert Brecht.
"Q. Had you spoken with him on prior occasions on the telephone? A. Yes.
"Q. Did you know positively that that was Robert Brecht on the telephone? A. Yes.
"Q. And what did Mr. Brecht ask? A. He asked to speak to my sister, Mary Ann.
"Q. Beg pardon? A. He asked to speak to Mary Ann.
"Q. And what did you then do? A. I called her to the phone.
"Q. Did she take the phone? A. Yes.
"Q. Did you speak to Mr. Brecht? A. Yes.
"Q. And what did you do then? A. I went to the kitchen and lifted the receiver on the other phone.
"Q. Was this in your home? A. Yes.
"Q. Were there two telephones or a telephone and an extension in that home? A. Yes.
"Q. And was that at Park City? A. Yes.
"Q. Do you recall why you went to that other telephone and picked it up? A. I just went out and picked it up.
"Q. What did you hear?
"MR. HEARD: I object, Your Honor, there is no foundation laid here. The call was not made to this person, any testimony she gives, speech, would be hearsay; the speech or conversation was not addressed to that lady, no foundation sufficiently laid to show that it was Robert Brecht on the telephone that evening.
"THE COURT: Overruled.
"Q. What did you hear at that time, Miss Brumfield" A. They were arguing.
"Q. Who was arguing? A. Mary Ann and Bob.
"Q. Do you recall specifically overhearing any particular words at that time? A. He made a threat.
"Q. And what was that threat? A. He said, `I got my shotgun out of hock, I am coming down and I will use it if I have to.'
"Q. Did you hear any more after that? A. No, I hung up.
"MR. BLENKNER: Thank you, that's all I have, Your Honor.
"MR. HEARD: I believe the Defense has no questions of this witness, Your Honor."
The only objection of counsel was on foundation. Counsel brought out in its case-in-chief testimony from Robert Brecht concerning the same telephone call, but a little different version, about an argument and telling the deceased off with some profanity.
What all this amounts to is a mere over-hearing of matters which the defendant seeks to keep secret. Sandra was in her own home, was called by the defendant, and, under such circumstances where the defendant could not reasonably expect complete privacy. This is a far cry from an invasion of privacy, as discussed in Katz and the other federal cases cited in the majority opinion. Even under the most stringent federal cases, this amounts to nothing more than an over-hearing of a *54 conversation with no invasion of privacy involved.
Objection of counsel, quoted in full above, recognized this. Thus, I do not agree that this was reversible error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3781521/ | It is ordered and adjudged that this appeal as of right be, and the same hereby is, dismissed for the reason that no debatable constitutional question is involved.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TAFT and FAUGHT, JJ., concur. *Page 240 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/327013/ | 514 F.2d 908
75-2 USTC P 9540
Jennie ALLEN, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 74-2884.
United States Court of Appeals,Fifth Circuit.
June 11, 1975.
Charles J. Hlavinka, Texarkana, Tex., for petitioner-appellant.
Dennis M. Donohue, Tax Div., Dept. of Justice, Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Chief, Appellate, Sec., Jonathan S. Cohen, Murray S. Horwitz, Attys., Tax Div., Dept. of Justice, Meade Whitaker, Chief Counsel, Edward D. Robertson, I.R.S., Washington, D. C., W. B. Riley, Reg. Counsel, U. S. Treasury Dept., I.R.S., Dallas, Tex., for respondent-appellee.
Appeal from a decision of the Tax Court of the United States (Texas Case).
Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
LEWIS R. MORGAN, Circuit Judge:
1
Taxpayer, Jennie Allen, appeals from a decision by the Tax Court, 61 T.C. 125 (1974), finding deficiencies due in federal income tax for 1960 and 1961. We reverse the Tax Court's holding that Mrs. Allen is not entitled to the protection of section 6013(e), Internal Revenue Code of 1954, 26 U.S.C. § 6013(e), the "innocent spouse" statute, for tax year 1960, and affirm its holding that certain items of income for the tax years in question were "income from property," within the meaning of section 6013(e)(2)(A). We remand for further fact finding as to whether other items of income, which were not "income from property," were attributable to Mrs. Allen or to her former spouse.
I.
2
The Commissioner of Internal Revenue assessed income tax deficiencies against Mrs. Allen and Lewis E. Allen, her former husband,1 for 1959,2 1960, 1961 and 1962.3 The amounts of the assessments for each year, respectively, were $28,964.04, $41,662.86, $29,509.87 and $1,616.51. The deficiencies were assessed in substantial part because of income omitted from the joint returns filed by the Allens in those years. Most of the omitted income was from a grain storage business conducted by Lewis Allen through two controlled corporations, Allen Grain Company, Inc., and Allen Cartage Company, Inc. The Commissioner reallocated income and deductions between the Allens as individuals and Allen Cartage Company, Inc., pursuant to section 482, Internal Revenue Code of 1954. He also determined that the Allens had income as shareholders of Allen Grain Company, Inc., and gain on a transfer of assets to that company in 1960.
3
During the tax years in question, the Allens were residing in New Mexico, a community property state. The grain storage business, however, was located in Lubbock, Texas. Beginning around 1960, Lewis spent very little time at his New Mexico home. Mrs. Allen had to provide support for herself and her two sons from the proceeds of managing a coin-operated laundry. The Allens were divorced in 1966 and Mrs. Allen moved to Texas, where she resided at the time of filing her petition contesting the deficiency assessment now on appeal.
4
Unable to contest the merits of the Commissioner's deficiency assessment because of her total ignorance of her husband's business affairs, Mrs. Allen sought the protection of the innocent spouse statute, which provides:
5
(e) Spouse relieved of liability in certain cases.
6
(1) In general. Under regulations prescribed by the Secretary or his delegate, if
7
(A) a joint return has been made under this section for a taxable year and on such return there was omitted from gross income an amount properly includable therein which is attributable to one spouse and which is in excess of 25 percent of the amount of gross income stated in the return,
8
(B) the other spouse establishes that in signing the return he or she did not know of, and had no reason to know of, such omission, and(C) taking into account whether or not the other spouse significantly benefited directly or indirectly from the items omitted from gross income and taking into account all other facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in tax for such taxable year attributable to such omission,
9
then the other spouse shall be relieved of liability for tax (including interest, penalties, and other amounts) for such taxable year to the extent that such liability is attributable to such omission from gross income. 26 U.S.C. § 6013(e)(1).
10
The Tax Court held that Mrs. Allen was entitled to innocent spouse protection for 1961 and 1962 since she met the three statutory prerequisites set forth in section 6013(e)(1)(A), (B) and (C). For 1960, however, the Tax Court held that Mrs. Allen had failed to establish the first of these three requirements, that the omission from gross income attributable to her husband Lewis be greater than 25 percent of the gross income stated on their return for that year.
11
Mrs. Allen has appealed from the Tax Court's decision that she is not entitled to innocent spouse protection against the 1960 deficiency due, and from its holding as to the extent of protection the statute afforded her for 1961 deficiencies.
II.
12
Mrs. Allen first contends that the omitted income was not "income from property," and thus under section 6013(e)(2)(A),4 the community property laws of New Mexico should be disregarded in determining to whom the omitted income is attributable. If we accept this argument, not only does Mrs. Allen meet the 25 percent test for 1960, but her liability for 1961 taxes is also reduced, to the extent that liability is solely attributable to the effect worked by the community property law in this case, as explained below.
13
As stated in the Tax Court's findings of fact, the specific items of omitted gross income which were held to constitute "income from property" are:
14
1960 1961
----------- -----------
Rent income--Allen
Cartage Co., Inc. $ 59,010.37 $100,225.59
Distributions--Allen Grain
Co., Inc. 74,719.46 100,657.07
Grain on transfer of assets
to Allen Grain Co., Inc. 38,278.90
----------- -----------
TOTAL $172,008.73 $200,882.66
15
We start with the proposition that we are bound by a "clearly erroneous" standard when reviewing Tax Court findings of fact. 26 U.S.C. § 7482; Rule 52(a), Fed.R.Civ.P. In addition, Mrs. Allen had the burden of proof in the court below to establish that she was entitled to innocent spouse relief. Jerome J. Sonnenborn, 57 T.C. 373 (1971); Nathaniel M. Stone, 56 T.C. 213 (1971). This entails, of course, showing that the omitted income is attributable to the other spouse.
16
Although the Tax Court made no specific finding to this effect, it is clear from the record and implicit in its opinion that, but for the community property law of New Mexico, the items of income identified above were shown to be attributable to Lewis. Community property laws are disregarded under section 6013(e)(2)(A), except for "income from property;" therefore, Mrs. Allen had to show that it was not "income from property" to avoid the attribution, for tax purposes, of half of the omitted income by operation of New Mexico's community property law.5
17
Mrs. Allen bases her argument that the rents, distributions, and gain on transfer of assets were not income from property on a contention that the legislative history of section 6013(e) reveals a congressional intent to disregard community property laws when the omitted income is generated by business activities which require the rendering of substantial services by one spouse; and she contends the grain business required Lewis' services.
18
This argument is based upon the following passage from the legislative history of the innocent spouse statute:
19
Income earned by a husband, for example, and omitted from a joint return, is to be attributed to the husband, even though it may constitute community property, in determining whether the wife is entitled to relief from the tax liability under this provision. On the other hand, income from property, such as rental income from an apartment house owned by the marital community (with neither spouse rendering substantial services in producing the rental income) is to be deemed the income of both spouses. S.Rep. No. 91-1537, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Admin.News p. 6089 (emphasis added).
20
We agree with the Tax Court that where omitted income is generated by the performance of substantial services by one spouse, that income should be attributed to that spouse for purposes of section 6013(e)(1).
21
However, Mrs. Allen offered no evidence to support her contention that Lewis was actively involved in running the grain business. She was the sole witness at the trial below. She could not describe what the business consisted of; she had merely visited the premises on a few occasions and observed some round storage tanks. Nor did she know what Lewis did on his frequent trips to Texas.
22
Mrs. Allen asks us to take judicial notice of the fact that a grain storage business requires the rendering of significant services, and to presume that it was Lewis who rendered those services on his periodic trips to the facilities.
23
She relies on Rev.Rul. 65-91, 1965-1 Cum.Bull. 431. In this ruling under Subchapter S of the Internal Revenue Code, the Department of the Treasury ruled that, in the example given therein, payments received by a grain storage operation were not "rents" within the meaning of section 1372(e)(5) of the Code, because significant services were required to be performed in connection with the storage operation. However, Mrs. Allen produced no evidence which would indicate that Lewis' grain storage business involved the same sorts of services, such as periodic inspection and turning the grain. Nor did she offer any evidence that Lewis performed these or other services in connection with the business. We cannot substitute suppositions, no matter how probable, and judicial notice for the evidentiary facts necessary to sustain Mrs. Allen's burden of proof here.
24
Perhaps realizing that her evidence regarding Lewis' personal rendition of services was thin, Mrs. Allen argues that we should interpret "income from property" in section 6013(e)(2)(A) to exclude business income, as opposed to passive investment income. If section 6013(e)(2)(A) is so construed, she argues, the other spouse need not personally have rendered services in the production of the omitted income; it will suffice to establish that the income is not from property if it is generated by business activities which necessitate significant services on the part of anyone. Such a test is, in effect, the same as that for determining whether a corporation is eligible to elect Subchapter S status under the Internal Revenue Code of 1954, sections 1371-1377.
25
Once again, Mrs. Allen must rely on Rev.Rul. 65-91, supra, and its recognition that under certain circumstances a grain storage business requires the rendition of significant services. Of course, our previous disposition of Mrs. Allen's reliance on that ruling is also applicable here. Her failure of proof that Lewis Allen's grain business was similar to the one in Rev.Rul. 65-91 makes futile her reliance on it.
26
Furthermore, we find little merit in her contention that "income from property" should be so construed. Given the very disparate purposes of Subchapter S and the innocent spouse statute, there is no logical basis for equating "income from property" in section 6013(e)(2)(A) with "passive investment income" as defined in section 1372(e)(5). Although the legislative history of section 6013(e)(2)(A) is indeed scant, it appears that the "substantial services" rendered must be those of one spouse in order to avoid the community property laws' effect of making all income received by either spouse community property.
27
Accordingly, we can find no basis for overturning the Tax Court's finding of fact that rents, distributions, and gain on a transfer of assets constituted "income from property."
III.
28
The determination that Mrs. Allen did not meet the 25 percent test for 1960 did not result solely from the Tax Court's application of New Mexico's community property law. Mrs. Allen contends that, even taking community property laws into consideration, the method by which the Commissioner computed the amount of gross income omitted from the 1960 return was erroneous, and that a correct computation establishes that the omission was greater than 25 percent of the gross income stated on the return.
29
The gross income stated on the return was $235,735.00. The Tax Court found that gross income in the amount of $106,667.20 had been omitted, calculated as follows:
30
Rent income--Allen Cartage Co., Inc. $ 59,010.37
Distributions--Allen Grain Co., Inc. 74,719.46
Grain on transfer of assets to Allen
Grain Co., Inc. 38,278.90
Interest 1,483.16
Storage receipts (66,814.69)
-----------------
TOTAL $106,667.206
31
The last item above, storage receipts, represents an amount by which gross income on the Allen's 1960 return had been overstated due to the use of the accrual method of accounting when the cash method should have been used. The Commissioner thus theorized that the amount of this overstatement should be applied to reduce the amount of the omission.
32
The Commissioner also took this overstatement fully into account in calculating the amount of the omission which was attributable to Lewis:
33
One-half of income from community
property (1/2 x $172,008.73) $86,004.37
Interest 1,483.16
Storage receipts (66,814.69)
-----------
$20,672.84
34
Calculated thus, the amount omitted and attributable to Lewis is less than 25 percent of $235,735.00, the gross income stated on the return.
35
We wholeheartedly agree with Mrs. Allen that it was improper to deduct an amount of overstated income from the omission from gross income for purposes of determining whether the 25 percent test was met. The correct amount of the omission attributable to Lewis is $87,487.53, which is greater than 25 percent of stated gross income.
36
Section 6013(e)(1)(A) is satisfied if on a joint return "there was omitted from gross income an amount properly includable therein which is attributable to one spouse and which is in excess of 25 percent of the amount of gross income stated in the return." The question we are presented with is whether the amount which must be in excess of 25 percent of stated gross income is the amount which should have been reported as income but was not, or the amount which represents the net understatement of gross income, taking into consideration other selected corrections in income made by the Commissioner.
37
We use the words "selected corrections" advisedly; not all of the Commissioner's downward adjustments in the Allens' income were subtracted from the omitted amount in arriving at the net omission of $20,672.84. In addition to the reduction for overstated storage receipts, the deficiency computation also shows an additional deduction in the amount of $10,891.27 allowed for intangible drilling costs.
38
The Commissioner very properly did not figure this additional deduction into his computation for innocent spouse protection. The statute was intended to grant relief only for tax liability arising from omissions from gross income by one spouse; it provides no relief from tax liability which results from a fraudulent deduction, for example.7 Therefore, both disallowed deductions and additional deductions, allowable but not taken, should be disregarded when dealing with innocent spouse relief under section 6013(e). We see no more reason to take into account an overstatement due to an erroneous accounting method than a deduction which could have been taken, but was not. They are both errors in the taxpayer's computation on his return. An omission of gross income which was properly includable is an altogether separate and different error. Of course, all errors made by the taxpayer, whether they result in an upward or downward adjustment, must be balanced together in determining the income tax deficiency due. But it is only one variety of error, an omission, to which section 6013(e) may apply. In determining whether the quantity of the error is great enough to justify innocent spouse relief, i. e., whether the omission is in excess of 25 percent of stated gross income, only errors of omission should enter the computation.
39
Section 6013[e] is a remedial statute. Sanders v. United States,509 F.2d 162 (5th Cir. 1975). Its sole purpose is to remedy, in certain circumstances, the inequities which sometimes result from the imposition of joint liability. See S.Rep. No. 91-1537, supra, 1970 U.S.Code Cong. & Admin.News p. 6089. To effectuate that purpose, its provisions should be construed and applied liberally in favor of those whom the statute was designed to benefit. Cf. Helvering v. Bliss, 293 U.S. 144, 150-151, 55 S.Ct. 17, 79 L.Ed. 246 (1934).
40
The Commissioner's interpretation of section 6013(e)(1)(A), as reflected by his computation of the omission, flies in the face of the purpose of the innocent spouse provision. This can best be illustrated by examining what would have been the posture of this case if the storage receipts had not been erroneously overstated. Stated gross income in such a case would have been $168,920.31 ($235,735.00 less $66,814.69). The Commissioner would have been deprived of his argument for reducing the omission attributable to Lewis; it would have remained unadjusted at $87,487.53. The 25 percent test unquestionably would have been met. Since the Tax Court found that Mrs. Allen did not know, and had no reason to know, of the omission, section 6013(e)(1) (B), and that it is inequitable to hold her liable for the tax deficiency attributable to the omission, section 6013(e)(1)(C), she would have been entitled to innocent spouse relief for 1960.
41
In the case before us, however, the Commissioner argues that the 25 percent test is not met because stated gross income was $235,735.00 and the omission was $20,672.84. The difference in these figures and the ones in our hypothetical example is due solely to the storage receipts overstatement. The Commissioner contends that the overstatement is attributable solely to Lewis; that is his rationale for deducting the overstatement in full, rather than attributing it half and half to each spouse as a community property item. The incongruous and ironical result, if we were to accept the Commissioner's position, would be that because of one mistake attributable to her former spouse, Mrs. Allen is denied the benefits of a statute enacted to insulate her from tax liability for other mistakes attributable to him. The two mistakes should not be allowed to cancel out innocent spouse relief where the statute does not clearly authorize the Commissioner's novel approach.8
42
We hold, therefore, that Mrs. Allen met the 25 percent test for tax year 1960. Since the Tax Court held that she met the requirements of section 6013(e)(1)(B) and (C), she is entitled to innocent spouse protection to the extent set forth in the Tax Court opinion. Although Mrs. Allen has argued that the relief afforded by section 6013(e) should also include relief from tax liability which results from deductions disallowed by the Commissioner, the statute clearly provides relief only to the extent that tax liability flows from omissions from gross income which are attributable to the other spouse. Spaulder v. Commissioner, 31 T.C.M. 723 (1972).
43
Finally, we note an inconsistency between what we perceive the Tax Court holding to be and the Commissioner's computation for the entry of decision on the amount of income tax deficiency due. We accordingly remand for an explicit finding of fact by the Tax Court on the question of attribution of the non-community property income omitted from the Allens' 1961 return. The Tax Court opinion suggests that the Tax Court considered all omissions attributable to Lewis, except to the extent the community property laws were operative. This would be consistent with the Commissioner's computation of omissions attributable to Lewis for 1960, contained in the Tax Court's opinion, reflecting his position that interest income was attributable to Lewis in that year. If this is the case, then in 1961, for which year the Tax Court found Mrs. Allen entitled to innocent spouse relief, she should also have been relieved of tax liability on all of the interest and oil income omitted that year, in the amount of $1,668.19. The Commissioner's computation does not reflect this adjustment in its correction of income in accordance with the Tax Court opinion. If the Tax Court finds that this income was attributable to Lewis, the deficiency due for 1961 should be corrected to conform with that determination.
44
The decision of the Tax Court is affirmed in part, reversed in part and remanded.
1
The Allens were divorced on January 10, 1966. The statutory notice of deficiency was sent November 30, 1966. The Allens were married and filed joint federal income tax returns for all deficiency years, 1959 to 1962
2
By stipulation of the parties, collection of the deficiency for 1959 is barred by the statute of limitations. The Commissioner's determination for that year is therefore not involved in this appeal
3
The Tax Court held that Mrs. Allen was entitled to innocent spouse relief for 1962. The adjustment in the amount of the deficiency in accord with that holding resulted in no deficiency being due for 1962. The Commissioner has not appealed the portions of the Tax Court's holding adverse to him, and our consideration of Mrs. Allen's points on appeal would not change the outcome for 1962. Therefore our opinion will deal only with the years 1960 and 1961
4
Section 6013(e)(2)(A), Internal Revenue Code of 1954, provides: "(2) Special rules. For purposes of paragraph (1) (A) the determination of the spouse to whom items of gross income (other than gross income from property) are attributable shall be made without regard to community property laws . . .."
5
New Mexico Stat.Ann. § 57-4-1 (1953); Burlingham v. Burlingham, 72 N.M. 433, 384 P.2d 699 (1963)
6
Our addition of this column of figures gives us a total of $106,677.20. The mathematical error in this calculation of the 1960 omission is contained in the Tax Court's opinion
7
See S.Rep. No. 91-1537, 91st Cong. 2d Sess., 1970 U.S.Code Cong. & Admin.News pp. 6089, 6092. Enactment of the innocent spouse statute came about largely as a result of judicial pleas for statutory relief from the harsh but inescapable imposition of joint liability where one spouse had unreported income unbeknownst to the innocent spouse and not enduring to the benefit of the innocent spouse. E. g., Louise M. Scudder, 48 T.C. 36, 41 (1967). A typical example cited by the report of the Senate Finance Committee, S.Rep. No. 91-1537, supra, is the omission on a joint return of funds embezzled by one spouse, with ensuing tax liability therefor imposed on the completely innocent other spouse
8
We by no means intend to suggest that a gross income figure of $168,920.31 should be used in determining whether the 25 percent test is met here. Section 6013(e)(1)(A) clearly requires the amount of the omission, $87,487.53, to be in excess of "the amount of gross income stated in the return." The Allens stated in their return that their gross income was $235,735.00; hence, to qualify for section 6013(e) relief, the omission must be 25 percent of $235,735.00 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2588998/ | 71 N.Y.2d 950 (1988)
The People of the State of New York, Respondent,
v.
Arnold Lawson, Appellant.
Court of Appeals of the State of New York.
Argued March 23, 1988.
Decided April 28, 1988.
Leon R. Port for appellant.
Robert M. Morgenthau, District Attorney (Mark Cammack and Mark Dwyer of counsel), for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
*951MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was indicted with codefendants William Arrington and Kenneth Perkins for criminal sale of a controlled substance in the second degree. The charges arose from their sale of approximately 33 grams of heroin to an undercover police officer on September 16, 1982. Codefendant Arrington was charged in a separate indictment with the sale of a larger quantity of heroin on September 27, 1982. Before trial, Arrington *952 moved for a severance, contending that defendant and Perkins would attempt to elicit testimony about his September 27 sale, that such evidence was inadmissible under the rule of People v Molineux (168 N.Y. 264) and that he would be prejudiced as a result. Defendant joined in Arrington's motion. Severance was denied but, over defendant's opposition, the court granted Arrington's alternative motion for an order precluding the prosecution and his codefendants from referring to the September 27 transaction. Both were convicted at the ensuing joint trial. Defendant now contends that the preclusion order restricting his ability to cross-examine the People's witnesses about Arrington's sale of heroin on September 27 violated his Sixth Amendment confrontation rights. His claim is based on the following theory.
At trial, witnesses who testified against defendant identified him as the "boss" of the three men engaged in the September 16 transaction whereas defendant sought to portray himself as an innocent bystander. In summation, defense counsel rhetorically asked the jury why would the "boss" of a drug-selling operation actually appear on the street where the sale took place. This prompted the District Attorney to respond in summation that perhaps defendant involved himself in the September 16 deal because it was a significant transaction involving $1,200. Defendant contends the evidence of the September 27 sale was relevant to rebut this argument. Because the September 27 sale involved a larger quantity of heroin and a higher purchase price, defendant asserts if he were the "boss" it would have been more likely for him to have been present at the later sale. He thus maintains he should have been afforded the opportunity to cross-examine the People's witnesses to show that although the September 27 sale was of greater significance, he was not present for that transaction.
Evidence that defendant was not a participant in the September 27 sale, offered solely for the purpose of showing defendant was not predisposed to commit the crime, was irrelevant to the charges against him for selling heroin on September 16. As we have noted, "[j]ust as evidence of prior criminal conduct cannot be admitted as evidence-in-chief to establish a predisposition to commit the crime charged (People v Vails, 43 N.Y.2d 364, 368; People v Fiore, 34 N.Y.2d 81, 84; People v Molineux, 168 N.Y. 264, 292), evidence tending to establish that a defendant did not commit uncharged crimes is, because of its irrelevancy, similarly inadmissible as evidence-in-chief *953 to establish that the defendant did not commit the charged crime" (People v Johnson, 47 N.Y.2d 785, 786). Accordingly, the court's order precluding defendant from attempting to establish what took place during the later sale was entirely proper and did not violate his Sixth Amendment right of confrontation (see, Skinner v Cardwell, 564 F.2d 1381, 1389; accord, United States v Jackson, 756 F.2d 703, 706).
We have examined defendant's remaining contentions and conclude they are without merit.
Order affirmed in a memorandum. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610340/ | 76 Cal. App. 2d 203 (1946)
JAMES A. GUNN, JR., Petitioner,
v.
THE SUPERIOR COURT OF LAKE COUNTY et al., Respondents.
Civ. No. 7249.
California Court of Appeals. Third Dist.
Sept. 23, 1946.
James A. Gunn, Jr., in pro. per., for Petitioner.
Charles Kasch for Respondents. *204
ADAMS, P. J.
On or about May 18, 1946, this court issued a writ of mandate directing the Superior Court of Lake County to set aside an order made by it dimissing an appeal by petitioner James A. Gunn, Jr., from a judgment of a justice's court, and to proceed with the trial and determination of the action on appeal.
On August 2, 1946, said James A. Gunn, Jr., filed in this court what he has designated as a notice of motion in which he asks this court to take such action and make such orders, in accordance with section 1097 of the Code of Civil Procedure, as may seem necessary and proper, against the Superior Court of Lake County, and Judge Ben R. Ragain, presiding as judge pro tem. in said court. Said notice of motion recites that a "purported" hearing of his appeal was had in said superior court before Judge Ragain, but that it "was not a hearing at all, but a mere pretended obedience to the peremptory Writ of Mandate" issued by this court, and was "essentially a disobedience of said Writ." The grounds of the motion as stated are that appellant was not allowed to read to the trial court an excerpt from a particular decision, or to make his argument, but was told that he did not understand the matter; that he was "shut off" and "summarily dismissed" and ruled against. Said notice of motion was accompanied by an affidavit of the movant in which he alleges in greater detail that he was not permitted to read to the court from the decision in the case upon which he relied. Also in said affidavit, in effect, he argues the merits of his appeal from the judgment of the justice's court, and asks this court to make an order setting aside Judge Ragain's decision affirming said judgment, and to order a new hearing of the appeal in "complete obedience" to its prior writ, and to direct the superior court as to what the law is in the case and what the decision should be.
In response to the aforesaid motion Judge Ragain filed in this court his affidavit in which he alleges that the case appealed from the justice's court, entitled James A. Gunn, Jr., v. Rosetta M. Gunn, came on regularly for hearing before him; that a question of law only was presented on said appeal, the court below having sustained a demurrer to plaintiff's complaint without leave to amend; that plaintiff was allowed ample time--approximately an hour--for presentation of his argument, after which the court concluded that the order of the lower court sustaining the demurrer should be affirmed, *205 and so ordered. Petitioner filed a reply affidavit in which he denies that he was given sufficient time to present his case before the superior court, and again argues the merits of the case before it.
As above stated, Mr. Gunn bases his motion upon section 1097 of the Code of Civil Procedure, which provides:
"When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, or board, or such person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ."
Passing, without deciding, the question of the propriety of this motion for the purposes for which it was made, upon the conflicting affidavits filed we cannot say that the superior court to which our prior writ of mandate was directed has refused or neglected to obey the same. On the contrary, it appears from the affidavits, and from the minutes of the superior court which were introduced in this proceeding, that the respondent superior court did hear the appeal in conformity with the mandate of this court; and we also conclude therefrom that appellant's efforts to present his case at said hearing were not unduly curtailed or hampered.
[1] The determination of the manner in which a trial or hearing in a court is to be carried on lies within the province of the court before which such proceeding is pending; and it is not for an appellate court to say that it should have proceeded in one way or another as long as no statutory or constitutional rights of the parties were infringed. [2] And how much time parties may be allowed for argument in a trial before a court sitting without a jury, or whether they are to be allowed any at all, are matters within the discretion of the court before whom the hearing is had. (See Larson v. Blue & White Cab Co., 24 Cal. App. 2d 576 [75 P.2d 612], and cases cited at page 578; Hallinan v. Superior Court, 74 Cal. App. 420, 426 [240 P. 788].)
[3] Furthermore, section 1097, supra, furnishes no ground *206 for a review by this court of the merits of the case before the lower court, nor can it serve as a writ of error or appeal from the judgment of that court. In Roberts v. Police Court, 185 Cal. 65, 67 [195 P. 1053], where it was sought to have an appellate court review the decision of a superior court in a case in which an appeal had been taken to said superior court from a decision in the police court, the Supreme Court said, page 67, that it is "thoroughly settled that the judgment of a police court or justice's court will not be reviewed on certiorari, after appeal taken therefrom and determination of such appeal in the superior court," there being no lack of jurisdiction of that court or excess thereof.
In Moyer v. Superior Court, 29 Cal. App. 2d 330 [84 P.2d 240], it was sought to review by certiorari the decision of the superior court in a case appealed to it from a police court. The court said, page 333:
"The respondent court having acted within its jurisdiction in deciding the appeal thus taken by this petitioner, this writ will not lie. The petitioner is, in effect, attempting to obtain the benefit of two appeals when the same is not provided for by law. (Olcese v. Justice's Court, 156 Cal. 82 [103 P. 317]; De Matei v. Superior Court, 74 Cal. App. 147 [239 P. 853]; Erickson v. Municipal Court, 219 Cal. 737 [29 P.2d 192].)" The court then quoted from Armantage v. Superior Court, 1 Cal. App. 130 [81 P. 1033], in which it was sought to review by certiorari a judgment of a superior court in a case appealed thereto from a judgment of a justice's court. The court there said, page 133:
"The fact is, the petitioner here, having no appeal from the decision of the superior court, is endeavoring to substitute certiorari for an appeal, and thereby have reviewed the objections made and the exceptions taken in the superior court that he is prohibited from having reviewed upon appeal. This he may not do. It has been held in every late case in our supreme court, where the question has been squarely raised, that certiorari goes only to the jurisdiction or power of the court to act, and can never be substituted for an appeal to review the mere errors of a judicial tribunal. (Borchard v. Supervisors, 144 Cal. 10 [77 P. 708]; Valentine v. Police Court, 141 Cal. 615 [75 P. 336]; Wittman v. Police Court, 145 Cal. 474 [78 P. 1052]; Code Civ. Proc., 1068.)"
The same may be said of the movant's attempt to secure on *207 this motion a review of what he contends were errors of the superior court, and thus obtain the benefit of two appeals when same are not provided for by law.
The motion is denied.
Thompson, J., and Peek, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1936811/ | 77 So. 2d 563 (1955)
John M. WALTON
v.
KATZ & BESTHOFF, Inc.
No. 20198.
Court of Appeal of Louisiana, Orleans.
January 17, 1955.
Rehearing Denied February 14, 1955.
Writ of Certiorari Denied March 21, 1955.
Phelps, Dunbar, Marks & Claverie, Sumter D. Marks, Jr., New Orleans, for plaintiff-appellant.
Weiss & Weiss, New Orleans, for defendant-appellee.
JANVIER, Judge.
John M. Walton seeks to recover from Katz & Besthoff, Inc., $1,847.19 on a claim which, according to counsel for defendant, is an action in redhibition. The trial court found it to be an action in redhibition, and since the suit was brought more than one year from the time of the discovery of the defects and deficiencies in the paint which was bought by plaintiff from defendant, held that the action was prescribed in accordance with Article 2534 or Article 2546 of the LSA-Civil Code.
From the judgment dismissing the suit plaintiff has appealed.
Plaintiff alleges that in May, 1950, the defendant, Katz & Besthoff, Inc., advertised for sale in a local newspaper "National Finishes All-Purpose White Paint," and, in the advertisement, stated that the said paint was "guaranteed 100% Mold and Mildew-Resistant All-Purpose White Paint." Plaintiff alleges that for his home in Covington, Louisiana, he decided to buy paint "which would guard against formation of mildew within an unreasonably short time;" that he read the advertisement above referred to and that the representations made therein were confirmed by an employee of defendant; that on May 26, *564 1950, he purchased twenty-five gallons of the said paint at a cost of $58.97 and used this in painting his home in Covington; that on June 26, 1950, desiring to paint his daughter's home in Metairie, Jefferson Parish, Louisiana, he purchased an additional twenty-five gallons of the said paint at a cost of $58.98. He then alleges that his principal motive for buying the paint was his belief "based upon the oral and written representations of defendant, that the said paint was perfect for the New Orleans climate and would prevent mold and mildew from forming;" that in September, 1950, he used some of the paint on his home in Covington and that the paint was applied by a professional painter carefully and in a workmanlike manner and in accordance with instructions printed on the label of the cans; that the cost of placing said paint on his home in Covington was $606.77.
He next alleges that the "balance of the said paint" was applied to his daughter's home in Metairie by a professional house painter who applied it in a careful workmanlike manner, following instructions printed on the labels of the cans, and that this application was at a cost of $237.47. He then charges that in February, 1951, at about the time the painting of his daughter's home was completed, mildew began to appear on his home in Covington, and that shortly thereafter in May, 1951, mildew began to appear on his daughter's home in Metairie, and that mildew and mold on both houses have become unsightly and that it will cost $885 to remove the paint from both houses. He prays for judgment for the total amount spent for the paint, for its application and for its necessary removal, to-wit $1,847.19.
Defendant admits the sale of the paint, but denies the allegations as to the guaranty on the ground that "they are not complete and the copies of the said ad are contradictory thereto."
A plea of prescription of one year was filed and the controversy was submitted on this plea, which was sustained, with the resultant dismissal of the suit.
There is no doubt that the record sustains the allegations of plaintiff's petition as to the deficiencies and defects in the paint and the District Judge so found, for, in his reasons for judgment, he said:
"* * * While defendant was not the manufacturer, nor processor nor packager of the paint, defendant have an affirmative and independent warranty to plaintiff that the paint was mildew-proof in the form of advertisements in New Orleans newspapers. See Dugue v. Safety Oil Burners, Inc., La.App., 142 So. 161."
He then correctly found that the suit had been filed more than two years after the date of the sale of the paint and more than one year after the discovery of the defects and deficiencies in the paint, and maintained the plea of prescription and dismissed the suit.
On behalf of plaintiff it is strenuously argued that the controversy is not controlled by the prescription of one year which is applicable to an action in redhibition, and that therefore neither Article 2534 nor Article 2546 of our LSA-Civil Code has any application; that the action is for damages for breach of contract and that the prescription which is applicable is that of ten years.
Our attention is particularly directed to two cases decided by our Supreme Court, each on facts substantially similar to those presented here. These cases are Henderson v. Leona Rice Milling Co., 160 La. 597, 107 So. 459, and Rapides Grocery Co., Inc., v. Clopton, 171 La. 632, 131 So. 734.
In the Henderson case, decided by our Supreme Court four years before its decision in the Rapides Grocery Company case, the plaintiff, inexperienced in rice planting, bought from the defendant eighty sacks of seed rice which was sold by sample and was referred to as Honduras rice. The rice was bought and planted in the early Spring of 1919. As the crop began to mature it was discovered that the rice was not pure Honduras rice but was a mixture *565 of Honduras and other rices, and that the value of the resultant crop was $1 per barrel less than it would have been had it been all Honduras rice. On this difference in value alone it appeared that the plaintiff had sustained a loss of $1,107. In addition, it was shown that since the plaintiff desired to again plant Honduras rice, he was forced to buy his seed for the next season instead of using some of his own crop, and he alleges that he was thus forced to spend $1,600 which he would not have had to spend had his crop been the result of pure Honduras rice as warranted by the defendant. When he brought suit for additional losses he was met with a plea of prescription of one year and the contention that his suit was one in redhibition or quanti minoris, in either of which cases the prescription of one year would have been applicable.
It was contended that the suit was not in redhibition or quanti minoris but was for damages resulting from breach of contract and that consequently the applicable prescription was ten years. The Supreme Court said [160 La. 597, 107 So. 460] that the suit did not fall "within either one of the classes named", that is, either redhibition or quanti minoris. As to the contention that the suit was one in redhibition the Court said:
"The plaintiff here could not have instituted the redhibitory action for the very obvious reason that the fact that the rice was not such as plaintiff thought he was buying, and as was represented to him by defendant's agent, was not discovered until long after the sale and after the rice had been planted and was growing in the field and virtually ready for harvest."
On the contention that the suit was an action quanti minoris, the said Court said:
"Nor can the action be properly classed as one in reduction of the price. The plaintiff nowhere in his petition asks for a reduction of the price he paid for the seed rice because of the alleged vice."
Then the Court classified the suit saying:
"Under the allegations of the petition and the facts established by the evidence, the action may be said to be one for damages on account of a breach of the contract of sale and an active violation of the covenant of warranty."
If the suit was properly classified as one for damages for breach of contract not connected with or growing out of an action in redhibition or quanti minoris, the applicable prescription would have been ten years and not one year. But, after clearly stating that the action was not in redhibition nor quanti minoris, the Court, allowing recovery by the plaintiff, made the following statement.
"This suit was brought well within the year following the discovery that the rice plaintiff received was not pure Honduras rice."
In such case the prescriptive period is fixed in Article 2546 of the LSA-Civil Code at one year from the date of the discovery of the defect. At first reading of that opinion it is difficult to understand why the Court, after finding that the claim was "one for damages on account of the breach of the contract of sale", should have found it necessary to discuss the prescriptive period which would have been applicable had the case been one in redhibition.
However the confusion which might result from the discussion by the Court of the applicability of the one-year prescription is to some extent dissipated when we carefully analyze Article 2545 of the Code, for in that Article it is provided that if seller knows of the defects in the thing which he sells and fails to disclose them, he makes himself liable not only for the return of the price but also for such "damages" as the buyer may have sustained, and we think it probable that when the Court in its discussion said that the claim of the plaintiff was one in damages, it meant the damages as contemplated by Article 2545 of the Code and not the damages ordinarily contemplated where a contract is breached.
*566 This explanation would make it possible to understand the decision of the Supreme Court in Rapides Grocery Co., Inc., v. Clopton, supra, which was rendered only four years after the decision in the Henderson case. There the plaintiff brought suit against the defendant for the price of cottonseed bought by him. The defendant filed a reconventional demand in which he alleged that plaintiff had sold to him forty bushels of soy beans to be used for seed and had warranted that the seed was sound and would germinate. He averred that it did not germinate and failed to produce a crop, and he prayed for a judgment for $4,000 which he claimed would have been the profit had the beans been fit for sale. When he filed this reconventional demand, more than one year had elapsed since the discovery by him that the seeds would not germinate. To this demand in reconvention a plea of prescription of one year was filed. The Supreme Court found [171 La. 632, 131 So. 735] that the claim was "founded upon redhibition", and that the prescription of one year was applicable because of the provisions of Article 2546. The Court said that in such a case a seller who knows of such a defect is liable, but that the claim must be presented within one year of the discovery of the defect.
We are unable to find any fact which would distinguish either of those cases from the case at bar except that here there is nothing which would indicate that the seller knew of the defect.
Counsel for plaintiff-appellant strenuously argues that the Supreme Court, when it rendered the decision in the Rapides Grocery Company case, gave no thought to the possibility that the suit might be considered as one in damages for breach of contract for the reason, so counsel says, that the attorneys for both parties in that case treated the case as one in redhibition and that the Supreme Court therefore failed to notice that, as a matter of fact, it really was a suit for damages for breach of contract.
We find it difficult to accept this explanation, for the reason that the Court in its decision seems to have expressly referred to the claim as one for damages. It states, for instance, that the claim, which was a reconventional demand, "set up a reconventional demand for damages," and later in the opinion the Court stated that the claim "for damages" had not been presented within one year after the discovery and that therefore the "demand for damages is barred by the prescription of one year. * * *"
Furthermore, it does not seem reasonable to suppose that only four years after it had rendered its decision in the Henderson case the Supreme Court would have overlooked its significance. This is especially true since the author of the opinion in the Henderson case acquiesced in the opinion and decree in the Rapides Grocery Company case.
We conclude, after a study of those two decisions, that it is now settled that, in such a case as this, the party who sustains loss is entitled to "damages" but that those damages are such as are contemplated by Article 2545 of the LSA-Civil Code, and that consequently the claim is barred by the prescription period of one year in accordance with Article 2534, if the seller did not know of the defect, or Article 2546 if the seller had such knowledge.
The decision of the Supreme Court in Sterbcow v. Peres, 222 La. 850, 64 So. 2d 195, when read in connection with the opinion of the District Court and the briefs of counsel in that case, shows that the Supreme Court must still be of the view that such a suit as this is a redhibitory action.
The contention that a redhibitory action will not lie unless the status quo ante can be restored by the return or tender back of the article purchased is not well founded. There are cases in which the article purchased is consumed by use and obviously cannot be returned. This is true in the case of seeds which are planted, as in the Henderson case, and in the Rapides Grocery Company case, and it is also true in the case of paint, which obviously cannot be returned after it has been used, and it is true in many other similar situations.
*567 The reason for the application of the rather short prescriptive period of one year is set forth in George v. Shreveport Cotton Oil Co., 114 La. 498, 503, 38 So. 432, 434:
"* * * The explanation given for adopting the short prescription fixed for this particular class of action is the necessity and propriety of determining with promptness and certainty whether the articles sold had or did not have the vices which they were charged to have had."
The judgment appealed from is affirmed at the cost of appellant.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2236091/ | 929 N.E.2d 166 (2006)
367 Ill. App.3d 1087
PAOLISSO
v.
HENRY BROS. CO.
Nos. 1-05-1309, 1-05-2672.
Appellate Court of Illinois, First District
September 21, 2006.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610343/ | 76 Cal. App. 2d 631 (1946)
FRANCES GREENBERG et al., Respondents,
v.
HERMAN KOPPELOW et al., Appellants.
Civ. No. 13093.
California Court of Appeals. First Dist., Div. Two.
Oct. 29, 1946.
Charles A. Christin and Thomas J. Keegan for Appellants.
Charles N. Douglas and Joseph A. Brown for Respondents.
GOODELL, J.
In this unlawful detainer action judgment was awarded for the restoration of possession to the plaintiffs, $1,150 damages for wrongful detention, $500 attorney fees, and costs.
The judgment, dated July 18, 1945, shows that the $1,150 was for "damages already accrued at the rate of $500.00 per month commencing May 11, 1945."
On January 17, 1938, the predecessors of respondents, as lessors, and the predecessor and assignor of appellants, as lessee, entered into a written lease of the apartment house in question at 1327 Leavenworth Street, San Francisco, for the term of 7 years ending on October 30, 1944, at the monthly rental of $225 for the first 2 years and $250 for the last 5. During the term the respondents purchased the property. *633 The appellants were then in possession as assignees of the original lessee and so continued.
From the expiration of the lease, on October 30, 1944, until the service, on April 9, 1945, of a 30-day notice to quit (as to which notice, its form, timeliness and service, there is no controversy) the appellants admittedly were in possession. The present action is not concerned with the unpaid rent for that intervening period or for any time prior to May 11, 1945, when the 30-day notice expired; other actions deal therewith.
The only question presented for decision is as to the size of the money judgment. The appellants contend that the court was bound to compute the damages at the rate of $300 a month by virtue of the following provision in the lease: "13. Any holding over after the expiration of the term hereof without the consent of Lessor shall be deemed to be a tenancy from month to month at a monthly rental of Three Hundred Dollars ($300.00) and shall continue to be on the same terms and conditions as herein specified."
Section 1161, Code of Civil Procedure, provides that "A tenant of real property ... is guilty of unlawful detainer: ... When he continues in possession, ... after the expiration of the term for which it is let to him, without the permission of his landlord. ..." Paragraph 13 of the lease speaks of a holding over "without the consent of Lessor." Because of this coincidence of language between statute and lease the appellants argue that "under the plain and unequivocal language of Section 13 of the lease quoted above, rental damages were restricted to the sum of $300 per month" and, further, that "Section 13 of the lease covers the exact situation existing in the present case, and cannot be construed to cover any other situation. ... No other situation than the instant one can be conceived where section 13 would have any application ... the plain and unambiguous language of the contract must be given effect."
[1] The parties to this lease themselves characterized the holding over as "a tenancy from month to month." As long as such holding over was permitted to run on, as it was here, the monthly rental was something about which the parties could contract, but such month to month tenancy was, of course, subject to termination "by the giving of notice by one party or the other, in the manner prescribed by law." (15 Cal.Jur. 805.) Such notice was given on April 9, and *634 expired on May 11, 1945. That terminated the tenancy. [2] On May 22 respondents filed this action in unlawful detainer, which form of action "does not arise upon contract, but sounds in tort. ..." (15 Cal.Jur. 850.) [3] By the election of the respondents to serve notice and sue, their former tenant was automatically converted into a wrongdoer (see 32 Am.Jur. 779, citing Blumenberg v. Myres, 32 Cal. 93 [91 Am.Dec. 560]) or a trespasser (compare Cowell v. Snyder, 15 Cal. App. 634, 638 [115 P. 961]).
[4] An analysis of paragraph 13 of the lease shows that appellants' contention that the $300 provision found in paragraph 13 should be binding on the court as the measure of damages cannot be supported. In the first place it is a contradiction in terms to say that a "holding over ... without the consent of Lessor" after a 30-day notice has been given and a suit filed can be "deemed to be a tenancy from month to month." Second, such possession after notice and suit cannot possibly call for "rental." It calls for "damages" (Code Civ. Proc., 1174). Third, such erstwhile tenant after becoming a trespasser or wrongdoer can no longer be in possession "on the same terms and conditions" as specified in the original lease. If he could, such tenancy could never be terminated. And yet these three elements--tenancy, rental and similar terms and conditions were all used in the same sentence in the lease and were interrelated. That they must have been meant to refer only to a holding over before, and not after, notice and suit, is self- evident.
The judgment is affirmed.
Nourse, P. J., and Dooling, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1745339/ | 639 F. Supp. 2d 298 (2009)
Mahin GABAYZADEH, as Trustee for and of The Diane Gabayzadeh Trust, The Deborah Gabayzadeh Trust, and The John Gabayzadeh U.T.M.A. Trust, Plaintiffs,
v.
Russell C. TAYLOR, Steven C. Catalfamo, Kimberly-Clark Corporation, Cellu Tissue Holdings, Inc., and Charterhouse Group International, Inc., Defendants.
No. CV 08-3239(JFB)(ETB).[1]
United States District Court, E.D. New York.
August 3, 2009.
*299 Mahin Gabayzadeh, Plaintiff Pro Se.
King & Spalding by Ann Marie Cook, Esq., New York, N.Y., Attorneys for Defendants Russell C. Taylor and Cellu Tissue Holdings, Inc.
Stafford, Carr & McNally, P.C. by Robert P. McNally, Esq., Lake George, NY, Attorneys for Defendant Steven C. Catalfamo.
Eimer Stahl Klevorn & Solberg LLP by Andrew G. Klevorn, Esq., Chad J. Doellinger, Esq., Chicago, IL, Attorneys for Defendant Kimberly-Clark Corporation.
Venable LLP by Gregory Wayne Gilliam, Esq., Matthew T. McLaughlin, Esq., New York, NY, Attorneys for Defendant Kimberly-Clark Corporation.
Proskauer Rose LLP by Joanna Frances Smith, Esq., Peter J.W. Sherwin, Esq., New York, NY, Attorneys for Defendant Charterhouse Group International, Inc.
MEMORANDUM OPINION AND ORDER
BOYLE, United States Magistrate Judge.
Before the court is the application of the pro se plaintiff, Mahin Gabayzadeh, as Trustee of the Diane Gabayzadeh Trust, the Deborah Gabayzadeh Trust, and the John Gabayzadeh U.T.M.A. Trust (the "Trusts"), to disqualify Proskauer Rose LLP, counsel for Charterhouse Group International, Inc., from participating in the within litigation. For the following reasons, plaintiff's motion is denied.
*300 FACTS
Plaintiff brings this action against defendants Russell Taylor ("Taylor"), Steven Catalfamo ("Catalfamo"), Kimberly-Clark Corporation, Cellu Tissue Holdings, Inc. ("Cellu Tissue") and Charterhouse Group International, Inc. ("Charterhouse"), complaining of fraud and conspiracy in the acquisition of a facility located in Neenah, Wisconsin (the "Neenah facility") by Cellu Tissue as part of the bankruptcy proceedings of American Tissue, Inc. ("American Tissue"), who is not a party to this action. (Compl. ¶ 30.) Proskauer Rose LLP ("Proskauer"), counsel for defendant Charterhouse[2] in the within action, represented Cellu Tissue, the buyer of the Neenah facility, in the underlying acquisition. (Pl.'s Mot. to Disqualify ¶ 7, Ex. A; Smith Decl., Oct. 31, 2008, ¶ 2.)
Specifically, in 2002, Proskauer represented Cellu Tissue for the months prior to the acquisition of the Neenah facility and in connection with American Tissue's bankruptcy proceedings. (Pl.'s Mot. to Disqualify ¶¶ 7-8, Ex. A.) As counsel for Cellu Tissue, Proskauer prepared the "Asset Purchase Agreement" in connection with the acquisition of the Neenah facility.[3] (Pl.'s Mot. to Disqualify ¶ 7, Ex. A.) Plaintiff alleges that in July 2002, Proskauer improperly negotiated a gross $17 Million sales price by including in that amount various assets that were not part of the bankruptcy estate. (Pl.'s Mot. to Disqualify ¶ 15-22, Ex. I-M.) Plaintiff further alleges that Proskauer corresponded with the defendants several times, via email, during the acquisition process. (Pl.'s Mot. to Disqualify ¶ 11-13, Ex. E-G.)
Plaintiff asserts that since Proskauer is "privy to information that is ... central to[] the fraudulent acts complained of," (Pl.'s Mot. Disqualify ¶ 27), and because Proskauer was "either a participant in the illegal conspiracy to subvert the Anti-Trust laws, or was an aider and abettor of those acts," (id. ¶ 28), plaintiff intends to demand discovery from the firm, and may include the firm and/or one or more of its members or employees as defendants, if necessary. (Id. ¶¶ 29-30). Plaintiff therefore seeks the disqualification of all members and employees of Proskauer from participating as counsel for defendant Charterhouse in this case.
DISCUSSION
I. Legal Standard
"[T]he disqualification of an attorney upon the motion of an adversary is a serious sanction that ought not to be imposed lightly." Sea Tow Int'l, Inc. v. Pontin, No. CV-06-3461, 2007 WL 4180679, at *1 (E.D.N.Y. Nov. 19, 2007) (quoting Shabbir v. Pakistan Int'l Airlines, 443 F. Supp. 2d 299, 304 (E.D.N.Y. 2005)). Indeed, it is well-established that "[m]otions to disqualify opposing counsel are viewed with disfavor in this Circuit because they are `often interposed for tactical reasons' and result in unnecessary delay." Bennett Silvershein Assocs. v. Furman, 776 F. Supp. 800, 802 (S.D.N.Y. 1991) (quoting U.S. Football League v. Nat'l Football League, 605 F. Supp. 1448, *301 1452 (S.D.N.Y.1985)). The Second Circuit has "been loathe to separate a client from his chosen attorney," Bohack Corp. v. Gulf & Western Indus., Inc., 607 F.2d 258, 263 (2d Cir.1979), noting that "[t]he delay and additional expense created by substitution of counsel is a factor to which [it has] attached considerable significance...." Id. (citing Lefrak v. Arabian Am. Oil Co., 527 F.2d 1136, 1138-40 (2d Cir.1975)). Although any doubts are to be resolved in favor of disqualification, see Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir.1980), vacated on other grounds and remanded, 450 U.S. 903, 101 S. Ct. 1338, 67 L. Ed. 2d 327 (1981), the party seeking disqualification bears a "heavy burden" of demonstrating that disqualification is warranted. See Evans v. Artek, 715 F.2d 788, 794 (2d Cir.1983) (citing Government of India v. Cook Indus. Inc., 569 F.2d 737, 739 (2d Cir.1978)).
"The objective of the disqualification rule is to `preserve the integrity of the adversary process.'" Evans, 715 F.2d at 791 (quoting Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979)). In deciding a motion to disqualify counsel, the court must "balance `a client's right freely to choose his counsel' against `the need to maintain the highest standards of the profession.'" Hempstead Video, Inc. v. Incorporated Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir.2005) (quoting Government of India, 569 F.2d at 739).
The decision to disqualify counsel is committed to the sound discretion of the district court. See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). Nonetheless, "[r]ecognizing the serious impact of attorney disqualification on the client's right to select counsel of his choice," Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir.1981), the Second Circuit has instructed that disqualification should only be imposed upon a finding that the presence of a particular attorney "poses a significant risk of trial taint." Id.; see also Bottaro v. Hatton Assoc., 680 F.2d 895, 896 (2d Cir.1982) (citing Nyquist, 590 F.2d at 1246). "Where the threat of tainting the trial does not exist ... the litigation should proceed, the remedy for unethical conduct lying in the disciplinary machinery of the state and federal bar." Bottaro, 680 F.2d at 896-97 (citing Armstrong v. McAlpin, 625 F.2d 433, 444 (2d Cir.1980), vacated on other grounds and remanded, 449 U.S. 1106, 101 S. Ct. 911, 66 L. Ed. 2d 835 (1981)).
"When deciding a motion to disqualify an attorney, federal district courts in New York consider various sources of law, including the ABA Model Rules of Professional Conduct, the ABA Model Code of Professional Responsibility, and the New York Code of Professional Responsibility." Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d 273, 275 (S.D.N.Y.2004) (citing Regal Mktg., Inc. v. Sonny & Son Produce Corp., No. 01 Civ.1911, 2002 WL 1788026, at *4 (S.D.N.Y. Aug. 1, 2002)). However, "such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification." Hempstead Video, 409 F.3d at 132 (citing Nyquist, 590 F.2d at 1246).
II. Plaintiff Cannot Represent the Trusts Pro Se
As an initial matter, the pro se plaintiff is not permitted to bring this action, let alone move to disqualify opposing counsel, on behalf of the Trusts she purports to represent. Both federal and New York law "prohibits the practice of law ... on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney." In re Welsh, 51 *302 A.D.3d 1351, 860 N.Y.S.2d 639, 640 (3d Dep't.2008) (quoting People ex rel. Field v. Cronshaw, 138 A.D.2d 765, 526 N.Y.S.2d 579, 579 (2d Dep't 1988)); see also N.Y. Judiciary Law §§ 478, 484. "[A]ppearance pro se denotes (in law [L]atin) the appearance for one's self; so that a person ordinarily may not appear pro se in the cause of another person or entity." Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir.1997). Other courts that have addressed this issue have held that a non-attorney trustee may not represent a trust pro se. See, e.g., Hale Joy Trust v. Comm'r of I.R.S., 57 Fed.Appx. 323, 324 (9th Cir.2003) (holding that "[a] non-attorney trustee may not represent a trust pro se in an Article III court"); Knoefler v. United Bank of Bismark, 20 F.3d 347, 348 (8th Cir.1994) (holding that "a nonlawyer, such as these purported `trustee(s) pro se' has no right to represent another entity, i.e., a trust, in a court of the United States"); see also Kahn v. Gee Broadcasting, Inc., No. 07-CV-1370, 2007 WL 1176734, at *1, 2007 U.S. Dist. LEXIS 29390, at *3 (E.D.N.Y. Apr. 19, 2007) ("A pro se plaintiff may not represent the interests of another individual or corporate entity in a civil proceeding.").[4]
Based on the foregoing, the law clearly prohibits the plaintiff from representing the Trusts herein because she is not a licensed attorney authorized to practice law in this court. For this reason alone, the within motion to disqualify must fail. However, the court will nonetheless consider the merits of the motion, as discussed below.
III. Disqualification Under the Witness-Advocate Rule
Plaintiff's first ground for disqualification is that she anticipates calling certain Proskauer attorneys to testify at trial concerning the drafting of the "Asset Purchase Agreement" and the decision to include various assets in the schedules to *303 that agreement. (Pl's Mot. to Disqualify ¶¶ 10-17.) Accordingly, plaintiff asserts that Proskauer should be disqualified under the "witness-advocate" rule.
On April 1, 2009, subsequent to the filing of the within motion, the New York Rules of Professional Conduct (the "Rules") became effective, superseding the New York Code of Professional Responsibility (the "Code"). See N.Y. Comp.Codes R. & Regs. tit. 22, § 1200 et seq. The new Rules dispense with the Disciplinary Rules (the "DR's") of the New York Code, thereby abandoning the format of the ABA Model Code of Professional Responsibility. Roy Simon, Comparing the New N.Y. Rules of Professional Conduct to the N.Y.Code of Professional Responsibility, http://www.nyprr.com/New-NY-Rules-of-Professional-Conduct.php. However, the new Rules "maintain much of the same language and substance of the ... [Code], drawing on both the Disciplinary Rules and the Ethical Considerations." Id. The witness-advocate rule, embodied in Rule 3.7, is substantially the same under both the Rules and the Codethe only differences being largely stylisticand therefore, cases decided under the former Code are applicable to the motion herein.[5]
Rule 3.7 of the New York Rules of Professional Conduct-former Disciplinary Rule 5-102 ("DR 5-102")"pertains to situations in which lawyers may be called as witnesses, commonly referred to as the `witness-advocate' or `advocate-witness' rule." Sea Tow, 2007 WL 4180679, at *2. Under this Rule, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact," except in certain enumerated circumstances. N.Y. Comp.Codes R. & Regs., tit. 22, § 1200.29. New York courts have interpreted this provision to require disqualification "only when it is likely that the testimony to be given by the witness is necessary." S & S Hotel Ventures Ltd. P'ship v. 777 S.H. Corp., 69 N.Y.2d 437, 445-46, 515 N.Y.S.2d 735, 508 N.E.2d 647 (1987) (interpreting former DR 5-102(a)).[6]
In the within action, there were four Proskauer attorneys who performed legal work on behalf of Cellu in connection with the acquisition: Stephen W. Rubin, Lisa A. Chiappetta, Jack B. Spizz and Scott K. Rutsky. (Smith Decl., ¶ 3.) Among those four, Ms. Chiappetta and Mr. Spizz are no longer employed by Proskauer. (Id. ¶ 4.) Although Messrs. Rubin and Rutsky are currently members of the firm, both are corporate partners, not litigators, and neither will play any role as an advocate in the trial of this action. (Id. ¶ 5.) Rather, Joanna F. Smith and Peter J.W. Sherwin *304 are the attorneys acting as litigation counsel to Charterhouse in this action. (Id. ¶ 6.) Neither Ms. Smith nor Mr. Sherwin had any role in the representation of Cellu Tissue in the acquisition of the Neenah facility at issue herein. (Id.) Accordingly, assuming arguendo relevance and the absence of any privilege, it is obvious that the only Proskauer attorneys that the plaintiff may call as witnesses are Messrs. Rubin and Rutsky, not Charterhouse's attorneys in the current action, Ms. Smith and Mr. Sherwin. Since Ms. Smith and Mr. Sherwin did not participate in any way in the Neenah acquisition, neither is likely to be called as a witness in the within action.
Rule 3.7(b), which states that "[a] lawyer may not act as advocate before a tribunal in a matter if ... (1) another lawyer in the lawyer's firm, is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client," N.Y. Comp.Codes R. & Regs., tit. 22, § 1200.29(b)(1), may arguably be applicable to the within motion. However, whether disqualification is necessary under this Rule would be merely speculative at this point. Accordingly, while disqualification is not currently warranted, should this action not be dismissed, as recommended in the accompanying Report and Recommendation issued this same date, plaintiff is permitted to renew her motion for disqualification when additional facts are available as to relevance and any applicable privileges relating to such testimony.
For the foregoing reasons, plaintiff's motion to disqualify Proskauer pursuant to Rule 3.7 is denied.
IV. Disqualification on the Ground that Proskauer may be Named as a Defendant
Plaintiff's second ground for disqualification is that she may name Proskauer and/or one or more of its members or employees as defendants in the within action. (Pl.'s Mot. to Disqualify ¶ 30.) However, pursuant to 28 U.S.C. § 1654, "[i]n all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Id. Accordingly, Proskauer is permitted to represent itself, as well as its client, in any action where it is a defendant, in the absence of some inherent conflict or other basis for disqualification. Cf. Bottaro, 680 F.2d at 898 (finding that a plaintiff attorney's law firm could represent both the plaintiff and other parties in the action); Theobald v. Botein, Hays, Sklar & Herzberg, 465 F. Supp. 609, 610 (S.D.N.Y.1979) ("The statute expressly permits [the defendant law firm] ... to defend the case by members of its organization, including some who would be called as witnesses. This clear statutory provision cannot be set aside by provisions in codes of professional responsibility....").
At this juncture, the naming of Proskauer as a defendant is mere speculation. Notwithstanding this, merely naming Proskauer as a party does not require the firm's disqualification.
V. Disqualification on the Ground that Plaintiff may Seek Discovery from Proskauer
Plaintiff further asserts that she intends to "demand discovery [from] members and employees of the Proskauer Rose LLC firm, and the firm itself," (Pl.'s Mot. to Disqualify ¶ 29), and she "will be severely prejudiced if [she] cannot access the members and employees of the firm, and its records," due to Proskauer's invocation of the attorney-client privilege. (Id. ¶ 32.) However, as Proskauer correctly points *305 out, "Proskauer's role as counsel in this case has no bearing on [the plaintiff's] ability to obtain discovery from the firm." (Def.'s Mem. of Law in Opp'n to Pl. Mot. to Disqualify 8.)
Attorney-client communications between Proskauer and its former client are privileged, and would remain so, regardless of whether Proskauer represents Charterhouse in this action. See Al-Turki v. Fenn, Nos. 90CIV.4470, 89CIV.6217, 1995 WL 231278, at *3 (S.D.N.Y. Apr. 18, 1995) ("Information does not lose its privileged status simply because the attorney-client relationship has terminated."). Conversely, assuming relevance, documents not covered by the attorney-client privilege will be subject to potential disclosure regardless of whether Proskauer is acting as trial counsel for Charterhouse. Therefore, plaintiff's anticipated need to seek discovery from Proskauer fails to serve as a ground for disqualification.
VI. Disqualification on the Ground of an Appearance of Impropriety
Plaintiff's final argument is that Proskauer should be disqualified under Canon 9 of the ABA Model Code to "avoid even the appearance of impropriety." (Pl.'s Mem. of Law in Supp. of Mot. to Disqualify 2.) "The Second Circuit has repeatedly warned, however, that Canon 9, standing alone, does not warrant attorney disqualification in this Circuit." Bass Pub. Ltd. Co. v. Promus Co. Inc., No. 92-CIV-0969, 1994 WL 9680, at *9 (S.D.N.Y. Jan. 10, 1994) (citing Int'l Elecs. Corp. v. Flanzer, 527 F.2d 1288, 1295 (2d Cir.1975)) (additional citations omitted). Canon 9 "should not be used promiscuously as a convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules." Flanzer, 527 F.2d at 1295.
In the present action, the plaintiff fails to demonstrate the "appearance of impropriety" on any of her asserted grounds, discussed supra. "[I]t would be downright perverse to hold that what has been held not to exist nonetheless `appears.'" Bennett Silvershein Assocs., 776 F.Supp. at 806; see also Adams v. Village of Keesville, No. 8:07-CV-452, 2008 WL 3413867, at *11 (N.D.N.Y. Aug. 8, 2008) ("[T]here is no need to be concerned about other kinds of ethical violations that merely constitute an appearance of impropriety when the proof is `simply too slender a reed.'") Given that the plaintiff's asserted grounds for disqualification are devoid of substance, merely relying on Canon 9 is insufficient to warrant the disqualification of Proskauer in this action.
CONCLUSION
For the foregoing reasons, plaintiff's motion to disqualify defendant Charterhouse Group International's counsel, Proskauer Rose LLP, is denied.
Defendants' counsel is directed to serve a copy of this Order on plaintiff upon receipt.
SO ORDERED.
NOTES
[1] The Court is grateful for the assistance of Fei Wang, a summer intern and first-year law student at Northwestern University School of Law, for her assistance in the preparation of this Memorandum Opinion and Order.
[2] Plaintiff alleges that Charterhouse participated in a conspiracy with the other defendants to fraudulently seize control of the Neenah facility to the enrichment of the defendants, (compl. ¶ 34), and that, as a result, the Trusts that plaintiff seeks to represent suffered a severe loss of equity in the approximate amount of $5.85 Million, or approximately $125 Million dollars below the then current appraised liquidation value of the Neenah facility. (Id. ¶ 38.)
[3] There were four Proskauer attorneys who represented Cellu Tissue in connection with the acquisition-Stephen W. Rubin, Lisa A. Chiappetta, Jack B. Spizz and Scott Rutsky. (Smith Decl., Oct. 31, 2008, ¶ 3.)
[4] While some courts have held that the appearance of a corporate entity pro se is "at all times a nullity," Frayler v. N.Y. Stock Exchange, Inc., 118 F. Supp. 2d 448, 450 n. 2 (S.D.N.Y.2000); see also Galt v. Sealand Serv., Inc., No. 87-CV-1038, 1989 WL 69907, at *1, 1989 U.S. Dist. LEXIS 7018, at *1-2 (N.D.N.Y. June 12, 1989) ("The pro se appearance by an officer of a corporation is a nullity inasmuch as a corporation ... may sue and be sued only through the agency of an attorney."), there is nothing in 28 U.S.C. § 1654 that declares the commencement of an action by a corporate entity acting pro se to be "void ab initio." See In re Interiors of Yesterday, LLC, 284 B.R. 19, 25 (Bankr.D.Conn.2002) (determining by relying, in part, on 28 U.S.C. § 1654, that voluntary bankruptcy petition by an artificial entity appearing pro se was not "void ab initio"). Although the general rule is "to dismiss any action or motion filed by a corporation purporting to act pro se," Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 192 (2d Cir.2006); Oberstein v. SunPower Corp., No. 07-CV-1155, 2008 WL 630073, at *2, 2008 U.S. Dist. LEXIS 16937, at *6 (E.D.N.Y. Mar. 5, 2008); Grace v. Rosenstock, No. 85-CV-2039, 2004 U.S. Dist. LEXIS 29654, at *20 (E.D.N.Y. Oct. 4, 2004), some courts have permitted the corporate entity additional time to obtain counsel in lieu of a dismissal with prejudice. See, e.g., Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir.2007) (per curiam) (denying limited liability company's appeal without prejudice and allowing it forty-five days to obtain counsel); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 23 (2d Cir.1983) (affirming district court's dismissal of pro se corporation's complaint unless corporation obtained counsel within forty-five days); Sharp v. Bivona, 304 F. Supp. 2d 357, 365 (E.D.N.Y.2004) (affording corporate pro se plaintiff thirty days to obtain counsel and noting that failure to do so would result in dismissal). In the within action, however, permitting plaintiff time to obtain counsel to appear on behalf of the Trusts she purports to represent pro se would be an exercise in futility since the claims she seeks to assert fail as a matter of law, as discussed in the accompanying Report and Recommendation with respect to defendants' motion to dismiss, issued this same date.
[5] Since the new Rules were enacted in April 2009, there are few cases interpreting them. Rather, other courts to confront this issue recently have applied the former Code to the disqualification issue before them. See, e.g., Tradewinds Airlines, Inc. v. Soros, No. 08 Civ. 5901, 2009 WL 1321695, at *4 n. 3, 2009 U.S. Dist. LEXIS 40689, at *12 n. 3 (S.D.N.Y. May 20, 2009) (applying former New York Code of Professional Responsibility to defendant's motion to disqualify "because it applied at the time of the conduct at issue"); Skyline Travel, Inc. v. Skylink Travel, Inc., No. 08 Civ. 991, 2009 WL 1119418, at *2, 2009 U.S. Dist. LEXIS 39717, at *5-6 (S.D.N.Y. Apr. 23, 2009) (applying former New York Code of Professional Responsibility to disqualification motion). Here, whether the Code or the Rules are applied, the result is the same.
[6] Instead of relying on the New York ethical rules, the plaintiff cites to ABA Model Rule 3.7(a) to support her position. (Pl.'s Mem. of Law in Supp. of Mot. to Disqualify 3.) Model Rule 3.7(a), which provides that "[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness," A.B.A. Model Rules of Prof'l Conduct, R. 3.7(a) (6th ed.2007), is analogous to New York Rule of Professional Conduct 3.7 and former DR 5-102(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2592619/ | 37 N.Y.2d 193 (1975)
In the Matter of Michael P. Grace, Respondent,
v.
New York State Tax Commission, Appellant.
Court of Appeals of the State of New York.
Argued May 1, 1975.
Decided June 12, 1975.
Louis J. Lefkowitz, Attorney-General (Francis V. Dow, Ruth Kessler Toch and Vincent P. Molineaux of counsel), for appellant.
Walter J. Rockler for respondent.
Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
*194Chief Judge BREITEL.
In an article 78 (CPLR) proceeding, the State Tax Commission appeals from a judgment, denominated an order, of the Appellate Division modifying its determination. The commission had determined that, under article 16 of the Tax Law governing personal income tax, taxpayer was not entitled in reporting his 1955 State taxable income to deduct full amortization of bond premiums paid by him in excess of the face value of corporate bonds purchased by him. The Appellate Division modified, holding that taxpayer was entitled to such a deduction.
The issue is whether, absent authorization by statute or regulation, a taxpayer may claim a deduction from taxable income.
There should be a reversal. Absent authorization by statute or regulation, a taxpayer is not entitled to deductions against taxable income. Section 360 of the Tax Law and applicable regulations, in effect in 1955, did not authorize a deduction for the amortization of bond premiums for individual taxpayers.
Taxpayer purchased for investment purposes Appalachian Electric Power Company 3 1/8% Series 1977 bonds, aggregating $1,050,000, by paying a premium of $105,000 over the face value. Taxpayer amortized the full premium and claimed a *195 deduction in his 1955 State tax return. On December 11, 1958, the State Department of Taxation and Finance notified taxpayer that an additional tax of $7,697.96 was due on his 1955 State income tax, predicated on a net increase on audit in his taxable income of $109,970.88. Taxpayer disputed two of the items which the Department of Taxation and Finance had disallowed, the deduction for the amortization of the bond premiums, and another no longer challenged by taxpayer.
A premium may be paid for a bond because of a relatively high nominal interest rate. Bond premium consists of the excess of the price of bonds over their face value, and generally reflects the difference between the nominal interest rate borne by such bonds and the actual or effective rate of return determined by the current market. When a premium has been paid for a bond, the nominal interest perforce exceeds the actual or effective rate of return (see, generally, Hanover Bank v Commissioner, 369 US 672, 677). Hence, the nominal interest paid includes economically a partial return of capital investment. Under State tax procedure in 1955, premium was treated as part of the purchase price of the bond and would be so treated in calculating gain or loss when the bonds were later sold or redeemed. There was no provision in the Tax Law or the regulations of the Tax Department at that time authorizing full or annual amortization of bond premiums and deduction as an offset against taxable income.
True, the Internal Revenue Code and Federal Regulations since 1942 have authorized as deductible the amortization of bond premiums (see Internal Revenue Code of 1954, § 171; 56 US Stat 822-823; Treas Reg, 26 CFR 1.171-1). However, conformity of New York State income tax with Federal income tax law was not in effect until 1960, and thus did not apply to the year 1955 (see NY Const, art III, § 22; L 1960, ch 563, § 1). Hence, taxpayer's claim for a deduction must rest upon applicable State tax law in effect for the year when the deduction was claimed.
The burden of proof to overcome tax assessments rests upon the taxpayer (see Matter of Young v Bragalini, 3 N.Y.2d 602, 605 [opn per BURKE, J.]; Matter of Hillman v State Tax Comm., 30 AD2d 362, 364; Matter of Calder v Graves, 261 App Div 90, 94-95, affd 286 N.Y. 643). If there are any facts or reasonable inferences from the facts to sustain it, the court must confirm the Tax Commission's determination. Thus, a determination of the Tax Commission will not be disturbed by *196 the courts unless shown to be erroneous, arbitrary or capricious (see, also, People ex rel. Maloney v Graves, 289 N.Y. 178, 180; People ex rel. Hull v Graves, 289 N.Y. 173, 177; People ex rel. Freeborn & Co. v Graves, 257 App Div 587, 590).
It is often said, but sometimes misapplied in oversimplification, that "A statute which levies a tax is to be construed most strongly against the government and in favor of the citizen. The government takes nothing except what is given by the clear import of the words used, and a well-founded doubt as to the meaning of the act defeats the tax" (People ex rel. Mutual Trust Co. v Miller 177 N.Y. 51, 57; Matter of Voorhees v Bates, 308 N.Y. 184, 188; see Matter of American Cyanamid & Chem. Corp. v Joseph, 308 N.Y. 259, 263; American Locker Co. v City of New York, 308 N.Y. 264, 269; cf. Gould v Gould, 245 US 151, 153). The principle is, however, applicable only in determining whether property, income, a transaction or event is subject to taxation. Thus, in each of the cases cited above, the issue was whether taxpayer's affairs were subject to the taxing statute at all (see People ex rel. Mutual Trust Co. v Miller, 177 N.Y. 51, 53, supra [corporate franchise tax]; Matter of Voorhees v Bates, 308 N.Y. 184, 187-188, supra [unincorporated business tax]; Matter of American Cyanamid & Chem. Corp. v Joseph, 308 N.Y. 259, 262, supra [sales tax]; American Locker Co. v City of New York, 308 N.Y. 264, 267, supra [sales tax]; Gould v Gould, 245 US 151, 153, supra [individual income tax]).
When, however, it is undisputed that the taxpayer's income is subject to the taxing statute, but he claims an exemption from taxation, a different rule applies. An exemption from taxation "must clearly appear, and the party claiming it must be able to point to some provision of law plainly giving the exemption" (People ex rel. Savings Bank of New London v Coleman, 135 N.Y. 231, 234; see Matter of Young v Bragalini, 3 N.Y.2d 602, 605-606, supra). Indeed, if a statute or regulation authorizing an exemption is found, it will be "construed against the taxpayer", although the interpretation should not be so narrow and literal as to defeat its settled purpose (see Engle v Talarico, 33 N.Y.2d 237, 240; People ex rel. Watchtower Bible & Tract Soc. v Haring, 8 N.Y.2d 350, 358; People ex rel. Mizpah Lodge v Burke, 228 N.Y. 245, 247-248). This is because an exemption is not a matter of right, but is allowed only as a matter of legislative grace (cf., e.g., Colgate v Harvey, 296 US 404, 435).
*197A deduction is functionally a particularized species of exemption from taxation. Analytically, the distinction is not unlike that between conditions precedent and conditions subsequent. The same rules apply, however, and, indeed, in language the same as that applied to exemptions. "Whether and to what extent deductions shall be allowed depends upon legislative grace; and only as there is clear provision therefor can any particular deduction be allowed. * * * Obviously, therefore, a taxpayer seeking a deduction must be able to point to an applicable statute and show that he comes within its terms" (New Colonial Co. v Helvering, 292 US 435, 440; cf., also, Deputy v du Pont, 308 US 488, 493; Lenkin v District of Columbia, 461 F.2d 1215, 1225; see, generally, 85 CJS, Taxation, § 1099, at p 772). The burden is on the taxpayer seeking the deduction to establish his right to it (see Matter of United States Trust Co. v Gilchrist, 210 App Div 527, 532).
In the instant case, there was no statute or regulation in effect in 1955 authorizing individuals to amortize and deduct bond premiums under the State's personal income tax. True, a deduction was allowed by franchise tax statute for amortization of bond premiums paid by banks and other financial institutions (see Tax Law, § 219-z, subd 9; § 219-tt, subd 3-a). A deduction for amortization was also allowed by regulation for fiduciaries (see 20 NYCRR Part 252 [applicable for 1955]). Nowhere, however, was there provision for such a deduction by individual taxpayers. Although it is argued that it is inequitable to allow a deduction to financial institutions and fiduciaries, and not to individuals, "allowance of deductions from gross income does not turn on general equitable considerations" (Deputy v du Pont, 308 US 488, 493, supra).
Moreover, the distinction between financial institutions and fiduciaries on the one hand and individual taxpayers on the other is not without rational basis. Financial institutions and fiduciaries are obliged by substantive law to segregate capital and income in order to meet their legal obligations and maintain the integrity of capital investment and yet not diminish the return to those entitled to income. The individual taxpayer has no such substantive legal obligation. He is free to adjust his capital and income accounts to preserve and distinguish his reserve assets from the profits and avails of those assets chosen by him to be expendable without let.
Absent a provision authorizing a deduction, taxpayer was not entitled to amortize and deduct the premium paid by him *198 on the purchases of corporate bonds in reporting his 1955 taxable income. Hence, taxpayer has not sustained his burden of proving his right to such a deduction, and the determination of the Tax Commission cannot be said to be erroneous, arbitrary or capricious.
Accordingly, the judgment of the Appellate Division should be reversed, with costs, the determination of the Tax Commission confirmed, and the petition dismissed.
Judgment reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900325/ | COURT OF APPEALS
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
SCOTT ROBERT LEGGETT,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
'
'
'
'
'
No. 08-01-00015-CR
Appeal from the
County
Criminal Court No. 7
of Dallas
County, Texas
(TC#
MB99-34395-H)
O P I N I O N
This is an appeal from a conviction
for the offense of driving while intoxicated.
Trial was to the court upon a plea of not guilty to the offense, and the
court assessed the punishment at 180 days= confinement in the Dallas County
Jail probated for two (2) years and a fine of $600. We affirm the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
At trial, the State offered the
testimony of Officer Timothy Cassout who was employed
by the Irving Police Department. Cassout testified that while on duty on December 11, 1999
shortly after 1 a.m., he observed Appellant driving his vehicle on the inside
lane and swerved over towards the middle lane with both passenger side tires
crossing over the lane. He then made an
abrupt, jerking lane change back into his original inside lane. Cassout continued
to follow Appellant and Appellant kept weaving from line to line inside the
lane. From these observations, Cassout inferred three things: Appellant could have car problems, a
distraction in the vehicle, or he could be intoxicated. Cassout initiated a
traffic stop. According to Cassout=s testimony, there was a Amoderate@ odor of alcohol from inside the
vehicle and the Appellant had Abloodshot@eyes. Cassout then asked Appellant for his driver=s license but he produced a credit
card instead. When Appellant corrected
the problem, Cassout conducted sobriety tests. Cassout concluded
that Appellant was intoxicated and placed him under arrest. Cassout
also testified that he pulled Appellant over on a sloped terrain and the
weather was windy. Additionally, there
was not much traffic when Appellant was pulled over and that, in fact, the
officer=s vehicle was the only vehicle on the
highway. Appellant=s condition was orderly and his
speech was not slurred.
Torrie Hollis, witness for Appellant,
testified that she was a passenger in Appellant=s vehicle when he was pulled
over. Hollis met with Appellant earlier
that evening and spent the evening with him
According to Hollis, Appellant had five drinks over the course of a
six-hour evening, which included dinner and dancing. Hollis also said that Appellant showed no
signs of intoxication, such as stepping on her feet or speeding when he was
driving. She did not notice Appellant
weave or drive unsafely. Hollis related
that the painted traffic lanes at that stretch of road were faded and were
difficult to see.
II. DISCUSSION
In his sole issue, Appellant asserts
that the trial court erred in failing to grant his motion to suppress the
evidence in that the facts do not support that the stop by the officer was
reasonable.
In reviewing a trial court's ruling,
an appellate court must first determine the applicable standard of review. The amount of deference a reviewing court
affords to a trial court's ruling on a mixed question of law and fact often is
determined by which judicial actor is in a better position to decide the issue. See Guzman v. State, 955 S.W.2d
85, 87 (Tex. Crim. App. 1997). If the issue involves
the credibility of a witness, thereby making the evaluation of that witness's
demeanor important, compelling reasons exist for allowing the trial court to
apply the law to the facts. See id. In other situations, if the issue is whether
an officer had probable cause to seize a suspect under the totality of the
circumstances, the trial judge is not in an appreciably better position than
the reviewing court to make that determination.
See id. Therefore,
although due weight should be given to the inferences drawn by trial judges and
law enforcement officers, determinations of reasonable suspicion and probable
cause should be reviewed de novo on appeal.
See id.
In a hearing on a motion to suppress,
the trial judge is the sole trier of fact, and he or
she may choose to believe or disbelieve any or all of the witnesses'
testimony. See Romero v. State,
800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Under Guzman, we must give great
deference to the trial court's ruling to the extent that it involved an
evaluation of the credibility of witnesses or an evaluation of their
demeanor. Because the trial court
overruled Appellant's motion to suppress, we will presume that the judge found
the police officer's testimony credible.
However, we will review the issue of "reasonable suspicion" de
novo. See Guzman, 955 S.W.2d at
87.
The reasonableness of a temporary
detention must be examined in terms of the totality of the circumstances and
will be justified when the detaining officer has specific articulable
facts, which taken together with rational inferences from those facts, lead him
or her to conclude that the person detained actually is, has been, or soon will
be engaged in criminal activity. Woods
v. State, 956 S.W.2d 33, 38‑39 (Tex. Crim.
App. 1997). When a detention is based
upon conduct by the suspect, the conduct need not itself be unlawful or in some
sense inconsistent with innocence.
Innocent behavior will frequently provide the basis for a showing of
probable cause or reasonable suspicion and in making a determination of
probable cause or reasonable suspicion, the relevant inquiry is not whether
particular conduct is innocent or criminal, but the degree of suspicion that
attaches to particular types of noncriminal
acts. Id. at 38. Also, objective facts, meaningless to the
untrained, when used by trained law enforcement officers can be combined with
permissible deductions from such facts to form a legitimate basis for suspicion
of a particular person. Id. at 37‑38.
Appellant maintains that because
there were no other cars save Cassout=s police vehicle on the road that
morning, there was nothing to indicate that Appellant=s actions were unsafe or that anyone
was placed in danger. Further, Appellant
asserts that the testimony concerning the faded lane lines indicated that it
was impossible to commit the offense.[1] Therefore, there was no reasonable basis for
stopping Appellant=s vehicle. In support
of his argument, Appellant cites Hernandez v. State 983 S.W.2d
867 (Tex. App.--Austin 1998, pet. ref=d) and State v. Tarvin 972 S.W2d 910 (Tex. App.--Waco 1998, pet ref=d).
The reasoning of these cases, however, does not support Appellant=s argument. The decision in Hernandez rested
heavily on the officer=s testimony that he was concerned only about the driver=s Awell being@ not whether he believed the driver
was intoxicated. Hernandez, 983
S.W.2d at 870. In Tarvin,
the court noted that the officer never testified that he was conducting an
investigatory stop, or whether there were other infractions, or any other
suspicious activity that would justify a stop. Tarvin,
972 S.W.2d at 912. Moreover, Appellant
erroneously relies on Ehrhart v.
State, 9 S.W.3d 929, 930 (Tex. App.--Beaumont 2000, not pet.) because in
that case there was no evidence by either officer that the driving was made
unsafe. Here, Officer Cassout testified that Appellant made an abrupt jerk back
into his own lane after weaving into another.
He was then seen to weave back and forth within his lane. In Gajewski
v. State, 944 S.W.2d 450, 453 (Tex. App.--Houston 14th Dist. 1997, no
pet.), the court held:
We decline to interpret section 545.060 so as to
permit a driver to weave throughout all lanes of traffic so long as no other
vehicles are in the immediate vicinity . . . .
The fact that no other cars were around appellant at the time he was
weaving may be a defense to a traffic citation.
However, it does not negate a stop based on reasonable suspicion that
the driver of the motor vehicle has lost control of his mental and physical
faculties by the ingesting of alcohol and/or drugs. Traffic laws are designed to protect not only
the safety of other persons in other vehicles, but also the safety of the
driver in question.
Id. at 453.
In the present case, the fact that no
other cars were around and there was testimony that the lane lines were faded
may be a defense to a traffic citation, however, these factors do not nullify a
reasonable suspicion the driver of the vehicle has lost control of his mental
and physical faculties due to the ingesting of alcohol or drugs. We do not agree with Appellant that crossing
a dividing lane with both right wheels, abruptly jerking the vehicle back into
the lane and then weaving within that lane is indicative of safe operation of
the vehicle. Accordingly, we overrule
Appellant=s sole issue on appeal.
Having overruled Appellant=s sole issue on appeal, we affirm the
judgment of the trial court.
August
26, 2002
RICHARD
BARAJAS, Chief Justice
Before
Panel No. 2
Barajas,
C.J., McClure, and Chew, JJ.
(Do
Not Publish)
[1] Tex. Transp. Code
Ann. ' 545.060 (Vernon 1999). Driving on Roadway Laned
for Traffic, provides:
(a) An operator on a roadway divided into two or more
clearly marked lanes for traffic:
(1) shall drive as nearly as practical entirely within
a single lane; and
(2) may not
move from the lane unless that movement can be made safely. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1876901/ | 247 S.W.3d 607 (2008)
STATE of Missouri, Respondent,
v.
Ramiro PINTOR-DIAZ, Appellant.
No. ED 89086.
Missouri Court of Appeals, Eastern District, Division Three.
March 18, 2008.
*608 Margaret M. Johnston, Columbia, MO, for appellant.
Jeremiah W. Nixon, Jayne T. Woods, Jefferson City, MO, for respondent.
Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J.
ORDER
PER CURIAM.
Ramiro Pintor-Diaz ("Defendant") appeals from the judgment of the trial court entered after a jury convicted him of felony child abuse in violation of section 568.060 RSMo.2000. The trial court sentenced Defendant to a term of seven and one-half years' imprisonment in the Missouri Department of Corrections.
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 opinion for their information only, setting forth the facts and reasons for this order.
The judgment of the trial court is affirmed in accordance with Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2249344/ | 76 Cal. Rptr. 2d 911 (1998)
65 Cal. App. 4th 1069
George FURLA, Plaintiff and Appellant,
v.
JON DOUGLAS COMPANY et al., Defendants and Respondents.
No. B101455.
Court of Appeal, Second District, Division Four.
July 29, 1998.
Rehearing Denied August 21, 1998
*912 Bridgford, Knottnerus & Gleason, Richard K. Bridgford, Newport Beach, and John S. Gleason, for Plaintiff and Appellant
Haight, Brown & Bonesteel, Roy G. Weatherup, Santa Monica, Rita Gunasekaran, Stephen M. Caine, Sherwood & Hardgrove, Kenneth M. Hardgrove, Santa Monica, Chet Cramin, and Russell Iungerich, Los Angeles, and Donald B. Serafano, Long Beach, for Defendants and Respondents.
Certified for Partial Publication.[*]
CHARLES S. VOGEL, Presiding Justice.
INTRODUCTION
Plaintiff George Furla (plaintiff) purchased a residence from defendant Leonard Krasinski (Krasinski), whose real estate agent was defendant Marni Shore (Shore), an associate of defendant Jon Douglas Company. Claiming that defendants misrepresented to him the size of the residence as being approximately 5500 square feet, when in reality it was only approximately 4300 square feet, plaintiff brought this action for damages for intentional misrepresentation and concealment, negligent misrepresentation and negligence, and for rescission. The trial court granted summary judgment for defendants on the grounds that defendants did not know the house was substantially less than 5500 square feet, defendants had reasonable grounds to believe the house was 5500 square feet, defendants breached no duty toward plaintiff in failing to discover the house was not 5500 square feet, and plaintiff did not justifiably rely on any representations by defendants. We reverse, finding there are triable issues of fact as to some of the causes of action.
FACTS
In order to complete a narrative essential to understanding of the case, we summarize certain evidence produced by all the parties.[1]
Krasinski listed for sale his home in the Mount Olympus area of Los Angeles. According to an advertising flyer, it was originally listed at $1,850,000. It was listed with defendants at $1,275,000 and later marked down to $995,000.[2] Defendants listed the property in the Multiple Listing Service. The description in the Multiple Listing Service included, "APX: 5500," meaning approximately 5500 square feet. At the bottom of the listing was stated, "Information Deemed Reliable But Not Guaranteed."
Defendant Shore obtained the information that the house was 5500 square feet from Krasinski's daughter, Larisa Rappaport. Rappaport told Shore that the architectural plans used to construct the property stated the house was 5500 square feet.[3] Shore relied on this information from Rappaport in submitting it to the Multiple Listing Service. Shore declared that in her several visits to and visual inspections of the property *913 she saw no indication that the house was not 5500 square feet She declared that at no time prior to close of escrow did she hear or have reason to believe the house was not 5500 square feet.
Plaintiff, who has a baccalaureate degree in business administration from the University of Southern California, is self-employed as a stock trader. He decided to diversify by investing in residential real estate. He was looking for bargains or distress sales. He previously bid on two properties in Beverly Hills which were in foreclosure, but his bids were rejected as too low. His theory of investing in real estate was to find bargains on a per square foot basis. His prior two bids on the Beverly Hills properties were based on square footage, after he obtained comparable sales information from a broker.
In the present transaction plaintiff was represented by Karen Martinez, a friend of a friend, who was employed as a real estate agent by Fred Sands Realtors, acting as agent exclusively for the buyer.[4] Martinez brought to plaintiffs attention the subject property in Mount Olympus. When plaintiff visited the property for the first time, he picked up the flyer (which did not mention square footage) and a copy of the Multiple Listing Service listing (which did mention approximately 5500 square feet). Plaintiff testified at deposition that upon this first visit, Shore or her partner Chris Anderson orally mentioned 5500 square feet in their description of the house's features.[5] Plaintiffs agent Martinez also obtained for plaintiff a computerized "property profile," apparently through a title insurance company, which gave information on tax assessments and property characteristics, including "SQR/FT: 5500." The property profile included a notation, "The accuracy of the above information is deemed reliable but is not guaranteed."
On June 16, 1993, plaintiff made a written offer to purchase Krasinski's property. The printed "real estate purchase agreement and receipt for deposit" which plaintiff signed contained the following provisions: Paragraph 18F stated, "PROPERTY LINES/ SIZE.... Buyer is ... aware that Broker[[6]] makes no representations with respect to the boundary lines, encroachments from or on the Property or the square footage of the subject lot or the improvements thereon. Information, if any, on square footage provided in the Multiple Listing Service, including, without limitation room sizes, and information materials concerning the Property are approximations only. By obtaining a survey of the Property or having a professional appraiser measure the Property, Buyer may verify actual ... square footage. Such verifications may be obtained as part of paragraph 11 above." Paragraph 11A stated, "PHYSICAL INSPECTION. This Agreement is contingent upon buyer's approval of the physical condition of the Property. BROKER STRONGLY RECOMMENDS THAT BUYER EMPLOY A LICENSED CONTRACTOR, ENVIRONMENTAL INSPECTOR, BUILDING INSPECTOR, STRUCTURAL ENGINEER OR OTHER PROFESSIONAL(S) AT BUYER'S EXPENSE TO INSPECT AND INVESTIGATE THE PROPERTY...." Paragraph 11C stated, "CONTINGENCIES/BUYER'S DUTIES. Seller shall make the Property available to inspection(s) and investigation(s) by Buyer pursuant to this paragraph 11.... BUYER IS ADVISED THAT UNDER CIVIL CODE SECTION 2079.5, BUYER HAS AN INDEPENDENT LEGAL DUTY TO USE REASONABLE CARE TO PROTECT BUYER CONCERNING FACTS ABOUT THE PROPERTY WHICH ARE KNOWN TO BUYER, OR WITHIN BUYER'S DILIGENT ATTENTION AND OBSERVATION."[7]
*914 On June 17, 1993, the parties negotiated further and reached agreement on a price of $935,000. Plaintiff accepted Krasinski's written counteroffer, modified to state that price. Neither plaintiffs written offer nor the counteroffer contained any express provisions representing that the property was 5500 square feet or conditioning the sale upon the square footage. Paragraph 25 of the agreement provided in part, "All prior written or oral agreements between the parties concerning the subject matter of this Agreement are superseded by this Agreement which constitutes the entire contract between the parties. The terms of this Agreement are intended by the parties as a final, complete and exclusive expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous written or oral agreement."
Plaintiffs version of the final negotiations was as follows: The parties present during those negotiations were plaintiff, Krasinski, plaintiffs agent Martinez, and possibly Krasinski's agent Anderson. Plaintiff held a large calculator in his hand. Plaintiff said aloud, "`Okay, 5500 square feet, I'll pay $170 a foot.'" Plaintiff entered those numbers into his calculator and held up the resulting figure of $935,000, and said that was his best offer. Krasinski accepted it.
During escrow plaintiff did not take advantage of his right to have the house measured for its square footage. Plaintiff did obtain a professional home inspection and a geologist's report, but the home inspector did not include, nor was he requested to include, square footage measurements in his report to plaintiff.
During escrow plaintiff suffered buyer's remorse and wondered if he had paid too much per square foot. Apparently in response to plaintiffs concerns, Anderson during the escrow period sent plaintiff a fax listing four other properties in Mount Olympus showing their approximate square footage and selling price, breaking these down on a per square foot basis ranging from $235 per square foot to $180 per square foot. Plaintiff thereafter closed escrow and took possession on July 30, 1993.
In February 1995 plaintiff decided to sell the property. He interviewed several realtors for listing it. When John Parks of Prudential California Realty came to the house and plaintiff stated it was 5500 square feet, Parks immediately responded, "There is no way this house is 5500 square feet.'" Parks stepped it off informally and concluded the living area was about 4130 square feet In his declaration submitted with plaintiffs opposition to summary judgment Parks opined that "a knowledgeable realtor would easily recognize that the residence is substantially less than 5,500 square feet"
Plaintiff then obtained measurements by two professional real estate appraisers. Wayne Scott declared that the gross living area was 4615 square feet, and he opined, "a cursory inspection of the property would reveal that the residence has considerably less then 5,500 square feet of gross living area." Daniel R. Bone measured the gross living area as 4437 square feet.
Although Shore relied upon information from Rappaport that the architectural plans stated the square footage was 5500, defendants did not offer into evidence a declaration from Rappaport Krasinski declared that based on the architectural plans he believed the square footage was 5334. He lodged with the court a copy of the architectural plans, which stated a square footage of 5334. Krasinski also provided a copy of a "cost breakdown" from the contractor, which stated, "Size S.F. estimated cost `A' 5.350." Plaintiff produced from City of Los Angeles records a copy of the October 1989 application for inspection of new building and for certificate of occupancy, which stated a square footage of 5334. Plaintiff also produced a December 1989 application for inspection to add-alter-repair-demolish and for certificate of occupancy, which described the proposed alteration as reducing the floor area by 200 square feet.
Records of the Los Angeles County Assessor for 1991-1992 described the square footage as 5500. The notes of the assessor, apparently as of May 22, 1991, indicate "New res[.] Unable to get plans. Called broker[. *915 A]pprox[.] # of res[.] 5500...."[8] The assessor's figure was apparently picked up in the "property profiles" provided by title insurance companies. Plaintiff received one of these from his agent Martinez. Similarly, Tom Dotson relied on one of these property profiles when in May 1993 he did a "driveby" (i.e., without entering and measuring) "Freddie Mac" appraisal for Krasinski and listed the square footage as 5500. Defendant Shore received a copy of Dotson's appraisal, which tended to corroborate Shore's belief that the house was 5500 square feet.
During the escrow period plaintiffs mortgage lender, Merrill Lynch Credit Corporation, had the property appraised. The appraisal report, by Philip F. Sarazen of "The Appraisal Office," appraised the value as of July 9, 1993, at $935,000. That report included a diagram and measurements of the upper and lower levels and an estimate that the square footage was 4311 (2595 on level 1 plus 1716 on level 2). But plaintiff was not provided a copy of that report until this litigation. During escrow plaintiffs lender told him that all plaintiff needed to know was that the property appraised for $935,000. Likewise, plaintiffs agent Martinez had no timely knowledge of the information in that appraisal.[9]
DISCUSSION
Standard of Review
Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, not to decide the merits of the issues themselves. (Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46.) Whether the papers raise a triable issue of material fact is reviewed de novo by the appellate court, unbound by the trial court's decision. (Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 579, 37 Cal. Rptr. 2d 653.)
Negligence and Negligent Misrepresentation
With regard to plaintiffs causes of action based on negligence or negligent misrepresentation, the trial court concluded that defendants had reasonable grounds to believe the house was 5500 square feet, defendants breached no duty toward plaintiff in failing to discover the house was not 5500 square feet, and plaintiff did not justifiably rely on defendants' representations.
All these issues involve questions of fact which ordinarily would preclude summary judgment. (Civ.Code, § 1574; see Wilbur v. Wilson (1960) 179 Cal. App. 2d 314, 316-317;, 3 Cal. Rptr. 7701 Miller & Starr, Cal. Real Estate (2d ed.1989) [hereafter Miller & Starr] § 1:117, p. 383 & fn. 65.) We reject defendants' contention that this is the rare case on which no reasonable minds could differ. (Cf. Guido v. Koopman (1991) 1 Cal. App. 4th 837, 843, 2 Cal. Rptr. 2d 437.) We conclude the trial court erroneously resolved disputed issues instead of merely spotting them.
Negligent misrepresentation is a form of "actual fraud," consisting of "[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true." (Civ.Code, § 1572, subd. 2.)
A real estate broker or salesperson has a statutory duty toward a prospective purchaser of residential real property "to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective purchaser all facts materially affecting the value or desirability *916 of the property that an investigation would reveal...." (Civ.Code, § 2079, subd. (a).) A real estate agent also has a statutory liability for negligence: "[i]f an agent ... places a listing or other information in the multiple listing service, that agent ... shall be responsible for the truth of all representations... of which that agent ... had knowledge or reasonably should have had knowledge to anyone injured by their falseness or inaccuracy." (Civ.Code, § 1088.)
Shore declared that she and Jon Douglas Company relied upon a statement by Larisa Rappaport that the architectural plans showed 5500 square feet; but Shore and Jon Douglas Company did not produce any declaration by Larisa Rappaport; and the architectural plans submitted in evidence contradicted this claim, showing only 5334 square feet, not 5500 square feet Shore declared that she could not tell from a visual inspection of the property that it was substantially less than 5500 square feet, but plaintiff contradicted this claim with expert declarations that a reasonably competent real estate agent should reasonably have known from a visual inspection that the house was substantially less than 5500 square feet. This conflicting evidence raised a triable issue of fact for the jury whether Shore and Jon Douglas Company had a reasonable basis for believing the house to be 5500 square feet, or breached their statutory duty by failing to observe from a visual inspection that the property was not as represented in the Multiple Listing Service.
Krasinski suggests that he never misrepresented the square footage as 5500, and he declared that he believed the square footage was 5334 based on the architectural plans. Even assuming that the architectural plans gave Krasinski a reasonable basis to believe the square footage was 5334, and that as a layperson he would not reasonably have known from a visual inspection that even 5334 was a substantial exaggeration, there are circumstances under which Krasinski, having obtained the benefit of the sale, could be liable as principal for a misrepresentation by his agent Shore and Jon Douglas Company. (Civ.Code, § 2338 [liability of principal for agent's negligent misrepresentations]; 2 Miller & Starr, supra, § 3:31, p. 182 & fn. 9 [same]; cf. Herzog v. Capital Co. (1945) 27 Cal. 2d 349, 353, 164 P.2d 8 [integration clause may protect innocent seller from tort damages for agent's negligent misrepresentations, but will not prevent rescission and will not protect seller from liability for seller's own conduct].) Krasinski may have known that his agent represented the square footage as 5500 (which is more than 5334) in the Multiple Listing Service.
Defendants contend there is no triable issue of fact and as a matter of law plaintiff did not reasonably rely upon the misrepresentations, and plaintiff unreasonably failed to exercise due care for his own interest as buyer. They contend plaintiff was repeatedly warned by language in the Multiple Listing Service and the sales agreement that statements concerning square footage were approximations only, and that plaintiff could obtain accurate determinations of square footage by a professional pursuant to the buyer's right to inspect the property. But whether a plaintiff reasonably relied on a defendant's misrepresentations or failed to exercise reasonable diligence is also ordinarily a question of fact for the trier of fact. (1 Miller & Starr, supra, § 1:117, p. 383 & fn. 65.) We conclude it is likewise a triable issue of fact here.
Ordinarily a buyer is entitled to rely upon a seller's representations concerning the area of the property being sold, and is not required to hire an expert to discover the falsity of the seller's representations. (Richard v. Baker (1956) 141 Cal. App. 2d 857, 861-862, 297 P.2d 674; Piazzini v. Jessup (1957) 153 Cal. App. 2d 58, 61;, 314 P.2d 1961 Miller & Starr, supra, § 1:118, p. 400.) On the other hand, a buyer is not relieved of "the duty to exercise reasonable care to protect himself or herself, including those facts [sic] which are known to or within the diligent attention and observation of the buyer" (Civ.Code, § 2079.5); and a buyer is held to be aware of obvious and patent conditions. (Tarrant v. Butler (1960) 180 Cal. App. 2d 235, 240, 241-242, 4 Cal. Rptr. 230 [buyer was not required to hire an expert to determine if the builder "used a 2" × 4" (when he) should have used a 2" × 6"," but was on notice from *917 glaring oddities that the building could not be in compliance with code]; 1 Miller & Starr, supra, § 1:118, p. 388.)
Whether the buyer unreasonably failed to protect himself and unjustifiably failed to discover true conditions depends upon all the circumstances. (1 Miller & Starr, supra, § 1:118, p. 389.) This presents an issue of fact for the trier of fact. A jury might reasonably conclude that plaintiff was justified in relying on defendant's representation of the square footage, that the truth was not obvious and patent to plaintiff and could be determined only by an expert measurement which plaintiff was not required to hire in order to discover defendants' misrepresentations.
Defendants' Arguments Based on Contract Language
Defendants point out that the sale agreement contains no explicit term conditioning sale upon the representation the house was 5500 square feet, and that paragraph 18F provides: "Buyer is ... aware that Broker makes no representations with respect to ... square footage of the subject lot or the improvements thereon. Information, if any, on square footage provided in the Multiple Listing Service, including, without limitation room sizes, and information materials concerning the Property are approximations only. By obtaining a survey of the Property or having a professional appraiser measure the Property, Buyer may verify actual ... square footage." In addition, paragraph 25 provides in part, "All prior written or oral agreements between the parties concerning the subject matter of this Agreement are superseded by this Agreement which constitutes the entire contract between the parties. The terms of this Agreement are intended by the parties as a final, complete and exclusive expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous written or oral agreement." Defendants contend in various ways that these provisions preclude plaintiff from arguing that defendants made any representation as to square footage which could subject defendants to liability.
Preliminarily, as pointed out by plaintiff at oral argument, the clause in paragraph 18F, "Broker makes no representations," does not literally apply to defendants. "Broker" is defined in the agreement as Fred Sands Realtors, who was plaintiffs agent exclusively for the buyer, and who is not a party to this litigation. Literally paragraph 18F states only that plaintiffs agent makes no representations, and does not state that Krasinski, Shore, or Jon Douglas Company makes no representations. The record does not explain why the agreements contained no similar disclaimer in favor of defendants.
Nevertheless, Shore and Jon Douglas Company say they are not relying upon this language as "an exculpatory clause" excusing them from their own negligence. Rather, they and Krasinski contend this shows that the square footage of the house was not a material term of the contract, and that plaintiff was at least on notice that prior statements of square footage were "approximations only." Shore and Jon Douglas contend that, as a matter of law, they cannot be liable for making an erroneous approximation. They further contend that plaintiffs action amounts to an impermissible attempt "to vary or contradict" the terms of the written sale agreement, in violation of the parol evidence rule and paragraph 25. We are not persuaded.
Parol evidence is inadmissible only if it "contradicts" the integrated written agreement. (Code Civ. Proc., § 1856, subd. (a); Banco Do Brasil, SA. v. Latian, Inc. (1991) 234 Cal. App. 3d 973, 1001, 1003, 285 Cal. Rptr. 870.) Assuming that paragraph 18F put plaintiff on notice that prior statements of square footage were approximations only, it is still a question of fact for a trier of fact whether plaintiff reasonably relied upon defendants' approximations. Defendants assume that if their prior estimates of square footage are treated as approximations, defendants cannot be liable. They say an "accurate approximation" is an "oxymoron," or in any event an approximation is an "opinion" rather than representation of a "fact." But according to plaintiffs theory of the case, the estimate of 5500 square feet was not merely inaccurate, it was grossly inaccurate, by more than 20 percent. Defendants' own citation *918 of a dictionary definition of "approximate" includes "near to; about; a little more or less; close." The alleged error here was not de minimis, and cannot be ignored. We cannot say that no reasonable jury could conclude that an "approximation" of square footage which is wildly exaggerated amounts to an actionable misrepresentation of fact
A statement couched as an opinion, by one having special knowledge of the subject, may be treated as an actionable misstatement of fact. (Doran v. Milland Development Co. (1958) 159 Cal. App. 2d 322, 325, 323 P.2d 792 [statement by owner's salesman that foundation was properly built]; Brady v. Carman (1960) 179 Cal. App. 2d 63, 68, 3 Cal. Rptr. 612 [real estate agent's opinion concerning significance of an easement on the property].) Whether a statement is nonactionable opinion or actionable misrepresentation of fact is a question of fact for the jury. (Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal. App. 3d 206, 212, 85 Cal. Rptr. 39; Davis v. Monte (1927) 81 Cal. App. 164, 170, 253 P. 352; BAJI No. 12.32 (8th ed.1994).) Given the rule that an owner of real property is presumed to know the size of the property and that a buyer is ordinarily entitled to rely upon the owner's representation of size without having to hire an expert to discover its falsity (Piazzini v. Jessup, supra, 153 Cal. App. 2d 58, 61, 314 P.2d 196), a jury could reasonably find that a grossly erroneous "approximation" of size is an actionable misrepresentation. (See O'Hara v. Western Seven Trees Corp. (1977) 75 Cal. App. 3d 798, 805, 142 Cal. Rptr. 487 [representation by owners/operators that apartment complex was "safe" could be construed not as mere opinion, where given by "one with presumed expert knowledge"].)
Summary Adjudication of Other Causes of Action[**]
Intentional Misrepresentation, Concealment, Punitive Damages[**]
Rescission[**]
DISPOSITION
The judgment is reversed. The trial court is directed to enter orders on summary adjudication consistent with the views expressed herein and to conduct such further proceedings as are necessary. Costs on appeal are awarded to appellant
EPSTEIN and HASTINGS, JJ., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the subparts labeled "Summary Adjudication of Other Causes of Action," "Intentional Misrepresentation, Concealment, Punitive Damages," and "Rescission."
[1] Krasinski points out that the trial court sustained an objection to plaintiffs declaration, to the extent it contradicted statements in plaintiff s deposition. We summarize based on plaintiffs deposition.
[2] The flyer lists the following features: "Finest, quality construction, glorious living room, luxurious master suite, three family bedrooms, maids room and bath, den with wet bar, four fireplaces, light and bright, spacious and very chic, banquet size dining room, huge gourmet kitchen, breakfast room, large family room, pool and spa, one and one-half years new, peaceful canyon views." At the bottom it states, "Above information from sources deemed reliable but not guaranteed."
[3] Rappaport and her husband were the owners when the house was constructed. Shore obtained information from Rappaport because Krasinski did not speak fluent English.
[4] Plaintiff, on the advice of his counsel, elected not to sue Martinez or Fred Sands Realtors. They are not parties.
[5] Chris Anderson died before this litigation and was not served as a defendant.
[6] "Broker" is defined in the introductory paragraph of the agreement as Fred Sands Realtors, plaintiff's agent.
[7] The escrow instructions subsequently signed by the parties contained similar provisions. The escrow instructions recited that Jon Douglas Company is the listing agent acting as agent of the seller exclusively, and that Fred Sands Realtors is the selling agent acting as agent of the buyer exclusively.
[8] The "broker" as of May 1991 is unidentified. The record indicates that Jon Douglas Company's listing was signed in September 1992.
[9] Plaintiff intimates that defendants' agent Anderson had knowledge of this information. Plaintiff cites hearsay testimony by Martinez that she had a conversation with Anderson in which Anderson indicated he opened the property for the appraiser. This was properly objected to and stricken as hearsay. In any event it does not show that Anderson had knowledge of the appraiser's estimate of total square footage.
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2242761/ | 736 N.E.2d 758 (2000)
D.K., Appellant-Respondent,
v.
STATE of Indiana, Appellee-Petitioner.
No. 47A05-9912-JV-542.
Court of Appeals of Indiana.
September 25, 2000.
*759 Michelle L. Woodward, Haury & Woodward, Bedford, Indiana, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
OPINION
DARDEN, Judge
STATEMENT OF THE CASE
D.K. appeals his adjudication as a delinquent child for having committed an act which would be a class B misdemeanor if committed by an adult, namely the possession in his vehicle of a police radio.[1]
We reverse.
*760 ISSUE
Whether the trial court erroneously denied D.K.'s motion to suppress.[2]
FACTS
Around four o'clock in the morning on January 30, 1999, Officer Michael Johnson of the Bedford Police Department observed seventeen year old D.K. drive his vehicle through an intersection without stopping, as required by a stop sign at the intersection. Officer Johnson then followed D.K. and determined that he was exceeding the speed limit. Officer Johnson activated his emergency lights and stopped D.K for having disregarded the stop sign and for speeding.
Officer Johnson approached D.K.'s car and asked D.K. for his license and registration. According to Officer Johnson, D.K. initially refused to roll down his window. After Officer Johnson knocked on the window "again," (R. 67), D.K. rolled down the window and provided the license and registration. Officer Johnson noted that D.K. had two passengers one in the passenger seat and one in the back seat. Both passengers avoided eye contact with Officer Johnson. When Officer Johnson returned to his patrol car, D.K. and both passengers repeatedly turned and looked back at him. As Officer Johnson was "running a check" on the license and registration, he received a radio message from the county sheriff's department advising that D.K. had a police radio in his vehicle.
Officer Johnson went back to D.K.'s vehicle and advised D.K. that he would not cite him and gave him a verbal warning. Then, because Officer Johnson "wanted to see a response" from D.K., (R. 71), he asked him "if he had any illicit narcotics or weapons within the vehicle at that time and if I could conduct" a search of D.K.'s vehicle. (R. 58). D.K. "said he didn't have any on him but he wasn't sure if his friends that were with him had any on them," (R. 59), and Officer Johnson "would need a search warrant for that." (R. 59). At that point, Officer Johnson "believe[d] there [was] something awry inside this vehicle." (R. 71-72).
Therefore, Officer Johnson, a certified canine officer, retrieved his service canine, "Ingus," from the squad car and walked it around D.K.'s car twice. Each time, Ingus alerted (by sitting) at the driver's door. Officer Johnson advised D.K. that the dog's alerts "established probable cause for our entry into his vehicle without his consent or a search warrant due to the ... exigent circumstances exception pertaining to vehicle stops because it was mobile." (R. 61). A second officer from the Bedford Police Department, Major Steven Haley, had arrived by then. Based upon the alerts by Ingus, Officer Johnson and Major Haley searched the inside of D.K.'s car. A police scanner radio was found under the console between the driver's seat and the passenger seat. However, no drugs or weapons were found in the car.
D.K. was alleged to be a delinquent child for having committed an act, which if committed by an adult, would be the class B misdemeanor of unlawful possession of a police radio. D.K. filed a motion to suppress, claiming the seizure of the police radio "was a direct result of an illegal search and seizure of [his] vehicle." (R. 22). After hearing testimony as to the foregoing facts, the trial court denied D.K.'s motion, holding that Officer Johnson "had a valid reason to stop [D.K.]" and a canine sweep around a vehicle "is not a search." (R. 99). The trial court then proceeded to find that D.K. had committed the act of unlawful possession of a police radio, a class B misdemeanor if committed by an adult.
DECISION
As we recently explained,
The Fourth Amendment to the United States Constitution guarantees "`the right of the people to be secure in their *761 persons ... against unreasonable search and seizures.'" Parker v. State, 697 N.E.2d 1265, 1267 (Ind.Ct.App.1998). Generally, a search must be reasonable and conducted pursuant to a properly issued warrant. Id. When a search is conducted without a warrant, the State bears the burden of proving the search was justified under one of the limited exceptions to the warrant requirement. Id. Pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 911 (1968), police may without a warrant stop an individual for investigatory purposes if, based upon specific, articulable facts, the officer has a reasonable suspicion that criminal activity "may be afoot." Id. at 27, 88 S.Ct. 1868. Such reasonable suspicion must be comprised of more than an officer's general "hunches" or unparticularized suspicions. Id. We consider the totality of circumstances in determining whether the police had reasonable suspicion to believe there was criminal activity afoot. Carter v. State, 692 N.E.2d 464, 467 (Ind.Ct.App.1997).
Webb v. State, 714 N.E.2d 787, 788 (Ind.Ct. App.1999). On appeal of a trial court's ruling on a motion to suppress, we consider de novo whether such "reasonable suspicion" existed. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); see also Burkett v. State, 691 N.E.2d 1241, 1244 (Ind.Ct.App. 1998), trans. denied.
The United States Supreme Court has held that "stopping an automobile and detaining its occupants constitute a `seizure' within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention is quite brief." United States v. Hill, 195 F.3d 258, 263 (6th Cir. 1999), cert. denied, (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). An ordinary traffic stop is akin to an investigative detention, and the principles announced in Terry apply. Id. at 264. The Terry investigative detention should "last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Therefore, once the purpose of the initial traffic stop has been completed, an officer cannot "further detain the vehicle or its occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995).
D.K. directs us to Cannon v. State, 722 N.E.2d 881 (Ind.Ct.App.2000), trans. denied, wherein we held that without more, mere "nervousness" exhibited by a driver upon a traffic stop does not create the requisite level of reasonable suspicion for a law enforcement officer to detain a vehicle for a canine sniff test. The State responds by noting that more than D.K.'s nervousness gave rise to Officer Johnson's suspicions. It refers us to the following facts: commission of traffic offenses, time of night and D.K.'s juvenile status, initial failure to roll down the window, the occupants' nervousness, failure to make eye contact and turning to look at the officer, and the information about D.K.'s possession of a police radio in the vehicle.
We consider these facts in turn. We note that Officer Johnson did not cite D.K. for the traffic offenses; nor did he cite him for a curfew violation. As to the initial failure to roll down the window, subsequently doing so should have dispelled any suspicion that this act would reveal the odor of narcotics. Officer Johnson testified that most people are nervous during a traffic stop. As to the failure to make eye contact, it seems likely that direct eye contact by all the occupants could also have been interpreted negatively by the officeras exhibiting hostility. As to the occupants' turning around to look at him, no suggestion has been made as to how this indicates the likelihood of illegal activity. Finally, Officer Johnson testified that the information about a police radio in D.K.'s car had "no[thing] whatsoever" to *762 do with his asking D.K. about weapons or narcotics in the vehicle. (R. 70). Upon reviewing these facts articulated by Officer Johnson, facts existing before the officer informed D.K. that there would be no traffic citation, we do not find them to create a reasonable suspicion of criminal activity to support continued detention for investigation.
Subsequent to Officer Johnson's giving D.K. a verbal warning, the only new circumstance that could have led him to have a reasonable suspicion thereafter (having found no basis for such reasonable suspicion upon the facts existing prior thereto) is exactly what Officer Johnson said constituted the basis for his having conducted the canine sniff: D.K.'s answer to his inquiry about whether drugs or weapons were present in the vehicle and whether he could conduct a search. D.K. denied having any drugs or weapons, said he did not know whether his friends had weapons or narcotics, and told Officer Johnson he would need a search warrant. D.K. essentially refused to consent to a voluntary search, and such cannot serve as the basis for a reasonable suspicion that criminal activity was taking place i.e., that a Terry investigation was warranted.
The refusal to consent voluntarily to a search cannot be "considered in determining reasonable suspicion." United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir.1998) (citing Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389 (1991)); Royer, 103 S.Ct. at 1324; Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 2637, 2640-41, 61 L.Ed.2d 357 (1979); United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993). As the Tenth Circuit commented, any other rule "would make mockery of the reasonable suspicion" requirement by letting a "citizen's insistence that searches and seizures be conducted in conformity with constitutional norms ... create the suspicion or cause that renders their consent unnecessary." Id. at 1351.
Officer Johnson testified that the law permits him to conduct a canine search around a car at his discretion. (R. 71). The trial court denied D.K.'s motion to suppress because the initial traffic stop was valid and a canine sweep around a vehicle "is not a search." (R. 99). Both of the foregoing conclusions are impermissibly broad. As the State notes, despite the holding of United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), that a canine sweep is not a search within the meaning of the Fourth Amendment, Hill, 195 F.3d at 270, requires that upon the completion of a traffic stop, the officer must have reasonable suspicion of criminal activity in order to proceed thereafter with an investigatory detention. Thus, the critical fact is whether at the time of the continued detention there is reasonable suspicion.[3]
In Kenner v. State, 703 N.E.2d 1122, 1127 (Ind.Ct.App.1999), trans. denied, we held that the officer's suspicion of illegal activity aroused by the detection of the odor of marijuana continued after (1) the speeding citation was written, and (2) the motorist was informed that the traffic stop was over. Therefore, the earlier detection of that odor provided the reasonable suspicion that the vehicle contained narcotics, allowing a detention for a canine sniff after the completion of the traffic stop. Id. at 1125. In Cannon, we expressly held that Terry-level reasonable suspicion was a necessary predicate to a canine sniff after a traffic stop.
Here, the facts articulated by Officer Johnson for detaining D.K. after giving him a verbal warning for the traffic offenses *763 (the purpose of the stop) consist of no more than "unparticularized suspicions," see Webb, 714 N.E.2d at 789, and a refusal to voluntarily consent to a search cannot be considered to constitute grounds for suspicion. See Hunnicutt, 135 F.3d at 1350. The facts articulated do not form the basis for Terry-level reasonable suspicion to detain D.K. further in order to conduct a canine sniff of his vehicle. Therefore, the sniff of D.K.'s vehicle was unreasonable. See Webb. D.K.'s motion to suppress admission of the police scanner found as a result thereof should have been granted.
We reverse.
MATTINGLY, J. and BROOK, J., concur.
NOTES
[1] See Ind.Code § 35-44-3-12.
[2] We heard oral argument in this case on August 30, 2000, in Indianapolis.
[3] Although federal law refers to conducting a canine sniff of a vehicle without individualized reasonable suspicion of drug-related activity, it does so in the context of a "lawfully detained" or "legitimately detained" vehicle. United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir.1990); United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998). Where the traffic stop has been concluded and there is an absence of reasonable suspicion at that point, there is no longer a legal detention. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1427999/ | 86 Cal.Rptr.2d 855 (1999)
980 P.2d 407
21 Cal.4th 28
CATES CONSTRUCTION, INC. et al., Plaintiffs, Cross-defendants and Appellants,
v.
TALBOT PARTNERS et al., Defendants, Cross-complainants and Respondents;
Tig Insurance Company, Plaintiff, Cross-defendant and Appellant,
v.
Talbot Partners et al., Defendants, Cross-complainants and Respondents.
No. S061215.
Supreme Court of California.
July 29, 1999.
Rehearing Denied September 29, 1999.
*857 Law Offices of William J. Allard and William J. Allard, West Los Angeles, for Plaintiff, Cross-defendant and Appellant Cates Construction, Inc.
Bryan Cave; William I. Chertok, Santa Monica; Bottum & Feliton, Steve Johnson,
*858 Jerry Garcia; Horvitz & Levy, Barry R. Levy, Daniel J. Gonzalez, Ari R. Kleiman and Andrea M. Gauthier, Encino, for Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Michael A. Mathews for Crum & Forster Insurance as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Long & Levit, Doan A. Lesser and John H. Quinn, San Francisco, for the Association of California Surety Companies as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Busch & Berger, Richard S. Busch and William R. Moore, Calabasas, for Amwest Surety Insurance Company as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Anderson, McPharlin & Conners, G. Wayne Murphy, David T. DiBiase and Mark E. Aronson, Los Angeles, for National Bond Claim Association as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Hugh F. Young, Jr.; Mayer, Brown & Platt, Evan M. Tager and Donald M. Falk, Wash., D.C., for Product Liability Advisory Council, Inc., as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Sonnenschein Nath & Rosenthal, Paul E.B. Glad and Cheryl Dyer Berg, San Francisco, for Alliance of American Insurers, Fireman's Fund Insurance Company and National Association of Independent Insurers as Amici Curiae on behalf of Plaintiff, Cross-defendant and Appellant TIG Insurance Company.
Wright, Robinson, Osthimer & Tatum and Peter C. Haley for American Insurance Association and the Surety Association of America as Amici Curiae on behalf of Plaintiffs, Cross-defendants and Appellants.
John S. Alevra, Santa Barbara; Marcus M. Kaufman; Armand Arabian; Shoop & Leanse, Paul Shoop, Malibu; Buchalter, Nemer, Fields & Younger and Bernard E. LeSage, Los Angeles, for Defendants, Cross-complainants and Respondents Talbot Partners and PAA Interpro.
Price, Postel & Parma, J. Terry Schwartz, Christopher E. Haskell, Santa Barbara; Esner, Higa & Chang, Andrew N. Chang, San Francisco, and Stuart B. Esner, Los Angeles, for Defendants, Cross-complainants and Respondents Bank of Montecito and Mountain Financial Corporation.
BAXTER, J.
This case presents issues relating to the contract and tort liability of a commercial surety to a real estate developer under a bond guaranteeing the contract performance of a general contractor on a multimillion dollar condominium construction project. For the reasons set forth below, we conclude that the bond at issue contractually obligates the surety to pay damages attributable to the general contractor's failure to promptly and faithfully perform its contract obligations by the agreed date. We further conclude that, as a matter of law, the developer may not recover in tort for the surety's breach of the covenant of good faith and fair dealing implied in the performance bond. In light of these conclusions, we reverse the judgment of the Court of Appeal insofar as it affirmed the underlying award of tort damages for breach of the implied covenant and permitted an award of punitive damages.
FACTUAL AND PROCEDURAL BACKGROUND
The following background is taken in large part from the Court of Appeal opinion.
In 1989, Talbot Partners (Talbot) hired Cates Construction, Inc. (Cates) to build a condominium project in Malibu on property purchased by Talbot for $1 million. *859 The construction contract called for Cates to complete the project and have it ready for occupancy in eight months. Talbot received financing for the construction through the Bank of Montecito (the bank). The financing was secured by a deed of trust on the property and was conditioned on the issuance of a performance bond in favor of the bank.
At the time the construction contract was signed, Talbot required Cates to furnish a performance bond and a labor and materials payment bond. Transamerica Insurance Company (Transamerica),[1] a commercial surety company, issued the bonds in favor of Talbot as obligee and the bank as co-obligee. Talbot paid the $27,000 premium on the bonds. Transamerica and Cates also executed an indemnity agreement which allowed Transamerica to recover from Cates all good faith disbursements made under the bonds.
Construction on the project began on May 1, 1989. Cates and Talbot agreed to various extensions on the completion date. At trial, Talbot waived any claim for damages through June 1, 1990.
A fund control agreement required Cates to submit monthly applications to Talbot for reimbursement of costs incurred. Funds were to be disbursed only after review of the requests by Talbot and the bank and after confirmation of the progress of the work. During the course of construction, Cates submitted 22 payment requests which were paid as submitted. The 23rd request, submitted in early November of 1990, was not paid because both Talbot's and Cates's records showed that Talbot had already paid several hundred thousand dollars more than the cost of work. After attempts to resolve disagreements failed, Cates threatened to abandon the project as of December 4, 1990, unless additional amounts were paid.
On November 29, 1990, six months after the contract should have been completed, Talbot advised Transamerica that Cates intended to default and that Talbot already had paid everything it owed under the contract. Talbot demanded that Transamerica perform under the bond. In December, Cates abandoned the project and recorded a mechanic's lien in the amount of $645,367.
After many discussions among the parties, on January 9, 1991, Transamerica informed Talbot of its position that Talbot had breached the contract by failing to make payments. Transamerica refused to intercede or arrange for performance of the contract, claiming a legitimate dispute existed between Cates and Talbot. Correspondence and communications continued.
On February 14, 1991, Cates, at Transamerica's request, gave Talbot notice of its voluntary default. Also in February, Cates assigned its rights against Talbot to Transamerica. On March 1, 1991, Talbot and the bank informed Transamerica that as a result of the delayed completion of the construction contract, Talbot was in default on its loans and the bank was proceeding to foreclose. At that time there was over $935,000 in mechanics' liens against the project, including Cates's lien.
On March 14, 1991, by which time Cates was out of business, Transamerica filed this action on Cates's behalf to foreclose on its mechanic's lien. On March 19, 1991, Transamerica began the process of completing the job pursuant to the performance bond.
On May 10, 1991, Transamerica joined as plaintiff in Cates's lawsuit against Talbot, alleging causes of action for breach of the construction contract, foreclosure on the mechanic's lien, and declaratory relief. They later named the bank as a defendant. Talbot cross-complained against Cates for breach of the construction contract and against Transamerica for recovery under the performance bond, breach of that bond and the labor and materials payment bond and breach of the implied covenant of good faith and fair dealing in the performance *860 bond. In December of 1991, the bank cross-complained against Transamerica for breach of the bonds.
On June 18, 1991, the bank foreclosed on the project. At that time, Talbot owed the bank $7,753,282. Construction was not complete and some of the work was defective and required repair. The project also lacked permit sign-offs for certificates of occupancy.
By stipulation of the parties, the contract claims were tried before retired California Supreme Court Justice David Eagleson, sitting without a jury. Justice Eagleson ruled against Transamerica and Cates on all of their causes of action. Those rulings have not been appealed.
On Talbot's cause of action against Cates, Justice Eagleson found that Cates breached the contract by, inter alia, failing to construct the project in good quality and free of defects; charging rates substantially higher than standard local rates; and failing to use the construction funds to pay subcontractors, resulting in mechanics' liens on the project. He determined that all delays beyond June 1, 1990, were caused by Cates, and that if Cates had not breached the contract, the project would have been available for Talbot to sell on or before June 1, 1990.
On Talbot's causes of action against Transamerica, Justice Eagleson made the following findings. Transamerica breached the performance bond by failing to adequately investigate Talbot's declaration that Cates was in default and by joining in the mechanic's lien suit without such an investigation. Had such an investigation occurred, it would have disclosed that Cates was in default, that Cates's abandonment was unjustified, and that at the time of the abandonment, Cates had been paid the full cost of work, plus an additional sum of $267,730, and was owed no further amounts. Transamerica also breached by failing to promptly complete Cates's contract when Cates's default would have been readily apparent after an investigation. Transamerica arbitrarily determined what work it would perform under the performance bond and failed to fully complete Cates's contract. In addition, Transamerica breached the labor and materials payment bond by not promptly paying lien claimants.
Justice Eagleson determined that Transamerica's breaches of the performance bond caused the loss of the project and the damages awarded, and that its breaches of the labor and materials payment bond contributed to Talbot's damages. Transamerica was liable for all damages caused by Cates's breaches of the construction contract, and was not exonerated or excused from performance under the bonds.
Justice Eagleson awarded damages of $3,142,021 in favor of Talbot and against Transamerica and Cates. Of that sum, $2,596,600 represented the difference between the fair market value the project would have had on June 1, 1990, if it had been complete on that date, discounted to take into account the cost of holding and selling the units, and the amount Talbot would have owed the bank on that date.[2] The remainder of the award reflected $276,730, which Cates had overdrawn, and $268,691, which Talbot paid on the project after June 1, 1990.
With regard to the bank's claims, Justice Eagleson found that the bank, as coobligee, had the same rights as Talbot and was owed the same duties by Transamerica. He awarded the bank damages of $1.2 million for impairment of its security interest and $252,295 for Cates's defective work.
After trial of the contract claims, Talbot tried its tort cause of action against Transamerica to a jury before the Honorable William E. Burby, Jr. On Transamerica's motion, the jury was not informed of the findings or the award in the breach of contract trial. The parties also stipulated *861 to compensatory tort damages in the total amount of $1. After hearing evidence regarding the entire course of conduct between all the parties, the jury determined that Transamerica breached the implied covenant of good faith and fair dealing and was guilty of malice and oppression in doing so. The jury awarded $28 million in punitive damages.
The Court of Appeal modified the judgment to reduce the amount of punitive damages to $15 million and remanded to the trial court for a recalculation of prejudgment interest. The judgment was affirmed in all other respects. As relevant here, the Court of Appeal determined that Talbot was properly awarded $2,596,600 against Transamerica for damages attributable to Cates's failure to timely complete the construction contract. The court also determined, based on its conclusion that surety bonds are insurance, that obligees such as Talbot could recover tort damages for breaches of the implied covenant of good faith and fair dealing. Finally, the court found sufficient evidence of malice and oppression to support punitive damages, but reduced the awarded amount to $15 million on federal due process grounds.
DISCUSSION
A surety is "one who promises to answer for the debt, default, or miscarriage of another, or hypothecates property as security therefor." (Civ.Code, § 2787.) A surety bond is a "`written instrument executed by the principal and surety in which the surety agrees to answer for the debt, default, or miscarriage of the principal.'" (Butterfield v. Northwestern National Ins. Co. (1980) 100 Cal.App.3d 974, 978, 161 Cal.Rptr. 280.) In suretyship, the risk of loss remains with the principal, while the surety merely lends its credit so as to guarantee payment or performance in the event that the principal defaults. (Schmitt v. Insurance Co. of North America (1991) 230 Cal.App.3d 245, 257, 281 Cal.Rptr. 261.) In the absence of default, the surety has no obligation. (Ibid.)
This case presents three questions relating to the construction performance bond executed by Cates (the principal) and Transamerica (the surety) in which Transamerica agreed to answer in the event of Cates's default under its construction contract with Talbot (the obligee).[3] First, is Transamerica contractually liable under the performance bond for damages attributable to Cates's failure to complete the project by June 1, 1990? Second, may an obligee recover in tort for a surety's breach of the covenant of good faith and fair dealing in the context of a construction performance bond? Third, if tort recovery is available, is the instant award of $15 million in punitive damages nevertheless excessive in light of the parties' stipulation at trial that Transamerica's tortious conduct resulted in actual damages of $1? We shall address these issues in order.
A. Liability for Damages Caused by Contractor's Delay
Transamerica does not dispute that, under the construction contract, Cates is liable to Talbot for damages of $2,596,600 (representing lost equity) caused by Cates's failure to complete the condominium project by June 1, 1990. At issue, however, is whether Transamerica is liable under the performance bond for those so-called "delay damages." Transamerica disputes liability because the bond, in its view, did not guarantee Cates's prompt performance but merely assured completion of the condominium project in the event of Cates's default. The issue is one of contract interpretation.
Performance bonds, like all contracts of surety, are construed with reference to the same rules that govern interpretation *862 of other types of contracts. (Roberts v. Security T. & S. Bank (1925) 196 Cal. 557, 566, 238 P. 673, overruled on another ground in Peter Kiewit Sons' Co. v. Pasadena City Junior College Dist. (1963) 59 Cal.2d 241, 245, 28 Cal.Rptr. 714, 379 P.2d 18; Civ.Code, § 2837.) To ascertain the nature and extent of Transamerica's liability, we look first to the express terms of the performance bond. (Roberts v. Security T. & S. Bank, supra, 196 Cal. at p. 564, 238 P. 673.) Properly undertaken, construction of a performance bond "`does not mean that words are to be distorted out of their natural meaning, or that, by implication, something can be read into the contract that it will not reasonably bear; but it means that the contract shall be fairly construed with a view to effect the object for which it was given and to accomplish the purpose for which it was designed.'" (Id.) at p. 566, 238 P. 673, citing Sather Banking Co. v. Briggs Co. (1903) 138 Cal. 724, 730, 72 P. 352); see Bloom v. Bender (1957) 48 Cal.2d 793, 803, 313 P.2d 568; Pacific Employers Ins. Co. v. City of Berkeley (1984) 158 Cal.App.3d 145, 152, 204 Cal.Rptr. 387; Southern Cal. First Nat. Bank v. Olsen (1974) 41 Cal. App.3d 234, 241, 116 Cal.Rptr. 4.)
It long has been settled in California that where a bond incorporates another contract by an express reference thereto, "the bond and the contract should be read together and construed fairly and reasonably as a whole according to the intention of the parties." (Roberts v. Security T. & S. Bank, supra, 196 Cal. at p. 566, 238 P. 673; see Airlines Reporting Corp. v. United States Fidelity & Guaranty Co. (1995) 31 Cal.App.4th 1458, 1462, 37 Cal.Rptr.2d 563.) To ascertain the nature and extent of the liability to which the surety has bound itself, courts must "examine the language of the undertaking by the light of the [construction] agreement, faithful performance of the terms of which it guarantees." (Roberts v. Security T. & S. Bank, supra, 196 Cal. at pp. 566-567, 238 P. 673; see Ryan v. Shannahan (1930) 209 Cal. 98, 102, 285 P. 1045; Pacific Employers Ins. Co. v. City of Berkeley, supra, 158 Cal.App.3d at pp. 150-151, 204 Cal.Rptr. 387.) As a general rule, "[t]he obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal...." (Civ.Code, § 2809.)
In this case, the construction contract between Cates and Talbot explicitly contemplated that all time limits specified therein were "of the essence of the Contract." That time was a critical factor was further evidenced in a contractual clause specifying, among other things, that "no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Work ... shall be the basis for any ... change in the Contract Time." The contract further stipulated that, upon Talbot's request, Cates was required to obtain a performance bond in the full amount of the contract sum ($3.9 million) "as security for the faithful performance of the Contract Documents."
The performance bond given by Transamerica stated in clear terms that Cates (as principal) and Transamerica (as surety) agreed to be "held and firmly bound unto" Talbot (as obligee) in the amount of $3.9 million, for the payment whereof Cates and Transamerica agreed to bind themselves "jointly and severally" by the bond. The bond, which expressly referred to the contract between Cates and Talbot and "by reference made [it] a part [t]hereof," declared that the condition of the obligation assumed by Transamerica "is such that, if [Cates] shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect." (Italics added.) The bond further provided: "Whenever [Cates] shall be, and declared by [Talbot] to be in default under the Contract, [Talbot] having performed [Talbot]'s obligations thereunder, [Transamerica] may promptly remedy the default, or shall promptly [¶] 1) Complete the *863 Contract in accordance with its terms and conditions, or [¶] 2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and ... arrange for a contract between such bidder and [Talbot], and make available as Work progresses ... sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof [$3.9 million]." (Italics added.)
Taken together as a whole, the bond and underlying construction contract are fairly and reasonably read as requiring Transamerica to answer for damages suffered by Talbot as a direct result of Cates's failure to promptly and faithfully perform the contract. Although the bond did not explicitly mention the subject of delay damages, Transamerica knew from the construction contract, which had been "made a part" of the bond, that time was "of the essence" of the contract and that the bond's purpose was to provide security for the "faithful" performance of the contract in the event of Cates's default. The bond itself made clear that Transamerica's obligation would become "null and void" only if Cates were to "promptly and faithfully perform said Contract." And notably, the bond specifically called for Transamerica, if the default was not remedied, to either complete or arrange for completion of the contract "in accordance with its terms and conditions" without providing for any exceptions. From such language the parties reasonably could expect that failure to complete the project by the agreed deadline would affect Transamerica's liability to Talbot under the bond.[4] Finally, the bond's reference to "other costs and damages for which the Surety may be liable hereunder" also reflected an understanding that the bond contemplated Transamerica's liability for damages.
Courts in California have not hesitated to find sureties contractually liable for damages attributable to their principals' delay in performing construction contracts. (E.g., Bird v. American Surety Co. (1917) 175 Cal. 625, 631, 166 P. 1009; Tally v. Ganahl (1907) 151 Cal. 418, 424, 90 P. 1049; Pacific Employers Ins. Co. v. City of Berkeley, supra, 158 Cal.App.3d at pp. 150-152, 204 Cal.Rptr. 387 [surety liable for liquidated damages which included amounts occasioned by a principal's delay]; Amerson v. Christman (1968) 261 Cal. App.2d 811, 825, 68 Cal.Rptr. 378; accord, Downingtown Area School Dist. v. International Fidelity Ins. Co. (Pa. Commw.Ct.1996) 671 A.2d 782, 786 [finding that similar bond language may support surety's liability for delay damages].)
Transamerica, however, argues we should adopt the reasoning in American Home Assur. Co. v. Larkin Gen. Hosp. (Fla.1992) 593 So.2d 195 (American Home ), which held that a surety could not be held liable for delay damages unless the bond explicitly so provides. In American Home, the Florida Supreme Court expressed the view that the usual purpose of a performance bond is only to ensure the completion of the construction contract upon the contractor's default. (593 So.2d at p. 198.) In light of that perceived limited purpose, the court construed bond language that obligated the surety to either complete the project or pay the reasonable costs of completion as "clearly explaining] that the performance bond merely guaranteed the completion of the construction contract and nothing more." (Ibid. [rejecting analysis of Amerson v. Christman, supra, 261 Cal.App.2d 811, 68 Cal.Rptr. 378].)
Even assuming, for purposes of argument, that the performance bond in American Home contained language substantially similar to the bond at issue here, we *864 are not persuaded. The Florida court appears to have viewed the purpose of a performance bond narrowly and to have determined the surety's obligations without reference to the underlying construction contract.[5] While that may reflect the rule in Florida (cf. L & A Contracting Co. v. Southern Concrete Services, Inc. (5th Cir.1994) 17 F.3d 106, 112, fn. 23 [commenting that American Home did not turn on the language of the particular bond, but rather stated what was obviously intended to be a general proposition of law]), firmly established California precedent holds otherwise. (Ryan v. Shannahan, supra, 209 Cal. at p. 102, 285 P. 1045; Roberts v. Security T. & S. Bank, supra, 196 Cal. at pp. 566-567, 238 P. 673; Airlines Reporting Corp. v. United States Fidelity & Guaranty Co., supra, 31 Cal.App.4th at p. 1462, 37 Cal.Rptr.2d 563; Pacific Employers Ins. Co. v. City of Berkeley, supra, 158 Cal.App.3d at pp. 150-151, 204 Cal.Rptr. 387.)
Transamerica further suggests that if Talbot had wanted a guarantee covering Cates's delay, then it could and should have used another available standard form of bond expressly stating that the surety would pay "damages caused by delayed performance or nonperformance of the Contractor." (See Am. Inst. Architects, AIA doc. No. A312.) Here, however, the terms of the bond and the incorporated construction contract reflected such a guarantee. That the precise language of the foregoing form was not used is of no consequence.[6]
B. Breach of the Implied Covenant of Good Faith and Fair Dealing
1. Current California Law Regarding Tort Remedies for Breach
By now it is well established that a covenant of good faith and fair dealing is implicit in every contract. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683, 254 Cal.Rptr. 211, 765 P.2d 373 (Foley); Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 940, 132 Cal.Rptr. 424, 553 P.2d 584; Brown v. Superior Court (1949) 34 Cal.2d 559, 564, 212 P.2d 878.) The essence of the implied covenant is that neither party to a contract will do anything to injure the right of the other to receive the benefits of the contract.[7] (Silberg *865 v. California Life Ins. Co. (1974) 11 Cal.3d 452, 460, 113 Cal.Rptr. 711, 521 P.2d 1103; Brown v. Superior Court, supra, 34 Cal.2d at p. 564, 212 P.2d 878.)
Because the covenant of good faith and fair dealing essentially is a contract term that aims to effectuate the contractual intentions of the parties, "compensation for its breach has almost always been limited to contract rather than tort remedies." (Foley, supra, 47 Cal.3d at p. 684, 254 Cal.Rptr. 211, 765 P.2d 373; see Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 94, 44 Cal.Rptr.2d 420, 900 P.2d 669; Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1180, 26 Cal. Rptr.2d 8, 864 P.2d 88 (Hunter).) At present, this court recognizes only one exception to that general rule: tort remedies are available for a breach of the covenant in cases involving insurance policies. (Hunter, supra, 6 Cal.4th at pp. 1180-1181, 26 Cal.Rptr.2d 8, 864 P.2d 88; Foley, supra, 47 Cal.3d at p. 684, 254 Cal.Rptr. 211, 765 P.2d 373.) In the insurance policy setting, an insured may recover damages not otherwis available in a contract action, such as emotional distress damages resulting from the insurer's bad faith conduct (see Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 580, 108 Cal.Rptr. 480, 510 P.2d 1032) and punitive damages if there has been oppression, fraud, or malice by the insurer (see Civ.Code, § 3294).
As our decisions acknowledge, tort recovery in this particular context is considered appropriate for a variety of policy reasons. Unlike most other contracts for goods or services, an insurance policy is characterized by elements of adhesion, public interest and fiduciary responsibility. (Foley, supra, 47 Cal.3d at pp. 684-685, 254 Cal.Rptr. 211, 765 P.2d 373, citing Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 820, 169 Cal.Rptr. 691, 620 P.2d 141 (Egan); see Barrera v. State Farm Mut. Automobile Ins. Co. (1969) 71 Cal.2d 659, 668, fn. 5, 79 Cal.Rptr. 106, 456 P.2d 674.) In general, insurance policies are not purchased for profit or advantage; rather, they are obtained for peace of mind and security in the event of an accident or other catastrophe. (See Foley, supra, 47 Cal.3d at p. 684, 254 Cal.Rptr. 211, 765 P.2d 373; Egan, supra, 24 Cal.3d at p. 819, 169 Cal.Rptr. 691, 620 P.2d 141; Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 434, 58 Cal.Rptr. 13, 426 P.2d 173.) Moreover, an insured faces a unique "economic dilemma" when its insurer breaches the implied covenant of good faith and fair dealing. (Foley, supra, 47 Cal.3d at p. 692, 254 Cal.Rptr. 211, 765 P.2d 373.) Unlike other parties in contract who typically may seek recourse in the marketplace in the event of a breach, an insured will not be able to find another insurance company willing to pay for a loss already incurred. (Ibid.)
In addition, we have observed that the tort duty of a liability insurer ordinarily is based on its assumption of the insured's defense and of settlement negotiations of third party claims. (Crisci v. Security Ins. Co., supra, 66 Cal.2d at p. 432, fn. 3, 58 Cal.Rptr. 13, 426 P.2d 173.) The assumption of those responsibilities obligates the insurer to give at least as much consideration to the welfare of its insured as it gives to its own interests so as not to deprive the insured of the benefits of the insurance policy. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 659, 328 P.2d 198; see Egan, supra, 24 Cal.3d at p. 818, 169 Cal.Rptr. 691, 620 P.2d 141.)
Significantly, this court has never recognized the availability of tort remedies for breaches occurring in the context of a construction performance bond or any other so-called "contract of suretyship." (See Pacific M. & T. Co. v. Bonding & Ins. Co. (1923) 192 Cal. 278, 285, 219 P. 972 [a bond given to guarantee the faithful performance of a contract is a "contract of suretyship"].) It appears only three Court of *866 Appeal decisions General Ins. Co. v. Mammoth Vista Owners' Assn. (1985) 174 Cal.App.3d 810, 220 Cal.Rptr. 291 (Mammoth Vista), Pacific-Southern Mortgage Trust Co. v. Insurance Co. of North America (1985) 166 Cal.App.3d 703, 212 Cal.Rptr. 754 (Pacific-Southern) and Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 234 Cal.Rptr. 835 (Downey) have addressed tort claims in the suretyship setting. Those cases, however, provide little guidance.
In Mammoth Vista, the only one of the three decisions that involved a construction performance bond, the Court of Appeal determined that a surety was subject to liability in tort for violations of Insurance Code section 790.03, subdivision (h), which prohibits unfair and deceptive claims settlement practices in the business of insurance. Mammoth Vista does not aid Talbot's position. In the first place, Mammoth Vista expressly refrained from deciding whether a surety is subject to a common law tort action for breach of the covenant of good faith and fair dealing. (See 174 Cal.App.3d at pp. 822-827, 220 Cal.Rptr. 291.) Second, the availability of tort recovery in the insurance policy cases derives from policy considerations pertaining to the particular characteristics of such contracts and the relationship between the contracting parties; it has never been predicated upon the existence of legislation regulating the insurance business.[8] Finally, Mammoth Vista's reasoning has been undermined by Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58, which held that Insurance Code section 790.03, subdivision (h), does not create a private cause of action in tort against insurers who commit the unfair practices enumerated in that provision.
The other two decisions, Pacific-Southern, supra, 166 Cal.App.3d 703, 212 Cal. Rptr. 754, and Downey, supra, 189 Cal. App.3d 1072, 234 Cal.Rptr. 835, likewise are unhelpful. Both cases involved fidelity bonds, not performance bonds, and the appellate courts there simply found sufficient evidence of bad faith or malicious conduct by the defendant sureties. (Pacific-Southern, supra, 166 Cal.App.3d at pp. 715-716, 212 Cal.Rptr. 754; Downey, supra, 189 Cal.App.3d at pp. 1096-1097, 234 Cal.Rptr. 835.) While both decisions recited the general rule that insurers acting unreasonably and in bad faith toward their insureds are subject to liability in tort, the courts apparently assumed, in the absence of litigation on the point, that the foregoing rule applied in the context of fidelity bonds. Fidelity bonds, however, are two-party contracts between an insurer and an employer that protect against employee dishonesty. It is generally recognized that fidelity bonds resemble traditional contracts of insurance more than surety bonds involving a tripartite relationship between a surety, a principal and an obligee. (See 6 Levy et al., Cal. Torts (1998) § 81.33[3], p. 81-131; 1 Couch on Insurance (3d ed.1995) §§ 1:13, 1:16, pp. 1-25, 1-29 (Couch) [fidelity bond "is essentially *867 one of indemnity for the personal loss to the employer" (fns. omitted) ].)
It is firmly established that the insurance policy cases represent "`a major departure from traditional principles of contract law.'" (Freeman & Mills, Inc. v. Belcher Oil Co., supra, 11 Cal.4th at p. 94, 44 Cal.Rptr.2d 420, 900 P.2d 669, citing Foley, supra, 47 Cal.3d at p. 690, 254 Cal.Rptr. 211, 765 P.2d 373.) Thus, we have cautioned courts to exercise great care in considering whether to extend "`the exceptional approach taken in those cases' to `another contract setting.'" (11 Cal.4th at p. 94, 44 Cal.Rptr.2d 420, 900 P.2d 669.) In Foley, supra, 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, this court rejected the concept of tort recovery for an employer's breach of the implied covenant of good faith and fair dealing. We concluded that "the employment relationship is not sufficiently similar to that of insurer and insured to warrant judicial extension of the proposed additional tort remedies in view of the countervailing concerns about economic policy and stability, the traditional separation of tort and contract law, and... the numerous protections against improper terminations already afforded employees." (Id. at p. 693, 254 Cal.Rptr. 211, 765 P.2d 373.)[9]
The question here is whether the exceptional approach thus far reserved for breaches in the insurance policy setting should be extended to breaches in the context of a surety bond given to assure performance on a construction contract.[10] Talbot argues, in essence, that a performance bond is a form of insurance and that breaches in the performance bond context justify the same extraordinary remedies that are available in insurance policy cases. Transamerica, on the other hand, argues that performance bonds are fundamentally different from insurance policies and fail to warrant similar treatment. We proceed to consider these points.
2. Inclusion of Suretyship in the Insurance Code
As Talbot correctly observes, "Surety" is listed as a separate class of insurance under the Insurance Code. (Ins.Code, § 100, subd. (5).) Performance bonds are listed within that class. (Ins.Code, § 105, subd. (a).)[11]
*868 The Insurance Code defines "Insurance" to mean "a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event." (Ins.Code, § 22, italics added; see also id., § 23 [defining "insurer" as the "person who undertakes to indemnify another by insurance" and "insured" as "the person indemnified"].) In contrast, a surety bond is a contract whereby one promises to answer for the debt, default, or miscarriage of another. (Civ.Code, § 2787; Cal.Code Regs., tit. 10, § 2695.1, subd. (c); Washington Internal Ins. Co. v. Superior Court (1998) 62 Cal. App.4th 981, 989, 73 Cal.Rptr.2d 282, citing Airlines Reporting Corp. v. United States Fidelity & Guaranty Co., supra, 31 Cal. App.4th at p. 1464, 37 Cal.Rptr.2d 563.) Therefore, a surety's posture as to an obligee on a performance bond is not necessarily one of "indemnitor." (See Leatherby Ins. Co. v. City of Tustin (1977) 76 Cal.App.3d 678, 686-687, 143 Cal.Rptr. 153; cf. Airlines Reporting Corp. v. United States Fidelity & Guaranty Co., supra, 31 Cal.App.4th at p. 1464, 37 Cal.Rptr.2d 563 [bond ensuring payment for airline tickets not equivalent to a liability insurance policy].)
Although surety is included within the Insurance Code as a class of insurance, it long has been settled that the parties in surety arrangements have certain rights and defenses that do not attend the typical insurance relationship. For instance, an insurer generally has no right of subrogation against the insured for covered losses even if the insured's negligence contributed to such losses. A surety, however, is entitled to reimbursement from its principal for amounts paid to the obligee upon the principal's default.[12] (Civ.Code, §§ 2847, 2848; Washington Internal. Ins. Co. v. Superior Court, supra, 62 Cal. App.4th at p. 989, 73 Cal.Rptr.2d 282; see Schmitt v. Insurance Co. of North America, supra, 230 Cal.App.3d at pp. 256-257, 281 Cal.Rptr. 261.) Moreover, a surety is entitled to assert as defenses to payment of a surety bond all defenses available to its principal (Civ.Code, § 2810; U.S. Leasing Corp. v. duPont (1968) 69 Cal.2d 275, 290, 70 Cal.Rptr. 393, 444 P.2d 65 ["where the principal is not liable on the obligation, neither is the guarantor"]; Flickinger v. Swedlow Engineering Co. (1955) 45 Cal.2d 388, 394, 289 P.2d 214), as well as its own independent defenses (e.g., Civ.Code, § 2819 [allowing exoneration of a surety "if by any act of the creditor [obligee], without the consent of the surety the original obligation of the principal is altered in any respect"]). The unique substantive aspects of surety relationships and surety bonds are addressed in a number of Civil Code provisions. (See Civ.Code, §§ 2787-2856 [rights and duties of sureties generally].)
Courts have found these and other distinctions relevant in a variety of contexts. One court, for instance, determined that the public policy of denying insurance coverage for willful wrongs (Ins.Code, § 533) is not offended by requiring a surety on a public works payment bond to pay an interest penalty based on the contractor's conduct. (Washington Internal Ins. Co. v. Superior Court, supra, 62 Cal.App.4th at pp. 989-990, 73 Cal.Rptr.2d 282.) Another concluded that a surety has no duty to protect the principal under a motor vehicle dealer's bond as if the principal were an insured under an insurance policy. (Schmitt v. Insurance Co. of North America, supra, 230 Cal.App.3d at p. 258, 281 Cal.Rptr. 261.) A third court held that a particular performance bond ensuring payment for airline tickets was not equivalent to a liability insurance policy that covered theft losses. (Airlines Reporting Corp. v. *869 United States Fidelity & Guaranty Co., supra, 31 Cal.App.4th at p. 1464, 37 Cal. Rptr.2d 563.) Thus, while surety is listed as a class of insurance for regulatory purposes, there is no doubt that it "differs in material respects" from other forms of insurance. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1260, 48 Cal.Rptr.2d 12, 906 P.2d 1112 (Amwest); see generally 1 Couch, supra, § 1:18, p. 1-31; 1 Cal. Insurance Law & Practice (1998) § 1.01[4], p. 1-9 (California Insurance Law).)
Consistent with the Civil Code and the case law, regulations promulgated pursuant to the Insurance Code make special note of the "unique relationship which exists under a surety bond between the insurer [surety], the obligee or beneficiary, and the principal." (Cal.Code Regs., tit. 10, § 2695.1, subd. (c).) They also are explicit in distinguishing suretyship from traditional insurance: "In contrast to other classes of insurance, surety insurance involves a promise to answer for the debt, default or miscarriage of a principal who has the primary duty to pay the debt or discharge the obligation and who is bound to indemnify the insurer." (Ibid.; see also Cal.Code Regs., tit. 10, § 2695.2, subd. (j) [defining "[insurance policy" to exclude "surety bond" or "bond"].)
In recognition of the distinctions between suretyship and traditional insurance, the regulations exempt sureties from the set of standards promoting the prompt, fair and equitable settlement of claims by insurers and instead provide that sureties are governed by a separate set of claims handling and settlement standards. (Cal. Code Regs., tit. 10, § 2695.1, subd. (c).) While some of the standards relevant to sureties are identical or similar to those applicable to insurers (e.g., Code Cal. Regs., tit. 10, § 2695.10, subd. (a) [prohibiting discriminatory claims settlement practices]); id., subd. (c) [requiring written notice to claimants of need for additional time to determine whether a claim should be accepted or denied]; id., subd. (d) [requiring diligent investigation of a claim]), sureties have been excepted from many of those standards. For instance, since a surety typically must sort through the conflicting claims of the principal and the obligee, regulatory standards do not hold a surety to the same 40-day period applicable to insurers for accepting or denying claims but recognize that substantially more time may be appropriate. (Compare Cal.Code Regs., tit. 10, § 2695.7, subd. (b) [40 days for insurers] with id., § 2695.10, subd. (b) [60 days for sureties].) More significantly, a surety is not subject to the standard prohibiting insurers from attempting to settle a claim by making a settlement offer that is "unreasonably low." (Compare Cal.Code Regs., tit. 10, § 2695.7, subd. (g) with id., § 2695.10.) In addition, a surety is not subject to the standard requiring insurers to provide written notice to unrepresented claimants of any statute of limitation or other time period requirement that may be used to defeat a claim. (Compare Cal.Code Regs., tit. 10, § 2695.7, subd. (f) with id., § 2695.10.)
Despite the fact that surety bonds have been distinguished from insurance policies in statutory, regulatory and decisional law, Talbot argues, in effect, that tort remedies for breaches in the performance bond setting are appropriate simply because surety bonds are categorized and regulated as a class of insurance under the Insurance Code. (See Ins.Code, §§ 100, subd. (5), 105, subd. (a).) We disagree.
As one text in the surety field has observed, "[t]he inclusion of suretyship in the Insurance Code is derived from the need for control of the surety business by a state agency and does not imply that the underlying natures of insurance and suretyship are the same." (Conners, supra, § 1.4, p. 6.) The legislative branch is free to regulate suretyship, and, assuming a rational basis, may require sureties and surety bonds to adhere to the same regulations and requirements that apply to insurers *870 and insurance policies.[13] Case law makes clear, however, that tort remedies for breach of the implied covenant are permitted in the insurance policy setting for policy reasons pertaining to the distinctive nature of such contracts and the relationship between the contracting parties. (See Foley, supra, 47 Cal.3d at pp. 684-685, 254 Cal.Rptr. 211, 765 P.2d 373; Egan, supra, 24 Cal.3d at p. 819, 169 Cal. Rptr. 691, 620 P.2d 141; Careau & Co. v. Security Pacific Business Credit, Inc., supra, 222 Cal.App.3d at pp. 1395-1399, 272 Cal.Rptr. 387; Mitsui Manufacturers Bank v. Superior Court (1989) 212 Cal. App.3d 726, 730-731, 260 Cal.Rptr. 793.) Little, if any, significance has been placed on the circumstance that insurers are licensed by the Insurance Commissioner and are subject to Insurance Code regulations.[14] Moreover, while insurers are subject to administrative sanctions for violating statutory prohibitions against unfair and deceptive claims settlement practices (see Ins.Code, §§ 790.03, subd. (h), 790.035, 790.05, 790.07, 790.09), statutory violations do not give rise to a private right of action for tort damages. (Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d 287, 250 Cal.Rptr. 116, 758 P.2d 58.)
In assessing whether the availability of tort remedies should turn on the Insurance Code's inclusion of surety contracts as a class of insurance, we are guided by Estate of Barr (1951) 104 Cal.App.2d 506, 231 P.2d 876 (Barr) and In re Pikush (1993) 157 B.R. 155, affd. (9th Cir.1994) 27 F.3d 386 (Pikush). Those decisions held that the inclusion of a particular contract in the Insurance Code for regulatory purposes does not require its classification as insurance for other purposes.
In Barr, supra, 104 Cal.App.2d 506, 231 P.2d 876, the issue was whether the proceeds of an annuity contract paid by an insurance company to the named beneficiary on the death of the annuitant qualified under California's insurance exemption to inheritance taxation as provided in the Revenue and Taxation Code.[15] Even *871 though section 101 of the Insurance Code explicitly described the term "life insurance" as including "the granting, purchasing, or disposing of annuities," the Barr court recognized that resolution of the exemption question turned on the construction of the Revenue and Taxation Code, which used the terms "insurance policies" and "life insurance" without reference to annuity contracts: "The classification of annuities as life insurance for the purposes of the Insurance Code does not require its classification as insurance for the purposes of the Revenue and Taxation Code, the objects of which are totally different." (104 Cal.App.2d at p. 511, 231 P.2d 876; see also Helvering v. LeGierse (1941) 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 [reaching a similar conclusion in connection with the federal estate tax exemption].)
Similarly, the United States Bankruptcy Appellate Panel of the Ninth Circuit determined in Pikush, supra, 157 B.R. 155, that a debtor under chapter 7 of the Bankruptcy Code could not claim three single-premium annuity contracts as exempt insurance policies pursuant to Code of Civil Procedure section 704.100, subd. (c). Relying in part on Barr, supra, 104 Cal. App.2d 506, 231 P.2d 876, the appellate panel found that the circumstance that the Insurance Code "chooses to license and regulate the `granting, purchasing, or disposing' of annuities in a certain manner should have no bearing on the interpretation of California's [debtor] exemption laws." (Pikush, supra, 157 B.R. at p. 159.)
The same reasoning applies here with equal force. Although suretyship is listed in the Insurance Code as a class of insurance, it does not follow that a surety bond equates to a policy of insurance under the common law or common law theories of liability. Nor does it follow that the unique policy reasons which justify extraordinary remedies in the insurance policy context are similarly implicated for bonds guaranteeing the performance of a commercial construction contract. In short, the mere inclusion of surety arrangements in the Insurance Code should not be determinative of the issue before us. Rather, we must evaluate whether the policy considerations recognized in the common law support the availability of tort remedies in the context of a performance bond. (Foley, supra, 47 Cal.3d at p. 693, 254 Cal.Rptr. 211, 765 P.2d 373.)
3. Policy Considerations
As our decisions explain, tort recovery is considered appropriate in the insurance policy setting because such contracts are characterized by elements of adhesion and unequal bargaining power, public interest and fiduciary responsibility. (Foley, supra, 47 Cal.3d at pp. 684-685, 254 Cal. Rptr. 211, 765 P.2d 373; Egan, supra, 24 Cal.3d at p. 820, 169 Cal.Rptr. 691, 620 P.2d 141; see Barrera v. State Farm Mut. Automobile Ins. Co., supra, 71 Cal.2d at p. 668, fn. 5, 79 Cal.Rptr. 106, 456 P.2d 674.) We now consider whether construction performance bonds are marked by such elements.
a. Adhesion and Unequal Bargaining Power
Unlike the vast majority of insureds who must accept insurance on a "take-it-or-leave-it" basis, "obligees decide the form of the bond which they will accept from the principal, thus they can require terms which provide an incentive to the surety to timely pay claims, such as attorneys' fees and interest." (Shattuck, Bad Faith: Does It Apply to Sureties in Alabama? (1996) 57 Ala. Law. 241, 246 (Shattuck); see Conners, supra, § 1.5, p. 8; Transamerica Premier v. Brighton School (Colo. 1997) 940 P.2d 348, 354 (dis. opn. of Kourlis, J.).) If the obligee does not agree with the terms of the bond secured by the principal, it may consent to a modification *872 of the underlying contract or may end bargaining altogether and seek a different principal whose financial resources and qualifications enable it to procure a bond with acceptable terms. (See generally, Comment, Surety Contractors: Are Sureties Becoming General Liability Insurers? (1990) 22 Ariz. St. L.J. 469, 484.) Hence, obligees generally possess ample bargaining power to negotiate for favorable bond terms.
Moreover, performance bonds typically incorporate the underlying construction contract, the terms and conditions of which have been negotiated by the principal and the obligee without any input from the surety. Because the nature and extent of a surety's obligations under a performance bond are determined with reference to such terms and conditions (Ryan v. Shannahan, supra, 209 Cal. at p. 102, 285 P. 1045; Roberts v. Security T. & S. Bank, supra, 196 Cal. at p. 566, 238 P. 673), bonds do not reflect the adhesion and unequal bargaining power that are inherent in insurance policies.[16]
Finally, many bonds, including the one at issue here, contain an express waiver of certain suretyship defenses, e.g., the right to notice of any alteration or extension of time made by the obligee. (See Civ.Code, § 2856; see Sobel, supra, 21 Cal. Western L.Rev. at p. 131 ["In most bonds today sureties waive notice of alterations or extensions of time for performance given by the owner to the contractor."].) Such waivers may effectively deprive the surety of protection against potentially harmful contractual modifications by the obligee. (See Sobel, supra, 21 Cal. Western L.Rev. at p. 132.)
Consideration of the foregoing factors leads us to conclude that, unlike an insurance policy, the typical performance bond bears no indicia of adhesion or disparate bargaining power that might support tort recovery by an obligee.
b. Public Interest and Fiduciary Responsibility
Our decisions observe that tort remedies are appropriate for breaches in the insurance policy context because insureds generally do not seek to obtain commercial advantages by purchasing policies; rather, they seek protection against calamity. (See Foley, supra, 47 Cal.3d at p. 684, 254 Cal.Rptr. 211, 765 P.2d 373; Egan, supra, 24 Cal.3d at p. 819, 169 Cal.Rptr. 691, 620 P.2d 141; Crisci v. Security Ins. Co., supra, 66 Cal.2d at p. 434, 58 Cal.Rptr. 13, 426 P.2d 173.) But while the typical insurance policy protects an insured against accidental and generally unforeseeable losses caused by a calamitous or catastrophic event such as disability, death, fire, or flood, the general purpose of a construction performance bond "is to protect the creditor [the owner/obligee] against the danger that he will be unable to collect from the debtor [the general contractor/principal] for any failure in the performance of the contract." (Regents of University of California v. Hartford Acc. & Indem. Co. (1978) 21 Cal.3d 624, 639, 147 Cal.Rptr. 486, 581 P.2d 197; see Schmitt v. Insurance Co. of North America, supra, 230 Cal.App.3d at p. 257, 281 Cal.Rptr. 261 [the surety, in essence, "`merely lends its credit so as to guarantee payment in the event that the principal defaults'" on its contract]; 1 Cal. Insurance Law, supra, § 1.01[4], p. 1-10 [same].) In requiring a performance bond, then, the obligee "seeks the commercial advantage of obtaining a contract with the principal which provides additional financial security." (Shattuck, supra, 57 Ala. Law. at p. 246.)
*873 In Foley, supra, 47 Cal.3d 654, 254 Cal. Rptr. 211, 765 P.2d 373, this court indicated that insurance is a "quasi-public" service in the sense that individuals contract with insurance companies "specifically in order to obtain protection from potential specified economic harm." (Id. at p. 692, 254 Cal.Rptr. 211, 765 P.2d 373.) While our words, read in isolation, might suggest that suretyship could qualify as a quasipublic service because a bond may be viewed as offering a form of economic protection, the context of our discussion indicates otherwise.
Foley emphasized that when an insurer in bad faith refuses to pay a claim or accept a settlement offer within policy limits, its insured cannot turn to the marketplace to find another insurance company willing to pay for losses already incurred. (47 Cal.3d at p. 692, 254 Cal.Rptr.2d 211, 765 P.2d 373; see Hunter, supra, 6 Cal.4th at p. 1181, 26 Cal.Rptr.2d 8, 864 P.2d 88.) Our discussion, however, distinguished that type of unique "economic dilemma" from the ordinary sort of situation in which breach of a commercial contract may have merely adverse financial significance to the nonbreaching party.[17] (Foley, supra, 47 Cal.3d at p. 692, 254 Cal.Rptr. 211, 765 P.2d 373.) As another court put it, "[a] contracting party's unjustified failure or refusal to perform is a breach of contract, and cannot be transmuted into tort liability by claiming that the breach detrimentally affected the promisee's business." (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal. App.4th 464, 479, 54 Cal.Rptr.2d 888.)
Although a construction surety's breach of the implied covenant might very well have financial significance for a performance bond obligee, the obligee does not face the same economic dilemma as an insured. In contrast to an insured who typically can look only to the insurer for recovery in the event of a covered loss, an obligee also has a right of recovery against the principal. That right is not a hollow one, for unlike insurance, which contemplates the certainty of losses, sureties do not write performance bonds for principals who appear unable to perform the primary obligation and whose assets are insufficient to meet the contingency of default. (Conners, supra, § 1.4, pp. 6-7; Cushman, Surety Bonds on Public and Private Construction Projects (June 1960) 46 A.B.A.J. 649, 652-653; see Leo, The Construction Contract Surety and Some Suretyship Defenses (1992-1993) 34 Wm. & Mary L.Rev. 1225, 1232 (Leo) ["contract bonds, like loans, are written based on the financial integrity of the principal, premised on the idea that no losses should follow" [fn. omitted]].) Accordingly, an obligee's right of recovery against a principal is, in most cases of default, a meaningful right.
In addition, an obligee may contract with others in the marketplace to obtain completion of its construction project and thereafter recover the reasonable cost of completion against the principal and the surety. (Cf. Bacigalupi v. Phoenix Bldg. etc. Co. (1910) 14 Cal.App. 632, 637, 112 P. 892.) In effect, then, a surety's breach of the implied covenant threatens to create no different a dilemma than that posed by the principal's default on the underlying construction contract.
Moreover, it is common for construction contracts to contain terms that protect an owner's construction funds. Owners and contractors generally structure their contracts to provide for installment payments to the contractor as the work progresses, typically as the work reaches specified stages of completion.[18] (See generally, 11 *874 Cal.Jur.3d, Building and Construction Contracts, § 37, p. 54.) "This payment system adds incentive for the contractor to complete the work and reduces the risk of nonperformance for the owner. A percentage of funds held until completion of all of the work is called retainage and is intended both to reduce the risk of nonperformance by the contractor and to assure the completion of the work in accordance with the contract terms." (Leo, supra, 34 Wm. & Mary L.Rev. at p. 1238.) Progress payments and retainage serve to reduce both the owner's and the surety's risk. (Ibid.)
Thus, if an owner avoids overpaying the contractor as the project progresses, then the owner should have funds available to apply toward completion of the project in the event of the contractor's default.[19] Indeed, when the surety, pursuant to a bond, undertakes to complete the project itself or expends funds to enable another contractor to do so, the surety is entitled to reimbursement from the retainage. (See Leatherby Ins. Co. v. City of Tustin, supra, 76 Cal.App.3d at p. 685, 143 Cal. Rptr. 153.) Likewise, if the surety fails to perform under the bond, the owner/obligee may, on its own, look to the marketplace to find a replacement contractor and use the unexpended sums to pay for that contractor's services. Even if, then, the original contractor defaults because of insolvency, an owner typically should have in its possession contract funds that roughly approximate the value of the uncompleted work. Consequently, it should not be common for an owner to confront the sort of economic dilemma that an insured faces after a catastrophic loss or accident, or for an owner to be particularly vulnerable to a surety's inaction.[20]
Contrary to Talbot's assertions, there is little basis for concluding that the relationship between a surety and an obligee is fiduciary or quasi-fiduciary in nature. Although a performance bond serves to shift the risk of the principal's nonperformance from the obligee to the surety, the conditional nature of the surety's obligations and its right to assert the defenses of the principal distinguish the surety-obligee relationship from the insurer-insured relationship. The fact that insurance regulations exempt sureties from many of the fair claims settlement standards applicable to issuers of insurance policies is consistent with and supports the conclusion that a surety does not stand in a fiduciary or quasi-fiduciary position with respect to an obligee. (Cal.Code Regs., tit. 10, § 2695.1, subd. (c); e.g., compare Cal.Code Regs., tit. 10, § 2695 subds. (f), (g) with id., § 2695.10 [a surety is not obligated to notify an obligee of potential time-bar defenses and is not barred from making settlement offers that are "unreasonably low"].)
Additionally, a principal basis for recognizing tort liability in the context of liability insurance, i.e., the insurer's assumption of the insured's defense and of settlement negotiations of third party claims (Crisci v. Security Ins. Co., supra, 66 Cal.2d at p. 432, fn. 3, 58 Cal.Rptr. 13, 426 P.2d 173; see Comunale v. Traders & General Ins. Co., supra, 50 Cal.2d at p. 660, 328 P.2d 198), is not transferable to the performance bond setting. In contrast to a liability *875 insurer, a surety bears no responsibility to defend an obligee against third party claims and has no right to represent the obligee's interests by virtue of the surety bond. Thus, to the extent such responsibilities give rise to fiduciary or quasi-fiduciary obligations in the liability insurance setting, their absence in surety arrangements supports a different result.
c. Consequences of Allowing Tort, Recovery
In Transamerica Premier v. Brighton School, supra, 940 P.2d 348, the Colorado Supreme Court held that subjecting sureties to tort liability for breach of the implied covenant "compels commercial sureties to handle claims responsibly." (940 P.2d at p. 353.) The court also determined that, when a commercial surety withholds payment of an obligee's claim in bad faith, contract damages do not compensate for the surety's misconduct and have no deterrent effect to prevent such misconduct in the future. (Ibid.; see also Dodge v. Fidelity & Deposit Co. of Md. (1989) 161 Ariz. 344, 778 P.2d 1240, 1242-1243.) For the reasons set forth below, we are not convinced that tort remedies are necessary to achieve such objectives.
Unlike insureds, obligees possess ample bargaining power to negotiate terms that encourage timely performance of bond obligations and that provide for attorneys' fees and interest when breaches occur. (Shattuck, supra, 57 Ala. Law. at p. 246; Conners, supra, § 1.5, p. 8; Transamerica Premier v. Brighton School, supra, 940 P.2d 348, 354 (dis. opn. of Kourlis, J.).) Obligees may also require a liquidated damages provision to discourage nonperformance by sureties. Accordingly, tort remedies appear largely unnecessary to induce a surety's performance or to fully compensate for a surety's breach of the covenant of good faith.[21]
Moreover, it is generally recognized that a primary purpose of a performance bond is to protect the obligee against the risk of the principal's default on the construction contract. (See Regents of University of California v. Hartford Acc. & Indem. Co., supra, 21 Cal.3d at p. 639, 147 Cal.Rptr. 486, 581 P.2d 197.) Where, as here, a bond is given to guarantee faithful performance of a construction contract, then contract remedies, which compensate for all damages within the contemplation of the parties at the time of contracting or at least reasonably foreseeable by them at that time (Civ.Code, § 3300), provide adequate compensation for breach of the bond.[22]
Nor are we persuaded that tort recovery is necessary to deter misconduct by sureties. As noted, owners and developers involved in construction wield sufficient bargaining power to demand contractual provisions for interest, attorney's fees and liquidated damages.
More importantly, the Insurance Code subjects sureties to substantial administrative sanctions and penalties for violations of the Unfair Trade Practices Act (Ins. Code, § 790 et seq.). Those sanctions include maximum civil penalties of $5,000 for each act or $10,000 for each willful act in violation of Insurance Code section 790.03, subdivision (h) (Ins.Code, § 790.035), and the issuance of cease and desist orders to enjoin further violations (id., § 790.05). Willful violations of cease-and-desist orders may result in an additional penalty of $55,000, while repeated violations may result in the suspension or revocation of a *876 surety's license for up to a year. (Id., § 790.07.)
In considering the potential consequences of allowing tort remedies in the performance bond context, we are mindful of cases and commentary indicating that, for whatever benefits might accrue from permitting such remedies, harmful economic effects appear at least as likely to occur.
Unlike insurance relationships, which involve the interests of only two parties, the surety relationship is a tripartite one implicating the separate legal interests of the principal, the obligee and the surety. When contract disputes arise between an obligee and a principal as to whether the principal is in default, it may prove difficult for the surety to determine which party is in the right and whether its own performance is due under the bond. As one text explains: "There is no simple scenario for a performance bond dispute. Most often a dispute will involve claims, counterclaims, charges, and countercharges. Seldom will any one party be altogether in the right. Often the parties are in a defensive posture when bond claims begin to surface. Usually, the project is behind schedule. Generally, prior to the time the surety is officially called upon to perform, lines have been drawn and personalities have clashed. It is no wonder that performance bond claims are fertile fields for surety litigators." (Cushman & Stamm, Handling Fidelity and Surety Claims (1984) Performance Bonds, § 6.4, p. 168.)
As the foregoing suggests, construction disputes may be complicated enough to resolve when all three parties are on a level playing field. But it is rational to assume that making tort remedies available may encourage obligees to allege a principal's default more readily than they would in the absence of such remedies. It is also reasonable to conclude that allowing obligees to wield the club of tort and punitive damages may make it easier to pressure sureties into paying questionable default claims, or paying more on properly disputed claims, because the sureties will be reluctant to risk the outcome of a tort action. (See Moradi-Shalal v. Fireman's Fund Ins. Companies, supra, 46 Cal.3d at p. 301, 250 Cal.Rptr. 116, 758 P.2d 58 [noting similar concerns in the context of third party actions against insurers]; cf. U.S. ex rel. Ehmcke Sheet Metal Works v. Wausau Ins. Cos. (E.D.Cal.1991) 755 F.Supp. 906, 910-911 [finding the potential for unwarranted settlement demands and inflated settlements in the context of tortious breach actions premised upon federal Miller Act surety bonds].) Thus, permitting obligees to sue sureties in tort may allow obligees to gain additional leverage with sureties that principals do not have in contract disputes.
With such increased leverage, obligees will have sufficient power to detrimentally affect the interests of principals when disagreements arise during construction. Claims of default by the obligee may impair the principal's ability to secure bonding on other projects (see, e.g., Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co., supra, 47 Cal.App.4th at p. 479, 54 Cal.Rptr.2d 888), thus automatically disqualifying the principal from bidding on all public projects and many private ones. Moreover, indemnity agreements executed by principals often give sureties the right to pursue them for reimbursement of any loss, including legal expenses and the costs of investigation. In efforts to avoid bad faith liability, sureties may strive to "find" bond coverage for obligees while, at the same time, charging their investigation costs to the principal. Accordingly, even if the surety's investigation ultimately leads to the conclusion that the principal is not in default, the faultless principal may still suffer adverse consequences. These considerations, which have no parallel in disputes involving insurance policies, weigh against the recognition of extracontractual liability in the performance bond context.
Finally, allowing tort recovery in the construction bond context may open the door to increased (and sometimes successive) *877 litigation, which in turn may increase the cost of obtaining bonds. For example, in K-W Industries v. National Sur. Corp. (1988) 231 Mont. 461, 754 P.2d 502, the subcontractor first sued in federal court on a payment bond under the Miller Act and then sued in Montana state court alleging violations of statutory prohibitions against bad faith insurance practices. But even if obligees bring their contract and tort actions in one suit, increased litigation and settlement costs are inevitable. Those costs ultimately would be passed on by contractors to obligees (see U.S. ex rel. Ehmcke Sheet Metal Works v. Wausau Ins. Co., supra, 755 F.Supp. at pp. 910-911) and may contribute to the unaffordability of bonds.
4. Authorities From Other States
We observe that the Texas Supreme Court recently concluded that performance bond obligees should not be permitted to recover tort damages from commercial sureties for breaches of the implied covenant of good faith and fair dealing. (Great American Ins. v. N. Austin Utility (Tex.1995) 908 S.W.2d 415; cf. U.S. ex rel. Ehmcke Sheet Metal Works v. Wausau Ins. Co., supra, 755 F.Supp. 906 [subcontractor may not sue surety in tort on a payment bond].)
As Talbot notes, however, courts in other jurisdictions have concluded otherwise. (Transamerica Premier v. Brighton School, supra, 940 P.2d 348; Loyal Order of Moose v. Intern. Fidelity (Alaska 1990) 797 P.2d 622; Dodge v. Fidelity & Deposit Co. of Md., supra, 778 P.2d 1240; Szarkowski v. Reliance Ins. Co. (N.D.1987) 404 N.W.2d 502; cf. K-W Industries v. National Sur. Corp., supra, 754 P.2d 502 [subcontractor may sue surety in tort on a payment bond].)
After carefully reviewing the foregoing authorities, we find ourselves unpersuaded by the decisions that allow tort recovery, for they fail to give appropriate consideration to the material differences between insurance policies and performance bonds and the differing relations between the parties thereto. In addition, many of the decisions place undue emphasis upon statutes regulating suretyship as a class of insurance.
5. Performance Bond Obligees May Not Recover in Tort
The question before us is this: Is tort recovery appropriate for a breach of the implied covenant of good faith and fair dealing in the context of a construction performance bond? In answering that question, we are reminded that "[c]ontract law exists to enforce legally binding agreements between parties; tort law is designed to vindicate social policy." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514, 28 Cal.Rptr.2d 475, 869 P.2d 454.)
With that guiding principle in mind, we answer the question in the negative. A construction performance bond is not an insurance policy. Nor is it a contract otherwise marked by elements of adhesion, public interest or fiduciary responsibility, such that an extracontractual remedy is necessitated in the interests of social policy. Obligees have ample power to protect their interests through negotiation, and sureties, for the most part, are deterred from acting unreasonably by the threat of stiff statutory and administrative sanctions and penalties, including license suspension and revocation.
We acknowledge that our unwillingness to recognize a new tort action may mean that isolated instances of surety misconduct may yet occur. Nonetheless, in the absence of compelling policy reasons supporting tort recovery, we leave it up to the Legislature, which is better equipped to gather data and study the effects of a significant shift in the balance of power between owner/obligees, contractor/principals and sureties, to determine whether statutorily authorized tort remedies would benefit the real estate development industry.
*878 Accordingly, we hold that recovery for a surety's breach of the implied covenant of good faith and fair dealing is properly limited to those damages within the contemplation of the parties at the time the performance bond is given or at least reasonably foreseeable by them at that time. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 515, 28 Cal.Rptr.2d 475, 869 P.2d 454; Civ. Code, § 3300 [measure of damages for breach of an obligation arising from contract].)
C. Punitive Damages
The law governing this subject has been aptly summarized as follows. "[P]unitive or exemplary damages, which are designed to punish and deter statutorily defined types of wrongful conduct, are available only in actions `for breach of an obligation not arising from contract.' (Civ. Code, § 3294, subd. (a), italics added.) In the absence of an independent tort, punitive damages may not be awarded for breach of contract `even where the defendant's conduct in breaching the contract was wilful, fraudulent, or malicious.'" (Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at p. 516, 28 Cal.Rptr.2d 475, 869 P.2d 454; see Crogan v. Metz (1956) 47 Cal.2d 398, 405, 303 P.2d 1029.)
Since Talbot may not recover in tort for Transamerica's breach of the implied covenant of good faith and fair dealing, the foregoing rule compels a reversal of the award of punitive damages in its entirety.
DISPOSITION
The judgment of the Court of Appeal is reversed insofar as it affirmed the award of tort damages for breach of the implied covenant and permitted an award of punitive damages. The matter is remanded to that court for further proceedings consistent with this opinion.
GEORGE, C.J., CHIN, J., and BROWN, J., concur.
Concurring and Dissenting Opinion by MOSK, J.
I concur in the majority's analysis of the contract damages question. I dissent, however, from their analysis of the availability of a tort remedy.
The majority explain at length what is unquestioned in the first instance: that "liability insurance is not identical in every respect with suretyship." (General Ins. Co. v. Mammoth Vista Owners' Assn. (1985) 174 Cal.App.3d 810, 824, 220 Cal. Rptr. 291.) The question is whether the two forms of protection are sufficiently similar that a developer-obligee under a construction performance bond may hold the surety liable in tort for bad faith failure to honor its obligations under that bond. Most jurisdictions that have considered this question would reject the majority's view that they are not sufficiently similar. I do likewise.
I
Though the majority do not appear particularly enthusiastic about the law that bad faith failure to perform an insurance contract is actionable in tort, they do not question that bedrock principle, which has been California law for many years. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 429-430, 58 Cal.Rptr. 13, 426 P.2d 173; Hunter v. Up-Right, Inc. (1993) 6 Cal.4th 1174, 1180, 26 Cal.Rptr.2d 8, 864 P.2d 88.)
Thus, it is beside the point whether, as they urge, insurance contracts are exceptional in giving the protected party a tort remedy if the protecting party acts in bad faith to fail to perform. All that is germane is whether this was an insurance contract. It was.
*879 "Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from a contingent or unknown event." (Ins.Code, § 22.) Surety insurance is one type of insurance. "Surety insurance includes: [H] (a) The guaranteeing of behavior of persons and the guaranteeing of performance of contracts (including executing or guaranteeing bonds and undertakings required or permitted in all actions or proceedings or by law allowed), other than insurance policies and other than for payments secured by a mortgage, deed of trust, or other instrument constituting a lien or charge on real estate." (Id., § 105.) The use of the phrase "other than insurance policies" does not signify that a surety bond is not an insurance policy, only that surety insurance does not include a bond to guarantee that an insurance policy will be honored. (See Check Protection Service, 16 Ops.Cal.Atty.Gen. 172 (1950).)[1]
The developer, Talbot Partners (Talbot), was seeking to protect itself against the contingency of the default of Cates Construction, Inc. (Cates), the builder and principal. Transamerica Insurance Company (Transamerica) was the guarantor that if that event occurred, it would supply the money to complete the development. That is insurance. (Ins.Code, §§ 100, subd. (5), 105, subd. (a); Code Civ. Proc., § 995.120; Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1249, fn. 5, 48 Cal.Rptr.2d 12, 906 P.2d 1112.)
Further support for the view that Transamerica was an insurer may be found in the Restatement of Security and case law. Section 82 of the Restatement explains the nature of suretyship. Comment i (pages 233-234) defines a "compensated surety," of which Transamerica is an example: "The term ... mean[s] a person who engages in the business of executing surety contracts for a compensation called a premium.... Compensated sureties are generally incorporated.... [¶] ... [O]ne engaged in the business of executing surety contracts can be expected to have contemplated and taken account of, in the premium charged, certain elements of risk...." (And see Leo, The Construction Contract Surety and Some Suretyship Defenses (1992-1993) 34 Wm. & Mary L.Rev. 1225, 1229 ["For the most part, insurance companies underwrite surety bonds in exchange for a premium."].)
Thus, as the North Dakota Supreme Court explains, "a paid surety or bonding company is generally treated as an insurer rather than according to the strict law of suretyship. [Citations.] ... `A bond entered into by a compensated surety and guaranteeing the performance of a contract is a contract of insurance rather than of ordinary suretyship and is to be interpreted according to the rules relating to the former instead of the strict rules applicable to the latter. For most purposes, contracts of guaranty and suretyship are construed by the same principles as apply to insurance contracts, where they are *880 written by companies which engage in the business of suretyship or guaranty, that is, for compensation and profit.'" (Szarkowski v. Reliance Ins. Co. (N.D.1987) 404 N.W.2d 502, 504.) "`The doctrine that a surety is a favorite of the law, and that a claim against him is strictissimi juris, does not apply where the bond or undertaking is executed upon a consideration ] by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves "surety companies," their business is in all essential particulars that of insurers.'" (Transamerica Premier v. Brighton School (Colo.1997) 940 P.2d 348, 351-352.)
The majority conclude that liability insurance, unlike surety insurance, is "characterized by elements of adhesion and unequal bargaining power, public interest and fiduciary responsibility." (Maj. opn., ante, 86 Cal.Rptr.2d at p. 871, 980 P.2d at p. 422.)
I doubt that the first element is found in all insurance contracts (though undoubtedly it is found in many), but even if so, it is beside the point. The Court of Appeal observed that it knew of no authority for the view that if an insurance contract is negotiated, the insured forfeits its rights to a tort recovery. The majority have not presented any such authority, and I question whether any exists. In any event, the majority do not show any evidence that the performance bond terms in this case were negotiated, and appear to concede the point (id., at p. 872, 980 P.2d at p. 423 [referring to "the typical performance bond"]). It is unlikely that a mammoth insurer like Transamericaan economic entity that counts money in the billions of dollars and dwarfed the now defunct Talbot and Cates when they were in business would engage in negotiations for the relatively small custom involved here.
The majority's public interest analysis is similarly unpersuasive. To begin with, they decide it is proper to distinguish surety insurance from other forms "because insureds generally do not seek to obtain commercial advantages by purchasing policies; rather, they seek protection against calamity. [Citations.] But while the typical insurance policy protects an insured against accidental and generally unforeseeable losses caused by a calamitous or catastrophic event such as disability, death, fire, or flood, the general purpose of a construction performance bond `is to protect the creditor [the owner/obligee] against the danger that he will be unable to collect from the debtor [the general contractor/principal] for any failure in the performance of the contract.' [Citations.] In requiring a performance bond, then, the obligee `seeks the commercial advantage of obtaining a contract with the principal which provides additional financial security.'" (Maj. opn., ante, p. 873, 980 P.2d at p. 424.)
The foregoing passage fails to persuade. Qualified with the words typical and generally that lard the majority opinion, it sets forth putative distinctions that in fact do not exist.[2] Talbot purchased this insurance for peace of mind and security, not profit. "A special relationship exists between a commercial surety and an obligee that is nearly identical to that involving an insurer and an insured. [Citations.] When an obligee requests that a principal obtain a commercial surety bond to guarantee the principal's performance, the obligee is essentially insuring itself from the potentially catastrophic losses that would result in the event the principal defaults on *881 its original obligation." (Transamerica Premier v. Brighton School, supra, 940 P.2d at p. 352.)[3]
In a construction performance bond transaction, the developer-obligee seeks a performance bond for the same reason anyone else buys casualty insurance: to shift to another the risk of an unpredictable and potentially severe loss, here the contractor's default. The surety accepts the risk under the same business principle as a casualty insurer: that the premiums collected for the coverage of numerous such risks will, together with the investment income generated by holding this money as capital, allow for a profit. The surety, like any other insurer, counts on having sufficient reserves to cover these risks without threat to its own financial security. The surety may also further spread the risk through reinsurance, as, according to the Court of Appeal, Transamerica did here.
In such a contract, whether or not titled "insurance policy," certainty is of the essence from the obligee-insured's point of view. The developer seeks a bond in order to be certain of timely, dependable performance of the construction contract. As this case demonstrates, the financial viability of the entire project may depend upon the surety's good faith performance of these duties.
As with any other form of insurance, the surety bond system allows one party to shift to another a contingent risk that the first party, the developer-obligee, cannot itself bear. The social good served by such contracts is the same served by other classes of insurance: greater freedom of activity by more participants than would be possible if each had to bear all the risks of its own enterprise.
Certainty of performance being the essential value of performance bonds, their worth is deeply undermined if sureties can regularly choose to ignore their obligations, having nothing to fear but contract damages that will approximate what they would pay in performance. As the Court of Appeal reasoned: "The quasipublic nature of the insurance industry arises from the purpose and nature of the contracts and the duties which the insurer assumes. That is, the quasi-public nature arises from the contingent nature of the contract and the public's interest in promoting the conduct of business and personal affairs with confidence that in the event of calamity, there is protection. These factors apply equally to performance bond surety insurance, which is vital to real estate development."
Under most circumstances a breach of contract violates no social policy; the law limits the nonbreaching party's remedies so as to allow for "efficient breach" of the contract. But when a contract exists primarily to provide one party certainty and security in a risky enterprise, the other party's bad faith breach cannot be efficient, because it negates the very purpose of the contract. A tort remedy is justified in this context in order to deter such breaches of the covenant. "Recognizing a cause of action in tort for a commercial surety's breach of its duty to act in good faith compels commercial sureties to handle claims responsibly. When the commercial surety withholds payment of an obligee's claim in bad faith, contract damages do not compensate the obligee for the commercial surety's misconduct and have no deterrent effect to prevent such misconduct in the future. As the Arizona Supreme Court explained in Dodge, contract damages `offer no motivation whatsoever for the insurer not to breach. If the only damages an insurer will have to pay upon a judgment of breach are the amounts that it would have owed under the policy plus interest, it has every interest in retaining the money, earning the higher rates of interest on the outside market, and hoping *882 eventually to force the insured into a settlement for less than the policy amount.' [Dodge v. Fidelity & Deposit Co. of Md. (1989) 778 P.2d] at 1242-3 (quoting Wallis v. Superior Court [(1984)] 160 Cal. App.3d 1109, [1117, 207 Cal.Rptr. 123])." (Transamerica Premier v. Brighton School, supra, 940 P.2d at p. 353.)
Continuing to consider matters of public interest, the majority also say that "the obligee does not face the same economic dilemma as an insured" (maj. opn., ante, 86 Cal.Rptr.2d at p. 873, 980 P.2d at p. 424), because, inter alia, it can recover against the principal. The whole point of this kind of insurance, however, is to protect an obligee against a principal that has defaulted, which was Transamerica's duty here. Not surprisingly, Cates went out of business after it defaulted; there was no recourse against it. "As demonstrated by this case, obligees under surety contracts are as susceptible to deceptive and unfair claims settlement practices as insure[d]s and claimants under liability insurance contracts." (General Ins. Co. v. Mammoth Vista Owners' Assn., supra, 174 Cal. App.3d at p. 825, 220 Cal.Rptr. 291.)
In any event, the majority's observation is extraneous to what is at issue here. As the Court of Appeal explained, it commonly occurs that an insured can recover against a third party for damages for which his or her insurer is obligated to pay: e.g., the victim of a negligent driver may have recourse against the driver personally and the driver's insurer, but such recourse does not necessarily bar indemnity from the victim's own automobile insurer. Whether the insured is entitled to sue in tort for an insurer's bad faith does not appear to hinge on the possibility of recovery elsewhere.
The majority conclude in effect that Transamerica will be caught between Talbot's and Cates's competing claims and will find it "difficult ... to determine which party is in the right and whether its own performance is due under the bond." (Maj.opn., ante, 86 Cal.Rptr.2d at p. 876, 980 P.2d at p. 426.) That may be, but an insurer faces the same dilemma when its insured is involved in a multivehicle auto accident with disputed facts and claims. Moreover, when the surety considers an obligee's interests in good faith, it does not necessarily act in bad faith toward the principal. For example, if Transamerica had acted in good faith toward Talbot by properly investigating the merit of Cates's foreclosure suit before joining it (see post, at p. 883, 980 P.2d at p. 432), it would not thereby have acted in bad faith toward Cates.
Furthermore, the majority rely on Washington Internal Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 981, 73 Cal. Rptr.2d 282, Airlines Reporting Corp. v. United States Fidelity & Guaranty Co. (1995) 31 Cal.App.4th 1458, 37 Cal.Rptr.2d 563, and Schmitt v. Insurance Co. of North America (1991) 230 Cal.App.3d 245, 281 Cal.Rptr. 261 (Schmitt).
Schmitt, however, held that the principals did not, under facts analogous to those of this case, have the right to sue for bad faith. "[I]t is not the duty of the surety to protect the principal as if the principal were an insured under an insurance policy. The surety's duty runs to the third party obligee, here a purchaser, seller, financing agent or government agent." (Schmitt, supra, 230 Cal.App.3d at p. 258, 281 Cal.Rptr. 261, italics added.) (Schmitt also held, id. at pages 258-259, 281 Cal. Rptr. 261, that for mixed reasons of law and fact not important here the surety had not acted in bad faith toward the obligees.)
A close reading of Airlines Reporting Corp. v. United States Fidelity & Guaranty Co., supra, 31 Cal.App.4th 1458, 37 Cal. Rptr.2d 563, reveals that it is inapposite. In that case, the surety undertook to reimburse sales of "issued and validated" (id. at p. 1463, 37 Cal.Rptr.2d 563) airline tickets if the travel agency failed to pay. An agency employee stole the ticket stock: the tickets were not issued and validated. The obligee nevertheless contended that *883 the surety should reimburse it. Disagreeing, the court wrote: "The broad construction [the obligee] urges would convert the document at issue into a liability insurance policy. The two kinds of contracts, however, are conceptually and legally distinct. [Citation.] An insurer undertakes to indemnify another `against loss, damage, or liability arising from an unknown or contingent event,' whereas a surety promises to `answer for the debt, default, or miscarriage of another.'" (Id. at p. 1464, 37 Cal.Rptr.2d 563.) The case states that the obligee had not entered into a contract providing broad protectionnot that surety insurance is a brand of protection distinct in all respects from liability insurance. The Court of Appeal discussed various differences between liability insurance and surety insurance, but none of them are relevant here.
Washington Internal Ins. Co. v. Superior Court, supra, 62 Cal.App.4th 981, 73 Cal.Rptr.2d 282, held that a surety could not defeat a statute requiring that a contractor pay a 2 percent per month penalty to a subcontractor by invoking another statute holding insurers harmless for their insureds' willful misconduct. The decision quoted the listing of the differences in Airlines Reporting Corp. v. United States Fidelity & Guaranty Co., supra, 31 Cal. App.4th 1458, 37 Cal.Rptr.2d 563, between surety insurance and liability insurance, but rested its conclusion that the penalty statute prevailed on economic spreading-of-risk principles. (62 Cal.App.4th at p. 990, 73 Cal.Rptr.2d 282.) It, too, is of little use in evaluating the question before us.
By contrast, the courts of other states that have considered the question before us, in light of statutes similar to those contained in our Insurance Code, have concluded that surety insurers are liable in tort for bad faith failure to perform for an obligee on a construction performance bond of the type at issue here. (Transamerica Premier v. Brighton School, supra, 940 P.2d 348; Szarkowski v. Reliance Ins. Co., supra, 404 N.W.2d 502; Loyal Order of Moose v. Intern. Fidelity (Alaska 1990) 797 P.2d 622, 626-628; K-W Industries v. National Sur. Corp. (1988) 231 Mont. 461, 464-467 [754 P.2d 502, 504-506]; Dodge v. Fidelity & Deposit Co. of Md. (1989) 161 Ariz. 344, 346 [778 P.2d 1240, 1242]; but see Great American Ins. v. N. Austin Utility (Tex.1995) 908 S.W.2d 415, 418-424.) "The purpose of the construction performance bond ... was ... to protect plaintiffs from calamity[the] default on the contract. A contractor's default has the potential for creating great financial and personal hardship to a homeowner. Surety insurance is obtained with the hope of avoiding such hardships. Imposing tort damages on a surety who in bad faith refuses to pay a valid claim will deter such conduct." (Dodge v. Fidelity & Deposit Co. of Md., supra, 778 P.2d at p. 1242.)
The facts of this case illustrate the need for a tort remedy. The evidence sufficed to find that Transamerica committed affirmative acts showing, at best, gross neglect of Talbot's interests. The trial judge later mentioned that he "about fell out of my chair when I heard" during trial that Transamerica had joined in a foreclosure suit without investigating the validity of the underlying mechanic's lien, which turned out to include a claim for $200,000 for work that was never done. Indeed, the trial court's statement of decision declared that "at a time when Cates was out of business, Cates, through Transamerica's attorneys, filed suit to foreclose on the mechanic's lien filed by Cates in the sum of $645,367.66, further clouding Talbot's title. Transamerica joined Cates'[s] suit to foreclose by filing a first amended complaint on May 10, 1991. Transamerica failed to make any investigation of the validity of the mechanic's lien before it joined the suit to foreclose on Talbot's property." But "[t]he mechanic's lien filed by Cates (on which Transamerica filed suit to foreclose) was not justified[,] because Cates was not owed any further amounts on the contract" and "Cates ... in fact had *884 caused itself to be paid $276,730 more than the amount to which it was entitled."
Our Legislature permits punitive damages to be imposed for oppressive, fraudulent, or malicious conduct, the only limitation being that they be "for the sake of example and by way of punishing the defendant." (Civ.Code, § 3294, subd. (a).) Because today's decision means that no tort remedy exists at all for bad faith breach of a construction performance bond, there is no need to discuss punitive damages. Nevertheless, I note that in imposing them, the jury found, under the instructions given and its special verdicts, that Transamerica behaved oppressively and maliciously; i.e., that its conduct was "vile, base, contemptible, miserable, wretched, or loathsome" and of such a character "that it would be looked down upon and despised by ordinarily decent people." In sum, it found Transamerica's conduct outstandingly bad.
Moreover, it is not clear to me that contract damages will make an obligee whole (e.g., if the developer loses profits or rents), or that an obligee will be able to force a surety to issue a bond that would make it whole if a principal defaults.[4]
I would hold that a tort remedy is available for the type of misconduct this case presents.
KENNARD, J., and WERDEGAR, J., concur.
NOTES
[1] Transamerica is now known as TIG Insurance Company.
[2] Justice Eagleson confirmed this amount was not a calculation of profit.
[3] Although the bank was a co-obligee under the bond, it is not a party in these proceedings.
[4] The "terms and conditions" language in the bond undermines Transamerica's claim that the bond incorporated the construction contract simply to identify the project it would have to complete if Cates were to default.
[5] Hence, the court did not note whether the underlying contract specified that time was of the essence or whether such a clause would have been significant.
[6] Indeed, we note there are other available standard bond forms that purport to assure performance of the work contracted between a general contractor and an owner ("work performance" bonds) without necessarily guaranteeing that the underlying contract will be performed promptly and faithfully. (See Conners, Cal. Surety and Fidelity Bond Practice (Cont. Ed. Bar 1969) § 2.5, p. 18 (Conners) [compare example A ("Performance of Contract" bond) with example B ("Performance of Work" bond)]; id., §§ 7.1, 7.5, pp. 61, 66 [a work performance bond is the "most limited form of performance bond" because it "guarantees that the work will be performed" but "does not guarantee that the principal will perform each and every term of the contract"]; Sobel, Owner Delay Damages Chargeable to Performance Bond Surety (1984) 21 Cal. Western L.Rev. 128, 131 (Sobel) [The work performance bond "is narrower than the usual bond guaranteeing faithful performance of the contract because it does not necessarily guarantee that the principal will perform each and every term of the contract." (Fn.omitted.) ].) Had the parties agreed to a bond with language more similar to a work performance bond, Transamerica's arguments for a narrow construction of its obligations may have had more force. (But see Pacific Employers Ins. Co. v. City of Berkeley, supra, 158 Cal.App.3d 145, 204 Cal.Rptr. 387 [finding that a work performance bond that expressly referred to and incorporated a construction contract containing a liquidated damages clause was sufficient to allow recovery against the surety for liquidated damages occasioned by the principal's delay].)
In light of our conclusion that Transamerica may be held liable for Cates's delay, we need not decide whether the award of damages may be upheld on the alternative ground that Transamerica's breaches of the performance bond caused the damages at issue.
[7] Although an obligee certainly qualifies as an intended beneficiary of a bond where, as here, the bond names the obligee and confers upon the obligee a right of action on the bond, the obligee is not, strictly speaking, a party to the bond. Here, Transamerica has not argued that such circumstance bars Talbot from asserting a cause of action for breach of the covenant of good faith and fair dealing.
[8] In Mammoth Vista, the Court of Appeal remarked that the actionable wrong contained in Insurance Code section 790.03, subdivision (h), was "merely a codification of the tort of breach of the implied covenant of good faith and fair dealing as applied to insurance." (174 Cal.App.3d at p. 822, 220 Cal.Rptr. 291.) This and other courts have recognized, however, that the statute does not mirror the common law. (E.g., Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 795, 226 Cal. Rptr. 90, 718 P.2d 77 [holding that a third party claimant could not maintain a breach of covenant cause of action against an insurer even though Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 153 Cal.Rptr. 842, 592 P.2d 329 had construed Ins.Code, § 790.03, subd. (h), to allow third party actions against insurers for unfair claims handling and settling practices]; Zephyr Park v. Superior Court (1989) 213 Cal.App.3d 833, 838 & fn. 6, 262 Cal.Rptr. 106 [noting that actions formerly permitted under Insurance Code section 790.03, subdivision (h), in some circumstances provided a basis for relief which would not have existed under a common law bad faith claim, even as to first party claims].)
[9] Subsequent to Foley, the Courts of Appeal have considered this issue in a variety of settings and have unanimously refused to sanction tort remedies outside the context of an insurance policy. (E.g., Copesky v. Superior Court (1991) 229 Cal.App.3d 678, 280 Cal. Rptr. 338 [bank/depositor], overruling its prior holding in Commercial Cotton Co. v. United California Bank (1985) 163 Cal.App.3d 511, 209 Cal.Rptr. 551 (Commercial Cotton); Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 272 Cal. Rptr. 387 [bank/commercial borrower]; Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617, 270 Cal.Rptr. 566 [stockbroker/investor]; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 261 Cal. Rptr. 735 [bank/loan customers], criticizing Commercial Cotton, supra, 163 Cal.App.3d 511, 209 Cal.Rptr. 551, and Barrett v. Bank of America (1986) 183 Cal.App.3d 1362, 229 Cal. Rptr. 16; Martin v. U-Haul Co. of Fresno (1988) 204 Cal.App.3d 396, 251 Cal.Rptr. 17 [involving dealership contract]; see generally, Careau & Co. v. Security Pacific Business Credit, Inc., supra, 222 Cal.App.3d at p. 1399, fn. 25, 272 Cal.Rptr. 387 [listing additional decisions where tort remedies were denied].)
[10] Surety contracts take a number of different forms. In addition to construction bonds and fidelity bonds, another common form of surety contract is a loan guarantee, whereby one person (the surety or guarantor) essentially agrees to answer for the default of another (the principal) to a lender (the obligee). Bonds also are required for the protection of the public in various private industries and occupations, as well as for notary publics and applicants for certain public agencies or positions. We restrict our analysis in this case to the subject of construction performance bonds.
[11] Insurance Code section 105, subdivision (a), states that surety insurance includes "[t]he guaranteeing of behavior of persons and the guaranteeing of performance of contracts (including executing or guaranteeing bonds and undertakings required or permitted in all actions or proceedings or by law allowed), other than insurance policies and other than for payments secured by a mortgage, deed of trust, or other instrument constituting a lien or charge on real estate." (Italics added.)
[12] Although sureties have a right of reimbursement implied by law (see Civ.Code, §§ 2847, 2848), they frequently execute written contracts of indemnification with their principals, as was done in this case.
[13] Generally, insurance regulation is designed to serve one or more of three main objectives: (1) to discourage overreaching by insurers, principally with regard to marketing practices and arrangements (e.g., rebating, discrimination); (2) to assure the solvency (or solidity) of insurers and to guard against the consequences of an insurer's imprudent management of its resources; and (3) to assure equitable rating classifications that will produce equitable premium charges for individual purchasers while providing the insurers with a fair return for the risks undertaken. (Keeton & Widiss, Insurance Law (1988) Insurance Regulation, § 8.2(a), pp. 938-939 (Keeton & Widiss).)
[14] Talbot places much emphasis on a footnote in Amwest, supra, 11 Cal.4th 1243, 48 Cal. Rptr.2d 12, 906 P.2d 1112, in which we commented that "[s]urety bonds generally are considered a form of casualty insurance." (11 Cal.4th at p. 1249, fn. 5, 48 Cal.Rptr.2d 12, 906 P.2d 1112, citing Keeton & Widiss, supra, § 1.5(d), p. 27.) That footnote, however, offers no guidance on the issue whether surety bonds, like insurance policies, warrant tort remedies for breach of the implied covenant. Amwest concerned a voter-enacted initiative measure that added rate regulation provisions to the Insurance Code; we concluded the Legislature exceeded its authority in attempting to exempt surety companies from those provisions because such an exemption did not further the purposes of the measure. In relying upon the Keeton & Widiss treatise's observation that casualty insurance encompasses surety bonds, we did not disagree with the treatise's additional observation that the meaning of the term "casualty insurance" has been expanded far beyond its traditional sense. (See Keeton & Widiss, supra, § 1.5(d), p. 27; see also id., § 8.3(a), p. 942 & fn. 1.) But even though Amwest concluded that the initiative measure had broad application, that circumstance does not control the inquiry here. We have emphasized repeatedly that contractual relationships may give rise to tort liability only in exceptional circumstances. (See Freeman & Mills, Inc. v. Belcher Oil Co., supra, 11 Cal.4th at p. 94, 44 Cal.Rptr.2d 420, 900 P.2d 669; Foley, supra, Al Cal.3d at p. 690, 254 Cal.Rptr. 211, 765 P.2d 373.)
[15] As quoted by Barr, the relevant code provisions defined "[i]nsurance policy" to mean "a life or accident insurance policy the proceeds of which are payable by reason of the death of the insured" (Rev. and Tax. Code, former § 13721) and provided that payments of the proceeds from insurance policies were exempt from inheritance taxes subject to certain limitations (id., former §§ 13723, 13724). (Barr, supra, 104 Cal.App.2d at pp. 507-508. fn. *, 231 P.2d 876.)
[16] It is of no significance that the bond terms here appeared on a standard form published by the American Institute of Architects (AIA). That organization, as its name suggests, is not one that exists to advance the interests of surety companies. The AIA generally promulgates its forms pursuant to an inclusive drafting policy that encourages input from a variety of outside groups and individuals. (See McCallum et al., The 1996 Editions of AIA Design/Build Standard Form Agreements (Oct. 1996) 16 Construction Law. 38.)
[17] We gave the following example to illustrate our point: "If a small dealer contracts for goods from a large supplier, and those goods are vital to the small dealer's business, a breach by the supplier may have financial significance for individuals employed by the dealer or to the dealer himself." (Foley, supra, 47 Cal.3d at p. 692, 254 Cal.Rptr. 211, 765 P.2d 373.) In such a situation, we concluded, permitting only contract damages remained appropriate. (Id. at pp. 692-693, 254 Cal.Rptr. 211, 765 P.2d 373.)
[18] Here, Cates and Talbot executed a "Standard Form of Agreement Between Owner and Contractor" which provided for progress payments to Cates in 30-day intervals.
[19] In addition, a recently enacted statute provides that an owner has an unwaivable right to withhold from the final payment the statutory maximum of 150 percent of any amount subject to a bona fide dispute. (Civ.Code, § 3260; see generally 11 Cal.Jur.3d, supra, Building and Construction Contracts, § 36, p. 54 [recognizing similar protections discussed in case law].) In this case, the contract between Cates and Talbot similarly contemplated the withholding of payments to Cates for Talbot's protection.
[20] It is true that an obligee may incur additional or increased costs in securing a replacement contractor. But such costs typically occur whenever a contract is breached and should not, either in the construction context or in any other context, be recognized as posing an economic dilemma.
[21] Additionally, obligees prevailing in court may recover interest and costs pursuant to statute in appropriate circumstances. (E.g., Civ.Code, § 3287 [interest]; Code Civ. Proc, § 1032 [costs].)
[22] The instant case illustrates this point precisely. As indicated, Talbot was awarded over $3 million on its contract causes of action against Transamerica. The parties, however, stipulated that tort damages resulting from Transamerica's breach of the covenant of good faith and fair dealing amounted to only $1.
[1] I disagree with the majority's view that title 10 California Code of Regulations section 2695.2, subdivision (j), declares a surety bond is not an insurance policy. Sections 2695.1-2695.17 are regulations concerning, as their heading states, "Fair Claims Settlement Practices Regulations." These regulations interpret Insurance Code section 790.03, subdivision (h), which prohibits unfair claims settlement practices by those conducting the "business of insurance" (id., § 790.03). Section 2695.2, subdivision (j), of the regulations says that an insurance "policy" does not include, "[f] or the purposes of these regulations," " `surety bond' or `bond.'" (Italics added.) Perhaps this is because of the way unfair claims challenges are settled under statutes or regulations. But section 2695.2, subdivision (i), of the same regulations defines an insurer as including the licensed issuer of "surety bond[s] in this state i.e., one engaged in "the business of insurance" (ibid.).
The regulations recognize surety insurance as insurance, albeit of a distinct kind. "In contrast to other classes of insurance, surety insurance involves a promise to answer for the debt, default or miscarriage of a principal who has the primary duty to pay the debt or discharge the obligation and who is bound to indemnify the insurer." (Cal.Code Regs., tit. 10, § 2695.1, subd. (c).)
[2] The majority invoke the qualifiers typical or typically 10 times in their opinion. And they use general or generally no fewer than 16 times as qualifying adjectives or adverbs. But I cannot take it on faith, as they apparently do, that this case is atypical or unrepresentative. Typically and generally, moreover, have the unfortunate effect of distracting attention from what has occurred and removing the discussion to an abstract level, where propositions become general and hard to dispute.
[3] Moreover, any implication in the majority's discussion that the relationship between surety and obligee is analogous to that of debtor and creditor is incorrect. Talbot was seeking to protect itself against a contingency, and Transamerica was contracting to supply that protection. That is not a debtor-creditor relationship.
[4] Transamerica also argues that Civil Code section 2808 bars Talbot from recovering in tort. That statute provides in relevant part: "Where one assumes liability as surety upon a conditional obligation, his liability is commensurate with that of the principal ..." i.e., it cannot be greater.
Civil Code section 2808, however, is a limitation on a recovery for contract damages. Like section 2809, which provides, "The obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; and if in its terms exceeds it, it is reducible in proportion to the principal obligation," section 2808 stands for the rule of contract law that "the surety's express contractual liability may not exceed that of the principal." (General Ins. Co. v. Mammoth Vista Owners' Assn., supra, 174 Cal.App.3d at p. 827, 220 Cal.Rptr. 291, italics omitted.) "Section 2809 does not purport to restrict the surety's independent liability for violation of duties imposed by law." (Ibid., italics omitted.) The same is true of section 2808. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610336/ | 15 Ariz. App. 10 (1971)
485 P.2d 600
STATE of Arizona, Appellee,
v.
Jose D. MARTINEZ, Appellant.
No. 1 CA-CR 286.
Court of Appeals of Arizona, Division 1.
June 7, 1971.
Rehearing Denied July 14, 1971.
Review Denied September 28, 1971.
Gary K. Nelson, Atty. Gen., by James D. Winter, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
HOWARD, Judge.
Defendant was convicted by a jury for violation of A.R.S. § 36-1002, possession of a narcotic, in the Superior Court of Maricopa County, Arizona. Defendant now appeals that conviction.
The facts are as follows. On September 18, 1968, several officers from the Phoenix Police Department drove into a certain service station in Phoenix armed with a search warrant. The warrant authorized a search of the service station as well as of one Guadalupe Barrientes and one "Shorty" who later turned out to be a man named Ruben Ramirez.
The officers pulled into the station and up to a gasoline pump. Defendant, hereinafter referred to as appellant, approached the car as though he were going to serve them. One of the officers ordered gas and appellant went to the pump and placed the nozzle in the tank. At this point one of the officers stepped from the car and stated that he was a policeman and did not want gasoline but rather to talk to appellant.
*11 One of the six officers in the car testified that as appellant approached the car he observed him carrying a paper matchbook tucked between his fingers and extending outwards. It was stated that the matchbook was extended toward the driver's window. It was further stated that appellant still had the matchbook in his hand as he went to the pump and removed the nozzle. After the officers informed appellant that they were police and the nozzle was replaced on the pump, the matchbook was no longer seen in appellant's hand.
One officer "frisked" appellant and then searched the area around the pump. Directly under the hose at the pump a matchbook was found.
The matchbook the officer claims to have seen in the first instance had one corner torn off so that the interior of it was visible. The matchbook found under the pump also had one corner torn from it. Interwoven between the matches was a paper packet containing a brownish powder. A field test was performed on the powder which test showed a positive indication for heroin.
At trial, an expert witness for the state testified that the powder in the packet contained an amount of heroin which could be used in the form and condition in which he found it.
The jury returned a verdict of guilty. Appellant's assignments of error will be considered in the order they are set out in his brief.
Appellant claims the evidence was not sufficient to show that the allegedly possessed heroin was present in a sufficient quantity to be useable. It is the law in this State that to sustain a conviction for possession of narcotics, the person must be in possession of a quantity of the drug such as to be useable as a narcotic under known practices of addicts. A.R.S. § 36-1002. State v. Quinones, 105 Ariz. 380, 465 P.2d 360 (1970); State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962); State v. Urias, 8 Ariz. App. 319, 446 P.2d 18 (1968).
Apparently appellant feels that since the expert witness could not testify as to how much heroin it would take to produce a drug effect on a person, he did not give sufficient testimony as to what constitutes a "useable" amount.
We feel that the effects of drugs are obviously idiosyncratic. That is, it is virtually impossible to be able to say, with any degree of certainty, what quantity of a certain drug would be required to produce a drug effect, because it would vary greatly among different persons.
It has been held that only in those cases where the amount is incapable of being put to any effective use will the evidence be insufficient to support a conviction. State v. Moreno, supra. In Moreno a conviction for possession of .2 milligrams was upheld because there was testimony that this was a "useable" amount.
The following testimony was given by the State's expert witness:
"Q. Do you have an opinion, sir, as to whether or not that heroin can be effectively used?
A. I do.
Q. What is that opinion?
A. That it can be in that form and condition.
Q. Upon what do you base that opinion?
A. The form and condition and nature of packaging of the heroin in State's Exhibit 1-A"
* * * * * *
"Q What percentage of the substance were these two foreign were these two other?
A The heroin was there in 10 to 20 percent of the total weight of the material. The procaine, I didn't run a rough quanta on that, it would be a guesstimate, if you wish an expression as an expression of the procaine content.
Q What percent of this amount of the substance would it be necessary to be heroin in order to be an amount useable by a narcotics user?
*12 A In this form and condition most any percentage will be encountered in papers of heroin. The lowest I have seen submitted in the Phoenix area to me, in our laboratory, has been one percent heroin in a paper.
Q When you say it would be encountered, but certainly, one per cent, it wouldn't be a useable amount, would you say?
A Sure, one percent papers are sold and transacted and used."
* * * * * *
We believe a jury may find a "useable" amount such that it can arrive at a verdict of guilty by the conclusionary statement, as in this case, that the exhibit does contain such an amount. We therefore see no need and the law does not require a showing of what amount will create a certain effect.
Appellant's next assignment of error is that the matchbook containing the powder was obtained by means of an illegal search because there was no probable cause to arrest the defendant and search him. Assuming arguendo that there was no probable cause to arrest the defendant, his contention is still without merit since the seizure of the matchbook was the result of a valid search warrant and not a product of the search of defendant's person.
Appellant's third assigned error is that the evidence was insufficient to show that he had knowledge of the nature of the substance he possessed.
It is axiomatic that intent or knowledge may be inferred from the circumstances surrounding a person's behavior or action. We feel the testimony that appellant was carrying the matchbook with a torn corner and a visible packet inside, that he had it at the pump where moments later it was found, and contained heroin, is sufficient circumstantial evidence for the jury to have inferred that appellant had knowledge of the contents of the matchbook.
The judgment is affirmed.
KRUCKER, C.J., and HATHAWAY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610339/ | 485 P.2d 725 (1971)
The PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross Appellee,
v.
Charles Junior FIDLER, Defendant-Appellee, Cross Appellant.
No. 25060.
Supreme Court of Colorado, En Banc.
June 7, 1971.
Stanley F. Johnson, Dist. Atty., 20th Judicial Dist., Ralph S. Josephsohn, Deputy Dist. Atty., Boulder, for plaintiff-appellant, cross appellee.
Rollie R. Rogers, State Public Defender, Denver, J. D. MacFarlane, Chief Deputy State Public Defender, William R. Gray, Deputy State Public Defender, Boulder, for defendant-appellee, cross appellant.
KELLEY, Justice.
This matter involves two interlocutory appeals from diverse rulings of the trial court on the defendant's motion to suppress (1) a blood sample and (2) a urine sample. The trial court denied the motion to suppress the blood sample, from which ruling the defendant appeals, and granted the motion to suppress the urine sample, from which ruling the People appeal. We affirm the ruling as to the blood sample.
However, for the reason set forth in Part II of this opinion, we disapprove of the court's consideration of the purely evidentiary question presented by the assertion of the doctor-patient privilege.
*726 The defendant, Charles Junior Fidler, is charged, in count one of a two-count information, with causing death by operating an automobile while under the influence of intoxicating liquor. C.R.S. 1963, 40-2-10. In count two he is charged with vehicular homicide. 1965 Perm.Supp., C.R.S. 1963, 13-5-155.
Following a collision on a state highway in Boulder County, in which the pick-up truck driven by the defendant was involved, a state patrolman found the body of a woman, who had been a passenger in defendant's vehicle, lying beside the truck. The defendant was in the vehicle in a semiconscious state. The patrolman smelled alcohol on the defendant's breath and discovered two half-empty bottles of wine on the floor of the vehicle.
The defendant was immediately taken to a Longmont hospital, pursuant to orders of the patrolman, where doctors rendered emergency treatment of his injuries. However, he was first given a cursory examination by Dr. Rubright, a general practitioner.
The patrolman who went to the scene of the collision in response to the initial report of the collision and a second patrolman were at the hospital during the period when the evidence sought to be suppressed was obtained. Pursuant to the request of one patrolman, Dr. Rubright extracted a blood specimen for chemical analysis. The withdrawal of the blood presented no medical hazard nor did it adversely affect the defendant's physical condition. Dr. Rubright, by this time, had determined that defendant's physical condition indicated the need for a surgeon. He called Dr. Fowler, a surgeon.
Upon assuming responsibility for the care and treatment of the defendant, Dr. Fowler, pursuant to accepted medical procedures, performed a catherization for diagnostic purposes. Catherization is a process by which urine is withdrawn from a patient to determine by observation, microscopically and macroscopically, whether the bladder, kidneys and connecting tubes and tissues have been damaged.
In the catherization process, urine is drained from the bladder into a bag. A small amount of the urine is then used for diagnostic purposes and the remainder is discarded as waste.
The state patrol officer, who was present in the emergency room during this process, asked Dr. Fowler for a sample of urine to determine its alcohol content. Dr. Fowler withdrew a sample from the bag and gave it to the officer. The sample was sent to a toxicologist for chemical analysis.
The defendant, in his motion to suppress, alleged that both the blood and urine samples were obtained from the defendant under circumstances which rendered the taking within the proscription of C.R.S. 1963, 154-1-7(5) "in that the said samples were acquired by a physician * * * in order to properly prescribe" for his patient. He also alleged that the samples were taken without consent and "as such constituted a deprivation and denial of the rights of this defendant as enumerated and protected in Article II, Sections 7, 16, 18 and 25 of the constitution of the State of Colorado and the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the Constitution of the United States."
Finally, defendant contended that the seizure of the blood and urine samples constituted a breach of the "fundamental fairness" guaranteed by the Fourteenth Amendment to the Constitution of the United States and Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081.
The trial court ruled favorably to the admission of the blood alcohol test on the basis of Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908.
The urine sample was suppressed by the trial court, because it was taken from the bladder "as part of the medical treatment" by a physician who regarded the person as his patient. This, according to the trial judge, brought the taking of the urine sample within the proscription of C.R.S. 1963, 154-1-7(5) as "information acquired *727 in attending the patient, which was necessary to enable him to prescribe or act for the patient."
I.
The trial court, in denying the motion to suppress the blood sample, correctly based its ruling upon Schmerber, supra. Shortly after the trial court's ruling, this court, in People v. Sanchez, Colo., 476 P.2d 980, where the defendant was charged with causing injury while driving under the influence of intoxicating liquor, held that neither a search warrant nor the consent of the defendant was necessary for the use of information obtained from a breathalizer test, relying upon Schmerber. On the facts, Schmerber is more akin to this case than Sanchez, particularly as to the circumstances surrounding the obtaining of the blood sample. Here, of course, the defendant did not have counsel to advise him. In Schmerber, the defendant, on advice of counsel, refused to consent. Here, the defendant was in a semiconscious condition and was unable to consent or to refuse to give his consent. These differences do not affect the Schmerber principle.
Also, in Schmerber, it appears that the defendant was arrested prior to the time the police officer directed the doctor to withdraw the blood. The record here does not disclose when Fidler was arrested. This is not a controlling fact under the circumstances of this case. The patrol officer, given the facts as to the collision, the smell of alcohol on defendant's breath and the finding of two half-emptied wine bottles in defendant's vehicle, had probable cause to direct the withdrawal of the blood.
Schmerber answers the constitutional issues raised by the defendant as to the blood sample. Gibbons v. People, 167 Colo. 83, 445 P.2d 408. Also see Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L. Ed. 2d 448, where the defendant was unconscious when the blood sample was taken from him.
II.
The issue raised by injecting C.R.S.1963, 154-1-7(5) into the ruling on the motion to suppress was wholly irrelevant. A brief examination of the five grounds that will support such a motion (Colorado Rules of Criminal Procedure 41(e)) discloses the limited reach of the motion for return of property and to suppress. The grounds are:
"(1) The property was illegally seized without warrant; or
"(2) The warrant is insufficient on its face; or
"(3) The property seized is not that described in the warrant; or
"(4) There was not probable cause for believing the existence of the grounds on which the warrant was issued; or
(5) The warrant was illegally executed."
That each of the enumerated grounds is bottomed on Fourth Amendment rights is too clear to need further discussion. Interlocutory appeals under C.A.R. 4.1(a) may only be appealed to this court from adverse rulings on Crim.P. 41 motions. People v. Thornburg, Colo., 477 P.2d 372. The defendant does not argue that the doctor-patient privilege has any constitutional overtones. Whether or not the statute is a bar to the admission into evidence at the trial of the analysis of the urine sample by the doctor is purely a matter of statutory application and involves the breadth of the doctor-patient privilege as set forth in the statute. In any event, the question of the suppression of the urine sample was prematurely considered by the trial court.
The ruling of the trial court denying the motion to suppress the blood sample is affirmed. Inasmuch as we have determined that the trial court prematurely ruled on the admissibility of the urine sample and the resultant tests, we must vacate the order of suppression as to the urine sample. At the time of trial, if the urine sample and tests are offered in evidence, the court may then determine the scope of the doctor-patient privilege.
*728 The cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
LEE, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2381560/ | 786 S.W.2d 409 (1990)
PRAIRIE PRODUCING CO., et al., Appellants,
v.
David A. SCHLACHTER, et al., Appellees.
No. 9730.
Court of Appeals of Texas, Texarkana.
January 30, 1990.
Rehearing Denied February 27, 1990.
*410 Geoffrey H. Bracken, Jerry A. DeVault, Houston, Donald Carroll, Tyler, for Prairie Producing Co.
Charles Clark, Law Offices of Charles H. Clark, Tyler, for appellees.
Lisa L. Bagley, Houston, for Conoco, Inc.
CORNELIUS, Chief Justice.
The principal question to be decided in this appeal is whether a deed conveyed a *411 mineral interest or a royalty interest. We conclude that the deed conveyed a mineral interest and accordingly reverse the judgment of the trial court which held to the contrary.
On July 14, 1934, Mrs. J. H. Riner and B. E. Riner and wife executed a deed to R. R. MacDonald which conveyed an interest in a 675.4 acre tract and a 46.05 acre tract in Wood County. The deed is titled "Mineral Deed," and states in its granting clause that the interest conveyed is "an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced" from the land described.
The deed also contains the following paragraphs:
Together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said land for oil, gas, and other minerals, and removing the same therefrom.
Said land now being under an oil and gas lease executed in favor of R. R. MacDonald, it is understood and agreed that this sale is made subject to the terms of said oil and gas lease, but it is intended that said Mrs. J. H. Riner, a widow and B. E. Riner joined by his wife Julia Riner shall and hereby does grant, sell, convey, assign and deliver unto said R. R. MacDonald a one-half interest in and to any and all royalties, incomes, interests and benefits of every kind and character accruing and to accrue under the provisions of said oil and gas lease, save and except delay rentals to extend the time within which a well may be commenced under the terms of said oil and gas lease and bonus monies paid upon and for the execution of said lease. No part of which delay rentals and bonus monies is intended hereby to be conveyed.
In the event the aforesaid oil and gas lease, for any reason, becomes cancelled or forfeited then and in that event an undivided one-half interest in and to any and all future royalties, incomes, interests and benefits of every kind and character accruing or to accrue under the provisions of any and all future oil and gas leases hereafter placed upon the afore described (sic) land shall be owned by said R. R. MacDonald, save and except delay rentals to extend the time within which a well may be commenced under the terms of any such oil and gas lease and bonus monies paid and to be paid upon and for the execution of any such oil and gas lease, no part of which said delay rentals and bonus monies is intended hereby to be conveyed.
The said Grantee to own the undivided one-half interest in future oil and gas leases hereafter placed upon said land as aforesaid, together with and incident to said undivided one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from afore described (sic) land.
R. R. MacDonald conveyed to Atlatl Royalty Company, by instrument identical to the Riner deed except for date and parties, the interest he acquired by the Riner deed. Ultimately, the interest became vested in eight different parties, six of whom leased their respective undivided interests to Prairie Producing Company in 1986. Prairie Producing Company included the 46.05 acre tract in the G. R. Garrett Trust Unit No. 1. The remaining interest owned by the Riners was conveyed to L. J. Carothers in 1939. Ultimately, David and Mona Schlachter acquired an undivided three fourths of that interest. The Schlachters leased their interest in 1983 to a corporation owned by them, and after this suit was filed they drilled a producing well on the 46.05 acre tract.
The Schlachters filed suit seeking a declaratory judgment that the Riner deed conveyed a royalty interest rather than a mineral interest. Prairie Producing Company and others claiming under the MacDonald interest filed a counterclaim seeking a declaration that the deed conveyed a mineral interest.
All parties moved for summary judgment. The trial court severed the claims with respect to the 46.05 acre tract and rendered summary judgment for the Schlachters, declaring that the deed conveyed only a royalty interest as to that tract.
*412 In interpreting a deed we must ascertain and enforce the intention of the parties. Alford v. Krum, 671 S.W.2d 870 (Tex.1984); Smith v. Graham, 705 S.W.2d 705 (Tex.App.Texarkana 1985, writ ref'd n.r.e.). However, the controlling intention is not the subjective intention the parties may have had but failed to express, but the intention actually expressed in the deed; that is, the question is not what the parties meant to say, but the meaning of what they did say. Alford v. Krum, supra; Smith v. Graham, supra.
Moreover, in ascertaining the intention of the parties, we must attempt to harmonize all parts of the deed. If it is impossible to harmonize internally inconsistent expressions in the deed, then we must give effect to the controlling language. The controlling language, and consequently the key expression of intent, is found in the granting clause. It defines the nature of the estate granted. Alford v. Krum, supra; Texas Pacific Coal & Oil Company v. Masterson, 160 Tex. 548, 334 S.W.2d 436 (1960).
The granting clause of the deed in question here conveys "an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that might be produced" from the land described in the deed. Such language grants a fee interest in the minerals in place. Altman v. Blake, 712 S.W.2d 117 (Tex.1986); Alford v. Krum, supra; Smith v. Graham, supra, and cases there cited.
The Schlachters argue that other paragraphs in the Riner deed reveal an intention to convey only a royalty interest, i.e., an interest only in the production to be obtained from the land rather than a fee interest in the minerals. The paragraphs generally provide for these things:
(1) The land is subject to an existing lease, but conveys to MacDonald one half of the royalties and rights accruing under said lease, except delay rentals and bonus money;
(2) As to future leases, MacDonald is conveyed one half of the royalties and other rights, except delay rentals and bonus money paid for the execution of leases; and
(3) MacDonald is to own an undivided one-half interest in future leases "together and incidental to said undivided one-half interest" in and to all of the oil, gas and other minerals and that may be produced from said land.
The provisions referred to are consistent with the conveyance of a fee interest in the minerals and do not conclusively express an intention to convey only royalty.
There are five attributes of a severed mineral estate: (1) the right to explore and develop (the right of ingress and egress), (2) the right to lease (the executive rights), (3) the right to receive bonus payments, (4) the right to receive delay rentals, and (5) the right to receive royalty. Altman v. Blake, supra. When a fee mineral interest is conveyed, those attributes and rights are impliedly conveyed as well, unless they or some of them are specifically reserved. Day & Company, Inc. v. Texland Petroleum, Inc., 32 Tex.Sup.Ct.J. 549, 1989 WL 75258 (July 12, 1989); Tenneco Oil Company v. Alvord, 416 S.W.2d 385 (Tex.1967); Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543 (Tex.Comm'n App. 1937, opinion adopted).
In the deed before us, all of the attributes are passed to MacDonald except the right to delay rentals and the right to bonus monies for the execution of new leases, which are expressly reserved. The reservation of these attributes is not inconsistent with the conveyance of a mineral interest and does not relegate the interest conveyed to a mere royalty interest. Altman v. Blake, supra. Indeed, the rights expressly granted and reserved in this instance would be inconsistent with the conveyance of a mere royalty interest. For example, the right of ingress and egress for the purpose of mining and drilling is conveyed. A royalty owner has no right to explore and drill. Schlittler v. Smith, supra; Arnold v. Ashbel Smith Land Company, 307 S.W.2d 818 (Tex.Civ.App.Houston 1957, writ ref'd n.r.e.). The right to rentals and bonuses is withheld. If a royalty interest had been intended, there *413 would have been no need to reserve rentals and bonuses, because a royalty interest does not share in bonuses and rentals unless the conveyance or reservation specifically provides otherwise. Schlittler v. Smith, supra.
Although all parties to the appeal contend that the Riner deed is unambiguous, the trial court found that it was ambiguous, and, on the basis of a ratification agreement executed by Atlatl Royalty Company to Gulf Oil Corporation in 1948 when Atlatl owned the interest in question, found that it was the intention of the conveyance to grant only a royalty interest. Atlatl stated in the ratification that the interest it had acquired from MacDonald under the Riner deed was a one-sixteenth nonparticipating royalty interest. On the other hand, the deeds by which Prairie Producing Company's lessors acquired their interests designated the interests as mineral interests.
The Riner deed is not ambiguous. An instrument is ambiguous only when the application of pertinent rules of construction leaves it genuinely uncertain which one of two reasonable meanings is the proper one. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). If the instrument can be harmonized and given a definite and certain meaning, it is not ambiguous. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941). As we have demonstrated earlier, the Riner deed is capable of being construed as having a definite and certain meaning.
Moreover, extraneous evidence may not be used to render a deed ambiguous which on its face is clear and definite. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959). As the deed is not ambiguous, extraneous evidence was not admissible to create an ambiguity or aid in its interpretation. Superior Oil Co. v. Stanolind Oil & Gas Co., 150 Tex. 317, 240 S.W.2d 281 (1951).
Additionally, if the other paragraphs could be construed to be in conflict with the granting clause, it would not be permissible to give them controlling effect and thus overturn the clear and explicit intention of the parties as expressed by the controlling language, the granting clause. Alford v. Krum, supra.
The Schlachters' motion for summary judgment also urged that they were entitled to a declaration that Prairie Producing Company and its lessors had no interest in the property in question because the Riner and subsequent deeds contained legally insufficient descriptions of the land. The trial court's judgment did not specifically address the sufficiency of the description issue, but it did declare that Prairie Producing Company and its lessors "have no right, title or interest ... as to the 46.05 acre tract," so the court must have concluded that the descriptions were insufficient. Prairie Producing Company thus asks us to reverse that judgment and render judgment on the basis that the descriptions in the deeds are legally sufficient.
The only summary judgment proof submitted by the Schlachters in support of their motion for summary judgment on the description issue was a copy of a plat referred to in the descriptions and an assertion that, as the plat had no markings or other identifying data on it, it was not sufficient to enable one to locate the land in question. Prairie Producing Company ultimately responded to the Schlachters' motion on this issue and attached plats, other documents, and an affidavit of Bill Burton, a licensed surveyor, showing that the tract could be identified and located by the references contained in the descriptions found in the deeds. Thus, Prairie Producing Company successfully countered the Schlachters' summary judgment proof on this issue. We are unable to render judgment for Prairie Producing Company on this phase of the case, however. The summary judgment evidence at best raised a fact issue as to the adequacy of the descriptions. Summary judgment should not be based on a trial by affidavit or the weighing of contradictory summary judgment evidence. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Wylie v. Reed, 579 S.W.2d 329 (Tex.Civ.App.Waco 1979), *414 aff'd, 597 S.W.2d 743 (Tex. 1980); Tex.R. Civ.P. 166a. Since the Schlachters did not conclusively demonstrate by summary judgment proof that the descriptions are inadequate, that phase of the case must be remanded for trial on the merits.
For the reasons stated, the judgment of the trial court is in all things reversed. Judgment is here rendered that the deed from Mrs. J. H. Riner and B. E. Riner and wife, Julia Riner, to R. R. MacDonald, dated July 14, 1934, and recorded in Volume 147, Page 308 of the Deed Records of Wood County, Texas, conveyed an undivided one half of the minerals in and under the 46.05 acre tract described in said deeds, together with the executive rights to lease said interest and to receive one half of the royalties payable under any lease of said interest, but excluding the right to delay rentals and bonus money paid for or under leases covering that interest.
The issues as to the sufficiency of the descriptions in the Riner and MacDonald deeds and the validity of other deeds attacked by the Schlachters are severed and that phase of the case is remanded to the trial court for trial of that issue on the merits.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611894/ | 884 P.2d 1306 (1994)
Joe D. TREMBLY, Plaintiff and Appellant,
v.
MRS. FIELDS COOKIES, Defendant and Appellee.
No. 930635-CA.
Court of Appeals of Utah.
November 10, 1994.
*1308 Russell C. Fericks (Argued), Nathan R. Hyde, Gerald J. Lallatin, Richards, Brandt, Miller & Nelson, Salt Lake City, for appellant.
Randall N. Skanchy, Deno G. Himonas (Argued), Jones, Waldo, Holbrook & McDonough, Salt Lake City, for appellee.
Before BENCH, DAVIS and ORME, JJ.
OPINION
DAVIS, Judge:
Plaintiff Joe D. Trembly appeals the trial court's consideration of defendant Mrs. Fields Cookies's (Mrs. Fields) motion for relief from an earlier denial of Mrs. Fields's motion for summary judgment. The trial court granted the motion and, pursuant to the relief requested, granted summary judgment in favor of Mrs. Fields, concluding that the undisputed facts established as a matter of law that Trembly was an at-will employee of Mrs. Fields. We affirm.
FACTS
Trembly was employed with Mrs. Fields in both staff and managerial positions from November 26, 1986 until his termination on March 13, 1990. When Trembly applied for *1309 a position with Mrs. Fields, he signed an application for employment, at the top of which was the declaration that "[a]ll employees of [Mrs. Fields] are `at-will' employees subject to termination at anytime [sic] with or without cause." Immediately above Trembly's signature on the application is the statement "I [Trembly] understand and agree that my employment is for no definite period and may ... be terminated at any time without any previous notice."
Several oral statements were made to Trembly concerning Mrs. Fields's disciplinary and termination policies. During Trembly's initial interview with Mitchell Dorin, Mrs. Fields's Regional Director of Operations, Dorin informed Trembly that he (Trembly) would be allowed "X amount of mistakes" and that certain stages of discipline would be followed before he would be "disciplined" (terminated). Later in Trembly's employment with Mrs. Fields, Cindy Reisner, Mrs. Fields's Director of Personnel, told Trembly that, as district manager, he could not fire anyone at Mrs. Fields without just cause.
In training videos, Randy Fields, Mrs. Fields's Chairman, stated that Mrs. Fields treats its people fairly and that a Mrs. Fields employee "will not be terminated for things unless they've been ... completely investigated fairly." Randy Fields also said that "the values of the company were more important than the training manual and that first and foremost is fair treatment of employees." The training videos were intended for all employees.
During Trembly's tenure at Mrs. Fields, a policy and procedure manual was in place. The policy and procedure manual was replete with references to the at-will nature of each individual's employment status. In November 1989, an Employee Handbook (handbook) was distributed, which, by its terms, superseded all prior handbooks, manuals, policies and procedures issued by Mrs. Fields. The handbook was distributed after the oral statements were made to Trembly by Dorin and Reisner, and after the Randy Fields's video was distributed.
The handbook provides:
This handbook is provided as a guide which you may use to familiarize yourself with [Mrs. Fields]. It is provided and is intended only as a helpful guide. It does not constitute, nor should it be construed to constitute an agreement or contract of employment, express or implied, or as a promise of treatment in any particular manner in any given situation. This handbook states only general [Mrs. Fields's] guidelines.
The handbook's disciplinary process includes the following reservation:
[Mrs. Fields] is an "at-will" employer which means that any and all team members are subject to termination at anytime [sic] with or without cause. Although we generally will follow a disciplinary process because we are an at-will employer,[1] [Mrs. Fields] reserves the right to terminate a team member immediately.
The handbook further states that Mrs. Fields will "generally follow[] a progressive discipline policy that involves four stages": a verbal discussion, a written statement outlining an employee's required performance, a written statement of consequences if an employee is not performing as required, and an execution of the consequences. The handbook then provides a list of "grounds for immediate termination." Immediately following this list is the declaration that "[Mrs. Fields] is an at-will employer," that the list provided should not be "construed as a promise of specific treatment in a given situation," and that "[Mrs. Fields] is free to terminate an employee's employment at any time with or without cause."
Trembly testified in his deposition that he had used this particular handbook for training a store manager and had specifically talked about the at-will language contained in the handbook. Trembly further testified that he understood that Mrs. Fields utilized an at-will employment policy and believed his *1310 employment relationship with Mrs. Fields to be "at-will."
Mrs. Fields terminated Trembly on March 13, 1990. Trembly filed suit against Mrs. Fields, asserting five causes of action: (1) breach of implied-in-fact employment contract; (2) breach of written contract; (3) breach of covenant of good faith and fair dealing; (4) misrepresentation; and (5) intentional infliction of emotional distress. Trembly filed his complaint in the Third Judicial District Court in Summit County, which operates on a rotating trial judge calendar.
Mrs. Fields filed a motion to dismiss Trembly's third cause of action, which was granted by then-presiding Judge Frank G. Noel. Mrs. Fields subsequently filed a motion for summary judgment, seeking dismissal of Trembly's remaining causes of action. The trial court, through Judge Homer F. Wilkinson, granted summary judgment on Trembly's fourth and fifth causes of action, but denied summary judgment on Trembly's first and second claims.
Mrs. Fields filed a motion for reconsideration of Judge Wilkinson's denial of summary judgment with respect to Trembly's first and second causes of action. Judge Wilkinson partially granted the motion, dismissing count two of Trembly's complaint, but leaving intact Trembly's implied-in-fact employment contract claim. Mrs. Fields subsequently filed a motion for relief from that order, basing it upon the then recent Utah Supreme Court decisions Sanderson v. First Sec. Leasing, 844 P.2d 303 (Utah 1992), and Hodgson v. Bunzl Utah, Inc., 844 P.2d 331 (Utah 1992). Judge David S. Young, who had rotated into the court replacing Judge Wilkinson, granted the motion for relief and rendered summary judgment in Mrs. Fields's favor on the grounds that the holdings in Sanderson and Hodgson and the undisputed facts established, as a matter of law, that Trembly's "employment relationship with [Mrs. Fields] was `at-will.'"
Trembly appeals.
ISSUES
This appeal raises three issues: (1) Whether Judge Young erred in entertaining Mrs. Fields's motion for relief; (2) whether Judge Young erred by granting the motion; and (3) whether the undisputed evidence creates a material issue of fact as to whether Trembly had an implied-in-fact employment contract providing he would be terminated only for cause and, accordingly, whether summary judgment was improper.
ANALYSIS
Trembly claims that Judge Young erred in hearing Mrs. Fields's motion[2] because no new facts were presented and because entertaining the motion violated the "law of the case" doctrine. The decision to entertain a motion under Rule 54(b) is a question of law. "`We accord conclusions of law no particular deference, but review them for correctness.'" Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 385 (Utah App.1991) (quoting Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985)).
Rule 54(b) of the Utah Rules of Civil Procedure provides, in pertinent part, that
any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... is *1311 subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Id. Rule 54(b) allows "for the possibility of a judge changing his or her mind in cases involving multiple parties or multiple claims." Salt Lake City Corp. v. James Constructors, 761 P.2d 42, 44 (Utah App.1988). Thus, a motion under Rule 54(b) is a proper vehicle to ask the court to reconsider its prior denial of a motion for summary judgment. Timm v. Dewsnup, 851 P.2d 1178, 1184-85 (Utah 1993); James Constructors, 761 P.2d at 44 & n. 5.
A court can consider several factors in determining the propriety of reconsidering a prior ruling. These may include, but are not limited to, when (1) the matter is presented in a "different light" or under "different circumstances;" (2) there has been a change in the governing law; (3) a party offers new evidence; (4) "manifest injustice" will result if the court does not reconsider the prior ruling; (5) a court needs to correct its own errors; or (6) an issue was inadequately briefed when first contemplated by the court. State v. O'Neil, 848 P.2d 694, 697 n. 2 (Utah App.), cert. denied, 859 P.2d 585 (Utah 1993).
Mrs. Fields based its motion on Sanderson v. First Sec. Leasing, 844 P.2d 303 (Utah 1992), and Hodgson v. Bunzl Utah, Inc., 844 P.2d 331 (Utah 1992), which the supreme court decided after Judge Wilkinson denied Mrs. Fields's motion for summary judgment on Trembly's implied-in-fact contract claim. Mrs. Fields apparently believed that these decisions presented the case at bar in a different light because of the factual similarities,[3] and because the Utah Supreme Court in Hodgson held that the plaintiff had not presented sufficient evidence to withstand summary judgment. Judge Young agreed, stating that "if this were my case and I had handled it throughout, I would have called it back with the additional cases [Sanderson and Hodgson] and would have ruled consistent with what I have now done." Judge Young therefore relied on proper grounds for reconsidering the ruling previously made by Judge Wilkinson.
Trembly's next contention of error is that the trial court heard Mrs. Fields's motion in violation of the "law of the case" doctrine, which provides that "one district court judge cannot overrule another district court judge of equal authority." Mascaro v. Davis, 741 P.2d 938, 946 (Utah 1987). This doctrine has "evolved to avoid the delays and difficulties that arise when one judge is presented with an issue identical to one which has already been passed upon by a coordinate judge in the same case." Id. at 947 (footnote omitted). Notwithstanding the law of the case doctrine, "`a trial court is not inexorably bound by its own precedents.'" James Constructors, 761 P.2d at 45 (quotation omitted). "[T]he law of the case doctrine does not prohibit a judge from catching a mistake and fixing it." Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring). Moreover, a judge is free to change a ruling until a final decision is formally rendered. Utah R.Civ.P. 54(b); Ron Shepherd Ins. v. Shields, 882 P.2d 650, 652-54 (Utah 1994); McKee v. Williams, 741 P.2d 978, 981 (Utah App.1987); cf. Richardson v. Grand Central Corp., 572 P.2d 395, 397 (Utah 1977) ("[G]enerally preliminary or interim rulings do not rise to the dignity of res judicata or stare decisis."). In this case, the denial of the motion for summary judgment was not a final order. Thus, the law of the case doctrine did not preclude Judge Young from revisiting Judge Wilkinson's prior ruling.[4]
*1312 Because we hold that the trial court did not err in entertaining Mrs. Fields's motion, we must next determine whether the trial court properly granted the motion. It is within the sound discretion of the trial court to grant a motion under Rule 54(b), and the decision to do so will not be disturbed on appeal absent an abuse of this discretion. State v. Smith, 781 P.2d 879, 882 n. 4 (Utah App.1989).
After reviewing the record and the holdings in Sanderson and Hodgson, we cannot say that Judge Young abused his discretion by granting Mrs. Fields's motion for relief. Judge Young based his decision on Sanderson and Hodgson, which were decided after Judge Wilkinson denied summary judgment on Trembly's implied-in-fact contract claim. Sanderson considered issues similar to those raised in the case at bar; the facts in Hodgson are analogous to the facts in this case,[5] with the Utah Supreme Court holding that the plaintiff's evidence was insufficient to survive summary judgment. On this basis, Mrs. Fields's motion under Rule 54(b) justified relief, and we decline to reverse Judge Young's decision to grant the motion.
We now address the last issue raised by Trembly: whether the trial court erred in granting summary judgment in favor of Mrs. Fields. "Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Sanderson, 844 P.2d at 306. Whether summary judgment was appropriate is a question of law and we grant no deference to the trial court's decision, but review it for correctness. Richins, 817 P.2d at 385. When reviewing a grant of summary judgment, we liberally construe all inferences that may be reasonably drawn from the facts in favor of the nonmoving party. Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1000 (Utah 1991). Although the existence of an implied-in-fact employment contract is normally a question of fact left to the discretion of the jury, "the court retains the power to decide whether, as a matter of law, a reasonable jury could find that an implied contract exists." Sanderson, 844 P.2d at 306. "If a reasonable jury cannot find that an implied contract exists, summary judgment is appropriate." Id. (citations omitted).
Thus, we must determine whether there is a dispute of material fact as to whether Trembly had an implied-in-fact employment contract with Mrs. Fields where Trembly would be terminated only after certain disciplinary procedures were followed. Trembly claims that the verbal assertions made to him and language contained in the company policy and procedures manual created an implied-in-fact employment contract where he could be terminated only after certain disciplinary procedures were followed, even though the subsequent handbook contained disclaimers dismissing any possibility of a contract of employment other than at-will.
In Johnson, the supreme court stated that in order for an
implied-in-fact contract term to exist, it must meet the requirements for an offer of a unilateral contract. There must be a manifestation of the employer's intent that is communicated to the employee and sufficiently definite to operate as a contract provision [so that] the employee can reasonably believe that the employer is making an offer of employment other than employment at will.
Johnson, 818 P.2d at 1002 (footnote omitted). While it is clear that evidence of oral statements standing alone may establish an implied-in-fact contract, Hodgson, 844 P.2d at 334, such evidence "must be sufficient to fulfill the requirements of a unilateral offer." Johnson, 818 P.2d at 1002.
Trembly claims that the statements made to him by Mitchell Dorin are sufficiently definite to operate as a "contract provision." However, even if we agree with Trembly, if an employee has knowledge of a distributed handbook that changes a condition of the employee's employment, and the employee remains in the company's employ, the modified conditions become part of the employee's employment contract. Id.; see also Sorenson v. Kennecott-Utah Copper *1313 Corp., 873 P.2d 1141, 1148 (Utah App.1994) (earlier version of company's code of conduct arguably modifying employee's at-will status was expressly superseded by later version). Further,
"[i]n this manner, an original employment contract may be modified or replaced by a subsequent unilateral contract. The employee's retention of employment constitutes acceptance of the offer of a unilateral contract; by continuing to stay on the job, although free to leave, the employment supplies the necessary consideration for the offer."
Johnson, 818 P.2d at 1002 (quoting Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn.1983)). Thus, even if Dorin's oral assertions to Trembly modified his at will status with Mrs. Fields, the handbook clearly superseded and replaced that agreement. In the handbook, Mrs. Fields unequivocally reserved its at-will employer status and the right to terminate an employee at any time with or without cause. Trembly testified that he was familiar with this at-will language. Therefore, Trembly could not have reasonably concluded, after distribution of the handbook, that his employment was other than at-will on the basis of Dorin's statements. Mrs. Fields eliminated any confusion regarding employment status by the clear and conspicuous disclaimers contained in the handbook, which was distributed after Dorin made his comments to Trembly. Trembly retained his employment with Mrs. Fields with full knowledge of the modified condition of his employment and his retention constituted his acceptance of Mrs. Fields's offer: to remain employed at Mrs. Fields as an at-will employee.
Trembly's reliance on oral statements made by Randy Fields and Cindy Reisner is also misplaced. Trembly claims that Randy Fields's statements to employees in company videos regarding fairness modified Trembly's at-will employment status to one where he could be terminated only for cause. Not only does this argument fail because Trembly saw the video before the handbook was distributed, but also because general statements of fairness made to all company employees through a training video are not sufficiently definite to operate as a contract provision and are not of such a nature that Trembly could reasonably believe that Mrs. Fields intended to make him an offer of employment other than at-will. See Johnson, 818 P.2d at 1002.
Reisner informed Trembly that he could not terminate any Mrs. Fields's employee without just cause and, based on this assertion, Trembly claims his at-will status was modified. As with the statements made by Dorin and Randy Fields, Reisner's disclosure was made before the handbook was distributed and was, therefore, of no consequence to Trembly. Further, simply being informed that other employees could not be terminated without just cause does not necessarily grant the same right to Trembly. Sorenson, 873 P.2d at 1148; accord Kirberg v. West One Bank, 872 P.2d 39, 42 (Utah App.1994). Trembly is required to "point to affirmative and definite acts of [Mrs. Fields] demonstrating [Mrs. Fields's] intent to modify its at-will contract with [Trembly]." Kirberg, 872 P.2d at 42. This he is unable to do.
Lastly, Trembly relies on language in the policy and procedure manual to support his claim that he could be terminated only after Mrs. Fields followed certain disciplinary procedures. However, the policy and procedures manual was superseded by the handbook, which stated "[t]his handbook supersedes all prior handbooks, manuals, policies and procedures issued by the Company." Thus, we reject Trembly's reliance on this manual.
CONCLUSION
Judge Young properly heard Mrs. Fields's motion for relief brought pursuant to Rule 54(b), and did not abuse his discretion in granting that motion. Summary judgment was correct because, as a matter of law, even if Trembly's initial employment contract provided that he would be terminated only after Mrs. Fields followed certain disciplinary procedures, this employment status was later modified by the handbook, which provided that Trembly was an at-will employee. Trembly accepted this contract provision by *1314 remaining in Mrs. Fields's employ after he had knowledge of the company's at-will employment policy. Accordingly, we affirm.
BENCH and ORME, JJ., concur.
NOTES
[1] Although this statement arguably represents a misunderstanding of law, we believe the intent of the handbook is clear and that it is likely the comma was inadvertently placed after the word "employer" rather than after the word "process."
[2] Mrs. Fields brought its motion pursuant to Rule 60(b)(7) of the Utah Rules of Civil Procedure. However, by its terms, Rule 60(b)(7) applies only to motions for relief from a final judgment or order. Utah R.Civ.P. 60(b). But see Rees v. Albertson's, Inc., 587 P.2d 130, 131-32 (Utah 1978) (suggesting in dicta that Rule 60(b)(7) is appropriate mechanism to request reconsideration of earlier denial of motion for summary judgment). In this case, Mrs. Fields was asking the court to reconsider the denial of a motion for summary judgment, which is not a final order or judgment. Thus, a motion under Rule 60(b)(7) is not available. Rule 54(b) of the Utah Rules of Civil Procedure, however, allows a court to change its position with respect to any order or decision before a final judgment has been rendered in the case. See Timm v. Dewsnup, 851 P.2d 1178, 1184-85 (Utah 1993); Salt Lake City Corp. v. James Constructors, 761 P.2d 42, 44-45 (Utah App.1988). Because the substance, not caption, of a motion is dispositive in determining the character of the motion, see State v. Parker, 872 P.2d 1041, 1044 (Utah App. 1994), we will treat Mrs. Fields's motion as a Rule 54(b) motion.
[3] The plaintiff in Hodgson also relied on statements made to her by her supervisor in a preemployment interview and the disciplinary treatment of other employees to support her implied-in-fact contract claim.
[4] The fact that Judge Young replaced Judge Wilkinson is of no significance. A single judge is entitled to correct any interim order previously made, and even though a location within a judicial district is on a rotating judge calendar, the authority of the judge who actually decides the case on the merits to correct a previously entered order is undiminished. On a rotating calendar, "[i]n a sense, the two judges, while different persons, constitute a single judicial office for law of the case purposes." Gillmor v. Wright, 850 P.2d 431, 439-40 (Utah 1993) (Orme, J., concurring).
[5] See discussion, footnote 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/326977/ | 514 F.2d 758
UNITED STATES of America, Plaintiff-Appellee,v.Boyce MITCHELL, Defendant-Appellant.
No. 74-1546.
United States Court of Appeals,Sixth Circuit.
April 4, 1975.
Albert C. Harvey, Memphis, Tenn. (Court-appointed), for defendant-appellant.
Thomas F. Turley, Jr., U. S. Atty., Larry E. Parrish, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.
Before WEICK, EDWARDS and PECK, Circuit Judges.
PECK, Circuit Judge.
Defendant-appellant ("appellant") was convicted at a jury trial in district court of violating 18 U.S.C. § 1503 (1970)1 by endeavoring to influence, intimidate, or impede Robert Thurston Davis, a witness in certain then pending criminal prosecutions against appellant. See United States v. Franks, 511 F.2d 25 (6th Cir. 1975).
Very briefly, the evidence tended to show that appellant and J. D. Webster, who also was indicted in one of the indictments pending against appellant, had several times discussed killing Davis, and that Webster, by then turned government informant, at his last meeting with appellant handed over to appellant $1,000 in "expense money" to locate Davis. Federal agents, who had been electronically monitoring and recording appellant's conversation with Webster, arrested appellant and Webster shortly after the handing over of the money.
Eight of appellant's twelve claims on the instant appeal of his conviction for obstruction of justice merit discussion.2 No claim, however, requires reversal of the conviction.
1
First, appellant claims that the district judge erroneously precluded him from relying on the defense of entrapment. Appellant argues that his admission of the government's proof of his conversations with and receipt of money from Webster allows him to rely on entrapment even though he refused to admit his guilt of obstructing justice. This argument is based on his contention that whether such conversations and receipt establish obstruction of justice is a question for the jury. Defense counsel agreed with the district judge's observations that the jury could find "several possibilities" from appellant's admission, including
2
"that (appellant) was there, but that (Webster) talked him into taking the money, but (appellant) never took it with the idea of killing anybody; that he might have been using it to investigate the case, or . . . to take the money and run off with it." Trial Transcript 384.
3
Under these circumstances the district judge properly precluded appellant from relying on the defense of entrapment. Such a defense "admits all elements of the offense," United States v. Lamonge, 458 F.2d 197, 201 (6th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972), and appellant's reliance on it would be "unusual . . . in that he (would claim) he was entrapped into violating a law, that he also (would claim) he did not violate in the first place." United States v. Posey, 501 F.2d 998, 1002 (6th Cir. 1974). Of the numerous cases posing the permissibility of relying on entrapment in similar circumstances (see generally Annot., Availability of defense of entrapment where accused denied participating at all in offense, 61 A.L.R.2d 677 (1958) ), United States v. Barrios, 457 F.2d 680 (9th Cir. 1972), is the closest to being in point.
4
"(T)he admission of defendant that he possessed the (opium), coupled with his vehement denial of any knowledge regarding its nature or illegal origin, (does not) amount to such an admission as to entitle him to raise the entrapment defense." 457 F.2d at 682.
5
Second, appellant claims that the district court improperly permitted the prosecutor, in cross-examining appellant, to ask him whether he had made certain statements based upon the prosecutor's interpretation of the often inaudible tape recordings. Appellant argues that the prosecutor, by being permitted to draw his conclusions concerning what was said on recordings, invaded the jury's province. Appellant's argument, however, fails. The jury was aware of appellant's contention that "the words that are being used are (the prosecutor's) and not coming off the tape," and could properly weigh the discrepancies, if any, between what it concluded and what the prosecutor claimed was recorded, since it had heard the recordings during cross-examination and, in the course of its deliberations, could send for the recordings. Trial Transcript 355, 445. See United States v. Lawson, 347 F.Supp. 144, 149 (E.D.Pa.1972). Moreover, Webster's and the monitoring federal agents' recollection of the taped conversations, as well as the recordings themselves, underlay much of the cross-examination. See United States v. Avila, 443 F.2d 792, 796 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); United States v. Maxwell, 383 F.2d 437, 443 (2d Cir. 1967), cert. denied, 389 U.S. 1043, 1057, 88 S.Ct. 786, 19 L.Ed.2d 835 (1968); Monroe v. United States, 98 U.S.App.D.C. 228, 234 F.2d 49, 55, cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956); United States v. Enten, 329 F.Supp. 307 (D.D.C.1971). Additionally, appellant admitted that much of what the prosecutor claimed was said was, in fact, said. Where appellant denied the prosecutor's version, he did so effectively, emphasizing to the jury that the prosecutor's version certainly was far from being the only permissible version.
6
Third, appellant claims that he never violated section 1503 because the federal agents arrested him as soon as Webster handed over the $1,000 and prior to "doing anything to the witness." Yet, as the Supreme Court has recognized, section 1503
7
" . . . makes an offense of any proscribed 'endeavor.' . . . '(B)y using (the word "endeavor") the section got rid of the technicalities which might be urged as besetting the word "attempt," and it describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent. . . . (The section) is not directed at success in corrupting a juror, but at the "endeavor" to do so.' " Osborn v. United States, 385 U.S. 323, 333, 87 S.Ct. 429, 435, 17 L.Ed.2d 394 (1966), aff'g 350 F.2d 497 (6th Cir. 1965), quoting, United States v. Russell, 255 U.S. 138, 143, 41 S.Ct. 260, 65 L.Ed. 553 (1921).
8
Consequently, had the jury accepted the government's evidence, as it could properly do, United States v. Hoffa, 349 F.2d 20, 45 (6th Cir. 1965), aff'd, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), there would be sufficient evidence supporting a section 1503 conviction. See Osborn, supra (evidence that defendant told a third party to bribe a juror held sufficient even though third party neither approached nor ever intended to approach the juror); Hicks v. United States, 173 F.2d 570 (4th Cir.), cert. denied, 337 U.S. 945, 69 S.Ct. 1503, 93 L.Ed. 1748 (1949) (evidence that defendant asked a third party to arrange a meeting with a juror where defendant would attempt to persuade the juror to hang the jury held sufficient).
9
Appellant also claims that the district judge erred in admitting into evidence the indictments pending against appellant at the time of the purported endeavor to obstruct justice, his conviction on one of those indictments, and testimony that he had sold Webster certain firearms. Evidence of the pending indictments was proper as a "necessary ingredient in explaining the crime in question," United States v. Brown, 456 F.2d 569, 571 n. 4 (3rd Cir. 1971), cert. denied, 408 U.S. 923, 92 S.Ct. 2492, 33 L.Ed.2d 334 (1972), or as establishing motive, see Manning v. Rose, 507 F.2d 889 (6th Cir. 1974). Even had the admission of the indictments been improper, this would have been harmless error because appellant's credibility was properly impeached by a prior conviction on one of those indictments, United States v. Kemper, 503 F.2d 327, 330 (6th Cir. 1974), and because the district judge defined to the jury an indictment as "only a means by which the defendants are brought before the court . . . (and) not evidence." Trial Transcript 444.
10
Even if evidence of a conviction of the charge underlying an alleged obstruction of justice was inadmissible at a trial on a charge of obstructing justice, see United States v. Verra, 203 F.Supp. 87 (S.D.N.Y.1962), such evidence is admissible with instructions limiting its use for impeachment purposes3 where, as here, the convicted person testifies at the trial for obstructing justice. That such conviction was, at the time of its use for impeachment, on appeal is immaterial. United States v. Franicevich, 471 F.2d 427, 429 (5th Cir. 1973); United States v. Owens, 271 F.2d 425 (2d Cir. 1959), cert. denied, 365 U.S. 874, 81 S.Ct. 910, 5 L.Ed.2d 863 (1961).
11
The district judge properly admitted testimony that appellant had sold Webster certain firearms "as relevant evidence of appellant('s) ability and intent to commit the offenses charged," United States v. Craft, 407 F.2d 1065, 1069 (6th Cir. 1969), Banning v. United States, 130 F.2d 330, 336 (6th Cir. 1942), cert. denied, 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556 (1943), particularly since appellant claimed that much of his conversations with Webster concerning the "elimination" of Davis "was just bull, just conversation." Moreover, even if such testimony was improper, appellant's volunteered statement that he "carr(ied a pistol) at all times" would make such error harmless.
12
Finally, without citing authority, appellant claims that the district judge abused his discretion in permitting certain corroborative testimony and cross-examination. We disagree. Once defense counsel implicitly attacked the credibility of the government's key witness, Webster, by eliciting that he had not yet been sentenced on his guilty plea, it was not an abuse of discretion for the district judge to permit the government to elicit from Webster'sattorney that Webster had received no promises for his testimony. United States v. Hoffa, 349 F.2d 20, 40-41 (6th Cir. 1965), aff'd, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); United States v. Attaway, 449 F.2d 309, 311 (5th Cir. 1971). Moreover, defense counsel failed to object to such questioning. Likewise, the district judge was within his discretion in permitting the government to cross-examine appellant concerning his blanket denial of wrongdoing4 by probing the extent of his understanding of such denial.5 See United States v. Jackson, 344 F.2d 922 (6th Cir.), cert. denied, 382 U.S. 880, 86 S.Ct. 169, 15 L.Ed.2d 120 (1965); Hug v. United States, 329 F.2d 475, 484 (6th Cir.), cert. denied,379 U.S. 818, 85 S.Ct. 37, 13 L.Ed.2d 30 (1964).
13
Affirmed.
1
"Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States . . . in the discharge of his duty, or injures any . . . witness in his person . . . on account of his testifying or having testified in any matter pending therein, . . . or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both."
2
Franks, supra, disposes of four assigned errors. Franks establishes, inter alia, the propriety of the district judge's refusal to recuse himself, ordering a voice exemplar, admitting a recording of a conversation between appellant and an informant who had consented to recording the conversation, and rejecting the attempt to subject jurors of an earlier criminal trial to "fishing expedition" questioning
3
"Members of the jury, there has been some evidence introduced here to the effect that Mr. Mitchell, the defendant, has been convicted of a prior felony case. And the Court charges you that that can be considered by you only for the purpose of weighing his credibility as a witness in his own behalf, and that conviction is of no evidence whatsoever that he is guilty or committed the crime with which he was charged in this indictment."
4
"(APPELLANT'S ATTORNEY:) I want to ask you whether or not on August 15th or any other time did you corruptly endeavor to obstruct and impede the due administration of justice in the United States District Court for the Western District of Tennessee? Did you do that? Did you commit the act for which you are charged?
"(APPELLANT:) No sir."
Trial Transcript 254.
5
"Q. What does corrupt mean?
"A. I guess you overact and go out and try to do something, where your intentions are to do something . . . .
"Q. What does endeavor mean?
"A. I don't have no education, Mr. Parrish. I am not really sure what it means.
"Q. How do you obstruct something? What does that mean?
"A. I am not right sure what you mean by that question.
"Q. You don't know what the word obstruct means?
"A. Well, to build something, to obstruct a building.
"Q. How do you impede? What does impede mean?
"A. I am not sure what it means."
Trial Transcript 275, 277. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2592637/ | 57 N.Y.2d 984 (1982)
Olive Jones, Respondent,
v.
City University of New York et al., Appellants.
Court of Appeals of the State of New York.
Argued October 8, 1982.
Decided November 9, 1982.
Robert Abrams, Attorney-General (Michael S. Buskus and Peter H. Schiff of counsel), for appellants.
Walter C. Whelan and Arthur Lichtman for respondent.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
*985MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case returned to the Court of Claims for *986 consideration of respondent's motion for permission to file a late claim.
It was error on the part of the courts below to have concluded that subdivision 2 of section 6224 of the Education Law (as it existed prior to the 1982 amendment, see below) operated to extend the 90-day period of limitation for filing claims (or notices of intention to file claims) prescribed in subdivision 3 of section 10 of the Court of Claims Act. The latter subdivision provides: "A claim to recover damages for injuries to property or for personal injury caused by the tort of an officer or employee of the state while acting as such officer or employee, shall be filed within ninety days after the accrual of such claim unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the accrual of such claim."
Subdivision 2 of section 6224 (prior to the 1982 amendment) provided in pertinent part: "2. No notice of intention to file a claim or claim shall be served pursuant to subdivision four of this section, nor shall any other action or special proceeding, for any cause whatever, be prosecuted or maintained against the city university unless it shall appear by and as an allegation in the notice of intention to file a claim, claim, complaint or necessary moving papers that at least thirty days have elapsed since a demand setting forth the underlying basis for such matter was presented to the city university for adjustment, and that the officers or bodies having the power to adjust or pay such claim have neglected or refused to make an adjustment or payment thereof for thirty days, after such presentment." Subdivision 4 of section 6224 (again prior to the 1982 amendment), the statutory provision which transferred to the Court of Claims exclusive jurisdiction over claims against senior colleges of the City University of New York, provided in pertinent part: "4. Exclusive jurisdiction is hereby conferred upon the court of claims to hear audit and determine the claims of any person against the city university of New York (a) in connection with causes of action sounding in tort alleged to have been committed by a senior college of such university or any officer, agent, *987 servant or employee of a senior college of such university in the course of his employment on behalf of such university * * * in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the state, and to make awards and render judgments therefor." The consequence of the enactment of this subdivision 4 (L 1979, ch 305, § 1) was that a tort claimant against a senior college of the City University was confronted with two strictures of time. First, subdivision 2 of section 6224 mandated a 30-day waiting period after presentation of a preliminary administrative demand to the City University, a stricture at the beginning of the time spectrum. Second, subdivision 3 of section 10 of the Court of Claims Act mandated that the claim, or notice thereof, be filed in the Court of Claims within 90 days after the accrual of the claim, a stricture at the end of the time spectrum. The lower courts held that the 30-day period prescribed in subdivision 2 of section 6224, operated to extend the 90-day period of subdivision 3 of section 10. This was error.
The two sections are to be read together, and each is to be given effect according to its express terms. In substance, the 30-day waiting period (presumably to afford an opportunity for prelitigation settlement) is carved out of the 90-day period within which the claim or notice thereof must be filed.
If there were any doubt that this was the proper interpretation to be placed on these statutory provisions in effect when this case was in the Court of Claims and at the Appellate Division, all such doubt was dispelled by the enactment of chapter 711 of the Laws of 1982, effective July 22, 1982. In the provision of subdivision 4 that claims against senior colleges of the City University should be determined "in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the state",[1] there was inserted after the word "act" the phrase "including time *988 limitations".[2] Moreover, inasmuch as the 1982 amendment, in present respects at least, was made applicable to pending actions, whatever may have been the prior law, it is now dispositive of the appeal before us.
In this case, respondent's claim accrued on November 15, 1979, the day she suffered the injuries which are the basis of her claim. Her claim, however, was not filed with the Court of Claims until February 29, 1980, after the expiration of the applicable 90-day period. It was error to have concluded that such filing was timely. As the State acknowledges, respondent is entitled, however, to have the matter returned to the Court of Claims for consideration of her motion for permission to file a late claim.
Order reversed, with costs, and case remitted to the Court of Claims for further proceedings in accordance with the memorandum herein. Question certified not answered as unnecessary.
NOTES
[1] The statement in the opinion in the Court of Claims that this provision was not to be found in subdivision 4 of section 6224 was incorrect, and its conclusion, reasoned from the omission of such a provision as was included in section 361-b of the Public Authorities Law, was correspondingly flawed.
[2] The 1982 amendment also removed the prior requirement that an administrative demand for relief be presented to the City University; the requirement of presentation of administrative demand was retained as to junior colleges only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610353/ | 76 Cal. App. 2d 379 (1946)
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant,
v.
THE SMALL CLAIMS COURT OF THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.
Civ. No. 13082.
California Court of Appeals. First Dist., Div. One.
Oct. 8, 1946.
F. Eldred Boland, Burton L. Walsh and Knight, Boland & Riordan for Appellant.
Robert W. Kenny, Attorney General, Clarence A. Linn, Deputy Attorney General, John J. O'Toole, City Attorney, Reynold J. Bianchi, Deputy City Attorney, and James Martin MacInnis for Respondents.
PETERS, P. J.
The Prudential Insurance Company of America appeals from a judgment of the superior court denying to appellant a writ of prohibition by which it sought to restrain the Small Claims Court of the City and County of San Francisco from proceeding with an action pending before it in which appellant was the defendant. The appeal presents several interesting and difficult questions of first impression involving the constitutionality and interpretation of the statutes creating the small claims court, particularly as those statutes apply to corporations.
The facts giving rise to the controversy are as follows: Appellant is a New Jersey corporation qualified to do an insurance business in California. It has offices in several California cities, and in San Francisco has between 120 to 125 employees. In this city it has a manager, by name Clifford Henderson, who has also been designated as the agent of the company for the purpose of accepting service of process on appellant in this state. Some 12 employees of the company are subject to Henderson's immediate supervision. The company has regularly retained counsel in various cities in the state. In San Francisco, in all disputes growing out of life policies, the legal firm of Knight, Boland and Riordan has been the regularly retained counsel of such company for several years, and was such counsel during all times pertinent in the instant case. Burton L. Walsh is associated with that firm as a lawyer.
In May of 1945 an action was commenced in the small claims court by a holder of a Prudential life policy with disability *381 benefits naming appellant as defendant. This action involved the disability provisions of the life policy, and involved less than $50. By order appellant was directed by the court to appear and answer on a specified date. This order was served upon Henderson. Before the date fixed in the order appellant specially appeared in the small claims court and moved to quash the service of summons, urging, for reasons substantially similar to those urged on this appeal and hereafter discussed, that that court had no jurisdiction over appellant. The motion was denied, whereupon appellant sought a writ of prohibition in the superior court. An alternative writ was issued and a full hearing had. The superior court denied the application and appellant has appealed.
From the evidence it appears that the same policy holder here involved had instituted a prior action in the small claims court against appellant, and that in that action appellant sought to appear by its regularly retained counsel but had been refused permission to so appear. The result was a default judgment against appellant. After the action here sought to be restrained was instituted the legal firm involved sought and secured from a vice-president of the appellant the appointment of Walsh as the "agent and representative" of appellant to appear and defend the action. It is asserted in the petition that Walsh is the only agent or representative of appellant in California who has knowledge of all of the facts of the case or who has been authorized to appear on behalf of the company. The record shows, however, and the trial court found, that Walsh's only knowledge of the case comes from having possession of the files of the company relating to the case, that he has no other knowledge of the facts, and that these files were forwarded to him by the eastern counsel of the company. The petition alleges that the small claims court will not permit Walsh to appear and defend the present action and that this will deprive appellant of its constitutional rights.
The statutory law relating to small claims courts is to be found in the Code of Civil Procedure, section 117 through section 117r. The section primarily involved is section 117g, which provides: "No attorney at law or other person than the plaintiff and defendant shall take any part in the filing or the prosecution or defense of such litigation in the small claims court. ..."
[1] The first question presented is whether the prohibition against the appearance of lawyers renders section 117g unconstitutional. *382 It is urged that depriving a litigant of the right of counsel is a violation of due process. There can be little doubt but that in both civil and criminal cases the right to a hearing includes the right to appear by counsel, and that the arbitrary refusal of such right constitutes a deprivation of due process. (Roberts v. Anderson, 66 F.2d 874; Powell v. Alabama, 287 U.S. 45 [53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527]; Cooke v. United States, 267 U.S. 517 [45 S. Ct. 390, 69 L. Ed. 767]; Steen v. Board of Civil Service Commrs., 26 Cal. 2d 716 [160 P.2d 816].) But that does not mean that the Legislature cannot create a small claims court where informal hearings may be held without the assistance of counsel, as long as the right to appear by counsel is guaranteed in a real sense somewhere in the proceeding. It is obvious that the plaintiff cannot object, although he has no right of appeal, because he has elected to commence the action in the small claims court. If he desires an attorney he can sue, even on these small claims, in the justices or municipal courts. The defendant has no legal cause for complaint because if he is dissatisfied with the judgment of the small claims court he has a right of appeal to the superior court where he is entitled to a trial de novo. (Los Angeles Bond etc. Co. v. Superior Court, 1 Cal. App. 2d 634 [37 P.2d 159].) In that court he and the plaintiff can, of course, appear by counsel. This satisfies the due process requirement.
That this is sound constitutional doctrine has been established by the United States Supreme Court in connection with the deprivation of a jury trial in small claims or conciliation courts. The leading case is Capital Traction Co. v. Hof, 174 U.S. 1 [19 S. Ct. 580, 43 L. Ed. 873], involving a federal statute relating to the duties of the justices of the peace in the District of Columbia. It was there held that the right to a common-law jury trial as guaranteed by the Seventh Amendment to the United States Constitution was not violated by a statutory provision allowing the primary trial of civil cases of moderate amount by a justice of the peace with or without a noncommon-law jury, where the statute also allowed the parties the right to appeal to a court of record where a common-law jury could be had.
The same result was reached by the Supreme Court of Minnesota in Flour City Fuel & Transfer Co. v. Young, 150 Minn. 452 [185 N.W. 934], in upholding the constitutionality of the statute of that state creating the conciliation and small *383 debtor's court, in which juries were barred. It was there held that "The constitutional guaranty is satisfied if a party is afforded a jury trial on appeal though not in the tribunal of primary jurisdiction" citing the Hof and other cases. (185 N.W. at p. 936.) There is an interesting discussion of the purposes and background of such small debtors' courts in both the Hof and Young cases. (See, also, notes in 11 Cal.L.Rev. 276; 1 Minn.L.Rev. 107; 34 Columb.L.Rev. 932.)
The reasoning of these cases is clearly applicable here. Certainly the constitutional guaranty of a jury trial is as important as the constitutional right to appear and prosecute or defend by counsel. If the one constitutional right is not violated as long as a jury trial may be had upon appeal, the right to an appeal where a trial de novo with counsel may be had satisfies the other constitutional requirement.
This conclusion is in accord with general public policy. Justice should not be a rich man's luxury. The Magna Carta guaranteed that justice would not be denied or delayed. Ever since 1215 those interested in the administration of justice have struggled somewhat unsuccessfully to live up to that promise so far as the poor litigant is concerned. The delay and expense incident to litigation have long discouraged the attempts of the poor litigant to secure redress for claims meritorious but small in amount. These cases are relatively of as great importance to those litigants as those heard in our highest courts, but the expense of employing an attorney and paying normal court costs is more than the cause will bear. The solution to this problem arrived at not only by many states in the United States, but also in England and in many continental countries, has been to create small claims or conciliation courts where small claims may be prosecuted informally and without the cost, delay, or procedural difficulties incident to normal litigation. (See in general Hughes v. Municipal Court, 200 Cal. 215 [252 P. 575]; Leuschen v. Small Claims Court, 191 Cal. 133 [215 P. 391]; discussion in 6 Cal.Jur. 10-Yr.Supp. 246, p. 832.) If one of the litigants in such a court could employ counsel it would of necessity mean that the poor untrained litigant who could not afford to pay such costs would be at a disadvantage. That is the theory upon which our Legislature, acting well within its powers to determine within constitutional limits the social and economic policies of the state, determined by the adoption of section 117g of the Code of Civil Procedure that lawyers should be *384 excluded at the first trial of such cases. That policy has received the well-nigh universal approval of the public, the bar and the judiciary. As already held, that policy does not violate any constitutional provision.
[2] The next question to be determined is whether the statutes applicable to such small claims courts apply to corporations, i. e., may they sue or be sued in such courts? It will be remembered that section 117g of the Code of Civil Procedure provides that "No attorney at law or other person than the plaintiff and defendant" shall take any part in the prosecution or defense of such litigation. Thus the only "person" who may prosecute or defend such actions is the plaintiff or defendant. Is a corporation a "person" within the meaning of this section? There would normally be no difficulty with this question because section 17 of the Code of Civil Procedure expressly provides that "the word 'person' includes a corporation as well as a natural person." But, argues appellant, a corporation is an artificial entity separate and distinct from its officers or agents, and since section 117g prohibits any "other person" than the plaintiff or defendant from appearing, if a corporation is a "person" within the meaning of the section it is in fact prohibited from appearing at all. In other words, it is argued that the officers, agents, representatives and employees of a corporation are "other" persons within the meaning of section 117g. If this contention is sound the section would deprive corporations of the opportunity to appear and defend such actions, since the artificial entity cannot itself speak, and this would deprive corporations of due process.
The argument while ingenious is unsound. The Legislature could not have intended such a strict and unreasonable construction of the words "other person" in the section. This is made apparent not only by section 17 of the code, above quoted, but by other constitutional and statutory provisions as well. Article XII, section 4 of the Constitution, provides, in part, that "all corporations shall have the right to sue and shall be subject to be sued, in all courts, in like cases as natural persons." Section 341(1) of the Civil Code provides that every corporation has power "To sue and be sued in any court." In 6A California Jurisprudence, page 1378, section 805, the problem, amply supported by case authority, is discussed as follows: "The Code of Civil Procedure, 17, declares that the word 'person' includes a corporation as well *385 as a natural person. By that code the law of procedure is general and not divisible into special schemes of procedure, one where a corporation is a party and another where natural persons are parties. ..." In the same volume at page 1380, section 806, it is stated: "Jurisdiction, which in its broad sense is the power to hear and determine, and in its applied sense is the power to hear and determine the particular case as regards the parties therein, exists over actions by or against corporations in the same cases, and to the same extent, and is to be acquired in the same ways, as over actions between natural persons. The jurisdiction of courts is not made to depend upon the incorporate character of the parties and the venue is not jurisdictional, if no objection be made that it is improper. ..." (See for an interesting discussion of the problem J. D. L. Corp. v. Bruckman, 171 Misc. 3 [11 N.Y.S.2d 741].)
It must be apparent that when section 117g provides that only the plaintiff and defendant may prosecute or defend such actions, and prohibits any "other person" from so appearing, it did not intend to exclude, and by its language it does not exclude, a proper representative of the corporation from appearing or defending such actions. The contended for interpretation would disregard the provisions of the Constitution and the Civil Code above quoted. Since corporations can only appear through some natural person it is obvious that the proper natural person may appear to prosecute or defend such claims, and that such a proper person is not an "other person" excluded by section 117g.
There is a series of cases that it is argued compel the conclusion that a corporation under no circumstances may appear in a court of law in propria persona. (Osborn v. Bank of United States, 9 Wheat. (U.S.) 738 [6 L.Ed 204]; Aberdeen Bindery v. Eastern States P. & Pub. Co., 166 Misc. 904 [3 N.Y.S.2d 419]; Finox Realty Corp. v. Lippman, 163 Misc. 870 [296 N.Y.S. 945]; Mortgage Commission v. Great Neck Imp. Co., 162 Misc. 416 [295 N.Y.S. 107]; Brandstein v. White Lamps, 20 F. Supp. 369; Mullin-Johnson Co. v. Penn Mut. Life Ins. Co., 9 F. Supp. 175; Bennie v. Triangle Ranch Co., 73 Colo. 586 [216 P. 718]; but see A. Victor & Co. v. Sleininger, 255 A.D. 673 [9 N.Y.S.2d 323], and cases there cited.) These cases in various factual and legal situations hold that a corporation under general legal principles *386 can only appear in a court of record by and through an attorney, and may not appear and defend or prosecute through its officers or employees. Based on these cases appellant argues that since a corporation can only prosecute or defend legal actions through an attorney, and since attorneys are prohibited in the small claims courts, such corporations are denied representation. The obvious answer to this argument is that all of the above cases dealt with courts of record and dealt with general common-law principles. They all resolve around the general rule that a corporation in the absence of statutory authority, even in its own behalf, cannot practice law. None of them dealt with a statutory situation such as is here involved. Here we have a statute, section 117g, that expressly confers on corporations, as well as on other persons, the right to prosecute or defend such actions. At the same time it denies to corporations as well as to other litigants the right to appear in such actions by attorneys. Since a corporation can only speak through a natural person, it is apparent, therefore, that section 117g must be interpreted as conferring on corporations the right to appear through some representative other than an attorney. Thus, here, unlike the above cases, there is express statutory authorization for a corporation to appear in propria persona through some proper representative other than an attorney. This serves to distinguish all of the cited cases.
[3] Now who is a proper representative that may lawfully appear in such cases? Obviously, the members of the board of directors and other officers should be permitted to so appear, and this is so whether or not they are attorneys. This follows because in such cases they are not appearing as an attorney but in their capacity as an officer, and represent the corporation in the same sense as an individual attorney may appear to defend or prosecute such actions as a plaintiff or defendant in such courts. In the present case the foreign corporation did not have an officer or member of its board in California. It did have, however, a manager of its life business, who was also its statutory agent for service of all legal process, in this state. He, quite clearly, can appear on behalf of the corporation to defend the action. Just who else should be permitted to appear on behalf of the corporation is not entirely clear and could well be a subject for legislative action. In the absence of such action it would appear just and proper that any regular employee, not directly employed as a lawyer, but whose duties give him peculiar knowledge of the facts of *387 such cases, could appear to represent the corporation, and this is so whether or not he is an attorney.
It cannot logically be argued that such a limitation on the corporate right to appear is unfair in that a large part of the time of busy and highly paid executives may be consumed in defending small claims asserted against their companies. The same argument could be made against forcing the individual to appear personally and thus consuming a portion of his valuable time that he might think could be more profitably spent elsewhere. The answer to the suggestion is that the Legislature of this state, drawing on the experience of many European countries and of many American states has determined that the social benefits to the poor litigant far outweigh the slight inconveniences to the wealthy one. The determination of such a problem is for the Legislature, and as long as that body stays within constitutional limitations, the courts cannot and should not interfere.
[4] The only other problem necessary to discuss is whether Burton L. Walsh, a duly licensed attorney, should be permitted to represent appellant in this action in the small claims court. Appellant claims that although Walsh is one of its attorneys he also had specific authority to represent the company as its "agent" in this case. As already pointed out, the record shows that Walsh is an associate of the legal firm that has been retained by appellant in a purely legal capacity to represent it in its life business in and around San Francisco. Neither Walsh nor any other member of the legal firm has ever attempted to represent the company, until this case, in any other capacity than that of attorney. In a prior action between the policy holder involved in the action in the small claims court, Walsh was denied the right to appear as counsel for this corporate appellant. The action here involved was then filed in the small claims court on May 14, 1945, and service was had on Henderson, the statutory representative and manager of appellant in San Francisco. On May 19, 1945, the legal firm representing appellant requested of appellant by letter that appellant give Walsh something in writing designating him as agent and representative of the appellant to appear and to defend this particular action. On May 23, 1945, a vice-president of appellant complied with this request by designating Walsh "its agent and representative to appear on its behalf and defend" this particular action and this particular action only. Walsh pleaded and testified that he was *388 the only representative of appellant in San Francisco who had knowledge of the facts of the case, but this allegation and testimony was found to be untrue by the trial court. The finding was based on the evidence that there were over 120 employees of appellant in San Francisco, and upon Walsh's stipulation that his knowledge of the case came only from the files of appellant company that had been forwarded to him by the eastern counsel of the company and that he had no other knowledge of the case. The court also found, and these findings are also amply supported, that Walsh is not now and never has been an employee of appellant; that appellant has over one hundred employees in San Francisco; that Henderson is the manager of appellant in San Francisco and its agent designated to accept service of process. Walsh admitted that the only compensation he would receive for acting as "agent" of the corporation in this case would be the money he received as an associate of the law firm with which he is associated.
Under these circumstances it is too clear to require extended comment that Walsh was not the sort of representative of appellant permitted to appear for it under section 117g as heretofore interpreted. He was in law and in fact nothing more than the attorney for appellant, and as such prohibited from appearing for the company under the law. His purported "agency" was nothing more than an obvious attempt to circumvent the law prohibiting the appearance of attorneys in the small claims court. As already pointed out, one of the main purposes of the Legislature as expressed in the statute is to restrict the proceeding to the actual litigants and their witnesses and to prohibit either side from using a representative advocate such as an attorney. To allow one of the litigants in such actions to gain the advantage of legal representation in the manner here attempted would contravene the clear purpose and intent of such statute. That cannot be permitted. Walsh was not the type of representative of the company that may appear lawfully for such corporations under the rules heretofore discussed.
The judgment appealed from is affirmed.
Ward J., and Schottky, J. pro tem., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610354/ | 29 Cal. 2d 203 (1946)
THE PASO ROBLES WAR MEMORIAL HOSPITAL DISTRICT (a Public Corporation), Petitioner,
v.
HOWARD E. NEGLEY, as Secretary, etc., Respondent.
L. A. No. 19776.
Supreme Court of California. In Bank.
Nov. 4, 1946.
O'Melveny & Myers, James L. Beebe, William W. Alsup and Roy B. Woolsey for Petitioner.
Clyde C. Woodworth for Respondent.
TRAYNOR, J.
By this proceeding in mandamus petitioner seeks to compel the respondent, Secretary of the Paso Robles War Memorial Hospital District, to attest bonds of the district in the amount of $200,000. The issuance of the bonds was authorized by resolution of the board of directors of the district following a special bond election whereby more than two-thirds of the voters of the district voting in the *204 election cast their votes in favor of the issuance of the bonds to construct a hospital and acquire a site and all furniture, apparatus, equipment and other necessary property. The district was formed, the election was held, and the bonds were authorized pursuant to The Local Hospital District Law. (Stats. 1945, ch. 932, Health & Saf. Code, 32000 to 32313.) Respondent refuses to attest the bonds upon the ground that The Local Hospital District Law is unconstitutional.
[1] It is settled that mandamus will lie to compel the performance of a ministerial duty such as the signing or attesting of a bond or warrant or the issuance of a warrant. (Golden Gate Bridge etc. Dist. v. Felt, 214 Cal. 308, 316 [5 P.2d 585]; Mercury Herald Co. v. Moore, 22 Cal. 2d 269 [138 P.2d 673, 147 A.L.R. 1111]; City of Whittier v. Dixon, 24 Cal. 2d 664, 666 [151 P.2d 5, 153 A.L.R. 956].)
[2] The alleged grounds of unconstitutionality are: (1) That the state has no power to authorize a public corporation to build and operate a hospital as a business; (2) that the provision in The Local Hospital District Law limiting its use to counties of 200,000 population or less invalidates it as special legislation; (3) that it cannot be determined from the act whether the levy provided therein is a tax or special assessment; (4) that approximately 35,000 acres of land owned by the United States are included within the district and that this invalidates the organization of the district; (5) that the district does not intend to operate the hospital but intends to lease it to other persons for operation, and that a public body has no power to acquire property for the purpose of leasing it to private individuals; (6) that the principal and interest of the bonds must be paid from the moneys raised under the 20-cent tax limit and no additional levy may be made for that purpose; (7) that the district lies in two counties and the provisions of law for such district in two counties are both unworkable and unconstitutional; (8) that a local hospital district cannot include an entire county; (9) that it is invalid in authorizing a difference in rates to be charged nonresidents. We find no substance in any of these alleged grounds of unconstitutionality.
(1) No provision of the Constitution of the State of California or of the Constitution of the United States prohibits the Legislature from authorizing a public corporation to build and operate a hospital as a business. (Green v. Frazier, 253 U.S. 233 [40 S. Ct. 499, 64 L. Ed. 878]; Jones v. *205 Portland, 245 U.S. 217 [38 S. Ct. 112, 62 L. Ed. 252]; Standard Oil Co. v. Lincoln, 275 U.S. 504 [48 S. Ct. 155, 72 L. Ed. 395]; Puget Sound Power & Light Co. v. Seattle, 291 U.S. 619 [54 S. Ct. 542, 78 L. Ed. 1025]; see Housing Authority of the County of Los Angeles v. Dockweiler, 14 Cal. 2d 437, 450-451 [94 P.2d 794]; Chafor v. Long Beach, 174 Cal. 478, 489-490 [163 P. 670, Ann.Cas. 1918D 106, L.R.A. 1917D 685]; Kellar v. City of Los Angeles, 179 Cal. 605 [178 P. 505]; City of Oakland v. Williams, 206 Cal. 315 [274 P. 328].) "In the light of modern knowledge as to the intimate relation of the public health to the public welfare, whether regarded from a social, economic, or moral standpoint, a hospital subserves a public use." (51 Am.Jur. 400.) There can be little question that a tax for a hospital owned by a public corporation is a tax for a public purpose. (Joint Highway District No. 13 v. Hinman, 220 Cal. 578, 586 [32 P.2d 144]; Stuckenbruck v. Board of Supervisors, 193 Cal. 506 [225 P. 857]; Anaheim Sugar Co. v. County of Orange, 181 Cal. 212, 217 [183 P. 809]; Bliss v. Hamilton, 171 Cal. 123, 133 [152 P. 303]; Palos Verdes Library District v. McClellan, 97 Cal. App. 769, 776-777 [276 P. 600]; see McAllister, Public Purpose in Taxation, 18 Cal.L.Rev. 137.)
(2) The Local Hospital District Law is not invalid as special legislation because its application is limited to counties of 200,000 or less population. Counties of large population, with large cities, have many hospitals owned and operated by churches or privately endowed, but the rural counties and counties with small cities are almost entirely without such hospitals. This lack of hospitals is a threat to health and safety. To meet such a problem a classification may be made on the basis of population. (People v. Mullender, 132 Cal. 217, 222 [64 P. 299]; Martin v. Superior Court, 194 Cal. 93, 100 [227 P. 762]; see, also, Ogle v. Eckel, 49 Cal. App. 2d 599, 604-605 [122 P.2d 67].)
(3) The levy imposed by the Local Hospital District Law is an ad valorem levy on all real and personal property within the district. (Health & Saf. Code, 32200 to 32205.) A levy imposed on all of the property in a district, both real and personal, according to its value and not upon the basis of special benefit, is a general tax and not a special assessment. (Anaheim Sugar Co. v. County of Orange, 181 Cal. 212, 216-217 [183 P. 809]; American Co. v. City of Lakeport, *206 220 Cal. 548 [32 P.2d 622]; People v. Whyler, 41 Cal. 351, 354; Williams v. Corcoran, 46 Cal. 553, 555-556; Joint Highway District No. 13 v. Hinman, 220 Cal. 578, 586-587 [32 P.2d 144].)
(4) The inclusion of federally owned lands within the district does not invalidate the district. While federal land itself is not taxable, possessory rights therein and improvements thereon made by an individual for his own use and benefit are subject to taxation. (People v. Shearer, 30 Cal. 645; City of Pasadena v. County of Los Angeles, 182 Cal. 171, 176 [187 P. 418]; Outer Harbor etc. Co. v. Los Angeles County, 47 Cal. App. 194, 196 [193 P. 142].) Nontaxable lands may properly be included within an assessment district without affecting the validity of the district. (Southlands Co. v. City of San Diego, 211 Cal. 646, 667 [297 P. 521]; Cullen v. Glendora Water Co., 113 Cal. 503 [39 P. 769, 45 P. 822, 1047]; see 5 McQuillan, Municipal Corporations (2d ed.) 840.)
(5) A public body may acquire property for the purpose of leasing it to private persons. (City of Oakland v. Williams, 206 Cal. 315 [274 P. 328]; Byington v. Sacramento Valley etc. Co., 170 Cal. 124 [148 P. 791]; San Francisco v. Linares, 16 Cal. 2d 441 [106 P.2d 369]; Lynch v. City and County of San Francisco, 3 Cal. 2d 141 [43 P.2d 538]; see, also, Egan v. San Francisco, 165 Cal. 576 [133 P. 294, Ann.Cas. 1915A 754].)
(6) A levy in addition to the 20-cent tax limit may be made to pay the principal and interest of the bonds. The Local Hospital District Law provides three methods of financing: (a) annual assessments, limited to 20 cents on the $100, for maintenance and a fund to finance capital outlays (Health & Saf. Code, 32202, 32203, 32221); (b) special assessments for acquisition, construction, maintenance or alteration, which may be in addition to the 20-cent limitation prescribed by section 32203 (Health & Saf. Code, 32240, 32243); (c) bond issues for acquisition, construction, maintenance or alteration. (Health & Saf. Code, 32300 et seq.) The 20-cent tax limit referred to in section 32203 is confined to maintenance expenses and a fund for capital outlays. If the regular annual assessments are not adequate for construction purposes, special assessments may be levied or bonds may be issued for this purpose. If the principal and interest of such bonds cannot be paid out of the regular annual assessments *207 then an additional levy must be made to pay such principal and interest. The board of directors is required to levy annually a sum sufficient to pay the principal and interest of such bonds. (Health & Saf. Code, 32313.) Legislative authority to incur a debt carries with it the power to tax to meet that indebtedness unless the law clearly states a contrary intention. (Ralls County Court v. United States, 105 U.S. 733 [26 L. Ed. 957]; United States v. Fort Scott, 99 U.S. 152 [25 L. Ed. 348].)
(7) The provisions for a local hospital district in two counties are neither unworkable nor unconstitutional. The validity of joint special assessment or taxation districts has been frequently sustained. (Las Animas & San Joaquin Land Co. v. Preciado, 167 Cal. 580 [140 P. 239], Turlock Irrigation District v. Williams, 76 Cal. 360 [18 P. 379]; In re Sutter-Butte By-Pass Assessment No. 6, 191 Cal. 650 [218 P. 27]; Joint Highway District No. 13 v. Hinman, 220 Cal. 578 [32 P.2d 144]; see, also, Watson v. Greely, 67 Cal. App. 328, 339 [227 P. 664]; Hagar v. Reclamation District No. 108, 111 U.S. 701, 704-705 [4 S. Ct. 663, 28 L. Ed. 569].)
(8) A local hospital district may include an entire county. The identity of a special district is not merged in that of another political entity simply because its boundaries are the same as that of the other political entity. (Los Angeles City School District v. Longden, 148 Cal. 380, 381-382, 385 [83 P. 246]; In re Wetmore, 99 Cal. 146, 151 [33 P. 769]; Hancock v. Board of Education, 140 Cal. 554 74 P. 44]; Galt County Water District v. Evans, 10 Cal. App. 2d 116 [51 P.2d 202].)
(9) The Local Hospital District Law is not invalid because it authorizes a difference in rates to be charged nonresidents. (Bryan v. Regents of the University of California, 188 Cal. 559 [205 P. 1071]; St. Helena v. Butterworth, 198 Cal. 230 [244 P. 357]; Durant v. City of Beverly Hills, 39 Cal. App. 2d 133, 139 [102 P.2d 759]; E. A. Hoffman Candy Co. v. Newport Beach, 120 Cal. App. 525 [8 P.2d 235]; see, also, Pasadena City High School District v. Upjohn, 206 Cal. 775 [276 P. 341, 63 A.L.R. 408].)
Let the peremptory writ issue as prayed.
Gibson, C.J., Shenk, J., Carter, J., Schauer, J., and Spence J., concurred.
EDMONDS, J.
Quite aside from the questions presented for decision by the hospital district in regard to the validity of the statute creating it, I adhere to the views which I have heretofore stated in regard to a proceeding in this form. (City of Whittier v. Dixon, 24 Cal. 2d 664, 668 [151 P.2d 5, 153 A.L.R. 956]; City and County of San Francisco v. Boyd, 22 Cal. 2d 685, 707 [140 P.2d 666]; City and County of San Francisco v. Linares, 16 Cal. 2d 441, 448 [106 P.2d 369].) By this decision, a question of great public interest is determined in a suit brought by the hospital district against its secretary, no taxpayer or other person whose rights are affected being a party to the litigation. Under such circumstances, in my opinion, the action is a collusive one which should not be entertained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326490/ | Wilkins, Douglas H., J.
The plaintiffs, Creative West Architects, LLC (“Creative West”) and CWA Architects, LLC (“CWA”) brought this action for payment for architectural services rendered to defendant Downtown Natick Development Company, LLC (“DNDC”) on a construction project (“Project”) at 20 South Avenue, Natick, Massachusetts (“Property”). They also have sued DNDC’s principal, Robert F. Rinaldi and have asserted a lender liability claim against defendant Needham Bank. The third amended complaint contains ten counts, four of which name the Bank as a defendant, including Count II (mechanics lien), Count VII (accounting), Count IX (intentional interference with contractual relations) and Count X (lender liability under the so-called instrumentality theoiy).
Needham Bank has moved for summary judgment on Counts II, VII and IX on the grounds that the plaintiffs did not perfect a lawful mechanics lien against the property and lack sufficient evidence to support their other claims. After amendment of the complaint, Needham Bank filed a supplemental motion for summary judgment on Count X, on the ground that the plaintiffs have not shown grounds for lender liability. The plaintiffs have opposed both motions. After hearing and review of the parties’ written submissions, the court ALLOWS Needham Bank’s motion for summary judgment and supplemental motion for summary judgment.
BACKGROUND
The facts apparent from the parties’ Rule 9A(b)(5) statements and reasonable inferences favorable to the plaintiffs are as follows.
The defendant, Robert F. Rinaldi formed DNDC as a single asset and single-purpose entity to own the Property and develop the Project. The Project was DNDC’s sole business. Needham Bank was the principal lender to DNDC on the Project, having extended a loan of $8,631,800, secured by a first mortgage on the Property. DNDC also gave a second mortgage to the seller of the property in the amount of $380,000.
On December 1, 2006, Creative West and CWA entered into separate contracts with DNDC for the provision of architectural services. The contracts provided in relevant part:
... at the sale of each unit DNDC will pay $12,000 per unit (total $96,000) of the stated deferred fees to Creative West Architects . . . Payment of the condo sale allocation to Creative West Architects shall be concurrent with, and a part of, the closing of the unit sales. In the event that DNDC cannot pay the full $12,000 at the closing of the unit sale, the unpaid balance shall incur a [sic] 6% interest ... Postponement of payment will be permitted only if DNDC can demonstrate that the monies cannot be paid at closing due to the proprietary debts to other parties who have position over Creative West Architects (i.e., the Bank and the previous owners of the property).
Creative West and CWA are owed more than $100,000 for design, management and consulting services in connection with the development of the Project. They have not been paid, for reasons having nothing to do with the quality or completeness of their work.
Needham Bank issued a construction loan for the Project. DNDC stopped making regular interest payments in April 2009, at which point Needham Bank declared the loan in default. At approximately the same time, Rinaldi returned to work full time at EMC. From that point on, DNDC had no further involvement in the Project. Needham Bank then paid RFR’s project manager and superintendent, Dean Laprade, directly in his individual capacity to finish and oversee completion of the Project. Creative West and CWA provided no services to the Project after April 2009.
*320In May 2009, Needham Bank’s president prepared a letter to guarantee unconditionally its commitment to the Project. It then urged Rinaldi to try an accelerated marketing approach to auction the remaining units. In the summer of 2009, Needham Bank met on multiple occasions with an auctioneer concerning the private auction of the remaining units. It paid $64,000 from its own account for all up-front marketing costs to be incurred in publicizing the private auction. It also commented on, negotiated and signed a contract for auction services.
By August 2009 at the latest, Needham Bank had assumed final decision making authority on construction decisions. It was paying contractors directly for construction work performed on the Project and hired its own general contractor and subcontractors and used its own contract for these purposes. An entity wholly owned by Rinaldi, named RFR Enterprises, LLC (“RFR”), was the general contractor for the Project until Needham Bank replaced it with its own general contractor, Edgehill Construction Enterprises, Inc. (“Edgehill”), pursuant to an agreement dated September 28, 2009. As of September 30, 2009 at the latest, the Bank was no longer paying RFR. While Needham Bank honored and paid many of the contractual obligations owed by DNDC and RFR, it refused to pay the plaintiffs for their work. Instead, it hired a replacement design firm, M.Z.O. Architectural Group, Inc. (“MZO”). MZO was a preferred contractor of Needham Bank and has performed regular work for the Bank, including work on multiple Needham Bank branch offices.
As of September 2009, Needham Bank had taken over a presence in overall management of the Project. Rinaldi, DNDC and RFR were no longer involved in construction or financial decisions concerning the Project. The Bank never paid RFR. Edgehill’s principal never met or spoke with Rinaldi or any representative of RFR or DNDC. Whenever Edgehill needed direction, Edgehill went directly to Needham Bank. Needham Bank also controlled the finances of the Project. The Bank issued all construction payments directly and made all financial decisions regarding construction and development of the Project.
The Bank continued to work with and pay its own contractors and subcontractors directly at all times through the foreclosure sale on December 29, 2009. On several occasions Needham Bank met with its own general contractor, Edgehill, which took over all remaining construction activities, including the interior of units, the building exterior and common areas. Edgehill had long been a contractor for Needham Bank on all properties that the Bank expected to acquire at foreclosure.
As of September 2009 and continuing through foreclosure, Needham Bank also controlled unit sales. Two market rate units were under agreement and were scheduled to close prior to the November 2009 auction. One buyer walked away from the deal. Needham Bank extended the closing of the other unit until after foreclosure. Two additional units went under agreement at the auction. Pursuant to the mandatoiy auction terms, those sales were required to close within thirty days. Needham Bank postponed those sales until after it acquired title to the remaining units through foreclosure. It was in the borrower’s interest to consummate those closings prior to foreclosure (as originally agreed) because the outstanding loan obligations and potential deficiency of the borrower (DNDC and Rinaldi) would decrease considerably. The November 19, 2009 auction absolutely had a negative effect on the value of the Property.
On October 13, 2009, the plaintiffs recorded statements of account, listing the amounts they claimed were owed to them, at the Middlesex South District Registry of Deeds (“Registry”). The Bank contends that, at the time, DNDC owed $6,898,335.35 under its mortgage loan. The plaintiffs contend that the balance was $6,428,580.00 as of October 5, 2009. No payments were made after October 5, 2009.
On December 29, 2009, Needham Bank acquired the Property at foreclosure for a bid of $6.7 million through a subsidiary, resulting in what the Bank claims was a substantial deficiency remaining on its loan. That same day, DNDC filed a Certificate of Cancellation with the Massachusetts Secretary of State.
The plaintiffs filed this case on November 17, 2009. The plaintiffs never recorded an attested copy of the complaint in this action with the Registry. DNDC was defaulted in this case for failure to answer or defend on September 17, 2010.
DISCUSSION
The plaintiffs’ primary theory seeks to hold Need-ham Bank liable to them for DNDC’s debts under a so-called “instrumentality theory.” Under that doctrine, “a lender may be held liable . . . when the lender exerts such a degree of control over the borrower that the borrower becomes a mere business conduit for the lender . . . The instrumentality theory is akin to the piercing of the corporate veil doctrine, and has generally been used by Third Party creditors seeking to hold a lender liable for the debts of the borrower.” FAMM Steel, Inc. v. Sovereign Bank, 571 F.3d 93, 104 (1st Cir. 2009) (citations omitted). The plaintiffs must make “a strong showing that the creditor assumed actual, participatory, total control of the debtor”; the facts must “unmistakably show[ ] that the subservient corporation was being used to further the purposes of the dominant corporation and that the subservient corporation in reality had no separate, independent existence of its own.” Id. at 105 (citations omitted).
The undisputed facts fall far short of meeting this burden. They show that Needham Bank took control of the Project upon default, but acted on its own account and not through DNDC. The instrumentality theory addresses control over the borrower itself, not *321the project. The Bank here did nothing more than act to protect and realize its security, in which it had rights as a result of the mortgage transaction between it and DNDC. It never “assumed actual, participatory, total control” of DNDC as opposed to the Project. Id. See also Schwan’s Sales Enterprises, Inc. v. Commerce Bank & Trust Co., 397 F.Sup.2d 197-98 (D.Mass. 2005); Healy v. McGhan Med. Corp., 2001 WL 717110 at *6 (Super.Ct. March 29, 2001).
Moreover, the plaintiffs’ own contract with DNDC acknowledged Needham Bank’s status as a senior creditor and specifically recognized that the Bank would be paid first. There is nothing “unjust” about a creditor’s exercise of rights set forth in a mortgage, particularly as against plaintiffs who knew of those rights and agreed to take a junior position. See Schwan’s, 397 F.Sup. at 197-98 (instrumentality theory requires showing an “unjust result”).1 Cf. Volpe Construction Co., Inc. v. First National Bank of Boston, 30 Mass.App.Ct. 249, 262-63 (1991) (Courts “have no role in manipulating the risks as allocated by agreement of a sophisticated contractor, owner, and lender when they enter the transaction”). To impose liability on facts like those present here would impair the value of collateral and chill the extension of credit for housing projects.2
On their mechanics lien claim, the plaintiffs cannot show “strict compliance with statute,” as required. National Lumber Company v. United Casualty and Surety Ins. Co, Inc., 440 Mass. 723, 726 (2004). Filing the notice of contract on October 5, 2009 failed to comply with the requirement in G.L.c. 254, §2 that such filing occur within 90 days of the last performance of work on the Project—which in this case occurred in April 2009. Nor did the plaintiffs record an attested copy of the complaint within 30 days of the commencement of this action, as required by G.L.c. 254, §5. Under that section, any lien was dissolved on the 31st day. Moreover, any mechanic’s lien was extinguished by the December 29, 2009 foreclosure. Volpe Construction, 30 Mass.App.Ct. at 255.3
The claim of intentional interference with contractual relations fails for many reasons, including the express reference in the plaintiffs’ contracts to the Bank’s senior secured interests. It is difficult to conceive of a claim for interference with a contract by a senior creditor whose status as such is squarely recognized in the only relevant contracts.
More fundamentally, the Bank cannot be held liable for employing legitimate means to act to protect its interests upon default, in the absence of improper motive. See generally United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 815-17 (1990). The Bank had no contractual, fiduciary or other obligations to the plaintiffs. Acting in its own interests as secured lender was not improper in means or motive. Id. at 817 (“apparent motives were to benefit his customers and himself financially”). Offering “inducements” (in plaintiffs words) to Rinaldi to participate in the auction or otherwise to comply with the Bank’s plan to maximize repayment while avoiding foreclosure amounted to nothing more than a lender’s attempt to realize on its security. “There is no evidence that [the Bank] used threats, misrepresented any facts, defamed anyone or used any other improper means in relation to . . . the existing contract...” Id. That the Bank’s self-interested actions allegedly had the effect of reducing funds to pay the plaintiffs does not make them improper in means or motive. The suggestion that the Bank actually wanted to injure the plaintiffs is entirely speculative. The facts do not support a reasonable inference of improper motive, particularly where the Bank’s first mortgage placed it in a senior position in all respects, such that it stood to gain nothing from the plaintiffs’ loss. Id. (“There is not enough evidence to warrant a finding that his real motive in these matters was to hurt [plaintiff]”).
Finally, the Bank did not commit any act amounting to interference with the contract itself, as opposed to assertion of rights secured by the Bank’s mortgage interests. While the plaintiffs wanted the Bank to try harder to generate more funds, they cite no case suggesting that a failure to do more amounts to “interference.” The Bank’s acts in its own interest in no way promoted DNDC’s breach of the contracts. DNDC’s lack of funds did that.
The claim for an accounting fails. For one thing, the plaintiffs have not argued in opposition to summary judgment on this point. Nor have they contested that they have received the information that an accounting would provide, thus mooting Count VII. Finally, an accounting would not benefit the plaintiffs, who are not secured parties, where the Bank’s account shows that it was a secured party that was unable to collect the full amount due to it.
Finally, I reject the request for additional time to complete discovery under Mass.R.Civ.P. 56(f). The complaint has been pending since November 17, 2009 and plaintiffs’ motion to add Mr. Rinaldi as a party was allowed on April 15, 2010. The plaintiffs have not pointed to any material facts possessed exclusively by Mr. Rinaldi. They highlight Mr. Rinaldi’s role in negotiating the contracts at issue, but that is irrelevant, as the contracts are clear on their face in all material respects. The facts concerning the November 19th auction are before the court through other witnesses and have been fully considered on summary judgment.4 Indeed, the plaintiffs assert that “the current record is replete with evidence of Needham Bank’s improper interference.” Mr. Rinaldi’s testimony would be cumulative.5 The plaintiffs’ claim fails not for lack of discovery, but because the alleged facts and favorable inferences therefrom do not add up to a viable claim for intentional interference with contractual relations.
*322CONCLUSION
For the above reasons, the Needham Bank’s Motion for Summary Judgment and Supplemental Motion for Summary Judgment are ALLOWED. Judgment shall enter for Needham Bank dismissing all claims against it, namely Counts II, VII, IX and X.
Activity that is “normal commercial practice for a lender” would not trigger liability even under case law cited by plaintiffs. Kennedy v. Columbia Lumber and Mfg. Co., 299 S.C. 335, 340, 384 S.E.2d 730, 734 (1989).
Because Count X fails to state a claim on its own terms, it is not necessary to resolve whether any decision not to sell condominium units prior to foreclose was dictated or affected by the encumbrance resulting from the plaintiffs’ filing a lien at the Registry.
It is also open to serious question whether the mechanics lien statute even applies to contracts for design services. See Libbey v. Tidden 192 Mass. 175 (1906). The other problems with the plaintiffs claims makes it unnecessary to resolve that issue, or to address whether the agreement encompassed non-design services that fall within the statutory scope.
For instance, I have considered the inducements offered to Mr. Rinaldi as set forth in paragraphs 18-19 of the affidavit of Jonathon Warner, which the Bank has not moved to strike.
I am of course aware that Mr. Rinaldi remains a party to this case, whose deposition will likely occur anyway on or before May 15, 2011, pursuant to my order of January 20, 2011. The claims against Rinaldi appear factually intertwined with the claims against the Bank to the point where line-drawing disputes on the scope of discovery are reasonably likely to consume significant time and effort of the parties, if not the court. To avoid potential discovery disputes and any possible prejudice to the plaintiffs (however unlikely) from Mr. Rinaldi’s unavailability and notwithstanding today’s award of summary judgment to the Bank, deposition questions relating to the claims against the Bank shall be deemed within the scope of permissible discovery at Mr. Rinaldi’s deposition. Should the Rinaldi deposition unexpectedly reveal any facts beyond the scope of those that I today find insufficient to support the claims against the Bank, any motion for reconsideration shall be limited to such facts and shall be filed by the June 15, 2011 summary judgment deadline. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3773661/ | Michael Mundy was indicted, convicted, and sentenced in 1995 for an offense that occurred in 1994.
His appeal before us this time1 is from the denial of his petition for post-conviction relief wherein he argued that he should be re-sentenced under the more lenient sentencing provisions of S.B. 2, effective July 1, 1996. That is also his sole assignment of error on appeal.
This issue has already been decided adversely to Mundy by the Supreme Court of Ohio. State ex rel. Lemmon v. Adult Parole
(1997), 78 Ohio St.3d 186. See also our decision in State v.Pryor (Aug. 8, 1997), Miami CA No. 96 CA 49, unreported, citing and following Lemmon.
The assignment of error is overruled, and the judgment is affirmed.
WOLFF, J. and GRADY, J., concur.
Copies mailed to:
Robert K. Hendrix
Michael Mundy
Hon. M. David Reid
1 Mundy has been before this court four times on various claims in the two years since his conviction. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4274119/ | Matter of Doris M. v Yarenis P. (2018 NY Slip Op 03449)
Matter of Doris M. v Yarenis P.
2018 NY Slip Op 03449
Decided on May 10, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 10, 2018
Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ.
6526
[*1]In re Doris M., Petitioner-Respondent,
vYarenis P., Respondent-Appellant.
Bruce A. Young, New York, for appellant.
Andrew J. Baer, New York, for respondent.
Order of protection, Family Court, New York County (Gail A. Adams, Referee), entered on or about June 30, 2017, which, upon a fact-finding determination that respondent committed the family offenses of harassment in the first and second degree, directed, among other things, that respondent stay away from the apartment the parties shared until June 30, 2018, unanimously modified, on the law, to vacate the finding of harassment in the first degree, and otherwise affirmed, without costs.
The Referee erred in determining that respondent's actions of leaving water to boil over on the stove, burning the pots, allowing the bathtub to overflow on several occasions and screaming in the middle of the night while playing her music in a loud manner, constituted the family offense of harassment in the first degree, because there were no facts alleged in the family offense petition supporting such a finding (see Matter of Sasha R. v Alberto A., 127 AD3d 567, 567 [1st Dept 2015]; Matter of Salazar v Melendez, 97 AD3d 754, 755 [2d Dept 2012], lv denied 20 NY3d 852 [2012]).
Although the Referee did not set forth the basis for finding that respondent committed the family offense of harassment in the second degree, remand is not required because the record is sufficiently complete to allow this Court to make an independent factual review and draw its own conclusions (see Matter of Keith H. [Logann M.K.], 113 AD3d 555, 555 [1st Dept 2014], lv denied 23 NY3d 902 [2014]). Based on that independent review, we find that petitioner demonstrated by a fair preponderance of the evidence that respondent's actions on January 30, 2017 constituted the family offense of second degree harassment as alleged in the petition (Penal Law § 240.26[3]; Family Ct Act §§ 812[1]; 832). Petitioner's testimony that on January 30, 2017, respondent summoned the police to the apartment and attempted to have her arrested about three times that day was sufficient to support a finding that respondent's actions constituted the family offense of harassment in the second degree because they served no legitimate purpose and only alarmed or seriously annoyed petitioner (see Penal Law § 240.26[3]).
The issuance of the one-year order of protection in petitioner's favor directing respondent to stay away from petitioner, her home and employment was appropriate, because it will likely be helpful in eradicating the root of the family disturbance and fully protect petitioner (see Matter of Oksoon K. v Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied 24 NY3d 902 [2014]). Respondent's contention that the Referee should have imposed less drastic remedies at disposition ignores petitioner's dispositional testimony that she was afraid in her own home, because respondent continued leaving the stove on unattended in violation of the May 8, 2017 and June 1, 2017 temporary orders of protection.
Respondent's allegation that the Referee failed to maintain the decorum of the courtroom and was prejudiced against her is unsupported by the record.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 10, 2018
CLERK | 01-03-2023 | 05-10-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2984420/ | Dismissed and Memorandum Opinion filed April 1, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00526-CR
MISHA ALONDRA CRIDLAND AKA MISHA ALONDRA LABRY,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 11CR3204
MEMORANDUM OPINION
After a jury trial, appellant was convicted of manslaughter. On May 7, 2013,
the trial court sentenced appellant to confinement for three years in the Institutional
Division of the Texas Department of Criminal Justice in accordance with the jury’s
assessment of punishment. Appellant filed a timely motion for new trial and notice
of appeal. Appellant’s brief in this appeal was not filed, however.
On March 4, 2014, this court ordered a hearing to determine why appellant’s
counsel had not filed a brief. See Tex. R. App. P. 38.8(b). On March 17, 2014, the
trial court conducted the hearing, and the record of the hearing was filed in this
court the same day.
Appellant and her counsel appeared at the hearing. Appellant informed the
court that she wants to dismiss her appeal so that she can complete her sentence
and be released from prison. She asked to be returned to prison as quickly as
possible. Appellant confirmed to the court that her counsel had discussed the
ramifications of dismissing her appeal with her and she understood the advantages
and disadvantages. At the conclusion of the hearing, the trial court found appellant
no longer desires to prosecute her appeal and wishes to dismiss the appeal.
A supplemental clerk’s record was filed March 21, 2014, containing
appellant’s motion to dismiss the appeal, personally signed by appellant, filed in
the court below. See Tex. R. App. P. 42.2(a). In addition, the supplemental record
contains the trial court’s recommendation that the appeal be dismissed on
appellant’s motion.
On the basis of those findings, this court has construed appellant’s motion to
dismiss her appeal filed in the trial court as if the motion were filed in this court.
See Tex. R. App. P. 2. We grant the motion.
Accordingly, we order the appeal dismissed.
PER CURIAM
Panel consists of McCally, Busby, and Donovan.
Do Not Publish C Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2276038/ | 332 S.W.3d 288 (2011)
Andrea WEISENBORN, a Partially Incapacitated and Totally Disabled Individual, by and through Debbie SHOEMAKER and Jim Shoemaker, her Parents and Next Friends, Respondent,
v.
MISSOURI DEPARTMENT OF MENTAL HEALTH, Dr. Keith Schafer, Director, Missouri Department of Mental Health, sued in his official capacity, Linda Bowers, Director, for Kirksville Regional Office, sued in her official capacity, Mr. Thad Taylor, Hearings Referee, sued in his official capacity, Ms. Debra Wohlers, Asst. Director of Habilitation, Kirksville Regional Office, sued in her official capacity, Appellants.
No. WD 72126.
Missouri Court of Appeals, Western District.
January 25, 2011.
As Modified March 1, 2011.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2011.
*290 Kathleen R. Robertson, Jefferson City, MO, for appellants.
Susan K. Eckles, St. Louis, MO and Erica L. Stephens, Jefferson City, MO, for respondent.
Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.
GARY D. WITT, Judge.
Andrea Weisenborn appeals[1] the Missouri Department of Mental Health's decision denying her services under the Comprehensive Medicaid Waiver Program. We affirm the judgment of the trial court, which reinstated Weisenborn's Medicaid Waiver benefits, and remand to the trial court for a determination of reasonable reimbursement for attorney's fees and costs expended by Weisenborn at the proceedings below and on appeal pursuant to Section 536.087.
Factual Background
Andrea Weisenborn ("Weisenborn") is a twenty-nine year-old woman who was diagnosed with Prader-Willi Syndrome (PWS) with hyperphagia during her first year of her life. PWS is a genetic condition that affects brain functioning, body composition, metabolism, and cognitive/behavioral functioning. PWS affects brain functioning by causing the individual to be "always ravenously hungry and driven to eat," in that it affects the operation of the hypothalamus which is "responsible for temperature regulation, day/night sleep wake cycles, appetite control, emotional control, *291 and the production of growth and sexual hormones." Body fat/muscle composition ratios are reversed as compared to a person without this illness, and metabolism is significantly reduced. Most affected individuals demonstrate cognitive functioning in the mentally retarded range but approximately five percent can test in the normal range of cognitive functioning.
Weisenborn has PWS with hyperphagia. Hyperphagia causes an almost uncontrollable drive to excessively eat, and as a result, Weisenborn is morbidly obese and diabetic. She also has sleep apnea, cellulitis, blood clots in her legs, psoriasis, and scoliosis. According to the Referee:
She is able to use eating utensils, but she does not have self-control over her drive to eat. As a result, she must have a lock on her refrigerator and her blood sugars must be regularly tested, as a screen to determine whether she has been sneaking food. She is able to put on different clothes when instructed, but is not able to dress herself in a manner that will protect her health and hygiene. If she does not receive support, she does not put on her socks and her bra in a way that will avoid rubbing, rashes, and infections, all of which exacerbate her Diabetes and Cellulitis and can be life-threatening if left untreated.... [She] is able to get into and out of the shower, but is not physically able to reach around to wash or dry her back, and she is not mentally able to ensure that she adequately cleans and dries all parts of her body, including under the folds of her skin. If her body is not dried properly, she gets yeast infections and exacerbates her Cellulitis. Appellant is not able to trim her fingernails and toenails, due to the danger of injuring the surrounding skin, which causes complications to her Diabetes and Cellulitis.
Weisenborn is part of the small subset of those affected by PWS who do not test in the range of mental retardation on a standardized IQ test.[2] With the help of her mother's tutoring, Weisenborn completed high school receiving A's and B's. Weisenborn then attended Moberly Community College and received an associate's degree, also with significant tutoring from her mother. In 1998 at age seventeen, Weisenborn took a WAIS test which measures the IQ of school-aged children and scored a seventy-eight, which is on the border-line of mental retardation (and does not take into account her other significant behavioral deficit) but does not indicate mental retardation. At the age of eighteen, Weisenborn took a WAIS-R psychological test, used to measure IQ for adults, and scored a one-hundred, which is within the normal range of intellectual function.
Weisenborn was married in 2003. Two months later her parents obtained a limited guardianship and conservatorship, at which time they also agreed not to fight her marriage. Weisenborn serves as a self-advocate at the Regional Area Council and works two to three days a week as an in-home aide. To qualify as an in-home aide, Weisenborn had to pass the Medication Administration Examination, which she passed with a score of ninety-six. Weisenborn used to drive an automobile but has not been able to do so for several years because this gave her unsupervised access to food and she could not control her impulses.
*292 Under the Medicaid Waiver program, an administrator from the Missouri Department of Mental Health ("Department") administers a test called the Missouri Critical Adaptive Behaviors Inventory ("MOCABI") for each applicant. To qualify for services, among other requirements, an applicant must show a significant deficit in at least three of the following six areas: (1) self-care; (2) receptive and expressive language; (3) learning; (4) mobility; (5) self-direction; (6) capacity for independent living or economic self-sufficiency.
Weisenborn began receiving Medicaid Waiver services in 2003, at which time she was placed in an Independent Supported Living Placement. Her MOCABI results in both 2004 and 2006 showed she had substantial limitations in the requisite number of three areas. In each evaluation she was found deficient in: self-care, self-direction, and capacity for independent living or economic self-sufficiency. In 2008, Weisenborn was re-evaluated by Department employee Karen Moore and was again found to be deficient in the same three areas and eligible for services. However, Debra Wohlers ("Wohlers"), Assistant Director of Habilitation for the Kirksville Regional Office, reviewed Moore's scoring of Weisenborn's test and found that she had scored it incorrectly. Wohlers has served on a state-wide intake and eligibility work group to make sure assessments are consistent across the state and is experienced in administering the MOCABI. Weisenborn's MOCABI was rescored, and she was found to have substantial limitations in only two areas: self-direction and capacity for independent living or economic self-sufficiency. Weisenborn was thus found not to have substantial functional limitations in the area of self-care. Based on this assessment, Weisenborn was informed that she was no longer eligible for Medicaid Waiver Services. Weisenborn, with the assistance of her parents, appealed the termination decision, and it was agreed that the MOCABI would be re-administered.
On April 29, 2008, Wohlers re-conducted the MOCABI on Weisenborn. As a result of that test, Wohlers found that Weisenborn was no longer eligible for services through the Medicaid Waiver program because she only had a significant deficit in two of the six areas: self-direction and capacity for independent living or economic self-sufficiency.
Weisenborn appealed the denial of her Medicaid Waiver Services and on September 11, 2008, a hearing was held before Referee Thad Taylor ("Referee"). At the hearing, the Department called witnesses Bowers and Wohlers. Weisenborn's mother, Ms. Shoemaker, testified on her behalf. On October 17, 2008, the Referee issued his initial decision in Weisenborn's favor. In addition to the two uncontested areas of deficiency, the Referee found that Weisenborn had substantial functional limitations in self-care based on the evidence and found: Wohlers noted on her MOCABI that Weisenborn always asks for help to dry her back; Weisenborn once fell when showering; Weisenborn must have locks on her refrigerator; and she is unable to dress herself to protect her health and hygiene.[3]
On October 29, 2008, the Department filed a Motion to Vacate or Amend Decision. Both parties submitted additional evidence. Weisenborn filed two affidavits, one from her father and the other from Sarah Ford, Weisenborn's personal care attendant. The Department provided the *293 MOCABI tests from 2004 and 2006 and the prior IQ tests taken by Weisenborn.
On January 6, 2009, the hearing officer, after granting the Motion to Vacate and considering the additional evidence, issued an amended decision. The Amended Decision concluded: (1) Weisenborn did not "have a condition that is `found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons'"; and (2) Weisenborn did not require an ICF/MR[4] level of care if not provided the services under the Medicaid Waiver. The decision of the Referee was affirmed on appeal by the Department Director, Dr. Keith Schafer, who determined that, based on all the evidence, Weisenborn was not eligible for Medicaid Waiver services. That decision was appealed by Weisenborn to the Circuit Court of Macon County, and the decision of the Director was reversed by the trial court, which held that Weisenborn was eligible for services.
The Department appealed the decision of the trial court; however, as noted above, in matters of this nature, we review the Department's decision, not the decision of the circuit court. Thus the procedural posture of this case is that Weisenborn is appealing the Department's denial of her benefits.
Standard of Review
In an appeal following judicial review of an agency's administrative action, this Court reviews the decision of the agency, not the circuit court. Mo. Coalition for the Environment v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004). Pursuant to section 536.140.2, this Court reviews to determine "whether the agency's findings are supported by competent and substantial evidence on the record as a whole; whether the decision is arbitrary, capricious, unreasonable or involves an abuse of discretion; or whether the decision is unauthorized by law." Community Bancshares, Inc. v. Secretary of State, 43 S.W.3d 821, 823 (Mo. banc 2001).
TAP Pharm. Prods. Inc. v. State Bd. of Pharmacy, 238 S.W.3d 140 (Mo. banc 2007).
"Whether the award is supported by competent and substantial evidence is judged by examining the evidence in the context of the whole record. An award that is contrary to the overwhelming weight of the evidence is, in context, not supported by competent and substantial evidence." Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003).
An administrative agency acts unreasonably and arbitrarily if its decision is not based on substantial evidence. Whether an action is arbitrary focuses on whether an agency had a rational basis for its decision. Capriciousness concerns whether the agency's action was whimsical, impulsive, or unpredictable. To meet basic standards of due process and to avoid being arbitrary, unreasonable, or capricious, an agency's decision must be made using some kind of objective data rather than mere surmise, guesswork, or "gut feeling." An agency must not act in a totally subjective manner without any guidelines or criteria.
Bd. of Educ. v. Mo. State Bd. of Educ., 271 S.W.3d 1, 11 (Mo. banc 2008) (quoting Mo. Nat'l Educ. Ass'n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 281 (Mo.App. W.D. 2000)).
*294 This court will defer to the agency's factual findings, but we will review de novo the agency's application of the facts to the law, interpretations, and conclusions of law. Cmty. Bancshares, Inc. v. Sec'y of State, 43 S.W.3d 821, 823 (Mo. banc 2001).
Analysis
In her sole Point Relied On, Weisenborn argues the Director erred in upholding the decision of the Department finding Weisenborn ineligible for Comprehensive Medicaid Services in that the decision is not supported by competent and substantial evidence upon the whole record and is arbitrary, capricious, and unreasonable because overwhelming evidence was presented at the hearing that Weisenborn: (1) has substantial functional limitations in three areas of Major Life Activity, and (2) that but for the Medicaid Waiver services, Weisenborn would require treatment at an ICF/MR level of care.[5]
Medicaid is a "cooperative program under which the federal government reimburses state governments for a portion of the costs of providing medical assistance to low income recipients." Estate of Shuh, 248 S.W.3d 82, 84 (Mo.App. E.D.2008). The Medicaid Waiver program is one through which individuals "receive services funded by the federal program normally available only at an institution." Hyde v. Dep't of Mental Health, 200 S.W.3d 73, 74 (Mo.App. W.D.2006). Eligibility for the program is determined through a combination of federal and Missouri statutes and regulations.
I. Application of 9 CSR 45-2.015(1)(C)
Pursuant to 9 C.S.R. section 45-2.015(1)(C), to qualify for the Comprehensive Medicaid Waiver, one must: (1) be an individual with mental retardation and/or a developmental disability; (2) be Medicaid eligible; and (3) be determined to otherwise require the level of care provided in an ICF/MR.
The Department argues Weisenborn is ineligible for services because she fails to satisfy criteria (1) and (3). First, the Department argues that Weisenborn does not have mental retardation nor a qualifying developmental disability according to federal requirements.
A. Mental Retardation
In Missouri, "mental retardation" is "significantly subaverage general intellectual functioning which: (a) [o]riginates before age eighteen; and (b) [i]s associated with a significant impairment in adaptive behavior." Section 630.005(24).[6] Under federal regulations, one must show that the mental retardation originated before age twenty-two; the Department does not dispute that for purposes of the Medicaid Waiver Program, the twenty-two year-old age requirement applies.
The evidence as to Weisenborn's level of intelligence was the following: (1) before the age of twenty-two Weisenborn took two IQ tests, neither of which classified her as having mental retardation; (2) Dr. Barbara Whitman ("Dr. Whitman"), an expert on Prader-Willi Syndrome, diagnosed Weisenborn with having Mild Mental Retardation, secondary to PWS and severe behavioral difficulties; (3) Dr. Whitman submitted a letter stating generally that when individuals with PWS test outside the range of Mental Retardation, it is "illusory" because there is an overlay of several significant learning disabilities, so that *295 they "function in the range of mild retardation"; (4) Dr. Whitman conducted a Slosson Intelligence Test-Revised on Weisenborn, who received a Standard Score of 64, placing her in the Mild range of Mental Retardation; (5) Weisenborn went to regular classes throughout high school; (6) Weisenborn obtained an Associate's Degree from community college; (7) for her job as an in-home aide, Weisenborn passed the Medication Administration Examination with a score of ninety-six.
The Department states that it disregarded evidence from Dr. Whitman as to Weisenborn's alleged mental retardation for the following reasons: (1) Dr. Whitman's tests were conducted in 2007 when Weisenborn was twenty-six years old; (2) Dr. Whitman's Slosson test is only a screening tool to determine if more testing is necessary and is not used to give a true picture of an IQ; (3) in 2001, Dr. Whitman noted that Weisenborn was among the five percent of people with PWS who do not score within the range of mental retardation.
Considering the evidence as a whole, the Department's conclusion that Weisenborn does not qualify as having mental retardation is supported by substantial evidence. Weisenborn's main witness, Dr. Whitman, initially concluded in 2001 that she is in that five percent group that tests above a mentally retarded range on cognitive testing with the caveat that she has hyperphagia. The additional tests conducted by Dr. Whitman did not satisfy the Department that Weisenborn has mental retardation. Linda Bowers, Director of the Kirkville Regional Office for the Department, and Wohlers testified that the tests used by Dr. Whitman were not used by the Department to evaluate mental retardation in adults. There were multiple IQ tests and substantial evidence that suggest Weisenborn does not have mental retardation, including her accomplishments in education, employment, and community work.[7]
B. Developmental Disability
This does not end our inquiry. Because to qualify for Medicaid Waiver services, Weisenborn must either fall within the regulations as mentally retarded or developmentally disabled, the analysis now turns to whether Weisenborn has a "developmental disability" within the meaning of the appropriate regulations. See 9 C.S.R. section 45-2.015(1)(C). Missouri defines a "developmental disability" as a disability:
(a) Which is attributable to:
a. Mental retardation, cerebral palsy, epilepsy, head injury or autism, or a learning disability related to a brain dysfunction; or
b. Any other mental or physical impairment or combination of mental or physical impairments; and
(b) Is manifested before the person attains age twenty-two; and
(c) Is likely to continue indefinitely; and
(d) Results in substantial functional limitations in two or more of the following areas of major life activities:
a. Self-care;
b. Receptive and expressive language development and use;
c. Learning;
d. Self-direction;
*296 e. Capacity for independent living or economic self-sufficiency;
f. Mobility; and
(e) Reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, habilitation or other services which may be of lifelong or extended duration and are individually planned and coordinated;
Section 630.005(9).
Of import to the case at bar is that instead of requiring only two substantial limitations in a major life activity as set forth in subsection (d) above, the federal regulations require three substantial limitations to qualify as having a "developmental disability" that qualifies as a "related condition" to "mental retardation." 42 C.F.R. section 435.1010. Therefore, in order to be eligible for the Medicaid Waiver services, a person without mental retardation must meet the requirements of having a "developmental disability" pursuant to section 630.005 and must be substantially limited in three of the major life activities listed in subsection (d), as is required by the federal regulations.
The parties agree that Weisenborn has a developmental disability under Missouri law in that she satisfies the definition set forth in section 630.005 because they agree that she is substantially limited in two major life activities: "self direction" and "capacity for independent living or economic self-sufficiency." The issue in dispute is, based upon the evidence, does Weisenborn have substantial functional limitations in the area of "self-care," to satisfy the federal requirements of substantial limitations in three major life activities to qualify for Medicaid Waiver services.
The regulations provide that a comprehensive evaluation is to be conducted to determine whether the applicant is eligible for services from the Department. 9 C.S.R. section 45-2.010(3). The comprehensive evaluation for adults includes, but is not limited to:
an interdisciplinary assessment team's:
A. Review of the results of the MOCABI;
B. Review of available vocational, medical and educational information;
C. Review of additional individualized assessment and interview results to provide evidence of mental or physical impairments likely to continue indefinitely, evidence of substantial functional limitations caused by mental or physical impairments and evidence of a need for sequential and coordinated special services which may be of lifelong or extended duration; and
D. Formulation of conclusions and recommendations;
9 C.S.R. section 45-2.010(2)(D)3. The MOCABI provides for the recording of information for each statement regarding the ability of the applicant to do certain things from three sources: (1) observation by the intake worker; (2) self-report by the applicant; and (3) verbal reports by members of the applicant's family or other reliable individuals. The MOCABI direction manual states that "[d]irect observation by the intake worker is the preferred source of information."
"Self-care" is defined as "[d]aily activities which enable a person to meet basic needs for food, hygiene and appearance; demonstrated ongoing ability to appropriately perform basic activities of daily living with little or no assistance or supervision." 9 C.S.R. section 45-2.010(2)(O)1. The Department argues that the major life activity category of "self-care" only pertains to whether an applicant is able to do an activity and not whether the applicant has the capability of properly choosing to do an *297 activity. It is the Department's position that "[w]hether Weisenborn chooses to make the decision to follow through on her abilities and knowledge is her choiceand her ability to make appropriate choices is addressed under self-direction and capacity for independent living or economic self-sufficiency, areas in which there is no dispute that Weisenborn is substantially impaired." An evaluation of these alternative categories and the facts of this case refute the Department's conclusion that Weisenborn is not limited in the area of "self-care."
Contrary to the Department's position, "self-care" does in fact contemplate not only knowledge and physical ability to perform various tasks of "self-care" but also the ability of the applicant to appropriately choose to perform such tasks. Under the "self-care" category, the various ability statements contained within the regulations do not differentiate between the physical ability to do an activity and whether the applicant has the ability to appropriately choose to perform the activity. The instructions for the self-care category require that "[t]he applicant must demonstrate the ongoing ability to appropriately perform basic activities of daily living with little or no assistance or supervision." (Emphasis added.) "Self-care," by definition and as applied in the MOCABI, contemplates not only mental knowledge and physical ability to complete various tasks but also the mental capacity to be able to appropriately choose to perform such tasks.
The Department argues that appropriately choosing to do the activities listed under "self-care" falls under the "self-direction" category. "Self-direction" is defined as "[m]anagement and control over one's social and personal life; ability to make decisions and perform activities affecting and protecting personal interests; demonstrated ongoing ability to take charge of life activities as age-appropriate through an appropriate level of self-responsibility and assertiveness." 9 C.S.R. section 45-2.010(2)(O)5. Ability statements under the "self-direction" category include things such as making and implementing: "essentially independent daily personal decisions regarding a schedule of activities"; "independent major life decisions"; and "independent daily personal decisions regarding diet." Also, that the applicant possesses adequate social skills and can manage personal finances. The "tasks" listed under each category are different, and it is clear that the "self-direction" category does not contemplate one's ability to appropriately choose to perform the basic tasks of "self-care."
The Department alternatively argues that the ability to appropriately make choices to perform the activities listed under "self-care" comes under the "capacity for independent living or economic self-sufficiency" category. "Capacity for independent living or economic self-sufficiency" is defined as:
[a]ge-appropriate ability to live without extraordinary assistance from other persons or devices, especially to maintain normal societal roles; ability to maintain adequate employment and financial support; ability to earn a living wage, net (determined by the interdisciplinary assessment team for each individual), after payment of extraordinary expenses caused by the disability; demonstrated ability to function on an ongoing basis as an adult independent of extraordinary emotional, physical, medical or financial support systems.
9 C.S.R. section 42-2.010(2)(O)6. Sample activity statements under this category include: that the applicant can carry out regular duties and chores, is aware of community activities, can be left alone for *298 twenty-four hours without being at risk, and is able to demonstrate competence as an employee. This category clearly does not contemplate having the ability to appropriately choose to perform basic tasks of "self-care."
In his original decision, the Referee concluded that substantial evidence had been presented at the hearing that Weisenborn was limited in the category of "self-care." In the Findings of Fact, the Referee found that:
Appellant has a Substantial Functional Limitation in the category of self-care. She is able to use eating utensils, but she does not have self-control over her drive to eat. As a result, she must have a lock on her refrigerator and her blood sugars must be regularly tested, as a screen to determine whether she has been sneaking food. She is able to put on different clothes when instructed, but is not able to dress herself in a manner that will protect her health and hygiene. If she does not receive support, she does not put on her socks and her bra in a way that will avoid rubbing, rashes, and infections, all of which exacerbate her Diabetes and Cellulitis and can be life-threatening if left untreated. If she does not receive support, she will not regularly change her socks and underwear, which also can lead to hygiene problems. Applicant is able to get into and out of the shower, but is not physically able to reach around to wash or dry her back, and she is not mentally able to ensure that she adequately cleans and dries all parts of her body, including under the folds of her skin. If her body is not dried properly, she gets yeast infections and exacerbates her Cellulitis. Appellant is not able to trim her fingernails and toenails, due to the danger of injuring the surrounding skin, which causes complications to her Diabetes and Cellulitis.
In his Amended Decision, the Referee found Weisenborn ineligible for Medicaid Waiver Services in part because he found persuasive the argument that the previous MOCABI tests conducted on Weisenborn were problematic and that there was a "misunderstanding on how to administer the test. The mistake was discovered after the March 28, 2008 MOCABI, and steps were taken to correct it." Specifically, in the Findings of Fact of the Amended Decision, the Referee found that there had been an error in the scoring of the MOCABI in the area of "self-care," because the worker considered "limitations in the Major Life Activity area of Self-Direction as also being a substantial functional limitation in the area of Self-Care." Comparing the original decision and the amended decision, it is clear that the Referee did not change his original findings of fact as to Weisenborn's limitations but changed his decision based on an erroneous application of the law.[8] As previously discussed, the area of "self-care" includes both the physical ability and knowledge needed to perform basic life activities and the mental ability to appropriately choose to perform the activities.
Weisenborn's family, her in-home aide, and the MOCABI all provided evidence that while Weisenborn physically may be able to perform some of the tasks identified in the area of "self-care," her illness prevents her from making appropriate choices with respect to such tasks. The testimony provided on behalf of the Department does not refute that Weisenborn has such problems, only that these problems *299 should be classified under "self-direction" rather than "self care." The Department in its brief conceded that "there is no dispute that Weisenborn is substantially impaired" in her ability to make appropriate choices. Accordingly, the Department misapplied the law when it found that Weisenborn was not limited in the area of "self-care." Based on the evidence, Weisenborn has developmental disability and is limited in three major life activities and meets this requirement for eligibility for Medicaid Waiver services.
C. Condition Related to Mental Retardation
Weisenborn qualifies as a person with a related condition to Mental Retardation under the regulations. 42 C.F.R. section 435.1010 defines "persons with related conditions" as "individuals who have a severe, chronic disability that ... is attributable to [c]erebral palsy or epilepsy; or [a]ny other condition, other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for these persons." The condition must manifest itself before the person reaches age 22, be likely to continue indefinitely, and must result in a substantial functional limitation in three or more areas of major life activity. Id. As previously discussed, Weisenborn is substantially limited in three areas of major life activities, so the only remaining question under 42 C.F.R. section 435.1010(a) to analyze is whether the PWS is closely related to mental retardation.
The sole evidence relied on by the Department to deny that Weisenborn's condition is not closely related to mental retardation was the testimony of Wohlers. Wohlers is not an expert in psychology or PWS but rather is the assistant director of habilitation. Her responsibilities include supervising case management, which involves determining eligibility for services. Wohlers has a Bachelors of Arts Degree in Psychology and a Masters Degree in English. Wohlers testified that the services received by Weisenborn assist her in controlling her drive to eat, caused by PWS, and they assist Weisenborn in matters concerning personal hygiene. Wohlers in her testimony stated that she did not believe the effects of PWS (namely hyperphagia) and services related to PWS were traditional with people with mental retardation. To support her position, Wohlers utilized a letter written on behalf of Weisenborn by Dr. Whitman in support of Weisenborn's application for Medicaid. In that letter, Dr. Whitman describes the effects of PWS, including hyperphagia, and continues on to say that:
[t]he impact of this biological drivenness to eat combined with a lack of medications to manage this drive impacts the affected persons [sic] ability to work in any but the most protected environments, and limits their ability to live independently as there must be a full time "guardian" to protect the person from quite literally "eating themselves to death."
In another letter, Dr. Whitman stated that "[Weisenborn's] cognitive limitations combined with the brain driven hunger leaves [her] severely handicapped. She cannot be left alone due to the "hyperphagia" or "drive to seek food and eat" and that "even those few individuals who test in a cognitively normal range, function in the range of mild mental retardation." The evidence relied on by Wohlers to support her conclusion refutes her own position. The authority relied on by Wohlers indeed suggests that the services required by a person with PWS are similar to that of a *300 person with mental retardation because they function in the range of mild retardation. Wohlers is not a medical expert and has no expertise in PWS, whereas Dr. Whitman does.
Further, hyperphagia was only one of many symptoms of PWS for which Weisenborn needs care. As found by the Referee, Weisenborn also requires assistance dressing herself to protect her health assistance in putting on clothing to avoid rubbing, rashes, and infections that exacerbate her Diabetes and Cellulitis, which are both life-threatening if left untreated. Further, Weisenborn needs help in matters of personal hygiene. Wohlers testified to none of this when she determined that she did not believe that the services required by Weisenborn were "traditional" of persons with mental retardation. The Department's decision that Weisenborn was not a person with a "related condition" was contrary to the overwhelming weight of the evidence and, therefore, not supported by substantial and competent evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003).
D. ICF/MR Eligibility
The Department also concluded in its Amended Decision that Weisenborn was ineligible for Medicaid Waiver services because "an individual must be determined to require an ICF/MR level of care if not provided the services under the Medicaid Waiver." It concluded that "[u]pon subsequent review of the evidence for this Amended Decision, it is clear that Appellant has never been placed in an ICF/MR, but rather that she had been placed in an Individualized Supported Living (ISL) arrangement in the community, which does not fulfill the criteria to be found eligible for the Medicaid Waiver." (Emphasis added.) While citing the correct standard, the Department relies solely on the fact that Weisenborn has never been placed in an ICF/MR facility to justify its decision to deny benefits, which is not a requirement under the standard.
The applicable regulations require that the applicant for Medicaid Waiver services have mental retardation or a related condition (42 C.F.R. section 435.1010), have a need for the level of care provided in an ICF/MR (42 C.F.R. section 440.150), and a determination that but for the waiver, the applicant would be institutionalized in such an institution (42 C.F.R. section 441.302). The Medicaid Waiver program, acting as an alternative to institutionalization, does not require prior institutionalization before one is qualified to receive benefits, as conceded by the Department. The Department argues, however, that the Referee in his Amended Decision was merely correcting his original decision, which had found that "[i]f Appellant's Comprehensive Medicaid Waiver-funded services are discontinued [...] [it] would require her to again be institutionalized at an ICF/MR level of care." (Emphasis added.) Weisenborn had in fact never been institutionalized in an ICF/MR level of care facility but was previously placed in an ISL arrangement. In the Amended Decision, the Referee again concluded that Weisenborn "does not require an ICF/MR level of care."
The problem with this conclusion is that the sole enumerated basis for finding that Weisenborn does not require an ICF/MR level of care was that she had never previously been placed in such an institution. The Amended Decision is bereft of any factual findings that Weisenborn's needs do not in fact rise to such a level. This appears to be due to the fact that no evidence was offered by either party on what the ICF/MR level of care consists of, what services Weisenborn will lose if she is denied Medicaid Waiver services, and what services she will still qualify for subsequent to such a denial. An ICF/MR facility:
*301 (a) Is primarily for the diagnosis, treatment, or rehabilitation of the mentally retarded or persons with related conditions; and
(b) Provides, in a protected residential setting, ongoing evaluation, planning, 24-hour supervision, coordination, and integration of health or rehabilitative services to help each individual function at his greatest ability.
42 C.F.R. section 435.1010.
However, the evidence is unclear as to whether Weisenborn needs the level of care services provided by an ICF/MR as enumerated in subsection (b). From the evidence it does appear that she needs a protective residential setting that has "ongoing evaluation, planning, 24-hour supervision, coordination, and integration of health or rehabilitative services." 42 C.F.R. section 435.1010. There is substantial evidence in the record that Weisenborn's PWS requires that she be monitored at all times due to her hyperphagia. Further, the record shows that Weisenborn needs a variety of services with respect to "self-care," which, if not provided, would be severely detrimental to her health and well-being and could result in death. There was substantial evidence that without the services provided by the Department that Weisenborn does indeed need an inpatient level of care. The Department argues that other services received by Weisenborn from the State of Missouri should be considered when determining whether Weisenborn would be placed in ICF/MR facility without the Medicaid Waiver Services. However, the State did not offer any evidence as to what services Weisenborn would in fact still receive due to her classification as "developmentally disabled" under Missouri law, even if she were denied Medicaid Waiver services.
The burden of producing such evidence at the underlying hearing is set forth in 9 C.S.R. section 45-2.020(3)(C)5, which establishes the appeal procedures within the Department. This section provides that "[t]he head of the facility shall have the burden of proof and the burden of going forward to either establish that either the applicant does not meet the state's statutory criteria for services eligibility or that the client has so improved that s/he no longer would benefit from the level of services which had been previously provided." 9 C.S.R. section 45-2.020(3)(C)5. While inartfully worded, it is clear that the burden was on the Department to produce evidence of whether Weisenborn would require an ICF/MR level of care if she were denied Medicaid Waiver services. Because the Department failed to produce any evidence on this issue at the underlying hearing it has failed to meet its burden.
Conclusion
Weisenborn made a timely request for fees and costs pursuant to Section 536.087 in the trial court. Section 536.087 provides that a prevailing party in an "agency proceeding" shall be awarded reasonable attorney's fees and reimbursement for reasonable expenses incurred in the proceeding and also on judicial review. This court has previously addressed whether an application and appeal concerning Medicaid waiver services constitutes an "agency proceeding." It does not. See Braddock v. Missouri Dep't of Mental Health, 200 S.W.3d 78 (Mo.App.W.D.2006). Section 536.085(1) defines "agency proceeding" as "an adversary proceeding in a contested case pursuant to this chapter in which the state is represented by counsel, but does not include proceedings for determining the eligibility or entitlement of an individual to a monetary benefit or its equivalent." (emphasis added). Braddock held that a claim for Medicaid waiver services was "expressly excluded from the *302 definition of agency proceeding in Section 536.085(1) and, therefore, precluded [recovery of] attorney's fees under Section 536.087.1." 200 S.W.3d at 82. Therefore, Weisenborn's request for attorney's fees is denied.
As was previously addressed, in actions of this nature, we review the agency's decision and not that of the trial court; however, the appellate court acts upon the trial court's judgment. Bird v. Mo. Bd. of Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Landscape Architects, 259 S.W.3d 516, 520 n. 7 (Mo. banc 2008) (Citing to Rule 84.14). Therefore, the judgment of the trial court, which reinstated Weisenborn's Medicaid Waiver benefits is hereby affirmed.
All concur.
NOTES
[1] Weisenborn is classified as the Respondent because she appealed the Missouri Department of Mental Health's decision to the Circuit Court of Macon County and the Department's decision was reversed. The Department now appeals the determination by the circuit court. However, because the Court of Appeals reviews the Department's decision, not the circuit court's, the procedural posture in reality is that Weisenborn is appealing the Department's denial of her benefits. TAP Pharm. Prods. Inc. v. State Bd. of Pharmacy, 238 S.W.3d 140, 141 (Mo. banc 2007).
[2] An IQ score below seventy is the primary tool used to diagnose mental retardation, but an IQ score up to seventy-five can be used if the individual exhibits significant deficits in adaptive behavior. AM. PSYCHIATRIC ASS'N DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 41-42 (4th ed.2000).
[3] The Referee noted that these deficiencies could cause other health related issues which, based on her condition, could be life threatening.
[4] "IFC/MR" stands for Intermediate Care Facility for Mental Retardation. ("ICF/MR")
[5] The Director adopted the factual findings and the legal conclusions of the Referee.
[6] All statutory references are to RSMo 2000 as updated through the 2009 cumulative supplement, unless otherwise indicated.
[7] For current purposes it is unnecessary to address the Department's argument that the IQ tests conducted after Weisenborn reached the age of twenty-two are not relevant. We will only point out the peculiarity of this argument in that the relevant statute only says that the mental retardation must originate before a certain age irrespective of when it was diagnosed. The parties agree that she was diagnosed with PWS at one year of age.
[8] A review of the evidence submitted by the parties to the Referee between the original decision and the amended decision shows no factual support for the Referee to abandon or modify his original factual findings regarding Weisenborn's functional limitations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559573/ | 20 So.3d 143 (2009)
Scott HURST and Sheryl Diller
v.
EAGLES LANDING IV, LTD.
2070892.
Court of Civil Appeals of Alabama.
March 6, 2009.
*144 Linda L. Howard and Chandra C. Wright of Murchison & Howard, L.L.C., Foley, for appellants.
Bert P. Taylor and Rosemary S. Moore of Taylor Ritter, P.C., Orange Beach, for appellee.
THOMPSON, Presiding Judge.
In June 2004, Sheryl Diller entered into a lease agreement with Eagles Landing IV, Ltd., to lease an apartment. The lease agreement included two provisions related to arbitration. One indicated that the parties agreed "that any tort or other claim arising from [Diller]'s residence in the [apartment] may be submitted to arbitration," and the other provided that "[e]ither party may submit any dispute relating to [the lease agreement] to arbitration." The lease agreement also provided that Eagles Landing "shall not be liable for any damage, loss, or injury to persons or property occurring within [the apartment] or upon the premises, whether caused by [Eagles Landing] or someone else." Scott Hurst, Diller's fiance, moved into the apartment with Diller.
On November 28, 2004, a fire destroyed the apartment. On November 28, 2006, Hurst and Diller sued Eagles Landing. They alleged that repairs Eagles Landing had made to the apartment due to damage caused by Hurricane Ivan, which had made landfall in September 2004, were performed in an unsafe manner and, specifically, that Eagles Landing had refused to properly repair the electrical system on the premises. They alleged that Eagles Landing had failed to maintain the premises on which the apartment was located in a safe condition and that Eagles Landing had failed to warn them of the dangerous condition of the premises.
On March 28, 2007, Eagles Landing filed a motion to dismiss and a motion to compel arbitration. On July 23, 2007, the trial court granted Eagles Landing's motion to compel arbitration and placed the case on its administrative docket. The arbitration occurred on April 14, 2008. On April 29, 2008, the arbitrator rendered a decision in favor of Eagles Landing.[1] The arbitrator concluded that the lease agreement "insulated" Eagles Landing from liability for the damage caused by the fire. The arbitrator's decision was mailed to the parties on May 2, 2008.
On June 17, 2008, Hurst and Diller filed a motion with the trial court to remove their case from the administrative docket and to enter a final judgment based on the arbitrator's decision so that, according to Hurst and Diller, they could perfect their appeal. On the same day, Hurst and Diller *145 filed a notice of appeal to this court. On June 26, 2008, the trial court removed the case from its administrative docket and entered a final judgment in favor of Eagles Landing.
Because it lacked appellate jurisdiction, this court transferred the appeal to the supreme court. The supreme court subsequently transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.
Hurst and Diller contend that, because of the supreme court's recent decision in Horton Homes, Inc. v. Shaner, 999 So.2d 462 (Ala.2008), the case should be remanded to the trial court to allow them to file a motion to vacate the arbitration decision. Specifically, they argue that, before Shaner, the procedure for appealing an arbitration decision was unclear but that, in Shaner, the supreme court clarified the law regarding appeals from such decisions and set forth the proper procedure to be followed, which includes a requirement that a party file a motion to vacate an arbitration award as a condition precedent to obtaining appellate review of the award. Hurst and Diller contend that this court should remand this case so that the procedures set forth in Shaner can be followed.
In Shaner, William Shaner initiated arbitration proceedings against H & S Homes, L.L.C., and Horton Homes, Inc., regarding his purchase of a mobile home. The arbitrator awarded Shaner $487,500, following which Shaner submitted the award to the Montgomery Circuit Court. The circuit clerk entered a judgment on the award on July 10, 2007, and, on August 17, 2007, H & S Homes and Horton Homes filed notices of appeal.
On appeal, the supreme court first addressed the timeliness of H & S Homes' and Horton Homes' notices of appeal:
"Both H & S Homes and Horton Homes state that their appeals are brought pursuant to § 6-6-15, Ala.Code 1975, and Rule 4, Ala. R.App. P. Section 6-6-15 provides:
"`Either party may appeal from an award under this division. Notice of the appeal to the appropriate appellate court shall be filed within 10 days after receipt of notice of the award and shall be filed with the clerk or register of the circuit court where the action is pending or, if no action is pending, then in the office of the clerk or register of the circuit court of the county where the award is made. The notice of appeal, together with a copy of the award, signed by the arbitrators or a majority of them, shall be delivered with the file of papers or with the submission, as the case may be, to the court to which the award is returnable; and the clerk or register shall enter the award as the judgment of the court. Thereafter, unless within 10 days the court shall set aside the award for one or more of the causes specified in Section 6-6-14, the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final judgement [sic] from which an appeal shall lie as in other cases.'
"(Emphasis added.) Rule 4(a)(1), Ala. R.App. P., provides, in pertinent part:
"`Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from ....'
"H & S Homes and Horton Homes filed their separate notices of appeal on *146 August 17, 2007, 42 days after the arbitrator entered his award in favor of Shaner, but presumably not within 10 days after they received notice of that award. It is apparent from the citations to Birmingham News Co. v. Horn, 901 So.2d 27 (Ala.2004), and Sanderson Group, Inc. v. Smith, 809 So.2d 823 (Ala.Civ.App.2001), in the statements of jurisdiction in their respective briefs that H & S Homes and Horton Homes timed the filing of their notices of appeals on the belief that § 6-6-15, Ala. Code 1975, was modified by Rule 4, Ala. R.App. P., to allow 42 days for filing an appeal from an arbitration award. See Sanderson Group, 809 So.2d at 827 (`Although § 6-6-15 requires that an appeal be taken within 10 days, Rule 4 expanded that period to 42 days.'). In Birmingham News, this Court discussed, but did not explicitly affirm, the Court of Civil Appeals' analysis of § 6-6-15 and Rule 4 in Sanderson Group, stating:
"`In that case, the Court of Civil Appeals considered the timeliness of an appeal from an arbitration award that had been filed within 42 days of the entry of the final judgment on the award but not within 10 days of the entry of the final judgment. The Court of Civil Appeals determined that the effect of the 42-day appeal period allowed by Rule 4, Ala. R.App. P., was to expand the 10-day period specified under § 6-6-15, so that the appeal in that case was timely filed.'
"901 So.2d at 41. However, we also stated in Birmingham News that `[w]e note further that Appendix II ("Statutes and Rules Superseded") and Appendix III ("Statutes Modified") to the Rules of Appellate Procedure do not list § 6-6-15 as among those statutes which have been superseded or modified by those rules.' 901 So.2d at 42. This statement was misleading, however, as Appendix III (`Statutes Modified') does include the predecessor to § 6-6-15Tit. 7, § 843, Code of Ala.1940as being among those statutes that were modified by Rule 4(a) to expand the time for taking an appeal from 10 to 42 days. Nevertheless, based at least in part on Birmingham News, the Court of Civil Appeals subsequently issued an opinion holding that an appeal of an arbitration award was untimely if the notice of appeal was not filed within the 10-day period specified by § 6-6-15:
"`The arbitrator dismissed [the appellant's] claim, with prejudice, on February 22, 2006. Pursuant to § 6-6-15, [the appellant] had 10 days after receiving notice of the arbitrator's award dismissing the claim in which to file his appeal. Although the record on appeal does not indicate when [the appellant] received notice of the arbitrator's award, he had to have received notice no later than March 6, 2006, the date [the appellant] filed a motion challenging that award. [The appellant] did not file his notice of appeal until August 7, 2006, well after the expiration of the 10-day period specified under § 6-6-15 for filing an appeal from an arbitrator's award. Therefore, pursuant to the plain language of § 6-6-15, [the appellant's] appeal is untimely.
"`We recognize that Rule 4(a)(1), Ala. R.App. P., provides:
"`"Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from ...."
*147 "`In Birmingham News Co. v. Horn, 901 So.2d 27, 42 (Ala.2004), our supreme court noted that "Appendix II (`Statutes and Rules Superseded') and Appendix III (`Statutes Modified') to the Rules of Appellate Procedure do not list § 6-6-15 as among those statutes which have been superseded or modified by those rules." The Supreme Court in Horn did not conclude that Rule 4(a)(1) extended from 10 days to 42 days the period for filing an appeal from an arbitration award under § 6-6-15. However, even if Rule 4(a)(1) does extend the period for filing such an appeal, we note that [the appellant] failed to file his appeal within 42 days of his receiving notice of the arbitrator's award.
"`Because [the appellant] did not timely file his appeal pursuant to the filing requirements of § 6-6-15, we dismiss the appeal.'
"Chambers v. Courtesy Pontiac-GMC Trucks, Inc., 969 So.2d 167, 168-69 (Ala. Civ.App.2007).
"To eliminate any confusion, we now explicitly recognize that Rule 4 does operate to expand the statutory time period for taking an appeal of an arbitrator's award from 10 days from the date of receipt of notice of the award to 42 days from that date. To the extent Chambers holds otherwise, it is overruled. Likewise, any contrary dicta in Birmingham News concerning the time period in which to appeal a judgment entered on an arbitration award is overruled. The appeals of H & S Homes and Horton Homes are indeed timely."
Shaner, 999 So.2d at 464-466.
Following its discussion of the timeliness of the notices of appeal, the supreme court set upon the task of clarifying the procedure for appealing an arbitration decision, writing:
"The judgment entered by the circuit clerk on the arbitrator's award pursuant to § 6-6-15 is a conditional one; it does not become a final appealable judgment until the circuit court has had an opportunity to consider a motion to vacate filed by a party seeking review of the arbitration award. A party seeking review of an arbitration award is required to file a motion to vacate during this periodwhile the judgment entered by the circuit clerk remains conditionalin order to preserve its ability to later prosecute that appeal to an appellate court once the judgment becomes final. This is so not only because § 6-6-15 contemplates a party's first seeking relief from an award in the circuit court, but also because `[a]ny grounds not argued to the trial court, but urged for the first time on appeal, cannot be considered.' Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 165 (Ala.2005).
"Section 6-6-15 provides that the judgment entered by the circuit clerk is to remain conditional for only 10 days, after which it `shall become final' unless it has been, during that 10-day period, set aside by the circuit court. However, this short time span10 daysis impractical in application and not consistent with the Alabama Rules of Civil Procedure that govern postjudgment motions. It is unreasonable to expect a party to file a motion to vacate, the opposing party to respond, and the circuit court to then thoughtfully consider their arguments all within a 10-day period. Accordingly, we modify that timeline established in § 6-6-15 as follows to make it consistent with the Alabama Rules of Civil Procedure and to allow for a more meaningful review by the trial court.
"Rule 59(e), Ala. R. Civ. P., provides that a party has 30 days after the entry *148 of judgment to file a motion to alter, amend, or vacate that judgment. Accordingly, borrowing from the spirit of Rule 59(e), we hold that a party desiring judicial review of an arbitration award pursuant to § 6-6-15 must file in the appropriate circuit court a motion to alter, amend, vacate, or set aside the award within 30 days of filing the notice of appeal of the arbitration award and the clerk's entry of the conditional judgment based thereon. If that motion is timely filed, the circuit court shall then have 90 days, unless that time is extended by the consent of all the parties, to dispose of the motion. See Ala. R. Civ. P. 59.1 (`A failure by the trial court to dispose of any pending post-judgment motion within [90 days], or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.').
"If the circuit court grants the motion to vacate during this 90-day period, then the nonmovant has 42 days from the order granting the motion in which to file in the circuit court a notice of appeal of the court's judgment. If the circuit court denies the motion to vacate within 90 days or allows the motion to be denied by inaction after 90 days, then the conditional judgment entered by the circuit clerk becomes final, and the appeal is processed based on the prior notice of appeal."
Id. at 467-468 (footnotes omitted). Because the law had been unclear regarding the proper manner in which to appeal an arbitration award, the supreme court determined that it would be unjust to deny H & S Homes and Horton Homes relief on appeal on the basis that they did not file a motion to vacate the award in the trial court. As a result, the supreme court reversed the trial court's judgment and remanded the cause to the trial court to allow H & S Homes and Horton Homes to file motions to vacate the arbitration award within 30 days of the date of the supreme court's opinion. The supreme court ordered that
"[i]f, within the following 90 days, the circuit court denies those motions or otherwise allows the conditional judgment entered by the circuit clerk to become final by default, H & S Homes and Horton Homes may engage in further appellate proceedings that permit us to review the circuit court's action with new briefs and a record that includes grounds asserted in any subsequently filed motions to vacate."
Id. at 468-469 (footnote omitted).
Following the June 20, 2008, release of the opinion in Shaner, our supreme court adopted Rule 71B, Ala. R. Civ. P., which sets forth the following procedure for appealing an arbitration award:
"(a) Who may appeal. Any party to an arbitration may file a notice of appeal from the award entered as a result of the arbitration.
"(b) When filed. The notice of appeal shall be filed within thirty (30) days after service of notice of the arbitration award. Failure to file within thirty (30) days shall constitute a waiver of the right to review.
"(c) Where filed. The notice of appeal shall be filed with the clerk of the circuit court where the action underlying the arbitration is pending or if no action is pending in the circuit court, then in the office of the clerk of the circuit court of the county where the award is made.
"(d) What filed. With the notice of appeal, the appellant shall file a copy of the award, signed by the arbitrator, if there is only one, or by a majority of the arbitrators, along with the submission to the arbitrator or arbitrators and any supporting documents or record of the *149 proceedings, if available. If no record is available, the appellant shall so state. If a record is to be prepared but is not completed within the time provided in paragraph (b) of this rule, the appellant shall so state in the notice of appeal and shall file the record within thirty (30) days after the filing of the notice of appeal, unless the court for good cause shown shall allow additional time.
"(e) How served. If the arbitration arose out of a pending action, service shall be made as provided in Rule 5[, Ala. R. Civ. P.]. If there is no action pending, service shall be made as provided in Rules 4 through 4.4[Ala. R. Civ. P.,] and upon any counsel who appeared in the arbitration for the party being served.
"(f) Procedure after filing. The clerk of the circuit court promptly shall enter the award as the final judgment of the court. Thereafter, as a condition precedent to further review by any appellate court, any party opposed to the award may file, in accordance with Rule 59, [Ala. R. Civ. P.,] a motion to set aside or vacate the judgment based upon one or more of the grounds specified in Ala. Code 1975, § 6-6-14, or other applicable law. The court shall not grant any such motion until a reasonable time after all parties are served pursuant to paragraph (e) of this rule. The disposition of any such motion is subject to civil and appellate rules applicable to orders and judgments in civil actions.
"(g) Appellate review. An appeal may be taken from the grant or denial of any Rule 59 motion challenging the award by filing a notice of appeal to the appropriate appellate court pursuant to Rule 4, Alabama Rules of Appellate Procedure."
Rule 71B became effective on February 1, 2009. Except that Rule 71B requires a notice of appeal from an arbitration decision to be filed within 30 days after the service of notice of the arbitration award, rather than 42 days after receipt of the notice of the award, the procedure set forth in Rule 71B is virtually identical to the procedure set forth in Shaner.
On June 17, 2008, when Hurst and Diller filed their notice of appeal from the arbitrator's award, they did not have the benefit of the clarification of the proper procedure for appealing an arbitration award set out in Shaner, nor did they have the benefit of the declaration of the procedural framework applicable to such appeals set out in Rule 71B. Instead, they were faced with a confusing array of conflicting statutes, rules, and judicial opinions. The supreme court did not release Shaner until three days after Hurst and Diller filed their notice of appeal. Although it is true that the trial court did not enter a final judgment until June 26, 2008, six days after the release of Shaner, it is clear that the parties and the trial court acted without knowledge of the clarification of the law set out in Shaner, particularly given their treatment of the trial court's June 26, 2008, judgment as a final judgment disposing of the case, ending the trial court's jurisdiction, and quickening the notice of appeal to this court.
Because of the confusing state of the law with regard to appealing arbitration awards before the release of Shaner, and given the timing of the release of Shaner compared with the procedural history of this case, we conclude that it would be unjust to hold that Hurst and Diller have waived their arguments on appeal by having failed to raise those arguments in the trial court in a Rule 59(e), Ala. R. Civ. P., motion. At the same time, however, we are committed to the rule of appellate law that "`[a]ny grounds not argued to the trial court, but urged for the first time on appeal, cannot be considered.'" Shaner, *150 999 So.2d at 467 (quoting Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 165 (Ala. 2005)). As a result, and in keeping with the outcome of Shaner and the outcomes of cases that have followed Shaner (see, e.g., Ace Title Loan, Inc. v. Crump, 14 So.3d 94 (Ala.2009); Credigy Receivable, Inc. v. Day, 3 So.3d 206 (Ala.Civ.App. 2008)), we conclude that the appropriate disposition of this appeal is a reversal of the trial court's final judgment and a remand of the case to that court for the application of the procedural rules set forth in Rule 71B, Ala. R. Civ. P.[2] Specifically, on remand, the trial court should enter a conditional judgment on the arbitration award. Within 30 days of the entry of that order, Hurst and Diller should file with the trial court a motion to vacate the arbitration award pursuant to Rule 59(e), Ala. R. Civ. P. If, within 90 days following the filing of that motion, the trial court denies that motion, or if the trial court allows that 90-day period, or any extension thereof, see Rule 59.1, Ala. R. Civ. P., to expire without taking action on their motion, the conditional judgment will become a final judgment subject to further appellate proceedings by Hurst and Diller.[3]
During the pendency of this appeal, Eagles Landing filed a motion with this court to strike the statement of facts contained in Hurst and Diller's principal brief. It argues that their statement of facts contains information not included in the record on appeal. Because this court, in resolving this appeal, did not rely on those portions of the statement of facts that Eagles Landing contends were improperly included in Hurst and Diller's brief, its motion to dismiss is due to be denied as moot. Thus, Eagle Landing's motion to strike is denied.
REVERSED AND REMANDED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] Although Hurst does not appear to have been a party to the lease agreement, the record does not reflect that he argued to the trial court, and he does not argue on appeal, that he was not subject to the arbitration provisions contained in the lease agreement.
[2] We note Eagles Landing's argument that Hurst and Diller's notice of appeal was untimely because they did not file it within 10 days of the date by which the parties were notified of the arbitration award, as required by § 6-6-15, Ala.Code 1975. It contends that, because Shaner was released three days after they filed their notice of appeal, the holding in Shaner that Rule 4, Ala. R.App. P., extends to 42 days the deadline for filing a notice of appeal from an arbitration award does not apply in this case. We disagree.
Before Shaner, there was a significant conflict over whether the 42-day filing deadline in Rule 4, Ala. R.App. P., superseded the 10-day filing deadline in § 6-6-15, Ala.Code 1975; the idea that a 10-day filing deadline was applicable was not a settled principle. Compare Sanderson Group, Inc. v. Smith, 809 So.2d 823, 827 (Ala.Civ.App.2001) ("Although § 6-6-15 requires that an appeal be taken within 10 days, Rule 4 expanded that period to 42 days."), with Chambers v. Courtesy Pontiac-GMC Trucks, Inc., 969 So.2d 167, 169 (Ala.Civ.App.2007) ("Because [the appellant] did not timely file his appeal pursuant to the filing requirements of § 6-6-15, we dismiss the appeal."). Shaner merely clarified the law in this regard. Thus, we are bound by Shaner to conclude that a 42-day filing deadline applied to Hurst and Diller's notice of appeal from the arbitration award, there being no contrary rule that was indisputably applicable at the time of its filing.
Separately, we note that the record does not disclose when Hurst and Diller received notice of the arbitration award. Instead, it discloses only that the notice was mailed to them on May 2, 2008, and that they filed their notice of appeal on June 17, 2008, 46 days after the notice of the award was mailed. Any issue relating to whether Hurst and Diller timely filed their notice of appeal within 42 days of their receipt of notice of the arbitration award should be resolved on remand.
[3] Because we resolve the appeal in this manner, we need not address the parties' additional appellate arguments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876917/ | 247 S.W.3d 587 (2008)
Norman MORRIS, Claimant/Appellant,
v.
C.L. SMITH COMPANY and Division of Employment Security, Respondents.
No. ED 90857.
Missouri Court of Appeals, Eastern District, Division Five.
March 18, 2008.
Norman Morris, St. Louis, MO, pro se.
Matthew R. Heeren, Jefferson City, MO, for respondents.
C.L. Smith Co., St. Louis, MO, pro se.
PATRICIA L. COHEN, Chief Judge.
Norman Morrison (Claimant) appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing his application for review of the denial of unemployment benefits. We dismiss the appeal.
A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible to receive unemployment benefits, because he had been discharged from work for misconduct connected with work. In a separate determination, the deputy also concluded that Claimant was disqualified for one week because he had failed to enter the required number of work search contacts. Claimant appealed these decisions to the Appeals Tribunal of the Division, which dismissed his appeal on October 18, 2007. Claimant then filed an *588 application for review with the Commission. The Commission dismissed his application for review as untimely. Claimant appeals to this Court.
The Division has filed a motion to dismiss Claimant's appeal, because this Court has no jurisdiction over the appeal. The Division asserts that Claimant's application for review to the Commission was untimely, which divests both the Commission and this Court of jurisdiction. Claimant has failed to file a response to the motion.
An unemployment claimant has thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. Here, the Appeals Tribunal mailed its decision to Claimant on October 18, 2007. Therefore, Claimant's application for review was due thirty days later, on Monday, November 19, 2007. Section 288.200.1; Section 288.240, RSMo 2000. Claimant mailed his application for review to the Commission in an envelope postmarked November 26, 2007, which is the date of filing. Section 288.240. Accordingly, the application for review was untimely under section 288.200.1.
There are no exceptions in the unemployment statutes to the thirty-day filing requirement. Filing a timely application for review, therefore, is a jurisdictional requirement in both the Commission and this Court. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App.E.D.2003). Without jurisdiction over the appeal, we must dismiss it.
The Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.
BOOKER T. SHAW, J., and NANNETTE A. BAKER, J., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4561329/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 50 EM 2020
:
Respondent :
:
:
v. :
:
:
CARLOS TORRES, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 28th day of August, 2020, the Petition for Leave to File Petition for
Allowance of Appeal Nunc Pro Tunc is GRANTED. Counsel is DIRECTED to file the
already-prepared Petition for Allowance of Appeal within 5 days. | 01-03-2023 | 08-28-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2984490/ | March 20, 2014
JUDGMENT
The Fourteenth Court of Appeals
THE CITY OF SOUTH HOUSTON, Appellant
NO. 14-12-01119-CV V.
SANDRA RODRIGUEZ, Appellee
________________________________
This cause, an appeal from the trial court’s order denying appellant The City
of South Houston’s plea to the jurisdiction, signed November 27, 2012, was heard
on the transcript of the record. We have inspected the record and find the trial
court erred in denying the plea. We therefore order the trial court’s order
REVERSED and REMAND the cause with instructions for the trial court to
dismiss appellee Sandra Rodriguez’s claims against The City of South Houston.
We further order that all costs incurred by reason of this appeal be paid by
appellee Sandra Rodriguez.
We order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1000886/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7660
ALBERT CURTIS MILLS,
Plaintiff - Appellant,
versus
RUTH NEWBORN,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
97-3413-DKC)
Submitted: February 10, 2000 Decided: February 14, 2000
Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Albert Curtis Mills, Appellant Pro Se. Stephanie Judith Lane-Weber,
Assistant Attorney General, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Albert Curtis Mills appeals from the district court’s order
denying his motion for reconsideration of the dismissal of his 42
U.S.C.A. § 1983 (West Supp. 1999) action. We have reviewed the
record and the district court’s opinion and find no reversible
error. Accordingly, we affirm on the reasoning of the district
court. See Mills v. Newborn, No. CA-97-3413-DKC (D. Md. Nov. 23,
1999).* 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.
AFFIRMED
*
Although the district court’s order is marked as “filed” on
November 22, 1999, the district court’s records show that it was
entered on the docket sheet on November 23, 1999. Pursuant to
Rules 58 and 79(a) of the Federal Rules of Civil Procedure, it is
the date the order was entered on the docket sheet that we take as
the effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610368/ | 76 Cal. App. 2d 481 (1946)
RALPH D. HEDDING, Appellant,
v.
A. R. PEARSON et al., Respondents.
Civ. No. 15105.
California Court of Appeals. Second Dist., Div. Three.
Oct. 14, 1946.
Arthur Garrett for Appellant.
Stanley N. Barnes, Richard T. Drukker and Chase, Barnes & Chase for Respondents.
KINCAID, J. pro tem.
Plaintiff, appellant herein, brought this action for damages for personal injuries sustained by him through contact with a truck owned by defendant Pearson and operated by defendant Zentz as the employee of such owner. The defendants filed separate answers denying plaintiff's allegations of negligence and each set up the affirmative defense of contributory negligence on the part of plaintiff. The case was tried before a jury, which returned a verdict in favor of defendants, and from the resulting judgment plaintiff appeals.
The facts of the case are substantially without contradiction. Plaintiff was employed as a welder by Western Industrial Engineering Company. On May 31, 1943, he was directed by his foreman to perform welding work on a flat steel plate which was located in a driveway situated within the plant. The plate was so large that it extended entirely across the driveway and could not, because of its size and the crowded condition of the shop, be accommodated inside. Some 75 trucks passed through this driveway each day and plaintiff had been instructed to keep clear of such trucks when notified. Zentz, as a truck driver for Pearson, drove a truck owned by the latter to the plant of plaintiff's employer to deliver two large die castings. He signed in at the plant entrance and was directed to drive inside onto a driveway and he would be shown where to unload. He saw plaintiff lying on his side in the driveway, creating a bright light by welding something, when he first drove his truck there. He also saw plaintiff arise and step aside to let him pass, whereupon he drove his truck over the plate upon which plaintiff had been working. Upon resuming his work plaintiff was again instructed to desist in order to allow defendant's truck to back up. He stepped aside while the truck again crossed the plate in the driveway and *483 stopped at the point where it was unloaded. Plaintiff then returned to his welding and for the succeeding 20 to 30 minutes continuously burned his bright welding arc except for brief periods while changing welding rods. After the die castings were unloaded, Zentz mounted his truck, started his motor and proceeded forward for the purpose of leaving the premises. After he had gone about 3 feet, according to Zentz, or about 20 feet according to the testimony of plaintiff, the truck came in contact with plaintiff. Zentz heard someone "holler" and stopped his truck. The first knowledge plaintiff had that the truck was about to move forward was when he heard the motor start, whereupon he rolled over backward in an attempt to elude the truck but it ran onto his legs. From the foregoing facts it is quite evident that Zentz knew, or in the exercise of reasonable care should have known, that at the time he started his truck to leave the premises plaintiff was working in the driveway in close proximity to the front of his truck.
The primary question presented by this appeal is whether prejudicial error occurred in the instructions to the jury concerning the law relative to the defense of assumption of risk as applied to the facts herein. After instructing the jury as to the matters of negligence and contributory negligence, the following were given:
"There is a legal principle commonly referred to by the term 'assumption of risk,' which now will be explained to you:"
"One is said to assume a risk when he freely, voluntarily and knowingly manifests his assent to dangerous conduct or to the creation or maintenance of a dangerous condition, and voluntarily exposes himself to that danger, or when he knows, or in the exercise of ordinary care would know, that a danger exists in either the conduct or condition of another, or in the condition, use or operation of property, and voluntarily places himself, or remains, within the area of danger."
"One who thus assumed a risk is not entitled to recover for damage caused him without intention and which resulted from the dangerous condition or conduct to which he thus exposed himself."
"Your attention is called to a distinction between contributory negligence and assumption of risk. As said elsewhere in these instructions, contributory negligence must contribute in some degree, as a proximate cause, to the happening of the accident. But assumption of risk, if it meets with the *484 requirements of the law as stated to you, will bar recovery for damage although it plays no part in causing the accident except merely to expose the person to danger."
It is the contention of plaintiff that the quoted instructions are incorrect statements of law, and, even if correct under proper facts and circumstances, are prejudiciously erroneous, incomplete and misleading as applied to the evidence in the instant case.
[1] The defenses of assumption of risk and contributory negligence are often confused. "The distinction between the two types of defenses leads to important legal consequences." (Rest., Torts, vol. 4, p. 497.) As to assumption of risk, as distinguished from contributory negligence, American Jurisprudence (vol. 38, pp. 845-7), states: "The principle that one who voluntarily assumed the risk of injury from a known danger is debarred from a recovery is recognized in negligence cases. ... (A) plaintiff who, by his conduct, has brought himself within the operation of the maxim, 'volenti non fit injuria,' cannot recover on the basis of the defendant's negligence. In the words of the maxim as translated, 'that to which a person assents is not esteemed in law an injury.' Although there is authority for confining the doctrine of assumption of risk to cases arising out of the relation of master and servant, or at least to cases involving a contract relationship, it is now fairly well settled that the defense of assumed risk may exist independently of the relation of master and servant. The maxim, 'volenti non fit injuria,' applies in a proper case independently of any contract relation. It is said that one who knows, appreciates, and deliberately exposes himself to a danger 'assumes the risk' thereof. One cannot deliberately incur an obvious risk of personal injury, especially when preventive measures are at hand, and then hold the author of the danger for the ensuing injury. Thus, a person upon the property of another, who deliberately chooses to expose himself to danger of a patent character in the condition of the premises, which he could easily avoid with the exercise of care, may not hold the landowner liable for any resulting injuries, whatever may be the nature of his relationship to the landowner. ..."
"The defense of assumption of risk is closely associated with the defense of contributory negligence. One who does not exercise ordinary care for his own safety is said, speaking broadly, to assume the risk, that is, take the chance, of being *485 hurt. The defense of assumption of risk is not incompatible with contributory negligence; the two defenses may arise under the same state of facts. ... However, there is a clear distinction between the defense of assumption of risk and the defense of contributory negligence, notwithstanding they may arise under the same set of facts and may sometimes overlap. There is a line of demarcation which, if carefully scrutinized and followed, will allow the court to differentiate between them. Assumption of risk rests in contract or in the principle expressed by the ancient maxim, 'volenti non fit injuria,' whereas contributory negligence rests in tort. The former involves a choice made more or less deliberately and negatives liability without reference to the fact that the plaintiff may have acted with due care, whereas the defense of contributory negligence implies the failure of plaintiff to exercise due care. As stated in some decisions, assumption of risk is a mental state of willingness, whereas contributory negligence is a matter of conduct." (See, also, 45 C.J. 1043; Landrum v. Roddy, 143 Neb. 934 [12 N.W.2d 82, 149 A.L.R. 1041].)
The acts and conduct of the plaintiff herein, as reflected by the evidence, constituted at most an assumption of risk of the type included within the law relating to contributory negligence. Plaintiff's work compelled him to assume the position occupied by him at the time of the accident in question. As will be hereafter shown, the amount of care which he is compelled to exercise for his own safety under such conditions may well be less by reason of the necessity of his giving attention to his work than would otherwise be the case. [2a] The facts as to the extent of plaintiff's knowledge of the danger, as to whether plaintiff was unreasonable in encountering the risk, and as to whether he failed to exercise due care under the existing conditions were matters which he was entitled to have considered and determined by the jury. Instead, the jury was instructed as to a principle of law which is inapplicable to the facts, had the effect of eliminating these vital questions and of advising the jury that they might find for defendants, regardless of their wrongful conduct, so long as the injury to plaintiff was not intentionally caused by them. Such is not the law when applied to a factual situation such as is here presented. [3] One who is necessarily working on a highway or other place where there is vehicular traffic, and is injured through the negligent operation of a vehicle, cannot be deprived of his cause of action for damages *486 upon the theory that he voluntarily assumed the risk of injury. Under the circumstances of plaintiff's injury, the jury could well have understood the instructions as justifying a verdict for defendants upon mere proof that plaintiff knew, or should have known, that vehicles might come his way.
[4] If any instructions were to be given in this case on the subject of assumed risk, they should have further included a proviso that, while a person assumes the perils which are naturally incident to the position he has taken, he does not assume dangers which can come only from the negligent acts of another. (Muskin v. Gerun (1941), 46 Cal. App. 2d 404, 410 [116 P.2d 105]; 19 Cal.Jur. 589, 30.) In the case of Gornstein v. Priver (1923), 64 Cal. App. 249 [221 P. 396], the plaintiff was one of a party riding in two hired trucks. She, with others, was sitting on the truck floor in such a manner that her legs hung over the rear end. The truck in which she was riding made a sudden stop for a street car. The second truck was following the first so closely as to be unable to stop and it collided with the rear of the first truck, resulting in injury to plaintiff's legs before she had a chance to withdraw them. To defendants' contention that they were completely absolved of any liability by reason of the position of peril in which she had voluntarily placed herself, the court replied that she did not assume the risk of danger created by the negligent operation of the trucks by the drivers, saying (p. 257): "[T]hough she assumed all the risks ordinarily incident to the position in which she seated herself on the truck, whether it was known to her to be dangerous or not--such risks, for example, as might be due to the ordinary and usual swaying of the truck or its ordinary and usual movements--still she did not forfeit her right to exact from defendant and his servants the same care to which she would have been entitled had she taken the safest seat on the vehicle." To the same effect, see Bee v. Tungstar Corp. (1944), 65 Cal. App. 2d 729, 733 [151 P.2d 537]; Kersten v. Young (1942), 52 Cal. App. 2d 1, 9 [125 P.2d 501]; Wilmot v. Golden Gate Investment Co. (1940), 41 Cal. App. 2d 664, 668 [107 P.2d 263].
In several pertinent cases the refusal of the trial court to give proposed instructions on assumption of risk was held to be proper under the facts of each case. In Ostertag v. Bethlehem etc. Corp. (1944), 65 Cal. App. 2d 795 [151 P.2d 647], plaintiff was employed by an independent contractor doing *487 electrical work in defendant's plant. At the direction of his foreman and of his immediate superior, Schnipper, he worked with the latter on the south wall of the building installing a cable. Two overhead tracks extended between the east and west ends of the building close to the north and south walls, upon which tracks ran an electrically driven crane. Work had been suspended for three days on the south wall but men had been working on the north wall in the meantime. Knowledge of the operator of the crane or his lookout as to plaintiff's presence at the time of the accident was a fact in dispute. Plaintiff and Schnipper noticed the crane in operation at the opposite end from where they were working. They worked facing each other and at Schnipper's direction plaintiff took a position with his back to the crane and with one foot on the crane rail. After a short time Schnipper saw the crane approaching, cried a warning resulting in the stopping of the crane, but not until it had crushed plaintiff. To the contention of defendant that the foregoing facts constituted a bar to recovery by plaintiff because of his voluntary assumption of the risk of injury, the court said (pp. 801-2): "Respondent was a helper acting under the immediate direction of the journeyman Schnipper. At Schnipper's direction he was working with him in the place where he was injured. His work compelled him to assume a position with his back to the crane. The courts have often recognized that where a person must work in a position of possible danger the amount of care which he is bound to exercise for his own safety may well be less by reason of the necessity of his giving attention to his work than would otherwise be the case. (Barboza v. Pacific Portland Cement Co., 162 Cal. 36, 40 [120 P. 767]; Roddy v. American Smelting etc. Co., 34 Cal. App. 2d 457, 460-1 [93 P.2d 841]; Mecham v. Crump, 137 Cal. App. 200, 203-4 [30 P.2d 568]; Woods v. Wisdom, 133 Cal. App. 694, 696-7 [24 P.2d 863]; Jones v. Hedges, 123 Cal.App, 742, 752 [12 P.2d 111]; Driscoll v. California St. R. R. Co., 80 Cal. App. 208, 215 et seq. [250 P. 1062].) Whether or not respondent was guilty of contributory negligence on all the facts disclosed by the evidence was a jury question."
"On the claimed assumption of risk this case is not unlike Jones v. Hedges, supra, where the argument was made that the decedent, a workman on the highway who was struck and killed by an automobile driven into a dense cloud of smoke caused by hot oil being sprayed upon the pavement by a road construction crew of which decedent was a member, had *488 assumed the risk of such injury. This court, in the Jones case, pointed out that the decedent was in the performance of his duties under the direction of his foreman and held that 'in a controversy between Jones or his heirs and a driver exercising ordinary care, Jones might be regarded as having assumed the usual risks incident to his employment; but he cannot be held to have assumed the risk of death through the negligent propulsion of an automobile upon him.' Indeed it is unthinkable that a workman performing services for an independent contractor on the premises of another, under the direction of his superior and at the place where such services under the contract must necessarily be performed, should be held to have assumed the risk of injury by the negligent act of the owner of the premises or of the owner's agent or employee. As stated in DeGraf v. Anglo California Nat. Bank, 14 Cal. 2d 87, 99-100 [92 P.2d 899]:"
" 'But, even conceding the applicability of the doctrine of "assumed risk" to the instant case, it is clear, with reference thereto that the determinative question was whether, in consideration of all the circumstances, plaintiff conducted himself as a reasonable and prudent person.'"
"The refusal of the court to give appellant's proposed instructions on assumption of risk was proper under the facts of this case."
Another case to the same general effect wherein the refusal of the trial court to instruct the jury as to assumption of risk was upheld is Weaver v. Shell Co. (1939), 34 Cal. App. 2d 713 [94 P.2d 364]. There the plaintiff was employed at a gasoline filling station where the defendant, through its employee, was delivering a tank load of gasoline to its customer, plaintiff's employer. By reason of the claimed negligence of defendant an explosion occurred, the gasoline was ignited and plaintiff was burned. The court said (pp. 721-2): "An instruction upon the doctrine of assumption of risk was proposed by appellants. The applicability of the doctrine is based upon the knowledge and appreciation of a danger and the voluntary occupation of a position of danger in disregard of the use of ordinary care. In this connection the time, the place, the person, and the relationship of the parties, should be considered. It is conceivable that one person may occupy with perfect safety a position that would be dangerous to another."
"In addition to cases involving the relationship of master and servant, the above doctrine has been invoked where some contractual obligation exists, such as the right upon payment *489 of a fee to witness a performance or exhibition. Under such circumstances the doctrine is applicable to one who voluntarily assumes a position of danger (Quinn v. Recreation Park Assn., 3 Cal. 2d 725 [46 P.2d 144]); likewise to one who, without contract, knowingly participates in a hazardous undertaking such as riding on a fire engine making a test run (Grassie v. American LaFrance F. E. Co., 95 Cal. App. 384 [272 P. 1073]), or attempting to ride an unbroken mule (Whalen v. Streshley, 205 Cal. 78 [269 P. 928, 60 A.L.R. 445]). But in all cases the party must have knowledge of the existing conditions and must or should appreciate under all the surrounding circumstances the possibility of the danger involved and of the hazardous position assumed. Appellant Bodily, as an employee of appellant Shell Company, had theretofore delivered gasoline under similar circumstances. Nothing had occurred from which could be drawn a reasonable inference that he would be negligent in the delivery on the day in question. Decedent was not an employee of the defendant Shell Company, nor a fellow employee of the defendant Bodilly. In view of the legal doctrines above referred to, the trial court was justified in refusing to give the proposed instruction." (See, also, Pollard v. Foster (1942), 54 Cal. App. 2d 502, 505 [129 P.2d 448]; Graff v. United Railroads of San Francisco (1918), 178 Cal. 171, 176 [172 P. 603]; Roberts v. Sierra Railway Co. (1910), 14 Cal. App. 180 [111 P. 519, 527].)
[2b] Since the instructions which were given the jury on the subject of assumption of risk by the plaintiff were inapplicable to the facts in this case, the giving of them was improper. Without them the jury, in the light of a consideration of the entire case, might well have taken into consideration the additional factors, previously alluded to and italicized, and have come to a different conclusion from that reached by them. Such being the case, they were prejudicial to the plaintiff's cause and constitute grounds for reversal. (Aurenz v. Los Angeles Ry. Corp. (1937), 19 Cal. App. 2d 401, 403 [65 P.2d 910]; Aurenz v. Los Angeles Ry. Corp. (1939), 35 Cal. App. 2d 615, 617 [96 P.2d 397]; Scandalis v. Jenny (1933), 132 Cal. App. 307, 313 [22 P.2d 545]; Buttrick v. Pacific Elec. Ry. Co. (1927), 86 Cal. App. 136, 139 [260 P. 588].)
The judgment is reversed and the case remanded for a new trial, appellant to recover his costs on appeal.
Desmond, P. J., and Shinn, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611754/ | 38 Cal. App. Supp. 2d 759 (1940)
THE PEOPLE, Respondent,
v.
JULIAN H. KAY, Appellant.
California Court of Appeals.
January 18, 1940.
J. W. Ehrlich for Appellant.
Matthew Brady, District Attorney, and Arthur Jonas, Deputy District Attorney, for Respondent.
Conlan, P. J.
Appellant Julian H. Kay was convicted in the Municipal Court of the City and County of San Francisco by verdict of a jury of violating section 330a of the Penal Code of California. When the case was submitted to the jury the defendant moved for an advised verdict of not guilty. The motion was denied. After his conviction, appellant made a motion in arrest of judgment and a motion for a new trial, both of which motions were also denied. The appellant has appealed from these rulings and from the judgment of conviction. The sole issue presented by this appeal is whether the mere possession of a slot machine of such construction that it is incapable of being used for any purpose other than gambling is a violation of Penal Code section 330a. We are of the opinion that it is.
The record discloses that the San Francisco police seized, under a search warrant, 294 slot machines stored in a warehouse. The machines were owned by appellant and had been stored by him and as a result the charge was placed against him upon which he was subsequently convicted.
The machines were introduced into evidence and their operation described by a police officer called on behalf of the people. It appears from the construction of the machines offered in evidence, as well as from the testimony of the police officer, that they cannot be used, or played, for any purpose except to gamble. To operate the machine a coin is placed in a slot at the top of the machine and a handle on the side of [38 Cal. App. Supp. 2d 761] the machine pulled which causes three reels, visible through a window in the front of the machine, to revolve. These reels revolve at different speeds, each reel rotating separately and independently of the other. Each reel has painted on its circumference devices representing lemons, cherries, oranges, plums, bells and bars. The rotating reels are finally stopped by the haphazard action to the internal mechanism of the machine. After all three reels are stopped, if the cherries, oranges, plums, etc., on the three reels appear through the window in the front of the machine in certain combinations indicated in a legend painted on the front of the machine, the machine will pay varying sums in coins or tokens, depending upon the combination in which the reels have stopped. It will pay nothing at all if the reels stop in a combination which does not appear in the legend. The machines cannot be operated except by coins or tokens and are not adapted to the automatic vending of merchandise.
It is evident that machines of this description can be used for but one purpose: to gamble. The operator has no control over the action of the machine after he has inserted the coin and pulled the lever. It is a matter of common knowledge that the number of coins or tokens which the machine pays out, if it pays at all, is entirely dependent upon chance and that its operation is likewise so dependent.
Machines of this character should not be confused with slot machines which have for their purpose the vending of merchandise without any element of chance. In ordinary vending machines a coin is deposited in a slot, a lever is pulled, and merchandise is received for the coin deposited. Each person depositing a coin of like denomination receives the same value of merchandise as any other person, no element of chance or uncertainty whatsoever existing. The only reason a person would not receive the article purchased is that the machine is not working properly or it is not stocked. In the legitimate vending machine there is no more chance or uncertainty involved than in a purchase from a clerk, he handing the merchandise to the purchaser and the purchaser paying him the stipulated price.
Penal Code section 330a is as follows:
"Every person who has in his possession or under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained or kept, [38 Cal. App. Supp. 2d 762] in any room, space, inclosure or building owned, leased or occupied by him, or under his management or control, any slot or card machine, contrivance, appliance or mechanical device, upon the result of action of which money or other valuable thing is staked or hazarded, and which is operated, or played, by placing or depositing therein any coins, checks, slugs, balls, or other articles or device, or in any other manner and by means whereof, or as a result of the operation of which any merchandise, money, representative or articles of value, checks, or tokens, redeemable in, or exchangeable for money or any other thing of value, is won or lost, or taken from or obtained from such machine, when the result of action or operation of such machine, contrivance, appliance, or mechanical device is dependent upon hazard or chance, and every person, who has in his possession or under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained or kept, in any room, space, inclosure or building, owned, leased or occupied by him, or under his management or control, any card, dice, or any dice having more than six faces or bases, each, upon the result of action of which any money or other valuable thing is staked or hazarded, or as a result of the operation of which any merchandise, money, representative or article of value, check or token, redeemable in or exchangeable for money or any other thing of value, is won or lost or taken, when the result of action or operation of such dice is dependent upon hazard or chance, is guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment."
[1] Appellant concedes that this section makes it unlawful to operate the machines found in his possession but contends that the language of the section is not sufficiently broad to make unlawful their mere possession. This argument is based very largely upon the use of the word "is" in the statute. It is claimed that the phrase in the statute "upon the result of action of which money is staked or hazarded" limits the broad prohibitions of the statute and restricts its operation to those cases only in which the machines are in actual use. But the case of Bobel v. People, 173 Ill. 19 [50 N.E. [38 Cal. App. Supp. 2d 763] 322, 64 Am. St. Rep. 64], is, in our opinion, in point and to the contrary.
There the statute used the word "is", i. e., "... that whoever in any room ... keeps ... joker or slot machine upon which money is staked or hazarded, ... or upon the result of the action of which money or other valuable thing is staked, bet, hazarded, won or lost ..." It was held that the mere possession of a slot machine, which was a gambling device, was a violation of the Illinois statute. The court stated (50 N.E. 324):
"It is next contended that the allegation descriptive of the purposes for which the slot machine was used is faulty. The indictment charges that plaintiff in error did 'keep a certain slot machine, the same then and there being a device upon the result of the action of which money or other valuable thing is staked.' It is claimed that this last allegation should be, 'upon the result of the action of which money or other valuable thing was then and there staked.' The allegation of the indictment is in the language of the statute, and that is sufficient. ... The clause, 'upon the result of the action of which money or other valuable thing is staked,' is descriptive of the uses of the machine. ... While a plausible argument is made that, in view of the phraseology of the statute, and especially of the title, the purpose of the act is not to prohibit the mere keeping or using of such a device, but only the keeping or owning of the same to be used for gambling purposes, still it cannot be doubted that the legislature has the power to prohibit the mere keeping in possession of such gambling devices as well as to prohibit their use, as it has done in respect to obscene and indecent pictures, drawings, books, etc. ... And we are of the opinion that it was the purpose of the legislature in enacting this statute, not only to suppress the use of these gambling devices, or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not; otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, ..."
To accept appellant's construction of the statute (sec. 330a of the Penal Code) that the machines must be in use before there is a violation, we would have to cast entirely aside the purpose of its enactment, because, before section 330a was [38 Cal. App. Supp. 2d 764] enacted, section 330 of the Penal Code covered and still covers a situation where a slot machine is operated for money, checks, credits or other representative of value. (Ex parte Williams (1906), 7 Cal. Unrep. 301 [87 P. 565].) There is nothing in section 330a which repeals by implication the provisions of section 330. (Ex parte Lowrie (1919), 43 Cal. App. 564 [185 P. 421].) [2] In order to ascertain the true spirit and import of an act, the courts may also consider the mischiefs such act was designed to remedy. Section 330 of the Penal Code was ineffectual so far as the operation of a slot machine for anything other than money, checks, credits or other representative of value was concerned; likewise it did not prohibit the possession of these devices. Obviously then, section 330a of the Penal Code, which was enacted after the decision in Ex parte Williams (supra), had for its intention the absolute prohibition of "any slot or card machine, contrivance, appliance or mechanical device, upon the result of action of which money, or other valuable thing is staked or hazarded, ... or as a result of the operation of which any merchandise, money, representative, or articles of value, checks, or tokens, redeemable in or exchangeable for money or any other thing of value is won or lost, or taken from or obtained from such machine, when the result of action or operation of such machine, contrivance, appliance, or mechanical device is dependent upon hazard or chance, ..." We interpret this to mean any such machine or contrivance which is normally and as a customary thing used as a gambling device. We are of the opinion that it was the intention of the legislature to prohibit these machines in the possession or control of anyone in any place, whether for gambling purposes or not; otherwise why set forth, "Every person who has in his possession or under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, or who permits to be placed, maintained or kept, in any room, space, inclosure or building owned, leased or occupied by him, or under his control, ..."
This construction of our statute is not only proper but necessary if any effect is to be given to the statute and the purposes of its enactment, to wit: The suppression of gambling devices. A contrary construction for all practical purposes would place section 330a in the position of being superfluous, [38 Cal. App. Supp. 2d 765] and we cannot believe that was the intention of the legislature.
Bobel v. People, supra, is cited with approval in Hurvich v. State (1935), 230 Ala. 578 [162 So. 362], where the mere possession of a slot machine gambling device was held to violate the Alabama law. The court there stated, at page 363;
"... We think it clear that for the purpose of preventing the use of a device for gambling the Legislature may prohibit its possession or ownership, when it is designed for that purpose. The statute does not make its intended use for that purpose a prerequisite."
Stanley-Thompson Liquor Co. v. People, 63 Colo. 456 [168 P. 750], involved certain gambling devices, some of which were stored in the back room of plaintiff in error's place of business, and some in a warehouse. It is stated in the opinion:
"It is well settled that things which are capable of no use for lawful purposes--and it is established that these instruments are of that class--are not the subject of property. They cannot be recovered in replevin, nor will damages be given for their loss or injury. They are as some courts have said, 'outlaws.' (Citing cases.)"
"... Since they are at all times a menace to society, not capable of use except by violating the law, there is no reason why their abatement as a nuisance should be delayed until the law has been violated."
Appellant relies strongly on the case of Fey v. Rossi Improvement Co. (1914), 23 Cal. App. 766 [139 P. 908], in which case the plaintiff sought to cancel a lease, claiming that he had leased the property for the purpose of manufacturing slot machines thereon, and that thereafter section 330a of the Penal Code was enacted, making such machines illegal. The court there stated:
"The complaint in the present case does not allege that the demised premises were leased for the purpose of manufacturing any of the gambling devices designated in the statute. The allegation in the complaint in this behalf is merely that the premises were leased for the purpose of manufacturing 'coin operating machines commonly known as nickel in the slot machines' ..."
It is obvious that the decision in the case of Fey v. Rossi Improvement Co., supra, was based upon the uncertainty in [38 Cal. App. Supp. 2d 766] the complaint, in that it did not specify that the premises were leased to manufacture gambling devices designated in the statute and the decision further states that the possession of certain nickel-in-the-slot machines which return something of value without any element of chance other than that usually presented in ordinary transaction of barter and trade are not illegal under section 330a of the Penal Code. This decision is not helpful to the appellant.
In the Matter of Rogers (1911), 160 Cal. 764 [118 P. 242], a machine, the operation of which involved a hazard to a customer with reference to cigars, was held to be a lottery under sections 319 and 320 of the Penal Code. In People v. Brown, 151 Misc. 712 [273 N.Y. Supp. 560] (May 16, 1934), involving a machine similar to the one in the instant case and a statute substantially the same as section 330a of the Penal Code, there was proof that tokens were inserted in the machine and tokens issued therefrom for which a police officer received fifty cents. It was held that the keeping or maintaining of such a machine was a violation of section 982 of the Penal Law which denounced the keeping of a machine into which may be inserted a piece of money or other object, and from which as a result may be issued any piece of money, etc.
In Triangle Mint Corp. v. Edward P. Mulrooney, etc. (Feb. 26, 1931, App. Dept. Superior Court), 232 A.D. 783 [248 N.Y. Supp. 880], it was held that the police were justified in seizing certain slot machines which, with the insertion of a cotter pin as a cloak or cover therefor, would make the machine an innocent vending machine, but with the cotter pin extracted would make the machine a contrivance in violation of sections 970a and 982 of the Penal Law. The opinion states:
"The machines are undoubtedly manufactured and leased for gambling purposes, with the insertion of the cotter pin as a cloak therefor."
People v. Jennings, Court of Appeals of New York (July 15, 1931), 257 N.Y. 196 [177 N.E. 419], relied upon by appellant, involved a machine, which, by the dropping of a coin in a slot and the pulling of a lever, a candy mint falls out of the machine and a witty or funny saying appears in an upper panel. One or more metal rings of no intrinsic value may also fall out according to the combinations formed [38 Cal. App. Supp. 2d 767] upon the turn of the lever. These rings or metals, are of no monetary value. By their insertion in the slot, other bright or witty statements appear in the panel. The only chance connected with the operation of the machine is that wit or humor may momentarily brighten up the vacuous minds hunting amusement. It was held that the judgment of conviction of section 982 was unsupported by the evidence and was reversed because nothing of value, at least of money value, came out of the machine in the control and possession of the defendant.
However, in People v. Wertheimer, 152 Misc. 733 [274 N.Y. Supp. 90 (Aug. 4, 1934), a conviction was held for the possession of slot machines in violation of section 982 of the Penal Law. The opinion states:
"Appellant's counsel cites the case of People v. Jennings, 257 N.Y. 196 [177 N.E. 419], upon their claim that a wire tying the key to the machine had to be removed and the coins inserted in the machine before it would properly work; that therefore, the machines were not, in their then condition, such as defined by the statute."
"I think the case cited is clearly distinguishable from this case. There, a machine which was legal, could be transformed into a machine which was illegal, which, however, has not been done. In the case at bar there was no transformation required. The machines here were manufactured for the purpose of doing that which, under the statute, is illegal. The mere fact that a wire had been (apparently only on some of them) so attached that it had to be removed so that the machines would work at all, did not make of those machines, a legal machine within the statute."
We are of the opinion that the decisions of these cases are additional authority for the People's contention that the machines in question are, from their construction, gambling devices.
[3] We are of the opinion that since the slot machines in the instant case are incapable of being used for any purpose except gambling, their mere possession is a violation of Penal Code section 330a and that it is not a necessary element of the offense that the machines be actually used or kept for gambling purposes.
The judgment of conviction is ordered affirmed.
Griffin, J., and Dooling, Jr., J., pro tem., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1904204/ | 418 B.R. 160 (2009)
In re David SMITH and Linda M. Smith, Debtor(s).
C/A No. 09-05399-DD.
United States Bankruptcy Court, D. South Carolina.
October 14, 2009.
*161 Michael R. Culler, Culler and Brown LLP, Orangeburg, SC, for Debtor.
Joy S. Goodwin, Columbia, SC, for Trustee.
ORDER DENYING MOTION TO DISMISS
DAVID ROBERT DUNCAN, Bankruptcy Judge.
THIS MATTER is before the Court on Larry E. Jackson and Shirley C. Jackson's ("Creditors") Motion to Dismiss ("Motion"). Creditors' Motion was made pursuant to 11 U.S.C. § 1307(c) and Fed. R. Bankr.P. 1017 and 9014.[1] The debt due Creditors is secured by an installment contract of sale between Creditors and David Smith and Linda Smith ("Debtors") concerning the real property located at 802 Trecer Road, Cope, South Carolina. A hearing was held in this matter on September 21, 2009. Pursuant to Fed. R.Civ.P. 52, made applicable to this proceeding by Rules 7052 and 9014, the Court makes the following findings of fact and conclusions of law.
*162 FINDINGS OF FACT
Debtors filed their current bankruptcy by voluntary petition under chapter 13 of the Bankruptcy Code on July 23, 2009. This is Debtors third chapter 13 bankruptcy filing. Debtors' first chapter 13 case was filed on August 9, 2000 and dismissed pursuant to SC LBR 2003-1 on October 12, 2000 for the failure of Debtors to appear at the meeting of creditors. This first filing is remote in time and is not germane to the Court's ruling on the motion to dismiss if for no reason other than that Creditors were not involved in the first case.
Debtors' second chapter 13 case was filed on November 5, 2008 and dismissed for non-payment on June 8, 2009. On December 9, 2008, Creditors filed an objection to Debtors' proposed chapter 13 plan because the installment contract was being treated as an executory contract in Debtors' schedules but as a secured debt in the plan and the amount set out in the plan to pay the arrearages owed Creditors was insufficient. Adding Creditors to Schedule D as a secured creditor and adjusting the amount to be paid to the Trustee resolved Creditors' objection. On January 30, 2009, Creditors filed an objection to Debtors' amended chapter 13 plan because Debtors had not paid the 2008 property taxes and Schedule J did not reflect any tax or insurance expense. This objection was resolved when Debtors paid the 2008 property taxes and filed an amended Schedule J to show the tax and insurance expenses.
Creditors also filed a Motion for Relief from Stay in the second case. On April 29, 2009, Debtors entered into a settlement order with Creditors requiring Debtors to provide proof of insurance to Creditors and ensure that no actual lapse of insurance coverage occurred. Mr. Smith testified at the hearing in this case that insurance remains in effect on the Trecer Road Property and that Creditors are listed in the policy as a loss payee and lienholder.
Debtors' contend that their second case failed because the proofs of claim filed by the Internal Revenue Service and the South Carolina Department of Revenue overstated the actual debts due. Because of the excessive amount of the tax claims, Debtors were unable to propose a successful chapter 13 plan. Apparently the Smith's common last name contributed to the error by the tax authorities. The record reflects that the tax claims were withdrawn in the prior case. However, Debtors were already delinquent in the payments to the chapter 13 trustee and could not catch up and complete their case.
Debtors filed the current case under chapter 13 of the Bankruptcy Code within one year of the dismissal of their previous case. Accordingly, pursuant to § 362(c)(3)(A), the automatic stay in Debtor's case expired thirty days after the petition date when Debtors failed to file a motion to extend the automatic stay. Creditors acknowledge that no stay is in place but are concerned that a plan will be confirmed and will bind them. Creditors state that they have no objection to confirmation, other than to question the good faith of this petition.
CONCLUSIONS OF LAW
Section 1307(c) provides for dismissal of a chapter 13 case or conversion of the case to chapter 7, for cause. Cause includes but is not limited to the reasons set forth in § 1307(c)(1)-(11).[2] The filing *163 of a chapter 13 petition in bad faith, while not an enumerated ground, is cause for dismissal of a case. In re Alt, 305 F.3d 413 (6th Cir.2002); In re Love, 957 F.2d 1350 (7th Cir.1992); In re Tolbert, 255 B.R. 214 (8th Cir. BAP 2000); In re Padilla, 222 F.3d 1184 (9th Cir.2000); In re Gier, 986 F.2d 1326 (10th Cir.1993); See also cases collected at Keith M. Lundin, Chapter 13 Bankruptcy, 3d ed. Appendix O (2000 & 2004 Supp).
Creditors rely on a line of cases in this district, beginning with In re Pryor, 54 B.R. 679 (Bankr.D.S.C.1985), which hold that a debtor must "prove with detailed testimony and convincing evidence his entitlement to a second (or third) opportunity" for chapter 13 relief. Id. at 681 (citing In re Bolton, 43 B.R. 48, 52 (Bankr. E.D.N.Y.1984)); see also In re Hartley, 187 B.R. 506, 507 (Bankr.D.S.C.1995), In re McFadden, 383 B.R. 386, 389 (Bankr. D.S.C.2008). The holding in these cases seem not to have been directly challenged by debtors in the years since Pryor. Our District Court implicitly endorsed these cases as recently as 2006. See In re Bennett, 2006 WL 1207827 (D.S.C. May 1, 2006) (the decision of the Bankruptcy Court was affirmed because the debtor filed a third bankruptcy petition while subject to an order dismissing the previous case with prejudice as to re-filing for 180 days and because the debtor failed to designate a record on appeal and file a brief).
These cases are interpreted as shifting the burden of proof to the debtor on the issue of whether a petition was filed in good faith and establishing a second filing as a "serial filing" that can survive only upon a showing of a substantial change in circumstances. The "detailed testimony and convincing evidence" standard of Pryor exceeds the usual preponderance of the evidence standard for a movant. This line of cases was intended to prevent abuse by debtors in filing for bankruptcy relief long before the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8-119 Stat. 23 ("2005 Amendments").
Interestingly, these cases recite facts concerning the several debtor's bad faith that go beyond the mere second filing of a *164 case and the absence of a change in circumstances. In Pryor the debtors failed to attend the confirmation hearing in their first case, did not take any action during the ten days following that hearing to convert the case to chapter 7 as was expressly permitted by the order denying confirmation, and they waited to file a second case until after the creditor had proceeded with claim and delivery of the collateral and obtained a default judgment and order for possession. In Hartley, the debtor's husband had filed two previous cases and was barred from another filing when the wife filed a petition for relief. Additionally the husband had sought reconsideration of the dismissal with prejudice order in his second case but withdrew the motion when creditor opposition to relief surfaced. In McFadden the debtor was a six time filer and the filings appeared to be timed to frustrate creditor action. Additionally McFadden failed to seek an extension of the automatic stay pursuant to § 362(c)(3)(B). In Bennett the debtor had consented to dismissal with prejudice for 180 days upon the filing of his second case and the case had in fact been dismissed with prejudice as to refilling when the debtor filed a third case during the prohibited period.
Good Faith Standard
A debtor is required to demonstrate good faith to satisfy several provisions of the Bankruptcy Code, yet the term "good faith" is not defined by the Code. Debtors are required to propose a chapter 13 plan in good faith pursuant to § 1325(a)(3) and petitions must be in good faith under § 1325(a)(7). A debtor who has had a case pending and dismissed during the one year period preceding the filing of his current case must demonstrate the case was filed in good faith as to the creditors to be stayed to avoid the termination of the automatic stay pursuant to § 362(c)(3). A debtor who has had more than one case pending and dismissed during the one year preceding the filing of his current case must demonstrate the case was filed in good faith as to the creditors to be stayed in order to have the automatic stay imposed in their case under § 362(c)(4).
While a determination of "good faith" is required by these statutes, the good faith standard is not identical for each. A chapter 13 plan must be proposed in good faith and the courts examine several factors to weigh the debtor's good faith. See Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir.1986); Deans v. O'Donnell, 692 F.2d 968, 972 (4th Cir.1982) (providing a nonexclusive list of eight factors to determine whether a plan has been proposed in good faith under § 1325(a)(3)). The good faith test for extending the automatic stay is a totality of the circumstances test. In re Thomas, 352 B.R. 751, 756-57 (Bankr.D.S.C.2006) (applying a totality of the circumstances test to determine good faith under § 362(c)(3) but providing a list of factors that may be relevant to such a determination). Here the issue is dismissal pursuant to § 1307(c) because of the Debtors' asserted bad faith in filing the petition. Previously in this district we have examined the following nonexclusive factors in connection with motions to dismiss: (1) debtor's past bankruptcy filings; (2) the period of time that has elapsed between debtor's prior case and the current case; (3) debtor's pre-petition behavior; and (4) the effect of Debtor's repeated filings on creditors. McFadden at 389. These factors, and indeed all of the circumstances, seem relevant to the consideration of dismissal for alleged bad faith in filing a petition.
Burden of Proof
To the extent that our precedent shifts the burden of proof to the debtor *165 upon a second filing, requires a showing of a substantial change in circumstances and imposes a heightened burden of proof, I must depart from it. Dismissal of a chapter 13 case is, by statute, for cause. "Dismissal for cause cannot mean that a debtor must show an absence of cause; it can only mean that the party moving for dismissal must demonstrate cause." Love at 1355 (citing In re Klein, 100 B.R. 1004, 1008 (N.D.Ill.1989)). It must be remembered that, with the exception of § 109(g)[3], there is no statutory prohibition against repetitive filings and thus no reason to shift the burden of proof. Additionally, in 2005 Congress enacted a substantial revision of the Bankruptcy Code and chose to deal with perceived abuse, in part, by placing an evidentiary burden upon repetitive bankruptcy filers under § 362(c)(3), not § 1307(c). The burden of proof here is on the moving party and not the Debtors.
Application of Law to Facts
First, the prior filing is relevant to the existence of cause for dismissal. Prior filings are important factors in the analysis of the Debtors' bona fides. Debtors cannot serially file bankruptcy cases and abuse the bankruptcy system to the detriment of creditors without consequence. However, the mere filing of a second case, without more, is not enough to establish a bad faith filing. Prior filings and all other evidence must be considered by the court on a case-by-case basis. "The purpose of a case-by-case, totality of circumstances test is to allow the bankruptcy judge, who is in the best position to evaluate the witnesses' credibility against the other evidence, to weigh the evidence in making the good faith determinations." Love at 1355.
In this case, the Court finds that Creditors failed to carry their burden of proving that Debtors' chapter 13 petition was filed in bad faith. An examination of Debtors' past bankruptcy filings demonstrates that, while there have been few changes in circumstances since Debtors' most recent prior case, the current case represents a real effort to deal with Debtors' financial problems following resolution of unexpected tax issues. Mr. Smith testified that the tax claims filed against the Debtors were erroneously filed, in part, because of Smith's common last name. This testimony finds support in the withdrawal of those tax claims in Debtors' previous case and in the reduced amount of debt reflected in the proof of claim filed in this case by the Internal Revenue Service. Mr. Smith testified that he fell behind in the plan payments for the second case because of the impact that the erroneous claims had on his trustee payments.[4] This factor weighs in Debtors' favor.
*166 The period of time between the current case and Debtors' previous case was brief, but may be excused because of the reason for the failure of Debtors' previous case. This factor is often particularly important where debtors quickly file subsequent petitions without taking action to resolve the problem that led to dismissal of the earlier case. Debtors' pre-petition behavior is not a cause for alarm and Creditors have made no suggestion that Debtors delayed Creditors outside of bankruptcy or used the intervening time for purposes of mere delay. Creditors did raise several issues concerning property taxes and homeowners insurance but Debtors provided evidence that these matters had been addressed in a timely fashion. The testimony and exhibits established for example, that one problem with the timely payment of property taxes was the billing for those taxes by the local tax authority in Creditors' names. Debtors also established that the property had consistently been protected by homeowner's insurance and that an insurance check had recently been received to cover repairs to the roof made necessary by storm damage. Finally Creditors will shortly begin receiving payments from the chapter 13 trustee designed to pay the debt to Creditors in full over the life of the plan as opposed to the payment of the arrearage through the plan as originally proposed in the previous case. Creditors have no objection to confirmation. This is not to say that a mere promise to pay is always sufficient to defeat a claim of prejudice to creditors but rather reflects a balancing of all the evidence and testimony at the hearing in this case. Additionally, Debtors have already agreed with the trustee that a dismissal of the present case will be with prejudice to the filing of another chapter 13 case for a period of one year.
The burden of proving cause for dismissal rests with the Creditors. Perhaps in part due to the precedent followed by this court concerning dismissals for second and third filings, Creditors offered no evidence of bad faith other than the two filings and the statement that there was no substantial change in circumstances. It is important, however, that all of this Court's bad faith serial filing precedent discussed bad acts of the debtors over and above taking a second bite at the chapter 13 apple. Those facts do not appear in this case.
IT IS THEREFORE ORDERED that Creditors Motion is DENIED.
NOTES
[1] Further reference to the Bankruptcy Code, 11 U.S.C. § 101 et seq., will be by section number only and further reference to the Federal Rules of Bankruptcy Procedure will be by rule number only.
[2] Section 1307 provides:
(c) Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including
(1) unreasonable delay by the debtor that is prejudicial to creditors;
(2) nonpayment of any fees and charges required under chapter 123 of title 28;
(3) failure to file a plan timely under section 1321 of this title;
(4) failure to commence making timely payments under section 1326 of this title;
(5) denial of confirmation of a plan under section 1325 of this title, and denial of a request made for additional time for filing another plan or a modification of a plan;
(6) material default by the debtor with respect to a term of a confirmed plan;
(7) revocation of the order of confirmation under section 1330 of this title, and denial of confirmation of a modified plan under section 1329 of this title;
(8) termination of a confirmed plan by reason of the occurrence of a condition specified in the plan other than completion of payments under the plan;
(9) only on request of the United States trustee, failure of the debtor to file, within fifteen days, or such additional time as the court may allow, after the filing of the petition commencing such case, the information required by paragraph (1) of section 521;
(10) only on request of the United States trustee, failure to timely file the information required by paragraph (2) of section 521; or
(11) failure of the debtor to pay any domestic support obligation that first becomes payable after the date of the filing of the petition.
[3] Section 109(g) provides:
(g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if
(1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or
(2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from automatic stay provided by section 362 of this title.
[4] Apparently the response of Debtors' counsel and the trustee to the tax claims was to increase the plan payment before a thorough review of the basis for the tax claim could be made. While case administration in chapter 13 follows a rigid time table, it is sometimes better to deal with objectionable claims immediately rather than increase plan payments beyond the debtor's ability to pay. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/91708/ | 118 U.S. 394 (1886)
SANTA CLARA COUNTY
v.
SOUTHERN PACIFIC RAILROAD COMPANY.
CALIFORNIA
v.
CENTRAL PACIFIC RAILROAD COMPANY.
CALIFORNIA
v.
SOUTHERN PACIFIC RAILROAD COMPANY.
Supreme Court of United States.
Argued January 26, 27, 28, 29, 1886.
Decided May 10, 1886.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.
*397 Mr. E.C. Marshall, Attorney General of California for all the plaintiffs in error.
Mr. S.W. Sanderson, Mr. George F. Edmunds and Mr. William M. Evarts for defendants in error.
MR. JUSTICE HARLAN delivered the opinion of the court.
These several actions were brought the first one in the Superior Court of Santa Clara County, California, the others in the Superior Court of Fresno County, in the same State for the recovery of certain county and State taxes, claimed to be due from the Southern Pacific Railroad Company and the Central Pacific Railroad Company under assessments made by the State Board of Equalization upon their respective franchises, roadways, roadbeds, rails, and rolling stock. In the action by Santa Clara County the amount claimed is $13,366.53 for the fiscal year of 1882. For that sum, with five per cent. penalty, interest at the rate of two per cent. per month from December 27, 1882, cost of advertising, and ten per cent. for attorney's fees, judgment is asked against the Southern Pacific *398 Railroad Company. In the other action against the same company the amount claimed is $5029.27 for the fiscal year of 1881, with five per cent. added for non-payment of taxes and costs of collection. In the action against the Central Pacific Railroad Company judgment is asked for $25,950.50 for the fiscal year of 1881, with like penalty and costs of collection.
The answer in each case puts in issue all the material allegations of the complaint, and sets up various special defences, to which reference will be made further on.
With its answer the defendant, in each case, filed a petition, with a proper bond, for the removal of the action into the Circuit Court of the United States for the District, as one arising under the Constitution and laws of the United States. The right of removal was recognized by the State court, and the action proceeded in the Circuit Court. Each case the parties having filed a written stipulation waiving a jury was tried by the court. There was a special finding of facts upon which judgment was entered in each case for the defendant. The general question to be determined is, whether the judgment can be sustained upon all, or either, of the grounds upon which the defendants rely.
The case as made by the pleadings and the special finding of facts is as follows:
By an act of Congress, approved July 27, 1866, 14 Stat. 292, the Atlantic and Pacific Railroad Company was created, with power to construct and maintain, by certain designated routes, a continuous railroad and telegraph line from Springfield, Missouri, to the Pacific. For the purpose which is avowed by Congress of facilitating the construction of the line, and thereby securing the safe and speedy transportation of mails, troops, munitions of war, and public stores, a right of way over the public domain was given to the company, and a liberal grant of the public lands was made to it. The railroad so to be constructed, and every part of it was declared to be a post route and military road, subject to the use of the United States for postal, military, naval, and all other government service, and to such regulations as Congress might impose for restricting the charges for government transportation. By the *399 18th section of the act, the Southern Pacific Railroad Company a corporation previously organized under a general statute of California, passed May 20, 1861, Stat. Cal. 1861, p. 607 was authorized to connect with the Atlantic and Pacific Railroad at such point, near the boundary line of that State, as the former company deemed most suitable for a railroad to San Francisco, with "uniform gauge and rate of freight or fare with said road;" and in consideration thereof, and "to aid in its construction" the act declared that it should have similar grants of land, "subject to all the conditions and limitations" provided in said act of Congress, "and shall be required to construct its road on like regulations, as to time and manner, with the Atlantic and Pacific Railroad." §§ 1, 2, 3, 11 and 18.
In November, 1866, the Atlantic and Pacific Railroad Company, and the Southern Pacific Railroad Company, filed in the office of the Secretary of the Interior their respective acceptances of the act.
By an act of the legislature of California, passed April 4, 1870, to aid in giving effect to the act of Congress relating to the Southern Pacific Railroad Company, it was declared that:
"To enable the said company to more fully and completely comply with and perform the requirements, provisions, and conditions of the said act of Congress, and all other acts of Congress now in force, or which may hereafter be enacted, the State of California hereby consents to said act, and the said company, its successors and assigns, are hereby authorized to change the line of its railroad so as to reach the eastern boundary line of the State of California by such route as the company shall determine to be the most practicable, and to file new and amendatory articles of association, and the right, power, and privilege is hereby granted to, conferred upon, and vested in them to construct, maintain, and operate by steam or other power the said railroad and telegraph line mentioned in said acts of Congress, hereby confirming to, and vesting in, the said company, its successors and assigns, all the rights, privileges, franchises, power and authority conferred upon, *400 granted to, or vested in said company by the said acts of Congress, and any act of Congress which may be hereafter enacted."
Subsequently, by the act of March 3, 1871, 16 Stat. 573, Congress incorporated the Texas Pacific Railroad Company, with power to construct and maintain a continuous railroad and telegraph line from Marshall, in the State of Texas, to a point at or near El Paso, thence through New Mexico and Arizona to San Diego, pursuing, as near as might be, the thirty-second parallel of latitude. To aid in its construction, Congress gave it, also, the right of way over the public domain, and made to it a liberal grant of public lands. The 19th section provided:
"That the Texas Pacific Railroad Company shall be, and it is hereby, declared to be a military and post road; and for the purpose of insuring the carrying of the mails, troops, munitions of war, supplies, and stores of the United States, no act of the company nor any law of any State or Territory shall impede, delay, or prevent the said company from performing its obligations to the United States in that regard: Provided, That said road shall be subject to the use of the United States for postal, military, and all other governmental services, at fair and reasonable rates of compensation, not to exceed the price paid by private parties for the same kind of service, and the government shall at all times have the preference in the use of the same for the purpose aforesaid."
The twenty-third section of that act has special reference to the Southern Pacific Railroad Company, and is as follows:
"SEC. 23. That, for the purpose of connecting the Texas Pacific railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehacapa Pass, by way of Los Angeles, to the Texas Pacific railroad, at or near the Colorado River, with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions, as were granted to said Southern Pacific Railroad Company of California by the act of July twenty-seven, eighteen hundred and sixty-six: Provided, however, That this section shall in no way *401 affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company, or any other railroad company."
Under the authority of this legislation, Federal and State, the Southern Pacific Railroad Company constructed a line of railroad from San Francisco, connecting with the Texas and Pacific Railroad (formerly the Texas Pacific Railroad) at Sierra Banca, in Texas; and with other railroads it is operated as one continuous line (except for that part of the route occupied by the Central Pacific Railroad) from Marshall, Texas, to San Francisco. It is stated in the record that the Southern Pacific Railroad Company of California, since the commencement of this action, has completed its road to the Colorado River, at or near the Needles, to connect with the Atlantic and Pacific Railroad, and that with the latter road it constitutes a continuous line from Springfield, Missouri, to the Pacific, except as to the connection, for a relatively short distance, over the road of the Central Pacific Railroad Company.
On the 17th of December, 1877, the said Southern Pacific Railroad Company, and other railroad corporations, then existing under the laws of California, were legally consolidated, and a new corporation thereby formed, under the name of the Southern Pacific Railroad Company, the present defendant in error, 59.30 miles of whose road is in Santa Clara County and 17.93 miles in Fresno County.
On the 1st of April, 1875, this company was indebted to divers persons in large sums of money advanced to construct and equip its road. To secure that indebtedness, it executed on that day a mortgage for $32,520,000 on its road, franchises, rolling-stock and appurtenances, and on a large number of tracts of land, in different counties of California, aggregating over eleven million acres. These lands were granted to the company by Congress under the above-mentioned acts, and are used for agricultural, grazing, and other purposes not connected with the business of the railroad. Of those patented, 3138 acres are in Santa Clara County and 18,789 acres in Fresno County. When these proceedings were instituted no part of its above mortgage debt had been paid, except the accruing interest *402 and $1,632,000 of the principal, leaving outstanding against it $30,898,000.
In the year 1852 California, by legislative enactment, granted a right of way through that State to the United States for the purpose of constructing a railroad from the Atlantic to the Pacific Ocean declaring that the interests of California, as well as the whole Union, "require the immediate action of the Government of the United States, for the construction of a national thoroughfare, connecting the navigable waters of the Atlantic and Pacific Oceans, for the purpose of the national safety, in the event of war, and to promote the highest commercial interests of the Republic." Stat. Cal. 1852, p. 150. By an act passed July 1, 1862, 12 Stat. 489, § 1, 8, Congress incorporated the Union Pacific Railroad Company, with power to construct and maintain a continuous railroad and telegraph line to the western boundary of what was then Nevada Territory, "there to meet and connect with the line of the Central Pacific Railroad Company of California." The declared object of extending government aid to these enterprises was to effect the construction of a railroad and telegraph line from the Missouri River to the Pacific, which, for all purposes of communication, travel, and transportation, so far as the public and the General Government are concerned, should be operated "as one connected continuous line." Ibid. §§ 6, 9, 10, 12, 17, 18.
In 1864 the State of California passed an act to aid in carrying out the provisions of this act of Congress, the first section of which declared that:
"To enable said company more fully and completely to comply with and perform the provisions and conditions of said act of Congress, the said company, their successors and assigns, are hereby authorized and empowered, and the right, power, and privilege is hereby granted to, conferred upon, and vested in them, to construct, maintain, and operate the said railroad and telegraph line, not only in the State of California, but also in the said Territories lying east of and between said State and the Missouri River, with such branches and extensions of said railroad and telegraph line, or either of them, as said company may deem necessary or proper, and also the right of way for said railroad and telegraph line over any lands belonging to *403 this State, and on, over, and along any streets, roads, highways, rivers, streams, water, and water courses, but the same to be so constructed as not to obstruct or destroy the passage or navigation of the same, and also the right to condemn and appropriate to the use of said company such private property rights, privileges, and franchises as may be proper, necessary, or convenient for the purposes of said railroad and telegraph, the compensation therefor to be ascertained and paid under and by special proceedings, as prescribed in the act providing for the incorporation of railroad companies, approved May 20th, 1861, and the act supplementary and amendatory thereof, said company to be subject to all the laws of this State concerning railroad and telegraph lines, except that messages and property of the United States, of this State, and of said company shall have priority of transportation and transmission over said line of railroad and telegraph, hereby confirming to and vesting in said company all the rights, privileges, franchises, power, and authority conferred upon, granted to, and vested in said company by said act of Congress, hereby repealing all laws and parts of laws inconsistent or in conflict with the provisions of this act, or the rights and privileges herein granted."
In 1870, the Central Pacific Railroad Company of California and the Western Pacific Railroad Company formed themselves into one corporation under the name of the Central Pacific Railroad Company, the defendant in one of these actions, 61.06 miles of whose road is in Fresno County. The company complied with the several acts of Congress, and there is in operation a continuous line of railway from the Missouri River to the Pacific Ocean, the Central Pacific Railroad Company owning and operating the portion thereof between Ogden, in the Territory of Utah, and San Francisco.
When the present action was instituted against this company the United States had and now have a lien, created by the acts of Congress of 1862 and 1864, for $30,000,000, with a large amount of interest, upon its road, rolling-stock, fixtures and franchises; and there were also outstanding bonds for a like amount issued by the company prior to January 1, 1875, and secured by a mortgage upon the same property.
Such were the relations which these two companies held to *404 the United States and to the State when the assessments in question were made for purposes of taxation.
It is necessary now to refer to those provisions of the constitution and laws of the State which, it is claimed, sustain these assessments.
The constitution of California, adopted in 1879, exempts from taxation growing crops, property used exclusively for public schools, and such as may belong to the United States, or to that State, or to any of her county or municipal corporations, and declares that the legislature "may provide, except in the case of credits secured by mortgage or trust deed, for a reduction from credits of debts due to bona fide residents" of the State. It is provided in the first section of Article XIII. that, with these exceptions "all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. The word `property,' as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal and mixed, capable of private ownership."
The fourth section of the same article provides:
"A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi-public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment, a full discharge thereof: Provided, That if any such security or indebtedness shall be *405 paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year."
The ninth section makes provision for the election of a State Board of Equalization, "whose duty it shall be to equalize the valuation of the taxable property of the several counties in the State for the purpose of taxation." The boards of supervisors of the several counties constitute boards of equalization for their respective counties, and they equalize the valuation of the taxable property therein for purposes of taxation assessments, whether by the State or county boards, to "conform to the true value in money of the property" contained in the assessment roll.
The tenth section declares:
"All property, except as hereinafter in this section provided, shall be assessed in the county, city, city and county, town, township, or district in which it is situated, in the manner prescribed by law. The franchise, roadway, road-bed, rails, and rolling-stock of all railroads operated in more than one county in this State shall be assessed by the State Board of Equalization at their actual value, and the same shall be apportioned to the counties, cities and counties, cities, towns, townships, and districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities and counties, cities, towns, townships, and districts."
The assessments in question, it is contended, were made in conformity with these constitutional provisions, and with what is known as § 3664 of the Political Code of California. That section made it the duty of the State Board of Equalization, on or before the first Monday in May in each year to "assess the franchise, roadway, road-bed, rails, and rolling-stock of railroads operated in more than one county to which class belonged the defendants. It required every corporation of that class, by certain officers, or by such officer as the State Board should designate, to furnish the board with a sworn statement showing, among other things, in detail, for the year ending March 1, the whole number of miles of railway owned, operated, or leased by it in the State, the value thereof *406 per mile, and all of its property of every kind located in the State; the number and value of its engines, passenger, mail, express, baggage, freight and other cars, or property used in operating and repairing its railway in the State, and on railways which are parts of lines extending beyond the limits of the State. It is also directed that "the said property shall be assessed at its actual value;" that the "assessment shall be made upon the entire railway within the State, and shall include the right of way, road-bed, track, bridges, culverts, and rolling-stock;" and that "the depots, station grounds, shops, buildings, and gravel beds shall be assessed by the assessors of the county where situated, as other property." It further declares:
"On or before the fifteenth day of May, in each year, said board shall transmit to the county assessor of each county through which any railway, operated in more than one county, may run, a statement showing the length of the main track or tracks of such railway within the county, together with a description of the whole of said tracks within the county including the right of way by metes and bounds, or other description sufficient for identification, and the assessed value per mile of the same, as fixed by a pro rata distribution per mile of the assessed value of the whole franchise, roadway, road-bed, rails, and rolling-stock of such railway, within this State. Said statement shall be entered on the assessment roll of the county. At the first meeting of the board of supervisors, after such statement is received by the county assessor, they shall make and cause to be entered in the proper record-book an order stating and declaring the length of the main track, and the assessed value of such railway lying in each city, town, township, school district, or lesser taxing district in their county, through which such railway runs, as fixed by the State Board of Equalization, which shall constitute the taxable value of said property for taxable purposes in such city, town, township, school, road, or other district." Stat. Cal. 1881, ch. 73, § 1, page 82.
These companies, within due time, filed with the State Board the detailed statement required by that section.
At the trials below, no record of assessment against the respective defendants, as made by the State Board, was given in evidence, and there was introduced no written evidence of the *407 assessment except an official communication from the State Board to each of the assessors of Santa Clara and Fresno Counties, called, in the special findings, the assessment roll for the particular county. The roll for Fresno county, in 1881, relating to the Southern Pacific Railroad Company, is as follows:
*408 There were similar rolls in reference to the Central Pacific Railroad in the same county, for the same year, and the Southern Pacific in Santa Clara County for 1882. For each of those years the board of supervisors of the respective counties made an apportionment of the taxes among the legal subdivisions of such counties.
It is stated in the findings that the delinquent lists for those years, so far as they related to the taxes in question, were duly made up in form corresponding with the original assessment roll; that in pursuance of § 3738 of the Political Code of California, the board of supervisors of the respective counties duly passed an order, entered on the minutes, dispensing with the duplicate assessment roll for that year; that the controller of the State transmitted a letter to the tax collector of the county, in pursuance of the provisions of § 3899 of that Code, directing him to offer the property for sale but once, and if there were no bona fide purchasers to withdraw it from sale; that the tax collector, in obedience to the provisions of that section, transmitted to the controller, with his endorsement thereon of the action had in the premises, a certified copy of the entry upon the delinquent list relating to the tax in question in these several actions; that such endorsement shows that the tax collector had offered the property for sale and had withdrawn it because there was no purchaser for the same; and that the controller, in pursuance of the provisions of the same section, transmitted to the tax collector of the county a letter directing him to bring suit.
In each case there were, also, the following findings:
"The State Board of Equalization, in assessing said value of said property to and against defendant, assessed the full cash value of said railroad, roadway, road-bed, rails, rolling-stock, and franchises, without deducting therefrom the value of the mortgage, or any part thereof, given and existing thereon as aforesaid, to secure the indebtedness of said company to the holders of said bonds, notwithstanding they had full knowledge of the existence of the said mortgage; and in making said assessment the said State Board of Equalization did not consider or treat said mortgage as an interest in said property, but assessed *409 the whole value thereof to the defendant, in the same manner as if there had been no mortgage thereon."
"The State Board of Equalization, in making the supposed assessment of said roadway of defendant, did knowingly and designedly include in the valuation of said roadway the value of fences erected upon the line between said roadway and the land of coterminous proprietors. Said fences were valued at $300 per mile."
The special grounds of defence by each of the defendants were: 1. That its road is a part of a continuous postal and military route, constructed and maintained under the authority of the United States, by means in part obtained from the General Government; that the company having, with the consent of the State, become subject to the requirements, conditions, and provisions of the acts of Congress, it thereby ceased to be merely a State corporation, and became one of the agencies or instrumentalities employed by the General Government to execute its constitutional powers; and that the franchise to operate a postal and military route, for the transportation of troops, munitions of war, public stores, and the mails, being derived from the United States, cannot, without their consent, be subjected to State taxation. 2. That the provisions of the constitution and laws of California, in respect to the assessment for taxation of the property of railway corporations operating railroads in more than one county, are in violation of the Fourteenth Amendment of the Constitution, in so far as they require the assessment of their property at its full money value, without making deduction, as in the case of railroads operated in one county, and of other corporations, and of natural persons, for the value of the mortgages covering the property assessed; thus imposing upon the defendant unequal burdens, and to that extent denying to it the equal protection of the laws. 3. That what is known as § 3664 of the Political Code of California, under the authority of which in part the assessment was made, was not constitutionally enacted by the legislature, and had not the force of law. 4. That no valid assessment appears in fact to have been made by the State Board. 5. That no interest is recoverable in this action until after judgment. 6. *410 That the assessment upon which the action is based is void, because it included property which the State Board of Equalization had no jurisdiction, under any circumstances, to assess, and that, as such illegal part was so blended with the balance that it cannot be separated, the entire assessment must be treated as a nullity.
The record contains elaborate opinions stating the grounds upon which judgments were ordered for the defendants. Mr. Justice Field overruled the first of the special defences above named, but sustained the second. The circuit judge, in addition, held that § 3664 of the Political Code had not been passed in the mode required by the State Constitution, and, consequently, was no part of the law of California. These opinions are reported as The Santa Clara Railroad Tax Case, in 9 Sawyer, 165, 210.
The propositions embodied in the conclusions reached in the Circuit Court were discussed with marked ability by counsel who appeared in this court for the respective parties. Their importance cannot well be over-estimated; for, they not only involve a construction of the recent amendments to the National Constitution in their application to the Constitution and the legislation of a State, but upon their determination, if it were necessary to consider them, would depend the system of taxation devised by that State for raising revenue, from certain corporations, for the support of her government. These questions belong to a class which this court should not decide, unless their determination is essential to the disposal of the case in which they arise. Whether the present cases require a decision of them depends upon the soundness of another proposition, upon which the court below, in view of its conclusions upon other issues, did not deem it necessary to pass. We allude to the claim of the defendant, in each case, that the entire assessment is a nullity, upon the ground that the State Board of Equalization included therein property which it was without jurisdiction to assess for taxation.
The argument in behalf of the defendant is: That the State Board knowingly and designedly included in its assessment of "the franchise, roadway, road-bed, rails, and rolling-stock" of *411 each company, the value of the fences erected upon the line between its roadway and the land of coterminous proprietors; that the fences did not constitute a part of such roadway, and, therefore, could only be assessed for taxation by the proper officer of the several counties in which they were situated; and that an entire assessment which includes property not assessable by the State Board against the party assessed is void, and, therefore, insufficient to support an action, at least, when and such is claimed to be the case here it does not appear, with reasonable certainty, from the face of the assessment or otherwise, what part of the aggregate valuation represents the property so illegally included therein.
If these positions are tenable, there will be no occasion to consider the grave questions of constitutional law upon which the case was determined below; for, in that event, the judgment can be affirmed upon the ground that the assessment cannot properly be the basis of a judgment against the defendant.
That the State Board purposely included in its assessment and valuation the fences erected on the line between the railroads and the lands of adjacent proprietors, at the rate of $300 per mile, is undoubtedly true: for it is so stated in the special finding of facts, and that finding must be taken here to be in disputable. It is equally true that that tribunal has no general power of assessment, but only jurisdiction to assess "the franchise, roadway, road-bed, rails, and rolling-stock" of railroad corporations operating roads in more than one county, and that all other property of such corporations, subject to taxation, is assessable only "in the county, city, city and county, town, township, or district, in which it is situated, in the manner prescribed by law." Such is the declaration of the State constitution. People v. Sacramento County, 59 Cal. 321, 324; Art. XIII. § 10. It must also be conceded that "fences," erected on the line between these railroads and the lands of adjoining proprietors, were improperly included by the State Board in its assessments, unless they constituted a part of the "roadway." Some light is thrown upon this question by that clause of § 3664 of the Political Code of California which, in the view *412 we take of these cases, may be regarded as having been legally enacted providing that "the depots, station grounds, shops, buildings, and gravel beds" shall be assessed in the county where situated as other property. From this it seems, that there is much of the property daily used in the business of a railroad operated in more than one county, that is not assessable by the State Board, but only by the proper authorities of the municipality where it is situated. So that, even if it appeared that the fences assessed by the State Board were the property of the railroad companies, and not of the adjoining proprietors, they could not be included in an assessment by that board unless they were part of the roadway itself; for, as shown, the jurisdiction of that board is restricted to the assessment of the "franchisé, roadway, road-bed, rails and rolling-stock," We come back, then, to the vital inquiry, whether the fences could be assessed under the head of roadway? We are of opinion that they cannot be regarded as part of the roadway for purposes of taxation.
The Constitution of California provides that "land and improvements thereon shall be separately assessed." Art. XIII. § 2; and, although that instrument does not define what are improvements upon land, the Political Code of the State expressly declares that the term "improvements" includes "all buildings, structures, fixtures, fences, and improvements erected upon or affixed to the land." § 3617. It would seem from these provisions that fences erected upon the roadway, even if owned by the railroad company, must be separately assessed, as "improvements," in the mode required in the case of depots, station grounds, shops, and buildings owned by the company; namely, by local officers in the county where they are situated. The same considerations of public interest or convenience upon which rest existing regulations for the assessments of depots, station grounds, shops, and buildings of a railroad company operated in more than one county, would apply equally to the assessment and valuation for taxation of fences erected upon the line of railway of the same company.
In San Francisco and North Pacific Railroad Co. v. State Board of Equalization, 60 Cal. 12, 34, which was an application, *413 on certiorari, to annul certain orders of the State Board assessing the property of a railroad corporation, one of the questions was as to the meaning of the words "road-bed" and "roadway." The court there said: "The road-bed" is the foundation on which the superstructure of a railroad rests. Webster. The roadway is the right of way, which has been held to be the property liable to taxation. Appeal of N.B. & M.R.R. Co., 32 Cal. 499. The rails in place constitute the superstructure resting upon the road-bed." This definition was approved in San Francisco v. Central Pacific Railroad Co., 63 Cal. 467, 469. In the latter case the question was whether certain steamers owned by the railroad company, upon which were laid railroad tracks, and with which its passenger and freight cars were transported from the eastern shore of the bay of San Francisco to its western shore, where the railway again commenced, were to be assessed by the city and county of San Francisco, or by the State Board of Equalization. The contention of the company was that they constituted a part of its road-bed or roadway, and must, therefore, be assessed by the State Board. But the Supreme Court of the State held otherwise. After observing that all the property of the company, other than its franchise, roadway, road-bed, rails, and rolling-stock, was required by the Constitution to be assessed by the local assessors, the court said: "They are certainly not the franchise of the defendant corporation. They may constitute an element to be taken into the computation to arrive at the value of the franchise of such corporation, but they are not such franchise. It is equally as clear that they are not rails or rolling-stock... . Are they, then, embraced within the words roadway or road-bed, in the ordinary and popular acceptation of such words as applied to railroads? These two words, as applied to common roads, ordinarily mean the same thing, but as applied to railroads their meaning is not the same. The road-bed referred to in § 10, in our judgment, is the bed or foundation on which the superstructure of the railroad rests. Such is the definition given by both Worcester and Webster, and we think it correct. The roadway has a more extended signification as applied to railroads. In addition to the part denominated *414 road-bed, the roadway includes whatever space of ground the company is allowed by law in which to construct its road-bed and lay its track. Such space is defined in subdivision 4 of the 17th section and the 20th section of the act `to provide for the incorporation of railroad companies,' etc., approved May 20, 1861. Stat. 1861, p. 607; S.F. & N.P.R.R. Co. v. State Board, 60 Cal. 12."
The argument in support of the proposition that these steamers constituting, as they did, a necessary link in the line of the company's railway, and upon which rails were actually laid for the running of cars were a part either of the road-bed or roadway of the railroad, is much more cogent than the argument that the fences erected upon the line between a roadway and the lands of adjoining proprietors are a part of the roadway itself. It seems to the court that the fences in question are not, within the meaning of the local law, a part of the roadway for purposes of taxation; but are "improvements" assessable by the local authorities of the proper county, and, therefore, were improperly included by the State Board in its valuation of the property of the defendants.
The next inquiry that naturally arises is, whether the different kinds of property assessed by the State Board are distinct and separable upon the face of the assessment, so that the company being thereby informed of the amount of taxes levied upon each, could be held to have been in default in not tendering such sum, if any, as was legally due? Upon the transcript before us, this question must be answered in the negative. No record of assessment, as made by the State Board, was introduced at the trial, and presumably, no such record existed. Nor is there any documentary evidence of such assessment, except the official communication of the State Board to the local assessors, called, in the findings, the assessment roll of the county. That roll shows only the aggregate valuation of the company's franchise, roadway, road-bed, rails, and rolling-stock in the State; the length of the company's main track in the State; its length in the county; the assessed value per mile of the railway as fixed by the pro rata distribution per mile of the assessed value of its whole franchise, roadway, road-bed, rails, *415 and rolling-stock in the State; and the apportionment of the property so assessed to the county.
It appears, as already stated, from the evidence, that the fences were included in the valuation of the defendants' property; but under what head, whether of franchise, roadway, or road-bed, does not appear. Nor can it be ascertained, with reasonable certainty, either from the assessment roll or from other evidence, what was the aggregate valuation of the fences, or what part of such valuation was apportioned to the respective counties through which the railroad was operated. If the presumption is, that the State Board included in its valuation only such property as it had jurisdiction under the State constitution to assess, namely, such as could be rightfully classified under the heads of franchise, roadway, road-bed, rails, or rolling-stock, that presumption was overthrown by proof that it did, in fact, include, under some one or more of those heads, the fences in question. It was then incumbent upon the plaintiff, by satisfactory evidence, to separate that which was illegal from that which was legal assuming for the purposes of this case only, that the assessment was, in all other respects, legal and thus impose upon the defendant the duty of tendering, or enabling the court to render judgment for, such amount, if any, as was justly due. But no such evidence was introduced. The finding that the fences were valued at $300 per mile is too vague and indefinite as a basis for estimating the aggregate valuation of the fences included in the assessment, or the amount thereof apportioned to the respective counties. Were the fences the property of adjacent proprietors? Were they assessed at that rate for every mile of the railroad within the State? Were they erected on the line of the railroad in every county through which it was operated, or only in some of them? Wherever erected, were they assessed for each side of the railway, or only for one side? These questions, so important in determining the extent to which the assessment included a valuation of the fences erected upon the line between the railroad and coterminous proprietors, find no solution in the record presented to this court.
If it be suggested that, under the circumstances, the court *416 might have assumed that the State Board included the fences in their assessment, at the rate of $300 per mile for every mile of the railroad within the State, counting one or both sides of the roadway, and, having thus eliminated from the assessment the aggregate so found, given judgment for such sum, if any, as, upon that basis, would have been due upon the valuation of the franchise, road-bed, roadway, rails and rolling-stock of the defendant, the answer is, that the plaintiff did not offer to take such a judgment; and the court could not have rendered one of that character without concluding the plaintiff hereafter, and upon a proper assessment, from claiming against the defendant taxes for the years in question, upon such of its property as constituted its franchise, roadway, road-bed, rails and rolling-stock. The case as presented to the court below, was, therefore, one in which the plaintiff sought judgment for an entire tax arising upon an assessment of different kinds of property as a unit such assessment including property not legally assessable by the State Board, and the part of the tax assessed against the latter property not being separable from the other part. Upon such an issue, the law, we think, is for the defendant; an assessment of that kind is invalid and will not support an action for the recovery of the entire tax so levied. Cooley on Taxation, 295-6, and authorities there cited; Libby v. Burnham, 15 Mass. 144, 147; State Randolph, &c. v. City of Plainfield, 38 N.J. Law (9 Vroom), 93; Gamble v. Witty, 55 Mississippi, 26, 35; Stone v. Bean, 15 Gray, 42, 45; Moshier v. Robie, 11 Maine (2 Fairfield), 137; Johnson v. Colburn, 36 Vt. 695; Wells v. Burbank, 17 N.H. 393, 412.
It results that the court below might have given judgment in each case for the defendant upon the ground that the assessment, which was the foundation of the action, included property of material value, which the State Board was without jurisdiction to assess, and the tax levied upon which cannot, from the record, be separated from that imposed upon other property embraced in the same assessment. As the judgment can be sustained upon this ground it is not necessary to consider any other questions raised by the pleadings and the facts found by the court.
*417 It follows that there is no occasion to determine under what circumstances the plaintiffs would be entitled to judgment against a delinquent tax-payer for penalties, interest, or attorney's fees; for, if the plaintiffs are not entitled to judgment for the taxes arising out of the assessments in question, no liability for penalties, interest, or attorney's fees, could result from a refusal or failure to pay such taxes.
Judgment affirmed.
California v. Northern Railway Company. Error to the Circuit Court of the United States for the District of California. The facts in this case are substantially those which appear in County of Santa Clara, &c. v. Railroad Companies, just decided. For the reasons given in the opinion in that case, and upon the ground therein stated, the judgment is
Affirmed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2984443/ | March 27, 2014
JUDGMENT
The Fourteenth Court of Appeals
REMOTE CONTROL HOBBIES, L.L.C. A/K/A AND D/B/A REMOTE
CONTROL HOBBIES, Appellant
NO. 14-12-01088-CV V.
AIRBORNE FREIGHT CORPORATION D/B/A AIRBORNE EXPRESS
SUCCESSOR BY MERGER TO DHL EXPRESS, Appellee
________________________________
This cause, an appeal from the turnover order signed December 4, 2012, was
heard on the transcript of the record. We have inspected the record and find no
error in the judgment. We order the judgment of the court below AFFIRMED.
We order Appellant to pay all costs incurred in this appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2899974/ | NO. 07-08-0488-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 6, 2009
______________________________
In the Interest of K.D.J., a Child
_______________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 74,123-D; HON. DON R. EMERSON, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Raymond Jaramillo, filed a notice of appeal on December 8, 2008.
However, appellant did not pay the $175 filing fee required from appellants under Texas
Rule of Appellate Procedure 5. Nor did it file an affidavit of indigence per Texas Rule of
Appellate Procedure 20.1. By letter from this Court dated December 15, 2008, we
informed appellant that “the filing fee in the amount of $175.00 has not been paid . . . .
Failure to pay the filing fee within ten (10) days from the date of this notice may result in
a dismissal.” TEX . R. APP. P. 42.3(c); see Holt v. F. F. Enterprises, 990 S.W.2d 756 (Tex.
App.–Amarillo 1998, pet. ref’d). The deadline lapsed, and the fee was not received.
Because appellant has failed to pay the requisite filing fee as directed by the court,
we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(c).
Per Curiam
2 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2907280/ | In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-09-00031-CV
____________________
IN RE WILD OATS MARKETS, INC. and WHOLE FOODS MARKET, INC.
Original Proceeding
OPINION
Kuykendahl-WP Retail, L.L.P. ("Kuykendahl") sued Wild Oats Markets, Inc., ("Wild
Oats") for breach of a lease agreement and sued Whole Foods Market, Inc., ("Whole Foods")
for tortious interference with the lease agreement between Kuykendahl and Wild Oats.
Kuykendahl also alleges that Wild Oats and Whole Foods engaged in a conspiracy to commit
fraud and that Wild Oats defrauded Kuykendahl. The lease contains a contractual waiver of
jury trial. The trial court struck Kuykendahl's jury demand as to its claims against Wild Oats
but set Kuykendahl's claims against Whole Foods for a jury trial. Because we find the
contractual waiver of jury trial does not extend to Kuykendahl's non-contractual claims
against Whole Foods, we vacate our stay order and deny relief.
Mandamus relief is appropriate to correct the trial court's failure to enforce a valid
contractual jury waiver. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 139 (Tex. 2004).
Neither the right to a jury trial nor the right to enforce a contractual waiver is discretionary;
the issue is what the waiving party agreed to, not what the courts deem to be fair. See In re
Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 192-93 (Tex. 2007) (1). Kuykendahl does not
challenge the validity of its waiver of the right to a jury trial, but contends that valid waiver
does not extend to its claims against Whole Foods because Whole Foods did not sign the
lease that contains the waiver.
The lease contained the following provision:
Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury
in any court action, proceeding or counterclaim, including any claim of injury
or damage and any provisional remedy. This waiver will expressly survive the
expiration or earlier termination of the Lease.
Kuykendahl argues that Whole Foods cannot enforce the jury waiver because Whole
Foods is not a party to the lease. This is not a situation where the jury waiver is imposed on
a non-signatory to the agreement. Cf. In re Weekley Homes, L.P., 180 S.W.3d 127, 132-33
(Tex. 2005) (contractual arbitration clause imposed on non-signatory plaintiff who derived
direct benefits from the contract). Although Whole Foods did not sign the lease, Kuykendahl
did. The issue here is whether the waiver language in the lease necessarily includes
Kuykendahl's claims against Whole Foods. The provision covers any court action, any claim
of injury, and any provisional remedy. While the contract places no express limitation on the
parties affected by the provision, it does expressly refer only to the Landlord and the Tenant.
Although the damages Kuykendahl seeks in its petition for both its breach-of-contract claim
and its tortious interference claim are both identical, a tortious interference claim against an
unrelated third party is not a claim encompassed by the waiver-of-jury-trial clause contained
in the lease.
Although direct benefits estoppel does not apply here, arguably the doctrine of
concerted misconduct equitable estoppel would apply if the doctrine were accepted in Texas.
See In re Merrill Lynch Trust Co. FSB, 235 S.W.3d at 191. Whole Foods acquired Wild Oats
on or about August 28, 2007. (2) Kuykendahl contends that the jury waiver does not apply
because Kuykendahl is suing Whole Foods for its tortious pre-merger conduct. Although
Kuykendahl concedes the claims "might partially arise out of some common core of facts"
it contends its claims against the two defendants are based on distinct conduct. In particular,
Kuykendahl claims Wild Oats made material misrepresentations directly to Kuykendahl
during the interim period of the merger, that Wild Oats failed to disclose material information
to Kuykendahl during the interim period of the merger, that Wild Oats acted contrary to its
contractual obligations and acted as if it were going to open the store on the leased property
while Whole Foods directed Wild Oats not to open the store. Of course, Kuykendahl also
alleges that the two defendants' conduct was a conspiracy to interfere with and breach the
lease, restrain trade and commerce, and defraud Kuykendahl. Thus, according to
Kuykendahl's own pleadings the two defendants "worked together toward[s] their joint
goal[.]" We note, however, that the Texas Supreme Court declined to adopt concerted-misconduct equitable estoppel. Id. at 195. The relators have not shown that Kuykendahl
waived its right to a jury trial on Kuykendahl's tortious interference claims against Whole
Foods. Accordingly, we lift our stay order of January 30, 2009, and deny the petition for
writ of mandamus.
PETITION DENIED.
PER CURIAM
Submitted February 3, 2009
Opinion Delivered April 2, 2009
Before McKeithen, C.J., Kreger and Horton, JJ.
1. In its response, Kuykendahl suggests arbitration cases are treated more favorably than
other contractual jury waiver cases. We disagree. Arbitration agreements are enforced the
same as other contracts. See In re Bank of Am., N.A., No. 07-0901, 2009 WL 490065, *4
(Tex. Feb. 27, 2009); In re Merrill Lynch Trust Co. FSB, 235 S.W.3d at 192. The issue in
this proceeding is whether the lease between Kuykendahl and Wild Oats unambiguously
waived Kuykendahl's right to a jury trial of Kuykendahl's claims against Whole Foods for
tortiously interfering with the lease.
2. Wild Oats has not been dissolved and Whole Foods is not the successor of Wild Oats.
Accordingly, on the record before us, Whole Foods has not shown that Wild Oats'
contractual rights under the successors and assigns clause contained in the lease agreement
inure to its benefit. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1093754/ | 473 So. 2d 164 (1985)
James Willie FLOWERS
v.
STATE of Mississippi.
No. 54761.
Supreme Court of Mississippi.
July 10, 1985.
Mike L. Cordell, Hollandale, for appellant.
Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and DAN M. LEE and SULLIVAN, JJ.
PATTERSON, Chief Justice, for the Court:
This is an appeal from the Circuit Court of Washington County, wherein James Willie Flowers was indicted for murder, convicted of manslaughter and sentenced to twelve (12) years imprisonment. We reverse and remand for a new trial.
It is undisputed that the night of Christmas Eve, 1981, or the early morning hours of Christmas Day, James Willie Flowers shot and killed Joe Lee Edison in the Blue Note Cafe in Greenville. State's witnesses testified that Flowers' gun was the only visible weapon in the nightclub at the time of the incident. Besides being replete with contradictions on minor points, this evidence conflicts squarely with defense testimony that Flowers shot Lee because Lee and his brother had two guns pointed at him, thereby doubtlessly causing him to fear for his own life. The jury resolved the conflict by finding Flowers guilty of manslaughter.
Flowers assigns two errors, one of which is that the court improperly granted State's Instruction S-2, set out below:
The court instructs the jury that to make a homicide justifiable on the ground of self-defense, the danger to the slayer must be either actual, present and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him great bodily harm, and in addition to this that there was imminent danger of such design being accomplished, and hence mere fear, apprehension or belief, however sincerely entertained by the slayer, that another designs to take his life or to do him great bodily harm will not justify the slayer in taking the life of the latter party. The slayer may have a lively apprehension that his life *165 is in danger or that he is in danger of great bodily harm, and believe the grounds of his apprehension just and reasonable, and yet he acts at his own peril. He is not the final judge; the jury may determine the reasonableness of the grounds on which he acted.
If you believe from the evidence in this case beyond a reasonable doubt that the defendant, James Willie Flowers, did unlawfully, willfully, feloniously and of his malice aforethought shoot and kill Joe Lee Edison, a human being, at a time when he, the said James Willie Flowers, was not in any imminent danger of great bodily harm either real or apparent being inflicted upon him, then it is your sworn duty to find the defendant, Willie James Flowers, guilty of murder. (Emphasis added.)
At trial defense counsel objected to the language here emphasized and sought to correct it by amendment.
As early as 1936, this Court held an almost identical instruction would have been reversible error had it not been accompanied by one which emphasized the defendant's right of self-defense. Bailey v. State, 174 Miss. 453, 165 So. 122 (1936).
Until 1983, we upheld with little comment the continued use of this instruction. E.g. Shields v. State, 244 Miss. 543, 144 So. 2d 786 (1962); Coleman v. State, 22 So. 2d 410 (Miss. 1945).
However, in Robinson v. State, 434 So. 2d 206 (Miss. 1983), the instruction received more than cursory attention. Having reviewed the case law controlling the issue, the majority opinion stated, "Although a majority of the court is of the opinion that the instruction does correctly state the law, several other Judges are of the opinion that it is too long, redundant and confusing." 434 So.2d at 207. The court then advised District Attorneys to employ a proffered alternative instruction. Accord Lenoir v. State, 445 So. 2d 1371 (Miss. 1984).
The instruction again came under attack in Scott v. State, 446 So. 2d 580 (Miss. 1984). Although the case was reversed on other grounds, the court addressed the issue of the granting of Instruction S-8, similar to S-2:
Recently, in Robinson v. State, (citation omitted) this Court condemned an instruction similar to S-8. This is so because the instruction is self-contradictory and confusing. The troublesome part is the first sentence of the final paragraph. If a party has "an apprehension that his life is in danger" and believes "the grounds of his apprehension just and reasonable" a homicide committed by that party is in self-defense. These are the grounds upon which a claim of self-defense must be predicated. (citations omitted) A party acting upon this principle does not "act at his peril." ...
Our decision today should be a clear indication that instructions such as S-8 are condemned and should not be used upon retrial of this matter.
446 So.2d at 583-84.
Finally, in Bebley v. State, 456 So. 2d 755, 756 (Miss. 1984), the Court stated, "Any use of the instruction in cases tried after Robinson was published will be closely scrutinized. A word to the wise should be sufficient." Although this case was tried approximately five months prior to the publication of Robinson, we nevertheless are of the opinion the granting of the instruction requires reversal because of the factual closeness of this case.
It appears from our review that criticism by this Court is construed to mean this instruction is approved for continued use. We intend precisely the opposite effect, that its use be discontinued. Presently to remove any such doubt, we now condemn Instruction S-2 and forthrightly hold it constitutes reversible error in this case and will be so considered in future cases.
Insofar as they held this instruction was a proper statement of the law, the following cases are hereby overruled: Robinson v. State, 434 So. 2d 206 (Miss. 1983); Drungo v. State, 409 So. 2d 1323 (Miss. 1982); Bright v. State, 349 So. 2d 503 (Miss. 1977); *166 Corbin v. State, 220 So. 2d 299 (Miss. 1969); Shinall v. State, 199 So. 2d 251 (Miss. 1967); Shields v. State, 244 Miss. 543, 144 So. 2d 786 (1962); Dobbs v. State, 200 Miss. 595, 27 So. 2d 551, 29 So. 2d 84 (1947); Holmes v. State, 199 Miss. 137, 24 So. 2d 90 (1945); Coleman v. State, 22 So. 2d 410 (Miss. 1945); Bailey v. State, 174 Miss. 453, 165 So. 122 (1936); Callas v. State, 151 Miss. 617, 118 So. 447 (1928); Ransom v. State, 149 Miss. 262, 115 So. 208 (1928); Johnson v. State, 140 Miss. 889, 105 So. 742 (1925); Scott v. State, 56 Miss. 287 (1879); Kendrick v. State, 55 Miss. 436 (1877); Evans v. State, 44 Miss. 762 (1871); Head v. State, 44 Miss. 731 (1871); and Wesley v. State, 37 Miss. 327 (1859).
Flowers also contends he is entitled to a new trial because his conviction was against the overwhelming weight of the evidence. Viewed as a whole, the State's evidence is fraught with inconsistencies, some of which rise to the level of incredulity. For instance, we find very doubtful the witness' testimony that an unarmed, unintoxicated individual (George Edison) pursued onto a dark street the man (Flowers) who had just shot his brother (Joe Lee Edison) in cold blood and who was still carrying a weapon. Moreover, there is evidence that the pursuing witness was also firing a pistol in the direction of Flowers who was fleeing.
Although we do not reverse on the insufficiency of the State's evidence, we address the issue to emphasize it is especially important in a factually close case that the jury be properly instructed. As stated in the dissent in Bebley v. State, "In the event any juror was doubtful, the state's instruction, that has been condemned by this Court a number of times, would tend to influence that juror's decision." 456 So.2d at 757 (Bowling, J., dissenting).
In this case, with evidence conflicting in every possible degree as to the material facts, we think it likely that Instruction S-2 unfairly diluted Flowers' evidence that he fired in self-defense. In our opinion the instruction had the likely effect of denying the appellant his legal right to a proper self-defense instruction based upon the evidence.
For the reasons stated, this case is reversed and remanded.
REVERSED AND REMANDED.
HAWKINS, DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.
ROY NOBLE LEE and WALKER, P.JJ., dissent.
ROY NOBLE LEE, Presiding Justice, dissenting:
I would not reverse the conviction and judgment in this case because of the State's Instruction S-2, nor would I overrule eighteen (18) cases of this Court decided from 1859 to 1983 holding the instruction not to be reversible error. Therefore, I dissent.
Instruction S-2 may be unwieldy and not artfully drawn, but it does correctly state the law regarding self-defense. It properly sets out the law that (1) fear, apprehension or belief, however, sincerely entertained by the slayer ... will not justify the taking of the victim's life; (2) the slayer may have a lively apprehension that his life is in danger or that he is in danger of great bodily harm, and believe the grounds of his apprehension just and reasonable, and yet he acts at his own peril; (3) he is not the final judge, the jury may determine the reasonableness of the grounds on which he acted.
The concluding paragraph of the instruction states:
If you believe from the evidence in this case beyond a reasonable doubt that the Defendant, James Willie Flowers, did unlawfully, wilfully, feloniously and of his malice aforethought shoot and kill Joe Lee Edison, a human being, at a time when he, the said James Willie Flowers, was not in any imminent danger of great bodily harm either real or apparent being inflicted upon him, then it is your sworn duty to find the Defendant, Willie James Flowers, guilty of murder.
*167 That statement concisely and clearly states what is required in a self-defense plea, viz, there must be imminent danger of great bodily harm, either real or apparent, being inflicted, determined by a reasonable person.
In Lenoir v. State, 445 So. 2d 1371 (Miss. 1984), the identical instruction was assigned as error and considered by the Court. Citing a number of the cases which the case sub judice overrules, we held that the instruction does not constitute reversible error. The entire Court concurred.
The test on a self-defense plea is not whether the accused is frightened and fearful that he will suffer great bodily harm or loss of life. The test is whether or not a reasonable person had reasonable grounds to fear, and did fear, for his life or great bodily harm. Those questions are for the jury to determine, and Instruction S-2 sufficiently stated the law to the jury.
Flowers contends that he is entitled to a new trial because his conviction was against the overwhelming weight of the evidence. The majority opinion sets forth that the State's evidence is fraught with inconsistencies and that the case is weak. However, the case is not reversed on the insufficiency of the State's evidence. If the case were reversed on that ground, under Burks v. State, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the appellant should be discharged. On the other hand, if the verdict is against the weight of the evidence, it could be reversed for a new trial and would not constitute former jeopardy. See Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); May v. State, 460 So. 2d 778, 781 (Miss. 1984). If the case, on the facts, is as close as the majority opinion indicates, then it appears that it might be against the overwhelming weight of the evidence. In my view, if the case is to be reversed, it should be reversed on that ground rather than on Instruction S-2.
Therefore, I dissent from the majority opinion.
WALKER, P.J., joins this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1491803/ | 818 F. Supp. 1013 (1993)
Franklin Delgado RODRIGUEZ
v.
SHELL OIL COMPANY.
No. G-93-65.
United States District Court, S.D. Texas, Galveston Division.
April 20, 1993.
*1014 James Thomas McCartt, Stephen D. Susman, and Michael A. Lee, Susman & Godfrey, Burton G. Manne, Lowman & Manne, Houston, TX, Charles Stein Siegel, Misko Howie & Sweeney, and Fred Misko, Jr., Dallas, TX, for plaintiff.
Jose Berlanga, Hirsch Glover Robinson & Sheiness, Thomas C. Fitzhugh, III, Fitzhugh & Associates, Burt Ballanfant, Houston, TX, for defendant.
ORDER
KENT, District Judge.
Before the Court is Plaintiff's Motion to Remand. For the reasons stated below, the Court is of the opinion that the motion should be GRANTED.
I.
This action was originally filed in Texas state court. Plaintiff's Original Petition, which has never been amended, asserts state-law claims arising out of his alleged exposure to pesticides manufactured by Defendant. Defendant removed to this Court alleging that this action is removable as an action arising under the laws of the United States[1] because Plaintiff's state-law claims are preempted by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq. ("FIFRA"). The Court has examined the pleadings and the relevant statutes and case law and is of the opinion that Defendant misconstrues the relationship between federal preemption in general and federal question jurisdiction based on federal preemption.
*1015 In general, questions concerning federal question jurisdiction are resolved by examining the plaintiff's well-pleaded complaint. If a federal question does not appear on the face of the complaint, a district court cannot exercise federal question jurisdiction. An allegation that the plaintiff's state-law claim is preempted by federal law is a federal defense and does not create a federal question. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987).
However, under the complete preemption doctrine, the preemptive force of certain federal statutes is so great that ordinary state-law claims must be treated as federal claims for jurisdictional purposes. Id. Complete preemption is the exception, however, and not the rule. While federal law preempts many otherwise viable state-law actions, only a few federal statutes have the preemptive force necessary to transmute state-law claims into federal claims. In the instant case, the Court is of the opinion that, while Defendant can make a strong argument that Plaintiff's failure to warn claims are preempted by FIFRA's express preemption provision (7 U.S.C. § 136v(b)),[2] FIFRA preemption will not support removal.
A.
In the Court's view, this case is controlled by the Fifth Circuit's decision in Aaron v. National Union Fire Ins. Co., 876 F.2d 1157 (5th Cir.1989), cert. denied sub nom. American Home Ins. Group v. Aaron, 493 U.S. 1074, 110 S. Ct. 1121, 107 L. Ed. 2d 1028 (1990). In Aaron, the court held that federal preemption is insufficient to support removal unless the statute in question clearly indicates Congress's intent to make preempted state-law claims removable to federal court. At a minimum, the statute in question must provide a private right of action and contain a specific grant of federal jurisdiction. Id. at 1163-65. Because FIFRA does not satisfy either of these requirements, FIFRA preemption will not support removal in this case.
Defendant argues, however, that Aaron is not controlling. Instead, Defendant relies on Texas Employers' Ins. Ass'n v. Jackson,[3] in which a Fifth Circuit panel held that the existence of a private right of action is only some evidence of Congressional intent and that federal preemption may authorize the exercise of federal question removal jurisdiction even if the preempting statute does not provide for a private right of action. Defendant asserts that Aaron and Jackson represent two parallel lines of Fifth Circuit authority and that Aaron has been implicitly overruled by subsequent Supreme Court decisions.
The Fifth Circuit has introduced some confusion into [the complete preemption] issue because it has articulated two parallel lines of cases with admittedly different tests as to whether [the complete preemption doctrine] applies the Jackson line and the Aaron line. The Fifth Circuit starting with Judge Brown's panel opinion in [Jackson] and which while [sic] the judgment was reversed, articulated its reasoning on the removal issue which culminated in Trans World Airlines v. Mattox, by finding that express preemption provided a sufficient basis for federal question removal jurisdiction.
FIFRA is an express preemption of all claims pled by plaintiff against Shell. As that preemption is complete within the meaning of the "independent corollary' [sic] rule, removal on the basis of federal question jurisdiction was proper.
Def.'s Resp.Pl.'s Mot.Rem. (Instr. 9) at 3-4 (emphasis original).
The Court is not persuaded. First, the panel opinion in Jackson was, as Defendant concedes, rendered moot by the Fifth Circuit's disposition of the case on en banc rehearing,[4] and Trans World Airlines v. *1016 Mattox[5] ("Trans World Airlines I"),[6] the other case in this "line," does not (and indeed could not, as Trans World Airlines I is also a panel opinion) purport to resurrect it. Thus, whatever the import of Trans World Airlines I, the panel opinion in Jackson is not an authoritative statement of the law in this circuit.
More importantly, Trans World Airlines I does not stand for the proposition that "express preemption provide[s] a sufficient basis for federal question removal jurisdiction." Rather, the court, after stating the well pleaded complaint rule, gave a standard definition of the complete preemption doctrine and then held that in enacting the ADA, Congress intended to make state-law claims preempted by the ADA removable to federal court. 897 F.2d at 787. This is a far cry from saying that all state-law claims that are expressly preempted by a federal statute must be treated as federal claims for jurisdictional purposes.
Indeed, the Supreme Court's statements concerning the preemptive effect of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., refute Defendant's interpretation of Trans World Airlines I. ERISA expressly preempts all state laws that "relate to" any employee welfare benefit plan. 29 U.S.C. § 1144(a). However, ERISA preemption alone is insufficient to support removal. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 25-27, 103 S. Ct. 2841, 2854-56, 77 L. Ed. 2d 420 (1983). Rather, a state-court action in which only state-law claims are asserted may be removed to federal court only if one of the state-law claims is both preempted by ERISA and within the ambit of ERISA's civil enforcement provisions. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64-67, 107 S. Ct. 1542, 1546-47, 95 L. Ed. 2d 55 (1987).
Furthermore, it is at least arguably possible to partially reconcile Trans World Airlines I with Aaron by noting that, as originally enacted, the ADA provided a private right of action for discrimination. See, e.g., Salley v. Trans World Airlines, Inc., 723 F. Supp. 1164, 1165-66 (E.D.La.1989).
Additionally, as this Court has previously noted, Trans World Airlines I does not represent a line of Fifth Circuit authority but, rather, is an anomaly in the Fifth Circuit's complete preemption jurisprudence. Brown v. Crop Hail Management, Inc., 813 F. Supp. 519, 528-29 (S.D.Tex.1993). In addition, both Trans World Airlines I and Aaron were panel decisions. In the Fifth Circuit, one panel may not disregard a previous panel's decision absent an intervening decision by either the court sitting en banc or the Supreme Court. See; e.g., Lirette v. N.L. Sperry Sun, Inc., 810 F.2d 533 (5th Cir.), rev'd on other grounds, 820 F.2d 116 (5th Cir.1987). Trans World Airlines I does not mention Aaron, and, in the Court's view, nothing in either Trans World Airlines I or the cases cited by Defendant implies that the Aaron court's analysis was subsequently disapproved by the Supreme Court. Indeed, the Supreme Court cases relied on by Defendant to support this contention address only the preemption of state-law claims by federal *1017 law and do not even consider the complete preemption doctrine.[7] Therefore, in the Court's view, Aaron is a correct statement of the law in this circuit.[8]
B.
The foregoing analysis is, however, in a sense, coals to Newcastle, because, even assuming Defendant is correct and removal may be predicated on federal preemption even though the statute in question does not provide a private right of action or contain a specific grant of federal-court jurisdiction, it is abundantly clear that in enacting FIFRA, Congress did not intend to so completely preempt the field as to allow the removal from state court of FIFRA-preempted claims. Outside of the express preemption provision, there is simply no legislative history to support the contrary contention,[9] and, in the Court's view, express preemption, without more, is insufficient to support removal.
A comparison with ERISA neatly illustrates the latter point. As noted above, ERISA, like FIFRA, contains an express preemption provision. Unlike FIFRA, ERISA also provides a comprehensive civil enforcement scheme that includes a private right of action. Nevertheless, in Metropolitan Life Ins. Co. v. Taylor, supra, the Supreme Court stated that even the existence of such a scheme was probably insufficient to bring the complete preemption doctrine into play. Only because ERISA contains a grant of jurisdiction which tracks the jurisdictional grant contained in section 301 of the Labor Management Relations Act[10] is its preemptive force sufficient to transform state-law claims into federal claims.
C.
Finally, and most importantly, even assuming that Defendant's analysis of the complete preemption issue is correct, that analysis favors a result contrary to the one sought by Defendant. Relying on Jackson and Trans World Airlines I, Defendant asserts that to determine whether the complete preemption doctrine applies, a court must consider only Congressional intent. In Trans World Airlines I, the Fifth Circuit held that the preemptive force of the ADA is so strong that it converts state-law claims into federal-law claims. As evidence of Congress's intent, the court cited only the express preemption provision of the ADA. This fact, together with the fact that the failure of a federal statute to provide a private right of action is not a bar to a finding of federal preemption,[11] indicates that an express preemption provision can be sufficient, without more, to trigger the application of the preemption doctrine.[12]
*1018 Even assuming the truth of the foregoing, however, it does not follow that an express preemption provision is always sufficient, without more, to transform state-law claims into federal claims. Under the terms of Defendant's own argument, if Congress did not intend for the complete preemption doctrine to apply then federal preemption will not support removal, express preemption provision or no.[13]
In Wisconsin Public Intervenor v. Mortier,[14] the Supreme Court expressly held that in enacting FIFRA Congress did not intend to completely preempt the field of pesticide regulation. As noted above, the Supreme Court decisions construing ERISA clearly indicate that just because a federal statute completely preempts all state and local laws in a particular area it does not necessarily follow that state-law claims in that field are transformed into federal claims. In the Court's view, if complete federal preemption is not necessarily sufficient to support removal, removal can never be based on a federal statute which does not completely deprive state and local authorities of the ability to regulate a particular class of activities.
II.
Although Defendant's Notice of Removal does not assert that removal was proper because complete diversity exists between the parties and does not otherwise establish this as ground for removal, it does contain an allegation that "this Court also has jurisdiction under 28 U.S.C. § 1332." However, even if Defendant had properly alleged diversity as a ground for removal, removal would have been improper. It appears undisputed that Defendant has its principal place of business in Texas and is therefore a citizen of Texas. 28 U.S.C. § 1332(c)(1). 28 U.S.C. § 1441(b) prohibits the removal of diversity cases in which one or more of the defendants is a citizen of the forum state. Thus, even if Defendant had properly alleged diversity as a ground for removal, this case would have to be remanded pursuant Plaintiff's timely motion.[15]
III.
Therefore it is hereby ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to Remand is GRANTED FOR LACK OF SUBJECT MATTER JURISDICTION and this case is REMANDED to the state court from whence it came.
It is further ORDERED that all other motions currently pending are NOT REACHED.
It is further ORDERED that the parties file no further pleadings in this Court.
IT IS SO ORDERED.
THIS IS A FINAL JUDGMENT.
NOTES
[1] 28 U.S.C. §§ 1331, 1441.
[2] See e.g., Stamps v. Collagen Corp., 984 F.2d 1416, 1424-25 (5th Cir.1993).
[3] 820 F.2d 1406 (5th Cir.1987), vacated, 862 F.2d 491 (5th Cir.1988) (en banc), cert. denied, 490 U.S. 1035, 109 S. Ct. 1932, 104 L. Ed. 2d 404 (1989).
[4] The main issue in Jackson was whether the district court had the authority to enjoin a pending state-court suit because the plaintiff's claims were preempted by the Longshore Workers' Compensation Act, 33 U.S.C. §§ 901-950. On en banc rehearing, the Fifth Circuit held that the district court lacked authority to enjoin the state-court suit regardless of whether the plaintiff's state-law claims were preempted. 862 F.2d at 508-09.
[5] 897 F.2d 773 (5th Cir.), cert. denied, 498 U.S. 926, 111 S. Ct. 307, 112 L. Ed. 2d 261 (1990). In Trans World Airlines, two airlines filed suit in federal court seeking a declaration that various state laws were preempted by the Airline Deregulation Act of 1978, 49 U.S.C.App § 1301 et seq. ("ADA"). Meanwhile, the Texas Attorney General filed suit against a third airline in Texas state court asserting claims under the Texas Deceptive Trade Practices Act. The third airline removed to federal court, and that case was subsequently transferred and consolidated with the pending declaratory judgment action. Id. at 787.
[6] In Trans World Airlines, the district court initially entered a preliminary injunction enjoining the State of Texas from enforcing any state laws to regulate the plaintiff airlines' rates, routes, or services, Trans World Airlines, Inc. v. Mattox, 712 F. Supp. 99 (W.D.Tex.1989), and the Fifth Circuit affirmed in the decision relied on by Defendant in this case. Thereafter, the district court entered a permanent injunction, and the Fifth Circuit again affirmed. Trans World Airlines v. Mattox, 949 F.2d 141 (5th Cir.1991) (per curiam) ("Trans World Airlines II"). The Supreme Court affirmed in part, holding that the airline fare advertising provisions of the National Association of Attorney Generals' guidelines are preempted by the ADA. Morales v. Trans World Airlines, ___ U.S. ___, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992) ("Trans World Airlines III").
[7] By contrast, Defendant's assertion that an express preemption clause, without more, is sufficient to create federal jurisdiction appears to be at odds with the Supreme Court's decision in Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986), in which the Court held that a claim alleging a violation of a federal statute is not removable to federal court if no private right of action exists under the federal statute.
[8] Additionally, while the Aaron court's treatment of the complete preemption issue is exhaustive, Trans World Airlines I is primarily concerned with federal preemption rather than with the complete preemption doctrine, and the court's treatment of the latter issue is quite perfunctory. Additionally, neither Trans World Airlines II or Trans World Airlines III mentions the complete preemption doctrine. In Trans World Airlines II, the court held that the attorney generals' jurisdictional arguments were barred by the law of the case doctrine. In Trans World Airlines III, the Court did not address any jurisdictional issues.
[9] See, e.g., Hurt v. Dow Chem. Co., 963 F.2d 1142, 1144-45 (5th Cir.1992).
[10] In Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers, 390 U.S. 557, 88 S. Ct. 1235, 20 L. Ed. 2d 126 (1968), the Court held that the preemptive force of section 301 of the LMRA is so great that it transforms into a federal claim any state-law claim concerning a violation of a contract between an employer and a labor union.
[11] Cipollone v. Liggett Group, Inc., ___ U.S. ___, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992).
[12] Although this argument is not entirely without merit, it rests on the premise that in deciding Cipollone, supra, and Trans World Airlines III, supra, the Supreme Court intended to effect a sea change in the law of removal based on federal preemption, see Aaron v. National Union Fire Ins. Co., supra, 876 F.2d at 1164-65, even though the Court did not address the complete preemption doctrine in either case. Under Defendant's formulation of the complete preemption doctrine, an express preemption clause is sufficient, without more, to support removal of an action from state court. The decisions in Cipollone and Morales clearly indicate that a federal statute may preempt otherwise viable state-law claims even though the statute provides no private right of action. Neither decision, however, addresses removal based on federal preemption. By contrast, as noted above, Merrell Dow Pharmaceuticals, Inc. v. Thompson, supra, appears to stand for the proposition that even a state-court action asserting a violation of a federal statute is not removable based on federal preemption unless the federal statute provides a private right of action. Thus, to find that the instant action was properly removed, this Court would have to conclude that Cipollone and Morales overruled Merrell Dow sub silentio. In the Court's view, such a determination is better left to a higher tribunal.
[13] In this regard, the Court notes that the ADA's express preemption provision is, like ERISA's, quite broad. By contrast, FIFRA does not preempt all state laws that "relate to" pesticide regulation or even those that "relate to" labeling. Rather, FIFRA merely provides that a state "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required" by FIFRA. 7 U.S.C. § 136v(b).
[14] ___ U.S. ___, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991).
[15] Defendant's Notice of Removal was filed on February 12, 1993. Plaintiff's Motion to Remand was filed March 10, 1993. See 28 U.S.C. § 1447(c). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589012/ | 71 N.Y.2d 653 (1988)
Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, et al., Appellants,
v.
Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
Court of Appeals of the State of New York.
Argued April 25, 1988.
Decided May 31, 1988.
Marjorie E. Karowe for appellants.
Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
Christopher H. Gardner, Richard E. Casagrande and Richard O'Hara for Council 82, AFSCME, AFL-CIO and others, amici curiae.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, and HANCOCK, JR., concur.
*656BELLACOSA, J.
Article V, § 7 of the New York State Constitution provides valued safeguards for public employees against the diminishment or impairment of pension rights which are fixed and determined by the laws and conditions in existence at the time membership in the pension system commences. We agree with the Appellate Division that chapter 890 of the Laws of 1976 did not violate that constitutional protection as to employees hired between July 27, 1976 and December 31, 1976 the individual appellants here joined in December 1976 by conferring in a complementary prospective legislative package Tier II benefits only until December 31, 1976, at which time they matured into Tier III benefits.
Appellants are two public employees Nogas, employed by the County of Oneida, and Waterhouse, by the State and their labor union representative (Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO). Nogas and Waterhouse were afforded benefits under the provisions of Retirement and Social Security Law article 11, commonly referred to as Tier II, until December 31, 1976 and thereafter to those under Tier III (Retirement and Social Security Law art 14). The tier downshift occurred automatically under the complementary pension package established in the single prospective legislative act designed to accommodate emergency circumstances (L 1976, ch 890, § 4 [Retirement and Social Security Law § 451]).
This action was commenced seeking a judgment declaring that public employees who joined the Retirement System between July 1, 1976 and December 31, 1976 are members of Tier II and that the conversion to Tier III rights and benefits for such employees is violative of NY Constitution, article V, § 7. The trial court declared for plaintiffs and granted them ancillary, implementing relief as well.
The Appellate Division reversed and declared that the ultimate classification of appellants Nogas and Waterhouse as Tier III members did not violate the constitutional protection. *657 It reasoned that chapter 890 of the Laws of 1976, made contractual by operation of the Constitution, provided the appellants with a complementary package of pension rights and benefits including Tier II status only until January 1, 1977, and thereafter only those benefits conferred under Tier III. The Appellate Division qualified its holding by affording public employees who joined between July 1, 1976 and the date that chapter 890 was actually signed into law, July 27, 1976, permanent Tier II status. The plaintiffs' appeal is as of right on substantial constitutional question grounds (CPLR 5601 [b] [1]). We affirm.
Tier II was created by the Laws of 1973 (ch 382) for a period of three years only and was to lapse as an available category on June 30, 1976. The Legislature, engaged in negotiations over pension reform legislation, had not agreed upon a replacement system as of July 1, 1976. It thus passed an extension of Tier II (L 1976, ch 491). On July 27, 1976, Governor Carey signed a comprehensive pension reform bill (Retirement and Social Security Law art 14 [L 1976, ch 890]), which provided that Tier III status be afforded all employees hired after July 1, 1976 (Retirement and Social Security Law § 500 [ch 890, § 1]), retroactively directed permanent closure to Tier II as of July 1, 1976 (ch 890, § 5), and established January 1, 1977 as the effective date of Tier III (L 1976, ch 890, § 9). To bridge the period between the closure of Tier II and the effective date of Tier III, the new law provided that: "[n]otwithstanding * * * any other law, effective July first, nineteen hundred seventy-six, all benefits provided by an actuarially funded public retirement system of the state of New York or any municipality thereof shall continue with respect to members to which article fourteen is applicable only until December thirty-first, nineteen hundred seventy-six" (Retirement and Social Security Law § 451 [ch 890, § 4] [emphasis supplied]).
We hold that simultaneously prescribing Tier III status to public employees who are preliminarily afforded Tier II rights and benefits does not constitute an unconstitutional impairment or diminution of a fixed public retirement contractual right as to those entering between July 27, 1976, the date of signing of chapter 890, and December 31, 1976. Their rights were fully established by the laws and conditions in effect when their membership commenced. Inclusion of a complementary and prospective condition in a definite, known and *658 fixed pension package in these circumstances satisfies the constitutional protection and our precedents.
New York Constitution, article V, § 7 was adopted in 1938 in response to Roddy v Valentine (268 N.Y. 228). This court there held that retirement benefits were not contractual and could be legislatively altered until the member actually retired (see, Public Employees Fedn. v Cuomo, 62 N.Y.2d 450, 459; Birnbaum v New York State Teachers Retirement Sys., 5 N.Y.2d 1, 8). In response to Roddy, article V, § 7 provides in pertinent part that "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired" (NY Const, art V, § 7 [emphasis supplied]).
The rights of public employees are thus fixed as of the time the employee becomes a member of the system. We have consistently held that the constitutional prohibition against diminishing or impairing retirement benefits "prohibits official action during a public employment membership in a retirement system which adversely affects the amount of the retirement benefits payable to the members on retirement under laws and conditions existing at the time of * * * entrance into retirement system membership" (Birnbaum v New York State Teachers Retirement Sys., 5 N.Y.2d 1, 11, supra [emphasis supplied]; Kleinfeldt v New York City Employees' Retirement Sys., 36 N.Y.2d 95, 101-102). Where "changes were applied retroactively to prior members of a public retirement system, they were held unconstitutional on the theory that a member's rights were frozen as of the date of employment and that any changes lessening benefits must be made prospectively" (Public Employees Fedn. v Cuomo, 62 N.Y.2d 450, 460, supra [emphasis supplied]; Matter of Central School Dist. No. 2 v New York State Teachers' Retirement Sys., 23 N.Y.2d 213, 232 [no benefit, once enacted, may later be discontinued]).
In securing a public employee's retirement rights, "[t]he Constitution does not, in terms or otherwise, preserve naked pension rights qua rights but, rather, the benefits of the contractual relationship (i.e., `a contractual relationship, the benefits of which shall not be diminished or impaired' [emphasis supplied]). Thus, we must look to the contract for both the source and the definition of plaintiff's benefits" (Mutterperl v Levitt, 89 Misc 2d 428, 431, affd on opn of Gibson, J., 41 N.Y.2d 956). The contractual relationship governing persons joining the Retirement System between July 27, 1976 and December *659 31, 1976 is fully established by the Laws of 1976 (ch 890). That enactment was the operative "law and condition" at the time appellants acquired membership. While the Tier III component of chapter 890 (i.e., ch 890, § 1) had an effective date of January 1, 1977, other sections completed the plenary and constitutionally preserved contractual relationship for the appellant employees. Chapter 890 thus created a prospective complementary rights and benefits package, fixed for members who joined the system during the relevant period: Tier II benefits "only until" December 31, 1976 (L 1976, ch 890, § 4; Retirement and Social Security Law § 451) and thereafter Tier III benefits. Insofar as the staggered retirement package established the rights of those who acquired membership between July 27 and December 31, the automatic shift of such employees to Tier III rights in no way constitutes a diminishment or impairment of the contractual rights conferred at the time of membership (see, Mutterperl v Levitt, supra, at 431; Birnbaum v New York State Teachers Retirement Sys., 5 N.Y.2d 1, 11, supra).
Appellants contend, however, that the Legislature intended permanent Tier II status for members joining through December 31, 1976, and that Tier III was to apply only to members joining after December 31, 1976. They also assert that restriction to Tier III benefits for them is prohibited by our decisions in Public Employees Fedn. v Cuomo (62 N.Y.2d 450, supra) and Kleinfeldt v New York City Employees' Retirement Sys. (36 N.Y.2d 95, supra).
The legislation at issue is not ambiguous in respect to the issue we must decide and on its face it is contrary to appellants' argument (see, Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669 [decided today]). Moreover, the legislative history of chapter 890 confirms a comprehensive package creating "a new retirement program for employees hired on or after July 1, 1976" (Governor's Message of Approval, 1976 McKinney's Session Laws of NY, at 2455). The Permanent Commission on Public Employee Pension and Retirement Systems noted, in recommending approval by the Governor, that "[t]he second effect of the amendment to Section 451 is to make Article 11 available for employees who joined or rejoined a public retirement system after July 1, 1976, but only until December 31, 1976. Thus, new employees will be temporarily eligible for benefits under Article 11 until CO-ESC [Tier III] takes effect on January 1, 1977. This should give the various retirement systems sufficient time to implement *660 the new retirement plan" (Mem, July 15, 1976, Governor's Bill Jacket, L 1976, ch 890; see also, Mem of Robert J. Morgado, Secretary to Governor, Governor's Bill Jacket, L 1976, ch 890). The legislative history of chapter 890 demonstrates that at the time of enactment the legislation was understood to create a complementary package under which new employees would receive Tier II rights only until Tier III could be made operational.
Finally, Public Employees Fedn. v Cuomo (62 N.Y.2d 450, supra) and Kleinfeldt v New York City Employees' Retirement Sys. (36 N.Y.2d 95, supra) support this analysis and result. In Public Employees (supra), we declared that retirement rights and benefits enacted for a "temporary" period could not be constitutionally diminished or impaired by subsequent legislation passed after the sunset provision set. The "temporary period" addressed in Public Employees (supra) referred to the limited duration of the retirement system tier enacted with its own specific sunset provision; there was no self-contained complementary new sunrise component there. That situation was therefore quite different from the express component scheduled to evolve during the life of and as an integral part of the statute in this case. Thus, the transition from the ephemeral period of coverage under Tier II rights to Tier III rights in this case was prospectively and simultaneously effectuated by the contractual (statutory) provisions in existence as of the date of employees' membership. This shift in tier classification was not a Retirement System vicissitude and was by no rendering the forbidden "temporary" pension fruit under Public Employees Fedn. (supra).
Chapter 890 has a retroactive effective date of July 1, 1976, though it was not signed into law until July 27, 1976. As the Appellate Division has noted, application of the law's provisions to Retirement System members prior to July 27, 1976, would be a forbidden retroactive application which would diminish the rights of persons under the Tier II provisions then in existence. Thus, the effective date of chapter 890 for purposes of deciding this lawsuit should be July 27, 1976, as the Retirement System acknowledges in its brief and as Kleinfeldt v New York City Employees' Retirement Sys. (36 N.Y.2d 95, supra) teaches (see, Matter of Oliver v County of Broome, 113 AD2d 239, lv denied 67 N.Y.2d 607, appeal dismissed 67 N.Y.2d 1027). That, of course, does not entitle appellants Nogas and Waterhouse to any relief as they were hired *661 in December 1976, well within the constitutionally authorized legislative scheme.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2230082/ | 94 N.Y.2d 775 (1999)
720 N.E.2d 863
698 N.Y.S.2d 587
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
WAYNE GREAVES, Appellant.
Court of Appeals of the State of New York.
Argued September 14, 1999.
Decided October 14, 1999.
Kannan Sundaram, New York City, M. Sue Wycoff and Michele S. Maxian for appellant.
Robert T. Johnson, District Attorney of Bronx County, Bronx (Edward L. Schnitzer, Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent.
Before: Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted of robbery, reckless endangerment and criminal possession of a firearm. The issue on this appeal by leave of a Judge of this Court is whether the trial court's refusal to instruct the jury that "the indictment is not evidence of anything" constitutes reversible error.
*776 We conclude that the omission in this case of this instruction does not constitute reversible error. We agree with the Appellate Division that, while the instruction should be given, defendant was not deprived of a fair trial, considering the court's jury instructions in their entirety. The absence from the final charge to the jury of the instruction that the indictment is not evidencewhich was given during jury selectiondoes not warrant a reversal of the conviction in this case. In the whole context here, we also note that the trial court gave ample emphasis in the final jury charge that the jury's verdict must be based on an assessment only of the evidencewhich the court summarizedand that the defendant was always protected by the presumption of innocence.
Carter v Kentucky (450 U.S. 288) and Taylor v Kentucky (436 U.S. 478) are distinguishable and therefore do not compel a different result. Lastly, defendant's additional reliance on People v Newman (46 NY2d 126) is misplaced. There, this Court concluded that the trial court's refusal to inform the jury in its charge that the prosecution had the burden of proving every element of the crimes charged beyond a reasonable doubt as specifically mandated by CPL 300.10 (2) was reversible error.
We have considered defendant's other claim and conclude that it is without merit.
Order affirmed in a memorandum. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610365/ | 76 Cal. App. 2d 606 (1946)
GEORGE L. DREXLER et al., Respondents,
v.
FRANK HUFNAGEL, Appellant.
Civ. No. 15400.
California Court of Appeals. Second Dist., Div. One.
Oct. 24, 1946.
John J. Craig for Appellant.
T. G. Dalton for Respondents.
YORK, P. J.
The instant action was filed pursuant to section 98 of the Land Title Law (Stats. 1915, p. 1932; 3 Deering's Gen. Laws, Act 8589), which provides that a registered *607 owner or other person in interest may apply by petition to the superior court upon the ground "that new interests have arisen or been created which do not appear upon the certificates ... for an order correcting or altering any certificate to comply with the true facts as shown by the petition and proof adduced and the court shall have jurisdiction to hear and determine the petition after notice to all parties in interest. The court shall issue an order summoning all persons ... interested ... to appear ... and produce their duplicate certificates and show cause why such omissions ... or change, or alteration, should not be corrected or made."
From a judgment ordering defendant to produce and deliver his duplicate certificate of title No. HO-70415 upon Lot 26 of Tract No. 2402, in order to permit a memorial of the execution and filing of two grants of easement to be entered upon the original certificate and the duplicate thereof, defendant appeals.
The petition for order to produce duplicate certificate of title alleges that Lot 26 of Tract No. 2402 is registered land; that on January 28, 1939, appellant Frank Hufnagel and his wife, Dorothy Hufnagel, as owners of said Lot 26, executed a grant of easement over the southerly 9 feet thereof to George Knarr and Eugenie Knarr, which said easement was made appurtenant to Lot 116, Hollywood Valley View Tract, both lots situate in the county of Los Angeles; that thereafter, on February 3, 1945, the Knarrs "transferred, granted and conveyed to petitioners George L. Drexler and Antoinette Drexler, an easement over the said southerly 9 feet of Lot 26 of Tract No. 2402, being the same easement referred to in the grant of January 28, 1939 and which was made appurtenant to Lot 116 of the Hollywood Valley View Tract."
It is further alleged that petitioners (respondents) have demanded that appellant produce his duplicate certificate of title in order that they may file with the registrar of titles the two grants of easement, but that appellant "refuses and has at all times herein mentioned refused to produce or surrender the said Duplicate Certificate No. HO-70415 to the Registrar of Titles so as to enable the petitioners to file the said instruments and to enable the said Registrar of Titles to enter the proper memorials thereon."
Appellant here urges that (1) the complaint does not state facts sufficient to constitute a cause of action; and (2) the *608 instruments sought to be memorialized are so ambiguous, indefinite and uncertain in their terms as to give no notice of the type of easement claimed, and are therefore not entitled to registration.
In connection with his first point, appellant claims the petition is fatally defective for the reason that the first instrument conveying the easement from appellant to the Knarrs not only did not comply with the terms of sections 47, 48, 49, 52, 53, 54, 58 and 60 of the Land Title Law, "but specifically did not comply with section 55 thereof which provides that unless it was filed, no title passed."
Section 55, supra, provides that any instrument purporting to transfer, lease or encumber registered land "shall take effect only by way of contract between the parties thereto, and as authority to the registrar to register the transfer, mortgage, lease, charge, or other dealing upon compliance with the terms of this act. On the filing of such instrument, the land, estate, interest, or charge shall become transferred, mortgaged, leased, charged, or dealt with according to the purport and terms of the deed, mortgage, lease, or other instrument." (Italics added.)
The instant proceeding was instituted in order to comply with said section 55 and enable the registrar to accept the instruments for filing, because both section 48 and section 60 of the act require that, before the registrar can accept such instruments for filing, appellant's duplicate certificate of title must be surrendered to the registrar. The other sections of the act as to which appellant directs attention have to do with acts to be performed at the time an instrument is presented to the registrar for filing. For example: section 47 requires that "Any instrument offered for filing with the registrar ... seeking to affect registered land, must have noted thereon a statement of the fact that the land sought to be affected is registered land, with the name of the registered owner and with the number or numbers of the certificate or certificates of the last registration thereof. Otherwise none of said instruments shall be filed, nor shall the same affect the title of the or any part of the land sought to be affected, nor will the same impart any notice thereof to the registered owner or to any person dealing with such land." [1] As a matter of practice, if an instrument offered for filing does not contain the information required by section 47, it becomes *609 the duty of the registrar to see that the omission is supplied by an endorsement upon the instrument before he accepts it for filing.
Appellant also urges that "the purported grant of easement under the second document mentioned in Plaintiffs' Petition can ... be of no effect for it will be seen that the complaint alleged the ownership of plaintiffs to the dominant tenement as of February 6, 1945, whereas the date of the instrument purporting to convey an easement by Knarrs to the Drexlers is February 3, 1945."
Appellant does not deny the execution of the grant of January 28, 1939, conveying an easement to the Knarrs over the southerly 9 feet of Lot 26, Tract No. 2402, but seeks to avoid it upon technical grounds which, as has been pointed out herein, are not available to him. The trial court found that prior to January 28, 1939, the Knarrs were the owners of Lot 116, Hollywood Valley View Tract, and that since February 6, 1945, appellant has been the owner of said Lot 26, and the respondents have been the owners of said Lot 116.
[2] As heretofore stated, the instant proceeding was filed pursuant to section 98 of the Land Title Law, the petition alleging that respondents were the owners of new interests which did not appear on the records in the registrar's office. The allegations of the petition were sufficient under the requirements of said section 98.
[3] Moreover, it is not the province of this proceeding to determine the extent, manner or mode of use of the easement granted by appellant to the Knarrs and subsequently acquired by respondents through the acquisition of the dominant tenement and by express grant from the Knarrs. Suffice to say that the grant of an easement in general terms will ordinarily be construed as creating a general right of way, capable of use in connection with the dominant tenement for all reasonable purposes. (3 Tiffany on Real Property (3d ed.) 803, p. 322.)
For the reasons stated, the judgment is affirmed.
White, J., concurred.
Doran, J., dissented. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610367/ | 76 Cal. App. 2d 679 (1946)
THE PEOPLE, Respondent,
v.
HUBERT D. PALMER et al., Defendants; VIRGINIA McDAVID, Appellant.
Crim. No. 4023.
California Court of Appeals. Second Dist., Div. One.
Nov. 1, 1946.
Walter L. Gordon, Jr., for Appellant.
Robert W. Kenny, Attorney General, and Howard S. Goldin, Deputy Attorney General, for Respondent.
YORK, P. J.
Defendants were jointly charged in an information containing two counts with the crime of robbery, and the jury found them guilty of robbery of the first degree. From the judgment of conviction which followed, and also from the order denying the motion for a new trial, defendant Virginia McDavid alone has perfected this appeal.
It is here urged (1) that the evidence is insufficient to justify the judgment of conviction; and (2) that the court committed prejudicial error in the giving of instructions.
The record discloses that about 4 a. m. of November 24, 1945, two sailors, Larry L. Tyson and James E. Banks, were standing near a service station at 9th Street and Central Avenue in the city of Los Angeles, waiting for a trolley to return them to their naval base at Long Beach. At that time defendants were the sole occupants of a Buick automobile standing in the service station with appellant McDavid at the wheel. James Moore, the attendant on duty at the station, testified that a Buick came into the station sometime between 2:30 and 3:30 a. m., on the date mentioned, at which *681 time a group of sailors were standing on the corner 30 or 40 feet distant from appellant's automobile. Appellant called to the boys on the corner, and Tyson recalled that more than two of them walked over to the car. The attendant Moore did not hear appellant call to the boys, but he saw Tyson and some other boys go over to the Buick. Appellant asked Tyson where he was going and was told "Long Beach," whereupon she offered a free ride to Long Beach in her car. The two sailors got in and sat in the back seat. Moore changed the battery in the Buick and made a memorandum of the license number of the car together with the name and address of the owner. He saw Tyson and Banks get into the car and saw them sitting in the back seat when the car drove from the station with appellant at the wheel and defendant Palmer sitting beside her. Shortly after they started off, appellant asked the boys, "Wouldn't you all like to go out and have some fun before you go to Long Beach?", to which they replied, "No, we weren't going out to have any fun, We haven't enough money." Upon appellant's suggestion, Banks took off his Navy pea jacket, climbed into the front seat and sat between appellant and defendant Palmer, whereupon appellant said, "We will go to one of my girl friend's house, call up one of my girl friends, and we will go out and have fun." The boys told her "she didn't need to do that, we didn't have enough money for that, and she asked us how much money we had." Tyson told her he had $5.00 and appellant said 'You all no got enough money to go anywhere and have fun. You can get out here, if you want to." Meanwhile, appellant drove along without making a stop, and defendant Palmer talked to Banks about a certain watch, which Tyson said he saw Banks wearing when they got in the Buick. Defendant asked whether Banks would like to pawn his watch and Banks answered in the negative. Appellant stopped the automobile near Central Avenue and 27th Street, at which time the defendant Palmer, Tyson and Banks got out, Banks and Palmer preceding Tyson. The witness Tyson testified that defendant Palmer drew a gun on them and said "Well, I am just going to take the five dollars you all have," and "snapped" the five dollars out of Tyson's hand. The complaining witness Banks testified that defendant Palmer "puts a gun in my ribs and he takes my watch and five dollars and draws over on Pico. She (appellant) was driving. ... She *682 asked how much money I had. I told her I didn't have but five dollars ... the fellow asked did I want to pawn my watch ... I told him I didn't want to pawn it, to pawn my watch, so then he got out of the car ... and we gets out too. ... That is when he put the gun in my ribs." Said witness also testified that after defendant Palmer took his watch, he jumped in the car and drove off; that appellant was "under the steering wheel." Tyson testified that he surrendered the $5.00 because he was afraid of Palmer's gun. While Palmer was taking the watch and the money from the two sailors beside the Buick on 27th Street near Central Avenue, appellant was sitting behind the steering wheel watching Palmer and "told him to hurry up, called his name, and told him to hurry up, to make it snappy." She drove off as soon as Palmer jumped into the car with the loot taken from the two boys. Banks left his pea jacket in the car with his name stenciled on the inside. This jacket was later recovered from appellant's automobile by the police. The two sailors returned to the service station at 9th and Central where they obtained the license number of appellant's car from the attendant Moore, who corroborated this fact, among others, and who also identified appellant as the person who took Tyson and Banks into her car."
Officer Collins apprehended appellant and Palmer when they drove up to the former's home around 8 that morning, and although he searched Palmer and the car, no gun was found, nor was it found on the person of appellant. However, he did find inside the car the sailor's pea jacket with the name J. E. Banks stenciled thereon. At the time of the arrest Officer Collins conversed with appellant and Palmer, who at first denied that any sailors had been in the car at the time in question. Palmer later admitted they picked up two sailors and appellant claimed the pea jacket found in her car belonged to a friend named "Bennie Barnes." When accused, both appellant and Palmer denied having robbed anyone.
Appellant took the stand in her own defense and testified that while at the service station having the battery of her car changed, she sat behind the steering wheel with defendant Palmer seated beside her, and she noticed a group of sailors standing on the corner of Central Avenue and 9th Street; that neither she nor Palmer left the Buick while at *683 the service station, nor did she call to any of the sailors; that four or five sailors, including Tyson and Banks, walked up to the car and asked for a ride to Long Beach; that she told them she would take them because she was doing nothing but riding about; that whereupon Banks and Tyson entered the back seat of the Buick and a third sailor, who was later identified as Louis Jordan, jumped into the front seat; that after the battery was changed, she gave her name, address and the license number of her car to the attendant and immediately drove the car from the station; that in the front seat, said witness was driving the car, Palmer sat beside her and Louis Jordan sat next the window; while Tyson and Banks sat in the back seat; that such seating arrangement was not changed thereafter; that upon leaving the station, she drove south on Central Avenue, and remarked that it was getting cold and that she would stop at her home for a coat and a drink to warm her up, at which time one of the sailors offered to get her a drink if she would get them some white girls and some marihuana; that Palmer did not participate in this conversation. The witness then testified that she objected to this conversation and stopped the Buick at 27th and Central and asked Banks and Tyson to leave the car; that they complied with her wishes, cursing as they went; that the sailor in the front seat got out of the car and pushed the front seat of the sedanette over to let Tyson and Banks out; that Palmer did not leave the car nor did he speak to Tyson or Banks; that the entire ride from 9th Street to 27th Street along Central Avenue took no more than 12 minutes; that the sailor Jordan returned to the Buick after the other two boys departed; that she, defendant Palmer and Jordan drove to the Avalon Drive-In where some whiskey was bought; that from there they went to appellant's house where they met her friend, Georgia Graves, and had some drinks; half an hour later appellant accompanied by Palmer drove Jordan to his hotel at 41st and Central; that said witness and Palmer drove to the Avalon Shoe Shine Parlor where they remained for 30 minutes before returning to the witness' home, where they were met by the police and informed they were wanted for the robbery of two sailors.
Appellant further testified that Tyson and Banks never told her how much money they had; that she never asked them how much money they had and that she knew nothing *684 about either Tyson or Banks being robbed. At the time of her arrest, she did not tell the police that a third sailor had been in the car, nor that Tyson and Banks had mentioned marihuana and white women. She explained that she had not mentioned these things because she was not asked about them. In fact, appellant first told the police that no sailors had been in her car, and when Officer Collins found the jacket belonging to Banks, she stated that it belonged to a friend of hers, named "Benny Barney."
The complaining witness, Tyson, declared that he and Banks were the only sailors in appellant's car during the time in question; that appellant tried to interest him and Banks in some women, but the sailors refused; that no angry words passed between any of the occupants of the car nor did a dispute occur; neither was there any drinking or swearing in the car. Banks and Tyson testified that they did not drink at all during the night of November 23d and the morning of November 24, 1945; that appellant and Palmer had been drinking but there was no liquor in the car. In rebuttal the witness Tyson testified that at no time did appellant state she would have to get either a drink or her coat and at no time did either he or Banks offer appellant a drink if she would furnish them with two sticks of marihuana and some white girls. Tyson denied that he knew what marihuana was or what it was used for; that to his knowledge Banks had not been drinking, nor did Banks stagger, nor did the witness smell any liquor on Banks; that he, himself, did not drink at all.
[1] Appellant contends that "there is not one bit of evidence in the record to show that she perpetrated the crime of robbery as to either of the complaining witnesses"; and also that the evidence is insufficient to sustain her conviction as an "aider and abettor."
In the case of People v. Wilson, 93 Cal. App. 632, 636 [269 P. 951], where the facts were somewhat similar to those in this case, the court said: "Section 31 of the Penal Code declares in part that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, or not being present have advised and encouraged its commission, are principals in any crime so committed; and the contention appellant makes regarding the evidence is that even assuming that she was *685 present at the time and place of the robbery, there was no proof introduced to establish the fact that she aided and abetted in the commission of the crime. We are unable to agree with this contention, for it is well settled that the question of whether or not a person who is shown to have been present at the time and place of the commission of a crime has aided and abetted therein is one of fact for the jury to decide from all the circumstances proved (People v. Woodward, 45 Cal. 293 [13 Am.Rep. 176]; People v. Kauffman, 152 Cal. 331 [92 P. 861]; People v. Wilson, 135 Cal. 331 [67 P. 322]); and in our opinion the circumstances hereinabove narrated are legally sufficient to warrant the conclusion that appellant had previous knowledge of what was about to transpire and that her object in being present was to divert any suspicion as to their purpose, or to serve as a lookout and to give warning of the approach of anyone seeking to interfere with their enterprise, or to take charge of the automobile, keep the engine running, and to give direct aid to the men in making their escape. Any one of the purposes mentioned would be sufficient upon which to base the reasonable inference that she was aiding and abetting in the commission of the robbery." See, also, People v. Jaggers, 120 Cal. App. 733, 735 [8 P.2d 206]; In re Ortiz, 74 Cal. App. 2d 810 [169 P.2d 664]; People v. Gatlin, 75 Cal. App. 2d 288 [170 P.2d 1013].
As hereinbefore stated, the record reveals evidence which established that appellant called to the complaining witnesses and offered them a free ride to Long Beach; that she thereafter asked them if they would not like to have some fun before going to Long Beach, and that when they replied they did not have enough money for that purpose, she inquired how much money they had.
Further, appellant brought the car to a stop at 27th Street and Central Avenue where the robbery took place in, or near, her presence, since she remained in the automobile seated behind the steering wheel; that she watched defendant Palmer's actions and during the time he was relieving his victims of their money and watch at the point of a gun, appellant called to said Palmer by name, urging him to hurry up and make it snappy and drove off immediately upon Palmer's return to the car with his loot. This evidence was amply sufficient upon which to base an inference that appellant aided and abetted in the robbery by providing a quick getaway to avoid apprehension. *686
[2] Appellant urges prejudicial error by the court in the giving of two instructions:
1. "The Court has given you instructions embodying such rules of law as may be necessary to assist you in arriving at a verdict. As to some of these instructions, their applicability depends upon the light in which you view the evidence."
"The fact that the Court has given you instructions as to particular rules of law must not be taken by you as an indication that such rules are necessarily applicable to the cause on trial, or as indicating that the Court considers them necessarily applicable. Where there is a conflict of evidence, the question as to whether a particular rule of law is applicable depends frequently and solely upon the conclusion as to what the facts are, and the jury are the sole judges of the facts."
"If any instruction is applicable only if a particular situation or state of facts exists, and if you find that no such situation or state of facts exists, then you should not take such instructions into consideration in your deliberations."
As to this instruction, appellant claims that "the jury was told in so many words that it was not necessary for them to consider certain instructions if they found they were not applicable to the facts they found to exist."
The precise instruction here complained of was given in the case of People v. Spraic, 87 Cal. App. 724 [262 P. 795]. In sustaining the propriety of this instruction, this court stated at page 732: "Defendant complains of this instruction and discusses it at considerable length, his grounds of attack being that thereby the court abdicated its function of declaring the law, repudiated all its other instructions and left the jury to determine for themselves what constitutes the law applicable to the case. We do not think the instruction is open to the criticisms thus directed at it by the defendant. It is the duty of a trial court to give instructions on proper request therefor as to the law applicable to any state of facts that may be logically deducible from any of the evidence, regardless of the weight or credibility of that evidence, which are within the sole province of the jury; and this duty the court performed in this case. But when the jury, in the exercise of their function of passing on the evidence, reject the evidence tending to prove a fact and conclude that the fact does not exist, there is no longer any occasion for them to consider or apply to the case any instruction as to the legal effect of the existence of that fact. The instruction complained *687 of did no more than inform them of this obvious rule and the giving of it, although possibly superfluous, was not error." Likewise, in the instant situation, no prejudicial error resulted from the giving of this instruction.
[3] 2. The other instruction which appellant questions reads: "If in these instructions, any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you. For that reason, you are not to single out any certain sentence, or any individual point or instruction, and ignore the other, but you are to consider all the instructions and as a whole, and to regard each in the light of all the others." Appellant urges that this instructed the jury "in so many words that they were not to single out any certain instruction and ignore the other, but were to consider all the instructions as a whole."
It is well settled law that "Instructions are to be considered as a whole. (People v. Countryman, 115 Cal. App. 36 [300 P. 871]; People v. White, 35 Cal. App. 2d 61 [94 P.2d 617].)" People v. Black, 45 Cal. App. 2d 87, 100 [113 P.2d 746].
It was stated by this court in People v. Zammora, 66 Cal. App. 2d 166, 226 [152 P.2d 180]: "Appellants challenge the correctness of several instructions given to the jury, but when we remember that instructions should not be considered singly, but in their entirety (People v. Macken, 32 Cal. App. 2d 31 [89 P.2d 173]), we are persuaded from a reading of all of the instructions given that no substantial rights of the appellants were invaded in the exposition of the law as contained in the instructions given." An examination of all of the instructions given in the instant cause reveals that the jury was fairly and fully instructed as to the law applicable to the facts presented by the evidence and that no substantial rights of appellant were invaded thereby.
For the reasons stated, the judgment and order appealed from are, and each of them is, affirmed.
Doran, J., and White, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2230083/ | 702 N.W.2d 861 (2005)
Merkur Steel Supply,
v.
City of Detroit.
No. 129315.
Supreme Court of Michigan.
September 8, 2005.
Applications for Leave to Appeal
SC: 129315, COA: 252858.
On order of the Court, the motion for immediate consideration is GRANTED. The motion for an order of mandamus is treated as a motion for stay, and it is GRANTED. All further proceedings in the trial court are STAYED pending resolution of this application. See MCR 7.302(C)(5)(a). The application remains pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611904/ | 884 P.2d 1060 (1994)
Lillian CAPENER, Appellant,
v.
TANADGUSIX CORPORATION, Appellee.
No. S-4598.
Supreme Court of Alaska.
November 4, 1994.
*1061 John E. Havelock, Ely & Havelock, Anchorage, for appellant.
Terrance A. Turner, Scott J. Nordstrand, Owens & Turner, P.C., Anchorage, for appellee.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
ORDER
On consideration of the appellee's petition for rehearing, filed on October 14, 1994,
IT IS ORDERED:
1. The petition for rehearing is GRANTED in part. Changes are made on pages 1066 and 1074. [Editor's Note: Changes incorporated for purposes of publication.]
2. Opinion No. 4134, published on October 7, 1994, is WITHDRAWN.
3. Opinion No. 4142, is issued on this date in its place
EASTAUGH, J., not participating.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
MATTHEWS, Justice.
I. INTRODUCTION
The Alaska Native Claims Settlement Act (ANCSA or the Act) enacted in 1971 (codified at 43 U.S.C. § 1601-1629a (1986)) extinguished the aboriginal title claims of the Native people of Alaska in exchange for 962.5 million dollars and 44 million acres of public land. In order to receive this money and land, the Act called for the creation of thirteen regional and over two hundred village corporations. See Kenai Peninsula Borough v. Cook Inlet Region, Inc., 807 P.2d 487, 490 (Alaska 1991).
Congress included in ANCSA a number of provisions designed to protect the rights of those who have valid existing rights to land subject to conveyance under the Act. Thus conveyances to Native corporations must be made subject to the provisions of existing leases, contracts and permits. ANCSA § 14(g), 43 U.S.C. § 1613(g). Those who have made prior lawful entries for the purpose of gaining title to a homestead, a headquarters site, a trade and manufacturing site, or a small tract site are protected and entitled to a patent when they meet the requirements of the law under which they enter. ANCSA § 22(b), 43 U.S.C. § 1621(b). Similarly, those who have prior valid mining claims and locations are protected. ANCSA § 22(c), 43 U.S.C. § 1621(c). In addition, there are provisions which require conveyances to individuals or organizations on the basis of their occupancy for a particular purpose rather than the presence of a valid existing right or a lawful entry under the public land laws. This case involves the interpretation of two such provisions, sections 14(c)(1) and (2).[1]See 43 U.S.C. § 1613(c)(1) & (2).
*1062 Section 14(c)(1) requires village corporations to reconvey land "to any Native or non-Native occupant" who occupied the land on a specific date,[2] for any one of four designated purposes: as a primary residence, a primary place of business, a subsistence campsite, or a headquarters for reindeer husbandry. Section 14(c)(2) requires village corporations to reconvey to "the occupant" land which is occupied as of December 18, 1971,[3] by a nonprofit organization. The main issue in this case is the meaning of the term "occupant" as used in these sections.
II. FACTS AND PROCEEDINGS
Lillian Capener is a missionary affiliated with the Assemblies of God Church. She and her husband, Reverend A.E. Capener, built a church, house and garage on federal land in the village of St. Paul in 1966. The Capeners entered the land under the auspices of a special use permit issued by the Bureau of Commercial Fisheries to the "Assemblies of God Home Missions Department" dated July 7, 1966. The permit was for the described purpose of "constructing, establishing, creating, and maintaining a church and parsonage, and for no other purpose whatever during the period from July 1, 1966, to June 30, 1976." The permit provided for automatic yearly renewals after June 30, 1976, unless terminated with thirty days written notice.
Reverend and Mrs. Capener constructed the church building on Lot 1, Block 20, City of St. Paul. Their house was located on Lot 3. The Capeners added a small garage, a large garage and a basement to the house. The large garage has been used for a motorcycle rental and tourist service business since 1972 or 1973. Mrs. Capener testified that Lot 2 is used for parking and as a garden incidental to her business and home.
In 1974 the Village Corporation of St. Paul, Tanadgusix Corporation (TDX), selected property under ANCSA which encompassed the lots in question.[4] In 1979 the Bureau of Land Management issued a patent to TDX which included these lots, subject to existing permit rights and to the duty to convey if and as required by section 14(c) of ANCSA.
In September of 1980 TDX informed the Capeners and the Home Missions Department that it now administered the special use permit. TDX notified them that it was terminating the permit as of June 30, 1981, unless new lease arrangements could be made. The Home Missions Department and the Capeners refused to enter into a lease and asserted a claim under section 14(c) of ANCSA. A.E. Capener died in 1986. Lillian Capeners continued to reside on the property, to conduct church services, and to operate the motorcycle rental and tourist service business.
Effective June 19, 1988, TDX purported to terminate the special use permit. On August 2, 1988, Capener and W.J. Bransford, District Superintendent of the Alaska District Council, Inc., an Assemblies of God organization, were sent notices to quit the St. Paul premises. A few days later Capener discussed the situation with Assembly of God officials in Anchorage and Missouri and was told "I could have this property to do with as I wish, as at the time, they could not afford the legal expenses. They specifically called to tell me that I could `sell' it for whatever I wished and I could `keep the money.'" On August 10, 1988, Bransford, on behalf of the Home Missions Department and the Alaska District Council, Inc., signed a document which "disclaims all interest" in the lots and the special use permit.
On September 12, 1988, TDX filed a forcible entry and detainer action against Capener. The trial court dismissed the complaint because a question of title had been raised. TDX was allowed to amend its complaint to assert claims for ejectment and quiet title. Capener counterclaimed, contending that title *1063 ought to be quieted in her favor. She also sought a declaration that she is the lawful owner of the lots. Both parties moved for summary judgment. The trial court granted the motion of TDX, denied that of Capener, and entered a final judgment in favor of TDX on all of its claims. This appeal followed.
III. DISCUSSION
A. Section 14(c) contentions.
The major issues in this case require an understanding of the meaning and operation of sections 14(c)(1) and (2) of ANCSA. We set forth these provisions as well as section 14(c)(3) in the margin at this point.[5]
Capener relies on sections 14(c)(1) & (2) to support her right to title to the property in question. Her first argument, concerning Lots 2 and 3, is essentially a plain language argument. She contends that the literal language of 14(c)(1) only requires occupancy, as of January 19, 1979,[6] as a primary residence or primary place of business. She argues that she meets this requirement as she had occupied the house as her residence for more than eleven years as of the critical date and had used the annexed garage for her rental and tourist service business for some six years.
With respect to Lot 1, the church building, Capener contends that the Assemblies of God faith is not of a hierarchical nature and that each minister and local church is autonomous. She argues that the local church, an unincorporated nonprofit organization, has been the occupant of Lot 1 since well before the critical date under section 14(c)(2), December 18, 1971, and under a plain reading of that section is therefore entitled to a conveyance. She is its representative and should, she contends, take title as trustee.
With respect to all three lots, Capener makes an alternative claim that she is the transferee of the Home Missions Department because it "yielded any interest it might have to her in advance of the general disclaimer."
TDX makes two arguments as to why Capener should not be considered an occupant despite her claim that she meets the literal definition of that term. First, TDX argues that the fact that the permittee was the Home Missions Department disqualifies Capener *1064 from occupant status. Second, TDX argues that even if Capener had been the permittee, she could not have received a conveyance because the permit was revocable.
Concerning Capener's argument that the local church organization was the occupant of the church building, TDX similarly contends that the fact that the permit was issued to the Home Missions Department disqualifies any such local organization from claiming rights under section 14(c)(2) as an occupant. With respect to Capener's claim that the Home Missions Department orally transferred the property to her, TDX contends that such a transfer would be ineffective because the Home Missions Department had no conveyable legal interest, transfer of the permit was invalid under the terms of the permit, and the transfer was barred by the statute of frauds.
B. Summary of questions presented and holdings under section 14(c).
The parties' arguments raise at least three legal questions which require resolution in this case. They can be expressed as follows:
1. Assuming the occupancy purpose requirements of section 14(c)(1) or (2) are met, can a permittee under a revocable permit be an occupant entitled to a reconveyance?
2. Assuming the occupancy purpose requirements of section 14(c)(1) or (2) are met, can one who occupies property which is subject to a revocable permit issued to another be an occupant entitled to a reconveyance?
3. Can the right to reconveyance under section 14(c)(1) or (2) be transferred subsequent to the occupancy date set forth in the Act?
For the reasons that follow, our answers to these questions are:
1. Yes.
2. Yes, if the occupier has an equitable ownership interest in the improvement on the property on the legal occupancy date.
3. Yes.
Because questions of fact exist concerning the equitable ownership interest of Capener and the local church, and concerning whether a transfer was intended from the Home Missions Department to Capener, we reverse the judgment of the superior court and remand this case for further proceedings.
C. The trial court's opinion.
The trial court explicitly dealt only with Capener's argument that she was an occupant of the residence and place of business under section 14(c)(1). The court's opinion on this point was as follows:
In its briefing, TDX correctly asserts that only the church possessed a possible § 14(c)(1) claim, a claim which has never been adjudicated and which the church has now disclaimed. Mrs. Capener occupied the land subject to the church's rights, and the church, not Mrs. Capener, received the permit. As TDX points out, the church could have removed the Capeners from the property at any time.
TDX also points to the fact that the permit was subject to revocation, and argues that TDX validly exercised this revocation right. TDX further argues that the property could not qualify as a primary place of business, because the rental business constitutes an unlawful occupation, run in violation of the permit, and without TDX's permission.
The Alaska Supreme Court, in interpreting § 14(c), broadly interpreted the "primary place of business" requirement. In Hakala v. Atxam, 753 P.2d 1144 (1988), the court found that Congress intended § 14(c)(1) to give title to people who "had previously utilized the lands in an established, legal and routine fashion". Id. at 1147. The United States Court of Appeals in Donnelly v. United States, 850 F.2d 1313 (9th Cir.1988), articulated the other side of the spectrum when it held that § 14(c)(1) could not be used to give "amnesty" for "trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971". Id. at 1320 (quoting the District Court). The Donnelly court added that "there was no indication of congressional intent to override *1065 the established principle that individuals could obtain no rights to withdrawn lands... ." Moreover, the congressional intent to provide a "just and fair settlement" of native land claims is inconsistent with an interpretation of § 14(c)(1) that could reduce the land patented to native corporations in favor of trespassers. Id.
In Hakala, the court wanted "to protect a wide array of existing legitimate businesses" and thus granted the appellants, Hakala and Kitchen, title to a cabin and its curtilage, from which appellants had conducted guiding operations for over 15 years. Hakala, 753 P.2d at 1147, 1148. The Hakala case differs from that of Mrs. Capener, however, because in Hakala the business did not violate any permit terms. In fact, Kitchen had express authority to conduct this business because he held a permit, issued by the State of Alaska, that gave him the exclusive right to guide customers in the disputed area, as well as a guiding license. The state, by contrast, has never issued any permit, license, or similar right to Mrs. Capener. The state issued a revocable permit to the church, which had the right, at any time, to remove the Capeners and replace them with different missionaries.
Similarly, the appellants Buettner and Hamar in Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir. 1988), personally obtained revocable special use permits from the United States Forest Service that allowed each appellant to live on Kasaan Island. The Native Corporation of Kavilco then selected this land, later attempting to revoke the permits and enter lease agreements, which the appellants refused. The court found that the appellants "as permittees ... were entitled to occupy the land although it was owned by someone else", thus deciding that § 14(c)(1) requires native corporations to convey title to permittees, so long as the permittee fulfills § 14(c)(1)'s occupancy requirements. Id. at 343. (Emphasis added). Again, unlike Buettner and Hamar, Mrs. Capener does not hold a permit. Since her entitlement to occupy depended solely on the permittee-church, which could have removed her from the property at any time, she possesses a far weaker interest than did the Hakala and Buettner appellants.
In determining the issues in this case, it is helpful to examine the Congressional purpose behind the ANCSA. The Hakala court stated that Congress intended to give native tribes "title to a portion of the lands which they occupied", noting that Congress was "sensitive to the impoverished condition of natives and the lack of opportunity natives have to improve their condition". Hakala, 753 P.2d at 1147 (quoting House Comm. on Interior and Insular Affairs, Alaska Native Claims Settlement Act of 1971, H.R.Rep. No. 523, 92d Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Admin.News 2191, 2193, 2196). Defendant's analysis of § 14(c)(1) would undermine this ANCSA purpose, and would contradict the policy that courts construe the ANCSA in favor of natives where the statute contains ambiguous language. Id. at 1147.
Additionally, Secretarial Order No. 3016 and accompanying Memorandum, Valid Existing Rights Under the Alaska Native Claims Settlement Act, 85 Interior Dec. 1 (1977), sheds light on the legislative intent behind the ANCSA. The Memo defines the meaning of "valid existing rights" in § 14(g), which provides that:
All conveyances made pursuant to this Act shall be subject to valid existing rights. Where, prior to patent of any land or minerals under this Act, a lease, contract, permit, right-of-way, or easement (including a lease ...) has been issued for the surface or minerals covered under such patent, the patent shall contain provisions making it subject to the lease, contract, permit, right-of-way, or easement, and the right of the lessee, contractee, permittee, or grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted to him. Upon issuance of the patent, the patentee shall succeed and become entitled to any and all interests of the state or the United States as lessor, contractor, permittee, or grantor, in any such leases, contracts, permits, rights-of-way, or easements covering the estate patented.... *1066 43 U.S.C. § 1613(g); emphasis added.
The Memo notes that the regulations distinguish between rights "leading to acquisition of title", which the Act intends to exclude from conveyance to natives; and "rights of a temporary nature", which the Act intends to convey, but with the condition that the right be protected "for the duration of the interest". Id. at 5, citing 43 C.F.R. 2650.3-1(a).
The Memo discusses the problem posed by lands which the state conveyed, leased or patented before the state had received final approval for state selection. It indicates that the position of the recipients of these types of interests should not be worsened by the passage of the ANCSA, saying that "[t]he House Committee report reflects Congress' concern that a lease issued by the State which on its terms was conditional on the issuance of a patent to the State not be terminated by virtue of the Native selection". Id. at 6-7, citations omitted.
Mrs. Capener did not hold a license or permit, nor any other vested right or interest that could "lead to the acquisition of title" at the time of the Act's passage. Because Mrs. Capener has no claim which could have ripened into a title interest had ANCSA not passed, she cannot now acquire title because the Act did pass, particularly considering the Act's purpose of giving title to Alaska Natives. For these reasons, the court GRANTS summary judgment in plaintiff's favor.
In terms of the legal questions presented in this case as defined in part III B, supra, the superior court thus gave a negative answer to the second question whether one who occupies property subject to a revocable permit issued to another is entitled to a 14(c) reconveyance. Concerning the first question can a permittee under a revocable permit be entitled to a reconveyance the superior court gave no answer, but discussed Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir.1988), which indicates that this question should be answered in the affirmative.
D. Case law interpretations of section 14(c).
As the superior court's decision points out, we interpreted one aspect of section 14(c)(1) in Hakala v. Atxam Corp., 753 P.2d 1144 (Alaska 1988), and the Ninth Circuit Court of Appeals considered this section in two cases, Donnelly v. United States, 850 F.2d 1313 (9th Cir.1988) cert. denied by Lee v. Eklutna, Inc., 488 U.S. 1046, 109 S.Ct. 878, 102 L.Ed.2d 1001 & Donnelly v. Eklutna, Inc., 488 U.S. 1046, 109 S.Ct. 878, 102 L.Ed.2d 1001 (1989), and Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir.1988).
In Hakala, a guide, Kitchen, and his transferee made a 14(c)(1) claim against a village corporation to a small cabin which Kitchen had erected on public lands. Hakala, 753 P.2d at 1145. The cabin served as the base camp for Kitchen's bear hunting operations. Id. The main controversy in the case, which we resolved in favor of Kitchen, was whether the cabin was "a primary place of business" under 14(c)(1). Id. at 1146-49. Holding that Kitchen was entitled to a section 14(c)(1) reconveyance of the cabin site and surrounding curtilage we stated:
We do not ... believe that Congress intended under ANCSA to convey lands to native corporations to the exclusion of those who had previously utilized the lands in an established, legal and routine fashion. Otherwise, we can find no reason for Congress to have included the reconveyance clause in § 14(c)(1). Thus, we believe that in § 14(c)(1), Congress intended to protect the existing rights of those using lands which would later become subject to an interim conveyance under ANCSA. Accordingly, we adopt an interpretation of the phrase "a primary place of business" which effectuates Congress' intent to protect the wide array of existing legitimate businesses.
Id. at 1147. In reaching this conclusion, we adopted Kitchen's "common-sensical interpretation" of the statutory term "a primary place of business." Id.
Although the trial court in the present case stressed that Kitchen had an exclusive guiding permit from the State of Alaska, such a permit would not have given Kitchen a right *1067 to build a cabin on federal public land. Thus, in Hakala, the village corporation argued that Kitchen was a trespasser on the critical date in 1971.[7] Kitchen did not contest this assertion. Our opinion in Hakala neither resolved nor discussed the question whether Kitchen initially built his cabin on public land without a permit.
Donnelly v. United States, 850 F.2d 1313 (9th Cir.1988), involved the case of homesteaders, the Donnellys, who located part of their homestead on public lands which had been withdrawn from entry for a possible power development project. Id. at 1315. The Donnellys' entry took place some time in the 1950's. In 1975 the United States filed a trespass action against the Donnellys, who counterclaimed under the Quiet Title Act, 28 U.S.C. 2409a. Id. at 1316. In 1979 the United States patented the disputed land to a village corporation against which the Donnellys filed a third-party claim under section 14(c)(1) of ANCSA. Id. The United States' trespass action was dismissed. Id. The district court then decided the case in favor of the United States and the village corporation. Id. On appeal, the Ninth Circuit affirmed, holding: (1) that the twelve-year statute of limitations under the Quiet Title Act barred the Donnellys' claim against the United States; and (2) the Donnellys' 14(c) claim against the village corporation lacked merit because they were trespassers:
As the district court noted, § 14(c)(1) could not operate as "a sort of amnesty provision extending3 rights to individuals who are merely trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971," because there was no indication of congressional intent to override the established principle that individuals could obtain no rights to withdrawn lands. Moreover, the congressional intent to provide a "just and fair settlement" of native land claims is inconsistent with an interpretation of § 14(c)(1) that would reduce the land patented to native corporations in favor of trespassers.
Id. at 1320 (citation omitted). On rehearing a footnote was added recognizing that Hakala represented contrary authority:
Counsel for appellant has called to the attention of the court a decision of the Supreme Court of Alaska, Hakala and Kitchen v. Atxam Corp., 753 P.2d 1144 (1988), decided after the filing of the decision in this case, that reaches a contrary result.
Id. at 1320-21, n. 9.
The Donnelly court went on to discuss the Donnellys' contention that they were not trespassers as they had equitable title to the land. Id. at 1321. The court refused to resolve this issue, holding that it was dependent on the quiet title claim which was barred by the Quiet Title Act statute of limitations. Id.
Buettner v. Kavilco, Inc., 860 F.2d 341 (9th Cir.1988), involved the holders of two long-term revocable Forest Service permits who built residential cabins on the land. Ultimately, the land was patented to a village corporation which sought to increase the permittees' rent. Id. at 342. When the permittees refused to pay the increased rent, the village corporation sought to eject them. Id. The permittees countered by bringing a quiet title action which was resolved by the federal district court in favor of the village corporation. Id. On appeal the Ninth Circuit reversed, rejecting the village corporation's argument that the permittees were bound by the terms of the permit under section 14(g) of the act.[8]Id. at 343. The Ninth Circuit held that the existence of the permits did not bar the permittees from being entitled to reconveyances under section 14(c)(1):
*1068 We discern no inconsistency between this plain reading of section [14(c)(1)] and the provisions of section [14(g)]. The latter section applies to lessees, contractees, permittees, and grantees of rights-of-way and easements. It is true that a person with rights under section [14(g)] might also have rights under section [14(c)(1)]. On the other hand, persons having rights under section [14(g)] will not necessarily come within the scope of section [14(c)(1)]. For example, United States Forest Service special use permit-holders who did not occupy their sites as a primary residence on December 18, 1971, would be protected only by section [14(g)].
Id. at 343. In reaching this conclusion, the Ninth Circuit noted that its interpretation of 14(c)(1) was in accordance with the interpretation given that section by this court in Hakala. Id.
E. Purpose of section 14(c).
In determining the meaning of a statute, we begin with an examination of the language employed construed in light of the purpose of the statute. Beck v. State, Dept. of Transp. & Public Facilities, 837 P.2d 105, 117 (Alaska 1992). The purpose of legislation can often be understood by considering the problem which the legislation was designed to address.
The overall objective of ANCSA is clear. It is the prompt and "just settlement of all claims by Natives and Native groups of Alaska, based on aboriginal land claims... ." ANCSA § 2, 43 U.S.C. 1601(a). In an enactment of the magnitude of ANCSA, however, there are many subsidiary, more specific purposes. The specific purpose of section 14(c) may be ascertained by an examination of the problem that section was intended to address.
The central problem was that in most of Alaska's villages, individual Natives did not own the land on which their houses were located. More generally, the non-ownership problem also applied to non-Natives in the villages and to business and subsistence sites. The influential report to Congress of the Federal Field Committee for Development Planning in Alaska, Alaska Natives and the Land (U.S. Govt. Anchorage, 1968) (hereafter Alaska Natives and the Land) made this clear:
Another characteristic of village Alaska is that most of its people live not on land they own, but on the public domain. Two thirds of Alaska's 7,500 village families own no land at all.
Village Alaskans own in fee less than 500 acres of 375 million acres of their Native land. These parcels of land are held by about 1,400 families who have received or petitioned for unrestricted title to their townsite lots.
Under restricted title, somewhat more than 15,000 acres are held by 961 households. Most of this acreage is in 175 allotments obtained by Natives in the 62 years since the Indian Allotment Act was enacted; the remainder is in 786 townsite lots in 32 villages.
Very little acreage in townsite lots or allotments is in northern and western Alaska, where most Alaska Natives live.
....
Without title and without tenure, the vast majority of the rural people live on, range over, and use the public domain as they have for generations.[9]
Alaska Natives and the Land, supra p. 21 at 45-46 (footnotes omitted).
In another section the report again observed that the Alaska Native Allotment Act of 1906 and the Townsite Act of 1926 had largely failed to distribute needed land to individual Natives:
Specific land legislation passed for Alaska Natives the Alaska Native Allotment Act of 1906 and the Townsite Act of 1926 has failed to meet the land needs of the Native people. In the 62 years since passage of the Native Allotment Act only slightly more than 15,000 acres of land *1069 have been deeded, by restricted deed, to 175 Native allottees. And in the 42 years since the passage of the Townsite Act, only 28 Native villages have been surveyed with deeds issued to their inhabitants; and title in fee simple to less than 500 acres has been conveyed.[[10]]
Id. at 537. The report noted that lack of ownership contributed to the problem of inadequate housing:
While the low cash income of villagers is an important reason behind substandard dwellings in village Alaska, it is not the sole explanation. Federal programs of insured loans are not available, even to those with ability to repay, if they do not possess title to the land upon which a house is to be situated, and most Alaska villagers are landless.
Id. at 73. Discussing the economic consequences of a land claims settlement, the report stated:
The absence of title to land occupied by Natives in Alaska villages is clearly an obstacle to financing homes, businesses, and community facilities. The grant of title to these lands would just as clearly have a beneficial effect on the village economy....
Grants of land title for homesites, businesses, community facilities, and special-purpose locations such as fish camps and burial grounds should not be expected to have any negative effects on general economic development. Some question might be raised about sites in existing withdrawals such as national forests. The total area of land involved is so small, however, that we can find no instance in which such transfers would subvert the purposes of the original withdrawal.
Id. at 529.
Addressing the problem of lack of individual, as distinct from collective, village land ownership is then the primary purpose of section 14(c)(1) and (2) of the Act. Arnold, supra note 1, at 250-51, describes the process of individual conveyancing under the Act as follows:
Although most of the land that is conveyed to Natives under the settlement act goes to corporations they own, perhaps 10,000 Natives are entitled by the act to become property owners as individuals. There are three ways in which this can take place: (1) by reconveyance by a village; (2) by individual application from those living at isolated locations; and (3) by obtaining an allotment filed for prior to passage of the act.
....
Most Natives who become individual landowners will receive their land by reconveyance from their village corporations.
Once village corporations receive title (patent or interim conveyance) to lands they have selected, they are, among other things, to reconvey parcels of land to individual occupants of such parcels. Specifically, they are required to give surface title at no cost to Natives and non-Natives who are using such parcels as:
. a primary place of residence;
. a primary place of business;
. a subsistence campsite, or
. a headquarters for reindeer husbandry.
Although there were about 49,000 Natives who considered their place of residence to be one of the 203 village corporations, it is not clear that all of them will receive tracts of village land... .
Persons who receive land from their village corporations may immediately sell or lease it. There is no restriction (as there is with stock ownership) against the sale of land. Individually held lands are subject to property taxes if they are developed or leased... .
Individuals receiving title do not obtain the subsurface estate. Except for the wildlife refuges and Naval Petroleum Reserve No. 4, the subsurface belongs to the regional corporation... .
Transfer of title to individuals is but one task of reconveyance imposed on a village corporation. It is also required to convey surface title to nonprofit organizations (such as churches) for tracts they occupy, *1070 either without cost to the organization or for what the land was worth when it was first occupied. It must also convey to the municipal, state, or federal governments surface title to lands where airports or air navigation aids are located. And it must convey to its municipal government no less than 1,280 acres of the remaining improved lands in the village; if there is no city government, this acreage is to be conveyed to the State where it would be held in trust.
Another text, David S. Case, Alaska Natives and American Laws (1984), recognizes that the primary purpose of section 14(c) is to convey land in settled areas to individual occupants. It states that in this respect 14(c) was intended to serve the same purpose as the townsite laws which were previously applicable to Alaska.[11]
Section 14(c) of ANCSA appears to be an alternative to the subsequently repealed Alaska townsite laws. As now amended, it requires each village corporation to deed to local residents, businesses and non-profit organizations the surface estate of those village lands they occupied as of December 18, 1971. As originally enacted, a minimum of 1,280 acres of the remaining surface estate also had to be conveyed to the incorporated municipality or to the state in trust for any future municipality, but 1980 amendments to ANCSA now permit village corporations to negotiate lower municipal grants with the state or affected municipalities.
....
Congress repealed [the 1926 Alaska Native Townsite Act] because ANCSA had made it "obsolete"... .
Id. at 167-168 (footnote omitted).
F. "Occupant" as defined by the dictionary and townsite act case law.
Webster's Third New International Dictionary offers the following definitions of the term "occupant":
1 a: one who takes the first possession of something that has no owner and thereby acquires title by occupancy b: one who takes possession under title, lease or tenancy at will 2 a: one who occupies a particular place or premises: TENANT, RESIDENT ... b: one who holds a particular post 3: one who has the actual use or possession of something
Only definitions 1a, 1b and 2a could be applicable to the present problem as the others do not refer to the occupancy of real estate. Of these, application of 1a is to be doubted since there is no suggestion that Congress intended the benefit of 14(c)(1) to be limited to the first occupant of a dwelling in a village as distinct from subsequent occupants. The distinction between 1b and 2a seems to be that under 1b there is a connotation that an occupant must have a legal status whereas under 2a one may be an occupant merely by virtue of residence.
Under either definition 1b or 2a Capener qualifies as an occupant. Thus if the dictionary alone were to be our guide both of the legal questions involving the meaning of "occupant" posed by this case can a holder of a revocable permit be an occupant and can one who occupies property which is subject to a revocable permit issued to another be an occupant would require unqualified affirmative answers. However, the townsite act cases offer further guidance in defining the term occupant.
As noted, section 14(c) is meant to address the same general purpose as the townsite laws previously governing Alaska. See Case, supra, p. 25 at 167-68. These, in turn, had their counterparts in laws governing the settlement of the western states. See Oswald v. Columbia Lumber Co., 425 P.2d 240, 241 n. 1 (Alaska 1967); see also Aleknagik Natives, Ltd. v. United States, 635 F. Supp. 1477, 1479 (D.Alaska 1985) (recognizing extension of federal townsite laws to Alaska pursuant to Townsite Act of March 3, 1891, 26 Stat. 1099, *1071 43 U.S.C. § 732 (repealed 1976)). Generally, under these laws the "occupant" of premises on the legally relevant date was entitled to a conveyance, usually on payment of survey costs. See e.g., Townsite Act of 1867, 43 U.S.C. § 718 (repealed 1976); Oswald, 425 P.2d at 242; Johnston v. Smith, 39 Ariz. 337, 339, 6 P.2d 891, 893 (1931); Singer Mfg. Co. v. Tillman, 3 Ariz. 122, 21 P. 818 (1889); Clark v. Titus, 2 Ariz. 147, 11 P. 312 (1886); Amador County v. Gilbert, 133 Cal. 51, 65 P. 130 (1901); City of Pueblo v. Budd, 19 Colo. 579, 36 P. 599 (1894); City of Helena v. Albertose, 8 Mont. 499, 20 P. 817 (1889); Hall v. North Ogden City, 109 Utah 325, 175 P.2d 703 (1946); Holland v. Buchanan, 19 Utah 11, 56 P. 561 (1899); Lockwitz v. Larson, 16 Utah 275, 52 P. 279 (1898); Pratt v. Young, 1 Utah 347 (Utah 1876) aff'd Cannon v. Pratt, 99 U.S. 619, 25 L.Ed. 446 (1878). In view of the similarity of purpose between section 14(c) and the townsite laws, the meaning of "occupant" as used in these laws may be a valuable guide.[12]
The Supreme Court of Arizona in Singer Manufacturing Co. v. Tillman, 3 Ariz. 122, 21 P. 818 (1889), laid out the definition of "occupant" and the rules defining "occupancy" for the purpose of the townsite act governing Arizona:
An "occupant," within the meaning of the townsite law of congress, is one who is a settler or resident of the town, and in the bona fide, actual possession of the lot at the time the entry[[13]] is made. One who has never been in the actual possession of a lot cannot be said to be an "occupant" thereof. The occupancy referred to must be actual, and cannot be begun by agency, no one being allowed to take up lots by his agent. The occupancy may be for residence, for business, or for use, but the residence, business, or use must be by the claimant. A party having a bona fide occupancy can afterward lease the ground and still retain his right thereto, and he may sell his claim, except that no contract, either for the sale or lease, which conflicts with the requirements that the title shall be made to an inhabitant who is an occupant and has an interest, will be recognized in deciding to whom the government title shall go; and a party purchasing an interest in such property can have government title to the extent of such interest, provided he becomes an occupant, thus showing no one is entitled to or can receive government titles to a town lot unless he is in the actual, bona fide possession and occupancy of the lot.
3 Ariz. 122, 122, 21 P. 818, 818 (1889) (citations omitted.) See also Cain Heirs v. Young, 1 Utah 361, 364 (1876), rev'd on other grounds, Stringfellow v. Cain, 99 U.S. 610, 25 L.Ed. 421 (1878); Pratt v. Young, 1 Utah 347, 352-54 (1876) aff'd Cannon v. Pratt, 99 U.S. 619, 25 L.Ed. 446 (1878).
The townsite act cases interpreting the term "occupant" assume that an occupant who is merely a tenant does not qualify for a conveyance. The occupant must have a colorable claim to equitable ownership of the improvements. Singer Mfg. Co. v. Tillman, 3 Ariz. at 122, 21 P. at 818. However, the actual occupier at the legally relevant date is presumed to be entitled to a conveyance. Pratt v. Young, 1 Utah at 353, 356.
Further, the rules concerning whether an occupier had an interest sufficient to entitle the occupier to a deed as an occupant were not strict or technical.[14] Thus, in Singer *1072 Manufacturing Co. v. Tillman, Tillman initially was merely a tenant of the landlord, Mund. 3 Ariz. at 122, 21 P. at 818. Mund then gave a mortgage to third parties. Tillman did not pay rent and asked Mund to make repairs to the premises. Id. Mund refused, saying he wanted nothing further to do with the premises. Id. At this point, in the court's view, Tillman became an occupant in his own right. Shortly thereafter,[15] entry for the purposes of the townsite act was made by the probate judge who deeded the property to Tillman as the occupant. Subsequently, the mortgagees foreclosed. The court found in favor of Tillman since the mortgagor's (Mund's) right was extinguished before he executed the mortgage by his failure to remain in physical occupancy.
In Pratt v. Young, Orson and Sarah Pratt were the initial occupants of a house in Salt Lake City. 1 Utah at 355, 359. In 1861 they moved and sold the house to Young and certain members of Young's family occupied it. Id. at 359. In 1868 Sarah Pratt resumed possession of the house. Id. at 355-56, 359-60. The entry date establishing the relevant date of occupancy occurred subsequent to Sarah Pratt's resumption of possession. Id. at 355. In a contest between Sarah Pratt and Young as to who was entitled to a deed to the house under the townsite act, Sarah Pratt prevailed. Id. at 360. She had been given possession of the house by Young "without any contract for rent or any understanding or agreement expressed or implied, that she should become or be the tenant of [Young]... ." Id. at 359-60. Several other cases recognize that an occupant need not comply with technical legal requirements in order to establish his or her interest in the land. See, e.g., Hall v. North Ogden City, 109 Utah 325, 175 P.2d 703, 708-711 (1946) (discussing several cases where occupancy was sufficient to give party title to land). See also Ashby v. Hall, 119 U.S. 526, 7 S.Ct. 308, 30 L.Ed. 469 (1886) (occupant's right to land established upon entry of townsite and nothing more was necessary).
G. The meaning of "occupant" under section 14(c).
Having reviewed the language and purpose of section 14(c) and the relevant case law, we are in a position to interpret the meaning of the term "occupant." The dictionary definition, "one who occupies a particular place or premise" captures the intended meaning accurately for most cases.[16] However, for situations involving tenancies or similar relationships this definition is inadequate. It would require a reconveyance to an occupier who is merely a tenant of the owner of the improvements. Such a person's property interest is not strong. Further, in some cases this would be unjust to the owner of the improvements, as where the owner holds under a long-term government lease and would be protected for the term of the lease under section 14(g), while the tenant, whose sole residence is on the premises, would have a claim to title under section 14(c)(1). Moreover, case law construing the term "occupant" in the analogous townsite act context seems to be clear that one who is merely a tenant is not an occupant.
*1073 It is necessary therefore in tenancy cases to add to the dictionary definition a requirement that the occupier have an equitable interest in the improvements. The definition in such cases thus would be "one who occupies a particular place or premise and has an equitable interest in the improvements thereon."[17] As in the townsite act cases, there should be a rebuttable presumption that the occupier on the critical date is the occupant and thus entitled to a conveyance assuming that the occupancy purpose requirements are met. In determining whether an occupier has the requisite equitable interest, technical or strict property concepts need not be adhered to. This approach is employed in the cases interpreting the townsite acts. See, e.g., Singer Mfg. Co., 3 Ariz. 122, 21 P. 818; Pratt, 1 Utah at 353 (quoted supra in note 14). It seems especially appropriate to section 14(c), since 14(c)'s purpose is to distribute individual titles to residents of Alaska villages where concepts of American property law have been little used.
We are mindful of the rule of construction that ambiguous laws affecting Natives should be construed in favor of Natives. Hakala, 753 P.2d at 1147. This rule should not be applied in favor of TDX in this case for a number of reasons. First, TDX offers no interpretation of section 14(c) which is reasonably consistent with the language of that section, or its purpose. Second, the central purpose of 14(c) was to effect the transfer of title to thousands of Alaska Natives individually. A narrow construction of 14(c) would serve to thwart rather than further that purpose.[18] Third, as section 14(c) is structured, questions of entitlement as to improved land in and around Native villages involve as competing claimants not individual occupants and village corporations, but individual occupants and municipal corporations (or the State of Alaska in trust for future municipal corporations). Under section 14(c)(3), improved land in and around Native villages which is not transferred to individual occupants under (c)(1) or (2) is to be conveyed to the municipal corporation for the village or, if there is none, to the state in trust for a future municipal corporation.
H. A permittee may be an "occupant."
We return to the first question raised by the parties' arguments: whether a permittee holding under a revocable permit may be entitled to a section 14(c) conveyance or whether the permittee's rights are limited by the terms of the permit. Our answer is that the permittee may be entitled to a 14(c) conveyance.
The permittee must be an occupant within the meaning of section 14(c) an occupier with an equitable interest in the improvements and the purpose of the permittee's occupancy must be one of the purposes recognized by section 14(c)(1) or (2). The Act does not impose as an additional requirement a condition that an occupant not hold under a government lease or permit. Indeed, since the Act mandates conveyances to non-Native residential occupants whose rights are based solely on the fact that they occupy dwellings built on the public domain without a permit, it would be paradoxical to deny a conveyance to residential occupants who have made permitted entries.[19] We conclude therefore that a permittee may be an occupant. The fact that the permittee may also have rights under the permit which are preserved under section 14(g) does not preclude the permittee from receiving a conveyance under section 14(c). Our conclusion on this point comports with the Ninth Circuit's decision in Buettner.
I. An occupier of property subject to a revocable permit issued to another may be an "occupant."
The second question raised by the parties' arguments is whether a person who *1074 occupies property which is subject to a revocable permit issued to another may be entitled to a section 14(c) conveyance. Our answer is that such an occupier may be entitled to a conveyance, if the occupier has an equitable ownership interest in the improvements, and meets the occupancy purpose requirements of the Act. The Act does not impose additional requirements. We have concluded above that the existence of a permit is irrelevant to eligibility for a 14(c) conveyance and that the terms of an existing permit do not bar a conveyance. It follows that the fact that a permit may have been issued in the name of a non-occupant should not preclude a conveyance to an occupant who meets section 14(c) requirements.
J. The right to a reconveyance can be transferred subsequent to the legal occupancy date.
The third legal question raised by the parties' arguments is whether an occupant entitled to a 14(c) reconveyance from a village corporation may transfer the occupant's right to a reconveyance to a third party. The answer to this question clearly is affirmative.
An occupant's right to a 14(c) reconveyance is an individual property right which vests on what the Ninth Circuit has called the "magic" date. Buettner, 860 F.2d at 343. Property interests are alienable in the absence of specific prohibitions on alienability. See Roger A. Cunningham, et al., The Law of Property § 2.1, at 29 (2d. ed. 1993). No such prohibitions exist in ANCSA. Moreover, under the townsite acts an occupant could transfer his interest subsequent to the legal occupancy date and prior to receipt of the deed. McKennon v. Winn, 1 Okl. 327, 33 P. 582, 585 (1893). TDX's argument that the permit terms prohibit the Home Missions Department from making a conveyance to Capener after the legal occupancy date lacks merit, for just as the inconsistent terms of the permit do not control an occupant's right to a conveyance they do not deprive the occupant of the power to transfer that right.
K. Genuine issues of material fact exist which preclude summary judgment.
An affirmative burden falls on one who seeks summary judgment to establish the absence of genuine issues of material fact. Wickwire v. McFadden, 576 P.2d 986, 987 (Alaska 1978); Clabaugh v. Bottcher, 545 P.2d 172, 175 n. 5 (Alaska 1976). Our resolution of the legal questions raised by the parties' arguments makes it apparent that Capener's right to a conveyance depends on the resolution of certain fact questions including, at least, the following:
1. Did Capener have an equitable interest in the improvements on Lot 3 on January 19, 1979? If so, is Lot 2 part of the curtilage of the house and business on Lot 3?
2. Did the local church organization have an equitable interest in the improvements on Lot 1 or Lot 3 on December 18, 1971?
3. Did the Home Missions Department transfer its interest in the property to Capener prior to executing the general disclaimer.[20]
As TDX has not negated the existence of genuine issues concerning these questions, summary judgment was improper. The judgment of the superior court must therefore be reversed and this case remanded for further proceedings.[21]
REVERSED and REMANDED.
*1075 COMPTON, Justice, dissenting.
I am unpersuaded by this court's analysis of Section 14 of the Alaska Native Claims Settlement Act (ANCSA). Further, I conclude that the superior court reached the correct result. Therefore I dissent.
The Assemblies of God's entitlement to occupy and use the land was based on a Special Use Permit issued to it by the United States Department of the Interior, Fish and Wildlife Service, Bureau of Commercial Fisheries. The permit gave the Assemblies of God "the right to occupy and use [the land] for the purpose of constructing, establishing, creating, and maintaining a church and parsonage, ... and for no other purpose whatsoever." The permit had a ten year primary term, with automatic annual renewals unless terminated by either party by thirty days written notice. Upon expiration or termination of the permit, the Assemblies of God had the right, upon fulfillment of certain terms and conditions, to remove all structures, except those furnished by the government. If it failed to do so, any structures became property of the United States. The permit was not transferable, and no interest could accrue to a third person without permission of the Director of the Bureau of Commercial Fisheries. The only rights and liabilities created by the permit were between the United States Government and the Assemblies of God.
Lillian Capener and the late Reverend A.E. Capener were never permittees under the Special Use Permit. They did not "enter[] the land under the auspices of a special use permit... ." They entered the land under the auspices of the Assemblies of God. The Capeners' presence on the land was as missionaries for the Assemblies of God.[1] By virtue of their mission, they had permission to use the parsonage.[2] On the "magic" dates the Assemblies of God had not terminated the Special Use Permit, nor had it divested the Capeners of their mission.
The court acknowledges that the term "occupant" is ambiguous. The fact that the court goes to such great lengths to craft its definition of "occupant" demonstrates this clearly. However, in my view the court not only crafts an incorrect definition, but also misapplies it even if correct.
I. The Court's Definition of "Occupant" Is Unpersuasive.
The court concludes that an "occupant" is "one who occupies a particular place or *1076 premises and has an equitable interest in the improvements thereon."[3] The first half of the definition is simply a self evident dictionary definition. The second half presumably distinguishes one kind of tenant from another kind of tenant.[4] However, the appended language does not appear to correct the problem the distinction allegedly addresses. The court remarks that the dictionary definition
would require a reconveyance to an occupier who is merely a tenant of the owner of the improvements.... [I]n some cases this would be unjust to the owner of the improvements, as where the owner holds under a long-term lease and would be protected for the term of the lease under section 14(g), while the tenant, whose sole residence is on the premises, would have a claim to title under 14(c)(1)... . [I]n the analogous townsite context [it] seems to be clear that one who is merely a tenant is not an occupant.
.....
It is necessary therefore in tenancy cases to add to the dictionary definition a requirement that the occupier have an equitable interest in the improvements.
Opinion at 1072-1073. The language appended by the court merely narrows the category of tenants who will divest their landlords; it does not eliminate the problem. Under the definition crafted by the court, the tenant (sub-lessee) of the holder of a long-term government lease (sub-lessor), who occupies the land as a primary residence or business and who has an equitable interest in improvements put on the premises with the sub-lessor's consent, would become the owner of the property the sub-lessor leased to that tenant.
The definition employed by the court creates an impossible situation. The patent, by which the Village Corporation obtains title from the United States, is subject to the lessee/sub-lessor's "complete enjoyment of all rights, privileges, and benefits thereby granted him [by the lease]." Section 14(g). The described sub-lessee is entitled to a conveyance of title from the Village Corporation "without consideration." Section 14(c)(1). Thus the sub-lessee's title is subject to the sub-lessor's existing rights, which may include entitlement to rent from the sub-lessee, who is now the owner. Presumably if the sub-lessee defaults in the payment of rent, the lessee/sub-lessor may evict the person who is now the owner of the property.
I am unpersuaded that this attempted differentiation between various kinds of tenants, one of whom obtains title and the other of whom occupies in accordance with the terms of a lease which cannot be transformed into title, justifies the court's definition of "occupant." The definition will exacerbate the problem. A tenant by any other name will still be a tenant. The problem will be the same: the tenant's Section 14(c)(1) rights will conflict with the United States' lessee's Section 14(g) rights.
The court's definition of occupancy is flawed even when viewed only in the context of Section 14(c)(1). As used in Section 14(c)(1), "occupant" applies to four classes of activity on land: (1) primary place of residence, (2) primary place of business, (3) subsistence campsite, or (4) headquarters for reindeer husbandry. Acknowledging the inadequacy of its craftsmanship, the court restricts its definition of occupant to the first two classes of occupants. As it states, in the other categories "improvements may be either non-existent or relatively unimportant." Opinion at 1073 n. 17. While that may be true, on what basis can such a definitional distinction be made between category 1 and 2 occupants on the one hand, and category 3 and 4 occupants on the other? I suggest there is none. Furthermore, given the nomadic culture of many of Alaska's Natives, an equitable interest in improvements is a concept of questionable utility.
II. The Court Improperly Applies Its Own Definition of "Occupant."
The court's definition of occupant requires that the occupier of the premise have an *1077 "equitable interest in improvements." Even under this definition, Mrs. Capener would not be entitled to a conveyance of title.
The court correctly notes that a tenant is not an occupant "in the analogous townsite act context." Opinion at 1073. The relationship between the Assemblies of God and Mrs. Capener is consistent with, and most analogous to, the relationship between landlord and tenant. The Assemblies of God and Mrs. Capener could not both occupy the land in the statutory sense. And while a tenant might have a claim to ownership of improvements under specific circumstances, the court cites no authority for the proposition that the mere existence of such a claim transforms the tenant into an occupant entitled to a conveyance of title. Furthermore, given the terms of the permit, Mrs. Capener cannot have had an equitable interest in the improvements on the land vis-a-vis the United States. The permit states that any improvements will be forfeited to the United States if not removed by the permittee, the Assemblies of God.
Whether a permit holder ever can receive title under Section 14(c) is a question that is not necessary to decide, as Mrs. Capener was not a permit holder. She was on land permitted to another, at the sufferance of another, with no expectation of ever gaining title. The only "equitable interest in improvements" that may have existed was held by the Assemblies of God.
Mrs. Capener's sponsor, the Assemblies of God, was denied title when it tried to obtain it outside of the context of ANCSA.[5] The Assemblies of God has never pursued any ANCSA claim. It has never asserted a Section 14(g) claim to protect its valid existing rights as permittee. It has never pursued a Section 14(c)(2) claim to "[a] tract occupied ... by a nonprofit organization," although there appears to be no dispute that the Assemblies of God is a nonprofit organization, and that it occupied the land. Yet whatever claim the Assemblies of God may have had, its claim was either as a permittee or as a nonprofit organization which occupied the land.
III. A More Appropriate Definition of "Occupant."
In determining the meaning of "occupant," we are constrained to follow the rule that ambiguities in ANCSA are to be resolved in favor of Natives. Hakala v. Atxam Corp., 753 P.2d 1144, 1147 (Alaska 1988) (citing United States v. Atlantic Richfield Co., 612 F.2d 1132, 1138-39 (9th Cir.1980); Alaska Public Easement Defense Fund v. Andrus, 435 F. Supp. 664, 670 (D.Alaska 1977)). Although the court is "mindful" of the rule, it explicitly declines to follow it.[6] I do not *1078 know what the court means by this. If there is no ambiguity, the rule does not apply. If there is an ambiguity, the court must follow the rule. The rule requires that the ambiguity must be resolved in favor of Natives. This should not mean that the Natives must provide the best resolution of the ambiguity, else the rule is meaningless. I suggest that the Natives must advance an interpretation that is reasonable. For the reasons set forth in supra note 3, I conclude they have done at least that.
Persons entitled to assert occupancy rights under the Townsite[7] and Native Townsite Acts[8] were not required to have a patent, lease, contract, permit, right-of-way, or easement. In other words, they had no Section 14(g) "valid existing rights." The protection for such users has to come from elsewhere. It comes from Section 14(c). According to David S. Case, The Special Relationship of Alaska Natives To The Federal Government (1978),
The Native Townsite Act was administered in the same way and according to the same regulations as an earlier 1891 Act which granted citizens (usually non-Natives) the right to establish townsites in Alaska... . These procedures made no distinction between Native and non-Native in townsite administration. Prior to 1959, it was possible for both Natives and non-Natives to be deeded lots within the subdivided portion and to occupy land in the unsubdivided portion of the same townsite... . The Townsite Act was repealed in 1976, and Section 14(c) of ANCSA provides an alternative for municipalities to acquire municipal lands. However, the townsites established under the 1926 Act were not eliminated either by ANCSA or the 1976 repeal of the Native Townsite Act... . Non-Natives can continue to establish new occupancy rights under the 1926 Act on the same types of land for which ANCSA supposedly prohibited occupancy rights as of December 18, 1971.
Id. at 60 (citations omitted).
ANCSA is a coherent act. Section 22(b) protects existing rights that might eventually *1079 lead to title, such as homesteads and mining claims. Section 14(g) protects the existing rights of those temporarily on the land.[9] Section 14(c) protects the rights of those without "existing rights," such as those who but for ANCSA, and its repeal of the Native Allotment Act,[10] may have had reasonable expectations that entry could be made under the Townsite and Native Townsite Acts, following which they would obtain title.[11]
In my view a more suitable definition of occupant would be a user whose continued use 1) is not protected by another section of ANCSA, and 2) is reasonably expected to continue without interference by the United States. This definition would bring within its ambit persons living in a community which could have gained de jure status under the Townsite and Native Townsite Acts, and whose entitlement under those now repealed acts is not clear.
The concept of title to land as we understand it is one grounded in common or civil law. It is not a concept of Native culture. However, if the Native concept of continued use is kept in mind, the definition is appropriate to the purpose of ANCSA.
Congress' use of the term "occupied" becomes more understandable when considered in the context of its traditional use in Native legislation. The term has typically been applied in the context of Native aboriginal title rights. See David S. Case, Alaska Natives and American Laws 56-75 (1984) (providing a legal history of the aboriginal title rights of Alaska Natives; "occupy" terminology occurs frequently).[12] A basic tenet of statutory construction is a presumption that words that have acquired special meaning in the law carry that meaning in new legislation. See O'Callaghan v. State, 826 P.2d 1132, 1134 (Alaska 1992). ANCSA extinguished aboriginal title in Alaska. However, the purpose of Section 14(c) is to protect existing users or occupants. The passage of ANCSA did not change the use occupants made of the land, often the very use that aboriginal title was crafted to encompass.
*1080 Finally, the practical effect of a conveyance from the Village Corporation is important to keep in mind. Unlike the regional corporations, a village's pool of land shrinks every time land is conveyed.[13] This land was not a gift from the government, but rather was payment given in exchange for an arguably legally enforceable right. Given this historic fact, and ANCSA's purpose, the court should not interpret ANCSA "to defeat the manifest intent of Congress." United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir.1980).
NOTES
[1] Sections 14(c)(1) and (2) are set forth at note 5 infra.
Another provision of the Act under which the right to a conveyance is triggered merely by occupancy rather than a legally regulated entry is what one text calls the "hermit clause," section 14(h)(5), under which the Secretary of the Interior "may convey to a Native ... the surface estate in not to exceed 160 acres of land occupied by the Native as a primary place of residence on August 31, 1971." See Robert D. Arnold, Alaska Native Land Claims, 253 (Alaska Native Foundation, 1978). According to the text this provision applies to residences away from villages or cities. Id. That limitation may be practical rather than legal, however, as it is not expressed in the Act.
[2] The occupancy date under section 14(c)(1) for Pribilof Island land is the date of conveyance to the village corporation. That date for the land in this case is January 19, 1979.
[3] December 18, 1971, was the date ANCSA was passed.
[4] As a corporation representing a village of more than 500 people TDX was entitled to a patent to the surface estate of 138, 240 acres. 43 U.S.C. § 1613(a) (1986); Arnold, supra note 1, at 243. TDX's selection encompassed virtually all of St. Paul Island. Arnold, supra.
[5] These sections provide:
(c) Patent requirements; order of conveyance; vesting date; advisory and appellate functions of Regional Corporations on sales, leases or other transactions prior to final commitment.
Each patent issued pursuant to subsections (a) and (b) of this section shall be subject to the requirements of this subsection. Upon receipt of a patent or patents:
(1) the Village Corporation shall first convey to any Native or non-Native occupant, without consideration, title to the surface estate in the tract occupied as of December 18, 1971 (except that occupancy of tracts located in the Pribilof Islands shall be determined as of the date of initial conveyance of such tracts to the appropriate Village Corporation) as a primary place of residence, or as a primary place of business, or as a subsistence campsite, or as headquarters for reindeer husbandry;
(2) the Village Corporation shall then convey to the occupant, either without consideration or upon payment of an amount not in excess of fair market value, determined as of the date of initial occupancy and without regard to any improvements thereon, title to the surface estate in any tract occupied as of December 18, 1971, by a nonprofit organization;
(3) the Village Corporation shall then convey to any Municipal Corporation in the Native village or to the State in trust for any Municipal Corporation established in the Native village in the future, title to the remaining surface estate of the improved land on which the Native village is located and as much additional land as is necessary for community expansion, and appropriate rights-of-way for public use, and other foreseeable community needs: Provided, That the amount of lands to be transferred to the Municipal Corporation or in trust shall be no less than 1,280 acres unless the Village Corporation and the Municipal Corporation or the State in trust can agree in writing on an amount which is less than one thousand two hundred and eighty acres: Provided further, That any net revenues derived from the sale of surface resources harvested or extracted from lands reconveyed pursuant to this subsection shall be paid to the Village Corporation by the Municipal Corporation or the State in trust: Provided, however, That the word "sale", as used in the preceding sentence, shall not include the utilization of surface resources for governmental purposes by the Municipal Corporation or the State in trust, nor shall it include the issuance of free use permits or other authorization for such purposes[.]
(Emphasized language added in 1980, Pub.L. 96-487 § 1404(a) and (b) and § 1405.)
[6] See note 2 supra.
[7] "Mr. Kitchen in 1971 had no right whatsoever to be there. No law or permit authorized him to build a structure there. He did not have a special guiding permit for the area until 1973... . The land may have been open to hunting and backpacking, but Mr. Kitchen was trespassing when he placed his ... shack there." See Ae.Br. 14 Hakala v. Atxam Corp., Supreme Court No. S-1866.
[8] As noted supra, p. 1061, section 14(g) makes conveyances to Native corporations subject to the terms of outstanding leases, contracts and permits. "Upon issuance of the patent, the [Native corporation] shall succeed and become entitled to any and all interests of the ... United States as lessor, contractor, permitter ... in any such leases, contracts, permits... ." ANCSA 14(g), 43 U.S.C. § 1613(g).
[9] The chairman of the Federal Field Committee, Joe Fitzgerald, amplified this theme in his testimony before Congress. Fitzgerald stated that thousands of Alaskans were "squatters" on federal land without claim to title. Statement of Joe Fitzgerald, Hearing on S. 1830 91st Cong., 1st Sess. 119, 121 (1969).
[10] The report specifically mentioned that the Village of St. Paul was surveyed but no deeds to individuals had been issued. Alaska Natives and the Land, at 492.
[11] These statutes were the 1891 Townsite Act, formerly codified at 43 U.S.C. § 732 (1970), and the Alaska Native Townsite Act of 1926, formerly codified at 43 U.S.C. § 733 et. seq. (1970). They, like townsite laws applicable elsewhere in the United States, operated to convey the public domain to occupants for either no cost or a prorated portion of survey fees. Case, supra, 158.
[12] The analogy between section 14(c) and the townsite acts carries through subsection (3) of 14(c) which requires that improved land in a village which is not conveyed under subsections (1) or (2) shall be conveyed to the village municipal corporation or to the state in trust for any municipal corporation established in the village in the future. Under the various townsite acts, surveyed lots which had no occupants were either auctioned and the proceeds were paid to the municipal corporation or held in trust for the benefit of the municipal corporation. See e.g., Pratt v. Young, 1 Utah 347, 358 (Utah 1876).
[13] "Entry" in terms of the townsite laws refers not to the entry by the occupant or the occupant's predecessor but to the entry by the official having the power to issue deeds. It is a term of art which fixes the relevant occupancy date, but has nothing to do with physical entry by the public official.
[14] Pratt v. Young, 1 Utah at 352. Speaking of the interests of the occupant prior to "entry" by the authorized official, the trial court wrote:
This limited interest in the land is the creature of the acts of Congress; it is novel and anomalous, and only subject to the ordinary rules of law governing real estate (if at all) in a narrow and subordinate sense. The fee simple which is usually the largest possible estate which a man can have in and which draws to it all of the incidents of such an estate such as possession or the right of possession, and is the predicate of the relations of the landlord and tenant, does not enter into or constitute any part of the statutory interest in land which is created by the acts of Congress. On the contrary the fee is recognized as being in another, and this estate or interest in the land exists in its narrow and meagre entirety, without and independent of it.
To apply to it the rules and analogies which ordinarily govern and guide in determining interests and relations in regard to real estate, would be in contravention of the very nature of the right itself. The title to real estate is now in abeyance. This statutory interest vanishes upon the mere abandonment of the possession of the land. The title to real estate can only be transferred from one person to another by writing in proper form and duly attested. This interest can pass from one to another by the surrender of possession of the land.
Id.
[15] Tillman's occupancy began in February of 1882 and he received his deed as an occupant in April of 1883.
[16] We thus reject the definition of "occupant" which implies that an occupier must have a particular legal status. See supra p. 1070.
[17] With respect to subsistence campsites and headquarters for reindeer husbandry, improvements may be either non-existent or relatively unimportant. We do not, therefore, intimate any view as to the application of this definition to occupancy for such purposes.
[18] In United States v. Atlantic Richfield Co., 612 F.2d 1132, 1139 (9th Cir.1980), the court observed that the rule of construction favoring Natives is only a guideline, not a principle of substantive law, and "should not be used to defeat the manifest intent of Congress."
[19] In Buettner the court stated: "It would be an odd statute indeed which conferred rights to obtain a deed on persons occupying property without permission, but which denied these rights to lawful occupants." Buettner v. Kavilco, Inc., 860 F.2d at 343.
[20] TDX's argument that the statute of frauds, AS 09.25.010, precludes an oral conveyance of a real estate interest is not unconditionally correct. There are exceptions to the oral conveyance bar, one of which is where the party sought to be charged with the conveyance subsequently acknowledges it. AS 09.25.020(4). An excerpt of the deposition of one of the Home Missions Department officials, Bransford, indicates that he agrees that the conversation on which Capener bases her conveyance argument took place. However, both the content of the conversation and the intent of the parties require more development.
[21] Capener makes three other arguments which we reject summarily. The first is that the seven-year color of title adverse possession statute bars TDX's claim. This lacks merit as Capener did not have color of title as that term is used in the adverse possession statute:
Color of title exists only by virtue of a written instrument which purports to pass title to the claimant, but which is ineffective because of a defect in the means of conveyance or because the grantor did not actually own the land he sought to convey.
Hubbard v. Curtiss, 684 P.2d 842, 847 (Alaska 1984). Second, Capener claims that laches bars TDX's claim, as in the period between patent to TDX and suit against Capener her husband died, thus requiring this case to be resolved without his testimony. Capener fails to adequately address this argument in her brief; therefore, we will not consider it on appeal. Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970). Third, Capener argues that TDX has implicitly acknowledged her occupancy right since it has not reconveyed the land to the City of St. Paul. This does not follow logically, since there are a number of alternative reasons which can explain TDX's failure to reconvey to the municipality. In any case, this argument was not raised below and therefore will not be considered on appeal. Arnett v. Baskous, 856 P.2d 790, 791 n. 1 (Alaska 1993) (points not raised in the trial court will not be considered on appeal).
[1] A.E. Capener was an ordained missionary of the Assemblies of God. Mrs. Capener was and is a nationally appointed home missionary of the Assemblies of God, in good standing. A recent article in the Anchorage Daily News presents the more human side of the Capeners' life and the Assemblies of God mission on St. Paul Island. T.A. Badger, 50 Years a Missionary in Tough Alaska Country, Anchorage Daily News, August 29, 1994, at B-1. The article has no evidentiary value, though I found it instructive in that the Alaska Director of the Assemblies of God opined that the St. Paul mission probably would not be continued after Mrs. Capener's tenure.
[2] The court continually refers to the Assemblies of God parsonage as the Capeners' "house." Webster's Second New International Dictionary defines parsonage as follows:
1. Eng.Eccl.Law. A certain portion of lands, tithes, and offerings, for the maintenance of the parson of a parish. 2. The glebe and house, or house only, appropriated by a parish or ecclesiastical society to the maintenance or use of the incumbent or settled pastor or minister. 3. The tithe belonging to a parson. Scot.
It is clear that the parsonage constructed on Lot 3 was "appropriated by [an] ecclesiastical society to the maintenance of the incumbent or settled pastor or minister." The parsonage did not exist separate from the Capeners' mission.
[3] The court does not define or identify what constitutes "an equitable interest in the improvements."
[4] Although the court recognizes that Section 14(c)(1) is an analogue to the Townsite and Native Townsite Acts, it cites no authority suggesting that those Acts make any similar distinction.
[5] On September 29, 1969, the Alaska District Council of the Assemblies of God, Inc., filed a petition with the appropriate agency within the United States Department of the Interior to obtain title to the lots in question. The petition was rejected at every administrative level.
The petition was preceded by inquiries made by the Assemblies of God dating back to at least April 1966, regarding purchase of the lots. This was several months prior to the issuance of the Special Use Permit on July 7, 1966. Between issuance of the Special Use Permit and the actual petition to obtain title, the Fur Seal Act of November 2, 1966, P.L. No. 89-702, 80 Stat. 1091, 16 U.S.C. sec. 1155 et seq., became law. It precluded obtaining title under laws which might have enabled the Assemblies of God to do so. By the time administrative appeals were in process, ANCSA had been enacted, and had to be considered. The net result was that the Assemblies of God was never able to obtain title to the lots.
[6] The court declines to follow the rule because "TDX offers no interpretation of Section 14(c) which is reasonably consistent with the language of that Section, or its purpose." Nothing in the text of ANCSA or case law interpreting ANCSA suggests that TDX is under a burden to produce an interpretation which resolves the ambiguity. Ambiguities are resolved in favor of Natives. If TDX is under such a burden, and has not satisfied it, then the court's exercise in crafting its own definition is a waste of time. Mrs. Capener should prevail by default. It is noteworthy that the definition of "occupant" ultimately crafted by the court is not one proposed by Mrs. Capener.
Furthermore, the asserted failure of TDX's offer is belied by the court itself in its discussion of various townsite laws, ANCSA's parallelism with them, and Congress' intention that Section 14(c) "address the same general purpose as the townsite laws previously governing Alaska." It is also dispelled by the superior court's carefully reasoned decision. It reasoned, and concluded, inter alia:
In its briefing, TDX correctly asserts that only the church possessed a possible § 14(c)(1) claim, a claim which has never been adjudicated and which the church has now disclaimed. Mrs. Capener occupied the land subject to the church's rights, and the church, not Mrs. Capener, received the permit. As TDX points out, the church could have removed the Capeners from the property at any time... .
Donnelly v. United States ... held that § 14(c)(1) could not be used to give "amnesty" for "trespassers, failed homesteaders, or land users without any vested rights prior to December 1, 1971".... Moreover, the congressional intent to provide a "just and fair settlement" of native land claims is inconsistent with an interpretation of § 14(c)(1) that could reduce the land patented to native corporations in favor of trespassers." ...
The state [sic], by contrast, has never issued any permit, license, or similar right to Mrs. Capener. The state [sic] issued a revocable permit to the church, which had the right, at any time, to remove the Capeners and replace them with different missionaries.
[I]n Buettner v. Kavilco, Inc., ... [t]he court found that the appellants "as permittees ... were entitled to occupy the land although it was owned by someone else," thus deciding that § 14(c)(1) requires native corporations to convey title to permittees, so long as the permittee fulfills § 14(c)(1)'s occupancy requirements... . Again, ... Mrs. Capener does not hold a permit.
....
Secretarial Order No. 3016 and accompanying Memorandum, Valid Existing Rights Under the Alaska Native Claims Settlement Act, ... sheds light on the legislative intent behind the ANCSA... . The Memo notes that the regulations distinguish between rights "leading to the acquisition of title," which the Act intends to exclude from conveyance to natives; and "rights of a temporary nature", which the Act intends to convey, but with the condition that the right be protected "for the duration of the interest"... .
... Mrs. Capener did not hold a license or permit, nor any other vested right or interest that could "lead to the acquisition of title" at the time of the Act's passage. Because Mrs. Capener has no claim which could have ripened into a title interest had ANCSA not passed, she cannot now acquire title because the Act did pass, particularly considering the Act's purpose of giving title to Alaska Natives.
Order, November 21, 1990, pp. 4-9.
The court may disagree with the superior court's reasoning and conclusion. However, I cannot conclude in good conscience that this interpretation, which TDX successfully presented to the superior court and which it argues to this court, is not reasonably consistent with Section 14(c)(1) or its purpose.
[7] Townsite Act of 1891, ch. 561, § 11, 26 Stat. 1095, 1099, repealed by Pub.L. No. 94-579, Title VII, § 703(a), 90 Stat. 2743, 2789 (Oct. 21, 1976).
[8] Alaska Native Townsite Act of 1926, ch. 379, § 1, 44 Stat. 629, repealed by Pub.L. No. 94-579, Title VII, § 703(a), 90 Stat. 2789 (Oct. 21, 1976).
[9] Section 14(g) states that
[a]ll conveyances made pursuant to this chapter shall be subject to valid existing rights... . [T]he patent shall contain provisions making it subject to the lease, contract, permit, right-of-way, or easement, and the right of the lessee, contractee, permittee, or grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted to him.
[10] Alaska Native Allotment Act of 1906, ch. 2469, 34 Stat. 197, amended ch. 891, § 1(a)-(d), 70 Stat. 954, repealed by Pub.L. No. 92-203, § 18(a), 85 Stat. 688, 710 (Dec. 18, 1971).
[11] I believe that a proper reading of ANCSA compels the conclusion that sections 14(c) and 14(g) are mutually exclusive. The United States Court of Appeals for the Ninth Circuit has held that the two provisions are not mutually exclusive. Buettner v. Kavilco, 860 F.2d 341, 343 (9th Cir.1988) ("We hold that permittees such as Buettner and Hamar are within this class [of persons protected under 14(c)]."). A practical application of this makes little sense, however. For instance, assume a user has a long term lease from the United States granting permission to operate a commercial supply business in a community. It is the person's primary place of business. Under the terms of the lease, the person has no expectation of ever gaining title to the leasehold. However, the person does expect lease rights to be honored and protected. ANCSA is enacted. Under section 14(g), these rights are protected. Under section 14(c)(1), the person is entitled to a conveyance of title from the Village Corporation. Granting the person title under 14(c)(1) is a windfall.
We noted in Hakala that many of the lands subject to ANCSA are remote lands. 753 P.2d at 1148. Some physical presence is required in order to use the lands. As noted by Justice Rabinowitz in his dissent in Hakala, the use of a site for one-tenth of a person's business was sufficient occupancy to constitute a "primary place of business." If a lessee can so easily take under Section 14(c)(1), there little point in protecting existing permits in Section 14(g).
[12] Not only does section 4(b) of ANCSA use these terms in the context of aboriginal title, but "use or occupancy" has been a term of art in Alaska Native law for over a hundred years. ANCSA § 4(b) (referring to "claims of aboriginal title in Alaska based on use and occupancy"). See, e.g., Organic Act of May 17, 1884, ch. 53, 23 Stat. 24, § 8 (referring to "the Indians['] ... use or occupation"); Sutter v. Heckman, 1 Ak.Rpts. 188 (D.C.Alaska 1901), aff'd on other grounds, 119 F. 83 (9th Cir.1902) (construing section 8); Worthen Lumber Mills v. Alaska Juneau Gold Mining Co., 229 F. 966 (9th Cir.1916) (also construing section 8); Miller v. U.S., 159 F.2d 997 (9th Cir.1947) (noting Congressional recognition of the "occupancy or possession" of Alaskan land by Indians); Tlingit and Haida Indians of Alaska v. U.S., 147 Ct.Cl. 315, 177 F. Supp. 452, 463-64 (1959) (referring to "use and occupancy title of the ... Indians").
[13] A Native village is a "tribe, band, clan, group, village, community, or association" of twenty-five or more Natives. Section 3(c). Native villages are allowed to form Village Corporations. Land selection is allowed by Village Corporations that have at least twenty-five Native residents, if the village is not modern and urban and a majority of the residents are Natives. Sections 11(b)(2) & (3). The land remaining after other section 14(c) conveyances is conveyed by the Village Corporation to a Municipal Corporation "in the Native village" or to the State to hold in trust for a future Municipal Corporation "established in the Native village." Section 14(c)(3). The Municipal Corporation thus is comprised of all or a part of the Native village. It is simply the body politic as the Village Corporation is the body corporate. When a Municipal Corporation receives less land from the Village Corporation because of Section 14 conveyances, the Native residents effectively are receiving less land. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2028813/ | 63 Ill. App. 3d 199 (1978)
379 N.E.2d 804
PELAGIA TYRKEN, Plaintiff-Appellee,
v.
JOHN TYRKEN, Adm'r of the Estate of Szymon Tyrken, Deceased, Defendant-Appellant.
No. 77-337.
Illinois Appellate Court First District (2nd Division).
Opinion filed August 1, 1978.
*200 Ronald L. Drozdzik and John F. Skeffington, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellant.
Paul B. Episcope and Thomas D. Fazioli, both of Paul B. Episcope, Ltd., of Chicago, for appellee.
Reversed and remanded.
Mr. JUSTICE BROWN delivered the opinion of the court:
Plaintiff, Pelagia Tyrken, brought this action against the administrator of the estate of her deceased husband, for personal injuries resulting from a collision between the automobile in which she was riding and a passenger train. Her complaint alleged that her husband, who was driving the automobile and was killed in the collision, was guilty of wilful and wanton acts or omissions.
Defendant filed a motion to dismiss on the ground that the action was barred by the interspousal tort immunity provision of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1973, ch. 68, par. 1). On December 2, 1976, the trial court denied defendant's motion to dismiss, and made a finding that the order concerned a question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the litigation. On February 18, 1977, the trial court denied defendant's motion to vacate the order of December 2, 1976, and the defendant filed an application for leave to appeal under Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308). We allowed defendant's application for leave to appeal.
This appeal raises the following issues: (1) whether section 1 of "An Act to revise the law in relation to husband and wife" (Ill. Rev. Stat. 1973, ch. 68, par. 1) (hereafter "the Act") violates article I, section 12 of the 1970 Illinois Constitution because it denies a widow a remedy for injuries to her person; (2) whether the Act violates the plaintiff's constitutionally protected rights afforded by the due process clauses of the 1970 Illinois Constitution and the United States Constitution, and article I, section 18 of the 1970 Illinois Constitution because it is an unreasonable and arbitrary exercise of legislative power; (3) whether the Act violates the equal protection clauses of the 1970 Illinois Constitution and the United States Constitution because it discriminates against persons of the same *201 class; and (4) whether the Act violates article IV, section 13 of the 1970 Illinois Constitution because it is special legislation.
Defendant argues that the law in Illinois with respect to interspousal immunity is well settled. Section 1 of the Act provides:
"A married woman may, in all cases, sue and be sued without joining her husband with her, to the same extent as if she were unmarried; provided, that neither husband nor wife may sue the other for a tort to the person committed during coverture." (Ill. Rev. Stat. 1973, ch. 68, par. 1.)
This section has successfully withstood attacks on its constitutionality under both the 1870 Illinois Constitution and the 1970 Illinois Constitution. Heckendorn v. First National Bank (1960), 19 Ill. 2d 190, 166 N.E.2d 571; Steffa v. Stanley (2d Dist. 1976), 39 Ill. App. 3d 915, 350 N.E.2d 886.
Initially, plaintiff concedes that the Illinois Supreme Court, in a case arising under similar circumstances as those presented in this case, has held that the Act operates as an absolute bar against a widow suing her husband's estate for a tort committed during coverture (Heckendorn). Plaintiff argues, however, that the public policy of the State has been altered so drastically that a current judicial review of this issue will lead this court to the same conclusion reached by the trial court. We disagree.
While plaintiff is correct in noting that the broad doctrine of intrafamily immunity has suffered erosion since Heckendorn (Johnson v. Myers (2d Dist. 1972), 2 Ill. App. 3d 844, 277 N.E.2d 778; Schenk v. Schenk (1st Dist. 1970), 100 Ill. App. 2d 199, 241 N.E.2d 12; Augustine v. Stotts (4th Dist. 1963), 40 Ill. App. 2d 428, 189 N.E.2d 757), the express statutory provision regarding interspousal immunity has remained firm. Steffa v. Stanley (2d Dist. 1976), 39 Ill. App. 3d 915, 350 N.E.2d 886.
In this respect, plaintiff's reliance on Herget National Bank v. Berardi (1976), 64 Ill. 2d 467, 356 N.E.2d 529, and Bradley v. Fox (1955), 7 Ill. 2d 106, 129 N.E.2d 699, is misplaced. These cases involved the application of the Illinois Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 1), and presented the question of whether the administrator of a wife's estate could maintain an action against the husband's estate for loss suffered by a child through the death of the wife by the husband's wrongful conduct. The instant case, as well as Heckendorn, presents the question as to whether a wife has the right to bring an action for her own injuries against her husband's estate for a tort committed during coverture.
Similarly, the case of Packenham v. Miltimore (2d Dist. 1967), 89 Ill. App. 2d 452, 232 N.E.2d 42, is factually distinguishable from the case at bar. The operative words of the Act concern torts "committed during coverture." In Packenham, the act of the husband occurred prior to the marriage, and the court, strictly construing the language of the statute, *202 held that the Act did not apply in those circumstances. In the instant case, there is no question that the tortious act occurred during the marriage.
Plaintiff argues the Act violates article I, section 12 of the Illinois Constitution because it denies a widow a remedy for injuries to her person. This section provides:
"Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to her person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly." Ill. Const. 1970, art. I, § 12.
This argument was advanced in Heckendorn, and that court found it to be unpersuasive. In construing the predecessor of article I, section 12 of the Illinois Constitution, the court stated:
"Section 19 enunciates a basic policy of jurisprudence that serves both to preserve the rights recognized by the common law and to permit the fashioning of new remedies to meet changing conditions. However, this policy expression does not authorize us to create a cause of action unknown to the common law in the face of an express statutory prohibition." Heckendorn, 19 Ill. 2d 190, 194.
1 Plaintiff points out that the section construed by the court in Heckendorn contained the permissive term "ought" to find a certain remedy (Ill. Const. 1870, art. II, § 19), whereas the 1970 Constitution contains the mandatory language that every person "shall" find a certain remedy. (Ill. Const. 1970, art. I, § 12.) However, both the old remedy section of the Constitution and the new have been construed by the Illinois courts to constitute an expression of a philosophy and not a mandate that a certain remedy be provided in any special form. See Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659; Steffa v. Stanley; Mier v. Staley (4th Dist. 1975), 28 Ill. App. 3d 373, 329 N.E.2d 1.
2 Plaintiff's next contention is that the Act violates her right to due process under both the Illinois and United States constitutions because it is an unreasonable and arbitrary exercise of the legislative power. The court in Heckendorn answered this contention in the following manner:
"Nor do we believe that the statutory proviso of 1953 violates the due process clauses of either the State or Federal constitutions. It is a legislative determination of public policy and a command to return to the basic common-law doctrine which immunized the husband from suits by his wife for a tort to her person. In Brandt v. Keller, 413 Ill. 503, we held that by the adoption of the Married Women's Act of 1874, the legislature intended to abolish the common-law disability of a wife to sue her husband in tort. We *203 there acknowledged that such action was in derogation of the common law and that the legislature thereby created a new right and remedy unknown to the common law.
As it was within the power of the legislature to determine public policy and grant such right in 1874, it was also within its authority in 1953 to change this policy concept and to partially withdraw such right. This it did by a proviso which applies equally to husband and wife and is consonant with a widely held view of public policy as enunciated in a majority of decisions in this country. See: Anno. 43 A.L.R. 2d 632." Heckendorn, 19 Ill. 2d 190, 194-95.
3 Plaintiff next contends that the Act violates the equal protection clauses of the Illinois Constitution and the United States Constitution because it discriminates against persons of the same class. A similar argument was raised in Steffa v. Stanley (2d Dist. 1976), 39 Ill. App. 3d 915, 350 N.E.2d 886, where the court stated:
"Although the legislature may, in certain instances, classify persons for the purposes of legislative regulation or control (Youhas v. Ice, 56 Ill. 2d 497, 500 (1974)), the Act does not present us with the question of whether the classification of married women is constitutionally permissible. Its purpose was not to control or otherwise abridge the rights of married women but, rather, to allow rights denied under the common law and elevate married women to a legal parity with married men." (Steffa, at 918.)
The bar against tort actions between spouses during coverture applies equally to husband and wife and cannot therefore be said to violate plaintiff's right to equal protection.
4 Finally, plaintiff argues that the Act violates article IV, section 13 of the 1970 Illinois Constitution because it is special legislation. Plaintiff contends that there is no reasonable basis for barring interspousal tort actions while allowing actions between other members of the family unit. However, we believe that the Act is a reasonable and nonarbitrary determination of the public policy of the State, whose purposes include preventing collusive tort actions between spouses and the disruption of marital unity. As the Illinois Supreme Court has stated:
"It is not our place to criticize the policy determination of the legislature. Nor need we surmise our decision had this case come before us in the absence of legislation. We are only concerned with the authority of the legislature to abolish or limit, by a nonarbitrary statute, a right unknown to common law, which it had previously created. In this case, where no rights had vested, we are neither aware of a constitutional ban, (cf. Hall v. Gillins, 13 Ill. 2d 26; *204 Clarke v. Storchak, 384 Ill. 564,) nor do we know of a court which has abolished the doctrine of marital disability in the absence of an applicable statute." Heckendorn, 19 Ill. 2d 190, 195.
The trial court's order denying defendant's motion to vacate the order of December 2, 1976, is reversed and the cause remanded with instructions to enter an order vacating the order of December 2, 1976, allowing defendant's motion to dismiss and dismissing plaintiff's cause with prejudice.
Judgment reversed and remanded with directions.
STAMOS, P.J., and DOWNING, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/725439/ | 94 F.3d 653
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Ronald Michael BACKUES, Defendant-Appellant.
No. 95-16031.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 12, 1996.*Decided Aug. 16, 1996.
Before: BROWNING, SCHROEDER, and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Ronald Michael Backues appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence for conspiracy to possess with intent to distribute and possession with intent to distribute marijuana, and bribery. Backues contends that the Double Jeopardy Clause barred his conviction due to the prior civil forfeiture of his property. This contention is precluded by the United States Supreme Court's decision in United States v. Ursery, 116 S.Ct. 2135 (1996).
3
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1029564/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6609
DEAN L. PRUE, JR.,
Petitioner - Appellant,
v.
JAMES SMITH, Warden; THE ATTORNEY GENERAL OF THE STATE OF
MARYLAND,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cv-00665-CCB)
Submitted: July 23, 2009 Decided: July 30, 2009
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Dean L. Prue, Jr., Appellant Pro Se. James Everett Williams,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dean L. Prue, Jr., seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of the district court’s order denying relief on
his 28 U.S.C. § 2254 (2006) petition. The order is not
appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006);
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004).
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find
that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural
ruling by the district court is likewise debatable. Miller-
El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel,
529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th
Cir. 2001). We have independently reviewed the record and
conclude that Prue has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. 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
2 | 01-03-2023 | 07-05-2013 |
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