url stringlengths 54 59 | text stringlengths 0 3.41M | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/2611924/ | 884 P.2d 1150 (1994)
77 Hawai`i 374
STATE of Hawai`i, Plaintiff-Appellee,
v.
Aaron Joseph PITT, Defendant-Appellant.
No. 16412.
Intermediate Court of Appeals of Hawai`i.
November 30, 1994.
As Amended December 6, 1994.
Dennis W. Jung, on the brief, Honolulu, for defendant-appellant.
*1151 Charlotte J. Duarte, Deputy Pros. Atty., City and County of Honolulu, on the brief, Honolulu, for plaintiff-appellee.
Before BURNS, C.J., and WATANABE and ACOBA, JJ.
WATANABE, Judge.
Defendant-Appellant Aaron Joseph Pitt (Defendant) appeals from the July 17, 1992 Judgment of the District Court of the First Circuit, convicting him of various traffic offenses, and the district court's August 14, 1992 oral order, denying his motion for a new trial. Defendant's sole contention is that he was denied his constitutional right to effective assistance of counsel at trial because his trial counsel concurrently represented Alonzo Pitt (Alonzo), Defendant's brother, in another criminal case, and Defendant's defense at trial was that Alonzo was the actual perpetrator of the offenses for which Defendant was ultimately convicted.
Because the record on appeal contains insufficient information for us to determine whether there is any merit to Defendant's argument, we remand for proceedings consistent with this opinion.
FACTS
At about 11:35 p.m. on January 30, 1992, police officer Tracy Dansuka (Officer Dansuka) was on routine patrol in the Kailua area when she observed a car on Oneawa Street which appeared to be traveling in excess of the posted twenty-five-miles-per-hour speed limit. Using a K-15 radar gun, she got a reading that the car was traveling at forty-three miles per hour. Officer Dansuka locked in the reading, started her automobile, and turned on her blue revolving light and headlights.
As the speeding car passed directly in front of her, Officer Dansuka was able to see into the car through the partially opened passenger-side window, and in the illumination of her headlights, she recognized Defendant as the driver of the car. After chasing the car for several blocks, including two jaunts down one-way streets in the wrong direction, Officer Dansuka found the empty car parked in a driveway on Kaulani Way, the driver having fled.
Based upon her visual identification of Defendant as the driver, the documentation found in the car, and information relayed from the police dispatcher, Officer Dansuka cited Defendant for: (1) non-compliance with speed limit, a violation of Hawai`i Revised Statutes (HRS) § 291C-102 (1985); (2) two counts of driving in the wrong direction on a one-way street, a violation of HRS § 291C-48 (1985); (3) driving with a suspended license, a violation of HRS § 286-132 (1985); and (4) driving without no-fault insurance, a violation of HRS § 431:10C-104 (1987 Sp. Pamphlet, Supp.1992). Officer Dansuka then placed the citations inside the vehicle, and had the vehicle towed away because it was blocking another car.
PROCEDURAL HISTORY
Defendant's cases were originally scheduled for trial on June 19, 1992. At that time, Deputy Public Defender Adrienne Sanders (Sanders), Defendant's court-appointed counsel, gave oral notice that Defendant intended to rely on an alibi defense. Sanders then requested and received a one-month continuance of the trial date, due to the absence of one of the alibi witnesses.[1]
Defendant's jury-waived trial commenced on July 17, 1992, and Officer Dansuka was the State's only witness. After explaining *1152 her version of what transpired on the night in question, Officer Dansuka testified that she was familiar with Defendant and his two brothers from prior contacts she had had with them and was "a hundred percent sure" that it was Defendant who had been driving the vehicle on the night in question. The defense then presented three alibi witnesses Defendant, Defendant's mother, and Defendant's girl friend all of whom testified that Defendant was home in bed at the time of the chase. Defendant also testified that at about 11:50 p.m. on the night in question, he had been awakened by Alonzo, who informed him that his car had been towed away.
The alibi defense was rejected by the trial court, which found Defendant guilty of all charges. Immediately after the trial but prior to sentencing, Sanders orally moved for a new trial based on newly discovered evidence, stating that she believed Alonzo was the driver of the vehicle and therefore wanted an opportunity to bring him to court to testify. The trial court denied the motion, pointing out that Defendant had already been given opportunities to bring in Alonzo as a witness, and sentenced Defendant as follows: (1) for noncompliance with speed limit a $50 fine and an assessment of three points against his driving record; (2) for the two counts of traveling the wrong way on a one-way street a $40 and $50 fine, respectively; (3) for driving with a suspended license a $250 fine and fifteen days' incarceration; (4) for driving without no-fault insurance a $3,000 fine, a one-year license suspension, and ten days' incarceration, to be served consecutively; and (5) for each offense, a $5 assessment to the State Driver Education program. Execution of Defendant's sentence was stayed for thirty days, however, pending perfection of an appeal by Defendant.
On July 22, 1992, during the continuance period, Sanders filed a written motion for a new trial, asserting as grounds therefor, the falsity of Officer Dansuka's trial testimony.[2] That same day, an order was filed terminating the appointment of the Public Defender's office in this case, for the reason that
[t]he Public Defender is unable to represent the Defendant because of a conflict of interest, TO WIT:
WHILE RESEARCHING THE NEW EVIDENCE FOR A MOTION FOR NEW TRIAL, DEFENSE ATTORNEY, [SANDERS] DISCOVERED THAT [ALONZO], THE PERSON THAT [DEFENDANT] IS ACCUSING OF BEING THE PERPETRATOR OF THE ABOVE-ENTITLED CRIMES IS A CLIENT OF THE OFFICE OF THE PUBLIC DEFENDER.
Record on Appeal (R.A.) at 13. Defendant's current counsel, Dennis Jung (Jung) was appointed by the same order and argued the motion for a new trial.
At the hearing on the motion, Jung made an offer of proof that he had three witnesses present in the courtroom Defendant, Alonzo, and Alonzo's girl friend who would testify that: (1) Alonzo was the driver of the car on the evening in question; (2) Alonzo was also represented by Sanders; (3) neither Defendant nor Alonzo had ever been asked to waive any conflict of interest generated by Sanders' representation of the two brothers; and (4) Alonzo had not been subpoenaed to appear at Defendant's trial. The trial court refused to allow Defendant to have these witnesses testify.
Jung then orally raised, for the first time, an additional substantive ground for a new trial, the claim of ineffective assistance of Defendant's trial counsel. Jung argued that a conflict of interest existed on the part of Defendant's trial counsel because she also represented Alonzo. Therefore, according to Jung, "the Public Defender's Office decided who was to take the rap for this charge by *1153 protecting one brother and convicting the other." Tr. 8/14/92 at 9. Jung also pointed out, and the court confirmed, that no subpoena had even been issued for Alonzo to appear at trial. The following colloquy then took place:
[JUNG]: Your Honor, in view of the record, that there was no subpoena to [Alonzo] by the Public Defender's Office, after they represented to the Court that they wanted a continuance to bring him in, we argue that that is evidence in the record to substantiate the conflict of interest.
I'm not arguing that the attorney of record is not a good attorney. I have every reason to believe that she's one of the best attorneys in the Public Defender's Office, but we're talking about one instance, Your Honor, where the Court has imposed a sentence that this gentleman has to go to jail and this gentleman has argued that he didn't do it and that the person who is guilty is the guy who's sitting in the back row.
All we're doing, Your Honor, is asking for an opportunity to have a trial where all the facts can be laid out.
THE COURT: Oh, you had a trial. And the date ... two times. One to get that brother here. We continued it for trial on a request to get that brother here. They all live on the same property. They were all here. Mother's here; girlfriend is here; he's here; brother, after one continuance to get him here is not here. I think the family should have a meeting.
[JUNG]: Your Honor, I think the Court would understand that [Alonzo] doesn't want to come to court because if he takes the stand and he testifies that he was the one who was driving the car, and he can't justify why he ran away from the police officer, that's subjection to penal liability.
Now, the thing is, it behooves the Public Defender's Office to force him to come to court. The problem is the Public Defender's Office doesn't want to force [Alonzo] to come to court and take penal responsibility because the Public Defender's Office represents [Alonzo] and they have a duty to keep him out of jail. So in a sense, even without knowing, just inadvertently, Your Honor, the Public Defender's Office sacrificed this gentleman to save that fellow in the back.
Your Honor, our argument is the Public Defender's Office no longer represents this gentleman sitting before the Court and we ask for an opportunity for a trial where there is no conflict of interest; where this person can bring in all the witnesses and even force his brother to come and testify and take responsibility.
* * * * * *
THE COURT: They've had every opportunity, within that family, on the trial date, .. [sic] one week, the trial before that they asked for a continuance to bring in this brother. On the day of trial the brother wasn't here and everybody else in the family was here. Now, if the family desires to play it that way, I don't think Counsel is responsible for an internal family scene which came to light during the trial and I listened to all and it got down to the great test in any trial credibility of the evidence!
Tr. 8/14/92 at 11-13.
After further argument, the trial court, without affording Defendant an evidentiary hearing regarding his claim of ineffective assistance of counsel, denied Defendant's motion for a new trial. This appeal followed.
DISCUSSION
A.
We address, first, the State's procedural argument that Defendant may not assert on appeal substantive grounds for a new trial which were not raised in his timely filed written motion for a new trial.[3]
*1154 In State v. Silva, 75 Haw. 419, 434-39, 864 P.2d 583, 591-93 (1993), the Hawai`i Supreme Court specifically held that claims of ineffective assistance of counsel could be raised, for the first time, on appeal. In State v. Reed, 77 Hawai`i 72, 881 P.2d 1218 (1994), the supreme court reaffirmed Silva, concluding that although the trial court lacked jurisdiction to hear defendant's untimely motion for a new trial on grounds of ineffective assistance of counsel, the issue could nevertheless be raised for the first time on appeal. Id. at 83, 881 P.2d at 1229.
Based on Silva and Reed, there is no merit to the State's argument.
B.
The federal and state constitutional right to counsel,[4] described by the Hawai`i Supreme Court as "one of the most fundamental rights guaranteed to an individual charged with crime," State v. Kane, 52 Haw. 484, 486, 479 P.2d 207, 208 (1971), requires that "effective aid" be afforded to a defendant in the preparation and trial of his case. Id. This right encompasses the "correlative right to representation that is free from conflicts of interest," Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220, 230 (1981), for as we stated in State v. Reis, 4 Haw.App. 327, 666 P.2d 612 (1983):
The Constitution assures a defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed. Such representation is lacking, however, if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents as a vigorous advocate having the single aim of acquittal by all means fair and honorable are hobbled or fettered or restrained by commitments to others.
Id. at 330, 666 P.2d at 615 (quoting Porter v. United States, 298 F.2d 461, 463 (5th Cir. 1962)).
When questions are raised as to whether a defendant has been provided with effective representation of counsel, procedural due process requires that the trial judge conduct an evidentiary hearing which establishes, on the record, the defendant's objections to assigned counsel. Kane, 52 Haw. at 487-88, 479 P.2d at 209. Such a hearing is essential if a proper determination is to be made regarding the effectiveness of defense counsel's assistance.
In this case, the trial judge did not provide Defendant with an evidentiary hearing to establish his claims of ineffective assistance of counsel. We are therefore unable to determine whether there is any merit to Defendant's claims and, accordingly, find it necessary to remand this case for an evidentiary hearing on Defendant's claims.
C.
In Reis, supra, this court discussed at length the impact of defense counsel's conflict of interests on the constitutional right to effective assistance of counsel. We pointed out that two situations generally give rise to claims of ineffective assistance of counsel: (1) joint representation of co-defendants, a situation not present in the instant case; and (2) dual representation, where an attorney represents or formerly represented a hostile party or a witness. Because dual representation does not present the same degree of risk as joint representation, we concluded that "the defendant must show either a real conflict of interest or a specific instance of prejudice" before the right of effective assistance of counsel will be deemed denied. Id. at 330, 666 P.2d at 616.
Elaborating on the conflicts posed by dual representation, we stated:
*1155 The issue of dual representation is further broken down into concurrent and prior representation. Concurrent representation involves ongoing representation by the defendant's attorney of a prosecution witness or hostile party, while prior representation involves only a previous representation of the witness or hostile party.
Concurrent representation of the defendant and an adverse witness or a hostile party places the attorney in a situation where he is forced to balance the zeal of his defense of the accused against any solicitude for his client, the witness or hostile party. This situation is deemed inherently conducive to divided loyalties and, therefore, as a matter of law, a real conflict of interest is said to exist. If the defendant has not acquiesced in a representation involving a real or actual conflict, a mistrial or a new trial will be ordered depending on whether a verdict has been rendered.
Where the conflict of interest is based upon defense counsel's prior representation of a witness or hostile party, the courts have examined two factors relating to effective cross-examination in determining whether the attorney's undivided loyalties reside with his current client. The first involves the attorney's pecuniary interest in possible future business from the witness which causes the attorney to avoid vigorous cross-examination that may be embarrassing or offensive to the witness. The second involves the failure to use privileged information obtained from the witness for impeachment purposes or for thorough cross-examination because of the attorney's fear of misusing confidential information. Both factors should be closely examined by the courts in order to determine where the attorney's loyalty lies.
Id. at 330-32, 666 P.2d at 616 (citations omitted).
In the instant case, no evidentiary hearing was held regarding the nature of Sanders' alleged conflict of interest. We are therefore unable to discern whether the conflict involves prior or concurrent representation. It is also unclear whether Sanders herself represented both brothers or whether another deputy public defender represented Alonzo.[5]
Clearly under Reis, if Sanders concurrently represented both brothers, such representation would be deemed inherently conducive to divided loyalties, thus requiring a new trial. On the other hand, if Sanders had represented Alonzo in a prior trial, no new trial would be mandated unless, upon examination, it was determined that Sanders did not demonstrate undivided loyalty to Defendant in the instant case.
D.
A different situation would be presented if a deputy public defender other than Sanders concurrently represented Alonzo. Traditionally, if a private attorney is disqualified from representing a criminal defendant because of a conflict of interest, such conflict serves to disqualify the entire firm with which the attorney is associated. See Hawai`i Code of Professional Responsibility (HCPR), Disciplinary Rule (DR) 5-105,[6] which was in effect at the time of Defendant's trial, and Hawai`i Rules of Professional Conduct (HRPC), Rule 1.10,[7] which took effect *1156 on December 6, 1993 and replaced the comparable DR 5-105. However, courts, recognizing the unique status of government attorney offices, often decline to apply this "private firm" principle to government offices.
In State v. Klattenhoff, 71 Haw. 598, 801 P.2d 548 (1990), for example, the Hawai`i Supreme Court recognized that because the Hawai`i attorney general is, by statute, the attorney for government employees as well as the attorney for the State in criminal matters, the attorney general may represent a State employee in civil matters while investigating and prosecuting him in criminal matters, so long as the staff of the attorney general can be assigned in such a manner as to afford independent legal counsel and representation in the civil matter, and so long as such representation does not result in prejudice in the criminal matter. Id. at 605, 801 P.2d at 552.
In a similar vein, the United States District Court for Hawai`i held, in United States v. Judge, 625 F. Supp. 901 (D.Haw.1986), aff'd, 855 F.2d 863 (9th Cir.1988), that it was unnecessary to disqualify the entire office of the federal public defender from representing a defendant in a criminal prosecution just because the office had formerly represented a client who would be a key prosecution witness against the defendant. The court noted that the federal defender had taken adequate measures to screen office attorneys with confidential information from involvement in the criminal case.
In Graves v. State, 94 Md.App. 649, 619 A.2d 123 (1993), the Court of Special Appeals of Maryland surveyed the case law around the country regarding the issue of whether, for conflict of interest purposes, the public defender's office is held to the same standards as a private law firm. The court noted that in some jurisdictions, a public defender's office is treated, per se, like a private law firm for conflict of interest purposes, so that disqualification of one deputy public defender is imputed to the entire office. However, in other jurisdictions, which the Maryland court chose to follow, a conflict on the part of one member of the public defender's office does not extend per se to others in the office unless, after a case-by-case inquiry, it is determined that facts peculiar to a case preclude representation of competing interests by members of the office. Id. at 664-68, 619 A.2d at 130-32.
The Graves court noted that under the case-by-case approach, if attorneys employed by a public defender are required to "practice their profession side by side, literally and figuratively," they are considered members of a "firm" for purposes of conflict of interest analysis regarding representation of multiple defendants, but where the practice of the attorneys in the office is so separated that the interchange of confidential information can be avoided or where it is possible to create such separation, the office is not equated with a firm and no inherent ethical bar would be present to the office's representation of antagonistic interests. Id. at 669-70, 619 A.2d at 133.
We agree that the case-by-case approach should be used to analyze whether a defendant represented by a deputy public defender was denied his or her right to effective assistance of counsel because of a prejudicial conflict of interest on the part of his or her attorney. Under this approach a trial court is required to conduct an evidentiary hearing to:
1. determine whether attorneys employed by the same public defender's office can be considered the same as private attorneys associated in the same law firm;
2. weigh factors relating to the protection of confidential information by considering whether there are separate offices, facilities and personnel; and
3. determine whether, as a consequence of having access to confidential information, [a deputy] public defender refrained from effectively representing a defendant.
Id. at 671, 619 A.2d at 134. Since no such hearing was conducted in this case, the record *1157 on appeal precludes us from evaluating Defendant's claim of ineffective assistance of counsel.
CONCLUSION
Based on the foregoing discussion, we vacate the order denying Defendant's motion for a new trial and remand this case for an evidentiary hearing[8] to determine whether a conflict of interest actually existed when Sanders represented Defendant and, if so, whether the conflict prejudiced Defendant's right to effective assistance of counsel at trial. If the trial court determines that a conflict existed and that the conflict prejudiced Defendant's right to effective assistance of counsel, it shall vacate the judgment of Defendant's conviction and award Defendant a new trial. If the court determines that no prejudicial conflict existed, the court shall enter its order denying Defendant's motion for a new trial.
NOTES
[1] In moving for the continuance, Sanders represented to the trial court that Defendant "has one witness who is not here today of the three that we would be calling...." Transcript (Tr.) 6/19/92 at 2. The trial court asked Sanders the name of the witness, and Sanders replied that "[t]here are two witnesses for the Defense for the alibi witness: Desiree Leong and Pauline Molia." Id. at 3. The trial court "reluctantly grant[ed]" Defendant's motion for continuance, because "one of the defendant's witnesses was not present." Id. Although the identity of the third witness is unclear from this part of the record, the trial court was apparently aware that the witness was Alonzo Pitt (Alonzo), Defendant's brother. In denying Defendant's motion for a new trial based on an offer of proof that Alonzo would admit to the conduct charged, the trial court noted that "[w]e continued it for trial on a request to get that brother here." Tr. 8/14/92 at 12.
[2] In the memorandum in support of this motion, Sanders asserted that Officer Dansuka's testimony was false because Defendant had only received one other ticket in the Kailua District, which may not have been given by Officer Dansuka, and that all of Defendant's other citations were given outside of the Kailua District. This was offered to prove the falsity of Officer Dansuka's testimony that she had assisted other police officers giving Defendant traffic tickets, since Officer Dansuka had been assigned to Kailua for five years. However, Officer Dansuka never testified that she had cited Defendant herself, just that she had seen Defendant "numerous times in the Kailua [police] station[,]" and "around the Kailua area." Tr. 7/17/92 at 19-20, 29.
[3] Hawai`i Rules of Penal Procedure Rule 33 requires that a motion for new trial "be made within 10 days after verdict or finding of guilty or within such time as the court may fix during the 10-day period." In this case, the trial court rendered its guilty verdict on July 17, 1992. Defendant's written motion for new trial, while filed timely, alleged only the falsity of Officer Dansuka's testimony, as grounds for a new trial. It was only at the hearing on the motion on August 14, 1992 that the ineffective assistance of counsel claim was raised. Accordingly, the State argues that this court has no jurisdiction to hear the claim.
[4] The Sixth Amendment of the United States Constitution provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." A similar right is guaranteed to criminal defendants by virtue of article I, section 14 of the Hawai`i Constitution, which provides partly that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for the accused's defense."
[5] Although Defendant, in his offer of proof, claimed that both he and Alonzo were represented by Sanders, the trial court's order terminating the appointment of the Public Defender's office indicated only that Alonzo was a client of the office.
[6] Hawai`i Code of Professional Responsibility Disciplinary Rule 5-105 provides in relevant part:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment ...
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client ...
* * * * * *
(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.
[7] Hawai`i Rules of Professional Conduct, Rule 1.10(a) provides in relevant part that in the absence of a waiver by a client:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2.
[8] Because the public defender's office no longer represents Defendant and our holding sets forth a test for determining when a conflict of interest exists in that office, it may be prudent for the trial court to invite that office to submit a brief on the conflict issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900526/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)
CESAR LARA,)
No. 08-02-00243-CR
)
Appellant,)
Appeal from
)
v.)
384th District Court
)
THE STATE OF TEXAS,)
of El Paso County, Texas
)
Appellee.)
(TC# 20020D00227)
O P I N I O N
Cesar Lara was charged with the murder of Robert Alba which occurred on November 2,
1995. Appellant's whereabouts were unknown until March 26, 2001. A jury found him guilty of
second degree murder and assessed punishment at twenty years in the Institutional Division of the
Texas Department of Criminal Justice and a fine of $5,000. On appeal, he challenges the sufficiency
of the evidence. We affirm.
FACTUAL SUMMARY
Due to the sufficiency challenge, we shall endeavor to provide a detailed factual background.
In November 1995, Robert "Bobby" Alba worked as a door man at a downtown El Paso gay bar
known as the Old Plantation or the "OP." Appellant worked at the Cliff Bar, also a gay bar, which
was right around the corner. Since Appellant usually rode his bike to work, he often noticed Alba
working the door when he rode by the OP, but they had never met.
Francisco Mendoza was a bartender at the Briar Patch, another downtown gay bar. He saw
both Alba and Appellant in the Briar Patch on the night of November 1, 1995. Alba usually came
into the bar every Wednesday night for a pool tournament. Mendoza testified that Appellant was
looking for someone to take home with him. He solicited Mendoza, who told Appellant that he had
a boyfriend. Mendoza spoke with Alba throughout the evening and Alba eventually expressed an
interest in Appellant. Mendoza saw the two of them talking around 1 a.m. Appellant was still in
the bar around 2 a.m., but he went outside before the bar quit serving. Alba remained in the bar until
he was finally asked to leave around 2:15 a.m. At trial, Mendoza identified Appellant from a photo
lineup. He also identified Appellant as Alba's companion in a security videotape recorded at a
westside Denny's Restaurant later that evening. Mendoza testified that Appellant was wearing the
same clothes in the video that he had worn to the Briar Patch that night.
Michael Newark worked with Alba at the OP. He was at Denny's in the early morning hours
of November 2 and saw Alba arrive sometime between 4:30 a.m. and 5 a.m. Alba was accompanied
by another man whom he did not recognize. Newark was able to give a physical description of the
other man's appearance and clothing. Alba and his companion ordered take out food and were only
in the restaurant for about twenty minutes, leaving sometime between 5 a.m. and 5:30 a.m. Newark
saw them drive away together in Alba's red Fierro. Although Newark was unable to recognize
Alba's companion from a photo lineup, he identified Appellant at trial.
Katherine Dirriel worked as a bartender at the U Got It Club. She testified that on
November 2, she got off work at around 2:30 or 2:45 a.m. and drove a co-worker home. Her co-worker was a roommate of Alba's next door neighbor. While Dirriel was stopped at the corner of
Rio Grande and Oregon, she saw Alba pull up to the intersection in his red Fierro. She saw a second
car directly behind Alba, following so closely the cars were almost bumper to bumper. She did not
recognize the car or the person driving, but she described the driver as an Hispanic male in his late
twenties or early thirties, with straight black hair to his shoulders and wearing a baseball cap.
Melissa Nicholson-Messer lived next door to Alba at the Diplomat Apartments and worked
with him at the OP. During the early morning hours of November 2, she arrived home after a late
night of partying around 1 a.m. and went to sleep around 2:30 or 3 a.m. She awoke around 6 a.m.
after hearing loud noises coming from Alba's apartment. She described the noise as a loud thump
which sounded like it came from Alba's living room. She heard several more thumps and after each
one, she heard a moan. Thinking Alba was involved in sexual relations, she turned on the radio to
block out the noise and went back to sleep. She did not notice anything unusual when she left her
apartment around 10 a.m. the next morning. When she returned home around 11:30 a.m., she
noticed the police at Alba's apartment. She told the officers about the noises she had heard and that
when she left her apartment that morning, she thought Alba's curtains were closed. She was unable
to recall whether his front door was closed. Alba had only lived next door to her for about four
months; Rudy Ortiz was his roommate at the time.
Rodolfo "Rudy" Ortiz also worked at the Briar Patch. He had lived with Alba in the two
bedroom apartment for about a month or two prior to the murder. Ortiz and his partner, Manuel
Flores, left for Flores's home in Chaparral, New Mexico on the morning of Tuesday, October 31.
Ortiz returned to the apartment around 1 p.m. the next day to pick up a change of clothes and pay
the rent, but he did not see Alba. Ortiz then went back to Chaparral and spent Tuesday and
Wednesday nights at Flores's parents' home.
Ortiz and Flores went back to the apartment around 11:45 a.m. on November 2, so that Ortiz
could change clothes before going to work. As they approached, they noticed that the front door was
slightly open. Ortiz suggested to Flores that he not go inside since Alba had been upset that Flores
and Ortiz were spending so much time together. Ortiz was surprised the door was open because
Alba usually worked at night and slept during the day. Ortiz looked inside and saw Alba lying on
the floor in a pool of blood. Realizing Alba was dead, Ortiz ran screaming towards Flores. The two
of them looked around the apartment to see whether anyone else was present, but they tried not to
disturb anything. They covered the body with a blanket.
Manuel Flores testified that he knew Alba because he frequented the OP. On occasion, he
would go over to Alba's apartment with Ortiz after the bar closed. Ortiz was his partner at the time.
His statements concerning his activities and whereabouts in the days before the murder tracked
Ortiz's story. Flores confirmed that he went to the apartment on November 2 around 11:30 a.m. so
Ortiz could get dressed for work. As they approached the apartment, they noticed that the front door
was ajar and Flores decided to return to the car. He heard Ortiz scream and saw him run out of the
apartment. When he entered the apartment with Ortiz, Alba was lying on the floor in a pool of
blood. After realizing that Alba was dead, they called the police. They approached the body, but
he could not remember if they ever stepped in the blood around the body. Flores told the police that
he saw a broken chair on its side near the body.
Donald Marron of the El Paso Fire Department testified that he and two other firemen were
dispatched to the Diplomat Apartments on November 2, 1995 around 11:30 a.m. When they arrived,
a man was standing in the doorway of Alba's apartment. Marron would not allow anyone to go
inside except to assess the victim. They found Alba lying on the floor in a pool of blood. Believing
foul play was involved, Marron immediately called the police. Sergeant Raymond Chaires of the
El Paso Police Department was the first officer on the scene. He secured the area and ensured no
one entered the apartment.
Thomas Garcia was an El Paso police officer assigned to the criminalistics division. It was
his task to collect evidence from the crime scene and document it. Garcia collected some finger
nails, pubic hair, and scalp hair samples from the deceased. Garcia also attended the autopsy on
November 3 and collected two vials of blood.
Stephen Martinez was a police officer in the latent fingerprints division. Bloody footprints
were found around the body. Blood was also found on the chair near the body. He took photographs
and dusted for fingerprints. Fingerprints were lifted from a Budweiser beer can and a glass.
Martinez also took hair samples and blood samples from Ortiz.
Joe Hernandez was an officer with the El Paso Police Department who worked in the
criminalistics unit. He took fingerprints and hair samples from Alba's car. He collected hair
samples found in the bathroom and in Alba's bedroom. He collected items on a table next to Alba's
bed, including cigarette butts in the ashtray, a used condom, and a Budweiser beer can. And he
collected blood samples which were found around the body. He lifted three bloody shoe prints from
the floor next to Alba's body.
Guillermo Martinez was a detective with the El Paso Police Department. He went to
Denny's to investigate because he had information that Alba had been there prior to his death.
Martinez obtained the surveillance video from the store's manager.
Christine Ceniceros was a criminalist employed in the DNA section of the Texas Department
of Public Safety. She was accepted as a DNA expert by the court. She and Vanessa Nelson, also
a DNA analyst, analyzed the blood samples of Appellant, Alba, and Ortiz. Ceniceros also analyzed
the cigarette butts that were found at the crime scene. The DNA profile on several of the butts was
consistent with Appellant's DNA profile. She was only able to detect the DNA of Alba on the used
condom. Ortiz's hair was tested and compared with that found in the bathroom and in Alba's bed.
Appellant's hair was never tested.
Bruce Orndorf was a senior latent fingerprint expert for the El Paso Police Department. He
was accepted as an expert fingerprint analyst by the trial court. He took fingerprints of Ortiz and
Alba. He explained that it would be difficult to take prints from the chair because it had porous
surface that basically absorbed the prints. He unsuccessfully attempted to take prints from Alba's
body. Shoe prints and footprints were not compared.
Appellant's fingerprints were not obtained until he was arrested in March 2001. His
fingerprints matched those found on Alba's car and on the Budweiser can. Ortiz's print was also
lifted from the Budweiser can.
Dr. Juan Contin was the medical examiner for El Paso County who conducted the autopsy.
Alba had lacerations to the head, bruising to the right hand, and bruises to the facial area caused by
blunt force blow to the head. Buccal and rectal smears were taken to determine the presence of
semen but both test results were negative. Alba had a blood alcohol level of 0.069. A considerable
amount of food was found in Alba's stomach and Dr. Contin surmised that he had eaten less than
two hours before he died. Dr. Contin determined that the cause of death was asphyxia due to
compression of the neck. There were no fingerprints around the neck area. He determined that
Alba's injuries were consistent with his being strangled by an arm or by placing an object over his
neck, such as a chair.
Rosa Ramirez was the mother of Ruth Ramirez, Appellant's common-law wife. Appellant
lived with Ruth at her mother's house and had a sexual relationship with Ruth which produced a
child. On November 3, 1995, Rosa was celebrating her birthday at home. Detectives came to her
house looking for Appellant but he was not there. A few days later, Rosa and Ruth went to Juarez,
Mexico to see Appellant. Rosa asked Appellant why the police were looking for him and asking
questions. Appellant told Rosa that a man was going to take him to his apartment because he was
going to give him something to eat. The man was supposed to give Appellant a ride home
afterwards. When the man later tried to hug and kiss him, Appellant became angry, grabbed the man
around the neck until he fell to the ground, and then hit him with a chair. Appellant told Rosa that
he put his arm around the man's neck in a forceful manner so as to choke him. Appellant never
described the man or provided a name to her. Rosa described Appellant as laughing while he told
the story. Rosa did not give a statement to the police until March 2001 because of her daughter and
granddaughter.
Ruth Ramirez testified on behalf of Appellant and acknowledged she was his wife. She
denied having a conversation with her mother and Appellant in Juarez in which he discussed details
of the incident. She admitted they went to Juarez a few days after the murder, but said that she never
saw or spoke with Appellant. She told the police that she had not seen Appellant since he was
indicted on November 7, 1995. On cross-examination, Ruth admitted that she tried to keep her
mother from testifying because "[s]he gets sick when she's under a lot of pressure." Ruth testified
that she would not lie for Appellant.
Several attempts were made to locate Appellant between 1995 and 2001. Officers knew that
Appellant had family in Juarez and believed he had crossed the border. An arrest warrant was issued
in March 2001 soon after Rosa gave her statement to the police. Appellant was picked up the next
day near the El Paso airport.
Arturo Perez was a detective with the El Paso Police Department. On March 26, 2001, he
interviewed Appellant and took his statement. We quote here excerpts of the statement:
When I was 15 years old, I met and moved in with a girlfriend named Nora Hilda
Morales. We lived about 5 years together and had three children. I then met another
girl by the name of Ruth Ramirez who I dated off and on and had a little girl.
. . .
About 4 or 5 years back, I used to work at the Cliff bar located on Paisano Street.
The bar is a gay bar. It's right around the corner from the OP, another gay bar. Back
then, I was living on Yandell street and I would take my bike to work. On my way
to work, I would pass by the OP. Every time I would pass by the OP, the door was
open and I would see an old man working at the door collecting the money. Since
I used to hang around the Sunset area, one day I saw the door man from the OP
driving up to an apartment on Yandell Street. I did not speak with him I just thought
that is where he lived.
One night about 6 years ago, I can't remember if it was on a Friday or Saturday at
about 12 or 1 am, I was going home from the Sunset area when I passed by a gay bar
that is on Rio Grande and Mesa. I noticed a lot of people leaving as they were
closing. I saw the doorman from the OP come out and I noticed he was drunk. I
asked him if he could lend me five dollars and that I would pay him back. The man
recognized me from where I worked as he used to go to the Cliff's bar. He told me
he was on his way to eat and asked if I wanted to go with him. I told him yes so I
locked my bike to a pole and got into his red Fierro that was parked across the street
from the bar. He drove up Mesa and went to the Denny's. We walked inside the
Denny's and he ordered food to go for both of us. I picked up the food and we got
back into his car. He drove down Mesa and I told him to stop at the corner and he
stopped at a gas station and I got off. I got my food and ate it on the way to pick up
my bike. I then got my bike and went home. About two months after this night, I
was told by friends that I was being accused of killing the man from the OP. I never
hurt the man; the last time I saw him was that night. I never knew his name, I just
knew he worked at the OP.
Appellant denied ever being in Alba's apartment.
Detective Perez testified the officers had gone to the apartment on November 2, 1995, to
investigate the crime scene. They knew that Ortiz and Flores had gone into the apartment after
finding Alba's body. The outlines of their footprints were checked to see if either one matched the
bloody footprints next to the body. Neither of the prints matched. Flores and Ortiz were eliminated
as suspects after the police department developed information that Appellant was seen with Alba at
the Briar Patch Bar and later at Denny's. The officers also had the security video from Denny's
which depicted Appellant with Alba, wearing the same clothes which he had worn to the bar earlier
that night. Appellant was further identified as the primary suspect after latent prints were found on
the Budweiser can discovered in Alba's bedroom and also on the passenger side door in Alba's red
Fierro. Perez admitted that they never went to Chaparral to question Flores's parents and that they
never interviewed Alba's former roommate. He also admitted that they did not take any
measurements of the bloody shoe prints but just looked to see if blood was present on the bottom of
the shoes worn by either Ortiz or Flores.
SUFFICIENCY OF THE EVIDENCE
In Points of Error One and Two, Appellant challenges the legal and factual sufficiency of the
evidence to support the conviction against him for the offense of murder. In reviewing the legal
sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both
State and defense, in the light most favorable to the verdict to determine whether any rational trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State,
820 S.W.2d 154, 159 (Tex.Crim.App. 1991). We must evaluate all of the evidence in the record,
whether admissible or inadmissible. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999);
Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We do not resolve any conflict of
fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See
Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839,
843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit
findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most
favorable to the verdict. Adelman, 828 S.W.2d at 422. Any inconsistencies in the evidence are
resolved in favor of the verdict. Matson, 819 S.W.2d at 843. The standard of review is the same for
both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.
When conducting a factual sufficiency review, we consider all of the evidence, both
admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis
v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295
(Tex.App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove
the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove
that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642,
647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A
defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak
as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary
evidence, he may argue that the finding of guilt is against the great weight and preponderance of the
evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's
determination under either of these two circumstances, our review must employ appropriate
deference and should not intrude upon the fact finder's role as the sole judge of the weight and
credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free
to reweigh the evidence and set aside a verdict merely because we feel that a different result is more
reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.
Elements of Murder
A person commits the offense of murder if he intentionally or knowingly causes the death
of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to
human life that causes the death of an individual. Tex.Pen.Code Ann. § 19.02 (b)(Vernon 2003).
Murder in the first degree may be reduced if the person commits murder in sudden passion, that is,
the murder was directly caused by and arising from provocation by the individual killed.
Tex.Pen.Code Ann. § 19.02 (a). If, as here, the defendant proves the issue by a preponderance of
the evidence, the offense is a felony of the second degree. Tex.Pen.Code Ann. § 19.02 (c)(d).
The Evidence
Police initially had several suspects but finally focused on Appellant. Mendoza had spoken
with both Alba and Appellant at the Briar Patch bar and later saw them talking together. Dirriel saw
a car that appeared to be following closely behind Alba's Fierro, just a block or two from his
apartment between 2:30 or 2:45 a.m. Newark saw Alba at Denny's with another man--which the
videotape suggests was Appellant--between 4:30 a.m. and 5 a.m. Melissa Nicholson-Messer heard
thumping sounds and moans during the early morning hours coming from Alba's living room. The
medical examiner reported that Alba had lacerations to the head, bruising to the right hand, and
bruises to the facial area caused by a blow to the head by a blunt object. The bone covering the
larynx and the hyoid bone in Alba's neck were both fractured. The cause of death was asphyxia due
to compression of the neck. Because there were no fingerprints around the neck area, the coroner
concluded that Alba had been manually strangled by an arm or some other object applied to the neck,
such as a chair.
The police found Appellant's fingerprints in Alba's car and on the Budweiser can found in
Alba's apartment. DNA samples taken from the cigarette butts in the apartment matched Appellant's
profile. The day after Alba's body was found, police detectives went to the home of Rosa Ramirez
to determine Appellant's location, but she provided no useful information. Officers believed
Appellant fled to Mexico within days of the murder. It was not until Rosa Ramirez implicated
Appellant in March 2001 that the arrest warrant was issued.
Appellant argues that there was no direct evidence connecting him to the murder. He
contends that while his fingerprints were found in Alba's car, this only proves he was a passenger.
Although his thumb print was found on a Budweiser can in Alba's bedroom, Ortiz's thumb print was
found on the same can. The fact that his DNA was found on a cigarette butt in Alba's bedroom,
shows only that he was in the apartment. In short, he claims that all of the evidence proves only that
he was with Alba on the night he was killed--which he admitted in his statements to police--but does
not prove that he killed Alba.
We believe the evidence suggests far more. Appellant admitted to leaving the bar with Alba
on the night of the murder. He admitted going with Alba to Denny's. Significantly, he told officers
that Alba dropped him off on Mesa Street; he specifically denied ever going to Alba's apartment.
Yet DNA test results on the cigarette butts confirmed that Appellant had in fact been in the
apartment. His fingerprints were also on the beer can in Alba's bedroom.
Moreover, evidence of flight and guilty demeanor, coupled with other corroborating
circumstances, may also tend to connect a defendant with the crime. Burks v. State, 876 S.W.2d 877,
888 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1114, 115 S. Ct. 909, 130 L. Ed. 2d 791 (1995); see
also Passmore v. State, 617 S.W.2d 682, 685 (Tex.Crim.App. 1981). We conclude there is ample
evidence to support the conviction. We reject Appellant's sufficiency complaints, overrule Points
of Error One and Two, and affirm the judgment of the trial court.
October 23, 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/1673614/ | 33 S.W.3d 70 (2000)
Ricardo SALDANA, Appellant,
v.
The STATE of Texas, Appellee.
No. 13-99-234-CR.
Court of Appeals of Texas, Corpus Christi.
October 19, 2000.
Rehearing Overruled December 14, 2000.
Kenneth Smith, Ricardo Saldana, Houston, for Appellant.
*71 John Holmes, Jr., Calvin Hartmann, Kelly Smith, Houston, for the State.
Before Justices DORSEY, RODRIGUEZ, and KENNEDY.[1]
OPINION
Opinion by Justice NOAH KENNEDY (Assigned).
This appeal first came to this court based upon an Anders brief.[2] Subsequently, appellant filed a pro se motion for extension of time to file a brief which was granted. After some time elapsed during which no brief was filed, this court entered an order abating the appeal and ordering the trial court to conduct a hearing to determine whether appellant desired to prosecute his appeal, whether he was indigent, and to make appropriate findings and recommendations in accordance with Texas Rule of Appellate Procedure 38.8(b)(2).
A hearing was held at which Mr. Kenneth W. Smith was appointed to represent appellant on appeal. Mr. Smith filed a brief on April 17, 2000 to which the state filed a reply brief on July 17, 2000. Mr. Smith has filed a reply brief to the state's brief on August 15, 2000.
Appellant was charged with aggravated sexual assault of a child. He pleaded guilty to the indictment without the benefit of a punishment recommendation from the state. His adjudication of guilt was deferred and he was placed on probation for ten years. Subsequently, the trial court found that he had violated the terms of his probation, adjudicated his guilt, and assessed punishment at confinement for ten years.
The current posture of this appeal is that appellant has presented three issues to this court. Issue one is that appellant's original plea is invalid due to a violation of the ex post facto clause of the United States Constitution. In summary, his complaint is that after he pleaded guilty originally, the state passed the Sex Offender Registration Program Act which requires a person convicted of a sex offense to register with local law enforcement authority in a municipality in which he intends to reside for more than seven days. Tex.Code.Crim.Proc.Ann. art. 62.02(a) (Vernon Supp.2000). Appellant's second issue is a companion to his first, i.e., appellant was not properly admonished as to the consequences of his plea, that he would have to register under the Sex Offender Registration Program Act.
The state's reply to the first two issues is that they are waived as not having been raised on appeal from the deferred adjudication. The state cites Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim.App.1999). Appellant argues in reply that these issues are grounded in events which did not transpire (exist) until after the time to appeal the deferred adjudication order had expired.
With all due respect to Manuel, we are at a loss to know how appellant could have appealed something no one knew about at the time of the deferred adjudication. We address the first two issues from the standpoint of whether the enactment of the Sex Offender Registration Program violates the ex post facto provision of the U.S. Constitution. We think not.
We adopt the reasoning in the state's brief that the Sex Offender Registration Program does not constitute "punishment" for appellant's past crimes. Because the registration requirement is remedial in nature, i.e., a statute enacted for the advancement of the public welfare or conducive to the public good, it does not impose "punishment" for constitutional purposes and thus is not susceptible to *72 a claim that the statute violates ex post facto principles. We hold that enactment of new penal laws which appellant has not yet violated, and might not ever violate, does not constitute the enactment of ex post facto laws. We deny the relief sought in issues one and two.
Issue three raises the question of ineffective assistance of counsel at a critical stage of the proceedings. Appellant points out that the revocation occurred on February 16, 1999 and that appellant filed his pro se notice of appeal on March 15, 1999. The result is that appellant was without counsel from his sentence date to the time present counsel was appointed. What occurred thereafter has been recited in the opening paragraphs of this opinion.
Ineffective assistance of counsel is governed by the well settled two-prong rule set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) to be (in summary) (1) did counsel's representation fall below an objective standard of reasonableness, and (2) if so, is there a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986).
We do not consider it necessary to pass on the performance of appellant's first counsel. The issue fails the second prong of the Strickland test. This appeal has proceeded in a normal fashion. Deference has been shown to counsel at every stage of this appeal. Appellant was allowed to file an out-of-time motion for extension of time to file a pro se brief. He was appointed new counsel to appeal his conviction and this counsel filed both a brief (49 pages) and a reply to the state's reply brief. We hold that not having counsel between appellant's conviction and the perfecting of this appeal has not harmed appellant and that the result would not have been different if he had had counsel during the period cited. We deny the relief requested in appellant's third issue and AFFIRM the judgment of the trial court.
NOTES
[1] Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov't Code Ann. § 74.003 (Vernon 1998).
[2] Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876930/ | 188 So. 2d 315 (1966)
STORZ BROADCASTING CO.
v.
COURTNEY.
No. 34814.
Supreme Court of Florida.
March 1966.
Certiorari denied without opinion. 178 So. 2d 40. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/72586/ | [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 95-8672
D. C. Docket No. 92-CV-230-3-MAC(WDO)
MARK LEE THORNTON, TOMMY CRAVEY,
Plaintiffs-Appellees,
versus
THE CITY OF MACON, a Municipal Corporation,
Defendant,
D. COLEMAN, J. LODGE,
Defendants-Appellants,
STANLEY HUNNICUTT,
Defendant,
ZIVA BEDDINGFIELD,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Georgia
(January 13, 1998)
Before HATCHETT, Chief Judge, and TJOFLAT, Circuit Judge, and
GODBOLD, Senior Circuit Judge.
PER CURIAM:
This case arises out of the arrests of Mark Thornton and
Tommy Cravey by City of Macon police officers Stanley Hunnicutt,
Desmond Coleman, Jhristian Lodge, and Ziva Beddingfield.
Thornton and Cravey filed a complaint in the district court under
42 U.S.C. § 1983 (1994) alleging that, in accordance with the
custom, practice, or policy of the City of Macon, the four police
officers violated their rights under the Fourth and Fourteenth
Amendments by arresting them without probable cause and by using
excessive force to carry out those arrests. The complaint sought
compensatory and punitive damages against each defendant.1 The
1
The complaint, a quintessential shotgun pleading, see, e.g.,
Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir. 1997);
Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 164
(11th Cir. 1997), was framed in two counts. Count One contained
a variety of federal constitutional claims under the First,
Fourth, and Fourteenth Amendments and, according to the
plaintiffs’ brief in opposition to the police officers’ motion
for summary judgment, the Fifth Amendment as well. Count One
alleged that, in addition to the conduct described in the text,
the following conduct on the part of the police officers violated
the aforementioned constitutional provisions: (1) the entry and
search of Thornton’s residence without a search warrant, (2) the
malicious prosecution of Thornton and Cravey, and (3) “unlawful
trespass under color of state law.” Although the plaintiffs
contend that the defendants infringed their First Amendment
rights, the complaint gives no hint as to which First Amendment
rights were implicated or how the officers’ or the City’s conduct
may have infringed such rights. Count Two combined two pendent
tort claims against the officers and the City: one for false
arrest and one for malicious prosecution. Although the
allegations underpinning the false arrest claim are apparent,
neither the complaint nor Count Two indicates what the
officers or the City did to render them liable for the tort of
malicious prosecution. (Because Count Two incorporated all of
the preceding allegations of the complaint, including those of
Count One, Count Two appears to have alleged that the City was
1
four police officers jointly moved the district court for summary
judgment on Thornton's and Cravey's claims on the ground that
they were entitled to qualified immunity. The district court
denied the motion with respect to officers Coleman, Lodge, and
Beddingfield, but did not rule on the motion with respect to
officer Hunnicutt.2 Coleman, Lodge and Beddingfield then
liable because the officers’ conduct was pursuant to City custom,
practice, or policy.)
2
The record is puzzling with respect to the plaintiffs’ case
against Officer Hunnicutt. The district court’s docket contains
a “Minute Sheet” for a pretrial conference that was held by the
district judge presiding over the case on November 4, 1993. That
sheet bears the following entry: “Officer Hunnicutt is dismissed
from the case.” The record contains no further mention of
Hunnicutt until March 1, 1995. On that date, the police
officers, including Hunnicutt, filed “Defendants’ Motion for
Summary Judgment,” which asserted that the officers were entitled
to summary judgment on their defense of qualified immunity. That
defense, which appears as the fourth affirmative defense in the
officers’ answer to the plaintiffs’ complaint, asserts that “at
all times during the incidents referred to in the Plaintiffs’
Complaint, [the officers] were acting as sworn police officers
for the City of Macon . . . and as such have qualified immunity
from civil liability. . . .” That is, the officers alleged that
they were immune from suit on all of the constitutional claims
presented in Count One of the complaint, see supra note 1. The
court, however, in its order disposing of the qualified immunity
issue, only addressed the plaintiffs’ Fourth and Fourteenth
Amendment claims of false arrest and excessive force, as
indicated in the text. In this appeal, Officers Coleman, Lodge,
and Beddingfield do not complain of the court’s failure to
consider whether they are entitled to qualified immunity on the
plaintiffs’ First and Fifth Amendment Count One claims --
whatever they are -- or their claims for malicious prosecution.
They similarly do not contest the court's failure to consider
whether they are immune from suit on Thornton’s claims for
“unlawful tresspass under color of law” and entry and search of
residence without a search warrant. Officer Hunnicutt did not
appeal the district court’s failure to rule on the question
whether he had qualified immunity with respect to any of the
plaintiffs’ claims. Whether Hunnicutt is still in the case and,
if so, to what extent he is entitled to qualified
immunity is a matter the district court must address in due
2
appealed.3
We have jurisdiction to consider an interlocutory appeal of
an order denying a motion for summary judgment on qualified
immunity grounds. See Johnson v. Jones, 515 U.S. 304, 310-14, 115
S.Ct. 2151, 2155-56, 132 L.Ed.2d 238 (1995). We review such
orders de novo, and resolve all issues of material fact in favor
of the plaintiff. See Cottrell v. Caldwell, 85 F.3d 1480, 1486 &
n.3 (11th Cir. 1996). We then answer the legal question of
whether the defendants are entitled to qualified immunity under
that version of the facts. Id. Accordingly, in part I we state
the facts of the case in the light most favorable to Thornton and
Cravey. In part II, we explain why the officers are not entitled
to qualified immunity on that version of the facts, and therefore
were not entitled to summary judgment.
I.
Marjorie Mullis called the Macon city police department on
course.
3
In its order denying the defendants' motion for qualified
immunity on Thornton's illegal arrest claim, the district court
also granted Thornton's motion for summary judgment, holding that
the defendants had failed to present sufficient evidence to
create a material issue of fact on that claim. That disposition
could have been reduced to a final judgment appealable under 28
U.S.C. § 1291 had the court directed the entry of judgment
pursuant to Fed. R. Civ. P. 54(b). Because the court did not
enter a Rule 54(b) judgment on Thornton’s claim, we do not review
its grant of Thornton's motion for summary judgment. We
therefore review Thornton's illegal arrest claim only to
determine whether the officers are entitled to summary judgment
on the issue of qualified immunity.
3
June 5, 1990. She explained to the dispatcher that she wanted
the assistance of a police officer in resolving a dispute between
Thornton and herself. Mullis and Thornton had lived together in
Thornton’s apartment, but had parted ways over two years earlier.
Mullis explained that she had a set of keys to Thornton's car,
which car she used periodically, and that Thornton wanted her to
return those keys. She had told Thornton that if she had to
return the keys, then he would have to return a mattress that she
had left in his apartment. Mullis explained that she wanted an
officer to assist her in exchanging the keys for the mattress.
Officer Coleman was dispatched to Mullis' residence. Mullis
explained the situation to Coleman and asked him to take the keys
to Thornton. Coleman agreed to do so and proceeded to Thornton's
apartment, which was located across the street in the same block
as Mullis' apartment. When Coleman arrived, Thornton was
standing on the front porch of his apartment, which was on the
ground floor of the apartment house.4 Coleman explained to
Thornton that he was there to return the keys and to pick up
Mullis’ mattress. Thornton responded by telling Coleman that he
had done nothing wrong and that he wanted Coleman to leave the
premises. At some point during this initial exchange, Mullis
arrived on the scene. Thornton became upset and entered his
4
Thornton's apartment was in an old house that his father
owned. The two-story house had been converted into four
apartments, each of which had its own entrance to the outside:
there was no common entrance or lobby. Thornton's apartment was
on the first floor and, when facing the building, was on the left
hand side. Thornton managed the property for his father.
4
apartment, closing a screen door behind him. Once inside,
Thornton stood at the screen door and repeatedly told Coleman and
Mullis to leave.
Instead of leaving, Coleman called for backup. Less than a
minute later, Officers Lodge and Beddingfield arrived on the
scene. Coleman briefed them on the situation. Thornton repeated
his desire that the officers leave. The officers tried
unsuccessfully to get Thornton to come out on the porch and talk
to them. Finally, they told him that if he opened the screen
door, they would give him his car keys.
As Thornton opened the door to get the keys, the officers
charged into the apartment. One of the officers grabbed
Thornton's arms, and another grabbed Thornton around the neck.
The officers threw Thornton to the floor, cuffed his hands behind
his back, picked him up by his arms, dragged him outside and
shoved him into a police car.5
Cravey was an acquaintance of Thornton's and had been doing
some repair work on the apartment house. When the officers
arrived, Cravey was sitting in a pickup truck parked in the
apartment house driveway; he had come to the house to check on
his brother Earl, who was working there that day. While in the
truck, Cravey observed the officers arrest Thornton and put him
in the patrol car. As the officers took Thornton to the car,
Thornton yelled to Cravey; he wanted Cravey to call his mother
5
The officers' respective roles in this scuffle are unclear
from the record on appeal.
5
and his lawyer and to lock his apartment. Cravey got out of the
truck and approached the officers to ask if he could enter the
apartment to use the phone. One of the officers responded by
patting Cravey down; he found a pocket knife on Cravey’s person.
The officer charged Cravey with “obstruction,” slammed him down
on the hood of a police car, and cuffed his hands behind his
back. The officer placed Cravey in the back seat of the police
car with Thornton.
With Thornton and Cravey in the car, the officers directed
Mullis to go into the apartment and get her mattress. When
Mullis hesitated, one of the officers told her that if she
refused, she would be arrested. Mullis explained that she had a
bad back and could not lift the mattress. The officers then
helped her carry the mattress to the front porch, where they left
it. Thornton and Cravey were taken to jail and charged with
felony obstruction of a law enforcement officer in violation of
O.C.G.A. § 16-10-24 (1996). The charges were later dismissed.
II.
Coleman, Lodge, and Beddingfield contend that they are
entitled to qualified immunity from Thornton and Cravey’s false
arrest claims. A public official is entitled to qualified
immunity from a § 1983 damages action if his actions did not
violate clearly established law. It is clearly established that
an arrest made without probable cause violates the Fourth
Amendment. See Von Stein v. Brescher, 904 F.2d 572, 579 (11th
6
Cir. 1990). An officer is entitled to qualified immunity where
the officer had “arguable probable cause,” that is, where
“reasonable officers in the same circumstances and possessing the
same knowledge as the Defendants could have believed that
probable cause existed to arrest” the plaintiffs. Id. at 579
(internal quotation marks and citations omitted).
A.
Thornton was arrested for “obstruction of a law enforcement
officer.” Under Georgia law, a person is guilty of obstruction
when he “knowingly and willfully obstructs or hinders any law
enforcement officer in the lawful discharge of his official
duties.” O.C.G.A. § 16-10-24 (1996). Even if we concluded that
the officers had arguable probable cause to believe that Thornton
obstructed or hindered them, the officers would not be entitled
to qualified immunity because no reasonable officer would have
believed that these officers were engaged in the lawful discharge
of their official duties.
Officer Coleman was dispatched to Mullis' house to address a
civil dispute, and had “the general duty”–and the authority–“to
enforce the law and maintain the peace.” Duncan v. State, 163
Ga.App. 148, 148, 294 S.E.2d 365, 366 (Ga. App. 1982). Coleman's
and the other officers' actions here far exceeded that authority.
Coleman lawfully could peaceably approach the front door of
Thornton’s apartment and attempt to deliver the keys and retrieve
the mattress; in so doing he would merely be attempting to
7
mediate and defuse a contentious situation. He and the other
officers could not force Thornton to make such an exchange,
however, and they could not remain on Thornton’s property after
Thornton had refused to make the exchange. Thornton had
committed no crime and had not threatened anyone; once he had
asked the officers to leave, their continued presence–and their
attempt to retrieve Mullis’ mattress by force–was not pursuant to
their official duties and was outside of their authority. After
that point, they were no longer maintaining the peace; they were
instead merely attempting forcibly to resolve a civil dispute.
No reasonable police officer would have believed that the
officers had probable cause to arrest Thornton for “obstruction”
of such unauthorized actions.6
The officers assert that Animashaun v. State, 427 S.E.2d 532
(Ga. App. 1993), supports their argument that they had probable
cause to arrest Thornton for obstruction. That case involved a
domestic dispute between a husband and a wife. The wife had left
the husband a few days earlier and, fearing a violent
confrontation, she called for a police escort before returning to
the marital home to gather a few belongings. Id. at 533. As
6
Officer Lodge testified at his deposition that he thought
that they were arresting Thornton for disorderly conduct, see
O.C.G.A. § 16-11-39 (1996). This contention is not supported by
Thornton's arrest report, which indicates that obstruction was
the only contemplated charge. The jury reasonably could
disbelieve that Lodge believed that they were arresting Thornton
for disorderly conduct, and even if the jury believed Lodge,
Lodge lacked arguable probable cause to support an arrest for
disorderly conduct.
8
soon as the wife and police officer arrived at the couple's home,
the husband rushed into the driveway and began threatening the
wife and officer with physical violence. The husband then ran
into the house and continued to threaten the officer and wife
from a window. Id. at 533-34. The Georgia appellate court held
that the officer had probable cause to arrest the husband. Id.
at 535.
Animashaun does not support the police officers' argument
that they had probable cause in this case. First, in Animashaun
the police officer accompanied the wife to her own home, where
she had the same right to be present as the husband. Second, the
husband in Animashaun repeatedly threatened both the wife and the
officer with physical violence. These two facts placed the
officer well within his official authority. When the husband
obstructed the officer's attempt to discharge his official
duties, the officer had probable cause to arrest the husband for
obstruction.
In this case, however, Mullis did not live with Thornton,
and had no right to be on his property without his consent. In
addition, there is no indication that Thornton ever threatened
Mullis or any of the officers with physical violence. In short,
Animashaun provides no support for the officers' argument that
they had arguable probable cause to arrest Thornton.
B.
Similarly, the officers did not have “arguable probable
9
cause” to arrest Cravey. Cravey was charged with obstruction,
and none of the officers suggests that Cravey committed any other
crime. Even if we concluded that Cravey “obstructed” these
officers, we could not conclude that they were engaged in the
lawful discharge of their official duties. Rather, they were
engaged in an unlawful arrest of Thornton. No reasonable officer
could believe that probable cause existed to arrest Cravey for
“obstruction” of that endeavor.
II.
Thornton and Cravey also claim that the officers used
excessive force in carrying out their arrests. It is clearly
established that the use of excessive force in carrying out an
arrest constitutes a violation of the Fourth Amendment. See
Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104
L.Ed.2d 443 (1989); see also Cottrell, 85 F.3d at 1492. Whether
the force used is reasonable turns on “the facts and
circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872. An officer
will be entitled to qualified immunity if his actions were
“objectively reasonable” -- that is, if a reasonable officer in
the same situation would have believed that the force used was
not excessive. See Anderson v. Creighton, 483 U.S. 635, 107
10
S.Ct. 3034, 97 L.Ed.2d 523 (1987).
The district court properly denied the officers' motions for
summary judgment on these claims. Neither Thornton nor Cravey
was suspected of having committed a serious crime, neither posed
an immediate threat to anyone, and neither actively resisted
arrest. Yet, on the facts viewed in the light most favorable to
the plaintiff, the officers used force in arresting both Thornton
and Cravey. The officers grabbed Thornton and wrestled him to
the ground, and threw Cravey on the hood of one of the patrol
cars before handcuffing him. Under the circumstances, the
officers were not justified in using any force, and a reasonable
officer thus would have recognized that the force used was
excessive. Therefore, the district court properly denied the
officers' motions for summary judgment.
Accordingly, the order of the district court denying the
appellant police officers' motions for summary judgment is
AFFIRMED.
11 | 01-03-2023 | 04-26-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2591434/ | 130 A.D.2d 154 (1987)
Lisa Grant et al., on Behalf of Themselves and All Others Similarly Situated, Respondents, and Carolyn Lee et al., on Behalf of Themselves and All Others Similarly Situated, Intervenors-Respondents,
v.
Mario M. Cuomo, as Governor of The State of New York, et al., Defendants, and Edward I. Koch, as Mayor of The City of New York, et al., Appellants
Appellate Division of the Supreme Court of the State of New York, First Department.
July 9, 1987
Frederick P. Schaffer of counsel (Grace Goodman with him on the brief; Frederick A. O. Schwarz, Jr., Corporation Counsel, attorney), for appellants.
Raymond L. Falls, Jr., of counsel (Vivien B. Shelanski, Ellen L. Weintraub and Irene S. Cannon-Geary with him on the brief; Cahill, Gordon & Reindel and Robert M. Hayes, attorneys), for respondents and intervenors-respondents.
SULLIVAN and WALLACH, JJ., concur with SANDLER, J. P.; KASSAL and ROSENBERGER, JJ., dissent in an opinion by ROSENBERGER, J.
*156SANDLER, J. P.
In an action seeking injunctive and declaratory relief originally commenced by four families and three organizations, the plaintiffs claim that the several defendants have violated their obligations to provide protective and preventive services under the Child Protective Services Act of 1973 and the Child Welfare Reform Act of 1979. The complaint alleged in substance with regard to the family plaintiffs, and other families said to be similarly situated, that the several defendants had failed to make available to families with children at risk of removal to foster care preventive services mandated by law that were required to permit those children to remain with their families. The complaint further alleged that the several defendants had failed to comply with their statutory obligation *157 to provide protective services to children in danger of child abuse and maltreatment.
Following a court conference with counsel, the original families withdrew as party plaintiffs on their agreement that the defendants had satisfied their individual claims to preventive services. Thereafter, two other families asserting substantially the same claims sought, and were granted, permission to intervene.
The defendants appeal from an order dated May 27, 1986 of the Supreme Court, New York County, to the extent to which it (1) granted the motion of the intervenors-plaintiffs for a preliminary injunction requiring the city defendants to prepare service plans within 30 days, and thereafter to provide all services recommended in such plans, (2) granted the motion of the organizational plaintiffs for a preliminary injunction requiring the city defendants to commence investigations of reports of suspected child abuse or neglect within 24 hours of the receipt of such reports, and (3) denied the motion of the city defendants for summary judgment dismissing the complaint (134 Misc 2d 83). The city defendants also appeal from an order entered August 7, 1986, which granted their motion to renew, but thereupon adhered to the court's original determination.
The issues on this appeal concern the interpretation and enforcement of two major pieces of legislation in the area of child welfare the Child Protective Services Act of 1973 (Social Services Law § 411 et seq.), which regulates the provision of protective services to abused and maltreated children, and the Child Welfare Reform Act of 1979 (Social Services Law § 409 et seq.), which regulates the provision of preventive services to children.
Protective services refer to the system for reporting and investigating cases of suspected child abuse or neglect and for protecting children and providing rehabilitative services to them and their parents. (Social Services Law § 411; 18 NYCRR part 432.) Preventive services are supportive and rehabilitative services designed to avert the placement of children in foster care, to enable children in foster care to return to their families at the earliest possible date, or to reduce the likelihood that children who have been discharged from foster care will be returned to it (Social Services Law § 409 et seq.; 18 NYCRR parts 423, 430.9).
The legal issues presented with regard to the alleged failure *158 of the defendants to discharge their duties under the two controlling statutes are fundamentally different in character.
As to the claimed violation of the city defendants to comply with their statutory duty to provide protective services, it is agreed that Social Services Law § 424 (6) requires each child protective service, upon receipt of a report of suspected child abuse or maltreatment, "to commence, within twenty-four hours, an appropriate investigation", and that in a certain percentage of cases, the exact per cent being a matter of disagreement, the city defendants have failed to comply with that statutory direction. The issues with regard to this part of the court's order are raised by the city's contention that the organizational plaintiffs lack standing to maintain the action, and that under all the circumstances, the issuance by Special Term of an injunction requiring full compliance with the statutory provision represented an improvident exercise of discretion.
As to that part of the court's order addressed to the claim of the intervenors-plaintiffs for preventive services, the central issues presented concern the interpretation of the relevant sections of the Child Welfare Reform Act of 1979. The first and most fundamental question is whether, as contended by plaintiffs and implicitly held by Special Term, Social Services Law § 409-a, when considered together with the regulations promulgated by the New York State Department of Social Services (18 NYCRR 423.2 [d]; 430.9), imposes an unconditional nondiscretionary obligation to provide preventive services under certain circumstances defined in the regulations.
The second issue of construction is raised by Special Term's determination that a child service plan, which a social services district is required under Social Services Law § 409-e to prepare with respect to each child identified as being considered for placement in foster care, is in the nature of a contract enforceable by a court, and that the city is obligated to provide all available services recommended in that plan subject only to its right under subdivision (3) to revise the plan from time to time.
Turning first to the issues raised by the city's conceded failure fully to comply with its obligation to commence investigations of reports of child abuse or maltreatment within 24 hours, we recognize that the factual demonstration by the organizational plaintiffs in support of their standing to seek judicial relief is unimpressive when considered in light of the *159 established requirement that such organizations demonstrate that they have suffered an injury as a result of defendants' actions. (See, Matter of Dental Socy. v Carey, 61 N.Y.2d 330, 334; Matter of MFY Legal Servs. v Dudley, 67 N.Y.2d 706.)
As the defendants correctly argue, the claim of the organizational plaintiffs to have suffered an injury by way of an added burden on their resources is presented in general terms only. On the other hand, we cannot ignore the obvious fact that if organizations of this kind are denied standing, the practical effect would be to exempt from judicial review the failure of the defendants, here conceded, to comply with their statutory obligations. Manifestly, the abused children are not themselves able to seek a judicial remedy, nor is it likely that parents or caretakers, the objects of the claims of abuse or maltreatment, would undertake to secure a remedy. Given the obvious reality that the protection of abused or maltreated children is a central concern of our society, and given the historic relationship of organizations concerned with the care and protection of children to the goals sought to be achieved by the relevant statute, we are persuaded that Special Term was justified in denying the motion to dismiss as to the organizational plaintiffs.
Turning to the merits of this part of the order appealed from, the city defendants acknowledge their statutory obligation to commence investigations of reports of suspected child abuse or neglect within 24 hours of the receipt of such reports, and their failure to achieve full compliance with the statutory direction. In their appeal from the preliminary injunction requiring compliance with their statutory obligations, the city defendants contend that injunctive relief is inappropriate because they acknowledge their statutory obligations, have steadily increased their rate of compliance, have presently achieved a very substantial compliance with their statutory obligations, and have instituted procedures that will soon bring about the maximum possible compliance. To the extent to which full compliance has not been achieved, it is contended that the failure is attributable in part to human error, inherently not susceptible of being effected by injunctive relief, and a variety of administrative and budgetary circumstances that are inappropriate for judicial intervention.
This branch of the relief sought by the organizational plaintiffs, and granted by Special Term, has its genesis in a statistical report for 1985 that indicated compliance with the obligation to commence investigations within 24 hours in only *160 89% of the cases, a figure that represented an apparent retreat from the previous year's results and thus apparently belied the claim of ongoing improvement. The city defendants have presented follow-up studies for the year indicating that the 89% figure was in part affected by errors in reporting, and that the probable true figure of compliance for 1985 was 95%. Whether or not 95% is in fact the precisely accurate figure, the follow-up studies do support the conclusion that the true rate of compliance was greater than 89%, and may well have been 95%. But even a 95% figure necessarily means that there were numerically a significant number of reports of child abuse and maltreatment that were not responded to by the commencement of investigations within the statutorily mandated 24-hour period.
The reasons for this ongoing noncompliance cannot be set forth with absolute precision. In part, it may be assumed that some instances are attributable to human error, something not in the usual situation appropriately addressed by injunctive relief. (Cf., Bruno v Codd, 47 N.Y.2d 582.) In part, the noncompliance would appear to be the result of a combination of factors set forth in different self-evaluations by the city defendants. These included the failure of budgetary allocations to keep pace with rapidly increasing complaints of child abuse, a high attrition rate among personnel assigned to what is often a difficult and onerous duty, the difficulty of finding and promptly training qualified persons, and possibly failures in communication among the several offices assigned the responsibility.
Undeniably, the appropriateness of injunctive relief under the circumstances disclosed in this record presents an issue that is not entirely free from doubt. In the absence of any reason to doubt the good faith of the responsible city agencies, the threat of contempt, the traditional tool for enforcing injunctive relief, would appear to be inappropriate. And the nature of the budgetary and administrative problems detailed in the record does not appear of a kind that courts are well suited to address by specific directions as to how funds should be allocated and as to how the concerned personnel should be organized and supervised. On the other hand, the persistence of an unacceptable degree of noncompliance with a specific statutory direction affecting the welfare of abused children, and the undoubted fact that this lawsuit itself brought about increased governmental concern and attention to the problem, persuades us that there was a sufficient *161 basis for Special Term to conclude that injunctive relief followed by a review of the steps taken by the city agencies to respond would serve a valid purpose.
Turning to the claims of the individual plaintiffs that defendants have violated their statutory obligations to provide preventive services, the central issue is presented by plaintiffs' claim that the Child Welfare Reform Act of 1979 (Social Services Law § 409 et seq.), when considered together with the regulations of the New York State Department of Social Services (18 NYCRR 430.9), imposes a nondiscretionary duty in circumstances set forth in the regulations to make findings which mandate the provision of preventive services. Plaintiffs' central thesis is set forth clearly in their appellate brief in the following language: "Respondents have never disputed appellants' discretion as to which of a menu of preventive services must be provided under appropriate circumstances. However, respondents do dispute the notion that such discretion extends to the initial determination that a child is at risk of foster care and in need of preventive services."
It is on the basis of this construction of the statute that plaintiffs contend that the issues are controlled by the decision of the Court of Appeals in Klostermann v Cuomo (61 N.Y.2d 525), in which the court found legally sufficient a complaint seeking declaratory relief and mandamus on the claim that the State agency had failed to discharge a nondiscretionary statutory duty to provide services, in the face of the contention of the State agency that the failure to discharge its statutory duty resulted from a discretionary administrative judgment as to the allocation of limited budgetary appropriations and was accordingly nonjusticiable.
As becomes apparent on analysis, the construction of the statute urged by plaintiffs is critical both to that part of the court's order that enjoined the defendants to prepare a service plan and provide the services set forth in that plan to the intervenors-plaintiffs, as well as to that part of the court's order that denied the defendants' motion for summary judgment dismissing the complaint to the extent to which it sought system-wide declaratory relief.
If the findings which are a precondition to the obligation to provide mandated preventive services involved discretion and judgment on the part of local social services officials, it is clear that the injunction granted by Special Term, in effect an order of mandamus, violated well-established principles with regard *162 to mandamus, and that the appropriate remedy of the individual plaintiffs was to seek a review of the denial to them of preventive services in a fair hearing and subsequent judicial review in a CPLR article 78 proceeding if the determination was sustained after the fair hearing. Similarly, if the statutorily required findings involved the exercise of discretion and judgment, it is clear that system-wide declaratory relief would be unavailable since the issues presented would involve separate exercises of judgment and discretion by social services officials in widely varying circumstances.
The purpose of the Child Welfare Reform Act was "to delineate a state policy of providing permanent homes for children who are currently in foster care or at high risk of entering foster care." (Mem of Senator Joseph R. Pisani, NY Legis Ann, at 352.) This purpose was sought to be accomplished by "a new emphasis on preventive services to maintain family relationships and reunite families whenever possible." (Ibid.) This new approach was found necessary because "[t]he problems of the foster care system have been exacerbated by a lack of incentives to local district[s] to provide preventive services which may in some cases avert the need for foster care" (Pisani mem, op. cit., at 353).
As further set forth in the Pisani memorandum (ibid.): "The bill redefines preventive services and places their provision within an enriched funding formula. The bill delineates clearly standards for planning and caring for children with the goal of permanent homes whenever possible. Furthermore, the bill holds districts accountable for meeting these standards or suffer loss of reimbursement."
Consistent with these purposes, the Child Welfare Reform Act defines preventive services as: "supportive and rehabilitative services provided * * * to children and their families for the purposes of: averting an impairment or disruption of a family which will or could result in the placement of a child in foster care; enabling a child who has been placed in foster care to return to his family at an earlier time than would otherwise be possible; or reducing the likelihood that a child who has been discharged from foster care would return to such care." (Social Services Law § 409.)
With respect to the provision of preventive services, the Child Welfare Reform Act (Social Services Law § 409-a [1] [a]) provides in relevant part: "A social services official shall provide preventive services to a child and his family, in *163 accordance with the child's service plan as required by section four hundred nine-e of this chapter and the social services district's child welfare services plan submitted and approved pursuant to section four hundred nine-d of this chapter, upon a finding by such official that (i) the child will be placed or continued in foster care unless such services are provided and that it is reasonable to believe that by providing such services the child will be able to remain with or be returned to his family".
Social Services Law § 409-a (2) further provides: "A social services official is authorized to provide preventive services to a child and his family to accomplish the purposes set forth in section four hundred nine of this chapter, when such services are not required to be provided pursuant to subdivision one of this section."
Social Services Law § 409-b (1) provides in substance for reimbursement to each social services district of "(a) seventy-five per centum of allowable expenditures for preventive services provided pursuant to subdivision one of section four hundred nine-a of this title * * * and (b) fifty per centum of allowable expenditures for preventive services provided pursuant to subdivision two of section four hundred nine-a of this title".
Social Services Law § 409-e, entitled "Child service plan", in effect the record-keeping section of the act, provides in substance that the social services district shall perform an assessment of each child and his family circumstances in accordance with procedures and criteria to be prescribed by the Department where the child has been "identified by a social services district as being considered for placement in foster care as defined in section three hundred ninety-two of this chapter" (subd [1]).
Social Services Law § 409-e (2) directs the social services district to establish and maintain a child service plan upon completion of the assessment, which shall include, inter alia, identification of required services and their availability and the manner in which they are to be provided.
Social Services Law § 409-e (3) directs review and revision of the plan, in consultation with the parent or guardian, where appropriate, within the first 90 days and at least every six months thereafter. It provides, among other things, that the review shall indicate the types, dates and sources of services that have actually been provided.
*164Critical to the issue presented is that part of Social Services Law § 409-a (1) (a) which obligates a social services official to provide preventive services to a child and his family in accordance with the child's service plan "upon a finding by such official that the child will be placed or continued in foster care unless such services are provided and that it is reasonable to believe that by providing such services the child will be able to remain with or be returned to his family."
On the face of it, the two findings specified in this section as a prerequisite to the obligation of the social services official to provide mandated preventive services manifestly involve the exercise of discretion and professional judgment, and indeed, the plaintiffs do not argue to the contrary. The plaintiffs' basic contention is that the regulations issued by the State Department of Social Services specify circumstances under which there is an unconditional nondiscretionary obligation on the part of social services officials to make the statutorily prescribed findings.
Although introductory sentences in the pertinent part of the regulations provide some color of support for this construction, a study of the regulation as a whole makes it incontrovertibly clear that it was not intended, and could not possibly have been intended, to impose a nondiscretionary duty on the part of social services officials to make the statutorily required findings under the described circumstances.
18 NYCRR 430.9 (a), as pertinent to the issue presented, provides: "[T]he provision of preventive services shall be considered mandated if one of the following standards * * * is met: the standard for the provision of mandated preventive services to clients at risk of placement".
18 NYCRR 430.9 (c) goes on to provide in its introductory sentence as follows: "Standard for the provision of mandated preventive services to clients at risk of placement. The provision of preventive services shall be considered mandated when such services are essential to improve family relationships and prevent the placement of a child into foster care. The circumstances in which preventive services shall be considered essential for these purposes are the following".
Undeniably, this phrasing provides apparent support for the plaintiffs' theory that when the circumstances thereafter described are present, preventive services must be provided. What an examination of the specific circumstances thereafter identified makes clear is that this interpretation is untenable. Let us consider the relevant subdivisions in turn.
*16518 NYCRR 430.9 (c) (1), captioned "Health and safety of child", sets forth a circumstance in which one or more children in a family have been subjected by parents or caretakers, within a 12-month period prior to the date of application for services to serious physical injury by other than accidental means, or to serious impairment or risk of serious impairment of their physical, mental or emotional condition as a result of a failure of the parents or caretakers to exercise a minimum degree of care, and such action by the parents "has resulted in a determination that an allegation of abuse or maltreatment is indicated."
Undeniably, a finding of such abuse would in the usual situation call for consideration by the social services official of removal of the child from the parent or caretaker. But even with regard to that circumstance, it is surely clear, and indeed illustrated in the case records of one of the original family plaintiffs, that there may be many situations in which a finding of abuse is properly made, but in which a professional assessment of the situation as of the time of such finding by a social worker would support the conclusion that the child should not be removed from the parent or caretaker.
Even more clearly, it is apparent that there are many situations in which a parent or caretaker has imperiled the health and safety of the child, and in which it would make no sense whatever to permit the child to remain with the parent or caretaker, and in which no responsible social services official could conceivably find "that it is reasonable to believe that by providing such services the child will be able to remain with or be returned to his family." (Social Services Law § 409-a [1] [a].) It simply could not have been intended to impose a nondiscretionary duty on social services officials to provide preventive services in an effort to avoid foster care every time a finding of abuse and maltreatment of a child by a parent is made.
18 NYCRR 430.9 (c) (2), captioned "Parental refusal", sets forth a circumstance in which the parent or caretaker has refused to maintain the child in the home or has expressed the intention of surrendering the child for adoption.
In this situation, the fact itself would appear to be a simple one, leaving little room for discretion or judgment as to whether such an event has occurred. But it cannot follow from such a circumstance that the social worker must find it reasonable to believe that the provision of preventive services *166 would avoid the necessity for foster care in every such situation. Undoubtedly there may be occasional situations in which that would be an appropriate conclusion, but it is obvious that in most such situations, it would be absurd to so find. Surely, the regulation cannot be sensibly interpreted as mandating the social worker to make the required findings and to provide preventive services to every parent who refuses to maintain the child in the home or is determined to surrender the child for adoption.
The third paragraph, captioned "Parent unavailability", describes a circumstance in which the child's parents or caretakers have become unavailable due to (a) hospitalization; (b) arrest, detainment or imprisonment; (c) death; or (d) the fact that their whereabouts are unknown.
Once again, the circumstance described would seem to involve relatively little room for discretion or judgment as to its presence. But it is not conceivable that it was intended in every situation of parent unavailability described in the regulation that the social services official had a nondiscretionary duty to find it reasonable to believe that preventive services would avoid foster care. Suppose the only parent is under a life sentence in prison, or is dead, or that his whereabouts are unknown. Plaintiffs' interpretation of the regulation calls for a declaration that every such situation imposes a nondiscretionary duty to provide preventive services, and this is surely wrong.
The fourth paragraph, headed "Parent service need", describes a circumstance in which a child is at risk of serious harm "due to an emotional, mental, physical, or financial condition of the parent or caretaker which seriously impairs the parent's or caretaker's ability to care for the child."
As to this circumstance, it is apparent that a determination of the fact of the circumstance by the social services official involves discretion and professional judgment. But let us assume a situation in which it is clear that the described circumstance exists. Can it reasonably be inferred that the social services official must find in every such situation that preventive services will avoid foster care? Assume the parent's emotional and mental condition is such that there is no reasonable possibility that the parent can be entrusted with the child at any time in the foreseeable future. Can the regulation conceivably have been intended, as plaintiffs urge, to require preventive services to avoid foster care in that situation?
*167The fifth paragraph, headed "Child service needs", describes a circumstance in which a child has special need for supervision or services which cannot adequately be met by the child's parents or caretakers without the aid of preventive services.
On its face, this paragraph clearly involves a professional evaluation as to the existence of the circumstance, which cannot reasonably be construed as ministerial or nondiscretionary.
The sixth paragraph, headed "Pregnancy", describes a circumstance in which "[a] woman is pregnant or has given birth and has shown an inability to provide adequate care for her unborn or infant child." Manifestly, there is no plausible basis for the conclusion that every time a woman is pregnant or has given birth that the social services agency is under a nondiscretionary obligation to conclude that the unborn or infant child is at risk of foster care, and that preventive services are therefore mandated.
Once it is accepted that the findings specified in Social Services Law § 409-a (1) (a) involve the exercise of discretion and judgment, it follows that Special Term erred in that part of its order that granted the motion to the intervenors-plaintiffs for a preliminary injunction requiring the city defendants to prepare service plans within 30 days, and thereafter to provide the services recommended in such plans. In issuing this injunction, in effect an order of mandamus, Special Term substituted its judgment for that of the responsible social services officials in matters involving discretion and judgment, and thereby departed from well-established principles governing the granting of mandamus.
As observed in a leading treatise, the principle is well established that "mandamus compels action admitting of no discretion and so clearly required as to be merely ministerial" (Siegel, NY Prac § 577, at 775). This long-standing principle was squarely reaffirmed by the Court of Appeals in Klostermann v Cuomo (61 N.Y.2d 525, supra), the authority primarily relied on by plaintiffs on this issue, in terms that leave no room for reasonable disagreement. With regard to mandamus, the Court of Appeals reaffirmed (at 539) that "`[m]andamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought' (Matter of Legal Aid Soc. v Scheinman, 53 N.Y.2d 12, 16). The long-established law is that `"[w]hile a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, *168 it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion"'".
Quoting from People ex rel. Francis v Common Council (78 N.Y.2d 33, 39), the Court of Appeals reaffirmed in Klostermann (supra, at 540): "`[T]he writ of mandamus * * * may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner * * * A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgment * * * Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.'"
In issuing the preliminary injunction at issue here, Special Term in effect directed the responsible social services officials to exercise their discretion and judgment in a particular way, something which the court was not authorized to do. If, in fact, the intervenors-plaintiffs were denied preventive services to which they were entitled as the result of an erroneous failure by the social services officials to make the statutorily prescribed findings, the appropriate response would be that set forth in a regulation promulgated by the State Department of Social Services in 1983, which explicitly provides for a fair hearing to persons aggrieved by the denial, reduction, or termination of preventive services. (See, 18 NYCRR 423.4 [l] [4].) If, after requesting and obtaining a fair hearing, an applicant for preventive services receives an unfavorable decision, he has a right to judicial review by means of an article 78 petition (Social Services Law § 22 [9] [b]).
Although the intervenors' complaint is not precise as to the theory underlying their request for system-wide declaratory relief with regard to preventive services, or the exact form that such declaratory relief was to take, it is apparent from plaintiffs' appellate presentation that the application for system-wide declaratory relief with regard to preventive services was based upon the theory that the statute, considered together with the regulations, imposes a nondiscretionary duty on social services officials to make the findings set forth in Social Services Law § 409-a (1) a construction we have found to be untenable.
*169The record discloses no other legally viable basis for granting system-wide declaratory relief, nor are we able to find in plaintiffs' presentation any claim that such relief is appropriate on a different theory. To the extent to which it may be concluded on the basis of various studies presented in the record that the defendants have erred in many individual cases in failing to make findings under circumstances in which such findings should have been made, it is clear that system-wide declaratory relief is not available to address claims of individual errors of judgment in separate cases involving different factual situations, none of which (except for the intervenors-plaintiffs) are before us for our consideration, and which have not been shown to involve any single principle equally applicable to any defined group of families.
We note additionally that the record discloses no claim, nor any basis for such claim, that it was the policy of the defendants to refuse to make the statutorily required findings, even where the facts were believed to justify them, in an effort to limit or avoid expenditures. Indeed, given the central reality that the governing statute provides enriched State reimbursement where mandated preventive services are provided, it would seem unlikely that financial considerations have improperly affected individual decisions.
Finally, we are unable to agree with Special Term's conclusion that whatever child service plan pursuant to Social Services Law § 409-e "is in effect at a particular time is in the nature of a contract by the city, the performance of which is enforceable by a court * * * [and that] the city has an obligation to deliver whatever available services it proposes at any particular time." (134 Misc 2d, supra, at 86-87.) We find no basis in the statute for this construction, which seems to us to misconceive the clear meaning of the relevant statutory sections.
As previously observed, Social Services Law § 409-a (1) (a) requires a social services official to "provide preventive services to a child and his family, in accordance with the child's service plan as required by section four hundred nine-e of this chapter and the social services district's child welfare services plan submitted and approved pursuant to section four hundred nine-d of this chapter". The critical statutory phrase "in accordance with" plainly does not mean the same as "all" or "all available services". If the Legislature had intended that "all services" or "all available services", or all *170 available services appropriate to short-range goals identified in the plan, were required to be delivered, it is not easy to see why language embodying that intent was not used.
Nor is it difficult to discern the reason for the use by the Legislature in Social Services Law § 409-a (1) (a) of the words "in accordance with the child's service plan as required by section four hundred nine-e of this chapter".
The words used were consistent with, and in furtherance of the fundamental distinction drawn in the statute between mandated preventive services services provided under Social Services Law § 409-a (1) (a) following the findings that have been discussed at length and preventive services provided in the absence of such findings under subdivision (2). As we have seen, the statute provided an enriched reimbursement formula for mandated preventive services. The clear reason for the statutory phrase was to make certain that the enhanced reimbursement provided for mandated preventive services would be limited only to such services when the justification for them had been documented in a record that could be reviewed by the New York State Department of Social Services.
The error in Special Term's construction of the statute seems to us further confirmed by Social Services Law § 409-e (3) which directs a review of a child's service plan "in consultation with the child's parent or guardian, where appropriate, at least within the first ninety days following its preparation and at least every six months thereafter." The section goes on to provide: "Such revisions shall indicate the types, dates and sources of services that have actually been provided and an evaluation of the efficacy of such services, and any necessary or desirable revisions in goals or planned services." What unmistakably appears from this subdivision is that it was contemplated by the Legislature that services listed in the plan might not actually be provided within the time intervals for review and revision.
Moreover, we think it likely that Special Term's construction would have consequences that are almost precisely the opposite of those that were intended. Where a child has been identified as being at risk of foster care it surely seems preferable, and in accordance with sound professional practice, that the concerned social services officials identify all services relevant to the existing situation to permit maximum flexibility in responding to quickly changing circumstances *171 without being apprehensive that every identified service would be required by law to be provided. The almost certain consequence of Special Term's construction, and one that the Legislature surely did not intend, would be to induce social services officials to limit narrowly the services identified in the original child's service plan lest they be obligated to provide services that experience and changing circumstances may indicate to be unnecessary or inappropriate.
The dissenting opinion opens its discussion of the issues that divide the court with the comment that the writer agrees "with much of the majority's opinion, including the finding that the preparation of the child service plan and the provision of mandatory preventive services in accordance with such plan involve the exercise of discretion". In this candid observation the dissenting opinion finds untenable, although the opinion does not so state explicitly, the legal theory on the basis of which the plaintiffs sought, and secured, an order of mandamus requiring as to the intervenor families the preparation of child support plans, and the provision of services identified in such plans, and which is also central to the claim for system-wide declaratory relief with regard to preventive services. Nonetheless, the dissenters would affirm the relevant parts of the order appealed from, justifying this conclusion on the basis of a complex analysis, the different parts of which are not easy to follow or to understand, but which in effect obliterates the distinction between discretionary and ministerial acts that is central to the law of mandamus.
Thus, the dissenting opinion contends that the provision of preventive and protective services "are but discretionary means to the fulfillment of SSC's nondiscretionary duty to protect children who are believed to be suffering from abuse or neglect".
What becomes immediately apparent upon analysis is that this formulation reaches an untenable conclusion on the basis of two fundamental errors. First, as is obvious from an examination of the Child Welfare Reform Act of 1979, preventive services are not authorized for the purpose of protecting abused or maltreated children. Under Social Services Law § 409 preventive services are defined as "supportive and rehabilitative services provided * * * to children and their families for the purpose of: averting an impairment or disruption of a family which will or could result in the placement of a child in foster care". Undoubtedly it will often be the case that abuse or maltreatment of children by a parent will *172 justify the conclusion that there is danger of the impairment or disruption of a family which could result in the child being placed in foster care, in which event preventive services are authorized, mandated under Social Services Law § 409-a (1) (a) if the statutory findings are made, and discretionary under section 409-a (2) in the absence of such statutory findings. But it is indisputably clear that preventive services are authorized only for the purpose of avoiding the risk of a child being placed in foster care, not for the purpose of safeguarding abused or maltreated children. The safeguarding of abused or maltreated children was clearly intended to be advanced by the protective and rehabilitative services authorized by the Child Protective Services Act of 1973.
As a study of the regulations promulgated by the New York State Department of Social Services makes clear, the preventive services authorized to prevent disruption of families and the placement of children in foster care, and the protective services authorized for the safeguarding of abused and maltreated children, are in many respects the same or quite similar, the principal differences arising from the separate, if related, purposes sought to be achieved under the two statutes.
Assuming, however, that preventive services were to be considered as authorized for the purpose of safeguarding abused or maltreated children, it is clearly wrong for a court to issue an order of mandamus directing a social services official to provide a service which in the exercise of discretion the official found to be unwarranted on the theory that the discretionary service is simply a means to the fulfillment of a nondiscretionary duty. This notion effectively eliminates the distinction between discretionary and ministerial acts. Moreover, it seriously distorts the legal reality to describe as nondiscretionary the duty to protect children believed to be suffering from abuse.
As an examination of the relevant statutory section makes clear, some aspects of the duty of child protective service workers are nondiscretionary, one of which, the duty to commence investigations within 24 hours of receiving a report of child abuse or maltreatment, was an issue specifically raised on this appeal. However, many of the critical decisions made by child protective service workers in discharge of their duties clearly involve the exercise of discretion and judgment. Is there credible evidence supporting the report of child abuse or maltreatment? Do the circumstances require action pending a *173 determination as to whether the report of abuse is supported by credible evidence, and if so, what action? Assuming that the report is confirmed by credible evidence, should the child be removed from the parent or parents, or should protective and rehabilitative services be provided, and if so, which services? It is by no means always the fact that a confirmation of validity of a report will require that either a child be removed or that protective services be provided. All of these are clearly matters involving the exercise of judgment and discretion, and under established rules courts may not by way of mandamus require a social services worker to take one or another action which that worker has concluded was unjustified in the exercise of discretion and judgment.
Nor does it seem to us helpful to an understanding of the legal issues raised to assert that the "duty to timely investigate all reports, to probe for credible evidence of neglect as legally defined, and to provide whatever services are necessary to safeguard the child during the investigation and thereafter, is not discretionary." Manifestly, child protective services caseworkers have a nondiscretionary duty to timely investigate all reports of abuse or maltreatment.
It seems equally obvious, although the contrary view is central to much of the dissenting opinion, that a claim that in a particular case a worker did not adequately "probe for credible evidence of neglect", and that the worker failed in the exercise of discretion and judgment to provide services alleged to be necessary, does not convert these manifestly discretionary duties into nondiscretionary ministerial acts.
Although an evaluation of the correctness of the determinations of the social services workers with regard to the needs of the plaintiff families for preventive services is not an appropriate issue on this appeal, the comment in the dissenting opinion on that subject requires something to be said as a matter of fairness to those workers and to the larger group of social services workers of whom they may be thought to be representative. What an objective evaluation of the entire record discloses is that in almost all of the cases the judgment of the social services workers that children were not at risk of foster care was clearly correct in light of the facts known to them, and that for the most part the correctness of the determinations was not affected by any facts subsequently developed.
Nor do we think the record justifies the observation that as *174 a whole the response of the social services workers to the undoubted needs of the family plaintiffs was lacking in competence. Undoubtedly the record discloses what appear to be omissions and lapses. When considered as a whole, the response of the several social services workers to the problems presented was far more substantial than is suggested in the dissenting opinion. As to two of the original plaintiff families, the record establishes that preventive services appropriate to their situations were in fact authorized prior to the commencement of this lawsuit, although the direction for such services had not been put into effect at that time. As to almost all of the family plaintiffs, the record is clear that the parents did not request at any time prior to the commencement of the lawsuit those services, the denial of which was set forth as a ground for relief in this action, and the record does not establish for the most part that the social services workers should have been aware of those needs. In one case, and that one of the two intervening families, the Lee family, the parent emphatically denied in response to inquiries the existence of conditions that might have justified the providing of such services, and on the very day she signed the affidavit claiming a failure to respond to her request for services, denied in response to a specific inquiry by a social services worker that she had any need for services.
In the above observations we of course do not suggest that social services employees are only obligated to provide services where requested. Obviously, they have an obligation to provide services where the need for such services is established to the satisfaction of the social services worker. The fact that families did not request such services, although the denial of requests for such services was alleged in plaintiffs' affidavits, is surely relevant to a fair evaluation of the manner in which the social services workers discharged their obligations.
Nor is it accurate to say that the inquiry into the report of child abuse relating to the Lee family was limited to the inquiry of the mother. The record is clear that the social services worker questioned not only the mother, but also the oldest child in the family and the boyfriend whose alleged conduct was central to the complaint of child abuse. In addition, the social services worker determined on the basis of personal observation and investigation that there was no substance to the claim in the report of abuse that the family was lacking sufficient food or clothing for the children.
What clearly appears is that the central problem of most of *175 these families was their lack of a permanent home, and although the social services workers are authorized to assist them in securing permanent homes, and in fact did so, it is clear that they had neither the authority nor the ability to provide such homes.
This is not to say that the record does not disclose inadequacies and failures, nor that it does not disclose room for considerable improvement, but it is not fair to this group of workers to present them as uniformly incompetent, callous, or insensitive to their important obligations.
In addition to confirming the order appealed from, our dissenting colleagues have concluded "upon searching the record * * * that appellants have failed to comply with the mandatory directives of Social Services Law §§ 423 and 424 in all cases, due to an erroneous policy promulgated by defendant Commissioner of the New York State Department of Social Services". In particular, it is urged that a regulation promulgated by the New York State Department of Social Services, 18 NYCRR 432.2 (b) (4) (x), impermissibly limits the discretionary power of the social services workers under Social Services Law § 409-a (2) to provide preventive services. On the basis of this analysis, it is urged that a declaratory judgment should be entered striking down that section as arbitrary and invalid, and giving detailed instructions to the several agencies as to how they should discharge their functions.
In this aspect of the dissenting opinion our colleagues raise and determine an issue not presented by the notice of appeal in this case, and grant to plaintiffs, who did not cross-appeal from Special Term's order, relief not requested in the motion that gave rise to that order, on the basis of a theory never presented by plaintiffs.
From a study of the complaint and amended complaint, it is indisputable that these pleadings never identified the regulation in question as arbitrary or invalid, or suggested that the regulation in any way adversely impacted on the plaintiff families or upon other families alleged to have been similarly situated. An examination of the factual submissions introduced by, and on behalf of, the family plaintiffs, discloses no claim that they were deprived of services because of the regulation, nor the suggestion of any factual basis for the conclusion that the regulation in question affected in the slightest degree the services which they received. Indeed, as to two of the plaintiff families who were never the subject of *176 reports of child abuse, and as to one which was the subject of such reports at times not relevant to the issues in this case, the irrelevancy of the regulation is apparent. As to the three families in which there was such a report, the record is conclusive that the regulation alleged to be invalid in no way affected the response of the social services officials to their needs.
By any standard it would be unusual behavior for an appellate court to reach and determine an issue never presented in a litigation, and to do so without providing an opportunity for the adversely affected parties to be heard on a question which they had no reason to believe was part of the litigation. (See, Collucci v Collucci, 58 N.Y.2d 834, 837.) In this case, the suggested departure from the normal rules governing appellate courts is singularly unwarranted.
This lawsuit is obviously the highly professional result of a cooperative effort involving lawyers of outstanding ability, respected advocates for the homeless, and the trained personnel of major organizations with large and extensive experience in addressing the problems of abused and maltreated children and their families. It is not easy to believe that in their extensive experience with such children and their families the skilled personnel of the organizational plaintiffs would not have observed, if it were the fact, that the families had been deprived of needed services because of an invalid regulation, and that the lives of children had been put in jeopardy, if not in fact lost, as a result of that regulation. Nor is it easy to believe that if any of the several studies of the response of government agencies to the problems of abused children had disclosed the pernicious effect of the regulation discovered on this appeal by our dissenting colleagues, a challenge to the regulation would not have been part of this lawsuit.
The reason that the regulation was not part of the case presented by plaintiffs' skilled counsel is readily apparent from an examination of the regulation together with the entire body of regulations and the statutes that the regulations were intended to implement.
The regulation is one of a group which sets forth the responsibilities and powers of the child protective service. That service is vested with the sole responsibility for receiving and investigating reports of child abuse, and is the sole entity responsible for providing and coordinating services necessary to safeguard the child's well-being and to preserve and stabilize *177 family life when appropriate. The particular regulation in issue was concerned with defining the circumstances under which child protective service caseworkers, exclusively authorized and empowered to provide protective and rehabilitative services to children who were the subject of reports of abuse or maltreatment, should also be permitted to provide preventive services of the kind normally furnished by other social services workers for the purpose of preventing family disruption. The regulation states that child protective workers should be permitted to provide preventive services only where the family was eligible for mandated services and where the protective service caseworker was directly providing other services to the subjects of indicated abuse and/or maltreatment reports. As the dissenting opinion acknowledges, nothing in this section diminished, or purported to diminish, in any way the existing discretionary power of other social services workers to provide preventive services.
Manifestly, the regulation which our colleagues would strike down as arbitrary, in the absence of any presentation on the issue by the parties before us, is concerned with the allocation of functions between social services workers authorized in the normal course of their duties to provide preventive services and child protective caseworkers who have the sole responsibility for investigating reports of child abuse and maltreatment, and the sole responsibility for providing a broad plenitude of protective and rehabilitative services in the discharge of their duties. The central thesis of this aspect of the dissenting opinion is that, in ways not easy to understand and for which no shred of support exists in this record, the limitation on the power of child protective caseworkers to provide nonmandated preventive services in some way impairs significantly their ability to discharge their functions.
We are told that this limitation on the power of child protective services caseworkers to provide preventive services, although they have broad power to provide rehabilitative and protective services, in part duplicative of preventive services and in some respects probably more extensive, somehow impedes their ability "to gather evidence `swiftly and competently'". In the absence of any support in this record that any of the plaintiff families were adversely impacted by this limitation, and in the absence of any suggestion in the extensive literature on the subject that this limitation has the consequences attributed to it, the sweeping conclusion drawn by our colleagues rests on a very tenuous foundation indeed.
*178What is presented is a professional disagreement between our colleagues and the New York State Department of Social Services as to the proper allocation of functions under the statutes with which we are concerned, between social services workers authorized in the course of their duties to provide preventive services and child protective caseworkers. In a lawsuit that fairly presented the issue, in which the facts provided some color of support for the conclusion reached by the dissenters, and in which the New York State Department of Social Services had an opportunity to respond, the issue of the reasonableness of the regulation might well be appropriate for judicial consideration. That issue has no appropriate place in this lawsuit.
In reaching the above-described legal conclusions, we do not intend to suggest that all is well with the provision of preventive services. The record includes studies by qualified professionals studies for the most part sponsored and authorized by one or more of the defendant agencies in which it was found that there have been severe deficiencies by the several defendants in discharging their statutory obligations to provide preventive services.
In particular, it has been found that the city defendants have frequently failed to provide two important core preventive services in circumstances in which such services were indicated homemaker services and day-care services. In addition, it has been found that many children, notwithstanding the statute with which we are concerned, have been placed in foster care where, in the opinion of those conducting the studies, preventive services might have avoided that result.
Assuming the essential correctness of the conclusions reached in the several studies, and that the conditions described in them have not significantly changed since the studies were conducted, it would seem clear that a radical improvement in the response of the several defendants to their obligations to provide needed preventive services is a matter of large and urgent public importance.
Accordingly, the order of the Supreme Court, New York County (Edward H. Lehner, J.), entered August 7, 1986, which granted defendants' motion to renew and thereupon adhered to the court's original order dated May 27, 1986, which, inter alia, (1) granted the motion of intervenors-plaintiffs for a preliminary injunction requiring the city defendants to prepare service plans within 30 days, and thereafter to provide *179 all services recommended therein; (2) granted the motion of the organizational plaintiffs for a preliminary injunction requiring the city defendants to commence investigations of reports of suspected child abuse or neglect within 24 hours of receipt of such reports; and (3) denied the city defendants' motion for summary judgment should be modified, on the law, without costs, to deny the motion of intervenors-plaintiffs for a preliminary injunction requiring the city defendants to prepare service plans within 30 days and to provide all services recommended in such plans; to declare that the findings set forth in Social Services Law § 409-a (1) (a) involve the exercise of discretion and judgment; to declare that a child's service plan prepared in accordance with Social Services Law § 409-e does not constitute a contract enforceable as such by the court; and to dismiss as otherwise nonjusticiable plaintiffs' claim for system-wide declaratory relief with regard to preventive services, and otherwise affirmed.
ROSENBERGER, J. (dissenting).
"Every five or six days a child dies in New York City because of parental abuse or neglect. Some die because they have been left alone. Some are the victims of a parent's psychotic delusions. Some have had illnesses which have been neglected. Some are killed while in the hands of incompetent baby sitters. Some starve to death. Some die because of safety hazards which should have been corrected. Some are beaten to death."
This is the grim reality faced by far too many children living today in the City of New York according to the Report of the Public Child Fatality Review Committee headed by former Family Court Judge Nanette Dembitz (the Committee). This expert Committee was appointed in January 1985 by defendant-appellant Commissioner of the New York City Department of Social Services to study and to provide an outside appraisal of the performance of the city's Department of Social Services (DSS) and, particularly, of Special Services for Children (SSC), the agency responsible for child protective services and preventive services for children and their families in New York City. The Committee reviewed 89 cases in which children had died of suspected parental abuse or neglect during 1985, for the purpose of "detecting any systematic deficiencies in SSC as well as other agencies involved in child-care." The Committee's findings were published in a report dated December 23, 1986, a little more than one year after this action was instituted. Although the report of the Committee *180 is not part of the record herein, I take judicial notice of its findings which are directly relevant to the issues raised by the original plaintiffs-respondents and by plaintiffs-intervenors-respondents.[1]
This action, brought by a number of mothers with young children who find themselves homeless and destitute, and by several not-for-profit organizations providing services and assistance to children and the homeless, places before this court the record of SSC's performance in carrying out its statutory duties under Social Services Law, article 6, title 4, Preventive Services for Children and Their Families (§ 409 et seq., the Child Welfare Reform Act of 1979) and article 6, title 6, Child Protective Services (§ 411 et seq., the Child Protective Services Act of 1973).
The common thread running through the allegations of the individual respondents is that they are in need of services to prevent their children from being placed in foster care, but that SSC has failed or refused to provide preventive services to them as mandated by the Social Services Law and the regulations thereunder. The organizational respondents allege that in a substantial number of cases, SSC has failed to commence investigations of abuse or neglect reports within 24 hours, as required by law, leaving over 6,000 children at risk. They further allege that even when investigations are timely commenced, SSC fails to offer appropriate services to the children and their families during the investigation, also as required; fails to provide any real protection to the children; and fails to carry out "even the most rudimentary elements of the 90 day child protection investigation." These failures, according to respondents, violate New York State Social Services Law and Federal laws under which defendants-appellants are reimbursed for foster care and child welfare programs (Social Security Act tits IV-E [42 USC § 670 et seq.], IV-B [42 USC § 620 et seq.]).
While I agree with much of the majority's opinion, including the finding that the preparation of the child service plan and the provision of mandatory preventive services in accordance *181 with such plan involve the exercise of discretion, I nevertheless conclude, following an analysis of the Social Services Law and the regulations promulgated thereunder, that these acts are but discretionary means to the fulfillment of SSC's nondiscretionary duty to protect children who are believed to be suffering from abuse or neglect and to provide whatever services are necessary to safeguard such children. While I would affirm the grant of injunctive relief to respondents, I reach that result by a different route from the one taken by the court below and, consequently, I would frame the order differently. I do not agree with the finding below that the 409-e service plan is in the nature of a contract, and I consider this finding unnecessary to the decision to award respondents the declaratory and injunctive relief sought. I find the clear, mandatory directives of the Social Services Law sufficient to warrant such relief.
The Social Services Law establishes a process, which the court may compel appellants to implement and to follow, in order to effectuate the important statutory aims of the Child Welfare Reform Act and the Child Protective Services Act which are: to protect children who are suffering from abuse or neglect; to safeguard their health and well-being, either in the home or while in foster care; and to make appropriate, reasonable efforts to rehabilitate the family so that the children may remain safely in the home or be returned to it as soon as possible.
The fact that the social services officials must make discretionary determinations at various stages of the child protective investigation and in formulating a rehabilitative plan for the family does not mean that they have the discretion to make no determination; to ignore the statutory process intended to bring information to their attention which would require them to act as directed by law (People ex rel. Francis v Common Council, 78 N.Y. 33 [1879], cited with approval in Klostermann v Cuomo, 61 N.Y.2d 525, 539-540 [1984]). What the majority fails to perceive is the interrelation of the mandatory investigatory process established under the Child Protective Services Act and the discretionary findings preliminary to a determination that preventive services are mandated.
The protective services investigation is intended to reveal information about the family which will enable social services officials to determine whether a child is at risk of foster placement and whether there are services which will eliminate that risk. Indeed, the protective service investigation is *182 the sole means available to SSC for establishing what are the conditions in the home and whether there are legal grounds for removing the child to foster care.
If the protective service fails to conduct competent investigations into all reports of suspected abuse or neglect, as required by law, then there will inevitably be children left in homes where their health and well-being are endangered, without any services to protect them or to rehabilitate the family in other words, without services which are mandated by law. Without thorough, competent investigations by the protective service, there is simply no empirical basis for any of the discretionary decisions SSC is called upon to make in exercising its statutory mandate.
In their motion for summary judgment below and in their briefs on appeal, appellants claim that they have complied with the relevant law and regulations, on a system-wide basis and in their dealings with the individual respondents; that the complaint is unfounded and should be dismissed. The affidavit in support of the motion from the Deputy Administrator in charge of SSC sets forth appellants' analysis of the statutory and regulatory framework for the protective and preventive services. The supporting affidavits of SSC's Director of Court Services detail the steps taken by the social services officials in response to the problems of the original parties plaintiff and the intervenors.
In reviewing the case records for the intervenor families, I find that they fully support the conclusion that the children in the Williams family were at risk of foster placement. As to the Lee family, the record raises questions about the adequacy of the protective service investigation on which SSC based its determination that the report of suspected neglect was unfounded. Moreover, upon searching the record and reviewing the law, I find that appellants have failed to comply with the mandatory directives of Social Services Law §§ 423 and 424 in all cases, due to an erroneous policy promulgated by defendant Commissioner of the New York State Department of Social Services who is not a party to this appeal.
The State defendants have taken the position that the grant of injunctive relief against the State would be inappropriate because it has neither the statutory nor regulatory authority to perform the duties delegated to the local child protective and preventive services. However, defendant Commissioner promulgates the regulations which guide these local services *183 in the performance of their duties and which govern the reimbursement of funds to the local agencies (Social Services Law §§ 409-b, 427). Inasmuch as these regulations impede the local protective service in carrying out its statutory duties, the additional relief specified herein is both necessary and proper. Therefore, I conclude that respondents are also entitled to certain declaratory and injunctive relief not specifically sought below, as specified herein.
The majority takes strong exception both to the reasoning underlying my conclusion that additional relief is warranted and to the propriety of deciding an issue which, it is said, was not specifically addressed by the parties either below or on appeal. I must, however, respectfully disagree with my colleagues on both of these points. As noted above, appellants argued their interpretation of the Social Services Law and the regulations at length, in seeking summary judgment and in their motion for reargument below. They also cited the particular regulation which I find to be contrary to certain statutory provisions, although appellants did not refer to the offending clause (x) (18 NYCRR 432.2 [b] [4] [x]). It should also be noted that respondents argued, in opposition to appellants' motion below, that there was a bona fide legal issue as to whether the individual respondents were entitled to receive mandated services and that "a definitive interpretation of the law is needed to move defendants to provide these services." The lower court, without explicitly addressing appellants' analysis of the law, denied their motion and, in effect, granted summary judgment to respondents. Appellants now challenge that ruling.
We are, therefore, called upon to determine, as a matter of law, what are appellants' duties under the Social Services Law and whether they have acted in accordance with their statutory mandate. In order to do so, we must review all aspects of the relevant law, not merely those portions cited by the parties. After such review, should it appear "that any party other than the moving party is entitled to a summary judgment" then this court, as a division of the Supreme Court, "may grant such judgment without the necessity of a cross-motion" (CPLR 3212 [b]) or a cross appeal (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-111 [1984]).
Appellants maintain that respondents' cases were thoroughly and promptly investigated before this action was commenced and that the investigations revealed no need for, nor any statutory entitlement to the requested preventive services. *184 Nevertheless, preventive services were provided to the individual respondents after they instituted this action. These individuals then withdrew as parties plaintiff. However, two other families, Lee and Williams, who are similarly situated, were granted leave to intervene. Despite the fact that SSC has only recently determined that the children in these families were not at risk of foster placement, and therefore that preventive services were not mandated, preventive services were likewise provided to the intervenor families after they moved to join this action.
The allegations in the affidavits of the individual respondents substantially conflict with the version of events presented in the affidavits of SSC's Director of Court Services. Even if SSC's recitation is fully credited, the picture presented of appellants' response to these cases does little to reassure that they are performing competently. SSC claims that no social services official has ever suggested, nor has any determination been made, that the Williams children are at risk of foster placement. Contrary to the conclusion reached by the majority, I find that the facts which the social services officials knew or should have known regarding this family so plainly indicated imminent danger to the children's health and well-being and, therefore, a risk of foster placement, that SSC's assertion amounts to a declaration that, in this case at least, appellants have inadequately performed their statutory duties.
The Williams family became homeless in September 1985, after Mrs. Williams, who had been deserted by her husband, was forced to leave her sister's small apartment. Mrs. Williams, who was then several months pregnant, and her five children slept in a hallway for several days. In October 1985, the family was sent by the Emergency Assistance Unit to the Roberto Clemente Shelter in The Bronx, a barracks which accommodates several hundred people in a single room. The shelter, however, immediately rejected the family because the youngest child had tuberculosis. Thereafter, the family was provided with temporary emergency housing in the Martinique Hotel,[2] where they occupy one room. Mrs. Williams *185 states that the room is usually cold and her son with tuberculosis "coughs a lot and feels sick because of the cold."
The Crisis Intervention Service (CIS) caseworker who prepared the Williams family intake record on October 23, 1985, noted that the youngest child was taking medication for his tuberculosis, the eldest son was also taking a prescription drug for asthma, and Mrs. Williams was taking antibiotics for a kidney infection. However, the CIS caseworker who interviewed the family on October 30, in the Martinique Hotel, indicated on their "Family Service Assessment" form that there were "no" members of the Williams family under medical care. He also left the form blank where it calls for a description of "any health problems family members have, including * * * any medication prescribed". Not surprisingly, the caseworker concluded that the family did not fit any of the criteria for a health service referral.
In January 1986, Mrs. Williams failed to keep an appointment with her social worker and her whereabouts were unknown until four days later when the social worker contacted Mrs. Williams' sister who said that the children had been left with her. On January 17, Mrs. Williams had had herself admitted to Bellevue Hospital, as a psychiatric emergency patient, because she feared she would hurt either herself or the children. After she was released from the hospital, her sister informed her that she would not again agree to take the children and they would have to go to foster care next time.[3]
On February 18, while taking the subway with her five children from the Martinique Hotel to the Emergency Assistance Unit in Brooklyn, Mrs. Williams went into labor and had to be taken, by ambulance, to the hospital. Her sixth child *186 was born on February 19 with an infection which kept him in the hospital for the first week of his life. He died 40 days later in the Martinique Hotel.
This record indicates several critical failings, not only of the social services worker who neglected to obtain vital health information, but of the DSS case management. It raises serious questions about appellants' performance: was there a comprehensive file kept on the Williams family; was it ever systematically reviewed; if so, why did no one make a report to the protective service regarding the obvious risk to the health of these children? For, it is evident that if people in the Roberto Clemente Shelter were in danger of contracting tuberculosis from the Williams boy, his four siblings, sharing one room with him in the Martinique Hotel, were also in danger.
All social services workers have a statutory duty to report suspected cases of abuse or neglect (Social Services Law § 413), and are expected to be alert to situations which pose an imminent danger to the health and well-being of children. As discussed, infra, it is the report of suspected abuse or neglect which prompts the child protective service to investigate and to make a determination which, ultimately, enables SSC to say whether or not the child is at risk of foster placement, and whether there are services which would eliminate that risk i.e., mandated preventive services. Thus, the failure, ab initio, of DSS social workers to report a case of suspected neglect may lead to the failure to provide preventive services which are mandated by law.
In the case of the Lee family, a report was made to the protective service alleging that the Lee children were not properly fed or clothed because Mrs. Lee was giving her public assistance money to her boyfriend. While the protective service worker made contact with the family within 24 hours, as required, the "investigation" consisted of nothing more than an interview with Mrs. Lee who denied the allegations.
It should be emphasized that it is the children, not the parents, who are the intended beneficiaries of the Child Protective Services Act and the Child Welfare Reform Act. In many instances, particularly where the investigation may uncover evidence of criminal conduct by the parents, the parents' interests may be adverse to those of the child. Consequently, SSC's reliance solely on parental denials of the allegations must be seen as a failing. The Dembitz Committee also criticized the "excessive reliance" by caseworkers on their *187 own impressions of a parent as "concerned" about the child. (Report of the Committee, at 28.) The Committee urged that SSC improve supervision to help its workers "understand the limits of their knowledge about the families, and the need to assess cases on an ongoing basis. Assessment can rarely be completed in one meeting." (Report of the Committee, at 29.)
After the Lee family intervened in this action and SSC agreed to provide services to them, it was discovered that the younger children had not been attending school because they lacked proper immunizations and had other health-related problems. Ongoing contacts with the family revealed conflict between Mrs. Lee and her teen-age daughter who was picked up by the police in Pennsylvania Station with bruises on her face from where her mother had punched her. This problem was resolved by the daughter being sent to live with relatives in the south. The family was eventually given referrals for health services, day-care and housing assistance.
Mrs. Williams, Mrs. Lee and the organizational respondents herein claim that they are entitled to system-wide declaratory and injunctive relief. There can be no doubt as to the irreparable harm which respondents will suffer if the agencies charged with providing protective and preventive services neglect their statutory duties. However, before the court may exercise its formidable equity powers, "no matter how emotionally compelling" the claims may be, respondents are required to show a likelihood of success on the merits (Tucker v Toia, 54 AD2d 322, 326 [4th Dept 1976]). The remedy they seek, in the nature of mandamus, depends on the character of the duty which respondents would have the court compel appellants to perform (Klostermann v Cuomo, 61 N.Y.2d 525, 539-540, supra). The character of that duty is to be found through examination of the Social Services Law.
Child Protective Services and Nonmandated Preventive Services
It is the very strong public policy of this State indeed, "the state's first obligation" to children in destitute families to help the family "with services to prevent its break-up or to reunite it" (Social Services Law § 384-b [1] [a] [iii]; § 131 [3]; see, Matter of Star A., 55 N.Y.2d 560, 566 [1982] [Meyer, J., dissenting]). Yet, this policy must be carefully balanced against the State's duty, as parens patriae, to safeguard the health and well-being of children. (See, Finlay v Finlay, 240 N.Y. 429, 433-434 [1925] [Cardozo, J.]; *188 see also, Santosky v Kramer, 455 US 745, 766-767 [1982].) Article 6 of the Social Services Law, and titles 4 and 6 of that article in particular, establish the complex regulatory scheme through which the State attempts to effect this social policy while, at the same time, fulfilling its moral duty as sovereign.
One aim of Social Services Law, article 6, title 6, is to encourage reporting and investigation of suspected child abuse and maltreatment by establishing, in each county, "a child protective service capable of investigating such reports swiftly and competently" (Social Services Law § 411). The local protective service must also be capable of providing protection for the child or children "from further abuse or maltreatment and rehabilitative services for the child or children and parents involved" (§ 411). To this end, every local child protective service must maintain "a sufficient staff of sufficient qualifications to fulfill the purposes of this title" (Social Services Law § 423 [1]). Adequate numbers of competent staff are essential to the fulfillment of the child protective service's statutory duty because the local child protective service is "the sole public agency" responsible for receiving and investigating, or arranging for the investigation of, "all reports" of suspected child abuse or maltreatment (§ 423 [1]).
The Social Services Law sets out a specific time frame and particularized requirements for the investigation of reports of abuse or maltreatment (Social Services Law § 424). A State-wide central register was created under title 6 to receive reports of suspected abuse or maltreatment from persons under a statutory duty to report such cases (see, Social Services Law § 413) and from other persons making such reports, either openly or anonymously.
It is necessary to emphasize the critical role of those under a statutory duty to report suspected cases of abuse or neglect. Without such reports the statutory mechanisms for protecting children and rehabilitating their families remain idle and ineffective. The willful failure to make a report by persons legally required to do so is a class A misdemeanor and may give rise to civil liability as well (Social Services Law § 420). As noted above, all social services workers are required to report cases "when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child" (Social Services Law § 413).
*189After initial screening, the central register relays the reports to the local child protective service for investigation (Social Services Law § 422). Upon receipt of such a report, the child protective service must commence an appropriate investigation "within twenty-four hours" (Social Services Law § 424 [6]). The protective service investigation must include "an evaluation of the environment of the child named in the report and any other children in the same home" and a determination of the risk to the children if they remain in the existing home environment. (§ 424 [6]). If an initial assessment indicates that this environment presents an imminent danger to the life or health of the child or children, the child protective service caseworker may remove them from the home, in accordance with the provisions of the Family Court Act (§ 424 [8]; see, Family Ct Act § 1024).
Seven days after receiving the report of suspected abuse or maltreatment, the local child protective service must forward a preliminary written report of its initial investigation to the State central register. The preliminary report must include an evaluation of the home environment and a summary of actions taken or contemplated. (Social Services Law § 424 [3].) Thereafter, follow-up reports must be sent periodically to the central register until a final determination is made.
The caseworker must also assess "the nature, extent and cause of any condition enumerated" in the report of suspected abuse or maltreatment (Social Services Law § 424 [6]) and the service has 90 days within which to determine whether the report is unfounded or "indicated" i.e., that "some credible evidence of the alleged abuse or maltreatment exists" (Social Services Law § 424 [7]; § 412 [5], [6]). A protective service investigation is not complete unless these distinct statutory requirements have been met.
While the determination that a report is indicated or unfounded is a matter of discretion, the law requires that the investigation on which that determination is based be conducted "swiftly and competently." The court below found, and I agree, that appellants have not commenced timely investigations in all cases, as required. I further find that appellants have not conducted competent investigations in all cases due to an erroneous policy promulgated by defendant Commissioner of the New York State Department of Social Services.
The adequacy of the protective service investigation must be judged in light of the statutory functions it serves. First and *190 foremost, the protective service is the sole public agency authorized to instigate or to conduct an investigation into the home for purposes of establishing "when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met." (Family Ct Act §§ 1011, 1034; Social Services Law § 424 [11].) The investigation commenced under Social Services Law § 424 provides grounds for initiation of child protective proceedings under the Family Court Act, the only legal avenue for removing the child to foster care. At a minimum, therefore, this investigation must determine whether there is credible evidence, sufficient to warrant judicial intervention by the Family Court i.e., prima facie evidence of abuse or maltreatment, as legally defined.
The definitions of abuse and maltreatment in Social Services Law § 412 incorporate by reference the definitions of abuse and neglect found in section 1012 of the Family Court Act. The definition of neglect is of special concern given the facts presented herein and because, according to one expert, it "has been the predominant type of report (58% of reported cases in 1984) and deprivation of necessities has been the major form of maltreatment identified (55% of maltreated children in 1984) over the history of reporting statistics." (McCabe, Child Neglect: A Research View, in Child Abuse and Neglect, at 23 [Cohen, McCabe and Weiss editors, 1986].)[4] Maltreatment subsumes the category of neglect which is defined as follows in Family Court Act § 1012:
"(f) `Neglected child' means a child less than 18 years of age
"(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care
"(A) in supplying the child with adequate food, clothing, shelter or education * * * or medical * * * care, though financially able to do so or offered financial or other reasonable means to do so". (Emphasis supplied.)
Under this definition, the fact that the child or children are at risk because of material privation is not, of itself, sufficient to support a finding of neglect. Where the parent is financially unable to make adequate food, clothing, shelter, or medical *191 care available, reasonable means for providing these necessities must be offered to the parent.
The determination of whether a report of child neglect is unfounded or indicated must turn on an assessment of the indigent parent's intent and competence in providing the necessities of life to the child once the parent has been given reasonable assistance. Evaluation of parental competence in meeting the child's needs is essential because, however well intentioned the parent may be, good intentions are not enough to insure a child's well-being (Matter of Franz, 55 AD2d 424, 426-427 [2d Dept 1977]). Indeed, the purpose of the protective service investigation is to differentiate those cases where an otherwise competent parent is simply overwhelmed by circumstances outside of his or her control such as being homeless in the midst of New York City's housing crisis from those cases where the parent is irremediably incompetent.
Where, based on the investigation into the home environment, "any child [is] believed to be suffering from abuse or maltreatment" the child protective service must pursue the investigation by offering the parent reasonable means to resolve the problem (Social Services Law § 424 [9]; emphasis supplied).[5] Undoubtedly, there may be instances where the degree of danger posed to the child definitively bespeaks a lack of parental competence, thereby obviating the need to probe any further (Family Ct Act § 1046 [a] [ii]; see, Matter of Shelley Renea K., 79 AD2d 1073 [3d Dept 1981]). However, it is equally certain that in many, if not most, cases the cause of the parental failure will be ambiguous. The offer of reasonable means to eliminate the danger to the child is, therefore, essential to the investigation into suspected neglect. Without it, the protective investigation must be deemed inadequate because it has failed to seek evidence which would establish each of the necessary elements of neglect, as legally defined.
The investigation by the child protective service is not complete once reasonable means have been offered and accepted. *192 The service must monitor the parent's performance to determine whether those means are effective in eliminating the danger to the child, or merely in palliating it. For, in addition to investigating reports of suspected child abuse or maltreatment, the child protective service also has a duty "to prevent further abuses or maltreatment to children and to coordinate, provide or arrange for and monitor the provision of those services necessary to safeguard and ensure the child's well-being" (Social Services Law § 423 [emphasis supplied]).
If the child would again be imperiled by withdrawal of the services or assistance given the parent during the investigation, then the protective service must continue to provide them until such time as they may be withdrawn without endangering the child. Services which are necessary to safeguard the children in the home and without which the children would be at risk of foster placement are mandated under section 409-a (1) and must be provided in accordance with the child service plan, required under section 409-e of the Social Services Law. (See, discussion, infra.)
I cannot agree with the majority's assertion that a child who has been the subject of an indicated abuse or neglect report (one in which credible evidence of abuse or neglect is present) may be left in the home with no protective or preventive services to prevent a recurrence of the abuse or neglect. This would clearly be contrary to the directive of Social Services Law § 423. Moreover, I question SSC's ability to determine that an indicated report of abuse or neglect is merely an isolated incident unless the protective service monitors the parent's performance for some period after the report is deemed indicated and provides services to prevent a recurrence. (See, 18 NYCRR 432.2 [b] [5].)
The majority raises the objection that preventive services are intended, not to protect children in the home, but to rehabilitate the family. It is perfectly clear, however, that if the child is to live safely at home with parents who have abused or neglected him, then the parents must be rehabilitated. This is the protective service's mandate and section 411 requires that it be capable of providing "rehabilitative services for the child or children and parents involved" in the report. The error of the majority's assertion is evident from the regulations: "Rehabilitative service means those services necessary to safeguard and insure the child's well-being and development and to preserve and stabilize family life, including but not limited to preventive services as defined by Part *193 423 of this Title, and protective services for children" (18 NYCRR 432.1 [i], formerly 432.1 [h] [original emphasis]). Indeed, the only function performed by the protective service which is not considered a "rehabilitative service", under this regulation, is the investigation and evaluation of abuse or maltreatment reports.
The distinction between protective and preventive services appears, upon first reading of the regulations, to be more nominal than real. Protective services "shall mean services on behalf of children" who are named "in an alleged or indicated report of abuse and/or maltreatment" (18 NYCRR 432.1 [p], formerly 432.1 [o]). The regulation goes on to list 14 activities which "may be considered protective services for children" and one of these is: "arranging for the provision of appropriate rehabilitative services, including but not limited to preventive services and foster care for children" (18 NYCRR 432.1 [p] [9] [emphasis supplied]). Thus, preventive services would appear to be merely a subset of the "rehabilitative services" which the protective service may offer.
The regulation which defines preventive services (18 NYCRR 423.2 [b]) lists 15 activities in this category. Among the 15 preventive services, 6 are deemed "core services" which must be provided to families entitled to receive mandated preventive services, if their child service plan indicates the need for them. These "core services" are: day-care services; homemaker services; parent aide and parent training services; clinical services; transportation; and 24-hour emergency services (18 NYCRR 423.2 [b], [d]). It is these core services which respondents allege are being denied to them and to others similarly situated, on a system-wide basis.[6]
Although preventive services are mandated under circumstances set forth in subdivision (1) of Social Services Law § 409-a, under subdivision (2) of this section nonmandated preventive services may be provided to a child or his family for *194 the purpose of "averting an impairment or disruption of a family which will or could result in the placement of a child in foster care" (see, Social Services Law § 409 [emphasis supplied]; see also, Social Services Law § 424 [12]). Thus, the Social Services Law plainly authorizes provision of whatever services, protective or preventive, are necessary to avert the possibility of foster placement. Moreover, the law allows these services to be administered at whatever stage of the protective service investigation the caseworker first identifies conditions which, if left uncorrected, might disrupt or impair the family unit.
The regulations promulgated by defendant Commissioner of the New York State Department of Social Services, however, bar the protective service caseworker from offering nonmandated preventive services at any stage of the protective investigation prior to the ultimate determination that the report is indicated. Consequently, the caseworker cannot offer day-care, homemaker,[7] or parent training services as an investigatory tool to determine whether a report of suspected neglect is indicated, even when such services are the only reasonable means for assessing the parent's competence in meeting the child's needs.
Although regulation 432.2 (b) (4) (ii) contains a general authorization to provide or arrange for "services to children named in child abuse and/or maltreatment reports and their families prior to a determination" as to whether the report is indicated (18 NYCRR 432.2 [b] [4] [ii] [emphasis supplied]), regulation 432.2 (b) (4) (x) specifically bars the offer of preventive services before such a determination has been made. Under that regulation, the child protective service caseworker may provide preventive services in addition to protective services only "as long as the case is eligible for mandated preventive services" under 18 NYCRR 430.9 and the caseworker is directly providing services "to the children named *195 in indicated abuse and/or maltreatment reports and their families" (18 NYCRR 432.2 [b] [4] [x] [emphasis supplied]; see also, 18 NYCRR 423.4 [i]).
Thus, upon further examination of the regulations, it becomes clear that "preventive services" are rehabilitative services which may only be provided after a determination that an abuse or maltreatment report is indicated. The majority contends that the rehabilitative services which the child protective service may provide are "in part duplicative of preventive services and in some respects probably more extensive". Therefore, the majority reasons, the above-cited restriction does not preclude the protective service from providing the same type of services (although not called preventive services) during a continuing investigation.
The problem, however, is that if the protective service did so, SSC would forfeit its right to reimbursement. Under section 409-b, 50% of the allowable costs for nonmandated preventive services are reimbursable by the State (see, 18 NYCRR 423.5). Even the majority must concede that it is unreasonable to penalize SSC by denying it reimbursement for services which it has a duty to provide and which it is authorized to provide, under subdivision (2) of section 409-a, and for which it is entitled to reimbursement.
The majority's argument that this regulation does not restrain other social services officials from offering families nonmandated preventive services prior to a determination that they are eligible for mandated services also misses the point. As discussed, infra, there must be an imminent risk that the child will be placed or continued in foster care, and a determination that preventive services will eliminate that risk, before the family is eligible for mandated preventive services under section 409-a (1), or for nonmandated services under regulation 423.3 (b). (But cf., Social Services Law § 409-a [2].) However, a finding that the child is at risk of foster placement presupposes that an abuse or neglect report has been found indicated.[8]
*196A request for preventive services, either directly from a destitute parent or through a referral by DSS or a private agency, must, therefore, be denied unless credible evidence has been found that a child in the home is abused or maltreated. It is completely unrealistic to expect that the parent will provide such evidence or that it will, by chance, be revealed without methodical investigation. Unless a report has been made and the protective service finds credible evidence of abuse or neglect, as legally defined, there is no basis for finding that the child is at risk of foster placement and, therefore, no basis for providing either mandated or nonmandated preventive services.
The majority acknowledges that the protective service is vested with sole responsibility for investigating reports of suspected neglect and for determining when a neglect report is indicated. The foregoing analysis has shown that credible evidence of neglect, as legally defined, is evidence that the parent has failed to adequately provide for the child even though offered reasonable means to do so. The offer of means which might reasonably be expected to eliminate the danger to the child is an indispensable part of the investigation into the reported neglect. Without it there is no evidence of parental fault.
If the protective service investigation fails to uncover such evidence where it exists, no other social services official is authorized to seek it out or to make a determination that the report of suspected neglect is indicated and, therefore, that the child may be removed from the home. Thus, the offer of nonmandated preventive services by the protective service caseworker is an essential option, authorized under the statute but barred under regulation 432.2 (b) (4) (x), for conducting competent investigations into all cases of suspected neglect.
This regulation directly conflicts not only with protective service's statutory duty to investigate, but also with its duty to arrange for and monitor the provision of "those services necessary to safeguard and insure the child's well-being" (18 NYCRR 432.1 [i]) during the 90-day investigatory period. While regulation 432.2 (b) (4) (v) accurately reflects the protective service workers' duty to insure, during the investigation, that "the treatment plan protects the child from further *197 abuse or maltreatment", and that the family "is receiving the kind and degree of treatment services it needs" clause (x) of this regulation eliminates preventive services as an option for the treatment plan, even when such services may be necessary to protect the child and to determine whether the child can remain safely in the home if such services are provided. In essence, regulation 432.2 (b) (4) (x), which makes no distinction between mandated and nonmandated preventive services, makes Social Services Law § 409-a (2) a dead letter.
While an administrative agency's construction and interpretation of the statute under which it functions is entitled to "greatest weight" (Matter of Herzog v Joy, 74 AD2d 372, 375 [1st Dept 1980], affd 53 N.Y.2d 821 [1981]), where such interpretation is erroneous, as a matter of law, it cannot stand. Regulation 432.2 (b) (4) (x) is an impermissible obstacle to fulfillment of the protective service's statutory duties. The option of providing nonmandated preventive services is fundamental to the statutory scheme for detecting cases of neglect, and to the performance of the protective service's duty to provide "those services necessary to safeguard and insure the child's well-being".
Consequently, respondents are entitled, as a matter of law, to a declaration that regulation 432.2 (b) (4) (x) is contrary to the provisions of the Social Services Law and impermissibly impedes the protective service agencies from carrying out their duties thereunder. Defendant Commissioner of the New York State Department of Social Services should be required on remand: to recall regulation 432.2 (b) (4) (x) and to promulgate a new regulation consistent with the provisions of Social Services Law § 409-a (2) and the duties incumbent on the child protective services under sections 423 and 424 of said law; and to review all regulations promulgated under Social Services Law, article 6, titles 4 and 6, to insure that they are consistent with said law; and to redraft any regulations found to be inconsistent or incompatible therewith.
Mandated Preventive Services
Upon a finding by a social services official "that [a] child will be placed or continued in foster care" unless preventive services are provided "and that it is reasonable to believe that by providing such services the child will be able to remain with or be returned to his family", the provision of said preventive services, in accordance with the child's service plan, is then mandated by law (Social Services Law § 409-a [1] [a]). *198 Thus, preventive services are mandated once a two-part finding has been made: (1) that the risk of foster placement or continued foster care is imminent; and (2) that preventive services will be effective in eliminating that risk.
Evidence of neglect, as that term is legally defined, is evidence of parental failure to provide for the child once reasonable means to do so have been offered. As noted above, when dealing with destitute families it will be impossible to determine, in most cases, whether the condition endangering the child is a sign of temporary stress caused, for example, by the family being homeless, or a symptom of deep-seated parental failure. The offer of nonmandated preventive services by the protective service as an exploratory mechanism is essential for determining whether the danger to the child can be eliminated or alleviated if the destitute parent receives assistance. Without it, there is simply no basis, in many cases, on which to make a competent finding as to the need for, or the imminence of, foster placement.
The failure to detect evidence of neglect thus leads to a failure to identify the child or children as being at risk of placement in foster care. That determination, in turn, is what triggers the requirement that SSC prepare a child service plan in accordance with section 409-e. In drafting the child service plan, SSC is required to make a detailed assessment "of the child and his family circumstances" and "of the likelihood that specific preventive services" will improve conditions in the home sufficiently to avert, or reduce the duration of, foster placement (§ 409-e [1] [b]). The provision of nonmandated preventive services during the protective service investigation provides an empirical basis for determining which services, if any, will enable the neglected child to remain safely in the home or be returned to it sooner. Without empirical evidence that services will be efficacious, the 409-e child service plan will be based on mere supposition.
However, as has already been shown, regulation 432.2 (b) (4) (x), promulgated by defendant Commissioner of the New York State Department of Social Services, improperly forbids the child protective service from offering nonmandated preventive services during the investigation as a means of detecting neglect, as legally defined. Without such evidence of parental incompetence there is no legal risk of the child being removed from the home. Inasmuch as the protective service is "the sole public agency" charged with investigating reports of suspected child abuse and neglect, its failure to gather evidence "swiftly *199 and competently" means that children who would otherwise be identified as being at risk of foster placement are left in a dangerous home environment without services to improve the conditions which have escaped detection often with tragic consequences.
This regulation, promulgated in derogation of the provisions of section 409-a (2), directly and adversely affects the administration of mandatory preventive services under section 409-a (1). Indeed, it negates the possibility, in many cases, of the required finding under section 409-a (1) being made by preventing the evidence on which such a finding must be based from ever being gathered.
Appellants contend, and the majority agrees, that respondents are not entitled to the relief that they seek because they never requested mandated preventive services. First, it must be borne in mind that abused and maltreated children are the intended beneficiaries of these services, not their parents. Indeed, the parents' interest may directly conflict with those of the child, in which case a request for services may never be made. Second, and more importantly, the law imposes a clear and compelling duty on SSC to investigate and uncover those cases in which children are endangered in the home and in which preventive services are needed to make the home safe for them. To hold that respondents were required to request preventive services, is to impose a duty where the law creates none and to relieve SSC of the duty incumbent upon it to provide preventive services where investigation reveals they are required, whether or not a request has been made.
Were it not for the State's policy prohibiting protective service agencies from offering nonmandated preventive services when those services are appropriate and necessary for detecting evidence of neglect, families which are entitled to mandated preventive services would be identified and helped far more often than is now the case.
The existence of this policy is clear and convincing evidence that appellants have failed to carry out their statutory duties to conduct and supervise competent child protective service investigations into all cases of suspected neglect; to gather evidence on which to base a finding under Social Services Law § 409-a (1); and to provide mandated preventive services where required by law. Therefore, an injunction directing appellants to perform their statutory duties appears both necessary and appropriate (Klostermann v Cuomo, supra, at 531).
*200While it is true, as the majority points out, that the findings required pursuant to section 409-a (1) are discretionary, the Social Services Law imposes a nondiscretionary duty on the protective service agency to investigate all cases of suspected abuse or maltreatment "swiftly and competently" and a duty to provide those services necessary to safeguard children from abuse or neglect in the home. Thus, while it would be inappropriate for the court to compel the performance of a purely discretionary act, "[w]hat must be distinguished, however, are those acts the exercise of which is discretionary from those acts which are mandatory but are executed through means that are discretionary." (Klostermann v Cuomo, supra, at 539.)
Appellants emphasize the elements of discretion inherent in the determinations preliminary to the mandatory provision of preventive services. However, appellants' duty to timely investigate all reports, to probe for credible evidence of neglect as legally defined, and to provide whatever services are necessary to safeguard the child during the investigation and thereafter, is not discretionary. Each of these nondiscretionary functions is intended to yield information which will enable appellants to determine whether the risk of foster placement exists due to parental neglect and what services, if any, will eliminate that risk by making the home safe for the child.
The Social Services Law vests in appellants various discretionary means for conducting investigations into suspected cases of abuse and neglect, and for protecting children during the 90-day investigatory period and thereafter. Where recourse to those discretionary means is essential to the fulfillment of appellants' statutory duties, then an injunction will issue "to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so" (supra, at 540).
It follows from this analysis of the law that respondents are entitled to an injunction requiring appellants to insure: that all social services workers comply with their statutory duty to report cases in which there is reasonable cause to believe that a child coming before them in their professional capacity is an abused or maltreated child; that the protective service commence investigations into all reports of suspected abuse or maltreatment within 24 hours and complete such investigations within 90 days; that, whenever any child is believed to be suffering from neglect based on the initial protective service evaluation or any subsequent analysis of the home environment, *201 the protective service shall coordinate, provide or arrange for and monitor the provision of appropriate services to the family, including nonmandated preventive services, as a means of determining whether there is credible evidence of neglect, as legally defined, unless it is determined that there are no such services which might reasonably alleviate or eliminate the condition endangering the child, in which case the child or children shall be taken into protective custody pursuant to the provisions of the Family Court Act; and that, whenever it appears, during the protective investigation, that the continuation of said services is necessary to safeguard the child or children in the home or to make the children's safe return to the home possible, then such services are to be provided as mandated preventive services, in accordance with the child service plan drafted under Social Services Law § 409-e.
It is clear that the administrators and social service workers are hard-working people of good faith and that the regulations are complicated and, perhaps, confusing. Despite this, it is to be remembered that the task at hand is the rehabilitation of families, the protection of the health and welfare of children and ultimately, the saving of their lives.
Order, Supreme Court, New York County, entered on or about August 7, 1986, modified, on the law, without costs and without disbursements, to deny the motion of intervenors-plaintiffs for a preliminary injunction requiring the city defendants to prepare service plans within 30 days and to provide all services recommended in such plans; to declare that the findings set forth in Social Services Law § 409-a (1) (a) involve the exercise of discretion and judgment; to declare that a child's service plan prepared in accordance with Social Services Law § 409-e does not constitute a contract enforceable as such by the court; and to dismiss as otherwise nonjusticiable plaintiffs' claim for system-wide declaratory relief with regard to preventive services, and otherwise affirmed. The appeal from the order of the same court entered on or about May 27, 1986 is unanimously dismissed as superseded by the appeal from the order entered on or about August 7, 1986.
NOTES
[1] The findings of the Committee were publicly acknowledged and accepted by defendant-appellant, Commissioner of Social Services, whose Internal Fatality Review Panel had reached similar conclusions in its study of 35 of the 1985 abuse- or neglect-related deaths and of 42 such deaths which occurred in 1986, all of them in families previously known to SSC. (See, mem of Jan. 29, 1987, from William J. Grinker to Stanley Brezenoff, re: Activities of the HRA Internal Fatality Review Panel.)
[2] Among the findings of the Dembitz Committee was the conclusion that families which are temporarily housed in welfare hotels have special needs because "[a]dded to poverty is the disruption of whatever network of support and resources the family had in its old neighborhood" (Report of the Committee, at 74). Seven of the children whose deaths were investigated lived in welfare hotels. The Committee pointedly recommended the replacement of "welfare hotels" with decent housing for the growing number of New York's homeless families with children. Although it is acknowledged that this was a long-term solution, the Committee advocated that while the welfare hotels exist, "preventive and protective services must be supplied to meet the special dangers to children who live there."
[3] It is not surprising that SSC found no report from Bellevue Hospital in its files, indicating that the Williams children might be at risk of abuse or neglect. The Dembitz Committee found that the law requiring hospitals to report suspected abuse or neglect was "an insufficient safeguard" because the mental health professionals are not always aware of the child's existence. (Report of the Committee, at 45-46.) What is surprising, however, is that the DSS social workers, who knew that the mother of these five children had reached the limits of her ability to cope, saw no danger to the children.
[4] Dr. Maryann McCabe was the Director of the Child Sexual Abuse Project for the New York State Department of Social Services until 1986.
[5] Should the parent refuse the reasonable means offered to alleviate the child's distress, that refusal is evidence of neglect and the child protective service may seek a Family Court order to compel the parent to accept the services offered. (Social Services Law § 424 [10]; 18 NYCRR 432.2 [b] [4] [iv]; see, Family Ct Act §§ 1027, 1054.) If the parent persists in neglecting the child's needs despite diligent efforts by the social service agencies to help the parent provide for the child, the Family Court may ultimately terminate his or her parental rights (Family Ct Act § 1031; Social Services Law § 384-b; see also, Matter of Star Leslie W., 63 N.Y.2d 136, 142-143 [1984]).
[6] Respondents have submitted a report titled "Foster Care 1984," on the implementation of the recommendations from the Mayor's Task Force on Foster Care. (See, affidavit of Sister Mary Paul in support of the motion for a preliminary injunction.) This report is quite critical of appellants' performance in delivering preventive services and it supports respondents' claim that very few families receive the most needed supportive preventive services. The report states: "Unfortunately, as a result of State law and regulations and City Policy, the vast majority of funds from the Child Welfare Reform Act are used for counseling and case planning rather than to provide concrete assistance such as shelter, homemakers, day care, or emergency cash grants."
[7] The majority asserts that the protective service is authorized, during the investigation, to provide day-care and homemaker services which, under regulation 432.1 (p) (10), "may be considered protective services" but which, under regulation 423.2 (b), are defined as preventive services. However, a close reading of regulation 432.1 (p) (10) does not support this. "Programmatic need for [these] service[s] must have been established as a result of the investigation" into a report of abuse or maltreatment and these services must terminate when the case is closed with the central register "pursuant to the standards set forth" for closing indicated cases (18 NYCRR 432.1 [p] [10]; 432.2 [c]; cf., 18 NYCRR 432.9, governing disposition of unfounded reports).
[8] The imminent risk of foster placement arises only when legal grounds for removing the child from the home, pursuant to article 10 of the Family Court Act, are found to exist. An article 10 petition must allege "facts sufficient to establish that a child is an abused or neglected child under this article" or, that the return of the child to his parent's custody "would place the child in imminent danger of becoming an abused or neglected child." (Family Ct Act § 1031 [a], [d].) Unless there is evidence of abuse or neglect, the child cannot be removed from the home. The strong, constitutionally protected interest of parents in retaining custody of their children requires a showing of parental fault or unfitness before the State may interfere in the parent-child relationship. (Stanley v Illinois, 405 US 645, 649-657 [1972].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2564286/ | 298 F.Supp.2d 1010 (2003)
UNITED STATES of America, Plaintiff,
v.
MAUI COUNTY, Defendant.
No. CIV.03-00362SPK/KSC.
United States District Court, D. Hawai`i.
December 29, 2003.
*1011 James Todd, Jr., Diane Houk, Je Yon Jung, U.S. Department of Justice, Roman Storzer, Anthony Picarello, Derek L. Guabatz, The Becket Fund for Religious Liberty, Washington DC, Charles Hurd, Hurd & Luria, Honolulu, HI, for Plaintiffs the United States of America.
Madelyn S. D'enbeau, Jane Lovell, Department of the Corporation Counsel, Wailuku, HI, for Defendant Maui County.
Marci A. Hamilton, Washington Crossing, PA, for Amicus National League of Cities.
ORDER DENYING MOTION TO DISMISS
SAMUEL P. KING, Senior District Judge.
The United States of America ("Government") brought this suit under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"). The suit was filed in July of 2003 against the Maui Planning Commission, although it is probably more proper to have "Maui County" as the actual Defendant. Maui County has not yet filed an answer and has instead filed a motion to dismiss. The suit parallels the pending action Hale O Kaula Church v. Maui County, Civ. No. 01-615SPK/KSC, which was filed over two years ago and which has already led to several orders of this Court on various aspects of that case.
The factual background of this suit is set forth in two published decisions at Hale O Kaula Church v. The Maui Planning Comm'n, 229 F.Supp.2d 1050 (D.Haw. 2002) and Hale O Kaula Church v. The Maui Planning Comm'n, 229 F.Supp.2d 1056 (D.Haw.2002), which denied a motion for preliminary injunction and a motion to dismiss. The Court also issued two orders earlier this year denying Maui County's other motions to dismiss which were based upon the procedural posture of proceedings in state court. The County had *1012 sought to dismiss this suit on ripeness grounds because Hale O Kaula Church had filed an administrative appeal of the special use permit denial in state court after this Court dismissed the supplemental state court claims without prejudice. The state court has since stayed its proceedings pending Federal proceedings.
ANALYSIS
1. The Government's Action is not Barred by the Statute of Limitations.
Maui County first contends that the United States' complaint is time-barred. This suit was filed on July 10, 2003. The County argues that a two-year statute of limitations applies under RLUIPA and that the United States' suit was not filed within two years of the denial of the special use permit (as alleged in the complaint) that led to this suit. RLUIPA itself does not have a statute of limitations, so the County relies on a rule that the most applicable state law statute of limitations should apply. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (holding that federal courts apply a forum state's personal injury statute of limitations for 42 U.S.C. § 1983 claims). Because RLUIPA is a civil rights statute similar to section 1983, absent other applicable law, a two-year period would apply in Hawaii. Linville v. Hawaii, 874 F.Supp. 1095, 1104 n. 5 (D.Hawai'i 1994) (finding that two-year period applies to section 1983 claim); Lesane v. Hawaiian Airlines, 75 F.Supp.2d 1113 (D.Hawai'i 1999) (applying two-year period to section 1981 claim).
The Government, however, looks to 28 U.S.C. § 1658, which is a four-year catchall federal statute of limitations. Section 1658 provides:
Time limitations on the commencement of civil actions arising under Acts of Congress
(a) Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section [Dec. 1, 1990] may not be commenced later than 4 years after the cause of action accrues.
RLUIPA was enacted in 2000, which is well after the December 1, 1990 date provided for in section 1658. The County, however, retorts that since RLUIPA specifically refers to then-existing law and purports to codify existing precedent, that it does not fit within the meaning of section 1658. See Jones v. R.R. Donnelley & Sons, Co., 305 F.3d 717 (7th Cir.2002), cert. granted, ___ U.S. ___, 123 S.Ct. 2074, 155 L.Ed.2d 1059 (May 19, 2003) (finding that state personal injury statute of limitations applied rather than federal four-year "catch-all" provision of section 1658 to a discrimination claim based upon the 1991 amendments to the Civil Rights Act); Zubi v. AT&T Corp., 219 F.3d 220 (3d Cir.2000) (holding the same and reasoning that state statutes are not borrowed unless there are no federal rules that apply). However, there is a split in Circuits in this area. See Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506, 512-14 (6th Cir.2003) (noting split and holding that four-year provision in section 1658 applies). The Supreme Court has granted certiorari on this issue and it is scheduled for the present term. See Jones v. R.R. Donnelley & Sons Company, ___ U.S. ___, 123 S.Ct. 2074, 155 L.Ed.2d 1059 (2003, granting certiorari).
Nevertheless, despite some present uncertainty in how section 1658 is interpreted, RLUIPA created a new cause of action. RLUIPA unlike the Civil Rights Act and 42 U.S.C. § 1981 which are at issue in Jones and Zubi, among other cases did not purport to amend any existing statute. RLUIPA dates from 2000, *1013 even if it codified existing precedent (largely post-1990 precedent). Thus, under either interpretation of Jones and Zubi, it is proper to apply a four-year statutory period under section 1658. The suit is not time-barred.
Ultimately, however, the statute of limitations issue is moot. This is because, even if a two-year limitations period applies, the government's suit would not be barred. As mentioned earlier, this suit was filed on July 10, 2003. Although the complaint references the April 30, 2001, recommendation by the hearings officer to deny the Church's special use permit and the corresponding June 27, 2001, adoption of her recommendation by the Maui Planning Commissionboth outside a 2-year limitations periodit is clear by the record in the first case (Hale O Kaula Church v. The Maui Planning Comm'n, Civ. No. 01-615SPK) that the denial of the permit was not signed by all commissioners until August 14, 2001, and was not filed and effective until August 20, 2001. See Hale O Kaula Church, 229 F.Supp.2d at 1063. Both these datesAugust 14, 2001, and August 20, 2001fall within two years of the filing of this complaint. Both events are necessary to make a lawsuit based upon a denial of a special use permit ripe for review. Even if a two-year period applies, the government's suit was timely.[1] The statute of limitations (whichever applies) does not bar this suit.
2. "Maui County" (rather than the "Maui Planning Commission") technically is the proper Defendant.
Defendant Maui Planning Commission next makes a technical argument that the Government has named the wrong party as a Defendant. It contends that "the Maui Planning Commission" is not an independent legal entity and thus is not amenable to suit. See Meyer v. City and County of Honolulu, 6 Haw.App. 505, 729 P.2d 388, 390 n. 1 (1986) ("Not being an independent legal entity, the [Honolulu Police Department] should have been dismissed as a separate defendant. All liability charged against the HPD would be charged against defendant City."), aff'd in part, rev'd in part, 69 Haw. 8, 731 P.2d 149 (1986). While this might be true, the Maui Planning Commission does not claim to have immunity and it cannot be disputed that the County of Maui or "Maui County" is a proper nominal defendant. Moreover, the Maui County Department of Corporation Counsel would presumably serve as counsel regardless of how the Defendant was named.
It would be pointless to dismiss this action only to allow the United States to file an amended complaint, which would relate back to the initial complaint, substituting Maui County for the Maui Planning Commission. The Court sua sponte[2] substitutes "Maui County" for the "Maui Planning Commission" as the Defendant in this action.
3. The United States has Standing to Bring This Action.
Next, Maui County argues that the United States lacks standing to bring this action because no permit was actually denied to the United States. The argument *1014 is that there is no "case or controversy" because the United States was not actually injured by the permit denial at issue. Maui County also asserts that by bringing this suit under RLUIPA, the federal government violates the Tenth Amendment because it intrudes in an area of traditional local concern, i.e., the federal government has no power here to act in an area reserved for the states.
This argument fails. RLUIPA itself contains specific authorization for the United States to enforce the statute. Section 4(f) of RLUIPA provides:
The United States may bring an action for injunctive or declaratory relief to enforce compliance with the Act.
42 U.S.C. § 2000cc(4)(f). An "injury" for purposes of Article III of the U.S. Constitution "may exist solely by virtue of statutes creating legal rights." Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in absence of statute." Id. at 514, 95 S.Ct. 2197. "Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules." Id. at 501, 95 S.Ct. 2197.
The argument that the United States has no standing appears to be a different way of arguing that RLUIPA itself is unconstitutional. In other words, the standing argument is circular. If Congress otherwise exceeded its powers in enacting RLUIPA, then perhaps the United States has no power to enforce constitutional rights of the Hale O Kaula church. But, if RLUIPA satisfies constitutional muster, then the United States is a proper party to enforce its provisions.
4. RLUIPA is Constitutional.
It bears repeating that many of the same arguments that were made last year in the Hale O Kaula Church v. Maui County suit are repeated here. Although there is now additional case law, none of it is truly binding on this Court. The Court does not intend to start over again in this action.
A. RLUIPA Does Not Violate the Establishment Clause.
To date, four Circuitsincluding the Ninthhave issued opinions on whether RLUIPA violates the Establishment Clause[3] by impermissibly advancing religion.[4] The Fourth, Seventh, and Ninth Circuits have upheld RLUIPA's constitutionality under an Establishment Clause challenge. See Madison v. Riter, 355 F.3d 310, 2003 WL 22883620 (4th Cir. Dec.8, 2003); Charles v. Verhagen, 348 F.3d 601 (7th Cir.2003); Mayweathers v. Newland, 314 F.3d 1062, 1068-69 (9th Cir.2002), cert. denied, ___ U.S. ___, 124 S.Ct. 66, 157 L.Ed.2d 30 (U.S. Oct. 06, 2003). On the other hand, the Sixth Circuit recently found RLUIPA unconstitutional as an Establishment Clause violation. See Cutter v. Wilkinson, 349 F.3d 257 (6th Cir.2003). All those cases, however, were in the prisoner context.
*1015 Given the Ninth Circuit law again, albeit in a prison litigation context there is little reason to find differently in the land use context. The Establishment Clause arguments are essentially the same. If RLUIPA does not constitute an impermissible advancement of religion for institutionalized persons as against prisons, it would not seem to do so for non-institutionalized persons as against municipalities in land use decisions. The Court therefore rules consistently with Ninth Circuit precedent in a prison context and finds that RLUIPA does not violate the Establishment Clause in a land use context.
B. RLUIPA Does Not Violate the Commerce Clause.
Maui County, and its amici, also argue that Congress violated the Commerce Clause because there is no substantial effect on interstate commerce. The Court has already decided in Hale O Kaula Church v. Maui Planning Comm'n, 229 F.Supp.2d at 1071-73, that RLUIPA does not facially violate the Commerce Clause. That decision reasoned that because RLUIPA has a jurisdictional element, 42 U.S.C. § 2000cc(a)(2)(B),[5] cases such as United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (striking down on commerce clause grounds the Gun-Free School Zones Act because the regulated activity did not substantially affect interstate commerce), did not apply. There is no reason to rethink this part of the decision here. For the reasons stated in the previous order, 229 F.Supp.2d at 1071-73, the Court finds that RLUIPA does not violate the Commerce Clause.
C. RLUIPA Does Not Violate the Tenth Amendment.
Likewise, the Court rejects the argument that Congress violated the Tenth Amendment when it passed RLUIPA. Although RLUIPA does "intrude" to some extent on local land use decisions, there is nothing about it that violates principles of federalism (i.e., federal intrusion into state matters) if the federal statute is otherwise grounded in the Constitution. RLUIPA is not federal zoning of county land; it is federal enforcement of federal rights. Here, assuming for the moment that RLUIPA is a proper exercise of either the Commerce Clause or Section 5 of the Fourteenth Amendment (or both), then the federal government would be constitutionally permitted to regulate some aspects of land use. Just as the federal Fair Housing Act (enacted under the Commerce Clause) functions in part to regulate local land use, RLUIPA also functions to regulate in an area of traditional local concern. One can think of many other valid federal statutes that incidentally or substantially impact on local land use or zoning regimes. See, e.g., Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, regarding public accommodations; or the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B), regarding federal regulation of local zoning requests of wireless service providers. Such federal statutes properly apply to municipal zoning decisions. See, e.g., Forest City Daly Housing, *1016 Inc., v. Town Of North Hempstead, 175 F.3d 144, 151 (2d Cir.1999).
The Tenth Amendment argument is subsumed by the other arguments regarding RLUIPA's constitutionality. See United States v. Jones, 231 F.3d 508, 515 (9th Cir.2000) ("[I]f Congress acts under one of its enumerated powers, there can be no violation of the Tenth Amendment"). There is no independent violation of the Tenth Amendment here.
D. RLUIPA Does Not Violate Section 5 of the 14th Amendment.
The final argument is that Congress exceeded its powers under Section 5 of the Fourteenth Amendment in enacting RLUIPA. Previously, this Court held that existing precedent required the application of a strict scrutiny test to measure the actions of the Maui Planning Commission in denying the special use permit to Hale O Kaula Church. Because a strict scrutiny test applied regardless of RLUIPA, the Court decided there was no need to rule on all aspects of RLUIPA's constitutionality. Now, however, because the federal government relies on RLUIPA to bring this suit, it becomes necessary to rule on RLUIPA's constitutionality.
Again, the main arguments regarding the 14th Amendment were argued to this Court last year. The Court has reviewed the various decisions in this area since then. See Murphy v. Zoning Comm'n of the Town of New Milford, ___ F.Supp.2d ___, 2003 WL 22299219 (D.Conn. Sept.30, 2003) (finding RLUIPA constitutional under section 5 of the 14th Amendment); Westchester Day School v. Village of Mamaroneck, 280 F.Supp.2d 230 (S.D.N.Y.2003) (same); Freedom Baptist Church of Delaware Cty. v. Middletown, 204 F.Supp.2d 857, 874 (E.D.Pa.2002) (same); Christ Universal Mission Church v. Chicago, Civ. No. 01-C-1429 (N.D.Ill. Sept. 11, 2002) (adopting reasoning from Freedom Baptist Church) (Order at Exh. 5 to Plaintiff's Opposition Memorandum); Life Teen, Inc. v. Yavapai County, No. 01-1490 (D.Ariz. Mar. 26, 2003) (Order at Exh. 4 to Plaintiff's Opposition Memorandum) (same); but see Elsinore Christian Center v. City of Lake Elsinore, 291 F.Supp.2d 1083 (C.D.Cal.2003) (finding Congress exceeded its powers under section 5). Upon such review, the Court agrees with and adopts the reasoning in the decisions finding RLUIPA to be a proper exercise of congressional power under the 14th Amendment.
If, as the Court finds here, RLUIPA codified existing precedent regarding when to apply the strict scrutiny test (i.e., if a generally applicable and neutral law also contains exceptions based upon "individualized assessments" which can be used in a pretextual manneras is the special use permit process) then it is Constitutional.
Even if Congress went a little further in codifying an extension of the "individualized assessments" doctrine from an unemployment benefits context (as in Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)) to a land use context, it acted with "congruence and proportionality" in codifying strict scrutiny in this context. See Boerne, 521 U.S. at 518, 117 S.Ct. 2157 ("There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become [impermissibly] substantive in operation and effect."). There appears to have been sufficient congressional inquiry into whether local land use boards could use, or were using, "individualized assessments" (such as the special permit process under Haw.Rev.Stat. § 205-6) in an otherwise neutral and general scheme, as a *1017 pretext for religious discrimination so as to justify applying a strict scrutiny test of such local land use decisions. See 146 Cong. Rec. at S7774 ("The hearing record compiled massive evidence that this right [of free exercise of religion] is frequently violated").
5. The Seventh Circuit's Opinion in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir.2003) Does Not Require Dismissal.
Finally, Maui County makes much of the August 20, 2003, opinion of the Seventh Circuit in C.L.U.B. v. City of Chicago, 342 F.3d 752 (7th Cir.2003) and argues that the United States' suit fails to state a claim. The case does not help, at least for this motion.
C.L.U.B., among other things, upheld the dismissal of a group of religious organizations challenging the City of Chicago's zoning laws regarding location of churches in certain commercially-zoned areas. Essentially, the Seventh Circuit upheld a facial challenge to Chicago's laws that required churches to apply for certain exemptions. In this regard, it is consistent with the Court's previous decision in Hale O Kaula Church, which held that Hawaii's land use law was not facially unconstitutional by requiring churches to have to apply for special use permits to have a church within an agricultural district. See Hale O Kaula Church, 229 F.Supp.2d at 1069-70. Because the Seventh Circuit found no constitutional violations, it did not reach whether RLUIPA was constitutional. C.L.U.B., 342 F.3d at 762. Most importantly for present purposes, the opinion did not involve an as-applied challenge as is at issue here; the opinion is therefore not a reason to dismiss the United States' complaint in this action.
CONCLUSION
There is no statute of limitations bar to this action. The United States has standing. The Court substitutes "Maui County" as a Defendant in place of "Maui Planning Commission." The Court finds that RLUIPA is Constitutional. Maui County's Motion to Dismiss is DENIED.
IT IS SO ORDERED.
NOTES
[1] Even if this Court is limited to the allegations of the complaint, it would be pointless to dismiss the suit only to have the United States file an amended complaint alleging the relevant denials in August 2001. Alternatively, it would also be pointless to allow jurisdictional discovery on this issue in this suit because the Court has already determined in the first suitand the factual record is undisputed that the permit was not officially denied until August 20, 2001.
[2] See Fed.R.Civ.P. 19 and 21.
[3] "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I.
[4] In his concurring opinion in City of Boerne v. Flores, 521 U.S. 507, 536-37, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), Justice Stevens concluded that RLUIPA's predecessor, the Religious Freedom Restoration Act ("RFRA") violated the Establishment Clause. No other Justice, however, joined his concurrence and Boerne struck RFRA down because the Court held that Congress had exceeded its powers under the Fourteenth Amendment in defining the contours of a constitutional right.
[5] It provides:
This subsection [Protection of land use as religious exercise] applies in any case in which
. . . . .
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce ... among the several States ... even if the burden results from a rule of general applicability[.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611939/ | 76 Wash. App. 165 (1994)
884 P.2d 610
THE STATE OF WASHINGTON, Respondent,
v.
RONALD THEODORE WELLER, Appellant.
No. 13115-7-III.
The Court of Appeals of Washington, Division Three.
September 27, 1994.
As amended by order November 10, 1994.
Brian O'Brien, for appellant.
Donald C. Brockett, Prosecuting Attorney, and Kevin M. Korsmo, Deputy, for respondent.
*166 [As amended by order of the Court of Appeals November 10, 1994.]
MUNSON, J.
Ronald Weller appeals his conviction on one count of possession of a controlled substance, marijuana, with intent to manufacture. He contends the court should have suppressed evidence found in the execution of a search warrant because the warrant was based on illegally obtained utility records and an impermissible ruse entry. We affirm.
An anonymous informant told a Spokane County Deputy Sheriff that Ronald Weller was possibly growing marijuana at S. 103 Ray. Deputy David Knechtel used law enforcement records to verify that Mr. Weller lived at that address. He then gave Washington Water Power a written form indicating an interest in the electrical power records for that address. The records provided in response showed a substantial increase in power usage beginning about 1 year earlier.
Deputy Knechtel and another deputy went to the residence at S. 103 Ray and knocked on the door. A young man opened the door and Deputy Knechtel immediately smelled the odor of fresh marijuana. He told the young man they were there to look for a table saw. The young man said they had the wrong address and they left.
Deputy Knechtel prepared an affidavit setting forth the evidence of increased power usage at the residence and describing his visit to the residence. He obtained a search warrant for Mr. Weller's residence. Execution of the warrant resulted in the discovery of numerous marijuana plants, dried marijuana and equipment used to grow marijuana.
Mr. Weller moved to suppress the evidence found in the search of his residence. The court ruled the written request for utility records failed to meet the requirements of RCW 42.17.314 which limits law enforcement inspection of public utility records, and determined the power usage information could not be considered in determining the sufficiency of the affidavit. The court ruled the odor of marijuana provided sufficient grounds for a search warrant, the use of a ruse did *167 not violate privacy rights because the deputy did not enter the home, and the evidence would not be suppressed.
On the day of trial, Mr. Weller renewed his motion to suppress. The trial court ruled the consumption records were not obtained illegally because RCW 42.17.314 applies only to public agencies and Washington Water Power is not a public utility. Mr. Weller was convicted and filed this appeal.
Mr. Weller contends the trial court erred in ruling the sheriff's request for power consumption records was not subject to RCW 42.17.314. The statute requires a law enforcement authority who requests records which belong to a public utility district to provide a written statement that it "suspects that the particular person to whom the records pertain has committed a crime". By its terms, RCW 42.17.314 applies only to "public utility districts or municipally owned electrical utilities ...". State v. Faydo, 68 Wash. App. 621, 625, 846 P.2d 539, review denied, 121 Wash. 2d 1034 (1993). Washington Water Power is neither a public utility nor a municipally owned electrical utility. The statute does not apply.
[1] Mr. Weller contends the power use records should not have been considered in considering the sufficiency of the search warrant affidavit because they were obtained in violation of privacy interests which are protected by Washington's constitution. An appellate court will not decide a constitutional issue when the case can be decided on other grounds. State v. Tingdale, 117 Wash. 2d 595, 599, 817 P.2d 850 (1991). Because the following issue is dispositive of the case, we do not reach Mr. Weller's constitutional argument.
[2, 3] Mr. Weller next contends the deputies' use of a ruse to gain access to his home was unlawful because they lacked a reasonable suspicion of criminal activity. A reasonable suspicion of criminal activity is not required to support the use of a ruse. State v. Hastings, 119 Wash. 2d 229, 830 P.2d 658 (1992). Further, Deputy Knechtel did not enter Mr. Weller's residence. A front porch is not a constitutionally protected area; officers may enter a porch and detect the odor of marijuana without violating a resident's constitutionally protected *168 right of privacy. State v. Myers, 117 Wash. 2d 332, 344-45, 815 P.2d 761 (1991).
[4] Mr. Weller contends the information Deputy Knechtel obtained by visiting his home should not have been considered in determining probable cause because it was the fruit of the information illegally obtained from the utility company. Evidence is only inadmissible as "fruit of the poisonous tree" if it has been gathered by exploitation of the original illegality. State v. Aydelotte, 35 Wash. App. 125, 131, 665 P.2d 443 (1983).
[5] The deputy testified the decision to visit the residence was not based on the information obtained from Washington Water Power. The information about power consumption was not needed to provide a basis for the visit to the residence. Discovery of the odor of fresh marijuana was not obtained by exploiting the power consumption information, and was properly considered in determining probable cause. Information in the affidavit showing the deputy smelled fresh marijuana was sufficient to establish probable cause for the search warrant. State v. Remboldt, 64 Wash. App. 505, 510-11, 827 P.2d 282, review denied, 119 Wash. 2d 1005 (1992).
Affirmed.
THOMPSON, C.J., and SWEENEY, J., concur.
After modification, further reconsideration denied November 10, 1994. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611938/ | 884 P.2d 901 (1994)
131 Or. App. 290
STATE of Oregon, Respondent,
v.
Jose ARROYO-SOTELO, aka Pedro Rendon Betancourt, aka Angel Arroyo-Moreno, Appellant.
89CR0051; CA A78912.
Court of Appeals of Oregon.
Argued and Submitted January 19, 1994.
Decided November 16, 1994.
Antonio Salazar, Seattle, WA, argued the cause for appellant. With him on the brief was Linda Friedman Ramirez, Portland.
Douglas F. Zier, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.
*902 Before DEITS, P.J., and RIGGS and HASELTON,[*] JJ.
DEITS, Presiding Judge.
Defendant appeals his conviction for possession of a schedule II controlled substance (cocaine). ORS 475.992(4)(b). He assigns as error the trial court's denial of his motion to suppress evidence seized following the consensual search of his car. We reverse.
On October 18, 1988, at approximately 9:50 p.m., Officer Anderson stopped the car that defendant was driving for failure to maintain a single lane, a traffic infraction. After concluding that defendant was not under the influence of intoxicants, Anderson told defendant that he was going to issue him a warning and asked for his driver license and vehicle registration. Defendant gave Anderson a California driver license, but could not produce the car's registration. According to Anderson, defendant appeared extremely nervous and was unable to remember the name of his friend who owned the car. Defendant said that the friend's name was listed on the temporary permit. Anderson told defendant that it would take a few minutes to radio the appropriate information to dispatch. Dispatch informed Anderson that the car's title had been transferred eight times in the past four months and that the registered owner was the person whose name was listed on the temporary permit. Anderson also learned that the California driver license was valid, but that it had been surrendered.
Anderson turned off his overhead lights and approached defendant, who was now out of his car. He issued defendant a warning for the traffic infraction and told him that if he was tired, he should let his passenger drive. He then returned defendant's driver license and told him that he was free to go. As defendant turned backed towards his car, Anderson asked him if he had any weapons in the car. Defendant laughed, said no and told Anderson that he could look if he wanted to. Anderson then asked him if there were narcotics, cocaine, marijuana, heroin or large amounts of currency in the car. Defendant said no. Anderson then asked for permission to search the car. Defendant told him to "go ahead and look." Anderson also asked defendant's passenger if there were narcotics, money or weapons in the car. The passenger also answered no and consented to a search of the car for those items.
Before conducting the search, Anderson called for the assistance of a second officer. After Officer Melahn arrived, Anderson asked defendant to open the trunk, which he did. Anderson found luggage and a purse in the trunk. After getting consent from the passenger to search the purse, Anderson found several thousand dollars inside it. He asked the passenger why she had not told him about the cash. She responded that she believed he had only asked her about cash in the car. Anderson again asked defendant and his passenger if there were large amounts of cash in the car, and they said no.
At the suppression hearing, Anderson testified that, based on his training and experience in investigating narcotics trafficking, he knew that contraband is often concealed behind the panels of car doors. During the search of defendant's car, Anderson removed two screws from the rear passenger armrest molding and, in order to look into the hollow compartment between the panel and the sidewall of the car, pried the panel away from the sidewall. By peering behind the panel, he saw a large amount of cash in the compartment. Anderson returned to where defendant was standing and again asked him if there were large amounts of cash in the car. Defendant again said no. Anderson returned to defendant's car and, as he was lifting the side panel out, he saw several stacks of cash, on top of which there was a clear plastic bag with white powder inside it. At that point, Anderson arrested defendant and advised him of his Miranda rights. Defendant's arrest occurred approximately 15-20 minutes after the start of the search.
Defendant argues that Anderson's conduct in taking out two screws and prying the panel from the sidewall of the car exceeded the scope of his consent to search,[1] thus *903 violating his rights under Article I, section 9, and the Fourth Amendment.[2] The trial court, relying on our decision in State v. Allen, 112 Or.App. 70, 826 P.2d 127, rev. den. 314 Or. 176, 836 P.2d 1345 (1992), determined that Anderson's search of the car did not exceed the scope of defendant's consent:
"[A]n officer indicating what it is he's going to search for, in this case drugs, money or weapons[,] and there was no limitation placed on the scope of the search[,] then the analysis in [State v. Allen, supra,] seems to indicate that * * * the allowable search, may be fairly broad and I think the inference from that is that the officer is entitled to look in places where those kind of items would likely be found and again * * * the officer is entitled to use his intelligence and his experience in likely places to find drugs. He did so [in removing the side panels], and in what I would think would be a permissible area, given the fact there were no limitations on the search that the Court would not find that the scope of the search exceeded the consent and so the motion to suppress will be denied."
We first consider defendant's claim under Article I, section 9, of the Oregon Constitution. State v. Kennedy, 295 Or. 260, 266, 666 P.2d 1316 (1983). As a threshold matter, we must clarify the proper standard for reviewing the trial court's holding that Anderson's actions did not exceed the scope of defendant's consent. The issue is whether the trial court's holding is to be reviewed as a question of law or as a finding of fact that must be sustained if supported by any evidence in the record. We first note that the factual circumstances surrounding a consent to search are often critical in determining whether the breadth of the consent has been exceeded. Cf. State v. Weaver, 319 Or. 212, 214, 874 P.2d 1322 (1994). Questions of historical fact that bear directly on that issue include the content of the request for consent, the duration of the search and the places and items inspected. When the trial court makes such findings, and there is evidence in the record to support them, the findings will not be disturbed on appeal. State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991).
However, once the facts have been decided, their legal effect is a question of law. In the federal courts, it is recognized that the issue of whether an officer has overstepped the boundaries of a defendant's consent, thereby encroaching on the defendant's Fourth Amendment right to privacy, is to be reviewed as a question of law. See U.S. v. Rich, 992 F.2d 502, 505 (5th Cir.), cert. den. ___ U.S. ___, 114 S. Ct. 348, 126 L. Ed. 2d 312 (1993); U.S. v. Ibarra, 965 F.2d 1354, 1357, 1361 (5th Cir.1992). Although neither the Oregon Supreme Court nor this court has expressly declared that whether an officer exceeded the scope of a consent, and thus infringed on the defendant's rights under Article I, section 9, is ultimately a question of law, the issue consistently has been reviewed as such; that is, it has been assessed anew without regard to the trial court's holding on the matter. See State v. Allen, supra; State v. Allen, 104 Or.App. 519, 802 P.2d 91 (1990), rev. den. 311 Or. 261, 808 P.2d 1015 (1991); State v. Gaither, 76 Or.App. 201, 708 P.2d 646 (1985).
Our task here, then, is to determine whether the trial court's factual findings, supported by the record, are adequate to sustain its legal conclusion that Anderson acted within the scope of defendant's consent. See, e.g., State v. Stevens, supra, 311 Or. at 135, 806 P.2d 92 (articulating same standard for reviewing voluntariness of consent). In making this inquiry, we first note *904 that the standard for determining the scope of a suspect's consent under the Fourth Amendment is that of "objective reasonableness," with the critical inquiry focusing on what a "typical reasonable person [would] have understood by the exchange between the officer and the suspect[.]" Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed. 2d 297 (1991). In our decisions involving the scope of consent under Article I, section 9, we have never explicitly articulated our standard; however, we have consistently evaluated the intent of the consenting parties objectively, looking at the totality of the circumstances of the particular case. See, e.g., State v. Allen, supra, 112 Or.App. at 74-75, 826 P.2d 127; State v. Allen, supra, 104 Or.App. at 523, 802 P.2d 91, State v. Gaither, supra, 76 Or.App. at 205, 708 P.2d 646. Similarly, Oregon courts have recognized that questions involving the propriety of police conduct under Article I, section 9, customarily are judged on an objectively reasonable basis, requiring an inquiry into the surrounding circumstances of the particular case. See, e.g., State v. Bates, 304 Or. 519, 747 P.2d 991 (1987); State v. Pavelek, 122 Or.App. 181, 857 P.2d 863 (1993) (deciding whether police officer's actions were reasonable safety precautions under the circumstances).
We thus conclude that the "objective reasonableness" standard articulated in Florida v. Jimeno, supra, best comports with the requirements of Article I, section 9. That standard also provides police with a practical and comprehensible standard by which to assess the legality of their actions and avoids imposing upon them the futile task of attempting to read a defendant's thoughts in order to ascertain his or her actual intent. See State v. Holmes, 311 Or. 400, 410 n. 19, 813 P.2d 28 (1991) ("[a]n officer should only be responsible for anticipating the effects of his action on an objectively reasonable person").
Under that standard, we must consider what a reasonable person would have understood by the interchange between the officer and defendant, the person giving consent. As discussed above, this requires an evaluation of the factual circumstances. One of the best indicators of the intended scope of a search authorized by consent is the content of the request for consent. State v. Allen, supra, 112 Or.App. at 74-75, 826 P.2d 127; see also Florida v. Jimeno, supra, 500 U.S. at 251, 111 S. Ct. at 1804 ("The scope of a [consent] search is generally defined by its expressed object."). In Allen, the defendant consented to an officer's request to "check" his vehicle and trunk for narcotics, weapons and currency. The defendant did not impose any limitations on the officer's search. The officer checked the interior of the car and the trunk. While searching the trunk, he opened the defendant's suitcase and found two weapons and $13,500. The defendant argued that, although he consented to a search of his car, he did not consent to a search of his suitcase. We held that, under those circumstances, the defendant's consent was broad enough in scope to allow the officer to open the suitcase. We reasoned:
"After [the officer's] search of the interior of the car, which included opening a purse of a passenger in the car, [he] went to the trunk. He asked each of the persons in the car to identify his or her luggage. Defendant identified his luggage, but did not withdraw his consent or place any limitations on [the officer's] search, even though it was apparent that [the officer] was going to open the suitcase. See State v. Gaither, supra, 76 Or.App. at 205 [708 P.2d 646]." 112 Or.App. at 75, 826 P.2d 127.
In determining that the defendant's consent extended to the suitcase in the trunk, we placed great weight on the fact that the officer stated in his request for consent that he would be searching for specific items that were capable of being concealed in numerous places in the car. We noted:
"When a request to search contains no limitations and a defendant places no limitation on the search, the scope of the allowable search may be fairly broad. This is particularly so when the police indicate in the request for consent that they are searching for specific items that may be found in small compartments or containers." 112 Or.App. at 74, 826 P.2d 127. (Emphasis supplied; citations omitted.) *905 Thus, the scope of a consent search generally should be interpreted to include those areas where the items that are the subject of the search might be found. See also U.S. v. Harris, 928 F.2d 1113, 1118 (11th Cir.1991); U.S. v. Garcia, 897 F.2d 1413, 1419 (7th Cir.1990); U.S. v. Battista, 876 F.2d 201, 207-08 (D.C.Cir.1989).[3]
Here, Anderson asked to search the car for narcotics, cocaine, heroin and large amounts of cash. Defendant consented to the search of his car for those items. Defendant did not specify any limitations on the search of his car. Accordingly, Anderson's authority to search was quite broad. However, even a broad grant of authority to search is not without limits. As mentioned above, the critical question is what would a reasonable person have understood the consent to encompass. We do not believe that a reasonable person would have understood defendant's general consent to a search of his car for narcotics, money and weapons, to authorize Anderson to remove screws and pry the panel from the sidewall of the car.
Absent specific facts to suggest otherwise, a general consent to search a car does not authorize an officer to search areas of a car that are not designed to be routinely opened or accessed. The fact that Anderson had to remove two screws and pry a panel away from the sidewall to access the area of the search supports our conclusion that that area was not within the scope of defendant's general consent to a search. The state suggests that because Anderson was able to access that area without causing any damage or destruction, the search was within the scope of defendant's consent. Contrary to the state's arguments, however, the parameters of such a search are defined by what a reasonable person would understand by the consent given, not by the extent to which an officer can avoid causing damage or destruction to the car or its contents.
An additional factor in this case supports our conclusion that, from an objectively reasonable viewpoint, defendant did not consent to the prying of the side panel from the sidewall. In State v. Allen, supra, 112 Or. App. at 75, 826 P.2d 127, we found that it was significant that the defendant did not attempt to stop the search, although he was in a position to do so. Here, Melahn testified that at approximately the same time that Anderson focused his search on the driver's side of the car, defendant attempted to approach the car and that Melahn verbally restrained him. Defendant did not express any concern to Melahn regarding the extent of the search. However, because he was away from the car, he would have been unable to see precisely what Anderson was doing. Accordingly, we cannot say here that defendant's failure to voice an objection to Anderson's unscrewing of the panel is evidence that his general consent was intended to encompass the removal of the side panel from his car.
We hold that it is not objectively reasonable to construe defendant's general consent to the search of his car to authorize the prying open and removal of the panel from the sidewall of his car. We conclude that, under these circumstances, Anderson's conduct exceeded the scope of defendant's consent to search. Accordingly, the trial court erred in denying defendant's motion to suppress the evidence seized as a result of the consensual search of his car.
Reversed and remanded for a new trial.
HASELTON, Judge, concurring.
I agree that the cocaine seized from defendant's car must be suppressed. However, I cannot join in the majority's reiteration of State v. Allen, 112 Or.App. 70, 826 P.2d 127, rev. den. 314 Or. 176, 836 P.2d 1345 (1992), because I believe that Allen was wrongly decided. Accordingly, I concur.[1]
*906 The majority invokes Allen for the proposition that "[w]hen a request to search contains no limitations and a defendant places no limitation on the search, the scope of the allowable search may be fairly broad." 131 Or.App. at 297, 884 P.2d at 904. That analysis cannot be squared with the general treatment of consent searches under the Oregon Constitution.
Consent searches are an exception to the warrant requirement of Article I, section 9. See, e.g., State v. Weaver, supra, n. 1, 319 Or. at 219, 874 P.2d 1322. To be valid, a consent to search must be voluntary. See, e.g., State v. Paulson, supra, n. 1, 313 Or. at 352-53, 833 P.2d 1278; State v. Stevens, supra, n. 1, 311 Or. at 135, 806 P.2d 92. Consistent with those principles:
"Under the consent exception to the warrant requirement, the state must prove by a preponderance of the evidence that someone having the authority to do so voluntarily gave the police consent to search the defendant's person or property and that any limitations on the scope of the consent were complied with." State v. Weaver, supra, 319 Or. at 219, 874 P.2d 1322.
Allen, subverts those principles by inviting subterfuge. It encourages peace officers to cast requests for consent in the broadest and most ambiguous of terms, putting the onus on citizens, confronted with uniformed authority, to define and limit the search. Accord State v. Allen, supra, 112 Or.App. at 76, 826 P.2d 127 (Joseph, C.J., dissenting) ("That is a wonderful way of switching the burden from the state to the defendant").
Such a burden-shifting gambit of studied imprecision is constitutionally unacceptable. In requesting consent, agents of the state must clearly identify the intended scope and object of their search or bear the risk of any imprecision.[2]
NOTES
[*] Haselton, J., vice Richardson, C.J.
[1] Defendant also argues that he was detained in violation of ORS 810.410(3) when Anderson engaged him in conversation after issuing him a warning for the traffic infraction, and that his consent was not voluntary. In the light of our conclusion that the search exceeded the scope of defendant's consent, we need not address his alternative arguments for the suppression of the evidence.
[2] Article I, section 9, provides, in part:
"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]"
The Fourth Amendment provides, in part:
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated * * *."
[3] That statement, however, does not mean that the scope of the consent includes any area where a specified item might be found. For example, if a suspect has narcotics hidden inside a spare tire, that spare tire becomes an area where narcotics "might" be found. However, a reasonable person would not understand the suspect's general consent to search the car as authorizing an officer to slash the spare tire and investigate its contents. See U.S. v. Strickland, 902 F.2d 937 (11th Cir.1990).
[1] Although I agree that "objective reasonableness" defines the scope of a citizen's consent to search, I am by no means confident in that conclusion. As the majority acknowledges, neither this court nor our Supreme Court has "expressly declared that whether an officer exceeded the scope of a consent" is an issue of law or of fact. 131 Or.App. at 295, 884 P.2d at 903. Certainly, there is authority, albeit implicit, for the contrary proposition. See, e.g., State v. Paulson, 313 Or. 346, 351-53, 833 P.2d 1278 (1992) (remanding to trial court for resolution of "factual question" of whether defendant's 9-1-1 call for emergency assistance conferred consent for police officers to enter apartment). Accord State v. Weaver, 319 Or. 212, 222-24, 874 P.2d 1322 (1994) (Gillette, J., concurring). But see State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991) (although reviewing court is bound by trial court's findings of historical fact regarding voluntariness of consent to search, trial court's ultimate determination of voluntariness is subject to de novo review).
Nonetheless, to the extent our Supreme Court wishes us to employ an analysis different from the sensible and workable "objective reasonableness" approach of the federal casesa different analysis which, incidentally, would insulate trial court determinations regarding scope of consent from effective appellate reviewwe should await a clearer signal.
[2] This rationale is hardly remarkable. In the civil context, we routinely construe ambiguities in contractual language against the person employing that language. See, e.g., Heinzel v. Backstrom, 310 Or. 89, 97, 794 P.2d 775 (1990) (applying "rule that any ambiguity in an agreement is to be resolved against the party who drafted it"). It is risky business importing civil contractual concepts into the criminal lawand I am not proposing that we do so. Still, the parallel between offer and acceptance on one hand, and requests for consent and the granting of consent on the other, is instructive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900635/ | COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
THOMAS WRIGHT, )
)
No. 08-01-00361-CV
Appellant, )
) Appeal from the
v. )
)
383rd District Court
JUDY WRIGHT, )
)
of El Paso County, Texas
Appellee. )
) (TC# 92-11954)
)
MEMORANDUM OPINION
This appeal is
from the denial of a turnover order sought by the Appellant pursuant to
Tex.Civ.Prac.&Rem.Code Ann.'
31.002(b)(1)(Vernon Supp. 2003).
The Wrights were
divorced in 1993. Judy Wright was
awarded a portion of Thomas Wright=s
retirement benefits from the El Paso Fireman and Policeman=s Pension Fund. In July 2001, Appellee petitioned for
enforcement and clarification claiming that Appellant had failed to pay the
amounts she was entitled to pursuant to the divorce decree and a qualified domestic
relations order (QDRO) and seeking a modification of the QDRO to provide for
direct payment to her from the pension plan.
On the day of the hearing on Appellee=s
motion, Appellant filed a counter-claim for enforcement of a prior judgment and
for a turnover action, effectively seeking to offset any arrearage or amounts
payable under the QDRO. The motion was
denied by the trial court.
Appellant brings a
single issue which we understand to be that the evidence is legally
insufficient. That is, he asserts that
there is no evidence that his pension plan was a Aqualified@ plan and subject to an exemption under
Tex.Civ.Prac.&Rem.Code Ann. ' 31.002.
In a bench trial,
factual and legal sufficiency challenges to the trial court=s findings of fact are reviewable under
the same standards that are applied in reviewing evidence supporting a jury=s verdict. Catalina v. Blasdel, 881 S.W.2d 295,
297 (Tex. 1994). In considering a Ano evidence,@
or legal insufficiency point, we consider only the evidence that tends to
support the jury=s
findings and disregard all evidence and inferences to the contrary. See Garza v. Alviar, 395 S.W.2d 821, 823
(Tex. 1965); Leibman v. Grand, 981 S.W.2d 426, 429 (Tex.App.‑-El
Paso 1998, no pet.). If more than a
scintilla of evidence exists to support the questioned finding, the Ano evidence@
point fails. Tseo v. Midland Am. Bank,
893 S.W.2d 23, 25 (Tex.App.‑‑El Paso 1994, writ denied).
We review a
turnover order under an abuse of discretion standard. Beaumont Bank, N.A. v. Buller, 806
S.W.2d 223, 226 (Tex. 1991). In
conducting this review, we engage in a two‑pronged analysis: (1) Did the trial court have sufficient
information upon which to exercise its discretion?; and (2) Did the trial court
err in its application of discretion? Lindsey
v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.‑‑El Paso 1998, no
pet.). The traditional sufficiency of
the evidence review, articulated above, comes into play when considering the
first question. Id. at 592. We then proceed to determine whether, based
on the elicited evidence, the trial court made a reasonable decision, or whether
it is arbitrary and unreasonable. Id. The question is not whether, in the opinion
of the reviewing court, the facts present an appropriate case for the trial
court=s action,
but whether the court acted without reference to any guiding rules and
principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied,
476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Lindsey, 965
S.W.2d at 592.
Appellant filed
his application for turnover relief pursuant to Section 31.002(a) of the Texas
Civil Practice and Remedies Code, which provides:
(a) A judgment creditor is entitled to aid
from a court of appropriate jurisdiction through injunction or other means in
order to reach property to obtain satisfaction on the judgment if the judgment
debtor owns property, including present or future rights to property, that:
(1) cannot readily be attached or levied on
by ordinary legal process; and
(2) is not exempt from attachment,
execution, or seizure for the satisfaction of liabilities.
Tex.Civ.Prac.&Rem.Code
Ann. '
31.002(a).
A court may not,
however, enter or enforce an order that requires the turnover of the proceeds
of, or the disbursement of, property exempt under any statute. Tex.Civ.Prac.&
Rem.Code Ann. '
31.002(f). The statute requires a
factual showing that the judgment debtor has non‑exempt property that is
not readily subject to ordinary execution.
Schultz v. Fifth Judicial Dist. Court of Appeals of Dallas, 810
S.W.2d 738, 740 (Tex. 1991)(orig. proceeding).
Upon proof of the necessary facts, it authorizes the trial court to
order affirmative action by the judgment debtor and others to assist the
judgment creditor in subjecting such non‑exempt property to satisfaction
of the underlying judgment. Id.
There are no findings
of facts and conclusions of law in the record before us. We therefore presume that the trial court
made all necessary findings to support its judgment, and we will affirm based
upon any legal theory finding support in the evidence. Tate v. Tate, 55 S.W.3d 1, 4
(Tex.App.--El Paso 2000, no pet.).
Appellant=s sole contention is that there is no
evidence that his policeman=s
pension was a qualified plan under ERISA or the Internal Revenue Code that
would make Appellee=s rights
in Appellant=s pension
exempt from attachment, execution, and seizure in satisfaction of debt under Tex.Prop.Code Ann. ' 42.0021(a)(Vernon 2000). He relies on Rucker v. Rucker, 810
S.W.2d 793, 795-96 (Tex.App--Houston [14th Dist.] 1991, writ. denied)(It is the
burden of a party seeking exemption from the turnover statute to prove
entitlement to the exemption.). He
ignores, however, that it was his initial burden to show that the debt owed him
Acannot readily be attached or levied on
by ordinary legal process.@ Tex.Civ.Prac.&Rem.Code
Ann. '
31.002(a). The trial court may only
issue turnover order against a judgment debtor where Afactual
showing@ is made
that the judgment debtor (1) has property not readily subject to ordinary
execution, and (2) has non‑exempt property. Schultz, 810 S.W.2d at 740; Qualia
v. Qualia, 37 S.W.3d 128, 129 (Tex.App.--San Antonio 2001, no pet.). There was simply no factual showing made by
Appellant that would support a turnover order and the trial court properly
refused to issue the order. We overrule
the issue and affirm the judgment of the trial court.
August
15, 2003
DAVID WELLINGTON
CHEW, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2589077/ | 97 P.3d 258 (2004)
SHOLAR GROUP ARCHITECTS, P.C., a/k/a Sholar Group, P.C., a Colorado professional corporation, Plaintiff-Appellant,
v.
SOOPER CREDIT UNION, a credit union, Defendant-Appellee.
No. 02CA2559.
Colorado Court of Appeals, Div. I.
February 26, 2004.
Certiorari Granted September 13, 2004.
*259 Holt & Stalder, LLC, L. Tyrone Holt, Carrie Lynn H. Okizaki, Denver, Colorado, for Plaintiff-Appellant.
Canges Iwashko Bethke & Bailey, P.C., Erich L. Bethke, James S. Bailey, Denver, Colorado, for Defendant-Appellee.
Opinion by Judge MARQUEZ.
In this proceeding arising out of arbitration of a construction contract dispute, plaintiff, Sholar Group Architects, P.C., appeals the trial court's order confirming the arbitrator's corrected award in favor of defendant, Sooper Credit Union. We reverse and remand.
Plaintiff and defendant entered into a series of three agreements for plaintiff to provide design services and construction for the remodeling of defendant's office building. Work was completed and payment made pursuant to two of the agreements. When a dispute arose over labor charges under the remaining agreement, plaintiff commenced an arbitration proceeding with the American Arbitration Association (AAA), as provided in the agreement.
Following a five-day hearing, the arbitrator awarded plaintiff $199,338, with costs of the arbitration to be borne equally by the parties. Plaintiff then filed an application for confirmation of the arbitration award and a motion for correction and modification in the district court, alleging obvious mathematical errors that would increase the award by approximately $11,200. On the same day, defendant filed a motion to correct award calculations. Defendant alleged that because both the disputed inflated labor charges and the corrected charges were included, computational errors in the original award would cause it to "double-pay" labor charges.
The arbitrator replied to the parties that he "did miscalculate some figures in the body of [his] initial award" and was "prepared to correct that miscalculation," but needed specific direction from the trial court. Subsequently, the trial court submitted defendant's motion to the arbitrator, and he issued his corrected award, giving defendant $223,063 plus a portion of the arbitration fees. Upon defendant's motion, the trial court confirmed the corrected award.
I.
Plaintiff contends that the trial court erred in confirming the corrected award and failing to reinstate the original award because the arbitrator exceeded his statutory powers to modify the original award and improperly redetermined the merits of the case. We agree.
As a threshold matter, the agreement at issue provided that arbitration was to be conducted in accordance with the "Construction Industry Mediation or Arbitration Rules of the American Arbitration Association" then currently in effect. The rules allow a party, after the initial award, to "request that the arbitrator correct any clerical, typographical, technical or computational errors in the award," and the arbitrator "is not empowered to redetermine the merits of any claim already decided." AAA Construction Industry Arbitration Rule R-49 (2001).
In their motions to correct, both parties cited pertinent Colorado statutes, and the trial court submitted defendant's motion to the arbitrator for consideration in accordance with § 13-22-211, C.R.S.2003. However, at oral argument defendant's counsel argued that the arbitration rules provided broader grounds for modification. This argument *260 was not raised before the trial court, and defendant has provided no authority in support. In view of defendant's reliance on the statutes before the trial court, we consider the question waived and proceed with an analysis under the statutes. See First Interstate Bank v. Cent. Bank & Trust Co., 937 P.2d 855 (Colo.App.1996)(arguments not presented to, considered by, or ruled upon by trial court may not be raised for first time on appeal).
Upon application of a party, the court shall vacate an award where the arbitrators exceeded their powers. Section 13-22-214(1)(a)(III), C.R.S.2003. In the absence of appropriate grounds to modify, vacate, or correct an award, a trial court is required to affirm the award without review of the merits. McNaughton & Rodgers v. Besser, 932 P.2d 819 (Colo.App.1996).
Section 13-22-211 provides in part that the arbitrator's authority to modify or correct an award is limited:
On application of a party or, if an application to the court is pending under section 13-22-213, 13-22-214, or XX-XX-XXX, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in section 13-22-215(1)(a) and (1)(c) or for the purpose of clarifying the award.
Section 13-22-215(1) provides that the award shall be modified or corrected where:
(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
...
(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.
Thus, when an arbitrator issues an award and delivers it to the parties, amendment or modification of the award by the arbitrator is permitted only under the narrow circumstances listed in § 13-22-211. Applehans v. Farmers Ins. Exch., 68 P.3d 594 (Colo.App.2003).
A.
We agree with plaintiff's assertion that the arbitrator exceeded his powers to modify the award because the corrected award does not properly remedy an "evident miscalculation of figures."
Plaintiff relies on Foust v. Aetna Casualty & Insurance Co., 786 P.2d 450, 451 (Colo.App.1989), and In re Marriage of Gavend, 781 P.2d 161 (Colo.App.1989), both of which quote Morrison-Knudsen Co. v. Makahuena Corp., 66 Haw. 663, 669, 675 P.2d 760, 765 (1983), as follows: "An `evident miscalculation of figures' refers only to `mathematical errors committed by arbitrators which would be patently clear to a reviewing court.'" Plaintiff asserts, pursuant to Applehans, the term "evident miscalculation of figures" can only mean mathematical errors that appear on the face of the award. According to plaintiff, because an arbitrator may modify the award only on the same limited grounds as may a reviewing court, the arbitrator cannot review the record of the arbitration, and the arbitrator must rely solely upon the information contained within the four corners of the original award. While we apply a slightly different standard, we agree the corrected award cannot stand.
The division in Foust concluded that modification of an arbitration award is authorized under § 13-22-215(1)(a) "only if it seeks to effectuate the clearly expressed intent of the arbitrator by correcting a mathematical error without altering his conclusion on the merits." Foust v. Aetna Cas. & Ins. Co., supra, 786 P.2d at 451-52. In Foust, the division determined that the trial court's modification was "diametrically opposed to the intent of the arbitrator." Foust v. Aetna Cas. & Ins. Co., supra, 786 P.2d at 452.
In Applehans v. Farmers Insurance Exchange, supra, a division of this court noted that the Uniform Arbitration Act, upon which Colorado's act is modeled, allows a limited opportunity for modification of an award containing a miscalculation "evident on its face." Applehans v. Farmers Ins. Exch., supra, 68 P.3d at 597 (citing Uniform Arbitration Act § 20, official cmt. 2 (2000)).
*261 Here, in the arbitration proceedings, the parties agreed defendant was obliged to pay plaintiff for the cost of the work, including labor, plus twelve percent as a contract fee. Costs were to be billed at "rates not higher than the standard paid at the place of the Project." The arbitrator found that defendant did not challenge the number of hours for which plaintiff billed, but only the rate at which it billed. The arbitrator then accepted the labor rates presented by defendant's expert.
In his original award, the arbitrator calculated the amount due by adding general requirements, nonlabor costs, and labor costs in the first eleven draws and one-half of that claimed on draw 12. Draws 13 through 19A included nonlabor costs and labor costs, but not general requirements. In its motion to the arbitrator to correct award calculations, defendant pointed out that the general requirements category, as used by plaintiff, included the excessive labor charges, and that adding the general requirements to defendant's expert's labor charges resulted in double payment for labor.
The arbitrator concluded in his corrected award that "[t]he category of General Requirements was not used by the parties in this case as it usually is on construction projects which caused me to miscalculate the proper labor charges in my initial Award." In his corrected award, the arbitrator deducted the labor costs that previously were included in the general requirements category. The arbitrator then recalculated the award using nonlabor costs and labor costs, but not general service requirements for draws 1 through 5 and 7 through 19A. Draw 6 included general requirements and labor costs.
We agree the original award indicates that the arbitrator's intent was to require defendant to pay only standard costs, including labor, plus a twelve percent fee. The arbitrator's corrected award appears to be based on his conclusion that the category of general requirements was not used by the parties in this case as it usually is on construction projects. However, there is nothing in the original award defining general requirements or indicating how general requirements were used by the parties. The arbitrator states in the original award only: "[Defendant] challenges the charges made for General Requirements but made no attempt to challenge specific elements of the costs included in that category of costs. However, since the completion date for the work was never extended, charges for General Requirements after June 15, 2001 are not proper and are not allowed."
Thus, we find nothing in the original award that justifies the corrected award.
B.
We further agree with plaintiff that the arbitrator exceeded his power to modify an award because he improperly redetermined the merits of the case.
An arbitration award is not open to review on the merits. The merits of an arbitration award include asserted errors in the arbitrator's determination of factual issues and the interpretation of a contract. See Applehans v. Farmers Ins. Exch., supra (modification of award to include contractual right to limit recovery to policy limits affects merits); Container Tech. Corp. v. J. Gadsden Pty., Ltd., 781 P.2d 119 (Colo.App.1989); In re Marriage of Gavend, supra (disagreement with arbitrator's findings and conclusions amounts to a challenge on the merits).
C.
Relying on that portion of § 13-22-211 stating "or for the purpose of clarifying the award," defendant nevertheless argues that the corrected award is an appropriate clarification of the original award. Defendant reasons that the arbitrator stated he was adopting the labor calculations of defendant's expert, but awarded plaintiff labor rates that were not those of the expert. In defendant's view, this created a patent ambiguity that required clarification. Defendant interprets the statutory phrase to mean that the arbitrator has the power to clarify an award, even if that clarification affects the merits, and that the clarification language is unique to review by the arbitrator and is not an available standard of review for district courts. We are not persuaded.
*262 The statute does not define "clarifying" or otherwise indicate what this phrase means. Defendant cites three cases in support of its patent ambiguity argument, San Antonio Newspaper Guild Local No. 25 v. San Antonio Light Division, 481 F.2d 821 (5th Cir.1973); Dade County Police Benevolent Ass'n v. City of Homestead, 642 So.2d 24 (Fla.Dist.Ct.App.1994); and Menahga Education Ass'n v. Menahga Independent School District No. 821, 568 N.W.2d 863 (Minn.Ct.App.1997). Those cases generally hold that where an award is patently ambiguous, the trial court should remand the matter to the arbitrator for clarification. In Menahga Education Ass'n, the court also stated that where an arbitrator's award is ambiguous the correct action is "to resubmit the award to the arbitrator's bargained-for construction of the facts and decision under the contract." Menahga Educ. Ass'n v. Menahga Indep. Sch. Dist. No. 821, supra, 568 N.W.2d at 866.
However, in each case ambiguity was evident on the face of the award. See San Antonio, supra, 481 F.2d at 824 (term "make whole for any loss of earnings" could be interpreted in a variety of ways); Dade County (award is susceptible of a finding that just cause did exist for the demotion as well as an opposite finding that it did not exist); Menahga (ambiguity existed between the intent of finding number 1 and the intent of findings 2 and 3 in the award paragraph).
Here, even if we were to accept defendant's interpretation that the matter can be remanded to the arbitrator for clarification of a patent ambiguity, we find no such patent ambiguity in the original award. There is nothing in the original award to indicate that the category of general requirements had a unique meaning for the parties.
In view of our disposition, we need not address plaintiff's assertion that the arbitrator's corrected award and the trial court's order confirming that award are contrary to Colorado public policy and undermine the arbitration process.
II.
We also agree with plaintiff's contention that the trial court erred in denying its motion to modify the original award to correct the $11,200 miscalculation.
The original award reflects a mathematical error in Draw 8. The total of $226,822 and $16,510 is $243,332, not $233,322 as stated in the award. Therefore, an adjustment in this figure and a recalculation of the twelve percent fee applied to the $243,332 total is required.
The order is reversed, and the case is remanded to the trial court with instructions to reinstate the original award with the mathematical correction identified in part II of this opinion.
Judge TAUBMAN and Judge WEBB concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609690/ | 526 P.2d 621 (1974)
Jack F. THOMPSON, Respondent,
v.
SECRETARY OF STATE, State of Oregon, Petitioner.
Court of Appeals of Oregon.
Argued and Submitted August 23, 1974.
Decided September 23, 1974.
Rehearing Denied October 22, 1974.
Review Denied November 19, 1974.
W. Michael Gillette, Sol. Gen., argued the cause for petitioner. With him on the brief were Lee Johnson, Atty. Gen., John E. Moore, Chief Counsel, and William F. Hoelscher, Asst. Atty. Gen., and Counsel, Salem.
Bruce W. Williams, P.C., Salem, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
LANGTRY, Judge.
In accordance with ORS 240.560 the Secretary of State has petitioned this court *622 for judicial review of a final order issued by the Public Employe Relations Board (PERB or the Board). On June 17, 1974 the PERB held that when the Secretary of State terminated the employment of Mr. Thompson he did so without "sufficient cause," and ordered that the dismissal action be modified to a 30-day suspension at the end of which Mr. Thompson was to be restored to his position as Assistant Secretary of State.
Prior to his dismissal on April 11, 1974, Mr. Thompson had been Director of the Elections Division. The dismissal action was taken subsequent to the filing of candidacies and Voters' Pamphlet materials for the 1974 primary election and was based on four charges incorporated into a letter from the Secretary of State to Mr. Thompson. The specific charges were:
"1. You accepted Senator Groener's Voters' Pamphlet copy from Senator William Holmstrom approximately one week after the legal deadline of 5:00 p.m., Thursday, March 21, 1974.
"2. You willfully pre-dated a receipt for the check accompanying Senator Groener's Voters' Pamphlet material.
"3. You deliberately concealed information about this situation from me, despite my repeated direct questions, over a period of several days, about candidates and the material submitted for the Voters' Pamphlet when, according to later explanations to me, you knew, or should have known, Senator Groener's Voters' Pamphlet copy was not properly filed.
"4. When I confronted you with facts indicating Senator Groener's Voters' Pamphlet copy was not filed before the legal deadline of 5:00 p.m., Thursday, March 21, 1974, you provided me, and others, with several inconsistent or conflicting explanations about the filing of this material."
Mr. Thompson appealed the dismissal to the PERB pursuant to the State Merit System Law (ORS ch. 240). The PERB referred the matter to a hearing officer whom it may designate as an agent under ORS 240.080 "to make investigations and conduct hearings * * *." After an extensive hearing of witnesses and argument of the matter, the hearing officer submitted to the Board "proposed" findings and conclusions which in substance upheld the action of the Secretary of State, and recommended that the Board affirm the dismissal by ruling it to have been taken in "good faith and for cause." The hearing officer also proposed that, in view of Mr. Thompson's record of nearly 15 years of commendable service, the Board contact the Administrator of the Personnel Division, Executive Department, and recommend that he make contact throughout state service to the end of finding employment for Mr. Thompson that would allow the use of his administrative abilities.
The matter was then argued before the Board, which had read the transcript of the hearing and the proposals. The Board in substance rejected the hearing officer's proposed findings and "found" in its conclusions:
"* * * [T]he suspension and dismissal actions were taken in good faith, but not for sufficient cause." (Emphasis supplied.)
The threshold question is whether when reviewing an employe's appeal of dismissal brought pursuant to ORS 240.560 the PERB may weigh the evidence and make its own independent determination of the sufficiency of the cause for dismissal, or is required to affirm disciplinary action which is not arbitrary.
Resolution of this issue must begin with ORS 240.560 itself which reads in relevant part:
"(1) A regular employe who is reduced, dismissed, suspended or demoted, shall have the right to appeal to the board * * *.
"* * *
"(3) If the board finds that the action * * * was taken * * * for any political, religious or racial reasons, or *623 was an unlawful employment practice * * * the employe shall be reinstated * * *.
"(4) In all other cases, if the board finds that the action was not taken in good faith for cause, it shall order the immediate reinstatement and reemployment of the employe in his position without the loss of pay. The board in lieu of affirming the action, may modify it by directing a suspension * * * or a demotion * * *. The findings and order of the board shall be certified in writing to the appointing authority and shall be forthwith put into effect by the appointing authority." (Emphasis supplied.)
The Board in this case found that the dismissal had been made "in good faith, but not for sufficient cause." There is no claim here that the action was not taken in "good faith"; the contested issue is whether the Board properly held that the action lacked "sufficient cause."
Respondent-employe asserts that ORS 240.560(4) is intended to authorize the Board to act in a de novo capacity and to substitute its own judgment for that of the appointing authority in determining the sufficiency of cause for dismissal while petitioner argues that the statute must be read in the context of other relevant legislation limiting the Board's authority.
Prior to 1957 the power of the Civil Service Commission the entity then responsible for reviewing appeals of disciplinary actions was limited by ORS 240.560, which provided at that time:
"* * *.
"(3) If the commission finds that the action complained of was taken by the appointing authority for any political, religious or racial reasons, the employe shall be reinstated to his position and shall not suffer any loss in pay.
"(4) In all other cases, the findings of the commission shall be submitted to and considered by the appointing authority who shall make a final decision disposing of the appeal, which decision shall not be reviewable by any court * * *." (Emphasis supplied.)
In 1957 the statute was amended to its present form except for the provision concerning unlawful employment practices and the reference to "commission" instead of "board." (Oregon Laws 1957, ch. 205, § 1, pp. 246-247.) Mr. Thompson would appear to rely upon the deletion of that portion of the statute emphasized above as evidence supporting the proposition that the commission was henceforth authorized to independently evaluate the facts involved in disciplinary actions without deferring in any way to the judgment of the appointing authority. This is a difficult concept to follow, based upon a comparison of the old and new statutes.
Further, an investigation of the 1957 amendment's legislative history indicates little, if anything, to warrant this interpretation. Although the admittedly sparse history does suggest that the legislature was seeking to compel agencies to implement those orders of the commission made subsequent to findings that a dismissal or suspension lacked "cause," no legislative intent to expand the commission's scope of review in the first instance is apparent. (See Senate Committee on Labor and Industries, Minutes, April 16, 1957.)
Mr. Thompson's contention is further weakened when one considers that, at the time the Civil Service Commission was replaced by the PERB in 1969, ORS 240.086, which specifically defines the duties of the Board, was also enacted. After noting that the primary responsibility of the Board is to foster and protect a merit system of personnel administration in state government, the statute provides in relevant part that the Board shall
"[r]eview any personnel action that is alleged by an affected party * * * to be arbitrary or contrary to law or rule, or taken for political reason, and set aside such action if it finds these allegations to be correct * * *." (Emphasis supplied.) ORS 240.086(2).
*624 We adhere to our decision in Phillips v. State Bd. of Higher Ed., 7 Or. App. 588, 592, 490 P.2d 1005 (1971), Sup.Ct. review denied (1972), in deciding that if the Board through its own evidentiary hearing has found facts which support the charges of the employer, it may only modify the disciplinary action taken if it can also find that no reasonable employer would have regarded those facts as sufficient cause for the action. See also Palen v. State Bd. of Higher Education, Or. App., 525 P.2d 1047 (1974).
As modified by ORS 240.086(2), the "cause" required by ORS 240.560(4) must necessarily be "cause not constituting arbitrariness * * *." 7 Or. App. at 592, 490 P.2d 1005. In order to modify or reverse an agency order dismissing or suspending an employe, the Board must in those cases where "good faith" is not an issue find that the action is arbitrary either because the employer has failed to establish facts to support the charges upon which the action is based or because though the charges are supported they constitute no "cause" upon which a reasonable employer would base the action taken.
As we noted in Phillips, this statutory analysis is reasonable because:
"* * * To construe ORS 240.560 as employe urges would result in vesting disciplinary power of the various state agencies over their employes in the Board and not the agencies which appoint them. Such a result would undermine their authority and hamper efficient agency administration * * *." 7 Or. App. at 592, 490 P.2d at 1008.[1]
We note here as we did in Phillips that our interpretation does not reduce the Board to a "rubber stamp" with reference to agency action. Employers remain obligated to establish in a hearing before the Board or its agents following reasonable notice facts that support the charges upon which they base their disciplinary actions. The Board must still determine whether the disciplinary action was taken in "good faith," and where it was not, even though facts sufficient to warrant dismissal or suspension may be present, the Board can reinstate. Cf. our remarks in the concluding paragraph of Donahue v. Bowers/Steward, Or. App., 526 P.2d 616 (1974). Also, as we have pointed out above, where the Board finds that although the charges made were supported by facts no reasonable employer would regard as a sufficient basis for the specific action taken, it remains authorized by the statute to modify or reverse the order. And finally, under ORS 240.560(3) an employe must be reinstated if the Board finds that disciplinary action was taken for "any political, religious, or racial reasons, or was an unlawful employment practice * * *."
The Board's conclusion in this case, that the dismissal lacked "sufficient cause," coming after the decision in Phillips, must necessarily be interpreted as a determination that the dismissal was "arbitrary." The second question presented here is therefore whether that determination is supported by substantial evidence in the record. In this regard we noted in Phillips v. State Bd. of Higher Ed., supra, 7 Or. App. at 593, 490 P.2d at 1008:
"* * * Among the things that a court will examine in this type of review are whether the administrative board [that is, PERB] exercised its discretion judiciously and not capriciously, `and arrived at no conclusion which was clearly *625 wrong.' Bay v. State Board of Education, 233 Or. 601, 378 P.2d 558, 96 A.L.R.2d 529 (1963) * * *."
With regard to the first charge included in the dismissal letter, the Board found:
"There was uncontroverted testimony that some kind of a filing of incomplete, partially illegible Voters' Pamphlet material for Senator Groener, together with a check in the amount of $50 was delivered to Mr. Thompson prior to 5:00 p.m. on March 21, 1974 * * *."
This finding implicitly supports the charge that Mr. Thompson received material one week after the "legal deadline." ORS 255.031 provides that "[n]ot later than the 68th day before the primary election, any candidate * * * may file * * * a portrait cut * * * and a typewritten statement * * *" for inclusion in the Voters' Pamphlet. There was no evidence that materials even remotely meeting these requirements were filed on or before the final date. Further, Oregon Election Manual, Part Three, "Manual for Candidates and Political Parties" 25-6 (1973-74) an official publication of the Secretary of State's office designed to inform candidates of the law and rules to be followed required material to be submitted in final form when submitted: "* * * Once your copy is officially filed, no changes in copy are allowed." The conclusions of the Board that the disputed material was "timely although not in final form," and that such handling "was not inconsistent with the purpose of the Voters' Pamphlet * * *" are irrelevant to the issue of whether Mr. Thompson actually did, as charged by the Secretary of State, accept materials after the legal deadline. Further, the Board's conclusion that the filing was timely appears to be inconsistent with another of its findings, namely, that Mr. Thompson had accepted material for Senator Groener from Senator Holmstrom on March 28, 1974.
Mr. Thompson acknowledged that the materials he allegedly received on March 21, 1974 failed to satisfy the requirements for submission; and that contrary to standard and important office procedures he failed to place a date stamp on the material, failed to issue a receipt for an accompanying check, destroyed those materials filed when other copy was delivered one week later, and finally, issued a pre-dated receipt for the check on March 28, 1974. One of the effects of these admissions was clear substantiation of the second charge included in the Secretary of State's dismissal letter.
The third and fourth allegations charged Mr. Thompson with concealing information from the Secretary of State in the face of repeated requests for reports on any problems involving the Voters' Pamphlet, and with giving conflicting explanations of his actions when questioned about the incident. The record indicates as concluded by the Board that while Mr. Thompson may have processed the materials submitted on March 28 in an "open" fashion within his own office, he failed to give the Secretary of State his immediate supervisor and the man ultimately responsible for all transactions in the Elections Division any notice whatsoever, in spite of general inquiries from that source, of the irregular way in which the materials had been handled. The Board found that "[i]n response to general questions, the [Secretary of State] was assured repeatedly by [Thompson], with one identified exception, that there was no problem with Voters' Pamphlet material * * *." The record further discloses that when finally confronted with specific inquiries by the Secretary of State and agents of the Attorney General's office Mr. Thompson provided conflicting versions of (1) the contents of the material allegedly submitted on March 21, (2) the date the accompanying check was delivered, (3) the location of the delivery of materials and check, (4) the identification of the individual making the delivery, and (5) the notations he made on those materials. Among the Board's findings is the conclusion that Mr. Thompson "did give inconsistent and conflicting answers on what was filed and when it was filed."
*626 The Board's findings of fact confirm that the charges made by the Secretary of State were supported by the evidence introduced during its hearing of the matter. Any modification of the dismissal based on the conclusion that the charges were unsupported by facts would be inconsistent with the Board's own findings and would be therefore a "capricious" exercise of its authority.
The only remaining ground upon which the Board could have properly modified the dismissal order in this case would have been a finding that the charges established were so inconsequential that no reasonable employer would have regarded them as sufficient grounds for the dismissal, i.e., the Secretary's action was so disproportionate to the offense as to be arbitrary. The Board's conclusions that the acts of Mr. Thompson were not a deliberate concealment of irregularities, and that his actions were not inconsistent with the purpose of the Voters' Pamphlet as well as another finding that the Secretary of State had made two exceptions for others in the past, may be viewed as directed toward a conclusion that the charged misconduct was inconsequential.
We think it reasonable to believe that, as a consequence of the irregular handling of the Groener material and the subsequent inconsistent reports to the Secretary of State, the relationship of confidence and trust which an employer might reasonably require between himself and an assistant charged with a high degree of responsibility in a sensitive area had been destroyed. In response to a question regarding his relationship with Mr. Thompson, the Secretary of State replied:
"Well, that an individual that I had worked with closely for some years had jeopardized the integrity of the elections system by back-dating a receipt and by not being candid with me.
"Frankly, it did destroy the trust and the confidence that I had had in him, because when you have worked closely with an individual for nearly 7 1/2 years, in building what you think, is the finest elections system in America, and then find the individual with whom you worked has thrown into question the integrity of that system.
"I was dismayed, hurt, and felt that I could no longer have trust or confidence in him."
Dismissal by the Secretary of State under these unique circumstances was not an unreasonable response.
The case is remanded to the Public Employe Relations Board with instructions to enter an order consistent with the fact findings we have reviewed here, and with this opinion.
NOTES
[1] While inaction of the legislature is of little, if any, value in assessing legislative intent, we do note that as a direct result of this court's decision in Phillips v. State Bd. of Higher Ed., 7 Or. App. 588, 490 P.2d 1005 (1971), Sup.Ct. review denied (1972), a bill intended to amend ORS 240.560 was introduced in the House during the 1973 session of the Oregon Legislature. House Bill 2551 specifically provided that the authority of the PERB would no longer be subject to the limitations of ORS 240.086(2). After passing in the House it was referred to the Senate Judiciary Committee which failed to take any action on it before adjournment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1503565/ | 148 F.2d 913 (1945)
BARNHILL
v.
COMMISSIONER OF INTERNAL REVENUE.
BARNHILL et ux.
v.
SAME.
WINBORNE
v.
SAME.
Nos. 5332-5334.
Circuit Court of Appeals, Fourth Circuit.
April 9, 1945.
*914 L. P. McLendon and W. H. Holderness, both of Greensboro, N. C., for petitioners.
Harry Baum, Sp. Asst. to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Helen R. Carloss, Sp. Assts. to the Atty. Gen., on the brief), for respondent.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
These cases raise the question whether certain justices of the Supreme Court of North Carolina, in computing their net incomes under the federal income tax law, should be allowed deductions for traveling expenses, including expenses for meals and lodging while away from their homes in attendance upon the business of the court at the state capital in Raleigh.
Maurice Victor Barnhill is the taxpayer in cases No. 5332 and 5333, which relate to the years 1939 and 1940, respectively. Separate cases were made because he filed a joint return with his wife in 1940. He was a judge of the Superior Court of North Carolina prior to 1937, and maintained a home in Rocky Mount, which is sixty miles distant from the capital. In that year he was appointed an Associate Justice of the Supreme Court of the state, and in 1938 was elected to that office for a term of eight years beginning January 1, 1939. Two terms of the court are held each year, one beginning on the first Monday in February and one on the first Monday in September. Under the statutes of the state all the sessions of the court are held at the capital. The presence of the justices at the capital is required during the terms but not otherwise, except for an occasional visit two or three times a month.
The taxpayer continued to maintain and keep open his home in Rocky Mount after he became a member of the Supreme Court and it was continuously occupied during the tax years by some member of the family. There is an unwritten law in North Carolina that there shall be a geographical distribution of the justices of the Supreme Court throughout the state, and each justice has always maintained a legal residence in the section of the state in which he resided at the time of his elevation to the court. The taxpayer continued to vote in Rocky Mount and maintained his church and club affiliations and listed his tangible and intangible personal property for taxation and paid his poll tax at that place.
During each of the two years the taxpayer, as a justice of the Supreme Court, received a salary of $7,500 and an additional allowance of $1,550 under the state statutes, G.S.N.C. § 7-3, "in lieu of and in commutation for expenses incident to attendance upon the court." While in Raleigh he stayed at a hotel in a room which he engaged by the year at the rate of $65 per month since he found this arrangement to be the most economical. He kept no account of the cost of his meals in Raleigh since during 1939 and 1940 neither the salary nor the expense allowance was deemed to be taxable. But he estimated his expenses for meals at $2.50 per day and claimed a deduction therefor of $557.50 in 1939 and $516 in 1940, indicating that he spent 223 days in 1939 and 206 days in 1940 at the state capital. In addition the taxpayer claimed a deduction for traveling expenses by automobile at the rate of 5c per mile, amounting to $276 in 1939 and $264 in 1940. When the court was in session, the taxpayer would go from his home in Rocky *915 Mount to Raleigh and return once a week, and when the court was not in session, the taxpayer made the round trip two or three times a month. He made 46 round trips in 1939 and 44 round trips in 1940.
During the tax years the taxpayer owned three farms and a house in addition to his residence. Two of the farms and the house were let for a cash rent. The other farm located near Rocky Mount was rented on shares and he attempted to give it frequent personal attention. His net income from his real estate was $405 in 1939 and $544.77 in 1940. He also derived dividends from the stock of a real estate and insurance company in Rocky Mount of which he was a director, amounting to $214.40 in 1939 and $283 in 1940.
Upon this evidence the Tax Court found that the taxpayer's sole business in the tax years was that of Associate Justice of the Supreme Court of North Carolina and that his place of business was at Raleigh, the state capital. The activities of the taxpayer as one of the directors without pay and a stockholder of the real estate and insurance corporation, and as the owner of the farms and the dwelling house, were not overlooked; but the conclusion was reached that the taxpayer was not engaged in the business of farming or of investment and that his activities in these respects were merely those of an investor or owner of property. It is obvious that there was ample evidence to support these findings and conclusions.
The controversy turns upon the legal conclusion of the Tax Court that the taxpayer was not entitled to the deductions claimed for living expenses at Raleigh and traveling expenses between Raleigh and Rocky Mount. This holding was based upon the view that the statute, relating to deductions for travel and living expenses of a taxpayer while away from home on business, contemplates that the taxpayer's home shall be located in the same neighborhood as his place of business, and if he chooses to live elsewhere, he must bear the added expenses involved without the privilege of deducting them in computing his net taxable income.
The relevant provisions of the statute and Treasury Regulations are as follows: Internal Revenue Code.
Sec. 23. (as amended by Sec. 121 of the Revenue Act of 1942, c. 619, 56 Stat. 798) Deductions from Gross Income.
"In computing net income there shall be allowed as deductions: (a) Expenses.
"(1) Trade or business expenses.
"(A) In general. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity."
26 U.S.C.A. Int.Rev.Code, § 23.
"Sec. 24. Items not deductible.
"(a) General rule. In computing net income no deduction shall in any case be allowed in respect of
"(1) Personal, living, or family expenses; * * *."
26 U.S.C.A. Int.Rev.Code, § 24.
Treasury Regulations 103, promulgated under the Internal Revenue Code:
"Sec. 19.23 (a)-1. Business Expenses. Business expenses deductible from gross income include the ordinary and necessary expenditures directly connected with or pertaining to the taxpayer's trade or business, * * * Amongst the items included in business expenses and management expenses, commissions, labor, supplies, incidental repairs, operating expenses of automobiles used in the trade or business, traveling expenses while away from home solely in the pursuit of a trade or business (see Section 19.23 (a)-2), advertising and other selling expenses, together with insurance premiums against fire, storm, theft, accident, or other similar losses in the case of a business, and rental for the use of business property. * * *"
"Sec. 19.23 (a)-2. Traveling Expenses. * * *
"(b) If an individual receives a salary and is also repaid his actual traveling expenses, he shall include in gross income the amount so repaid and may deduct such expenses.
"(c) * * * Only such expenses as are reasonable and necessary in the conduct of *916 the business and directly attributable to it may be deducted.
"Commuters' fares are not considered as business expenses and are not deductible."
It is noteworthy that the allowable deductions enumerated in the statute are ordinary and necessary expenses incurred in carrying on the business, traveling and living expenses while away from home in the pursuit of business, and rentals for occupation of property in the pursuit of business; and that personal living and family expenses are expressly disallowed. The regulations which interpret the statute emphasize the point that the deductible business expenses must be ordinary and necessary, and that only such traveling expenses as are reasonable and necessary in the conduct of the business may be deducted. Furthermore, commuters' fares, that is, the expenses of those whose homes are near enough to their places of business to enable them to travel back and forth daily are not deductible.
The decisions of the Tax Court have been influenced by this interpretation, and for a long period of time deductions for travel and living expenses at the place of business have been denied to a taxpayer who has chosen to establish his home elsewhere. For example, this ruling has been applied to a manager of public fairs who maintained a home distant from his place of business; to a traveling salesman who was unable to show that he had established a home in any location; to a woman whose home was in New York State but whose business interests were situated in Chicago; to a Congressman whose business was of necessity performed at the seat of government, while his home was in a distant state; and to an actor who maintained a home for his family in New York while he was continuously engaged in his profession during the tax year at Hollywood, California. See Bixler v. Commissioner, 1927, 5 B.T.A. 1181; Duncan v. Commissioner, 1929, 17 B.T.A. 1088; Peters v. Commissioner, 1930, 19 B.T.A. 901; Lindsay v. Commissioner, 1936, 34 B.T.A. 840; Tracy v. Commissioner, 1939, 39 B.T.A. 578.
On the other hand, traveling and living expenses have been allowed to one who had his principal place of business and home in the same city but was obliged to live in another city for considerable periods of time in the pursuit of his principal occupation or of some other minor business activity. Such was the holding in respect to the representative of a New York house who, during the emergency of the First World War was obliged to reside for two years in Paris; to a lawyer whose regular place of business was in Toledo but who spent two weeks of each month during the tax year in Washington as chairman of a Congressional Committee, whose other members were all congressmen; and to a business man who maintained his home and principal place of business in Boston but earned a substantial salary for services performed while residing from time to time in the City of New York. See Griesemer v. Commissioner, 1928, 10 B.T.A. 386; Brown v. Commissioner, 1928, 13 B.T.A. 832; Powell v. Commissioner, 1936, 34 B.T.A. 655; Gustafson v. Commissioner, 1944, 3 T.C. 998.
In the decision in the instant case and in other decisions, the Tax Court has said that for the purposes of the statute, a taxpayer's "home" means his place of business. This statement has been criticized or repudiated by the courts in some cases on the ground that the word "home" has a well-recognized meaning and that to give it the significance of "place of business" amounts to a distortion of the language of the statute and an invasion of the domain of Congress. See Coburn v. Commissioner, 2 Cir., 138 F.2d 763; Wallace v. Commissioner, 9 Cir., 144 F.2d 407. In both of these cases an actor was allowed deductions for living expenses at Hollywood because the court found from the evidence that the employment and residence at that place were temporary while the established home of the taxpayer was located elsewhere. If this view of the evidence in these cases is taken, the actual decision was not inconsistent with the rulings which the Tax Court has made in the cases heretofore cited and the result could have been reached, as indeed it was in the Coburn case, upon the assumption that the Tax Court's interpretation of the statute is correct. In Flowers v. Commissioner, 5 Cir., 148 F.2d 163, however, the court took a position flatly at variance with that of the Tax Court by holding that an attorney who maintains a home in Jackson, Mississippi, and devotes himself exclusively to the law business of a railroad company at Mobile, Alabama, has the right under the statute *917 to deduct his living expenses at Mobile and his traveling expenses between the two points in computing his taxable income.
The issue must also be squarely met in the pending case for the taxpayer's only place of business and his actual residence during the greater part of the tax years has been at Raleigh, while his home in the ordinary sense has been at Rocky Mount; and the decision of the Tax Court cannot be affirmed without holding that in allowing deductions for traveling expenses to one who is away from home on business, the statute implies that the home and the place of business must be in the same general locality. We think that the statute must be given this construction and that it may be done without arbitrarily construing the word "home" as synonymous with the term "place of business".
It is clear in the first place that Congress, in prescribing the rules for the computation of net income, intended to confine the deductions for business expenses to those which are ordinary and necessary, and to prohibit the deduction of personal living or family expenses. It was recognized that the taxpayer must maintain a home for his family at his own expense even when he is absent on business, and that his personal expenses during his absence on business may fairly be regarded as expenses of the business. But it is not reasonable to suppose that Congress intended to allow as a business expense those outlays which are not caused by the exigencies of the business but by the action of the taxpayer in having his home, for his own convenience, at a distance from his business. Such expenditures are not essential to the prosecution of the business and were not within the contemplation of Congress which proceeded on the assumption that a business man would live within reasonable proximity to his business. This is not the same as saying that the word "home" means "place of business" although in most cases where deductions for traveling expenses are claimed, the result will be the same.
Doubtless these considerations give rise to the regulations set out above which confine the deductions for traveling expenses to those which are reasonable and necessary and expressly forbid the deduction of commuters' fares. This prohibition indeed would be unauthorized if the word "home" were given its ordinary meaning, for there can be no doubt that in a literal sense one who lives in the suburbs and does business in the city must pay travel expenses while absent from his home in the pursuit of business. It is significant that these provisions of the regulations have been maintained and enforced throughout successive re-enactments of the statute and that they have been followed not only in the decisions of the Tax Court but in the settled administrative practice. See O.D. 905, 4 Cum.Bull. 212 (1921); O.D. 1021, 5 Cum.Bull. 174 (1921); I.T. 1264, I-1 Cum.Bull. 122 (1922); I.T. 1355, I-1 Cum.Bull. 194 (1922); I.T. 1380, I-2 Cum.Bull. 88 (1922); I.T. 3314, 1939-2 Cum.Bull. 152; G.C.M. 23672, 1943 Cum. Bull. 66. Under these circumstances, the regulations and the administrative interpretation must be deemed to have received implied legislative approval. Helvering v. Winmill, 305 U.S. 79, 83, 59 S. Ct. 45, 83 L. Ed. 52. Moreover, the decisions of the Tax Court are entitled to great weight. Dobson v. Commissioner, 320 U.S. 489, 501, 502, 64 S. Ct. 239, 88 L. Ed. 248.
We do not think that a different conclusion must be reached in the pending case because the place of residence of each Justice of the Supreme Court of North Carolina is taken into consideration at the time of his selection so that the Justices may be fairly distributed throughout the state, or because they maintain their legal residences in the sections of the state where they lived at the time of their elevation and are given an allowance by the state in commutation of the expenses incident to attendance upon the court. It is of course recognized that the bona fides of the contention advanced by the appellant North Carolina judges is completely established. Not only have they maintained their homes at the old locations but they have incurred additional living expenses at the state capital which the state authorities have found to be a proper charge upon the state treasury. It is therefore appropriate that they should seek the approval of the federal taxing authorities for the deductions they claim. But we must bear in mind that the system of federal taxation is established by acts of Congress and is not affected by state law or custom unless it is made applicable by the federal enactment. See United States v. Pelzer, 312 U. *918 S. 399, 402, 61 S. Ct. 659, 85 L. Ed. 913.[1] We must apply the underlying principles of federal taxation to state and federal officials alike, and we can see no distinction between the cases of the appellants herein and of the members of Congress who, for tax purposes, are deemed to reside in the national capital although they maintain their homes in the congressional districts which they represent.
The decisions of the Tax Court in cases Nos. 5332 and 5333 are therefore affirmed. The decision of the Tax Court in case No. 5334, which involves the tax liability of John Wallace Winborne, another Associate Justice of the Supreme Court of North Carolina, for the same tax years and raises no question not considered in the other cases, is also affirmed.
Affirmed.
NOTES
[1] H. R. 1627, now pending in Congress, provides that for the purpose of Section 23 of the Internal Revenue Code, the home of a member of Congress shall be considered to be his place of residence in the state from which he is a member. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2437141/ | 678 S.W.2d 312 (1984)
283 Ark. 399
TANDY CORPORATION Et al., Appellants,
v.
Johnny Dale BONE, Appellee.
No. 84-91.
Supreme Court of Arkansas.
October 22, 1984.
Rehearing Denied December 3, 1984.
*313 Wright, Lindsey & Jennings, Little Rock, for appellants.
R. David Lewis, Little Rock, for appellee.
HICKMAN, Justice.
Johnny Dale Bone, manager of a Radio Shack store in Little Rock, Arkansas, was fired or quit as a result of an investigation of irregularities in the operation of his store. Bone sued his employer alleging intentional infliction of mental distress as a result of the investigation. He also claimed that he was later slandered by another employee. The jury returned a verdict against Tandy Corporation, the parent company of Radio Shack, for $5,000 for slander, $9,000 for infliction of emotional distress and $100,000 in punitive damages. Tandy appeals and Bone cross-appeals.
The appellants raise seven points on appeal, two of which are meritorious and require us to reverse the judgment and remand the case for a new trial. The appellee raises five questions on cross-appeal, one of which has merit.
Over the objection of the appellants, the court gave AMI 2217, a standard jury instruction, which concerns punitive damages. We held in Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), that this instruction was designed to be used in cases of negligence, not in cases such as this one which involve an intentional tort. Just as we did in Ford Motor Credit Co., supra, we reverse and remand the case for a new trial because of this error.
The appellee argues that the appellants did not make a proper objection to this instruction because no instruction was proffered in substitution. There is no such requirement. All that is required to preserve *314 an objection for appeal regarding an erroneous instruction of law is to make a timely objection and state valid reasons for the objection. ARCP Rule 51. The appellants did both.
The trial court was also wrong in commenting on the weight to be given certain evidence offered by the appellants in the form of computer printouts. The court stated that the evidence was double hearsay and "terribly, terribly suspect." When the appellants moved for a mistrial, the court gave a mild admonition to the jury to disregard the court's remark. The Arkansas Constitution prohibits trial judges from commenting to the jury regarding matters of fact which are within the province of the jury. Art. 7 § 23 Ark. Const. (1874). The admonition given the jury by the court is as follows:
Ladies and Gentlemen, they are scolding me because I'm talking about the legal significance of it. You ladies and gentlemen don't pay any attention to what the court says about this. It's just a legal question. You don't let that influence you in your weighing of the evidence which you are receiving.
That admonition could not cure the remarks by the trial court whose words and opinions are undoubtedly given a good deal of weight by a jury.
At the request of the appellants, the court instructed the jury that statements, although slanderous, may be privileged when made without malice, in good faith, and relate to a subject bearing upon the employment relationship. There was no basis for giving this instruction. The alleged statement in this case was made by an employee to a customer who inquired of Bone's whereabouts. In essence the statement was that Bone had been fired for stealing. The jury had no circumstance before it which would give rise to the defense of privilege. See Dillard Dept. Stores, Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982).
Aside from these questions and other questions which we must discuss, the most difficult question before us is Bone's main cause of action which he describes as the intentional infliction of mental distress and which we have called the tort of extreme outrage. The appellants argue that there is no substantial evidence that would support a finding of intentional infliction of mental distress or extreme outrage and request that the judgment be reversed and dismissed. In reviewing this question on appeal, we must examine the evidence in the light most favorable to the appellee, who, in this case, is Johnny Dale Bone. We affirm if there is any substantial evidence to support the finding of the jury. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). We find there was in this case as we will explain.
We examined the question of outrage in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), where we said:
... [O]ne who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.
....
By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Restatement of the Law, Torts, 2d 72, § 46, Comment d.
In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we found no outrageous conduct and emphasized the conduct complained of must be both extreme and outrageous. We said:
The new and still developing tort of outrage is not easily established. It requires clear-cut proof. `Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable *315 in a civilized community.' (Italics supplied.)
In two cases we have held that a case was made for the jury of extreme outrage. In M.B.M. Co. v. Counce, supra, an employee was suspected of stealing but was told she was being laid off because of too many employees. She was later told she must submit to a polygraph test before she would receive her last paycheck. Although she passed the test, $36 was deducted from her final paycheck as her share of the missing money. She was denied unemployment benefits due to the reasons given by her employer for her dismissal. In a more recent case, the owner of a cemetery that held itself out as supplying perpetual care, caused exposure of vaults by excavation work and travel across the graves, all with such callous disregard that it was found to be outrageous conduct. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).
Not all courts are in agreement about the tort of outrage and how to treat it. As stated in 38 Am.Jur.2d, Fright, Shock, and Mental Disturbance, § 13:
In respect of the right to maintain an action for a bodily injury or illness resulting from a mental or emotional disturbance, the authorities are in a state of dissension probably unequaled in the law of torts.
We have taken a somewhat strict approach to this cause of action. Recognition of this new tort should not and does not open the doors of the courts to every slight insult or indignity one must endure in life. For example, abrasive profanity alone is not sufficient reason to have a cause of action. W. Prosser, The Law of Torts, § 12 (4th Ed. 1971); see also Brooker v. Silverthorne, 111 S.C. 553, 99 S.E. 350 (1919); Food Fair, Inc. v. Anderson, 382 So. 2d 150 (Fla.Dist.Ct.App.1980). But see Curnett v. Wolf, 244 Iowa 683, 57 N.W.2d 915 (1953) and 15 ALR2d 108 (1951).
The relevant facts are as follows. Johnny Dale Bone was hired in early 1983 as the manager of a Radio Shack store in Little Rock, Arkansas. Brooks Robbins was his assistant. Bone said he suspected that Robbins was stealing, but felt he could not prove it. He did send a memorandum to his superior regarding the unsatisfactory conduct of his employee. Bone was informed on two occasions by his supervisor that certain practices in the store were not satisfactory. On August 13, 1983, his supervisor, Mr. Max Griswold, and two security people came to the store at 9:30 a.m. to conduct an investigation. Bone and Robbins knew the investigation was going to be made. They were questioned at thirty minute intervals during the day. According to Bone, the security men cursed him, threatened him, and refused on two occasions during the questioning to allow him to take medication. Bone said, however, he was not touched by the security people. Brooks Robbins testified that he admitted to the investigators he was guilty of theft and was fired on the spot. That afternoon, about 3:30 p.m. after the questioning, Bone was asked to take a polygraph examination and he consented. However, he was in a highly agitated condition and he said he again requested that he be allowed to take his medication, which was a tranquilizer. It is conceded he was denied the request because it might affect the outcome of the test. Bone was taken to another location in Little Rock to take the test, but he hyperventilated. Paramedics were called. Bone recovered sufficiently to be taken home by Griswold. He returned to work the next day but could not continue. He called a psychiatrist for help and was eventually hospitalized on August 23. He remained in the hospital about a week and never returned to work. Bone's attorney wrote the appellants in August informing them that suit would be filed. The appellants offered testimony that Bone was terminated because he failed to return from medical leave.
According to the evidence, Bone had been taking Valium for at least three years and had a prescription for it from a psychiatrist. The psychiatrist, who treated Bone for the hyperventilation and anxiety, testified that Bone suffered from a personality *316 disorder which made him more susceptible to stress and fear than someone who did not have the personality disorder. He said that Bone had paranoid trends and episodes in which he is nearly, but not completely, psychotic and unable to function effectively with other people socially. He said that Bone had a low tolerance for frustration. Bone had first sought the services of a psychiatrist when he was in a federal penitentiary in 1979.
The appellants' evidence was contradictory: Bone was not cursed or called names during the questioning. One of the officers testified that the questioning began about noon and he did not know Bone took Valium until they were leaving to take the polygraph test and Bone then requested it. Bone told him then that he took it in the evening to relax. He told Bone it would be best if he could do without it because it would affect the polygraph test and Bone agreed.
Bone's suit was based on the fact that he was interrogated most of the day at 30 minute intervals, alternating between him and his assistant without a break for lunch, he was denied his Valium or medication when he was obviously under emotional stress, and the interrogators cursed him, accused him of stealing and threatened to have him arrested.
Was the employer's conduct extremely outrageous? Bone knew that he was going to be interrogated about the operations of the store before the security men arrived. There were serious deficiencies in the operation of the store. Bone knew that he was responsible for the operation of the store and would have to account for any discrepancies. Furthermore, Bone did not object to the polygraph examination and, in fact, agreed to take it. He returned to work the next day and stated that he still wanted to take the polygraph examination. The fact that he was questioned, the way he was questioned and requested to take a polygraph examination would not be outrageous conduct on the part of an employer investigating possible theft, serious inventory shortages, and unacceptable business practices as the employer had evidence of here.[1] The conduct on the part of the employer that does give us difficulty is the undisputed evidence that Bone was obviously undergoing a good deal of stress, requested his Valium or medication, and was denied that privilege. The employer was on notice at that point that Bone may not have been a person of ordinary temperament, able to endure a stressful situation such as he was placed in without injury.
In Givens v. Hixson, supra, we noted that the defendant knew nothing about the plaintiff's heart condition or the fact he was easily upset. Also in the case of M.B.M. Co. v. Counce, supra, we adopted the standard that "[t]he emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it." See also Prosser, supra, p. 50.
If the employer in this case had been completely ignorant of Bone's condition, it may be that Bone would not have a case of extreme outrage. However, the employer was not completely ignorant of Bone's temperament nor for that matter diligent in learning about Bone's background. The employer discovered shortly after Bone was employed that he had lied on his application about his criminal record and had been convicted of a felony. His supervisor did not bother to find out what the conviction was for. The supervisor said that if he had learned that it was for selling heroin he would have terminated Bone. He could have easily discovered this information and perhaps more about Bone's background.
More importantly, we have to take Bone's testimony at its face value in examining the legal question before us. Bone *317 said that on at least three occasions during the day he requested that he be permitted to take his medication. At one time he said he reached for a drawer to get it and the drawer was slammed shut by one of the investigators. He said that before he went to take the polygraph test he was "begging" to take it. His supervisor admitted that Bone requested that he be allowed to take his Valium before the polygraph test was to be administered. One of the investigators testified that he intended to place Bone and the other employee in a somewhat stressful situation. So we do not have a situation of an employee of ordinary emotional stamina, and we do not have a situation in which the employer was totally ignorant of the physical or emotional condition of the appellee as was in Givens v. Hixson, supra. It was for the jury to decide whether under the circumstances it was outrageous conduct for the employer to deny Bone his medication and to continue to pursue the investigation knowing Bone was on medication or Valium. We emphasize that the notice to the employer of Bone's condition is the only basis for a jury question of extreme outrage. Whether Bone's testimony was credible, whether he had intentionally lied to his employer[2], whether the employer was reasonable in denying him his medication, and whether, considering all the circumstances, the employer was guilty of outrageous conduct that proximately caused emotional distress to Bone were all questions for the jury. Because of the evidence we have outlined, there would be substantial evidence to support a verdict for outrage.
The jury also found that Bone had been slandered when an employee of Radio Shack told a customer that Bone had been fired for stealing. The appellants argue on appeal that there was insufficient evidence of slander. We do not agree. A customer testified an employee, he assumed to be the manager, told him the former manager had been fired for stealing. Two other witnesses testified an employee told them that Bone was fired for reasons that he did not "want to get into right now." All inferences must be taken in the light most favorable to the appellee and from this evidence the jury could easily have found slander. See Arkansas Ass. Telephone Co. v. Blankenship, 211 Ark. 645, 201 S.W.2d 1019 (1947).
The appellants argue that the trial court erred in refusing to give an instruction that the jury could take into account Bone's lack of good character and reputation in assessing any damage to his reputation. This argument was made based on the evidence of Bone's conviction in federal court. Bone admitted the conviction during direct examination. This is not evidence of Bone's reputation. Specific instances of wrongdoing are not reputation for bad character or opinion evidence that is contemplated by such an instruction. See 2 D.W. Louisell and C.B. Mueller, Federal Evidence § 143 (1978).
Appellants argue that it was wrong to allow Bone to deny that he was actually guilty of a crime for which he had been convicted. A witness cannot offer evidence which would amount to a retrial of that prior conviction. Jones v. State, 277 Ark. 345, 641 S.W.2d 717 (1982). Bone should not have been allowed to try to demonstrate his innocence, but this is an issue of relevancy and the trial judge is permitted a wide range of discretion. Jones v. State, supra.
Another point raised by appellant concerns hearsay. Bone testified that at *318 one point he had been told by his probation officer to put "no" if he were asked on an employment form whether he had been convicted of a felony. The objection was properly overruled. This is not an example of hearsay since Bone was not offering the statement to prove whether the probation officer so directed him but instead he was offering it to prove his motive in so filling out the form. This was also a discretionary ruling.
On cross-appeal Bone argues that the trial court erred in not entering the rate of interest on the judgment, which he contends should have been ten percent from the date of the judgment, according to Ark. Stat.Ann. § 29-124 (Repl.1979). This is a matter which can be corrected upon retrial.
Bone argues that the trial court erred in permitting introduction of the appellee's employment application and crossexamination regarding his prior employment history because they were irrelevant. Bone admitted he lied on the employment form and, therefore, the trial judge did not abuse his discretion in admitting the form.
Bone also argues that the court erred in refusing to direct a verdict for him on the appellants' counter-claim for $28,000 in inventory losses. No motion for a directed verdict appears in the abstract. Bone (cross-appellant) therefore cannot raise the court's failure to grant it. As part of this point Bone also argues it was error for the court to instruct the jury that Bone owed appellants a fiduciary duty. There was no error since Bone was the appellants' employee and agent in this case, as manager of their store, and, thus, owed them a fiduciary duty. See H. Resuchlein and W. Gregory, Handbook of the Law of Agency and Partnership §§ 4, 67 (1979); Restatement (Second) Agency § 220 (1958); 53 Am.Jur.2d Master and Servant § 97 (1953). Bone argues that his employment contract controls any duty he owed and that it provides that an employee will be liable for losses due only to gross negligence or dishonesty. The contract contains no such limitation; it merely recites that if there are losses occasioned by the dishonesty or gross negligence of the employee, then the employer has the right to deduct the losses from the employee's wages.
The final issue, raised on cross-appeal, involves records. Immediately after this incident, the appellants conducted an inventory by computer and offered into evidence the results of computation in the form of certain printouts. An objection was made that these printouts were hearsay. Bone here argues they were prepared after notice of suit and for the purposes of testimony at trial and could not be admissible under Rules of Evidence 803(6). The trial court, in its discretion, allowed the printouts to be admitted, and we cannot say the decision was clearly wrong.
The appellee also argues that the appeal should be dismissed because of violation of Supreme Court Rule 9. We find no such violation.
The case is remanded for a new trial.
Reversed and remanded.
NOTES
[1] For example, Bone had difficulty explaining the sale to a customer of a piece of merchandise which involved a check made payable directly to him which noted it was in "repayment of a loan." Bone testified that the equipment was his and not the property of Radio Shack, but he could not explain why the notation was made on the check. Bone said he denied throughout the investigation that he was guilty of any theft or committed any intentional dishonest act.
[2] The evidence revealed that Bone had lied to his employer in several instances. On his employment application form, he marked "No" in answer to whether he had been convicted of a felony. In fact, he had been convicted of distributing heroin and sentenced to the federal penitentiary. He marked that he was a high school graduate when actually he had only completed the ninth grade. He explained that he had a graduate equivalency diploma and thought that the question permitted the answer he gave. He conceded that he lied when he noted that he had completed one year of college. He had not. His employer did not know that he had been under medication or taking Valium for at least three years. Bone testified that he was not asked at the time of his employment if had ever been treated by a psychiatrist. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2244571/ | 769 N.E.2d 942 (2002)
199 Ill. 2d 398
264 Ill. Dec. 105
The PEOPLE of the State of Illinois, Appellant,
v.
Jeremy DEVENNY, Appellee.
No. 91291.
Supreme Court of Illinois.
April 18, 2002.
Rehearing Denied May 29, 2002.
James E. Ryan, Attorney General, Springfield, Joseph E. Birkett, State's Attorney, Wheaton (Joel D. Bertocchi, Solicitor General, William L. Browers, Domenica A. Osterberger, Assistant Attorneys General, Chicago, of counsel), for the People.
G. Joseph Weller, Deputy Defender, Mark G. Levine, Assistant Defender, Office of the State Appellante Defender, Elgin, for appellee.
Justice THOMAS delivered the opinion of the court:
The sole issue in this case is whether the 15-year sentencing enhancement for armed robbery while in possession of a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2000)) is valid and enforceable. We hold that it is not.
BACKGROUND
Defendant, Jeremy Devenny, was charged by indictment with robbery (720 ILCS 5/18-1 (West 2000)) and armed robbery while in possession of a firearm (720 ILCS 5/18-2(a)(2) (West 2000)). Although armed robbery is classified generally as a Class X felony, subsection (b) of the armed robbery statute provides that, for armed robberies while in possession of a firearm," "15 years shall be added to the term of imprisonment imposed by the court." 720 ILCS 5/18-2(b) (West 2000). Prior to trial, *943 defendant filed a motion arguing that the 15-year sentencing enhancement both violates the proportionate penalties clause of the Illinois Constitution (Ill. Const.1970, art. I, § 11) and constitutes an unlawful double enhancement. The circuit court of Du Page County agreed with both of defendant's arguments, invalidated the 15 year enhancement, and dismissed the armed robbery count. The State immediately appealed under Supreme Court Rule 604(a)(1) (145 Ill.2d R. 604(a)(1)). Because the trial court's ruling invalidates a statute of this state, the appeal was taken directly to this court. 134 Ill.2d R. 603.
ANALYSIS
A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill. 2d 542, 550, 239 Ill. Dec. 572, 714 N.E.2d 491 (1999). This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it reasonably can be done. People v. Malchow, 193 Ill. 2d 413, 418, 250 Ill. Dec. 670, 739 N.E.2d 433 (2000). Whether a statute is constitutional is a question of law that we review denovo. Malchow, 193 Ill.2d at 418, 250 Ill. Dec. 670, 739 N.E.2d 433.
This appeal is controlled by our decision People v. Walden, 199 Ill. 2d 392, 264 Ill. Dec. 91, 769 N.E.2d 928 (2002). In Walden, this court concluded that the 15 year sentencing enhancement for armed robbery while in possession of a firearm violates the proportionate penalties clause of the Illinois Constitution and therefore is unenforceable. Walden, 199 Ill.2d at 397, 264 Ill. Dec. at 95, 769 N.E.2d at 932. Given the identity of issue between this appeal and Walden, we hold that the trial court's order invalidating the 15-year enhancement in this case was proper.
CONCLUSION
The judgment of the circuit court of Du Page County is affirmed, and the cause is remanded for further proceedings consistent with this opinion.
Affirmed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610356/ | 76 Cal. App. 2d 427 (1946)
HARVEY MACHINE CO., INC. (a Corporation), Appellant,
v.
LUCY ALVAREZ et al., Respondents.
Civ. No. 15487.
California Court of Appeals. Second Dist., Div. Two.
Oct. 9, 1946.
Hindin, Weiss & Girard for Appellant.
No appearance for Respondents.
McCOMB, J.
From a judgment in favor of defendants predicated upon the sustaining of their demurrer to a complaint for declaratory relief, plaintiff appeals. [fn. 1]
The undisputed facts are these:
It was alleged in the complaint that plaintiff and defendants had entered into a written contract commonly known as a collective bargaining agreement and that a dispute had arisen between the parties as to the interpretation of certain provisions in such agreement. The agreement was made a part of the complaint and attached thereto. In the agreement were appropriate clauses providing for arbitration of disputes between *428 the parties arising under the contract. Plaintiff prayed that the court declare its rights, duties and obligations under the terms of the written agreement. [fn. 2]
Defendants demurred to the complaint on the grounds that (1) it failed to state a cause of action, and (2) the court had no jurisdiction of the subject matter of the action because the agreement contained a clause providing for arbitration of any *429 grievance or dispute arising under the terms of the agreement and that plaintiff had not alleged that it had exhausted its remedy under the arbitration clause in the contract. The demurrer was sustained.
There are two questions necessary for us to determine which will be stated and answered hereunder seriatim:
[1] First: Did the complaint state a cause of action?
This question must be answered in the affirmative. The law is established in California that a complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written contract and requests that these rights and duties be adjudicated by the court. (Columbia Pictures Corp. v. DeToth, 26 Cal. 2d 753, 760 [161 P.2d 217, 162 A.L.R. 747].) In the instant case the complaint met each of the foregoing requirements.
[2] Second: Was it a condition precedent to plaintiff's right to maintain an action for declaratory relief that it allege compliance or an attempt by it to comply with the arbitration clause set forth in the contract?
This question must be answered in the negative. Declaratory relief is a proper remedy to ascertain whether any particular grievance arising under a written contract is properly subject to arbitration under an arbitration clause in an agreement. *430 (Texoma Nat. Cas. Co. v. Oil Workers, 58 F. Supp. 132, 134 et seq. (affirmed in 146 F.2d 62; certiorari denied by the U.S. Supreme Court, 324 U.S. 872, 67 S. Ct. 1017, 89 L. Ed. 1426).)
In view of the foregoing rule it was unnecessary for plaintiff to allege in its complaint compliance or an attempt to comply with the terms of the arbitration clause in the contract prior to instituting the instant suit.
For the foregoing reasons the judgment is reversed with directions to the trial court to overrule defendants' demurrer and to allow them a reasonable time within which to answer plaintiff's complaint if they be so advised.
Moore, P. J., and Wilson, J., concurred.
"Comes now the plaintiff and for cause of action against the defendants and each of them allege:"
I
"That at all times herein alleged the plaintiff was and is a corporation organized and existing under the laws of the State of California and having its principal place of business in the County of Los Angeles, State of California."
II
"That at all times mentioned herein the defendants Western Mechanics Local Union #700 and the International Union, Mine, Mill and Smelter Workers, C.I.O. were and are unincorporated associations, organized and operating as trade unions and acting as the collective bargaining representatives of the employees of the plaintiff corporation. That at all times mentioned herein, the defendant Aaron Weiselman was and is an agent, and officer of the defendant unions and an employee of the plaintiff corporation. ..."
III
"That on or about the 17th day of August 1944 the plaintiff and the defendant unions and each of them made and executed an agreement in writing, hereinafter referred to as the collective bargaining agreement, a copy of the said agreement being attached hereto and incorporated herein by reference thereto as fully as if the said agreement were set forth in detail in the body of this complaint, and marked Exhibit 'A'."
IV
"That at all times mentioned herein the defendants Aaron Weiselman and Lucy Alvarez were and are employees of the plaintiff corporation."
"That the defendant Aaron Weiselman and the defendant Lucy Alvarez on or about the 27th day of June 1945 and the 7th day of June 1945 respectively, were issued a warning notice by the plaintiff. That a copy of the said warning notices are attached hereto and incorporated herein by reference thereto and marked exhibits 'B' and 'C' respectively. That thereafter the aforesaid defendants executed and delivered to the plaintiff instruments in writing entitled 'grievances,' and copy of which said grievances are attached hereto and incorporated herein by reference thereto and marked Exhibits 'D' and 'E' respectively. That the aforesaid defendant, Aaron Weiselman, has not been discharged by the plaintiff but is still in the employ of the plaintiff. That the defendant, Lucy Alvarez, was discharged by the plaintiff on July 12, 1945 for reasons and grounds different and distinct from matters specified in the aforesaid warning notices."
V
"That an actual controversy has arisen between the parties concerning the interpretation of the collective bargaining agreement and the respective rights, duties, and obligations of the parties hereto as is more fully set forth hereinafter, and a declaration of the such rights, duties, and obligations of the parties is sought the plaintiff by this action."
VI
"Plaintiff contends that under the terms of the collective bargaining agreement as is hereinabove set forth, a warning notice is not the proper subject matter of a grievance unless and until the employee is finally discharged or terminated on the same grounds and for the same cause as specified in the warning notice. Plaintiff further contends that the alleged grievances attached hereto and marked exhibits 'D' and 'E' respectively do not constitute grievances which are subject to the grievance procedure and arbitration by the parties. The defendants contend to the contrary."
"Wherefore, plaintiff prays that the defendants appear in the within action and set forth their respective claims, and that"
"1. The court declare the rights, duties, and obligations of the parties under the terms of the collective bargaining agreement and"
"2. The alleged grievances of the defendants Aaron Weiselman and Lucy Alvarez a copy of which are attached hereto and marked exhibits 'D' and 'E' respectively be declared by the court not to be constitute grievances within the meaning of the aforesaid collective bargaining agreement and that they are not subject to the grievance procedure and arbitration under the terms of the collective bargaining agreement,"
"3. For costs of suit and"
"4. For such other and further relief as to the court may seem meet, just and equitable in the premises."
NOTES
[fn. 1] 1. It is to be noted that defendants have not favored this court with either a brief or oral argument.
[fn. 2] 2. Omitting the title of the court and cause the complaint read as follows: | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610362/ | 76 Cal. App. 2d 620 (1946)
ALICE G. REILLY, Respondent,
v.
CALIFORNIA STREET CABLE RAILROAD COMPANY (a Corporation) et al., Appellants.
Civ. No. 13033.
California Court of Appeals. First Dist., Div. Two.
Oct. 29, 1946.
Cooley, Crowley, Gaither & Dana and Bronson, Bronson & McKinnon for Appellants.
M. Mitchell Bourquin and John J. Healy, Jr., for Respondent.
GOODELL, J.
The respondent sued the appellants cable company and Grace Brothers and the latter's driver, for concurrent negligence resulting in a collision in which respondent was injured. She recovered a verdict of $11,000 against all defendants, and from the judgment entered thereon they appeal.
On June 29, 1943, shortly after 9 a. m. respondent was a passenger in the front seat on the right-hand side of the open, forward section of a cable car descending easterly on California Street between Grant Avenue and Kearny Street, in San Francisco, where the grade is 13 1/2 per cent. A truck and trailer of Grace Brothers, driven by appellant Ward, was traveling southerly on Kearny, approaching California. It drove into the intersection and the cable car, coming down the hill, collided with the trailer. The impact threw the respondent from the car to the street.
A stop sign had been installed by the city authorities at each of the four entrances to the intersection.
The Grace Bros. Brewing Company's Appeal.
Grace Brothers' first point is that the cable company's negligence was the sole proximate cause of the accident. This is but another way of saying that Grace Brothers were not *623 negligent, or, if they were, their negligence was not a proximate cause of the collision.
The verdict of course implied a finding that the truck, as well as the cable car, was negligent.
[1] Appellant claims that the cable company did not discharge its duty as a carrier, of "utmost care and diligence" to its passenger (Civ. Code, 2100) and could not have done so while operating its antiquated equipment; further, that the cable car "could not blindly and negligently proceed into the intersection on the assumption that the truck would give way." These arguments do not touch the point, for however negligent the cable company may have been, the question now presented is simply with respect to Grace Brothers' negligence. Whether the jury found that the cable company failed in its highest duty to its passenger or simply failed to use ordinary care, is of no consequence because the jury in any event fastened liability on the cable company. "In such a situation appellate courts will not look behind the verdict in an attempt to ascertain the theory adopted by the jury." (Schultheiss v. Los Angeles Ry. Corp., 11 Cal. App. 2d 525, 528 [54 P.2d 49].) [2] That, however, does not help Grace Brothers, for even though the negligence of one defendant may be greater than that of another (a question upon which we are not called upon to pass), the injured third party may recover from both or either. (Smith v. Schwartz, 14 Cal. App. 2d 160, 164 [57 P.2d 1386].) The case just cited holds that "in order for one driver to establish that the independent negligence of the other was the sole proximate cause of the collision, it must appear that his own negligence was so disconnected in time and nature as to make it plain that the damage occasioned was in no way the natural or probable consequence of the negligence of him thus seeking to be relieved from liability." It is apparent from the verdict against both corporate defendants that Grace Brothers did not convince the jury on that question of fact. In the same case it is said, "the question of whether the negligence of one driver or both was the proximate cause of the collision is one of fact to be determined by the jury, ... and if there be evidence to support such determination, it cannot be disturbed on appeal. [Citations.]" (See, also, Day v. General Petroleum Corp., 32 Cal. App. 2d 220, 235, 236 [89 P.2d 718], and Taylor v. Oakland Scavenger Co., 17 Cal. 2d 594, 602 [110 P.2d 1044].)
[3] There is ample evidence to hold Grace Brothers. It is *624 sufficient to refer to the testimony of several witnesses who saw Ward drive through the stop sign and keep on going directly into the path of the cable car--some said as fast as 10 to 15 miles an hour. Granting that Ward testified he stopped or was "barely rolling," the jury could have believed that he did not stop at all, which, as the jury was instructed, was negligence as matter of law.
[4] Grace Brothers' second point is that prejudicial error was committed in the instructions to the jury. At the request of the cable company the jury was instructed that "it is the duty of the driver of a motor vehicle who is approaching and about to cross the tracks of a moving street car to use reasonable care to yield the right of way to such street car when it is reasonably necessary to do so in order to avoid a collision with said street car. The right of way means the right to the immediate use of the highway." (Emphasis ours.) It is difficult to see how this instruction conferred, as counsel claim it did, "an absolute and preeminent right of way upon the cable car" or subordinated the truck's rights. This language finds direct support in Arnold v. San Francisco-Oakland T. Rys., 175 Cal. 1, 5 [164 P. 798], where it is said: " 'A street-car cannot go upon the street except upon its rails and hence it has the better right to that space, to which others must yield when necessary'. [Citations.] It was the duty of Arnold, upon approaching the crossing, to give way to a car of the defendant which was about to pass at the same time, if necessary to avoid a collision, since he could give way while it could not. ..." (Emphasis ours.) (See, also, New York L. Oil Co. v. United Railroads, 191 Cal. 96, 100 [215 P. 72].)
Primm v. Market Street Ry. Co., 56 Cal. App. 2d 480 [132 P.2d 482] is relied on in this attack but the instruction there held to be "not entirely correct as applied to intersections" was so much stronger than that given in this case that it warrants no comparison at all. It told the jury--which the instruction now discussed did not--that "A street car has from necessity a right of way ... paramount to that of persons and ordinary vehicles, though this superior right is not exclusive. ..." On the other hand it was said in Aungst v. Central California Traction Co., 115 Cal. App. 113, 116 [1 P.2d 56], citing O'Connor v. United R. R., 168 Cal. 43 [141 P. 809], that streetcars "have no absolute or pre-eminent right of way over intersections. ..." In the Primm case it was said, "The rule applicable to the facts of this case is set forth *625 in Wright v. Los Angeles Ry. Corp., 14 Cal. 2d 168, 173 [93 P.2d 135]; '... it is generally conceded that, on approaching an intersecting street, the duties of a streetcar motorman and those of the driver of an automobile which is about to cross the streetcar tracks at such intersection, are reciprocal and that each is required to approach the intersection with due regard for the rights of the other [citations]'." [5a] In an instruction given at the plaintiff's request the jury was told that "While the defendant, ... Railroad Company, in this case had the right to operate its car along the track maintained by said defendant on California Street and across Kearny ..., it was the duty of said defendant to exercise ordinary care in the operation thereof to avoid collision with other persons and vehicles using the public streets. ..." That instruction, while not speaking of reciprocal rights at intersections, conveyed to the jury the same thought as that expressed in the Wright case. Grace Brothers attribute to that instruction the same vice as that attributed to the one first criticized, in that it emphasized the idea of an absolute right at an intersection and "confirmed the error of the instruction earlier discussed and ... enhanced the prejudice." But it is difficult to see how it can be attacked on that or any other ground. The right of the cable company to operate cannot be questioned, and the remainder of the instruction correctly stated the cable company's duty toward other vehicles and pedestrians (see Shipley v. San Diego Elec. Ry. Co., 106 Cal. App. 659, 661 [289 P. 662]).
[6] It is claimed, further, that the instruction just quoted was "misleading and confusing in defining the degree of care with which the cable car company was charged." The instruction only pretended, obviously, to state the duty owed by the cable company to "other persons and vehicles using the public streets," not that owed to its passengers. In another instruction, of which Grace Brothers also complain, the jury was told that the cable company "was under the duty of exercising the highest degree of care to avoid any injury to the plaintiff." The charge of confusing the jury is not made out because the jury, apparently, was not confused. [5b] As said in discussing Grace Brothers' first point, the jury brought in a verdict against the cable company and whether it was based on a failure to use the highest degree of care or to use only ordinary care does not matter. Grace Brothers are not in a position to complain on any ground, of the instruction which *626 stated the carrier's duty to its passenger. (See McKinnon v. United Railroads, 55 Cal. App. 96, 101 [203 P. 122].)
[7] The brewing company (but not the cable company) claims also that the award of $11,000 was excessive. The trial judge was called on to exercise his discretion on this question and his denial of a new trial indicates that he, with power to "consider the evidence anew, determine anew the facts, and set aside the verdict if it is not just," considered the verdict not excessive. "Upon appeal, the decision of the trial court and jury on the subject cannot be set aside unless the verdict is 'so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury.' [citations]." Hale v. San Bernardino etc. Co., 156 Cal. 713, 715 [106 P. 83]; Lahti v. McMenamin, 204 Cal. 415, 419 [268 P. 644]; Mudrick v. Market Street Ry. Co., 11 Cal. 2d 724, 735 [81 P.2d 950, 118 A.L.R. 533].
Actual damages in this case came to $2,130.90.
At the time of her injury respondent was 49, unmarried, and was working as an office secretary. Her injuries consisted of a fracture of the sacrum; a fracture, with crushing, of the sixth dorsal spine, and the fracture of two ribs (on a plane with the crushed vertebra). She also suffered contusions. She was confined to the hospital for one month. She wore a brace for three months and when she attempted to get along without it had to resume its use, finally discarding it on October 18, 1943. Prior to the accident she was well and was able to work a full day, but when she returned to work, after three and a half months absence, she was able to work only from 10:30 a. m. until about 4 p. m., and, at that, found it difficult to keep going until 4. She testified to more or less constant pain in the sacral region from which she got relief by standing, and pain between her shoulders (the sixth dorsal spine is between the shoulders) which pains kept her awake nights, necessitating the taking of sedatives. She had been under the constant care of her doctor up to the time of trial and had undergone osteopathic treatment twice a week for 14 months by a specialist. She had had to give up all her numerous former social activities, in order to conserve her strength so that she could carry on her daily work, even at shortened hours. Respondent's doctor, who had known her for some years, testified to a marked change in her appearance and nervous condition as a result of the accident. Respondent *627 testified to pains in her legs and back at times, and to severe headaches, and the pains in the back were worse when she was working at the office under pressure. In her doctor's opinion some of her symptoms would be permanent. Respondent testified that she worried as to the possible future impairment of her earning power.
Counsel for appellant concede that there is no arbitrary standard by which claimed excessiveness can be tested, and cite no cases involving damage awards for similar injuries. However, we have found a case (McNown v. Pacific Freight Lines, 50 Cal. App. 2d 221, 227 [122 P.2d 582]) where a woman plaintiff six years younger than respondent suffered a dislocation of her coccyx, and was confined to the hospital one week less than she. The injuries in the instant case seem to be considerably more serious than those in that case. An award by the jury of $10,000 was attacked as excessive but held to be not so. We appreciate that while other somewhat similar cases furnish no precise or accurate bases for comparison, they are nevertheless continually resorted to by appellate courts as of some guidance. (E. g. Ringis v. Otting, 63 Cal. App. 2d 88, 92 [146 P.2d 421]. See Power v. California St. Cable R. Co., 52 Cal. App. 2d 289, 293 [126 P.2d 4].)
In view of the respondent's injuries, of the doctor's testimony as to the probability of permanent trouble, and of the uncertainty as to the continued capacity of the respondent to work, we cannot say that the award was excessive. The respondent is an unmarried woman, entirely dependent on herself for support. The doctor has testified to the marked change in her appearance and nervous condition as a consequence of this accident. When in addition to this consideration is given to the elements of pain and suffering and the complete loss of social life, the award does not suggest passion or prejudice.
The Cable Company's Appeal.
[8] The principal complaint of the cable company is that the jury received the impression from the instructions that the cable car was bound, just as were motor vehicles, to stop at the nearest or westerly line of Kearny Street because of the stop sign facing west.
The jury was instructed that the Vehicle Code provides that it is "lawful for local authorities of this City and County to designate any intersection under its exclusive jurisdiction *628 as a stop intersection and erect stop signs at one or more entrances thereto."
We have already seen that there were stop signs at all four entrances to this intersection. That fact having been proved, the jury, in the absence of an appropriate instruction, might well have received the impression that the stop sign facing west obligated the cable car to stop on the westerly line of Kearny just as much as the stop sign facing north obligated the truck to stop on the northerly line of California. But by an instruction proposed by the cable company the jury was told "that Section 577 of the Vehicle Code ... provided as follows:"
" 'The driver of any vehicle upon approaching any entrance of the highway or intersection signposted with a stop sign as provided in this code ... shall stop before entering the nearest crosswalk, or if none, then on the limit line marked otherwise, before entering such highway or intersection.' " And further:
"You are instructed that Section 31 of the Vehicle Code ... provided as follows:"
"... 'A vehicle is a device in, upon or by which any person or property is or may be propelled, moved or drawn upon a highway excepting a device moved by human power or used exclusively upon stationary rails or tracks.' "
In addition to the instructions proposed by the cable company quoted above, dealing with sections 577 and 31, the same defendant also tendered the following, which were refused:
"You are instructed that Sec. 457 of the Vehicle Code ... provided as follows:"
" '457. Scope of Division. The provisions of this division, except those of Chapters 4 and 5, relating to the operation of vehicles refer exclusively to the operation of vehicles upon the highways, unless a different place is specifically referred to in a given section. The provisions of Chapters 4 and 5 of this division apply throughout the State unless otherwise indicated'."
"In connection with Sections 552 and 577 of the Vehicle Code which I have just read to you, I instruct you that such sections do not apply to the operator of a cable railroad in approaching a through highway. These sections apply to the operators of automobiles and trucks and similar vehicles but have no application to the operator of a cable car such as *629 we have in this case and which moves exclusively upon stationary rails or tracks."
That part of the last proposed (and rejected) instruction which we have emphasized will be seen to be an amplification of the instruction based on section 31, which was given, the language of which in defining a "vehicle" excepts "a device ... used exclusively upon stationary rails or tracks."
It is the contention of the cable company that the mere giving of the language of section 577 and section 31 did not fully and fairly instruct the jury on the subject involved. Counsel say "A close analysis and study of the sections reveals to the trained mind that the operation of a cable car was not bound by the terms of section 577. The matter, however, is not clear without study." They invoke the rule that in many instances the mere language of a code section may require further instructions for clarification, citing People v. Adams, 79 Cal. App. 373, 377 [249 P. 536]; Formosa v. Yellow Cab Co., 31 Cal. App. 2d 77 [87 P.2d 716], and Pemberton v. Arny, 42 Cal. App. 19 [183 P. 356]. In all three cases the rule is discussed but in none of them is it held that the court erred. People v. Adams was a forgery case and it was held that the state of the record did not warrant the giving of the rejected instruction. In Pemberton v. Arny, the court instructed in the language of the Motor Vehicle Act and on appeal it was held that no interpretation or enlargement of that language was required. In the Formosa case, just as in this case, the court gave instructions in the language of the vehicle code and refused others in amplification thereof. There the court (31 Cal. App. 2d 77, 84) in approving such action had this to say: "The Motor Vehicle Act and its successor the Vehicle Code were passed by the legislature primarily for the purpose of guiding the motoring public. The language is plain and concise, and not couched in legal verbiage that is baffling to a juror. Under such circumstances, the giving of explanatory, or as they are here termed, specific instructions as to the legal effect of the wording used, is not mandatory upon the trial court. Instructions based on code provisions should follow the wording of the particular section involved, and when confusing or couched in legal terms should be explained, but when the language of the section is unambiguous and clearly stated without legal embellishments, no explanatory instructions are necessary. It is incumbent *630 upon the trial court to determine whether or not a code section should be explained."
"It should be unnecessary to say that there is no law requiring the court to repeat an instruction once given or to amplify unnecessarily upon propositions which to a jury of ordinary intelligence would be apparent from the instructions given." (Sharpless v. Pantages, 178 Cal. 122, 125 [172 P. 384].)
There is a strong reason why, in our opinion, no explanation or amplification was needed and that is, that the reading of the language of section 31 with its exception of devices "used exclusively upon stationary rails or tracks" was immediately followed by this, "You are instructed that if you find from the preponderance of the evidence that defendant, Cecil M. Ward failed to bring his truck to a stop before entering the nearest crosswalk of the intersection of California and Kearny Streets, that then, if you so find said defendant was guilty of negligence as a matter of law."
This applied the general rule theretofore read to the jury, to Ward and his truck incisively and with particularity. The fact that no similar instruction was fitted to the cable company singled out the truck alone as subject to obedience to stop signs and conspicuously left out the cable car.
[9] Section 457 of the Vehicle Code does not deal with physical factors such for example as speed, turns or signals, but with the application of certain chapters of the code. Its language was designed obviously as a guide to lawyers and judges rather than as laying down a rule of action or conduct for the motoring public. It could not have enlightened the jury on any phase of this case, and might easily have led to confusion and perplexity. The remainder of the instruction, as already noted, was a mere expansion of what the jury had been already told.
Section 552 had no place in these instructions. It reads: "Vehicle Entering Through Highway. The driver of any vehicle which has stopped as required by this code at the entrance to a through highway shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on the *631 through highway shall yield the right of way to the vehicle so about to enter or cross the through highway."
Section 552 obviously relates to the approach of two motor vehicles. Counsel for the cable company, then, are not altogether consistent in urging that this instruction should have been given, for, as we have seen, they strenuously urge--and properly so--that the cable car is not a "vehicle" within the purview of the code. It was not at all applicable.
The case of Adrian v. Guyette, 14 Cal. App. 2d 493 [58 P.2d 988] cited by the cable company is not comparable. There the court left to the jury several questions of law. Here the court read to the jury without change an instruction composed by the cable company's counsel, and simply declined to give a further instruction which was repetitive in part and which otherwise dealt only with a matter of statutory construction which might conceivably have been "baffling to a juror" (Formosa case, supra).
We find no error in the record.
[10] The cable company appeals, also, from the order denying a new trial, which is not an appealable order. (Code Civ. Proc., 963; 2 McK. Dig. Recompiled, p. 161, 74.) On an appeal from the judgment itself such order is reviewable (Code Civ. Proc., 956; Casner v. Daily News Co., 12 Cal. 2d 402, 404 [84 P.2d 1032]). Accordingly, that appeal is dismissed.
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/2610378/ | 76 Cal. App. 2d 572 (1946)
THE PEOPLE, Respondent,
v.
COUNTY OF IMPERIAL, Appellant.
Civ. No. 3439.
California Court of Appeals. Fourth Dist.
Oct. 21, 1946.
C. G. Halliday, District Attorney, and A. C. Finney, Deputy District Attorney, for Appellant.
Robert W. Kenny, Attorney General, and John L. Nourse and Daniel N. Stevens, Deputies Attorney General, for Respondent.
BARNARD, P. J.
This is an action to recover amounts claimed to be due for sales and use taxes on certain sales and purchases of tangible personal property made by the defendant over a period of several years. The purchases made consisted mostly of books for the county library and the sales consisted of crushed rock and gravel sold to the city of Imperial for road purposes, of wood obtained through county operations and sold to the poor, and of materials and equipment originally purchased for use in constructing and maintaining roads and highways but which had become antiquated or no longer required for public use. The road material and the wood were sold at cost, and all proceeds were paid into the county treasury.
The first two counts of the complaint allege that during a certain period the county purchased, from persons engaged in the business of making such sales, tangible personal property for storage, use or other consumption in California; that the property so purchased was stored, used or otherwise consumed; that the county failed to make a use tax return on these purchases as required by the Use Tax Act (Stats. 1935, p. 1297; *574 Deering's Gen. Laws, 1937, Act 8495a); that the State Board of Equalization, pursuant to the terms of this act, audited the accounts and records and determined the amounts due; and that after due notice the county has failed to pay the same or any part thereof. The third count involving the sales taxes, alleges that the county was engaged in the business of selling at retail certain tangible personal property during the period from August 1, 1933, to June 30, 1940; that the county failed to make sales tax returns on these sales; that the board has proceeded to compute the amounts due in accordance with the provisions of the Retail Sales Tax Act of 1933, as amended; (Stats. 1933, ch. 1020, as amended) and that the county has failed, after due notice, to pay.
In its answer, the county admitted that it purchased the property referred to in the first two counts, and alleged that it had used the same in the exercise and performance of its governmental duties and functions. Answering the third count, the county denied that it ever engaged in the business of selling tangible personal property at retail, but admitted that during these years it had made certain sales of tangible personal property on specific dates and for certain amounts in accordance with exhibits which were attached to the answer. From this list it appears that the county made some 72 sales during this period, the number per year varying from 6 to 15. The respective selling prices varied from a few dollars to as high as $4,600. The answer admitted the failure to file sales and use tax returns, and the failure to pay any part of the sale or use taxes claimed. The answer also alleged that the county was engaged in no business or transactions which came within the purview of the taxing statutes in question, and further alleged that both of these statutes are unconstitutional, as applied to the county, because an intention to make them so applicable is not expressed in the title of the acts. A demurrer was also filed, as to each count of the complaint, on the ground that there was a failure to allege any presentation of the claims in accordance with the requirements of sections 4075 and 4076 of the Political Code.
The plaintiff moved for judgment on the pleadings. This motion and the demurrer were heard together and submitted on briefs. The demurrer was overruled and the motion was granted. Thereafter, a judgment was entered in favor of the plaintiff in the amount sued for and the defendant has appealed. *575
[1] The appellant contends that the demurrer should have been sustained because the complaint failed to allege that claims had been presented as required by section 4075 of the Political Code, and that such a filing was a necessary prerequisite to the commencement of the action. The provisions of the Retail Sales Tax Act of 1933, as amended, and the Use Tax Act of 1935 are entirely inconsistent with the idea that such a suit as this may not be maintained without complying with the requirement thus relied on. Not only do these tax acts place the burden of filing returns and paying the taxes upon the taxpayer, but particular procedure is provided for the collection of such taxes, including the filing of suits. The time allowed in connection with the penalty provisions of these acts is inconsistent with the time given to the board of supervisors in which to act on claims, under the Political Code sections; and the time within which an action may be brought is approximately twice as long as that allowed in cases coming within the Political Code sections. In view of the purpose of these various statutes and of their particular provisions, it must be held that these special taxing statutes control and take priority over the general statutes dealing with the filing of claims in ordinary cases. (Brill v. County of Los Angeles, 16 Cal. 2d 726 [108 P.2d 443].)
It is next contended that the Retail Sales Tax Act of 1933, as amended, and the Use Tax Act of 1935 are invalid and unconstitutional, as against the appellant, in that their subjects, to wit, the imposition of a sales tax and use tax on governmental bodies, is not expressed in their titles. It is argued that it appears from the title of the original Retail Sales Tax Act that the subject and purpose thereof was to impose a sales tax on retailers, meaning any private person or organization engaged in the business of making sales at retail, and that the amendment to the act, in 1935, which made the imposition of the tax applicable to any county, completely failed to make any change in the title which would indicate the new purpose of making governmental agencies subject to the tax. It is further argued that the title to the Use Tax Act of 1935 discloses that the subject thereof was the imposition of an excise tax on persons engaged in the storage, use or other consumption in this state of tangible personal property, but that the purpose to thus tax governmental bodies is not expressed in the title. It is, therefore, argued that these acts, with respect to their application to governmental bodies, *576 are unconstitutional under section 24 of article IV of the Constitution, since their subjects are not expressed in their titles.
[2] It clearly appears that the subject of the Retail Sales Tax Act is the imposition of a tax for the privilege of selling tangible personal property, and that the subject of the Use Tax Act is the imposition of an excise tax on the storage, use or other consumption in this state of tangible personal property. As said in Powers Farms v. Consolidated Irr. Dist., 19 Cal. 2d 123 [119 P.2d 717]:
"The title of an act need not contain either an index or an abstract of its provisions. The constitutional mandate (article IV, sec. 14 [24]) is satisfied if the provisions themselves are cognate and germane to the subject matter designated by the title, and if the title intelligently refers the reader to the subject to which the act applies, and suggests the field of legislation which the text includes."
And "The title of an act meets the constitutional requirements if it contains a reasonably intelligible reference to the subject to which the legislation is addressed." (City of Whittier v. Dixon, 24 Cal. 2d 664 [151 P.2d 5, 153 A.L.R. 956].) None of the persons who are to pay these taxes are mentioned in the title of either of these acts, and that matter is entirely incidental to the subject and purpose of each of the acts. The subject of each act is sufficiently expressed in its title.
[3] The appellant further contends that it is not a retailer or doing business within the meaning of the Retail Sales Tax Act. The contention thus made is exactly the same, in principle, as that considered in the recent case of Los Angeles etc. Sch. Dist. v. State Bd. of Equalization, 71 Cal. App. 2d 486 [163 P.2d 45]. We are satisfied with the reasoning and conclusions in that case, where the pertinent authorities are considered and distinguished. [4] It cannot be held that the sales here in question were not taxable because they were casual or incidental. (Bigsby v. Johnson, 18 Cal. 2d 860 [118 P.2d 289]; North Western Pac. R. R. v. State Bd. of Equalization, 21 Cal. 2d 524 [133 P.2d 400].) Nor was it necessary that these sales should be made for the purpose of making a profit. (Union League Club v. Johnson, 18 Cal. 2d 275 [115 P.2d 425].) If the sales here in question had been made by any person or organization, other than a governmental body, it could not be held that they were not retail sales within the meaning of the act, and since the provisions of the act are *577 expressly made applicable to a county the same result must follow.
[5] The same conclusion must be reached with respect to the applicability of the Use Tax Act to the purchases here in question. The circumstances would call for the payment of this tax had these purchases been made by a private individual or organization. (West Publishing Co. v. Superior Court, 20 Cal. 2d 720 [128 P.2d 777].) There can be no difference here where, by the express terms of the statute, its provisions are made applicable to a county.
[6] Finally, the appellant contends that the levy by the state of a sales tax or use tax upon its own political subdivisions "amounts to a levy on public money of the organization so taxed, because not being in business, the county or other organization, in such case, has no income except money raised by taxation which, of course, is public money" and that the imposition of such taxes is, therefore, contrary to public policy, citing People v. Doe, 36 Cal. 220; Smith v. City of Santa Monica, 162 Cal. 221 [121 P. 920]. Those cases involved ad valorem taxes on property but it has been held that entirely different principles are applicable to sales and use taxes, which are excise taxes. (Douglas Aircraft Co., Inc. v. Johnson, 13 Cal. 2d 545 [90 P.2d 572]; California Inst. of Technology v. Johnson, 55 Cal. App. 2d 856 [132 P.2d 61].)
For the reasons given, the judgment is affirmed.
Marks, J., and Griffin, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590146/ | 1 N.Y.2d 877 (1956)
In the Matter of Jervey C. Hamilton, Respondent-Appellant,
v.
George P. Monaghan, as Police Commissioner of the City of New York, Appellant-Respondent.
Court of Appeals of the State of New York.
Argued June 7, 1956.
Decided July 11, 1956.
Peter Campbell Brown, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellant-respondent.
Bruce McM. Wright, Thomas G. Weaver and Charles T. McKinney for respondent-appellant.
Concur: DESMOND, DYE, FULD and VAN VOORHIS, JJ. CONWAY, Ch. J., dissents in the following opinion in which FROESSEL, J., concurs. Taking no part: BURKE, J.
Order affirmed, upon the ground that the Appellate Division had power to direct that the facts be tried out instead of being decided on conflicting and incomplete allegations of affidavits. We pass upon no other questions. The question certified on appellant-respondent's appeal is answered in the affirmative. The question certified on respondent-appellant's appeal is answered in the negative. No opinion.
CONWAY, Ch. J. (dissenting).
The Police Commissioner of the City of New York has declined to appoint petitioner as a patrolman in the New York City Police Department for the reason that "his oath of office and his responsibility to the people of the City of New York and to the Police Department preclude him from making this appointment."
The petitioner seeks a final order directing the Police Commissioner to appoint him to the New York City Police Department, upon the ground that the commissioner's power to make appointments is not unlimited and, when revealed as arbitrary, must be annulled.
The Police Commissioner, on the other hand, seeks a final order dismissing the petition, upon the ground that he had the absolute right to refuse to appoint petitioner since section 8 of article IX of the New York State Constitution grants to municipal appointing officials complete discretion in making appointments.
Special Term entered an order directing the Police Commissioner to appoint petitioner. The Appellate Division, while recognizing that "it may be that we are not empowered to direct the police commissioner to make an appointment (Matter of Berger v. Walsh, 266 A.D. 592, mod. 291 N.Y. 220", went on to order a trial to determine whether or not the commissioner acted in the proper exercise of his discretion or capriciously or arbitrarily. The opinion of that court indicates that, if he be found to have acted in an arbitrary manner, the matter could then be remitted to the commissioner to reconsider his prior action. Thus, the Appellate Division, while acknowledging that the courts may not direct the commissioner to appoint a particular individual as police officer, has, in effect, *880 taken the position that the courts may suggest that he appoint a particular individual, by holding that he has acted arbitrarily and by remitting the matter to him for reconsideration. We think it clear, however, that, if the judiciary may not direct the Police Commissioner to appoint a particular individual, it may not properly suggest that he appoint such individual. It is not the function of the courts to advise anyone, and certainly not the members of a co-ordinate branch of the government here the executive and we transcend our power when we undertake to do so. If the courts are without authority to either direct or suggest that the commissioner appoint petitioner, the act of the Appellate Division in ordering a hearing is a vain one and a reversal of that order is called for. Accordingly, the pivotal question in this case is that of whether the Police Commissioner has absolute discretion to refuse appointment of one on the eligible list for any reason.
Section 6 of article V of the Constitution of our State provides, in part, "Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable shall be competitive; * * *." That section must be construed with the provisions of section 8 of article IX providing that "All city, town and village officers, whose election or appointment is not provided for by this constitution shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. * * *" The Legislature has designated the Police Commissioner of the City of New York as the one to appoint New York City police officers (see New York City Charter, ch. 18, § 434; ch. 40, § 884). In People ex rel. Balcom v. Mosher (163 N.Y. 32), this court, in considering the predecessor sections to section 6 of article V and section 8 of article IX held that, while, under our Constitution, the appointee must come from a list of those who possess the qualifications laid down by the civil service statutes and rules, the appointing officer here the Police Commissioner alone determines which of the persons so qualified is to be appointed. We there said at page 40: "The decisions of this and other courts, State and Federal, as to the meaning of the word `appointment,' and what constitutes *881 an appointment under the law, are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment; that while he or it may listen to the recommendation or advice of others, yet the selection must finally be his or its act, which has never been regarded or held to be ministerial [cases cited]. Thus it is seen that the authorities upon the subject and the opinions of those who have been connected with the civil service reform from its inception all agree in the conclusion that the power of selection for a public office is and should be vested alone in the officers or boards authorized to appoint, although it be limited to persons possessing the qualifications required by the civil service statutes and rules, and that at least some power of selection is necessary to constitute an appointment, which should be exercised by the local authorities, independently of the civil service commission." And, in Matter of Berger v. Walsh (291 N.Y. 220, 222-223), our court, while concluding that, in refusing to appoint petitioners as firemen, the Fire Commissioner of the City of New York had "exceeded the discretionary power granted to him" which means, of course, that we were of the opinion that he had acted arbitrarily went on to hold that we could not direct the Fire Commissioner to appoint the petitioners since "Such a direction * * * would in effect deprive the Commissioner of the power of selection which is implicit in the authority granted to him as an appointing officer. (Municipal Civil Service Rules of the City of New York, rule V, §§ 7, 8; People ex rel. Balcom v. Mosher, 163 N.Y. 32, 40; People ex rel. Kastor v. Kearny, 164 N.Y. 64, 69; People ex rel. Plancon v. Prendergast, 219 N.Y. 252, 259.)"
It is well-settled law that the "action of the state executive department in exercising executive functions lawfully intrusted to that department by constitutional provision or legislative action cannot be passed on by the judiciary department" (16 C. J. S., Constitutional Law, § 145, p. 700). To hold a hearing for the purpose of compelling the Police Commissioner to prove that his action was not arbitrary or capricious is to do violence to that principle. If the Police Commissioner has acted in a manner that is arbitrary or capricious, the question presented is a political and not a legal one for the courts. That being so, *882 no triable issues of fact are here presented and, as a matter of law, the Appellate Division had no discretionary power to order a hearing. It follows that a final order dismissing the petition should be entered.
The order of the Appellate Division and that of the Special Term should be reversed, without costs, and the matter remitted to Special Term for further proceedings in accordance with this opinion. The questions certified are answered in the negative.
Order affirmed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1914048/ | 419 So. 2d 289 (1982)
Herbert Lee RICHARDSON
v.
STATE.
4 Div. 956.
Court of Criminal Appeals of Alabama.
June 29, 1982.
Rehearing Denied July 27, 1982.
Certiorari Denied, October 1, 1982.
Herbert Lee Richardson, pro se.
Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 81-937.
JOSEPH J. MULLINS, Retired Circuit Judge.
This appeal is from a denial of a petition for a writ of error coram nobis seeking to set aside appellant's 1978 conviction for murder and a sentence of death. His original *290 conviction was appealed from the Houston County Circuit Court to this Court, and on October 3, 1978 the case was remanded to the trial court with instructions. On November 21, 1978, following remand, it was affirmed by this Court, and on December 19, 1978 rehearing was denied. Richardson v. State, Ala.Cr.App. 376 So. 2d 205. The Supreme Court of the State of Alabama granted certiorari to review appellant's conviction on the ground that it was a death case. Rule 39(c) ARAP, and on September 28, 1979 affirmed the judgment of the Court of Criminal Appeals. On November 6, 1979 petition for rehearing in the Supreme Court was denied. The Supreme Court in affirming the holding of the Court of Criminal Appeals stated that "petitioner's allegations of error: (1) That the initial warrantless search of petitioner's automobile was illegal; (2) That the search of appellant's home was conducted pursuant to an improperly issued search warrant. We find no merit in either contention made by the petitioner." The Supreme Court carefully reviewed the record and found that petitioner's conviction is adequately supported by the evidence. Ex Parte Richardson v. State of Alabama, Ala. 376 So. 2d 228.
We shall not recite the facts of the crime in this record because they are fully set out in the opinion of this Court in the case of Richardson v. State, Ala.Cr.App. 376 So. 2d 205.
On April 10, 1981 the petitioner, Herbert Lee Richardson, filed a petition for a writ of error coram nobis in the Circuit Court of Houston County, Alabama. On April 16, 1981 the district attorney of the 20th Judicial Circuit of Alabama filed a motion to dismiss the petition for writ of error coram nobis filed in this cause. On July 2, 1981 the petitioner filed a supplementary amendment to the petition for a writ of error coram nobis. On July 16, 1981 the trial court entered an order appointing a competent attorney to represent the petitioner, setting the time and place for a hearing on the petition, and the motion to dismiss the petition, and directing the Warden at Holman Prison to have the petitioner present so that he and his attorney may present such evidence as may be proper in said cause. On the 18th of September, 1981, with the petitioner, and his counsel, and the state, and its counsel, present in open court, a hearing on the petition was had.
Petitioner's evidence consisted of five witnesses and two exhibits. Petitioner's first witness, Thomas W. Sorrells, district attorney for the 20th Judicial Circuit, State of Alabama, testified, in substance, as follows: That he participated in the investigation that led to the arrest, trial, and conviction of the petitioner; that he accompanied the police to Abbeville to pick up the petitioner, who had been arrested, and to talk to petitioner's fellow employees, and to look around the site where the petitioner had been working; that he did participate in the obtaining of a search warrant for the petitioner's house in Hartford, Alabama; that he related the information given him by Sergeant Lock to Judge Block; that at that time the petitioner was in custody in Dothan; that he was present in the area, but did not participate in the actual search of petitioner's house; that he was not present when petitioner's vehicle was searched.
The petitioner testified, in substance, that the pipe on his job site was all two and a half inch pipe; that two and a half inch pipe would be the inside size of the pipe, and that three inches would be the outside diameter of the pipe; that all pipe at the job site was galvanized; that the only pipe he recalls being at his house was three-quarter inch pipe, and it was not galvanized. On cross-examination petitioner admitted that he was not present when the officer found pipe at his home, and that the pipe described by the police was approximately two inch pipe; that these facts about the size of the pipe came out at his trial.
Doris Weems, petitioner's next witness, testified, in substance, that she went to the scene of the bombing on the 16th day of August, 1977; that she spoke with some officers whose names she did not know, and told them that she had seen a pipe in the *291 petitioner's car; that she did not recall whether she had told the police about any statements petitioner had made to her since the bombing occurred several years ago.
Petitioner's next witness, Harold Lock, a Dothan police officer, testified, in substance, that he was involved in the investigation which led to the conviction of the petitioner; that the pipe found at the job site where petitioner worked, and the pipe found at petitioner's home were similar to the pipe found at the bomb scene; that the pipe used in the bomb and the pipe found in petitioner's yard both had threads on one end; that Randy Collins had seen a bomb on the front porch immediately after petitioner left the scene of the bombing; that the pipe in the debris of the bomb was broken and twisted, and that he estimated the size of the pipe used in the bomb to be two to two and a half inches, galvanized, and the same type of pipe found at appellant's job site and home.
Petitioner's next witness, L. E. Stokes, a Dothan police officer, testified, in substance, that he obtained a search warrant for petitioner's car; that Randy Collins told Stokes that he saw something on the steps of the house after the petitioner left the scene, but could not recall Collins' description of it.
Petitioner's exhibit one is a drawing of a two-inch galvanized pipe. Petitioner's exhibit two is a drawing of a carbon steel pipe, and a galvanized pipe with nipples on them.
On September 18, 1981 at the conclusion of the evidence offered by the petitioner on his petition for writ of error coram nobis, the trial court being of the opinion that the evidence did not establish that petitioner was entitled to a writ of error coram nobis, therefore, the petition was dismissed. Appellant gave notice of appeal to this Court on September 22, 1981, and requested permission to proceed in forma pauperis, and pro se.
The petitioner contends in his brief that he is entitled to a new trial because: First, that the search warrants issued to search his vehicle and to search his home were issued under false affidavits. Second, that he has been denied his right to an attorney during the preliminary stage of the proceeding when the district attorney was actively involved in the prosecution of the case on the day of the occurrence. Third, that he is entitled to a new trial under the decision rendered in the Beck case. Beck v. State of Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392.
The appellant's first contention in his brief is that he should be granted a new trial because: (1) The affidavits used to obtain the search warrant for his automobile; and (2) The affidavits used to obtain the search warrant for his home were false. This issue was fully submitted by the appellant to the trial court, and there adjudicated, and upon appeal to this Court from his conviction, was affirmed by this Court. See Richardson v. State, Ala.Cr.App., 376 So. 2d 205, and again confirmed by the Supreme Court of Alabama. See Ex Parte Richardson, Ala., 376 So. 2d 228. This Court will not adjudicate again the same issues that have already been adjudicated between the same parties, over and over again on an application for a writ of error coram nobis. Richardson v. State, supra; Ex Parte Richardson, supra; Summers v. State, Ala.Cr.App., 366 So. 2d 336; Ex Parte Rudolph, 276 Ala. 392, 162 So. 2d 486; Cert. Den., 377 U.S. 919, 84 S. Ct. 1185, 12 L. Ed. 2d 88; Impson v. State, Ala.Cr.App., 339 So. 2d 1098. We hold that the matters of the validity of the search warrants have been fully adjudicated, and the appellant may not again adjudicate them by this petition for a writ of error coram nobis.
The appellant's second contention is that he has been denied his right to an attorney during the preliminary stages of the proceedings when the district attorney was actively involved in the prosecution of the case on the day of the occurrence.
We have diligently searched the original petition for a writ of error coram nobis filed in this cause on April 10, 1981, and the amended petition filed July 2, 1981, and do not find a fact stated in the petition, or *292 amended petition, that the appellant was at any time denied the right of counsel, nor do we find any evidence in the transcript of the hearing on the petition from which a conclusion could be drawn that the appellant was denied right to counsel. We only find the statement in the transcript of the hearing, made by appellant's counsel to the court, that appellant contends that: "Under the Lomax case, which is cited in his petition, that he has been denied his fourth amendment rights, and his rights to an attorney, during the preliminary stages of the proceedings when the district attorney was actively involved in the prosecution of the case on the day that the occurrence happened that gave rise to the indictment." The appellant was represented by counsel at his original trial, and on appeal from his original trial, to this Court, and in the Supreme Court of Alabama. Appellant was represented by counsel at the hearing in the trial court in this case and, on request of the appellant, is represented pro se on this appeal.
We hold that in the absence of an averment in the petition for the writ of error coram nobis, that the appellant was denied assistance of an attorney at his original trial, and in the absence of any evidence showing a denial of the appellant's right of counsel at his original trial, the trial court did not err to the prejudice of the appellant when it did not grant him a new trial on the ground that he was denied counsel. Petitioner must aver facts, in his petition for a writ of error coram nobis which, if proven, would entitle him to the writ, and on the trial he must prove such facts. Summers v. State, supra; Corley v. State, Ala.Cr.App., 397 So. 2d 223; Cert. Den., Ala., 397 So. 2d 225.
The third contention contained in appellant's brief is that he is entitled to a new trial because of the opinion of the United States Supreme Court rendered in the case of Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392, decided June 20, 1980.
Appellant avers in his petition that the United States Supreme Court ruled in Beck v. State that: "The death sentence may not be constitutionally imposed after a jury verdict of guilt of a capital offense when the jury was not permitted to consider a verdict of a lesser included offense of a non-capital nature."
The appellant was convicted under Code of Alabama, 1975, Section 13-11-1Section 13-11-9. Section 13-11-2(a)(9) provides for the death or life imprisonment without parole for the: "willful setting off or exploding dynamite or other explosive under circumstances now punishable by Section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion;"
We quote from Beck, emphasis supplied.
"We granted certiorari to decide the following question:
`May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?' 444 U.S. 897, 100 S. Ct. 204, 62 L. Ed. 2d 132.
"We now hold that the death penalty may not be imposed under these circumstances."
We note that the Beck case specifically held that a death sentence may not constitutionally be imposed after a jury verdict of guilty of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict. In the case of Joseph S. Hopper, Commissioner, Alabama Department Of Corrections and James D. White, Warden, Petitioners, v. John Louis Evans, III, ___ U.S. ___, 102 S. Ct. 2049, 72 L. Ed. 2d 367 released by the Supreme Court Of The United States, May 24, 1982, Chief Justice Burger said:
"Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants *293 such an instruction. The jury's discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence. Under Alabama law, the rule in non-capital cases is that a lesser included offense instruction should be given if `there is any reasonable theory from the evidence which would support the position.' Fulghum v. State 291 Ala. 71, 75, 277 So. 2d 886, 890 (1973). The federal rule is that a lesser included offense instruction should be given `if the evidence would permit a jury rationally to find (a defendant) guilty of the lesser offense and acquit him of the greater.' Keeble v. United States, 412 U.S. 205, 208 [93 S. Ct. 1993, 1995, 36 L. Ed. 2d 844] (1973). The Alabama rule clearly does not offend federal constitutional standards, and no reason has been advanced why it should not apply in capital cases.'"
Chief Justice Burger further stated in Hopper v. Evans, supra: "The evidence not only supported the claim that respondent intended to kill the victim, but affirmatively negated any claim that he did not intend to kill the victim. An instruction of the offense of unintentional killing during this robbery was therefore not warranted."
The appellant's petition for a writ of error coram nobis in this case does not aver that the petitioner was entitled to an instruction of a lesser included offense. There is no evidence before this Court that the petitioner was entitled to have the jury instructed on a lesser included offense. There is no evidence before this Court that the evidence presented to the jury at the original trial of the petitioner would have supported a conviction of a lesser included offense. The evidence fully supports the jury verdict that the petitioner intended to kill the victim. We hold that the preclusion clause did not prejudice the petitioner in any way, and that the trial judge did not err when he denied petitioner's petition for a writ of error coram nobis. Hopper v. Evans, supra; Beck v. Alabama, supra; Richardson v. State, Ala.Cr.App. 376 So. 2d 205; Ex Parte Richardson, Ala. 376 So. 2d 228; Beck v. Alabama, 444 U.S. 897, 100 S. Ct. 204, 62 L. Ed. 2d 132; Summers v. State, supra.
The judgment of the trial court is due to be and is hereby affirmed.
The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.
The judgment below is hereby affirmed.
AFFIRMED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1384595/ | 625 S.E.2d 204 (2006)
PENDLETON LAKE HOMEOWNERS ASS'N, INC. v. CARNELL.
No. COA05-812.
Court of Appeals of North Carolina.
Filed February 7, 2006.
Certification Date February 27, 2006.
Case reported without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2592615/ | 37 N.Y.2d 378 (1975)
Estelle Johnson, as Executrix of Nellie Johnson, Deceased, Claimant, and Fleeter Thorpe, Appellant,
v.
State of New York, Respondent. (Claim No. 52985.)
Court of Appeals of the State of New York.
Argued June 6, 1975.
Decided July 2, 1975.
Cornelius D. Murray and Barry R. Fischer for appellant.
Louis J. Lefkowitz, Attorney-General (Jeremiah Jochnowitz and Ruth Kessler Toch of counsel), for respondent.
Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
*379Chief Judge BREITEL.
On claimant Fleeter Thorpe's appeal, the issue is whether the daughter of a patient in a State hospital, falsely advised that the patient, her mother, had died, may recover from the State for emotional harm. She sustained the harm as a direct result of the negligent misinformation provided by the hospital in the course of it advising relatives of the death of a patient. The mother was in fact alive and well.
Claimant and her aunt, Nellie Johnson, since deceased, had filed a claim against the State for funeral expenses incurred, emotional harm and punitive damages. The Court of Claims awarded claimant $7,500 for funeral expenses undertaken on the false information, and for emotional harm. It denied her punitive damages, and dismissed the aunt's claim for insufficiency. The State appealed to the Appellate Division and claimants cross-appealed. The Appellate Division modified, limiting the daughter's award to her pecuniary losses of $1,658.47, and otherwise affirmed as to both claimants. The aunt's estate, unlike the daughter, took no further appeal to this court.
There should be a reversal. The daughter of a hospital patient may recover for emotional harm sustained by her as a result of negligent misinformation given by the hospital that *380 her mother had died. Key to liability, of course, is the hospital's duty, borne or assumed, to advise the proper next of kin of the death of a patient.
Claimant's mother, Emma Johnson, had been a patient in the Hudson River State Hospital since 1960. On August 6, 1970, another patient, also named Emma Johnson, died. Later that day, the hospital sent a telegram addressed to Nellie Johnson of Albany, claimant's aunt and the sister of the living Emma Johnson. The telegram read:
"REGRET TO INFORM YOU OF DEATH OF EMMA JOHNSON PLEASE NOTIFY RELATIVES MAKE BURIAL ARRANGEMENTS HAVE UNDERTAKER CONTACT HOSPITAL BEFORE COMING FOR BODY HOSPITAL WISHES TO STUDY ALL DEATHS FOR SCIENTIFIC REASONS PLEASE WIRE POST MORTEM CONSENT
HUDSON RIVER STATE HOSPITAL"
In accordance with the instructions in the telegram, claimant was notified of her mother's death by her aunt. An undertaker was engaged; the body of the deceased Emma Johnson was released by the hospital and taken to Albany that night. A wake was set for August 11, with burial the next day. In the interim claimant incurred expenses in preparing the body for the funeral, and in notifying other relatives of her mother's death.
On the afternoon of the wake, claimant and her aunt went to the funeral home to view the body. After examining the body, both claimant and her aunt remarked that the mother's appearance had changed. Nellie Johnson also expressed doubt that the corpse was that of her sister Emma. Thereafter the doubts built up, and upon returning that evening for the wake, claimant, in a state of extreme distress, examined the corpse more closely and verified that it was not that of her mother. At this point, claimant became "very, very hysterical", and had to be helped from the funeral chapel.
The hospital was called, and the mistake confirmed. Claimant's mother was alive and well in another wing of the hospital. Later that evening at the hospital, the deputy director, with the authorization of the director, admitted the mistake to claimant and her aunt. Upon the trial it appeared that the hospital had violated its own procedures and with gross carelessness had "pulled" the wrong patient record.
After this incident, claimant did not work in her employment for more than 11 days. She complained of "[r]ecurrent *381 nightmares, terrifying dreams of death, seeing the coffin * * * difficulty in concentrating, irritability, inability to function at work properly, general tenseness and anxiety." Her psychiatrist testified that "She appeared to be somewhat depressed, tremulous. She seemed to be under a considerable amount of pressure. She cried easily when relating events that occurred. I though that she spoke rather rapidly and obviously perspiring." Both her psychiatrist and that of the State agreed that, as a result of the incident, claimant suffered "excessive anxiety", that is, anxiety neurosis. Her expert, as indicated, testified that she showed objective manifestations of that condition.
One to whom a duty of care is owed, it has been held, may recover for harm sustained solely as a result of an initial, negligently-caused psychological trauma, but with ensuing psychic harm with residual physical manifestations (Battalla v State of New York, 10 N.Y.2d 237, 238-239; Ferrara v Galluchio, 5 N.Y.2d 16, 21-22; cf. Restatement, Torts 2d, § 313, subd [1]; see, generally, Tobin v Grossman, 24 N.Y.2d 609, 613; Prosser, Torts [4th ed], § 54, pp 330-333; 2 Harper and James, Law of Torts, § 18.4, pp 1032-1034; Torts Emotional Disturbances, Ann., 64 ALR2d 100, 143, § 11 et seq.). In the absence of contemporaneous or consequential physical injury, courts have been reluctant to permit recovery for negligently caused psychological trauma, with ensuing emotional harm alone (see Restatement, Torts 2d, § 436A; Prosser, Torts [4th ed], op. cit., pp 328-330, and cases collected; 2 Harper and James, Law of Torts, op. cit., pp 1031-1032, and cases collected; Torts Emotional Disturbances, Ann., 64 ALR2d 100, 115, § 7; cf. Weicker v Weicker, 22 N.Y.2d 8, 11). The reasons for the more restrictive rule were best summarized by Prosser (op. cit., p 329): "The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking". Contemporaneous or consequential physical harm, coupled with the initial psychological trauma, was, however, thought to provide an index of reliability otherwise absent in a claim for psychological trauma with only psychological consequences.
There have developed, however, two exceptions. The first is *382 the minority rule permitting recovery for emotional harm resulting from negligent transmission by a telegraph company of a message announcing death (see cases collected in Restatement, Torts 2d, App, § 436A; Prosser, op. cit., p 329; but see Western Union Tel. Co. v Speight, 254 US 17, 18; Curtin v Western Union Tel. Co., 13 App Div 253, 255-256 [majority rule denying recovery]. The Federal rule does, however, permit recovery where the psychological trauma results in physical illness, see Kaufman v Western Union Tel. Co., 224 F.2d 723, 731, cert den 350 US 947).
The second exception permits recovery for emotional harm to a close relative resulting from negligent mishandling of a corpse (see Prosser, op. cit., pp 329-330, and cases collected). Recovery in these cases has ostensibly been grounded on a violation of the relative's quasi-property right in the body (see Darcy v Presbyterian Hosp., 202 N.Y. 259, 262; but cf. Owens v Liverpool Corp. [1939], 1 KB 394, 400 [CA] [applying negligence principles], disapproved in Hay or Bourhill v Young [1943], AC 92, 110 [HL] [per Lord WRIGHT], but applied in Behrens v Bertram Mills Circus [1957], 2 QB 1, 28 [DEVLIN, J.]). It has been noted, however, that in this context such a "property right" is little more than a fiction; in reality the personal feelings of the survivors are being protected (Prosser, op. cit., p 59).
In both the telegraph cases and the corpse mishandling cases, there exists "an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious" (p 330). Prosser notes that "[t]here may perhaps be other such cases" (p 330; see Nieman v Upper Queens Med. Group, 220 NYS2d 129, 130, in which plaintiff alleged emotional harm due to negligent misinformation by a laboratory that his sperm count indicated sterility; and defendant's motion for judgment on the pleadings was denied). The instant claim provides an example of such a case.
As the Appellate Division correctly found and the State in truth concedes, the hospital was negligent in failing to ascertain the proper next of kin when it mistakenly transmitted the death notice to claimant's aunt and through her, at its behest, to claimant. While for one to be held liable in negligence he need not foresee novel or extraordinary consequences, it is enough that he be aware of the risk of danger. The consequential funeral expenditures and the serious psychological *383 impact on claimant of a false message informing her of the death of her mother, were all within the "orbit of the danger" and therefore within the "orbit of the duty" for the breach of which a wrongdoer may be held liable (Palsgraf v Long Is. R. R. Co., 248 N.Y. 339, 343). Thus, the hospital owed claimant a duty to refrain from such conduct, a duty breached when it negligently sent the false message. The false message and the events flowing from its receipt were the proximate cause of claimant's emotional harm. Hence, claimant is entitled to recover for that harm, especially if supported by objective manifestations of that harm.
Tobin v Grossman (24 N.Y.2d 609, supra) is not relevant. In the Tobin case, the court held that no cause of action lies for unintended harm sustained by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries (p 611). In this case, however, the injury was inflicted by the hospital directly on claimant by its negligent sending of a false message announcing her mother's death. Claimant was not indirectly harmed by injury caused to another; she was not a mere eyewitness of or bystander to injury caused to another. Instead, she was the one to whom a duty was directly owed by the hospital, and the one who was directly injured by the hospital's breach of that duty. Thus, the rationale underlying the Tobin case, namely, the real dangers of extending recovery for harm to others than those directly involved, is inapplicable to the instant case. (Nor is Matter of Wolfe v Sibley, Lindsay & Curr Co., 36 N.Y.2d 505, relevant to the tort rationale or holding in this case. There recovery was allowed solely on the elastic basis permitted by the Workmen's Compensation Law as applied in the courts.)
Moreover, not only justice but logic compels the further conclusion that if claimant was entitled to recover her pecuniary losses she was also entitled to recover for the emotional harm caused by the same tortious act. The recovery of the funeral expenses stands only because a duty to claimant was breached. Such a duty existing and such a breach of that duty occurring, she is entitled to recover the proven harmful consequences proximately caused by the breach. In the light of the Battalla and Ferrara cases (supra), and the reasoning upon which they were based, recovery for emotional harm to one subjected directly to the tortious act may not be disallowed so *384 long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a "guarantee of genuineness" to which the court referred in the Ferrara case (5 N.Y.2d 16, 21, supra; see, also, Battalla v State of New York, 10 N.Y.2d 237, 242, supra).
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for a determination of the facts in accordance with CPLR 5613.
Order reversed, with costs, and case remitted to Appellate Division, Third Department, for further proceedings in accordance with the opinion herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609704/ | 526 P.2d 1399 (1974)
In the matter of the Adoption of Darci Joanne Cooper, a Minor.
Janice WATKINS, Appellant,
v.
Gerald G. CHIRRICK and Betty M. Chirrick, Respondents.
Court of Appeals of Oregon.
Argued and Submitted September 18, 1974.
Decided October 14, 1974.
*1400 Charles O. Porter, Eugene, argued the cause and filed the briefs for appellant.
Leslie M. Swanson, Jr., Eugene, argued the cause for respondents. With him on the brief were Arthur C. Johnson, John B. Arnold and Johnson, Johnson & Harrang, Eugene.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
FOLEY, Judge.
This is an appeal from an order dismissing with prejudice a petition filed by the petitioner-natural mother to vacate the decree of adoption of her child by respondent-adoptive parents. The dismissal followed an order sustaining respondents' demurrer to the petition. Petitioner asserts that consent to the adoption of her baby was not freely and intelligently given and that such consent was necessary as a jurisdictional prerequisite for a valid decree of adoption. Petitioner further asserts that she has standing to petition to vacate the decree of adoption because the legislature cannot, consistent with due process of law, enact a statute of limitations which will bar petitioner from challenging the adoption decree as void for want of jurisdiction.
ORS 109.381 is the primary statute in question. It reads as follows:
"(1) A decree of a court of this state granting an adoption, and the proceedings in such adoption matter, shall in all respects be entitled to the same presumptions and be as conclusive as if rendered by a court of record acting in all respects as a court of general jurisdiction and not by a court of special or inferior jurisdiction, and jurisdiction over the persons and the cause shall be presumed to exist.
"(2) Except for such right of appeal as may be provided by law, decrees of adoption shall be binding and conclusive upon all parties to the proceeding. No party nor anyone claiming by, through or under a party to an adoption proceeding, may for any reason, either by collateral or direct proceedings, question the validity of a decree of adoption entered by a court of competent jurisdiction of this or any other state.
"(3) After the expiration of one year from the entry of a decree of adoption in this state the validity of the adoption shall be binding on all persons, and it shall be conclusively presumed that the child's natural parents and all other persons who might claim to have any right to, or over the child, have abandoned him and consented to the entry of such decree of adoption, and that the child became the lawful child of the adoptive parents or parent at the time when the decree of adoption was rendered; all irrespective of jurisdictional or other defects in the adoption proceeding; after the expiration of such one-year period no one may question the validity of the adoption for any reason, either through collateral or direct proceedings, and all persons shall be bound thereby; provided, however, the provisions of this subsection shall not affect such right of appeal from a decree of adoption as may be provided by law.
"(4) The provisions of this section shall apply to all adoption proceedings instituted in this state after August 5, 1959. This section shall also apply, after the expiration of one year from August 5, 1959, to all adoption proceedings instituted in this state before August 5, 1959."
We turn to the complaint. For purposes of appeal, a demurrer admits all facts that *1401 are well pleaded. Kendall v. Curl et al., 222 Or. 329, 353 P.2d 227 (1960); Turrini v. Gulick, 16 Or. App. 167, 517 P.2d 1230, Sup.Ct. review denied (1974).
Reading the complaint in the light most favorable to petitioner the following facts are alleged:
Petitioner is the mother of the minor child involved herein and has never been married. The father of the infant is unknown. On July 11, 1971, the date the child was born, petitioner was 16 years old. On August 21, 1972, the date petitioner signed a consent to adoption, petitioner was 17 years of age. The adoption decree was entered on November 13, 1972, almost three months later. Petitioner's complaint was filed on January 28, 1974, at which time petitioner stated that she was 19 years old. We therefore infer that by January 28, 1973, she was 18 years old.
Petitioner alleges that on August 21, the day she signed the consent for adoption of her infant, petitioner was acting under conditions constituting fraud, duress and undue influence. The underlying facts which are alleged need not be detailed here. It is sufficient to note that petitioner alleges facts which might be sufficient to support the allegation that her consent to the adoption was not freely given. Assuming, but not deciding, that those facts are sufficient, we turn to the sufficiency of the other allegations in the complaint.
It is clear from the pleadings thus far discussed that the petitioner had nearly three months in which to raise the issue of the validity of consent before the decree of adoption was issued. Petitioner does not allege that she did not receive adequate notice of the decree of adoption or that she was without knowledge that her child had been a member of the Chirrick family since the date of the decree. Neither does she allege that it was reasonable for her under the circumstances to allow the one-year statute of limitations period to run. Her only allegation in this regard is that she was emotionally upset and that she was outside the state of Oregon during most of the period, lasting fourteen months, between the date of the decree of adoption and the filing of her complaint.
Petitioner's only other allegation that possibly can be construed as an attempt to justify the tolling of the limitation period is her statement that the attorney present at the consent signing was not her attorney, nor was she given an opportunity to consult with her own attorney. Petitioner alleges that the attorney who was present stated that if petitioner signed the consent for adoption of her baby, there would be no way for her ever to get said infant back. Certainly that advice was reflective of the intent of the legislature in ORS 109.381 to bring about finality in adoption decrees. There is no claim that he was acting as respondents' attorney; there is no allegation that he intentionally made false representations to her; nor is there any allegation that she relied exclusively on his advice. Neither is there any allegation that respondents prevented petitioner from seeking advice or counsel.
In essence, petitioner has failed to allege that she did not receive due process in connection with the original issuance of the decree of adoption. She asserts, rather, that her consent to the adoption was invalid and that the statute which in effect requires that she raise that issue of consent within one year violates her due process rights.
ORS 109.381 sets a one-year limitation upon any attack upon an adoption decree. Such a limitation reflects a basic legislative judgment that stability in a child's environment outweighs other considerations in an adoptive situation. We agree with petitioner's assertion that there is little doubt that the legislature wanted to bar a person from moving to vacate a decree of adoption after the legislative 12-month deadline.
Petitioner raises hypothetical situations in which the statute may act to violate the due process rights of a natural parent. Other cases may arise in which the application of the statute might impinge upon *1402 due process rights; however, this is not such a case. In this case petitioner had adequate opportunity to raise the issue of the validity of her consent within a one-year period. She has not alleged sufficient facts to demonstrate that, as to her, the one-year statute of limitation period precluded her from asserting any rights that she might have. We thus conclude that petitioner has failed to state a cause of suit and is without standing to attack the decree of adoption. The trial court acted properly in sustaining the demurrer to the complaint.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877181/ | 188 So.2d 470 (1966)
Kenneth S. McCONATHY et al., Plaintiffs and Appellees,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION et al., Defendant and Appellant.
No. 1747.
Court of Appeal of Louisiana, Third Circuit.
July 1, 1966.
Rehearing Denied July 28, 1966.
Stafford & Pitts, by John L. Pitts, Alexandria, for defendant-appellant.
Ted R. Broyles, Leesville, Knight & Knight, by Herschel N. Knight, Jennings, for plaintiffs-appellees.
*471 Before TATE, HOOD and CULPEPPER, JJ.
CULPEPPER, Judge.
This is a suit by Mr. and Mrs. Kenneth S. McConathy to recover damages for the death of their 13-year-old son, Michael McConathy, who was killed in a collision between an automobile and a motor bike. The automobile was driven by the defendant, Miles M. Hays, and insured by the defendant, United Services Automobile Association. The motor bike was being operated by a 14-year-old boy named Michael Bolton. Plaintiffs' son was riding the bike as a passenger behind the driver. The case was tried twice before a jury. In the first trial, the jury was unable to reach a verdict and a mistrial was entered. On the second trial, the jury awarded Mr. McConathy $15,900 (including funeral expense), and Mrs. McConathy $15,000. The defendants appealed.
The principal issue is the length of the skid marks left by the Hays vehicle, indicating its speed.
The accident occurred in a suburban area near Leesville, on a two-lane, asphalt, state highway. The speed limit is 60 miles per hour. The road runs north and south and is straight, and relatively level, with no obstructions to view, for a considerable distance north and south of the scene of the accident. Along the east side of the highway are several residences, one of which is the McConathy's. The collision occurred at their driveway.
It was Christmas Eve, December 24, 1963, at about the noon hour and the weather was clear. Mr. Hays was driving his 1963 Oldsmobile in a southerly direction. He testified he was traveling about 60 miles per hour; as he came over a little hill he saw the motor bike quite some distance ahead, traveling south along the right-hand edge of the pavement; at first he thought it was a boy for whom he had purchased a Christmas present; he took his foot off the accelerator, intending to pass the boys and stop ahead of them; as he approached nearer, he saw that it was not the boy for whom he had a present; he then blew his horn and started moving to the left of the road to pass the motor bike; he was uncertain as to whether he accelerated to pass, but says he was going about 50 miles per hour; as he moved into the passing lane, the motor bike suddenly made a "fairly abrupt turn" to the left, toward the driveway of the McConathy residence; he applied his brakes and tried to turn to the left; when he reached a point about opposite the McConathy driveway the motor bike struck the right end of his front bumper. The Hays automobile then continued off the east side of the pavement into a shallow ditch, where the front wheels struck some sand and the rear spun around, causing the vehicle to come to rest in the ditch facing in a northerly direction.
Both boys were killed instantly. Hays is the only living witness to the accident. It is obvious that the negligence of the Bolton boy, in suddenly turning the motor bike to the left, directly into Hays' path, was a substantial cause of the accident. The only real issue on appeal, as regards liability, is whether Hays was also negligent in traveling at an excessive speed.
Plaintiff contends the preponderance of the evidence shows that the Hays vehicle left skid marks totaling approximately 247 feet, which would indicate that Hays was traveling well in excess of 60 miles per hour. A survey, prepared at plaintiff's request, shows certain mailboxes, driveways and fences used by plaintiff's witnesses to describe where the skid marks began and ended. As relevant here, this survey shows 3 mailboxes on the east side of the highway, a distance of 153 feet north of the center line of the McConathy's driveway, and a distance of 244 feet north of the Karamales fence line, opposite which the Hays vehicle came to rest; also a gravel road (leading from the east side of the highway to Pine Forrest Subdivision), the center line of this road being 130 feet north of the center line *472 of the McConathy drive, and about 230 feet from where the automobile came to rest; also the Karamales' driveway, on the east side of the highway, 115 feet south of the McConathy drive. (The automobile came to rest in the ditch just north of the culvert under this drive.)
The plaintiff called a number of witnesses who testified that the skid marks started near the mailboxes. Mr. Wayne Hamon, who lives in the area, testified he arrived at the scene immediately after the accident and that the skid marks started "in the neighborhood of" the mailboxes and the "project road". (The Pine Forrest Subdivision Road.)
Mr. Archie Lee Martin, of the Leesville City Police, testified he made no measurements, because this accident fell within the jurisdiction of the state police, but that he remembered the tire marks began near the mailboxes.
Mr. John Craft, sheriff of Vernon Parish, in which the accident occurred, testified he arrived shortly after the accident and that the skid marks started "at a place where there are 2 or 3 mailboxes."
Reverend Aubrey Boswell, a Baptist minister in Leesville, was one of the first at the scene and he testified the skid marks started about at the mailboxes.
Mr. Pete Fynn, a friend of the McConathy family, testified the skid marks started opposite the corner of the A. J. Hodges fence, which is just north of the mailboxes.
Mr. Robert L. Coburn, a retired postal clerk, who now works as a private investigator, testified that 2 days after the accident he went to the scene with plaintiff's attorney. Using a steel tape, he measured 156 feet of skid marks from the point where they began to the place where they left the pavement. The evidence does not show the exact distance from the point of impact to the point where the skid marks left the pavement, south of the McConathy driveway. But, from pictures filed in evidence (p-13 and p-14), we estimate this distance to be no more than 30 feet. Using the state troopers' measurement of 69 feet as the distance from the point of impact to the front of the automobile where it came to rest, we see that, according to Coburn's measurements, there was a total of at least 195 feet of skid marks.
Plaintiff also called as a witness Mr. C. S. Middleton, who retired as a major after over 20 years of service with the Louisiana State Police. While with the state police he taught in traffic safety schools and assisted in the preparation of stopping distance charts used by the state police. After retirement, Middleton started an investigating agency, specializing in automobile accidents. Using an automobile similar to the one driven by Hays, Middleton conducted actual experiments or tests at the scene. He said that at a speed of 60 miles per hour he applied his brakes at the mailboxes and skidded 103 feet. At 70 miles per hour he skidded 112 feet. In neither instance did he reach the McConathy driveway. On being advised, during cross-examination, that the chart in Blashfield, Automobile Law & Practice, Vol. 9-C, Section 62-67, shows that an automobile with excellent brakes on a good surface requires 160 feet of braking distance to stop at 60 miles per hour, Middleton testified that there are many different charts which vary substantially; and that, of course, there are also differences in tires, road surfaces, climatic conditions, reaction time of drivers, etc.
Frankly, we are unable to reconcile the charts with Middleton's very short braking distances during these tests. For instance, in addition to the Blashfield chart, the chart set forth in Driver's Guide, Department of Public Safety, Driver's License Division, State of Louisiana, at page 24, shows the braking distance at 60 miles per hour as 185 feet; and at 70 as 251 feet. However, this was testimony the jury could consider. Furthermore, even without it, there is sufficient evidence on which the jury could have found the skid *473 marks were long enough to show a speed of over 60 miles per hour.
Worthy of mention, as facts which the jury could have considered in determining Hays' speed, are the state troopers' measurements that from the point of impact it was: (1) 43 steps, 129 feet, to Mike McConathy's body; (2) 42 steps, 126 feet, to Mike Bolton's body; and (3) 53 steps, 159 feet, to where the motor bike came to rest. These facts indicate a very violent impact. Also, after this impact, the vehicle ran into sand in the ditch and spun around.
The defense rests largely on the testimony of the 2 state troopers, W. G. Gordy and Wilfred D. Davis, who investigated the accident immediately after it occurred. These officers found an indentation in the asphalt at the point of impact, which was about in the center of the north-bound lane of traffic and opposite the McConathy driveway. Both troopers "stepped off" the length of the skid marks. They testified it was 27 steps, or 81 feet, from the point of impact back north to where the skid marks began; and 23 steps, or 69 feet, from the point of impact to the front of the Hays automobile. Thus they found total skid marks of 150 feet. From a chart, used by the state police for this purpose, Gordy estimated the speed of the Hays automobile at 57 to 60 miles per hour; and Davis at 55 miles per hour.
The defense certainly makes a persuasive and respectable argument that the testimony of the 2 state troopers who, pursuant to their duty to do so, made a disinterested and thorough on-the-spot investigation, is entitled to more weight than the testimony of plaintiff's witnesses; that the latter were, respectively, friends who made only causal inspections of the skid marks, and a paid investigator and a paid accident analyst. Nevertheless, the issue presented here is purely factual. It depends largely on the credibility of witnesses. The jury could have believed plaintiff's witnesses that the skid marks started near the mailboxes, and were 244 feet in length. It could have believed Coburn, who measured with a tape, that the skid marks were at least 195 feet long. Under the charts mentioned above, either distance would indicate a speed of over 60 miles per hour. There is clearly sufficient evidence which, if believed by the jury, could support its decision. Our jurisprudence is established that the jury's findings of fact, particularly those involving credibility of witnesses, will not be disturbed on appeal unless clearly erroneous. Richoux v. Grain Dealers Mutual Insurance Co., 175 So.2d 883 (La.App. 3rd Cir. 1965); Martin v. Le Blanc, 157 So.2d 283.
Defendant contends the award of $15,000 in general damages to each parent is "enough too high to justify some reduction." The facts show that this 13-year-old boy was the McConathy's only child and that he was a well-rounded boy of whom his parents could be justly proud.
The defense cites a number of cases in which the awards to a parent for the death of a child ranged from $7,500 to $12,500. Honeycutt v. Indiana Lumbermen's Mutual Ins. Co., 130 So.2d 770 (La.App. 3rd Cir. 1961), awarded $7,500; Himes v. Avenger, 85 So.2d 304 (La.App. 2nd Cir. 1956), awarded $10,000; Palmer v. American General Ins. Co., 126 So.2d 777 (La.App. 1st Cir. 1960), awarded $12,500; and Randall v. Baton Rouge Bus Company, 240 La. 527, 124 So.2d 535 (1960), awarded $12,500.
The plaintiff cites several additional cases where $12,500 was awarded to each parent. Renz v. Texas and Pacific Railway Company, La.App., 138 So.2d 114; Fontenot v. Wood, La.App., 140 So.2d 34; Borey v. Rood, 140 So.2d 158. Apparently no case in this state has as yet awarded over $12,500 to each parent for the death of a child.
Under the recent Supreme Court decision in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149, as clarified in Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64, we are constrained to consider the awards in previous similar cases only to determine *474 whether the award in the instant case is so excessive as to constitute an abuse of the "much discretion" of the jury as to quantum. In view of the previous awards of $12,500 to each parent, we do not think it was an abuse of such discretion to award $15,000.
For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant appellant.
Affirmed.
On Application for Rehearing.
En Banc. Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2511930/ | 254 F.Supp.2d 1364 (2003)
In re MEDCO HEALTH SOLUTIONS, INC., Pharmacy Benefits Management Litigation
No. 1508.
Judicial Panel on Multidistrict Litigation.
February 28, 2003.
*1365 Before WM. TERRELL HODGES, Chairman, JOHN F. KEENAN, BRUCE M. SELYA,[*] JULIA SMITH GIBBONS, D. LOWELL JENSEN,[*] J. FREDERICK MOTZ[*] and ROBERT L. MILLER, JR., Judges of the Panel.
TRANSFER ORDER
WM. TERRELL HODGES, Chairman.
This litigation presently consists of ten actions: seven actions in the Southern District of New York, two actions in the Northern District of California, and one action in the Southern District of California.[1] Before the Panel is a motion, pursuant to 28 U.S.C. § 1407, by defendants Merck & Co., Inc. (Merck) and Medco Health Solutions, Inc. (Medco) to centralize these actions in the Southern District of New York for coordinated or consolidated pretrial proceedings. All responding plaintiffs support Section 1407 centralization, but suggest selection of the Northern District of California as transferee district.
On the basis of the papers filed and hearing session held, the Panel finds that the actions in this litigation involve common questions of fact, and that centralization in the Southern District of New York will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All actions share factual questions arising out of Medco's conduct as a pharmacy benefit manager, including whether Medco unlawfully enriches itself and its parent, Merck, vis-a-vis the benefit plans as a result of, among other things, undisclosed dealings with pharmacies and drug manufacturers. Centralization under Section 1407 is thus necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings (especially with respect to questions of class certification), and conserve the resources of the parties, their counsel and the judiciary.
We are persuaded that the Southern District of New York is an appropriate transferee forum for this litigation. We note that i) this New York district is conveniently located for many parties and witnesses, and ii) Judge Charles L. Brieant is currently in the process of reviewing a proposed comprehensive settlement of claims in this litigation.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the attached Schedule A and pending outside the Southern District of New York are transferred to the Southern District of New York and, with the consent *1366 of that court, assigned to the Honorable Charles L. Brieant for coordinated or consolidated pretrial proceedings with the actions pending there.
SCHEDULE A
MDL-1508In re Medco Health Solutions, Inc., Pharmacy Benefits Management Litigation
Northern District of California
Frank Steve McMillan, et al. v. Merck-Medco Managed Care, L.L.C., et al, C.A. No. 3:01-4513
David J. Gibson, etc. v. Medco Health Solutions, Inc., et al, C.A. No. 3:02-5038
Southern District of California
Adam Miles, etc. v. Merckr-Medco Managed Care, LLC, et al, C.A. No. 3:02-1476
Southern District of New York
Genia Gruer, et al. v. Merck-Medco Managed Care, L.L.C, et al, C.A. No. 7:97-9167
Walter J. Green, Jr. v. Merck-Medco Managed Care, L.L.C, C.A. No. 7:98-847
Mildred Bellow v. Merck-Medco Managed Care, L.L.C, C.A. No. 7:98-4763
Marissa Janazzo, etc. v. Merck-Medco Managed Care, L.L.C, et al, C.A. No. 7:99-4067
Harry J. Blumenthal, Jr., et al. v. Merck-Medco Managed Care, L.L.C, et al, C.A. No. 7:99-970
ELIZABETH O'HARE V. MERCK-MEDCO MANAGED CARE, L.L.C, C.A. No. 7:01-3805
Betty Jo Jones, etc. v. Merck-Medco Managed Care, L.L.C, et al, C.A. No. 7:02-8799
NOTES
[*] Judges Selya, Jensen and Motz did not participate in the decision of this matter.
[1] The Panel has been notified that four potentially related actions have recently been filed in the Northern District of California. These actions and any other related actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1745692/ | 524 So. 2d 582 (1988)
EASTLINE CORPORATION
v.
MARION APARTMENTS, LTD. and Dwayne Sharp.
No. 58451.
Supreme Court of Mississippi.
May 4, 1988.
David L. Reynolds, Reynolds, Prewitt & Bradley, Jackson, for appellant.
David H. Nutt, David Nutt & Associates, Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and SULLIVAN and GRIFFIN, JJ.
ROY NOBLE LEE, Chief Justice, for the Court:
Eastline Corporation filed its complaint in the Chancery Court of Rankin County, Mississippi, against Marion Apartments, Ltd. and Dwayne Sharp[1] claiming money due it under the terms of a construction contract. Evidence introduced at trial indicated that the contract provided for a specific procedure whereby additional or extra work would be approved by appellee prior to the performance of such work. Eastline's claim was based in part upon additional or extra work which it performed without following the approval procedure. For that reason, the chancellor refused to allow testimony concerning sums expended by Eastline on the additional/extra work. Eastline contended that the chancellor's action was error, and the chancellor granted Eastline's motion for interlocutory appeal to this Court for determination of admissibility of such testimony.
Since the chancellor excluded the evidence mentioned above, judgment could have been entered and the matter would be before us on direct appeal. The issue is the same, whether on direct appeal or interlocutory appeal, and was framed by the chancellor as follows:
Should the Plaintiff [appellant] be allowed to adduce testimony of damages sustained in a construction contract as a result of extra work performed at the direction of the owner or the owner's agent when the written contract between them states that all changes must be in writing?
*583 Facts
On January 19, 1984, Eastline Corporation, a general contractor, entered into a contract with Marion Apartments, Ltd., a partnership, for the construction of a five-building forty-unit apartment complex in Columbia, MS. The project was financed by Farmers' Home Administration, and the contract was a standard FmHA form. The contract price was $955,570.
Eastline agreed to complete construction within 212 days after April 26, 1984, thus establishing a completion deadline of November 24, 1984. Eastline additionally agreed to pay liquidated damages of $351.00 per day of delay beyond the completion deadline. Finally Eastline agreed to the following clauses regarding additional or extra work:
I. CHANGES IN WORK. The owner may at any time, with the approval of the official designated by the Farmers Home Administration (hereinafter called the Representative), make changes in the drawings and specifications, within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract or in the time required for its performance, an equitable adjustment will be made, and this contract will be modified accordingly by a "Contract Change Order". No charge for any extra work or material will be allowed unless the same has been ordered on such contract change order by the Owner with the approval of the Representative, and the price therefor stated in the order.
* * * * * *
VI. NOTICES AND APPROVAL IN WRITING. Any notice, consent, or other act to be given or done hereunder will be valid only if in writing.
The construction project was hampered by several delays. The completion deadline was extended at least twice with final performance apparently due by July 24, 1985. The project architect finally certified construction as substantially complete on September 23, 1985.
Eastline blamed the delay on four main difficulties. First, the property boundaries indicated on the plans provided by Marion did not conform to the actual boundaries of the construction site. Second, the topographical survey provided by Marion did not conform to the actual topography of the construction site. Third, Marion's plans called for the use of two existing 24-inch drainage culverts, but it was later discovered that municipal regulations would require the installation of new 30-inch culverts. Fourth, Marion's plans indicated that an old water tower on the property would be removed prior to construction; it was not, and after waiting for Marion to remove the tower, Eastline finally removed the tower on its own.
According to Eastline, each of these problems compounded the others. For example, Eastline realized early in the project that the topography was not as anticipated,[2] but no fill dirt to correct the topography could be brought in until the old water tower was removed. The topographical correction was delayed first by boundary line problems and second by the culvert replacement problem. Only after all of these difficulties were discovered and remedied could the topography be brought to specification and the site made ready for building.
Eastline incurred substantial additional expense in making these corrections, particularly in installing the new culverts and in correcting the topography. For instance, Marion's plans specified that 500 yards of fill dirt would be required; the topographical plans were so inaccurate that eventually 10,000 yards of fill dirt were required to bring the site to grade.
On the date of completion, September 23, 1985, Marion still owed Eastline some $119,000 of the original contract price. Additionally, Eastline insisted that Marion owed $115,000 for extra expenses incurred because of the unanticipated construction problems. On October 21, 1985, Eastline brought suit in the Chancery Court of Rankin *584 County to recover these amounts. The case was twice continued and finally came for trial on February 23, 1987.
Eastline's president, vice president and construction superintendent testified at trial in appellant's case in chief and related the facts as set forth above. Eastline then called its accountant, who had prepared an itemized list of extra expenses incurred by Eastline as a result of the unexpected problems it encountered. However, the chancellor refused to admit any evidence of additional expense because Eastline had not complied with the "CHANGES IN WORK" clause (supra) by obtaining written change orders before proceeding with work not specified in the plans or contract.
Although the record seems to indicate that Eastline did request change orders from Marion for the additional work, Eastline's officers conceded that the additional work was performed before the change orders were actually obtained. They explained that Eastline was under pressure, particularly from FmHA, to get the job finished and that to avoid any further delay caused by processing the change order requests, Eastline went ahead with the additional work before receiving final authorization. Eastline's vice president testified that he orally informed Marion's representatives about the need for additional work and that they replied, "Get the project done. Get it done. We'll take care of it later." Eastline's president testified similarly.
The chancellor held that, notwithstanding these oral representations, the contract clearly and unambiguously required Eastline to obtain a written change order and that if Eastline performed extra or additional work without the authority of a change order, "they did it at their peril." Accordingly, the chancellor refused to allow the accountant's testimony regarding expenses incurred in the performance of the extra or additional work.
Issue
It is not contradicted that the contract in this case provided that its terms could be modified only by written expression of the parties. Obviously, the chancellor and appellee have overlooked or ignored the rule that a written contract can be orally modified. St. Louis Fire & Marine Ins. Co. v. Lewis, 230 So. 2d 580 (Miss. 1970); Commercial Credit Corp. v. Long, 225 Miss. 164, 82 So. 2d 847 (1955); Pritchard v. Hall, 175 Miss. 588, 167 So. 629 (1936); McDonnell Constr. Co. v. Delta & Pine Land Co., 163 Miss. 646, 141 So. 757 (1932); 15 Williston Law of Contracts § 1828, p. 493 (3d ed. 1961). An oral modification may be made even where the contract provides that modification must be in writing. City of Mound Bayou v. Roy Collins Constr., 499 So. 2d 1354 (Miss. 1986); New York Life Ins. v. O'Dom, 100 Miss. 219, 56 So. 379 (1911); Baum v. Covert, 62 Miss. 113 (1884); 15 Williston Id., at 496. Therefore, the chancellor erred in holding that the written contract could not be orally modified, i.e., "they did it at their peril."
The question remaining is whether or not the parties waived the stipulation that all modifications be in writing. This question must be determined upon the facts and upon the parties' "pattern of conduct." In City of Mound Bayou, supra, it was held that the contractor was entitled to compensation for additional work, even though it failed to secure written modification as required by the contract, since the contractor performed the additional work in good faith and the City had not acted in good faith when it requested such additional work. 13 Am.Jur.2d Building and Construction Contracts § 24, p. 27 (1964), states the following:
Among the acts or conduct amounting to waiver are the owner's knowledge of, agreement to, or acquiescence in such extra work, a course of dealing which repeatedly disregards such stipulation, and a promise to pay for extra work, orally requested by the owner and performed in reliance on that promise.
The above principle stated in Am.Jur. has been approved in other jurisdictions. See Huang International, Inc. v. Foose Constr. Co., 734 P.2d 975 (Wyo. 1987); Moore Constr. Co. v. Clarksville Dept. of *585 Electricity, 707 S.W.2d 1 (Tenn. App. 1985); Udevco, Inc. v. Wagner, 100 Nev. 185, 678 P.2d 679 (1984); D.M. Holden, Inc. v. Contractor's Crane Service, Inc., 121 N.H. 831, 435 A.2d 529 (1981); Shreves v. D.R. Anderson Constructors, Inc., 206 Neb. 433, 293 N.W.2d 106 (1980); Obray v. Mitchell, 98 Idaho 533, 567 P.2d 1284 (1977); Charles Burton Builders, Inc. v. L & S Constr. Co., Inc., 260 Md. 66, 271 A.2d 534 (1970); Hetherington Letter Co. v. O.F. Paulson Constr. Co., 171 N.W.2d 264 (Iowa 1969); Hi-Valley Constructors, Inc. v. Heyser, 163 Colo. 1, 428 P.2d 354 (1967); Honolulu Roofing Co., Ltd. v. Felix, 49 Haw. 578, 426 P.2d 298 (1967); Willey v. Terry & Wright of Kentucky, Inc., 421 S.W.2d 362 (Ky. 1967); American Sheet Metal Works, Inc. v. Haynes, 67 Wash.2d 153, 407 P.2d 429 (1965); Childress v. C.W. Myers Trading Post, Inc., 247 N.C. 150, 100 S.E.2d 391 (1957); Bailey v. Norton, 178 Kan. 104, 283 P.2d 400 (1955).
The evidence in the case sub judice appears to support that Eastline acted in good faith when it proceeded with additional work without obtaining the necessary change orders; that Marion had knowledge of Eastline's performance of additional work; that Marion promised to pay for the additional work and Eastline obtained this assurance before proceeding; and that Marion's acquiescence in the additional work is evidenced by its agent's signature on the certificate of substantial completion.[3]
When a plaintiff shows breach of the contract, damages may also be shown. See 11 Williston, The Law of Contracts §§ 1338, 1363, pp. 197-203, 340-48 (3d ed. 1961); 3 Restatement (Second) Contracts § 346, p. 110 (1981); 17A C.J.S. Contracts § 601, p. 1173 (1964). Appellant Eastline made a showing of breach and the lower court erred in refusing it the right to show damages, which was the next step.
Because of the error committed by the chancellor, the cause is reversed and remanded for a full trial on the merits, consistent with this opinion.
REVERSED AND REMANDED.
HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur.
NOTES
[1] Dwayne Sharp was dismissed from the suit prior to trial.
[2] Eastline's president testified that he noticed variance between the actual topography of the site and that shown by the plans before the contract with Marion was made.
[3] Marion had not yet presented any evidence when the trial below was interrupted by this interlocutory appeal. It may be able to rebut all that had been established by Eastline. Until Marion presents its evidence, the final determination of waiver cannot be made, since waiver is a question of fact Green v. Pendergraft, 253 Miss. 891, 179 So. 2d 831 (1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1695238/ | 426 So. 2d 334 (1983)
Warren S. WHITE and June Bacon White, Plaintiffs-Appellants,
v.
Louie V. CROOK and Earnestine M. Crook, Defendants-Appellees.
No. 15114-CA.
Court of Appeal of Louisiana, Second Circuit.
January 17, 1983.
Rehearing Denied February 24, 1983.
*335 Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for plaintiffs-appellants.
Harvey Perry, Monroe, for defendants-appellees.
Before HALL, MARVIN and JASPER E. JONES, JJ.
JASPER E. JONES, Judge.
This is an action on a contract. The plaintiffs, Warren and June White, appeal a judgment sustaining a motion for summary judgment made by defendants, Louie and Earnestine Crook, and dismissing the plaintiffs' action. We affirm.
Appellants make only one assignment of error. They contend the district judge erred in applying LSA-C.C. art. 2563 to the contract involved in this case.
The facts of this case are set out below.
The appellants owned certain land in Teller County, Colorado. By a contract executed in Ouachita Parish, Louisiana, on October 3, 1978, the appellants sold to defendants a one-half interest in the Colorado land. The contract provides that it is to be governed by Louisiana law.[1] The parties are all residents of Louisiana.
*336 The consideration for the sale was $7,500 cash and the promise of defendants to pay one-half of each remaining monthly installment on the note given by appellants to their vendors of the property. The monthly installments were in the amount of $1,179.87 and were due on the first of each month.
The contract also provides that:
"... it is specifically agreed and understood that should either party hereto fail and/or refuse to meet his monthly installments as provided hereinabove for a period of five (5) days subsequent to the respective due date of such obligation, that is, should either party hereto be in default for a period of five (5) days of his monthly obligation as contracted hereinabove, then the defaulting party shall automatically be declared to be in default of the express provisions hereof and that the said defaulting party shall automatically forfeit all of his rights, claims, title, and interests in and to the subject property including but not limited to the defaulting party's equity therein. The parties hereto further acknowledge and declare that the default provisions and sanctions as set forth herein shall remain in full force and effect as long as there remains an unpaid balance on the indebtedness secured by the mortgage and/or deed of trust mentioned hereinabove."
In October, 1981, the defendants failed to pay their half of the installment until October 8th. On October 29th the appellants commenced this action seeking (1) to have defendants ordered to convey their interest in the land back to them and (2) attorney's fees in the amount of $5,000.
Defendants moved for summary judgment on grounds that their payment on October 8, 1981, was timely under LSA-C.C. art. 2563. The district judge agreed and rendered the judgment complained of.
Appellants contend that a contract is the law between the parties and that the contract in this case provides for the "automatic" forfeiture of any parties' interest for failure to pay the amount due within five days of the due date. As defendants did not make their payment on the October, 1981 installment within five days of the time it was due, appellants conclude that the defendants have forfeited all their rights and interest in the property.
In substance this is an action for recognition of the dissolution of the sale and enforcement of the penal obligation of the contract. The defendants, through their motion for summary judgment, assert that they have properly performed the primary obligation, payment of one-half the installment on the note, and that appellants are entitled to no relief.
The motion for summary judgment should be granted only when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.
There is no genuine issue of material fact in this case. It is undisputed that defendant did not pay their portion of the October, 1981 installment within the time allowed by the contract and that they did pay before this suit was filed. Thus, summary judgment is proper if defendants are entitled to judgment as a matter of law.
At the crux of this case is LSA-C.C. art. 2563 which provides:
If, at the time of the sale of immovables, it has been stipulated that, for want of payment of the price within the term agreed on, the sale should be of right dissolved, the buyer may nevertheless make payment after the expiration of the term, as long as he has not been placed in a state of default, by a judicial demand, but after that demand, the judge can grant him no delay.
Article 2563 has been interpreted to mean that a clause in a sale declaring that it shall be dissolved of right for nonpayment within the time specified has only the effect of waiving a formal putting in default and the right to perform by paying is not cut off until judicial demand is made. Southport Mill v. Ansley, 160 La. 131, 106 So. 720 *337 (1925); Watson v. Feibel, 139 La. 375, 71 So. 585 (1916).
The contract involved here is, by its own terms, a completed sale. It expressly provides that any party who does not pay within five days of the time of his obligation to pay becomes due "automatically" forfeits all rights, claims, title and interests in and to the property.
Generally, upon the dissolution of a sale for nonpayment of the price, the vendor gets the property back and the purchaser is discharged from the obligation to pay and is entitled to the return of amounts already paid. Sliman v. McBee, 311 So. 2d 248 (La. 1975).
The contract in this case differs in that a penal clause requires the forfeiture of amounts previously paid.[2] However, this contract is still a completed sale expressly made subject to dissolution for nonpayment and Article 2563, as construed by Southport Mill and Watson, supra, is applicable.
Appellants argue that this is not so because under LSA-C.C. art. 1901 a contract is the law between the parties and this contract provides that dissolution and forfeiture take place "automatically" on failure to pay within the time allowed.
Though the contract is the law between the parties, laws existing at the time of its confection are incorporated into and form part of the contract as though expressly written therein. Dantoni v. Board of Levee Commissioners, 227 La. 575, 80 So. 2d 81 (1955); Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 31 So. 2d 797 (1947); West v. State, State Superintendent of Pub. Ed., 324 So. 2d 579 (La.App. 1st Cir.1975); Velasquez v. Custom Built Homes, Inc., 246 So. 2d 699 (La.App. 4th Cir.1971). Thus Article 2563 is a part of this contract. This Code Article without ambiguity states that where a contract of sale contains a provision stating that in the event of late payment the sale is dissolved "of right" (which is synonymous with "automatically") that the buyer who has failed to timely pay may nevertheless make payment any time before judicial demand.
Under Article 2563 the defendants had the right to pay until the appellants brought this action. Southport Mills; Watson, supra. Defendants paid before judicial demand, and, therefore, they sufficiently performed the primary obligation and appellants are entitled to neither dissolution nor the liquidated damages established by the penal clause.[3] Summary judgment in defendants' favor was proper.
Appellants cite and rely on Reine v. Kirn, 102 So. 2d 66 (La.App.Orl.1958), for the proposition that Article 2563 cannot be extended beyond its specific terms and function. However, Reine merely holds that Article 2563 is not applicable to an executory contract to buy or sell which is not involved here. Thus, our decision is not contrary to Reine and is indeed supported by it since the court there, at page 72, recognized the rule of Article 2563 as interpreted by Southport and Watson.
For the foregoing reasons the judgment of the district court is AFFIRMED at appellants' costs.
NOTES
[1] Parties may stipulate in their contracts which state's laws are to govern them. Delhomme Industries, Inc. v. Houston Beechcraft, 669 F.2d 1049 (5th Cir.1982); Southern Ins. Co. v. Consumer Agcy., Inc., 442 F. Supp. 30 (E.D.La. 1977); Associated Press v. Toledo Investments, Inc., 389 So. 2d 752 (La.App.3d Cir.1980).
[2] A penal clause is synonymous with liquidated damages. Pennington v. Drews, 218 La. 258, 49 So. 2d 5 (1950); Burris v. Gay, 324 So. 2d 11 (La.App.2d Cir.1975); writ denied, 326 So. 2d 377 (La. 1976.)
As to the validity of penal clauses such as this one, see Heeb v. Codifer & Bonnabel, 162 La. 139, 110 So. 178 (1926); Scott v. Apgar, 238 La. 29, 113 So. 2d 457 (1959).
[3] LSA-C.C.art. 2119The penal clause has this in common with a conditional obligation, that the penalty is due only on condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts there must be always a principal obligation, independent of the penalty, while, in conditional contracts, there is no obligation, unless the condition happens. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3773662/ | DECISION
{¶ 1} This matter comes before the court upon appellant's motion for leave to file a delayed appeal from the judgment of conviction and sentence entered in his case on January 23, 2006. The State of Ohio opposes the motion. Appellant also moves for appointment of counsel and production of a transcript of the proceedings below at state expense.
{¶ 2} Appellant's conviction and subsequent sentence were based upon appellant's guilty plea to eight felony offenses. The counseled guilty pleas were entered in open court on September 2, 2005. The first five counseled guilty pleas were to felonies of the first degree: one count of aggravated burglary, two counts of aggravated robbery, and two counts of kidnapping. Each of the felonies of the first degree included a specification that appellant used a firearm while committing the offense. In addition, appellant entered guilty pleas to two counts of failure to obey an order or signal of a police officer, felonies of the third and fourth degree and one count of having a weapon while under disability, a felony of the third degree.
{¶ 3} During the hearing on appellant's guilty plea, appellant signed a guilty plea form that included information on his appellate rights. "I understand that I can appeal as of right from my plea and sentence within thirty days of the filing of my judgment of conviction." Sentence was imposed in open court on January 20, 2006, and filed on January 23, 2006. Appellant did not file an appeal from that judgment.
{¶ 4} In a criminal case, after the time for the filing of an appeal as of right as provided in App.R. 4, appeal may be taken only by leave of the court to which the appeal is taken. App.R. 5. In pertinent part, that rule provides as follows: "A motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of appellant to perfect an appeal as of right." The defendant bears the burden to demonstrate a reasonable explanation for the failure to perfect a timely appeal. State v. Walden, Franklin App. No. 05AP-532,2005-Ohio-3993.
{¶ 5} Appellant claims that he asked his attorney to appeal from his guilty pleas and sentence and that counsel said an appeal would be filed. Appellant claims that he was unaware that his attorney failed to file an appeal until he obtained a copy of the docket in his case. However, appellant does not explain why, after being made aware that no appeal had been filed, he then waited until July 7, 2006 to file the current motion.
{¶ 6} Appellant has not provided a reasonable explanation for his failure to file the motion for delayed appeal in a timely fashion. Therefore, the motions for leave to file a delayed appeal, for appointment of counsel, and for production of a transcript at state expense are denied.
Motions denied.
Klatt, P.J., and French, J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1876943/ | 247 S.W.3d 814 (2007)
David Edward MOTES, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 07-29.
Supreme Court of Arkansas.
January 25, 2007.
Beverly C. Claunch, Heber Springs, AR, for appellant.
No response.
PER CURIAM.
Beverly C. Claunch, a full-time managing public defender for the Sixteenth Judicial District, moves this court to withdraw from representing the appellant. She states in her motion that she was appointed to represent the appellant after he was found indigent by the Stone County Circuit Court. She further states that appellant's notice of appeal was timely filed and that the transcript was lodged with this court.[1] She states that she should be allowed to withdraw as the attorney in this matter because she is a full-time public defender and because requiring her to represent the appellant on appeal would keep her from giving her full attention to other indigent defendants.
Since this court's decision in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000), in which we held that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal, the General Assembly changed the law. Act 1370 of 2001 provided, in part: "[P]ersons employed as full-time public defenders who are not provided a state funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals." Act 1370 of 2001, § 1 (codified at Ark.Code Ann. § 19-4-1604(b)(2)(B) (Supp.2005)).
Ms. Claunch's motion does not state whether she is provided a state-funded secretary. Accordingly, we must deny her motion at this time. Ms. Claunch may resubmit her motion, providing information about whether she is provided a state-funded secretary, in order for us to determine whether she qualifies for relief from appellant's representation in light of section 19-4-1604(b)(2)(B). See, e.g., Walters v. State, 354 Ark. 403, 125 S.W.3d 818 (2003) (per curiam).
NOTES
[1] Ms. Claunch left the date of the transcript's filing blank in her motion. We note that on this same day, we remanded the appellant's motion for rule on clerk due to noncompliance with Ark. R.App. P.-Civ. 5(b). Consequently, even once Ms. Claunch complies with the directives of the instant per curiam order, she will not be relieved of her duties as counsel to the appellant until the record is timely filed with this court's clerk. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877896/ | 391 B.R. 210 (2008)
IN RE GRIFFIN
GRIFFIN
v.
GRIFFIN.
Nos. 05-8020, 99-53038.
United States Bankruptcy Appellate Panel for the Sixth Circuit.
June 4, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877784/ | 285 So. 2d 163 (1973)
Charles WILLIAMS, Plaintiff-Appellant,
v.
Jerry WIGGINS, Defendant-Appellee.
No. 47227.
Supreme Court of Mississippi.
October 15, 1973.
Rehearing Denied December 3, 1973.
Boyce Holleman, Jim W. Rose, Gulfport, for plaintiff-appellant.
Bryan, Gordon, Nelson & Allen, David L. Cobb, Gulfport, for defendant-appellee.
PATTERSON, Justice:
Charles Williams brought this suit against Jerry Wiggins in the Circuit Court *164 of Hancock County for injuries alleged to have been suffered by him as the result of an automobile accident. The jury returned a verdict for Williams in the sum of $00.00 even though it was peremptorily instructed by the court that the defendant was liable. Williams appeals, contending that the verdict of the jury evinced bias, passion and prejudice against him and that the lower court improperly granted the defendant an instruction in conflict with the peremptory instruction.
Although he did not file a cross appeal Wiggins now argues that the lower court erred in peremptorily instructing the jury on liability and in any event the verdict of $00.00 was supported by the evidence.
In the absence of a cross appeal the issue of liability vel non is not before this Court. Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So. 2d 142, 56 So. 2d 709 (1952); Caston v. Caston, 54 Miss. 512 (1877); Mississippi Supreme Court Rule 6 adopted December 20, 1967; and Merchants Fertilizer and Phosphate Company v. Standard Cotton Gin, 199 Miss. 201, 23 So. 2d 906 (1945), wherein we stated:
... It is not sufficient for an appellee merely to argue errors, claimed to his prejudice, in his reply brief, as was done here. So we consider the direct appeal only. (199 Miss. at 206, 23 So.2d at 906)
The peremptory instruction[1] withdrew from the jury's consideration the issue of negligence and proximate cause. The only question remaining for its determination was whether the appellant was injured and if so, the ascertainment of his damages. The peremptory instruction directs this issue to be considered in accordance with the other instructions granted by the court. These instructions, when considered together, fairly state the sole issue for the jury's determination, that of injury.
The remaining question is whether the verdict of $00.00 was responsive to the evidence. We conclude that it was not compatible either with the court's instructions or with the evidence since the latter was conclusive that the appellant was injured. If refuted at all, it is by the general statements of a defense witness that although appellant was "shook up," he did not appear to be injured and was observed at the ball park subsequent to the accident.
The evidence beyond that mentioned, including the testimony of medical doctors, is that the appellant was injured as the result of the defendant's negligence. While it is true the injuries received were probably difficult to specifically ascertain since the appellant had been previously injured in the same area of his back, nevertheless this difficulty does not preclude an award.
The cases urged by the appellee in support of his premise that no damages should be recovered by the appellant Southern CATV Systems, Inc. v. Howard, 237 So. 2d 452 (Miss. 1970); Mooney v. Lawley, 214 So. 2d 679 (Miss. 1968); Kellum v. Cooperative Creamery Association, Inc., 238 Miss. 731, 120 So. 2d 433 (1960); and Phillips v. Delta Motor Lines, Inc., 235 Miss. 1, 108 So. 2d 409 (1959) are distinguished from the factual circumstances in this proceeding since in each of them there was a conflict of evidence as to whether actual injuries were received by the various plaintiffs which demanded resolution.
There exists no such conflict to be resolved here, the question presently being, "did the jury respond to the evidence before it?" Neither are we presently concerned with the propriety of an award of nominal damages which can only be granted *165 in the absence of actual injury in cases of intentional tort. In cases of common law negligence where there is no actual injury, an award of nominal damages is improper. Southern CATV Systems, supra, and Bumgart v. Bailey, 247 Miss. 604, 156 So. 2d 823 (1963). Of interest, Phillips v. Delta Motor Lines, Inc., 235 Miss. 1, 108 So. 2d 409 (1959), wherein this Court silently overruled the previous cases of common law negligence which held that nominal damages were properly awarded even though there was no actual injury involved.
We conclude that the verdict of the jury was not responsive to the court's instructions nor to the evidence and since it was not, it evinces bias, passion or prejudice on its part against the plaintiff, necessitating the cause to be remanded for a new trial upon the question of damages only emanating from the actual injuries received by the appellant.
Reversed and remanded.
GILLESPIE, C.J., and INZER, SMITH and SUGG, JJ., concur.
NOTES
[1] The Court instructs the Jury for the Plaintiff that you must find for the Plaintiff, as to liability, but assess his damages, if any, in accordance with the other instructions granted by the Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877779/ | 285 So. 2d 614 (1973)
Anthony ESPERTI, Petitioner,
v.
STATE of Florida, Respondent.
No. 43896.
Supreme Court of Florida.
October 23, 1973.
Rehearing Denied December 12, 1973.
Certiorari denied. 276 So. 2d 58.
CARLTON, C.J., and ROBERTS, ERVIN, ADKINS and DEKLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2522347/ | 52 F.Supp.2d 922 (1999)
UNITED STATES of America, Plaintiff,
v.
Rito Alfonso GALVAN-ZERMENO, Defendant.
No. 98-30041.
United States District Court, C.D. Illinois, Springfield Division.
May 21, 1999.
Patrick J. Chesley, Springfield, IL, for plaintiff.
*923 David B. Mote, Springfield, IL, Joseph S. Miller, Springfield, IL, for defendant.
OPINION
RICHARD MILLS, District Judge.
Is a downward departure warranted when an illegal alien's sentence is enhanced because he is "found" while incarcerated for another offense committed after his illegal reentry into the United States?
Yes.
This cause comes before the Court following Defendant's Sentencing. Defendant pled guilty on October 20, 1998, to the charge of reentry by a deported alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). The Presentence Report (PSR) indicates that Defendant had been deported due to his 1995 conviction for possession of an illegal substance with intent to deliver. Subsequently, Defendant pled guilty in January 1998 to the offense of unlawful use of a firearm, arising out of an incident in Chicago, Illinois, in which Defendant pointed a firearm at police officers. In July 1998, Defendant was paroled to the custody of the U.S. Marshal's Office for the instant offense of illegal reentry by a deported alien.
The Presentence Report (PSR) prepared in this case reflects an enhancement of 16 points attributable to Defendant's prior aggravated felony conviction of possession with intent to deliver in 1995. In addition, the PSR reflects a criminal history category of V, due in part to a criminal history point resulting from Defendant's commission of the instant offense while in custody.
Defendant objects to the criminal history category of V, arguing that the proper category would be IV. He also argues that the 16 point enhancement is inapplicable because his prior conviction did not constitute an "aggravated felony" under the Guidelines. Finally, both parties urge the Court to depart, pursuant to U.S.S.G. 5K2.0, by applying a criminal history category of IV rather than V.
A. Double Counting
The criminal history computation in the PSR includes several points for Defendant's previous conviction in Illinois state court for possession of a controlled substance in 1992 and for possession of a controlled substance with intent to deliver in 1995. In addition, the PSR adds an additional 2 points because Defendant committed the instant offense (reentry by a deported alien) while in custody and 1 point because Defendant committed the instant offense within 2 years after a release from imprisonment. Defendant contends that the addition of these 3 points constitutes double counting.
The United States Sentencing Guidelines (U.S.S.G.) § 4A1.1(d) provides that 2 points are to be added to the criminal history calculation if the instant offense was committed while under any criminal justice sentence, while U.S.S.G. § 4A1.1(e) adds a point if the defendant committed the instant offense less than two years after release from imprisonment. The Seventh Circuit has held that addition of criminal history points under § 4A1.1(d) is compatible with adding points under § 4A1.1(e). E.g. United States v. Compton, 82 F.3d 179, 184 (7th Cir.1996). The Court noted that the provisions target different conduct: § 4A1.1(d) punishes a defendant for commission of a crime during the pendency of a criminal justice sentence, while § 4A1.1(e) targets those who commit criminal acts shortly after release from incarceration. Id. Thus, the addition of points under 4A1.1(d) and 4A1.1(e) does not constitute double counting in this case.
B. 16 point enhancement
The only objection that Defendant actually addressed at the sentencing hearing was the enhancement of 16 points for Defendant's conviction of an aggravated felony prior to his deportation. Defendant argues that the proper enhancement would be only 4 points for a prior felony conviction (rather than for an "aggravated felony"). Thus, the Court must determine *924 whether the prior conviction constituted an "aggravated felony" or instead merely a "felony" under the Guidelines. Twelve points hang in the balance.
The term "aggravated felony" is defined at 8 U.S.C. § 1101(a)(43) as "illegal trafficking in a controlled substance (as defined in § 802 of Title 21), including a drug trafficking crime (as defined in § 924(c) of Title 18)." Also, § 924(c) defines a drug trafficking crime as "any felony punishable under the Controlled Substances Act" (21 U.S.C. § 801 et seq.). Those courts that have addressed the issue have determined that two elements are required in order to deem a prior conviction an "aggravated felony" under the Guidelines: (1) the prior offense must be a felony under the law of the state of conviction, and (2) the prior conviction must also have been punishable under the Controlled Substances Act. See United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir. 1997); United States v. Briones-Mata, 116 F.3d 308, 310 (8th Cir.1997); United States v. Garcia-Olmedo, 112 F.3d 399, 400 (9th Cir.1997); United States v. Valenzuela-Escalante, 130 F.3d 944, 946 (10th Cir. 1997). United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.1996).
Here, it is clear that Defendant's prior conviction for possession of a controlled substance with intent to deliver was a felony under Illinois law. Defendant concedes as much, but urges the Court to nonetheless ignore Circuit Court precedent. The Court will reject this invitation.
In addition, possession of cocaine with intent to deliver is punishable under the Controlled Substances Act. See 21 U.S.C. § 801 et seq. Based on the above authorities, the Court finds that the 16 level enhancement is properly applied in this case.
C. Downward Departure
The Government and Defense Counsel agree that a downward departure pursuant to 5K2.0 is warranted in this case. They argue that the Defendant receives the enhancement merely for being an illegal alien while in custody for the 1998 state conviction for unlawful use of a firearm. This sort of circumstance should be distinguished from cases where a person actively commits a criminal act while imprisoned.
For example, a person who escapes from prison would deserve an enhancement because he is determined to be more culpable than a person who does not commit a crime while imprisoned. See United States v. Jimenez, 897 F.2d 286 (7th Cir. 1990). Thus, some element of volition seems to be crucial in applying the enhancement to persons who commit crimes while in prison or under a criminal justice sentence.
In this case, Defendant received the enhancement based on the fact that he was "found" to be an alien while in custody for his 1998 conviction for unlawful use of a firearm. But being an alien is different from escape attempts or trying to smuggle contraband into the prison. The former is more akin to a pure status offense and is far less demonstrative of criminal culpability than the latter type of active criminal behavior.[1]
It should be noted that some courts have determined that reentry by an illegal alien constitutes a continuing offense and that an alien who is arrested after that illegal reentry may receive the two point enhancement for having committed the offense of reentry when he was "found" in prison after his reentry. See United States v. Santana-Castellano, 74 F.3d 593, 598 (5th Cir.1996).
However, the Santana-Castellano court did not consider whether a downward departure might be warranted in such situations. In addition, cases such as Santana-Castellano are compatible with a departure *925 under U.S.S.G. § 5K2.0. While the Sentencing Guidelines by its plain terms justify the two point enhancement, it also seems clear that the Commission did not consider the specific sort of situation exemplified by the instant case. A downward departure is justified when the Court finds that a guideline linguistically applies to a case, but the conduct involved is significantly different from the norm contemplated by the Guideline. See United States v. King, 150 F.3d 644, 650 (7th Cir.1998) (citing U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)).
The Court finds that the Commission did not contemplate the situation involved in this case when formulating U.S.S.G. § 4A1.1(d). It appears far more likely that the Commission envisioned that the enhancement therein should typically be applied to those who engage in criminal behavior while under a criminal justice sentence rather than those who are "found" to be illegal aliens while in custody. Thus, the Court agrees with the parties that a downward departure is warranted in this case.
Ergo, Defendant's objections to the PSR (d/e 20) are DENIED. The Government's unopposed motion for downward departure pursuant to 5K2.0 is ALLOWED. Thus, Defendant's offense level is 21, and his criminal history category is IV, yielding a guideline range of 57-71 months. The Government and Defendant request a sentence of 57 months.
Accordingly, Defendant is sentenced to 57 months imprisonment. The imprisonment is to be followed by a two year term of supervised release upon discharge from the Bureau of Prisons. Defendant is ordered to pay the mandatory assessment of $100.00. No fine will be imposed.
NOTES
[1] Of course the offense of reentry by an illegal alien is not purely a status offense in that one must actually come into the country to commit the offense. But there remains an important difference between being an alien and actively committing offenses while imprisoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326494/ | Connolly, Thomas E., J.
FINDINGS OF FACT
This civil action was commenced on May 18, 2010 by Lawrence J. Wysocki (“Wysocki”), individually and *337as a Trustee of the 14 Folien Street Trust against Peter H. Scholnick, Trustee of the Peter H. Scholnick Revocable Trust and Peter H. Scholnick, Trustee of the 14 Folien Street Condominium Trust.
The two trustees live in their separate units at 14 Folien Street, Boston, MA, which is a three-unit condominium building. The third unit was sold by Scholnick to Scott Schewster, who occupied that unit and was a Trustee also. The condominium building was developed by Scholnick, who elected to stay on and live in one of three units and sold the other two units. Scholnick over the years has developed over thirty condominium units in the Boston area and is well acquainted with the procedure involving the construction, sale and the condominium procedures of running a condominium building.
Upon the sale of the two condominium units to Wysocki and Scholnick, Attorney Eliot Parkhurst, a partner of the defendant, Peter H. Scholnick became the manager of the condominium building including its financial affairs. In June 2009, Scholnick terminated his longstanding relationship with his attorney and former manager of the condominium namely, Eliot Parkhurst. Parkhurst then transferred all financial records and condominium papers to Scholnick. Scholnick then became the manager, or at least the de facto manager subject to the requirement of eh. 183A, §10.
Part of Scholnick’s duties were to keep all the financial and other records, to give access to said records to any trustee or condominium owner who asks for access and to allow any trustee the right to photocopy any and all said records.
Scholnick remained as the Trustee in charge of the affairs of the condominium building, collected the monthly common area charges, etc. from Wysocki and Schewster and paid the common charges on behalf of the condominium association. This situation continued the same from October 2008 up to and into 2010, and Scholnick exercised de facto the powers and duties of the trustees as set out in Declaration of Trust dated October 23, 2008. While all three owners under the Declaration of Trust were “trustees,” Scholnick’s responsibilities were as set out above. The bank account into which the condo’s funds were deposited allowed access to the records and the money on the signature of Scholnick, only.
On October 27, 2009, the plaintiff was informed that the due date for payment of the condominium’s master insurance policy had passed and Scholnick had not paid the premium. For the next twelve months Wysocki and Schewster demanded to see the condominium records, financial, insurance and otherwise, but Scholnick refused to provide them. Wysocki and Schewster inquired at TD Bank whether as Trustee of the Condominium Trust they could have access to the Condominium’s bank account. They were informed by the bank that Scholnick is the only authorized signer on the account and therefore they could not have access to any information.
Schewster then desired to sell his condominium and needed to produce copies of the Condominium’s financial and other records for a potential buyer. Scholnick refused to produce any records and refused to allow any other trustee to have access to the condominium funds in the TD Bank.
Thereupon on May 18, 2010, this civil action was commenced, and the Court (Quinlan, J.) granted a temporary restraining order ordering Scholnick not to transfer any of the funds in the TD Bank account except to pay usual and ordinary expenses. Service of the order and notice of a hearing on a preliminary injunction was made on Scholnick and returned to Court.
On May 27, 2010, the defendant, Scholnick, did not appear and the Court (Fahey, J.) entered a preliminary injunction which ordered Scholnick to make all financial and other records available for inspection and copying to the plaintiffs.
On October 4, 2010, another Complaint for Contempt was filed by the plaintiff indicating that Scholnick had not complied with the order to produce the financial and other records and did not give Wysocki access by signature to the condominium’s bank account funds. The contempt hearing was called on October 12, 2010, the defendant, Scholnick did not appear, the contempt was continued over to October 22,2010, and plaintiffs counsel was instructed by the Court to make in-hand service on Scholnick.
This Court then issued an order of notice for contempt to be served in hand to Scholnick. Said in hand service was accomplished but Scholnick did not appear at Court on October 22, 2010.
On October 22, 2010, this court on the motion of Wysocki, individually and as Trustee, issued a capias for the arrest of Scholnick and to have him brought before the Court for his contempt. The capias was executed on October 27, 2010 and he was brought before the Court. After hearing, Scholnick was found in contempt. After a colloquy with the Court, Mr. Scholnick indicated that he would comply with the orders of the Court, turn all the papers over to Wysocki, and give Wysocki access to the bank account. This Court was concerned whether Scholnick would comply and specifically asked him if he would give “his word” to this Court that he would do the matters which he was ordered to do. Mr. Scholnick then gave his word that he would comply with the Court’s order. Mr. Scholnick was then released from custody. The issue of costs for the plaintiffs was continued to be taken up by the Court after the defendant had complied with the orders.
On December 13, 2010, plaintiffs counsel appeared in court again with another petition for contempt. The Court was informed that after many *338attempts since October 22, 2010, Scholnick finally produced the records, but did not and would not go to the bank with Wysocki to sign the necessary documents at TD Bank. On one day, Wysocki saw Scholnick walking on the sidewalk near his condominium and asked him to comply with the Court’s order and to go to TD Bank to allow Wysocki to have access to the account. Scholnick assured Wysocki that he would do it right away, but that he needed to bring his groceries home first. He said that he’d be right back out of his condominium. Unfortunately, he didn’t. He didn’t answer the doorbell and didn’t answer the phone.
Therefore, the plaintiffs counsel on December 12, 2010 again asked for another order of notice for contempt and another capias to issue because Scholnick had still not gone to the TD Bank to sign the necessary documents to give Wysocki access to the account. After again being arrested on a capias, Scholnick was brought again before the court. Scholnick again assured the Court that he would be very willing to go with Wysocki to allow access to the TD Bank account of the Trust. Mr. Scholnick accepted the Court’s suggestion that he be released from custody, and go to the TD Bank with Wysocki and plaintiffs counsel, David R. Jackowitz, and accomplish what was required and then report back to the Court. Two hours after, the three men returned to Court and informed the Court that Mr. Scholnick accomplished what was requested.
Counsel for the plaintiff then requested to go forward on a hearing on costs and attorneys fees. The Court indicated that with what all the parties had been through that day, it would be better to continue it to another day. Also, it would allow Mr. Scholnick the opportunity to obtain a lawyer, if he wished. The Court requested the parties to exchange any documents before the hearing which they intended to present to the Court. The hearing on costs and attorneys fees was set down for December 21, 2010. The defendant, Scholnick, appeared and was represented by Attorney Geoffrey G. Meader of Looney & Grossman, 101 Arch Street, Boston, MA 02110. The plaintiff was represented by David R. Jackowitz, Esq. at the hearing and throughout this case.
The plaintiff, Lawrence J. Wysocki, had to hire an attorney, expended a great deal of money to get the defendant, Scholnick, to do what he was responsible for doing. The plaintiff, Wysocki, has payed a great deal of money to pay the Deputy Sheriff to arrest Mr. Scholnick and to bring him to Court by means of a capias and his civil arrest. This had to be done THREE times. Mr. Scholnick is a longtime developer of condominiums in Boston. He certainly knows what had to be done to pay for the insurance, etc. for the condominium building. He simply refused to do it. The Court treated Mr. Scholnick very gingerly during these proceedings, even asking him to give the Court “his word” that he would do what he was saying that he would. Unfortunately for all involved, he did not keep his word and continued his failure to do what he had been ordered to do repeatedly.
This Court has thoroughly reviewed the detailed and itemized legal bills incurred by the plaintiff which the plaintiff was required to incur as a result of the defendant, Peter H. Scholnick’s failure to do what he was required to do and what this Court ordered him repeatedly to do. Scholnick took on the duties and responsibilities upon the departure of Scholnick’s longtime friend, partner and former manager of the condominium, Eliot Parkhurst, and all the papers, checking accounts were transferred to Scholnick. The checking account for the condominium trust was placed in Scholnick’s name only.
RULINGS OF LAW
This case involves a rare and egregious case of contempt to the Court and to the plaintiff. The defendant, Scholnick, was holding the documents needed by one member to sell his condominium and had sole control over the common funds of the condominium trust, and he refused to respond to the requests and entreaties of his other two trustees. It is something that he should have willingly and promptly done when first asked. He should have done it after he was served with process in this case, he should have appeared in court in response to the capias served and executed on him. The defendant is an educated and experienced man having been a developer of other condominiums in Boston. He simply has no excuse for the contempt that he has shown to the plaintiff, plaintiffs counsel and this Court.
“Where a party’s conduct in a litigation constitutes contempt of court, however, a court has discretion to award attorneys fees against the contumacious party . . . Courts are not powerless, however, to respond to the recalcitrance of a parly who delays compliance with a lawful court order, forcing a prevailing party to resort to litigation . . .” Police Commissioner of Boston v. Gows, 429 Mass. 14, 17 (1999). “[CJourts in other jurisdictions have recognized that, where overriding considerations so indicate, it is within the power of the Court to award attorneys fees where it is in the interest of justice . . . Conduct has been held to justify an award of attorneys fees where a parly has acted ”in bad faith, vexatiously, wantonly, or for oppressive reasons; . . . where the litigant’s conduct is unreasonably obdurate or obstinate . . . and where it should have been unnecessary for a successful litigant to have brought the action." Id., p. 18. “Even where no finding of contempt is made, the Court may award complainant in a civil contempt proceedings attorneys fees and expenses incurred in the attempt to ensure the enforcement of the Court’s Order.” Littlejohn v. Bic Corp., 697 F.Sup. 192, 194 (E.D.Pa., 1988); Police Commissioner of Boston v. Gows, 429 Mass. 14, 18-19 (1999).
*339This Court sees no reason for the defendant to have been so contemptuous other than mere obstinateness by the defendant. For Mr. Scholnick, who is veiy experienced in condominiums, that is their construction, sale and management, to have behaved as he has, makes his conduct all the more contemptuous.
There is simply no reason why the plaintiff, Wysocki, should have to pay his legal fees and expenses. This case certainly comes within that rare and egregious case of contempt where justice and fairness demands it.
As indicated above, this Court has reviewed all submissions by both parties including the itemized time legal bills submitted by the plaintiffs attorney and finds them to be fair and reasonable both as to the legal fees (including the hourly rate charged and the time spent) and the expenses incurred. See: Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1934).
The plaintiff may also be due his attorneys fees and expenses under ch. 231, §6F, ch. 183A, §6(a)(ii) and ch. 183A, §6(b). However, the Court does not believe it necessary to reach those issues. Mass.RCiv.P. 11(a) would not apply in this situation since no one has filed an answer for the defendant in this case. While Attorney Geoffrey G. Meader of Boston appeared and filed his appearance for the defendant at the hearing on legal fees and expenses and was heard on the issues, no attorney has filed an answer for the defendant in this case.
ORDER
After hearing, it is ORDERED that the defendant, Peter H. Scholnick, individually and as Trustee of the 14 Folien Street Condominium and as Trustee of the Peter H. Scholnick Revocable Trust pay to the plaintiff, Lawrence J. Wysocki, individually and as Trustee of the 14 Folien Street Trust the sum of $10,227.00 in legal fees and $1,432.13 in incurred costs, for a total payment of $11,659.13, plus interest from the date of this order. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2610388/ | 76 Cal. App. 2d 281 (1946)
EDWARD F. LEAHEY, Respondent,
v.
DEPARTMENT OF WATER AND POWER OF THE CITY OF LOS ANGELES et al., Appellants.
Civ. No. 15239.
California Court of Appeals. Second Dist., Div. Two.
Oct. 2, 1946.
Ray L. Chesebro, City Attorney, Gilmore Tillman, Chief Assistant City Attorney, and A. L. Lawson, Deputy City Attorney, for Appellants.
Loren A. Butts for Respondent.
WILSON, J.
To obtain a declaratory judgment that respondent is entitled to have a civil service rating in the class of principal electrical engineer in the classified civil service of the city of Los Angeles instead of the rating of superintendent of electrical construction, and that he is entitled to occupy a position of the former class in the Department of Water and Power of said city, is the purpose of this action.
Section 121 of the city charter which took effect on July 1, 1925, insofar as applicable to the case, reads as follows: "All officers and employees who, at the time of taking effect of this Article, would be included in the classified civil service, and who shall have been continuously in the service of the city for a period of six months prior to the adoption of this Article, shall be deemed to have the necessary qualifications required by the provisions hereof, and shall retain their respective positions until removed for cause, as provided herein." (Stats. 1925, pp. 1024, 1069.)
Respondent was employed in 1921 as a superintendent of electrical construction in what was then known as the Department of Public Service, now designated as Department of Water and Power, and ever since said date has been employed under that designation. He alleges that on July 1, 1925, the effective date of the new charter, and for more than six months prior thereto, he had been assigned to duty as an electrical engineer, which was a position in the classified civil service of the city, and that he had the necessary qualifications for the position; that at all times since the adoption of the charter, and for more than six months prior thereto, he has performed the duties of said last named position, and no other; that the position of electrical engineer is now known as principal electrical engineer. *284
It is further alleged that after the decision of the District Court of Appeal on June 27, 1941, in the case of Bente v. Department of Water & Power, 45 Cal. App. 2d 589 [114 P.2d 699], holding that persons employed by the city on the date on which the charter of 1925 became effective were blanketed into the classified civil service of the city, the civil service commission began a survey for the purpose of determining which employees of the Department of Water and Power, if any, were entitled to rights under section 121 of the charter which had not previously been recognized, and on October 3, 1944, the commission made a finding that respondent was not entitled to hold or occupy the position of electrical engineer. Alleging that an actual controversy exists concerning the rights acquired by him by reason of the quoted provisions of the charter, respondent sought and obtained a declaratory judgment that he is entitled to occupy the position designated as principal electrical engineer and to be paid the salary incidental to the position. Defendant commissions and the members thereof have appealed from the judgment.
Among other defenses appellants pleaded that the action is barred by the provisions of subsection 1 of section 338 of the Code of Civil Procedure, which limits the commencement of an action upon a liability created by statute to three years after the cause of action shall have accrued ( 312), and section 343, prescribing a 4-year period for the commencement of actions for relief not otherwise provided for in the preceding sections of the code. Since we have concluded that this defense must be sustained it will not be necessary to determine any of the other points discussed in the briefs.
[1] Appellants have not questioned the right of respondent to maintain an action for declaratory relief when another form of action will completely determine the rights of the parties. Assuming that a declaratory action is available to respondent (Code Civ. Proc., 1060) nevertheless that form of redress is cumulative and not exclusive. ( 1062.) He was afforded the alternative remedy of mandamus proceedings which may be invoked to compel the admission of a person to a position to which he is entitled and to which an administrative board has refused to admit him (Code Civ. Proc., 1085; Lotts v. Board of Park Comrs., 13 Cal. App. 2d 625, 634 [57 P.2d 215]; Shannon v. City of Los Angeles, 205 Cal. 366, 372 [270 P. 682]) and generally to require administrative agencies to perform acts which the law requires of them. (Bodinson *285 Mfg. Co. v. California Employment Com., 17 Cal. 2d 321, 329 [109 P.2d 935] and cases cited.)
[2] The purpose of section 1060 of the Code of Civil Procedure is to provide a ready and speedy remedy "in cases of actual controversy relating to the legal rights and duties of the respective parties." (Welfare Inv. Co. v. Stowell, 132 Cal. App. 275, 278 [22 P.2d 529].) The qualification that the alternative remedy must be speedy and adequate (see Maguire v. Hibernia S. & L. Soc., 23 Cal. 2d 719, 732 [146 P.2d 673, 151 A.L.R. 1062]; Henderson v. Oroville- Wyandotte Irr. Dist., 207 Cal. 215, 216 [277 P. 487]) is rendered innocuous by the fact that the relief supplied by section 1060 is no more adequate and no speedier than that which may be had under a petition for a writ of mandate. In fact the judgment in this case declares that "plaintiff is entitled" to certain relief and that "it is the duty of defendants" to do certain things, whereas in a mandamus proceeding defendants would have been commanded to perform the duties which the court determined should be performed.
[3] Since respondent had three options: (1) To seek a declaratory judgment of his rights under said section 1060, or (2) to apply for a writ of mandate to compel the civil service commission to classify him as principal electrical engineer and the Department of Water and Power to assign him to such position and to pay him the appropriate salary, or (3) to seek both forms of relief concurrently, he cannot avoid the effect of the statute of limitations relevant to mandamus proceedings by seeking declaratory relief only. The availability of declaratory relief "would seem to suggest that the ability to maintain a suit therefor is not the criterion for determining when the statute of limitations commences to run against an action of that nature. ... We are of the opinion that the period of limitations applicable to ordinary actions at law and suits in equity should be applied in like manner to actions for declaratory relief. Thus, if declaratory relief is sought with reference to an obligation which has been breached and the right to commence an action for 'coercive' relief upon the cause of action arising therefrom is barred by the statute, the right to declaratory relief is likewise barred." (Maguire v. Hibernia S. & L. Soc., supra.)
[4] Civil actions must be commenced within the periods prescribed in the code, "after the cause of action shall have accrued." (Code Civ. Proc., 312.) The word "action," as *286 used with reference to the code provisions limiting the time for the commencement of actions, includes special proceedings of a civil nature. (Code Civ. Proc., 363; Barnes v. Glide, 117 Cal. 1, 6 [48 P. 804, 59 Am. St. Rep. 153].) The term "accrue" means: "To come into existence as an enforceable claim; to vest as a right; as, a cause of action has accrued when the right to sue has become vested." (Webster's New International Dictionary.) A cause of action accrues when a suit may be maintained thereon, and the statute of limitations begins to run at the date of accrual. (Dillon v. Board of Pension Comrs., 18 Cal. 2d 427, 430 [116 P.2d 37, 136 A.L.R. 800]; Osborn v. Hopkins, 160 Cal. 501, 506 [117 P. 519, Ann.Cas. 1913A 413].) [5] An application for a writ of mandate to compel the reinstatement of a public official who has been dismissed is barred by the statute unless the proceeding is commenced within three years after the dismissal. (Code Civ. Proc., 338, subd. 1; Curtin v. Board of Police Comrs., 74 Cal. App. 77, 82 [239 P. 355]; Jones v. Board of Police Comrs., 141 Cal. 96, 98 [74 P. 696]; Wittman v. Board of Police Comrs., 19 Cal. App. 229, 231 [125 P. 265]; Hermanson v. Board of Pension Comrs., 219 Cal. 622, 624 [28 P.2d 21].)
[6] A declaratory action is governed by the same limitations as are applicable to other forms of relief. (Monahan v. Dept. of Water & Power, 48 Cal. App. 2d 746, 751 [120 P.2d 730].) [7] The nature of the right sued upon, and not the form of the action or the relief demanded, determines the applicability of the statute of limitations. (Maguire v. Hibernia S. & L. Soc., supra; Bell v. Bank of California, 153 Cal. 234, 243 [94 P. 889]; Banks v. Stockton, 149 Cal. 599, 602 [87 P. 83].) Respondent is endeavoring to enforce a liability claimed to have been created in his favor by the city charter, save for the existence of which no relief would be possible and this action would not have been brought. [8] A charter is a statute of the state (Stern v. City Council, 25 Cal. App. 685, 688 [145 P. 167]; C.J. Kubach Co. v. McGuire, 199 Cal. 215, 217 [248 P. 676]; Whitmore v. Brown, 207 Cal. 473, 481 [279 P. 447]) and an action thereunder is governed accordingly.
[9a] Respondent's right, if any he had, to the classification now claimed by him accrued, if at all, on July 1, 1925, when the new charter became effective. He was then classified as superintendent of electrical construction, and if, notwithstanding such classification, he had been performing the duties of *287 electrical engineer and was entitled to be classified under the latter designation such right accrued and was acquired by reason of the charter and upon its effective date. Without complaint or protest he continued in his former classification until 1941, when the survey was begun by the civil service commission, resulting in its refusal to reclassify him. At any time during that period of 16 years he could have demanded a reclassification and could have maintained an appropriate proceeding for the purpose of determining and enforcing the rights to which, during that entire period, he asserts he was entitled.
Whether an action for declaratory relief is an equitable proceeding or an action at law the statute of limitations is pertinent. Respondent cites Salada Beach etc. Dist. v. Anderson, 50 Cal. App. 2d 306, 308 [123 P.2d 86], wherein it is said that the statute does not begin to run against the right to an action for declaratory relief until an actual controversy has accrued or occurred. There can be no assumption in the instant case, as there was in the Salada Beach case, that the controversy did not arise until shortly before the commencement of the action. The facts pleaded in the complaint at bar show conclusively that the controversy accrued upon the effective date of the charter.
There could have been no actual controversy between respondent and appellants until he had made a claim or presented a demand to the city officials and they had refused to recognize it. Whatever right he may have had having fully accrued in 1925, he could not postpone his action and escape the operation of the statute of limitations indefinitely either by failing to demand what he claims was his due (Wittman v. Board of Police Comrs., 19 Cal. App. 229, 231 [125 P. 265]; County of San Luis Obispo v. Gage, 139 Cal. 398, 408 [73 P. 174]; Barnes v. Glide, 117 Cal. 1, 8 [48 P. 804, 59 Am. St. Rep. 153]) or by a general affirmation of ignorance for 16 years of the effect of the statute (the city charter) with relation to the subject involved (his right to reclassification). (Yasunaga v. Stockburger, 43 Cal. App. 2d 396, 401 [111 P.2d 34].) [10] An assertion of ignorance of one's rights at one time and of knowledge at another will not operate to toll the statute. (Wood v. Carpenter, 101 U.S. 135, 140 [25 L. Ed. 807, 808]; Easton v. Geller, 116 Cal. App. 577, 580 [3 P.2d 74]; Phelps v. Grady, 168 Cal. 73, 78 [141 P. 926].)
[9b] Respondent attempted to plead around the statute of *288 limitations by alleging that the rights derived by employees in the Department of Water and Power by virtue of section 121 of the charter, including his own rights, were not determined until the decision in Bente v. Department of Water & Power, supra, 45 Cal. App. 2d 589, and that after that decision the civil service commission made a survey for the purpose of determining which employees of the city were entitled to rights under that section. This allegation does not exculpate him for his failure to assert his own rights by making a demand therefor on the appropriate officers or commissions of the city, and, if his demand had been refused, by pursuing his remedy in court without delay. For 16 years prior to the decision in the Bente case his situation and his classification remained the same and he offers no excuse for having failed during that period to prosecute an action in his own behalf similar to that brought by Bente.
Judgment reversed with directions to enter judgment in favor of defendants.
Moore, P. J., and McComb, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1904490/ | 122 So. 2d 917 (1960)
Pete BIRSON
v.
DECATUR TRANSFER AND STORAGE, INCORPORATED.
6 Div. 412.
Supreme Court of Alabama.
July 14, 1960.
Rehearing Denied September 15, 1960.
Kingman C. Shelburne and Walter C. Hayden, Birmingham, for appellant.
Spain, Gillon & Young, Foster Etheredge and Jos. G. Gamble, Birmingham, for appellee.
SIMPSON, Justice.
This controversy arose under the Workmen's Compensation Law, and was begun by a verified complaint as authorized by § 302, Tit. 26, Code of Alabama, 1940. Defendant filed verified answer. The Circuit Court, Jefferson County, after hearing the evidence, entered judgment denying the plaintiff, Birson, recovery of benefits and he seeks review here by certiorari as authorized by the statute.
Petitioner's complaint alleged that petitioner was an employee of respondent, that both petitioner and respondent were subject to the Workmen's Compensation Laws of Alabama; that petitioner while acting in the line and scope of his employment with the respondent suffered an accident, and that as a proximate result of said accident petitioner became totally disabled. Respondent joined issue by filing a verified answer denying, inter alia, that the petitioner and respondent were subject to the Workmen's Compensation Laws of Alabama at the time of petitioner's alleged injury, on the ground that at the time of petitioner's alleged injury the respondent *918 was a common carrier doing interstate business and engaged in interstate commerce and the petitioner was engaged in interstate commerce. After hearing the evidence the trial court filed the following:
"The court makes the following findings of fact:
"1. That the defendant, Decatur Transfer & Storage, Inc., a corporation, was at all times relevant to this case a common carrier, doing an interstate business and was engaged in interstate commerce.
"2. That the plaintiff and the defendant were not subject to the Workmen's Compensation Laws of the State of Alabama.
"Order
"It is therefore ordered, adjudged and decreed that there be a judgment for the defendant in this case. * * *"
The following facts were undisputed: Respondent is a corporation, and is a common carrier for hire in the transfer business. It contracts to ship furniture either interstate or intrastate. When it ships furniture interstate it acts as an agent of Allied Van Lines, a corporation, but on such shipments Decatur Transfer & Storage, Inc., a corporation, furnishes the equipment and the driver and leases them to Allied. On the occasion complained of Decatur's driver hired the plaintiff to load Decatur's truck in Birmingham with furniture consigned to Detroit, Michigan. Petitioner received his alleged injury while helping to load this furniture. None of the furniture which the plaintiff helped to load was shipped to any point in Alabama, but was carried for hire to other states.
It is conceded that the Alabama Workmen's Compensation Act does not apply to a common carrier doing an interstate business, while engaged in interstate commerce, or to an employee of said common carrier while engaged in interstate commerce. Title 26, § 263, Code of Alabama, 1940. Rather, the plaintiff contends primarily that the "findings of fact" made by the trial judge is not sufficient under § 304, Title 26, Code of Alabama, 1940. This section provides in part as follows:
"* * * At the time fixed for the hearing or any adjournment thereof, the court shall hear such witnesses as may be presented by each party, and in a summary manner without a jury, unless one is demanded, to try the issue of wilful misconduct on the part of the employee, decide the controversy. This determination shall be filed in writing, with the clerk of said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge."
This court in Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345 described the requirement of this statute as follows:
"The statute contemplates, not a recital of the evidence, * * * but a determination by the trial judge of the facts established by the evidence, responsive to the issues presented, with the conclusion as to whether the facts found establish or fail to establish the liability asserted; and there should be a finding of every fact necessary to sustain the judgment of the court."
The cases are legion to the effect that in cases of this kind, where the trial court's finding is merely meager or omissive, this court will look to the evidence to see if judgment can be sustained on any reasonable view of it. Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So. 2d 204; Ex parte Louisville & Nashville R. Co., 208 Ala. 216, 94 So. 289; *919 West Point Manufacturing Co. v. Bennett, 263 Ala. 571, 83 So. 2d 303; Goodyear Tire & Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So. 2d 278.
On certiorari to review compensation judgments it is not the province of this court to retry the case, but to look to see if there is any evidence to support the judgment rendered by the trial judge who had the witnesses before him. Jackson v. W. L. Smith Poultry Co., 264 Ala. 184, 85 So. 2d 893; Baggett Transportation Co. v. Holderfield, 260 Ala. 56, 59, 68 So. 2d 21; Bass v. Cowikee Mills, 259 Ala. 391, 393, 67 So. 2d 12; Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 678, 32 So. 2d 666; Houser v. Young, 247 Ala. 562, 563, 25 So. 2d 421; Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 478, 3 So. 2d 46; Alabama By-Products Corporation v. Winters, 234 Ala. 566, 568, 176 So. 183; Woodward Iron Co. v. Jones, 217 Ala. 361, 362, 116 So. 425; Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 222, 109 So. 878; Ex Parte Little Cahaba Coal Co., 213 Ala. 596, 598, 105 So. 648; Ex Parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 221, 92 So. 458.
The finding of the trial court in this case is to the effect that the respondent and petitioner were engaged in interstate commerce at the time of the accident complained of. After a careful review of the record we find that there is evidence to support such finding. The facts were undisputed that at the time of the alleged injury the petitioner was loading furniture in Birmingham, Alabama, on a truck owned by Decatur which had been leased, together with its driver to Allied, which furniture was consigned to Detroit, Michigan. As was noted in Baltimore & O. S. W. R. Co. v. Burtch, 263 U.S. 540, 44 S. Ct. 165, 166, 68 L. Ed. 433, "It is too plain to require discussion that the loading or unloading of an interstate shipment by the employees of a carrier is so closely related to interstate transportation as to be practically a part of it".
As stated, such persons are expressly excluded from the incidents of the Workmen's Compensation Laws of Alabama.
It follows then, that the judgment of the trial court is without error.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2575976/ | 31 Cal. Rptr. 3d 147 (2005)
36 Cal. 4th 643
115 P.3d 460
SCOTTSDALE INSURANCE COMPANY, Plaintiff and Appellant,
v.
MV TRANSPORTATION et al., Defendants and Respondents.
No. S123766.
Supreme Court of California.
July 25, 2005.
*149 Selman Breitman, Neil Selman, Jan L. Pocaterra, Lynette Klawon, Alan B. Yuter and Rachel E. Hobbs, Los Angeles, for Plaintiff and Appellant.
Wiley Rein & Fielding, Laura A. Fogan, Alicia C. Ritter; Sinnott, Dito, Moura & Puebla, Randolph P. Sinnott and John J. Moura, Los Angeles, for Complex Insurance Claims Litigation Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Greines, Martin, Stein & Richland, Irving H. Greines, Feris M. Greenberger and Robert A. Olson, Los Angeles, for Truck Insurance Exchange, Farmers Insurance Exchange and Fire Insurance Exchange as Amici Curiae on behalf of Plaintiff and Appellant.
Hancock Rothert & Busnhoft, W. Andrew Miller, William J. Baron, Kathryn C. Ashton and Molly K. Kane, San Francisco, for Great American Insurance Company and London Market Insurers as Amici Curiae on behalf of Plaintiff and Appellant.
Heller Ehrman White & McAuliffe, Richard DeNatale, Peter F. McAweeney, David B. Goodwin, San Francisco, Deanna M. Wilcox, Los Angeles; and John Andrew Baird for Defendants and Respondents.
Latham & Watkins, David L. Milliken, Marc D. Halpern and Edward J. Balsamo, San Diego, for Montrose Chemical Corporation of California as Amicus Curiae on behalf of Defendants and Respondents.
*148 BAXTER, J.
May a commercial general liability (CGL) insurer obtain reimbursement of its expenses of defending its insured against a third party lawsuit, when it is ultimately determined, as a matter of law, that the policy never afforded any potential for coverage, and that a duty to defend thus never arose? Where, as here, the insurer properly reserved its right to such reimbursement, we conclude that the answer is "yes."
Defendant MV Transportation (MV) was sued by a third party (third party action). Plaintiff Scottsdale Insurance Company (Scottsdale) advanced the costs of defending MV, its insured, in the third party action, but did so under a reservation of its right, if any, to recoup such costs. While the third party action was pending, Scottsdale sued MV (the insurance action), seeking a declaration, inter alia, that because its policies afforded no potential coverage of the third party action, it owed no defense, and was therefore entitled to reimbursement of its defense costs.
The third party action ended in settlement. Thereafter, in the insurance action, *150 the superior court found a potential for coverage, but the Court of Appeal ultimately disagreed. For reasons of law, the Court of Appeal held that the allegations in the third party's complaint never triggered any possibility of coverage under Scottsdale's policies. Nonetheless, the Court of Appeal concluded that Scottsdale was not entitled to reimbursement. The Court of Appeal reasoned, in essence, that its no-potential-coverage determination "extinguished" Scottsdale's defense duty only from that time forward. Hence, the Court of Appeal determined, Scottsdale could not "retroactively" recover defense costs expended before its duty was "extinguished."
We disagree. By ruling, as a matter of law, that the third party action never presented any possibility of coverage by Scottsdale's policies, the Court of Appeal established not that the duty to defend was thereupon prospectively "extinguished," but that it never arose. Therefore, Scottsdale may recover amounts it expended in defending the insured under its reservation of rights. To the extent the Court of Appeal held otherwise, its judgment must be reversed.
FACTS
Defendants in this action by Scottsdale are Scottsdale's insured, MV, and several of MV's employees. The underlying lawsuit, for which Scottsdale seeks reimbursement of defense costs, was filed by MV's competitor in the transportation industry, Laidlaw Transit Services, Inc. (Laidlaw). The parties do not dispute the pertinent facts as stated by the Court of Appeal. We therefore adopt the Court of Appeal's statement, as follows (with bracketed insertions by this court and deletions indicated by ellipses):
The underlying lawsuit by Laidlaw
In January of 2000, Laidlaw filed an action against MV and several of MV's employees who had previously worked for Laidlaw, including MV's new president and chief operating officer (Jon Monson). Laidlaw's complaint . . . alleged causes of action for breach of fiduciary duty, tortious inducement to breach the duty of loyalty and fiduciary duty, intentional interference with contractual relations and with prospective business advantage, misappropriation of trade secrets, and unlawful, unfair, and fraudulent business practices.
In essence, Laidlaw's suit alleged certain contractual breaches, unlawful business practices, and misappropriation of trade secrets by using [Laidlaw's] confidential, proprietary information to compete unfairly in bidding for and obtaining new busing contracts in urban public transportation services markets. The complaint specified two markets in particular, Lawrence, Kansas, and Indianapolis, Indiana, and noted other unspecified cities as well. The confidential, proprietary information included bidding models, bidding formulas, and other nonpublic information used in developing Laidlaw's bids, such as Laidlaw's overhead costs and financial objectives allocated to each project. As alleged in the complaint, MV used such information, as well as Laidlaw's customer list and other trade secrets, to "significantly impede Laidlaw's ability to market itself as a unique provider" of its services.
Soon after Laidlaw filed its complaint, MV's legal counsel tendered the defense to its insurer, Scottsdale. Scottsdale asserted that although one Ninth Circuit case had "concluded that certain trade secret misappropriation claims fall within the scope of the advertising injury liability coverage of a general liability policy," the underlying facts in that case . . . [were] distinguishable, and Scottsdale's defense *151 obligations were not triggered by the Laidlaw suit. Nonetheless, Scottsdale agreed to provide a defense . . . to MV and the individuals named in the Laidlaw suit under a reservation of certain rights, including the right to seek a declaration of its rights and duties under the policy and "[t]he right to seek reimbursement of defense fees paid toward defending causes of action which raise no potential for coverage, as authorized by the California Supreme Court in Buss v. Superior Court (Transamerica Ins. Co.) (1997) 16 Cal. 4th 35 [65 Cal. Rptr. 2d 366, 939 P.2d 766]."
In December of 2000, Laidlaw and MV agreed to settle the suit by Laidlaw. Pursuant to the settlement agreement, MV and the individual defendants agreed to return to Laidlaw documents containing allegedly misappropriated bid models, bid formulas and other trade secrets, and to refrain from using such material in developing MV's bids or proposals to customers in the public transportation market. However, the settlement agreement did not require that MV pay any money to Laidlaw. Attorney fees and costs incurred [by Scottsdale] in defending the Laidlaw suit were approximately $340,000.
The coverage dispute between Scottsdale and MV
Scottsdale issued two CGL policies to MV, one effective from December 1, 1998, to December 1, 1999 (hereinafter, the first CGL policy), and the other from December 1, 1999, to December 1, 2000 (hereinafter, the second CGL policy). The first CGL policy [included Scottsdale's agreement] to defend MV against any suit and to pay any damages due to "`advertising injury' caused by an offense committed in the course of advertising [MV's] goods, products or services." The policy defined the term "advertising injury" as including the "[m]isappropriation of advertising ideas or style of doing business."
The second CGL policy also obligated Scottsdale to pay MV's damages and costs of suit for any advertising injury. The policy language, however, was somewhat different from that in the first CGL policy. Specifically, the second CGL policy defined advertising injury as, in pertinent part, "[t]he use of another's advertising idea in [the insured's] `advertisement.'" And the policy defined "advertisement" as "a notice that is broadcast or published to the general public or specific market segments about [the insured's] goods, products or services for the purpose of attracting customers or supporters."
During the course of the underlying Laidlaw litigation, in June of 2000, Scottsdale filed the present declaratory relief action against MV and other defendants named in the Laidlaw action. After settlement of the underlying action, Scottsdale moved for summary judgment seeking a determination that it owed no legal defense obligations, and seeking reimbursement of the full amount paid for defense costs and fees and a declaration that it owed no further costs and fees. The trial court denied Scottsdale's motion for summary judgment and ruled that it had a duty to defend. The court observed that Laidlaw "alleged a broader audience than simply" the two cities noted in the complaint where MV sought business (i.e., Lawrence, Kansas, and Indianapolis, Indiana), and concluded that "[b]roadly construed, the . . . [c]omplaint alleged misappropriation of Laidlaw's `advertising ideas,' for which there is at the very least the potential of coverage, and therefore Scottsdale's duty to defend is established as a matter of law."[[1]]
*152 Recognizing that the trial court's ruling on the motion for summary judgment disposed of the entire case, the parties stipulated to a final judgment against Scottsdale. In April 2001, the superior court entered a stipulated judgment.
Scottsdale appealed, urging that "advertising," as used in standard CGL policies covering advertising injury, was limited to "widespread promotional activities directed to the public at large." (Bank of the West v. Superior Court (1992) 2 Cal. 4th 1254, 1276, fn. 9, 10 Cal. Rptr. 2d 538, 833 P.2d 545 (Bank of the West).) Hence, Scottsdale argued, "advertising" did not include one-on-one solicitation of individual customers through a competitive bidding process for tailor-made services. In a 2002 opinion, the Court of Appeal disagreed. It concluded that advertising could include MV's "one-on-one business solicitations that used a common style and promotional information disseminated to more than one customer." The Court of Appeal thus found a potential for coverage giving rise to Scottsdale's duty to defend. It affirmed the judgment against Scottsdale.
We granted Scottsdale's petition for review and held the case for Hameid v. National Fire Ins. of Hartford (2003) 31 Cal. 4th 16, 1 Cal. Rptr. 3d 401, 71 P.3d 761 (Hameid), then pending. In Hameid we adopted the language of Bank of the West, supra, 2 Cal.4th at page 1276, footnote 9, 10 Cal. Rptr. 2d 538, 833 P.2d 545, quoted above, and interpreted "advertising," as used in a standard CGL policy covering liability for "advertising injury," to mean "widespread promotional activities usually directed to the public at large." (Hameid, supra, 31 Cal. 4th 16, 24, 1 Cal. Rptr. 3d 401, 71 P.3d 761.) We held that use of a competing hair salon's customer list to identify the competitor's clients, and to solicit them through mailers and telephone calls, did not constitute "advertising" under such a policy. Accordingly, we concluded that the insurer had no duty under its "advertising injury" clause to defend the competitor's suit seeking damages for harm caused by such activities. We noted we had no "occasion to decide whether widespread promotional activities directed at specific market segments constitute advertising under the [standard] CGL policy." (Id., at p. 24, fn. 3, 1 Cal. Rptr. 3d 401, 71 P.3d 761, italics added.)
We transferred this case to the Court of Appeal for reconsideration in light of Hameid. Upon reconsideration, the Court of Appeal concluded, contrary to its prior determination, that neither CGL policy issued by Scottsdale to MV afforded potential "advertising injury" coverage for MV's improper use of Laidlaw's trade secrets to prepare tailored competitive bids for specific urban transportation contracts, as alleged in the Laidlaw complaint.
As to the first CGL policy, which used "advertising injury" language substantially identical to that construed in Hameid, supra, 31 Cal. 4th 16, 1 Cal. Rptr. 3d 401, 71 P.3d 761, the Court of Appeal directly applied Hameid to conclude that the policy did not cover solicitations of individual customers. As to the second CGL policy, which defined "advertising" as "a notice . . . broadcast or published to the general public or specific market segments about [the insured's] goods, products or services for the purpose of attracting customers or supporters" (italics added), the Court of Appeal reasoned that the Laidlaw complaint did not allege information was "broadcast or published" as the policy required.
Though it concluded that neither Scottsdale policy ever afforded potential coverage of the Laidlaw suit, and that "MV should not have tendered to Scottsdale its defense in the [Laidlaw] action" (italics added), the Court of Appeal nonetheless *153 ruled that Scottsdale could not recover fees and costs previously advanced toward MV's defense. The Court of Appeal reasoned that Scottsdale's defense duty arose and continued until "extinguished" by a judicial determination that no potential for coverage existed. In the Court of Appeal's view, Scottsdale's reimbursement claim was an unavailing attempt to terminate its defense duty "retroactively."
To limit its defense obligation, the Court of Appeal asserted, Scottsdale could have (1) denied MV a defense, thus risking a bad faith suit by MV, or (2) obtained a prompt declaration of its rights and duties while the Laidlaw action was still pending. Having failed to do either, the Court of Appeal held, Scottsdale could not recover defense costs already advanced.
We granted Scottsdale's petition for review. We now agree with Scottsdale that the Court of Appeal erred in its analysis of the reimbursement issue. The Court of Appeal ruled, as a matter of law, that Scottsdale never had a duty to defend MV in the Laidlaw action. Accordingly, Scottsdale is entitled to reimbursement of the costs and expenses it advanced, under a reservation of rights, toward the defense of that action on behalf of MV. To the extent the Court of Appeal denied such reimbursement, we will therefore reverse its judgment.[2]
DISCUSSION
1. General principles.
We summarize familiar principles pertaining to an insurer's duty of defense. An insurer must defend its insured against claims that create a potential for indemnity under the policy. (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal. 4th 287, 295, 24 Cal. Rptr. 2d 467, 861 P.2d 1153 (Montrose); Gray v. Zurich Insurance Co. (1966) 65 Cal. 2d 263, 275, 54 Cal. Rptr. 104, 419 P.2d 168 (Gray).) The duty to defend is broader than the duty to indemnify, and it may apply even in an action where no damages are ultimately awarded. (Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal. 4th 1076, 1081, 17 Cal. Rptr. 2d 210, 846 P.2d 792.)
Determination of the duty to defend depends, in the first instance, on a comparison between the allegations of the complaint and the terms of the policy. (Montrose, supra, 6 Cal. 4th 287, 295, 24 Cal. Rptr. 2d 467, 861 P.2d 1153.) But the duty also exists where extrinsic facts known to the insurer suggest that the claim may be covered. (Ibid.) Moreover, that the precise causes of action pled by the third-party complaint may fall outside policy coverage does not excuse the duty to defend where, under the facts alleged, *154 reasonably inferable, or otherwise known, the complaint could fairly be amended to state a covered liability. (Gray, supra, 65 Cal. 2d 263, 275-276, 54 Cal. Rptr. 104, 419 P.2d 168; CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal. App. 3d 598, 610-611, 222 Cal. Rptr. 276.)
The defense duty arises upon tender of a potentially covered claim and lasts until the underlying lawsuit is concluded, or until it has been shown that there is no potential for coverage. (Montrose, supra, 6 Cal. 4th 287, 295, 24 Cal. Rptr. 2d 467, 861 P.2d 1153.) When the duty, having arisen, is extinguished by a showing that no claim can in fact be covered, "it is extinguished only prospectively and not retroactively." (Buss v. Superior Court (1997) 16 Cal. 4th 35, 46, 65 Cal. Rptr. 2d 366, 939 P.2d 766 (Buss); see also Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal. 4th 38, 58, 70 Cal. Rptr. 2d 118, 948 P.2d 909 (Aerojet-General).)
On the other hand, "in an action wherein none of the claims is even potentially covered because it does not even possibly embrace any triggering harm of the specified sort within the policy period caused by an included occurrence, the insurer does not have a duty to defend. [Citation.] `This freedom is implied in the policy's language. It rests on the fact that the insurer has not been paid premiums by the insured for [such] a defense. . . . [T]he duty to defend is contractual. "The insurer has not contracted to pay defense costs" for claims that are not even potentially covered.' [Citation.]" (Aerojet-General, supra, 17 Cal. 4th 38, 59, 70 Cal. Rptr. 2d 118, 948 P.2d 909, quoting Buss, supra, 16 Cal. 4th 35, 47, 65 Cal. Rptr. 2d 366, 939 P.2d 766.)
From these premises, the following may be stated: If any facts stated or fairly inferable in the complaint, or otherwise known or discovered by the insurer, suggest a claim potentially covered by the policy, the insurer's duty to defend arises and is not extinguished until the insurer negates all facts suggesting potential coverage. On the other hand, if, as a matter of law, neither the complaint nor the known extrinsic facts indicate any basis for potential coverage, the duty to defend does not arise in the first instance.
2. Scottsdale's right to reimbursement.
Scottsdale advanced fees and costs to defend MV against the Laidlaw suit, but did so under a reservation of rights. By a letter dated March 15, 2000, counsel for Scottsdale informed MV's general counsel that, although Scottsdale did not believe Laidlaw's claims fell within the scope of its policies' "advertising injury" provisions, Scottsdale would provide a defense subject to various reservations of rights. These included "[t]he right to seek a declaration of [Scottsdale's] rights and duties under its [p]olicies regarding its defense and/or indemnity obligations," and "[t]he right to seek reimbursement of defense fees paid toward defending causes of action which raise no potential for coverage, as authorized . . . in Buss [, supra,] 16 Cal. 4th 35, 65 [65 Cal. Rptr. 2d 366, 939 P.2d 766]. . . ." Scottsdale thus served notice that it might seek to recover defense fees and costs already expended if it were later determined that Scottsdale had owed MV no defense.
As we explained in Buss, supra, 16 Cal. 4th 35, 65 Cal. Rptr. 2d 366, 939 P.2d 766, the insurer may unilaterally condition its proffer of a defense upon its reservation of a right later to seek reimbursement of costs advanced to defend claims that are not, and never were, potentially covered by the relevant policy. Such an announcement *155 by the insurer permits the insured to decide whether to accept the insurer's terms for providing a defense, or instead to assume and control its own defense. (Id., at p. 61, fn. 27, 65 Cal. Rptr. 2d 366, 939 P.2d 766.)[3]
Despite its conclusion that the Scottsdale policies never afforded any potential coverage of the Laidlaw claims, and despite Scottsdale's explicit reservation of its reimbursement rights, the Court of Appeal held that Scottsdale may not recover the costs it advanced to defend MV in the Laidlaw action. The Court of Appeal based this ruling on the premise that a judicial "no duty" determination "extinguishes" the duty to defend "only prospectively and not retroactively." (Buss, supra, 16 Cal. 4th 35, 46, 65 Cal. Rptr. 2d 366, 939 P.2d 766; see Aerojet-General, supra, 17 Cal. 4th 38, 58, 70 Cal. Rptr. 2d 118, 948 P.2d 909.) Thus, the Court of Appeal reasoned, if the insurer wishes to limit its liability for defense costs, it either must adopt the "risky strategy" of refusing a defense outright, thus exposing itself to a bad faith suit by the insured, or must seek, during the pendency of the third party action, to terminate its defense duty from that time forward by proving no potential for coverage.
MV and its amicus curiae advance the same premise here.[4] They urge as follows: In a CGL policy, the insured purchases a guarantee that the insurer will absorb all costs of defending the insured against a third party action that includes one or more potentially covered claims, and that it will continue to do so until the third party action is concluded or the insurer can establish that no claim is even potentially covered. Under this bargain, the insurer bears the entire risk of its incorrect decision to provide or withhold a defense. Thus, if the insurer wrongly concludes that no duty to defend has arisen, and therefore declines the insured's tender of defense, the insured may recover its damages in contract and tort. On the other hand, if the insurer seeks to avoid that pitfall by assuming the costs of the insured's defense, those costs cannot be shifted back to the insured, even if the insurer reserved its rights and a court later determines, as a matter of law, that there was never any potential coverage.
We disagree with this analysis. We are persuaded that an insurer, having reserved its right to do so, may obtain reimbursement of defense costs which, in hindsight, it never owed.
Buss, supra, 16 Cal. 4th 35, 65 Cal. Rptr. 2d 366, 939 P.2d 766, succinctly explained the scope of the contractual right to a defense that the insured purchases with its premiums. "[T]he insurer's duty to defend runs to claims that are . . . potentially covered, in light of facts alleged or otherwise disclosed. [Citations.]" (Id., at p. 46, 65 Cal. Rptr. 2d 366, 939 P.2d 766, italics added.) This duty, having arisen, "is discharged when the action is concluded. [Citation.] It may be extinguished earlier, if it is shown that no claim can in *156 fact be covered. [Citation.] If it is so extinguished, however, it is extinguished only prospectively and not retroactively: before, the insurer had a duty to defend; after, it does not have a duty to defend further. [Citations.]" (Ibid., italics added.)
Thus, the insurer's duty to defend arises whenever the third party complaint and/or the available extrinsic facts suggest, under applicable law, the possibility of covered claims. In such circumstances, if the insured tenders defense of the third party action, the insurer must assume it. The duty to defend then continues until the third party litigation ends, unless the insurer sooner proves, by facts subsequently developed, that the potential for coverage which previously appeared cannot possibly materialize, or no longer exists. The insurer must absorb all costs it expended on behalf of its insured while the duty to defend was in effecti.e., before the insurer established that the duty had ended. (Montrose, supra, 6 Cal. 4th 287, 295-304, 24 Cal. Rptr. 2d 467, 861 P.2d 1153; see also, e.g., Haskel, Inc. v. Superior Court (1995) 33 Cal. App. 4th 963, 977, 39 Cal. Rptr. 2d 520 (Haskel); Hartford Accident & Indemnity Co. v. Superior Court (1994) 23 Cal. App. 4th 1774, 1780-1781, 29 Cal. Rptr. 2d 32.)
However, we have made clear that where the third-party suit never presented any potential for policy coverage, the duty to defend does not arise in the first instance, and the insurer may properly deny a defense. Moreover, the law governing the insurer's duty to defend need not be settled at the time the insurer makes its decision. As several courts have explained, subsequent case law can establish, in hindsight, that no duty to defend ever existed. "If the terms of the policy provide no potential for coverage, . . . the insurer acts properly in denying a defense even if that duty is later evaluated under case law that did not exist at the time of the defense tender. [Citations.]" (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal. 4th 1, 26, 44 Cal. Rptr. 2d 370, 900 P.2d 619, italics added; see also Hameid, supra, 31 Cal. 4th 16, 20-21, 30, 1 Cal. Rptr. 3d 401, 71 P.3d 761; McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal. App. 4th 1132, 1151, 29 Cal. Rptr. 2d 559 [duty to defend did not arise in first instance where only potential for liability turned on legal question later resolved in insured's favor]; State Farm Mut. Auto. Ins. Co. v. Longden (1987) 197 Cal. App. 3d 226, 233, 242 Cal. Rptr. 726 [same].)
These principles are equally true where, as here, the insurer does not deny a defense at the outset, but instead elects to provide one under a reservation of its right to reimbursement. By law applied in hindsight, courts can determine that no potential for coverage, and thus no duty to defend, ever existed. If that conclusion is reached, the insurer, having reserved its right, may recover from its insured the costs it expended to provide a defense which, under its contract of insurance, it was never obliged to furnish.
In Buss, supra, 16 Cal. 4th 35, 65 Cal. Rptr. 2d 366, 939 P.2d 766, we confirmed an insurer's entitlement, under a reservation of rights, to recoup its costs of defending against third party claims that are not potentially covered. Buss addressed an insurer's rights and obligations with respect to a "mixed" third party action, in which potential coverage appears as to some claims, but not as to others. In such circumstances, Buss noted, the insurer must defend the entire "mixed" action. (Id., at pp. 48-49, 65 Cal. Rptr. 2d 366, 939 P.2d 766.) This is so, Buss explained, because the contractual duty to defend the potentially covered claims immediately and meaningfully implies the prophylactic duty *157 to defend "entirely," without pausing to parse among potentially covered and clearly uncovered claims. (Id., at p. 49, 65 Cal. Rptr. 2d 366, 939 P.2d 766.) Nonetheless, we held that the insurer, having reserved its rights, may recover its costs of defense attributable to the claims for which there was no potential coverage. (Id., at pp. 50-53, 65 Cal. Rptr. 2d 366, 939 P.2d 766.)
The Court of Appeal, echoed here by MV and its amicus curiae, reasoned that Buss's reimbursement analysis applies only to "mixed" actions, where the insurer must defend even clearly uncovered claims and has no option to deny a defense at the outset, or to minimize its liability by seeking a prompt judicial declaration that it has no duty to defend. We are not persuaded. Though Buss itself involved a "mixed" action, Buss's analysis of the reim bursement issue applies equally where the insurer, acting under a reservation of rights, defended an action in which, as it turns out, no claim was ever potentially covered.
As Buss explained, the duty to defend, and the extent of that duty, are rooted in basic contract principles. The insured pays for, and can reasonably expect, a defense against third party claims that are potentially covered by its policy, but no more. Conversely, the insurer does not bargain to assume the cost of defense of claims that are not even potentially covered. To shift these costs to the insured does not upset the contractual arrangement between the parties. Thus, where the insurer, acting under a reservation of rights, has prophylactically financed the defense of claims as to which it owed no duty of defense, it is entitled to restitution. Otherwise, the insured, who did not bargain for a defense of noncovered claims, would receive a windfall and would be unjustly enriched. (Buss, supra, 16 Cal. 4th 35, 47-52, 65 Cal. Rptr. 2d 366, 939 P.2d 766.)
Buss itself made clear that this analysis does not apply only when the insurer was forced, in a "mixed" action, to defend noncovered claims along with those that were potentially covered. On the contrary, Buss indicated it was simply extending well-settled law to "mixed" actions.
Thus, Buss declared: "As to . . . claims that are not even potentially covered, . . . the insurer may . . . seek reimbursement for defense costs. Apparently, all the decisional law considering such claims in and of themselves so assumes. (See, e.g., Hogan v. Midland National Ins. Co. [(1970)] 3 Cal.3d [553,] 563-564 [91 Cal. Rptr. 153, 476 P.2d 825]; American Motorists Ins. Co. v. Allied-Sysco Food Services, Inc. [(1993)] 19 Cal.App.4th [1342,] 1355-1356 [24 Cal. Rptr. 2d 106]; Reliance Ins. Co. v. Alan [(1990)] 222 Cal.App.3d [702,] 708-710 [272 Cal. Rptr. 65]; Insurance Co. of the West v. Haralambos Beverage Co. [(1987)] 195 Cal.App.3d [1308,] 1322-1323 [241 Cal. Rptr. 427]; Travelers Ins. Co. v. Lesher [(1986)] 187 Cal.App.3d [169,] 203 [231 Cal. Rptr. 791]; Western Employers Ins. Co. v. Arciero & Sons, Inc. (1983) 146 Cal. App. 3d 1027, 1028-1029, 1032 [194 Cal. Rptr. 688]; Walbrook Ins. Co. Ltd. v. Goshgarian & Goshgarian (C.D.Cal.1989) 726 F. Supp. 777, 781-784 [applying California law]; Omaha Indem. Ins. Co. v. Cardon Oil Co. (N.D.Cal.1988) 687 F. Supp. 502, 504-505; affd. (9th Cir.1990) 902 F.2d 40, 1990 WL 55904 [same]; accord, Ins. Co. North America v. Forty-Eight Insulations [(6th Cir.1980)] 633 F.2d [1212,] 1224-1225 [applying Illinois and New Jersey law, but speaking generally].) So it has been held: `California law clearly allows insurers to be reimbursed for attorney's fees' and other expenses `paid in defending insureds against claims for which there was no obligation to defend.' *158 (Omaha Indem. Ins. Co. v. Cardon Oil Co., supra, 687 F.Supp. at p. 504.)" (Buss, supra, 16 Cal. 4th 35, 50-51, 65 Cal. Rptr. 2d 366, 939 P.2d 766, italics added; accord, Truck Ins. Exchange v. Superior Court (1996) 51 Cal. App. 4th 985, 994, 59 Cal. Rptr. 2d 529 [if insurer defends under reservation of right to seek reimbursement of defense and indemnity costs, it may "seek reimbursement for payments expended if noncoverage is ultimately proven"]; Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal. App. 4th 461, 474, 52 Cal. Rptr. 2d 678 [law permits insurer to condition acceptance of defense on later right to contest coverage or seek reimbursement of defense costs].)
As Buss further noted, "[n]ot only is it good law that the insurer may seek reimbursement for defense costs as to the claims that are not even potentially covered, but it also makes good sense. Without a right of reimbursement, an insurer might be tempted to refuse to defend an action in any partespecially an action with many claims that are not even potentially covered and only a few that arelest the insurer give, and the insured get, more than they agreed. With such a right, the insurer would not be so tempted, knowing that, if defense of the claims that are not even potentially covered should necessitate any additional costs, it would be able to seek reimbursement." (Buss, supra, 16 Cal. 4th 35, 52-53, 65 Cal. Rptr. 2d 366, 939 P.2d 766.)
Though these comments were made in the context of "mixed" actions, they apply equally here. An insurer facing unsettled law concerning its policies' potential coverage of the third party's claims should not be forced either to deny a defense outright, and risk a bad faith suit by the insured, or to provide a defense where it owes none without any recourse against the insured for costs thus expended. The insurer should be free, in an abundance of caution, to afford the insured a defense under a reservation of rights, with the understanding that reimbursement is available if it is later established, as a matter of law, that no duty to defend ever arose.[5]
In Tamrac, Inc. v. California Ins. Guarantee Assn. (1998) 63 Cal. App. 4th 751, 74 Cal. Rptr. 2d 338 (Tamrac), a post-Buss decision, the Court of Appeal confirmed that if the insurer is legally uncertain whether any claims in the third party complaint are potentially covered, it may defend the third party action to conclusion under a reservation of its right to reimbursement, *159 and may then recoup all its defense costs if an intervening decision has established, as a matter of law, that the potential for coverage, and thus the duty to defend, never arose. (Id., at pp. 757-758, 74 Cal. Rptr. 2d 338.)
Tamrac expressly rejected the insured's argument, similar to that made by MV here, that a determination of noncoverage operates prospectively only. The insured, said Tamrac, "misplaces reliance on cases where there was factually a potential for coverage which imposed the duty to defend, and the insurer subsequently developed facts showing there was no duty in the particular circumstances. In those situations the insurer's duty to defend ceases prospectively from the subsequent determination but not retroactively to the beginning. [Citations.] Here, . . . as a matter of law there was never a potential for coverage." (Tamrac, supra, 63 Cal. App. 4th 751, 758, 74 Cal. Rptr. 2d 338.) We find this analysis persuasive.[6]
The instant Court of Appeal suggested that an insurer uncertain of its defense obligations might initially assume the defense, then seek to "stop the bleeding" by obtaining a prompt, though prospective, "extinguishment" of its duty to defend. But where, as here, there was never a duty to defend, this limited remedy provides the insured more, and the insurer less, than the parties' bargain contemplated. Moreover, as Scottsdale and its amici curiae point out, it also forces the insurer to commence litigation of defense and coverage issues, and to press for early resolution of those issues, while the third party litigation is still pending. However, this is a tactic which, in many cases, the insurer is not allowed to pursue, and in general should be discouraged for policy reasons.
"When an insured calls upon a liability insurer to defend a third party action, the insurer as a general rule may not escape the burden of defense by obtaining a declaratory judgment that it has no duty to defend. Were the rule otherwise, the insured would be forced to defend simultaneously against both the insurer's declaratory relief action and the third party's liability action. Because the duty to defend turns on the potential for coverage, and because coverage frequently turns on factual issues to be litigated in the third party liability action, litigating the duty to defend in the declaratory relief action may prejudice the insured in the liability action. To prevent this form of prejudice, the insurer's action for declaratory relief may be either stayed [citation] or dismissed [citation]." (Montrose, supra, 6 Cal. 4th 287, 305, 24 Cal. Rptr. 2d 467, 861 P.2d 1153 (conc. opn. of Kennard, J.); see also, e.g., David Kleis, Inc. v. Superior Court (1995) 37 Cal. App. 4th 1035, 1044-1045, 44 Cal. Rptr. 2d 181; Haskel, supra, 33 Cal. App. 4th 963, 979 & fn. 15, 39 Cal. Rptr. 2d 520.)
Indeed, "[i]t is only where there is no potential conflict between the trial of the coverage dispute and the underlying action that an insurer can obtain an early trial date and resolution of its claim that coverage does not exist. [Citation.]" (Haskel, supra, 33 Cal. App. 4th 963, 979, 39 *160 Cal.Rptr.2d 520; see Montrose Chemical Corp. v. Superior Court (Canadian Universal Ins. Co.) (1994) 25 Cal. App. 4th 902, 910, 31 Cal. Rptr. 2d 38.)
The Court of Appeal's analysis contravenes these sound rules and policies. Unlike the Court of Appeal, we decline to require an insurer uncertain about the law relevant to its coverage and defense obligations to engage its insured in a futile "two-front war." (Montrose Chemical Corp. v. Superior Court (Canadian Universal Ins. Co.), supra, 25 Cal. App. 4th 902, 910, 31 Cal. Rptr. 2d 38.)
MV urges that, by limiting its reservation of reimbursement rights to those "authorized . . . in Buss," supra, 16 Cal. 4th 35, 65 Cal. Rptr. 2d 366, 939 P.2d 766, Scottsdale did not clearly signal its intent to seek reimbursement outside the context of a "mixed" action. We disagree. As we have seen, Buss simply applied to "mixed" actions the general premise that an insurer may obtain reimbursement for defending claims or suits as to which it never owed a duty of defense. The language of Scottsdale's reservation of rights was amply sufficient to preserve its reimbursement rights here.
Accordingly, we conclude that an insurer under a standard CGL policy, having properly reserved its rights, may advance sums to defend its insured against a third-party lawsuit, and may thereafter recoup such costs from the insured if it is determined, as a matter of law, that no duty to defend ever arose because the third party suit never suggested the possibility of a covered claim. Such is the case here. It follows that, insofar as the Court of Appeal denied Scottsdale's right to reimbursement, its judgment should be reversed.
CONCLUSION
Insofar as the Court of Appeal concluded that Scottsdale may not pursue an action for reimbursement of defense costs advanced under a reservation of rights, its judgment is reversed. The judgment of the Court of Appeal is otherwise affirmed.
WE CONCUR: GEORGE, C.J., and KENNARD, WERDEGAR, CHIN, MORENO, JJ.
NOTES
[1] Here ends our quotation from the Court of Appeal opinion.
[2] In its answer brief on the merits, MV has argued at length that, contrary to the Court of Appeal's conclusion, the allegations of the Laidlaw complaint suggested a potential for coverage and Scottsdale thus did have a duty to defend. We find, however, that MV has failed to preserve this issue for our consideration. Only Scottsdale sought review in this court. MV neither filed a petition for review nor asserted in its answer to Scottsdale's petition that, if we granted review on the reimbursement issue raised by Scottsdale, we should also address the duty-to-defend issue. (See Cal. Rules of Court, rule 28.1(c).) MV's answer did briefly argue that the issue of potential coverage was not purely one of law, but did so only to demonstrate that the Court of Appeal's unpublished decision had properly found no right of reimbursement and thus did not warrant review. Under these circumstances, we conclude that such issues were not "raised or fairly included in the petition or answer" (id., rule 29(b)(1)) and were not properly raised in MV's brief on the merits (id., rule 29.1(b)(3)). We therefore decline to address them. For purposes of this opinion, we accept the Court of Appeal's determination that, as a matter of law, the policies issued by Scottsdale to MV never afforded potential coverage of the Laidlaw action.
[3] Of course, as MV's amicus curiae, Montrose Chemical Corporation of California, points out, an insurer cannot unilaterally "reserve" "rights" it never had under the relevant insurance policy. (Buss, supra, 16 Cal. 4th 35, 50, & fn. 12, 65 Cal. Rptr. 2d 366, 939 P.2d 766.) Thus, the insurer cannot use a unilateral reservation of rights to create a "right" of reimbursement of costs extended to defend claims that were potentially covered by the policy.
[4] As noted above, Montrose Chemical Corporation of California has filed an amicus curiae brief in support of MV. Amicus curiae briefs in support of Scottsdale have been filed by (1) the Complex Insurance Claims Litigation Association, (2) Truck Insurance Exchange, Farmers Insurance Exchange, and Fire Insurance Exchange, and (3) Great American Insurance Company and London Market Insurers.
[5] MV urges that, like Buss, supra, 16 Cal. 4th 35, 65 Cal. Rptr. 2d 366, 939 P.2d 766, our recent decision in Blue Ridge Ins. Co. v. Jacobsen (2001) 25 Cal. 4th 489, 106 Cal. Rptr. 2d 535, 22 P.3d 313 involved an element of "compulsion" not present here. But MV's attempt to distinguish Blue Ridge is unavailing. There we held that, having reserved its right to dispute coverage, an insurer may settle a third party action within policy limits, even over the insured's objection, then obtain reimbursement of its settlement payments from the insured upon a later determination that the underlying claims were not covered. We explained that because an insurer risks unlimited exposure to bad faith liability if it declines a reasonable offer within policy limits on grounds that there is no coverage (see Johansen v. California State Auto. Assn. Inter-Ins. Bureau (1975) 15 Cal. 3d 9, 123 Cal. Rptr. 288, 538 P.2d 744), an insured's refusal
to authorize the settlement unless the insurer agreed to forgo reimbursement would place the insurer in a Catch-22 and force it to indemnify uncovered claims, contrary to its contractual obligations. (Blue Ridge, supra, at pp. 502-503, 106 Cal. Rptr. 2d 535, 22 P.3d 313.) Similarly, by requiring an insurer to risk bad faith liability if it declines a defense because of its belief that the third party claims are not potentially covered, or to forgo reimbursement if it elects to provide one, we would place the insurer in a Catch-22 and force it to furnish a defense, at its own expense, where none was ever owed under the policy.
[6] MV points out that in Tamrac, supra, 63 Cal. App. 4th 751, 74 Cal. Rptr. 2d 338, the California Insurance Guarantee Association (CIGA), acting in place of the subject policy's insolvent issuer, did not actually advance costs, then seek reimbursement; instead, after initially agreeing to fund a defense, CIGA failed to pay when billed by the insured, thus prompting the insured to sue for the unpaid amounts. However, the Court of Appeal concluded that "this case should be analyzed under CIGA's reservation of a right to seek reimbursement, because it would be idle to require CIGA to pay Tamrac if CIGA has a right to reimbursement from Tamrac. [Citation.]" (Id., at p. 759, 74 Cal. Rptr. 2d 338.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2227965/ | 904 N.E.2d 1241 (2005)
359 Ill. App.3d 1197
RUDMAN
v.
BECKER.
No. 1-04-3329.
Appellate Court of Illinois, First District
August 31, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2275640/ | 177 Cal. App. 4th 1108 (2009)
RICHARD ALLEN LEE, Petitioner,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
THE PEOPLE, Real Party in Interest. [And four other cases.[*]]
No. G041511.
Court of Appeals of California, Fourth District, Division Three.
September 21, 2009.
*1111 Deborah A. Kwast, Public Defender, Thomas Havlena and Jean Wilkinson, Chief Deputy Public Defenders, Kevin J. Phillips and Denise Gragg, Assistant Public Defenders, and Robert F. Kohler, Deputy Public Defender, for Petitioners, Richard Allen Lee, John Patrick Semeneck, Ross William Rabuck, Jr., Robert Eldred Morehead, and William Sabatasso.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Real Party in Interest.
*1112 OPINION
FYBEL, J.
INTRODUCTION
The Orange County District Attorney's Office (the district attorney) initiated separate proceedings against Richard Allen Lee, John Patrick Semeneck, Ross William Rabuck, Jr., Robert Eldred Morehead, and William Sabatasso (collectively, defendants) by filing a petition against each defendant seeking his civil commitment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) (SVPA). (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.) The trial court denied defendants' respective (and essentially identical) motions to quash subpoenas duces tecum issued by the district attorney to Coalinga State Hospital (CSH), the California Men's Colony, and the "Health Records Center." The subpoenas sought a wide range of information including medical and psychological records, trust account information, and visitor logs.
Each defendant filed a petition for writ of prohibition/mandate in this court, arguing the trial court (1) exceeded its jurisdiction in ordering compliance with the subpoenas because they "lack[ed] affidavits showing specific facts justifying discovery as required by Code of Civil Procedure, section 1985"; (2) erred by ordering CSH to comply with future subpoenas duces tecum; (3) exceeded its jurisdiction by relieving CSH's medical staff of confidentiality obligations under the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.) (HIPAA); and (4) erred by denying defendants' requests to review in camera documents produced pursuant to the subpoenas for privilege, prior to disclosure to the district attorney. We consolidated all five of defendants' petitions.
We grant defendants' petitions. Code of Civil Procedure section 1985, subdivision (b) requires that a subpoena duces tecum be served with an affidavit "setting forth in full detail the materiality" of the items sought by the subpoena. In McClatchy Newspapers v. Superior Court (1945) 26 Cal. 2d 386, 396 [159 P.2d 944], the California Supreme Court expressed the now decades-old legal principle that such an affidavit cannot consist of reliance "merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material."
(1) The subpoenas duces tecum are ineffective because each failed to include a declaration containing a sufficient statement of materiality as required by Code of Civil Procedure section 1985, subdivision (b). Thus, the *1113 trial court erred by ordering CSH to comply with the issued subpoenas and with unspecified "future subpoena[s]" containing similar subject matters, and we will order the issuance of writs of mandate vacating those orders. We therefore do not need to decide whether the trial court erred by denying defendants' motions seeking to review subpoenaed documents in camera for privilege before their disclosure to the district attorney.
The district attorney "may obtain access to otherwise confidential treatment information" concerning an alleged SVP to the extent any such information is contained in an updated mental evaluation conducted under section 6603, subdivision (c). (Albertson v. Superior Court (2001) 25 Cal. 4th 796, 807 [107 Cal. Rptr. 2d 381, 23 P.3d 611] (Albertson).) Hence, the district attorney was entitled to a court order releasing CSH's medical staff from obligations under HIPAA to maintain the confidentiality of defendants' medical and psychological records as provided under section 6603, subdivision (c). Because the court's orders releasing CSH's medical staff from their confidentiality obligations under HIPAA are too broad, we order the issuance of writs of mandate vacating the trial court's orders pertaining to HIPAA and remand these matters to the trial court with directions to issue a tailored order in each case in accordance with section 6603, subdivision (c).
BACKGROUND
I.
PETITIONS FOR RECOMMITMENT AGAINST DEFENDANTS
In July 2005, the district attorney filed a petition against Lee for recommitment as an SVP. In July 2007, the district attorney filed a fourth petition against Lee for recommitment as an SVP. The petition alleged Lee was "presently an inmate at Coalinga State Hospital" and "his current commitment expires 8/26/07."
In February 2003, the district attorney filed a petition to extend commitment as an SVP against Semeneck. The petition alleged he was "an SVP committee at Atascadero State Hospital" with a commitment release date of March 22, 2003.
In October 2004, the district attorney filed a petition against Rabuck for recommitment as an SVP, which alleged he was "presently an SVP committee at Atascadero State Hospital" and had a commitment expiration date of October 30, 2004.
*1114 In January 2005, the district attorney filed a petition against Morehead for commitment as an SVP, and alleged he was, at the time of filing, an inmate of California's Department of Corrections and Rehabilitation with a parole date of February 14, 2005.
In March 2007, the district attorney filed a petition against Sabatasso for commitment as an SVP, and alleged he was "presently an inmate at the California Men's Colony (CMC) East in San Luis Obispo."
II.
THE DISTRICT ATTORNEY FILES NOTICES OF REQUEST FOR RELEASE OF MEDICAL RECORDS.
In each case, the district attorney filed a notice of request for release of medical records stating that it "will move the court for an order regarding medical/hospital/prison records" of defendant. In the supporting memorandum of points and authorities attached to each notice, the district attorney argued HIPAA impacted the district attorney's ability to obtain medical records for use in judicial proceedings. The district attorney further stated, "[t]he medical records are material and relevant because mental state is in direct issue in the pending proceeding. The prosecution is entitled to obtain those records because the public interest in protecting the health and safety of others outweighs the privacy interest of the patient in such records. [The patient's] medical records in the custody of the treater or facility named in the order will disclose material information regarding [the patient's] mental condition and are therefore of substantial value in the judicial proceedings. [The patient's] medical records ... are necessary in the adjudication of the underlying petition." In each case, the district attorney requested a protective order.
III.
THE DISTRICT ATTORNEY FILES MOTIONS FOR THE RELEASE OF RECORDS BY CSH.
Citing section 6603, subdivision (c), in each case, the district attorney filed a motion for the release of records in which it sought an order requiring CSH "to release all records in their possession including medical records relevant to the determination of [defendant]'s status as a sexually violent predator. Included[,] but not limited to ..., trust account records, visitation logs, package regarding [defendant]."
*1115 IV.
THE DISTRICT ATTORNEY FILES PROPOSED COURT ORDERS SEEKING ENFORCEMENT OF SUBPOENAS DUCES TECUM.
In each defendant's case, the district attorney also issued four subpoenas duces tecum seeking the production of documents related to defendant and prepared proposed orders directing compliance with those subpoenas. We next describe each of those four subpoenas.
A.
Subpoenas Directed to CSH Seeking Defendants' Medical Records
The district attorney issued civil subpoenas duces tecum directed to CSH, seeking the production of "[a]ny and all records relating to the treatment, diagnosis and evaluation" of each defendant, "including but not limited to any medical reports, evaluations, diagnosis, surgery, recovery, court reports, forensic reports, 90-day treatment plans, psychological reports, any and all notes, including but not limited to progress notes, psychiatric reports, social history reports, interdisciplinary records and notes, psychiatric technician notes, admission reports, discharge reports, written relapse prevention plan, and all psychological testing performed by or for your facility with contact information for the person(s) who conducted the testing."
The subpoenas were supported by declarations signed by the district attorney, which stated the requested documents were material to the issues involved in the cases and good cause existed for the production of the requested documents in order "[t]o assist in fair and effective presentation at trial of this matter."
B.
Subpoenas Directed to CSH Seeking Nonmedical Information Regarding Defendants, Including Trust Account Information and Visitor Logs
The district attorney issued a second civil subpoena duces tecum to CSH in each case, seeking production of "[v]isitor logs; activity logs; physical therapy session logs; patient arrival and departure logs; disciplinary records; mail arrival and departure logs; patient property requests; incoming patient property inventories; Cancel Package Waiver Forms; computer printout *1116 record of all financial transactions with respect to [defendant]'s trust account; all deposit and withdrawal slips related to [defendant]'s trust account at Coalinga State Hospital."
The declaration in support of each subpoena stated: "Good cause exists for the production of the [requested] documents ... for the following reasons: [¶] To prove that [defendant] is a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code. The above documentation is needed to assess any statements made by [defendant] to CSH personnel that may reflect on his credibility, current mental status, diagnosis, and likelihood to recidivate sexually." The declaration further stated the requested documents were material to the issues involved in the case "[t]o prove that [defendant] is a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code. The above documentation is needed to assess any statements made by [defendant] to CSH personnel that may reflect on his credibility, current mental status, diagnosis, and likelihood to recidivate sexually."
C.
Subpoenas Directed to the California Men's Colony
The district attorney also issued civil subpoenas duces tecum to the California Men's Colony, through which the district attorney sought the production of records pertaining to each defendant "while in custody or on parole under the jurisdiction of the California Department of Corrections and all documents forwarded to the CDC pertaining to [defendant] during that time period which remain in its possession." Each subpoena further stated the requested documents included defendant's "`C' file, parole reports, chronological reports, disciplinary reports, legal reports, and BPH section."
Each subpoena stated: "Good cause exists for the production of the documents or other things described ... for the following reasons: [¶] To prove that [defendant] remains a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code." Each subpoena also stated: "These documents or other things described ... are material to the issues involved in this case for the following reasons: [¶] To prove that [defendant] remains a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code."
*1117 D.
Subpoenas Directed to the Custodian of Records of the Health Records Center in Sacramento
The district attorney issued civil subpoenas duces tecum to the custodian of records of the Health Records Center in Sacramento, which sought production of any and all medical records of each defendant "while in custody or on parole under the jurisdiction of the California Department of Corrections and all medical records forwarded to the CDC pertaining to [defendant] during that time period which remain in its possession." The subpoenas further stated the request included each defendant's "`M' File, parole outpatient clinic records, psychological reports, psychiatric reports, medications and housing."
The subpoenas were supported by declarations stating: "Good cause exists for the production of the documents or other things ... for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter" and "[t]hese documents or other things ... are material to the issues involved in this case for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter."
V.
DEFENDANTS MOVE TO QUASH CSH SUBPOENAS SEEKING NONMEDICAL RECORDS.
Each defendant filed a motion to quash the subpoenas directed to CSH demanding the production of nonmedical records, arguing the subpoenas were ineffective because they lacked specificity as to the materiality of the requested documents and as to the district attorney's good cause for requesting them. All but Semeneck's motion also argued the district attorney's request that the court issue an order relieving all CSH medical staff of their obligations under HIPAA was improper. Semeneck asserted this latter argument in his response to the district attorney's reply brief; the district attorney does not contend Semeneck has waived this argument by failing to assert it in his moving papers.
*1118 VI.
ORDERS
The trial court denied defendants' motions to quash the subpoenas, granted the district attorney's motion to relieve CSH medical staff from confidentiality obligations under HIPAA relating to defendants, and granted the district attorney's request to enter the requested orders seeking the subpoenaed information as follows.
A.
Orders Directed to CSH for Release of Medical Records
The trial court signed the following order in Lee's, Rabuck's, Morehead's, and Sabatasso's cases as to the CSH subpoenas seeking medical records: "[I]t is HEREBY ORDERED: [¶] A) that Coalinga State Hospital: [¶] 1) provide the documents identified in the Subpoena Duces Tecum attached as an exhibit to this order and incorporated herein by reference, by producing duplicate copies of all materials requested in the attached subpoena and providing them in the manner set forth therein by no later than the date set forth therein; [¶] 2) produce and provide all medical records of [defendant] requested in any future Subpoena Duces Tecum issued during the pendency of the current petition, and further, [¶] 3) permit doctors appointed by the Court to examine any and all medical records, charts, files, documents or notes related to the above named [defendant]. [¶] B) That all treating medical staff, physicians, and psychiatrists be released from any obligation under HIPAA and be allowed to speak to [the district attorney] regarding [defendant]. [¶] This is a continuing order and shall remain in effect until terminated by the Court. This order is issued in compliance with the provisions of HIPAA (45 CFR [§] 164.512(e)). Personal service of this Court Order is not required."
The court signed a substantively similar order in Semeneck's case, stating: "[I]t is HEREBY ORDERED: [¶] A) that Coalinga State Hospital: [¶] 1) provide the documents identified in the Subpoena Duces Tecum attached as an exhibit to this order and incorporated herein by reference, by producing duplicate copies of all materials requested in the attached subpoena and providing them in the manner set forth therein by no later than the date set forth therein; [¶] 2) produce and provide all medical records of [defendant] requested in any future Subpoena Duces Tecum issued during the pendency of the current petition, and further, [¶] 3) permit doctors appointed by the Court or either Counsel, to examine any and all medical records, charts, files, documents or notes related to [defendant]. [¶] B) That all treating medical staff, physicians, psychiatrists be released from any obligation under *1119 HIP[A]A and allowed to speak to [the district attorney] regarding [defendant]'s psychiatric, psychological, medical, testing, condition, evaluation, diagnosis, treatment and observations of the [aforementioned]. [¶] This is a continuing order and shall remain in effect until terminated by the Court. This order is issued in compliance with the provisions of HIP[A]A (45 CFR [§] 164.512(e)). Personal service of this Court Order is not required."
B.
Orders Directed to CSH for Release of Nonmedical Records
The trial court signed the district attorney's proposed order in each case, regarding the CSH subpoenas seeking nonmedical information, stating: "[I]t is HEREBY ORDERED that Coalinga State Hospital: [¶] 1) produce and provide visitor logs relating to [defendant] in any future Subpoena Duces Tecum issued during the pendency of the current petition, and further, [¶] 2) produce and provide all trust account printouts and logs relating to [defendant] in any future Subpoena Duces Tecum issued during the pendency of the current petition including deposit and withdraw[al] slips. [¶] 3) patient arrival and departure logs; phone [r]ecords; disciplinary records; mail arrival and departure logs; patient property requests; incoming patient property inventories and Cancel Package Waiver Forms. [¶] This is a continuing order and shall remain in effect until terminated by the Court. Personal service of this Court Order is not required."
C.
Orders Directed to the Department of Corrections and Rehabilitation
As to the subpoenas directed to the California Men's Colony and the Health Records Center, the trial court issued the following order to release records in each case: "TO: CUSTODIAN OF RECORDS, DEPARTMENT OF CORRECTIONS AND REHABILITATION: [¶] YOU ARE HEREBY ORDERED TO RELEASE to the Orange County District Attorney's Office any and all records of [defendant]. Said records to include but are not limited to the following: Any and all records generated pertaining to the inmate while in custody or on parole under the jurisdiction of the California Department of Corrections and all documents forwarded to the CDC pertaining to the inmate during those time periods which remain in its possession. This would include (but is not limited to) the following: the inmate's `M' File, Parole Outpatient Clinic Records, psychological reports, and psychiatric reports and medical records."
*1120 D.
Protective Orders
In each case, the trial court issued a protective order stating in part: "Any party receiving medical records in conjunction with the above entitled case is prohibited from using or disclosing the protected health information for any purpose other than litigation or proceedings relating to [defendant] for which such information was requested."
VII.
TRIAL COURT DENIES HEARING ON MOTIONS FOR IN CAMERA REVIEW OF SUBPOENAED DOCUMENTS.
Each defendant filed a motion requesting the opportunity to review in camera the documents produced in response to the court's orders to determine whether any such documents contained privileged information. The trial court denied defendants' motions and stayed the proceedings to enable defendants to file writ petitions.
VIII.
DEFENDANTS FILE PETITIONS FOR WRIT OF PROHIBITION/MANDATE AND REQUESTS FOR IMMEDIATE STAY OF PROCEEDINGS; PETITIONS ARE SUMMARILY DENIED BY THIS COURT.
In January 2009, defendants each filed a petition seeking a writ of prohibition/mandate and an order to immediately stay the proceedings, arguing the trial court (1) exceeded its jurisdiction in ordering compliance with the subpoenas duces tecum that lacked affidavits showing the materiality of the requested discovery and good cause for seeking it as required by Code of Civil Procedure section 1985; (2) erred by directing CSH to comply with future subpoenas duces tecum; (3) exceeded its jurisdiction by relieving CSH medical staff of HIPAA obligations relating to defendants; and (4) erred by denying defendants' requests for in camera inspection of subpoenaed documents to review for privileged and private information before disclosure to the district attorney.
This court summarily denied defendants' petitions and requests for an immediate stay.
*1121 IX.
CALIFORNIA SUPREME COURT GRANTS DEFENDANTS' PETITIONS FOR REVIEW.
In February 2009, defendants filed separate petitions for review. On February 25, the California Supreme Court issued an en banc order in each case, stating the following: "The petition for review is granted. [¶] The matter is transferred to the Court of Appeal, Fourth Appellate District, Division Three, with directions to vacate its order denying prohibition/mandate and to issue an alternative writ to be heard before that court when the proceedings are ordered on calendar. [¶] The Orange County Superior Court's order of disclosure, entered on October 7, 2008 and stayed until February 27, 2009 ... is hereby stayed pending further order of the Court of Appeal, insofar as the order authorizes the release of information, other than medical and psychological records specified in Welfare and Institutions Code section 6603, subdivision (c) and Albertson v. Superior Court[, supra,] 25 Cal. 4th 796, 805."
X.
THIS COURT ISSUES ALTERNATIVE WRITS.
On March 4, 2009, this court issued an alternative writ in each case, stating in relevant part:
"On February 25, 2009, the California Supreme Court transferred this matter to this Court with directions to vacate our order denying prohibition/mandate and to issue an alternative writ to be heard before this Court when the proceedings are ordered on calendar. The Supreme Court further stayed the superior court's order of disclosure entered October 7, 2008, pending further order of this Court.
"Accordingly, this Court's order of January 27, 2009, denying the petition for prohibition/mandate is VACATED.
"GOOD CAUSE APPEARING, let an alternative writ of prohibition/mandate issue directing respondent superior court to vacate and set aside its order of October 7, 2008, releasing any documents that have been received by the court in response to the court orders of October 7, 2008, in the SVPA commitment proceeding against petitioner, or to SHOW CAUSE before this court at a time and date to be announced why a writ of prohibition/mandate should not issue commanding same.
*1122 "Petitioners shall have an alternative writ of mandate issued and served no later than March 9, 2009.
"If the superior court chooses to comply with the alternative writ, it shall notify this court of that fact no later than March 19, 2009.
"If the superior court chooses not to comply with the alternative writ, real party in interest shall serve and file his return by April 1, 2009, and petitioners ... may file a traverse by April 16, 2009.
"... The stay issued by the Supreme Court remains in effect pending further order of this Court."
The trial court did not comply with the alternative writs, and the district attorney filed its returns. On our own motion, we consolidated all five cases. We heard oral argument on June 16, 2009.
DISCUSSION
I.
OVERVIEW OF THE SVPA
The SVPA provides for the involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be an SVP. (People v. Yartz (2005) 37 Cal. 4th 529, 534 [36 Cal. Rptr. 3d 328, 123 P.3d 604] (Yartz).) The SVPA "was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society." (People v. Allen (2008) 44 Cal. 4th 843, 857 [80 Cal. Rptr. 3d 183, 187 P.3d 1018]; see Hubbart v. Superior Court (1999) 19 Cal. 4th 1138, 1171 [81 Cal. Rptr. 2d 492, 969 P.2d 584] [SVPA proceedings designed "to provide `treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"].) An SVP is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).)
"`[A]n SVPA commitment proceeding is a special proceeding of a civil nature, because it is neither an action at law nor a suit in equity, but instead is a civil commitment proceeding commenced by petition independently of a *1123 pending action.'" (Yartz, supra, 37 Cal.4th at p. 536.)[1] "The process for confining an individual pursuant to the SVPA begins when the Secretary of the Department of Corrections and Rehabilitation determines that an individual in the custody of the department may be a sexually violent predator, and the secretary refers the individual to the State Department of Mental Health for an evaluation. If two evaluators concur that the individual meets the statutory criteria of a sexually violent predator, the Director of Mental Health shall request the county in which the person was convicted of the offense for which he or she is incarcerated to file a petition for commitment under the SVPA." (People v. Allen, supra, 44 Cal.4th at pp. 857-858.)
"If the trial court determines that the petition establishes `probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release,' the court shall order a trial to determine whether the person is a sexually violent predator. [Citations.] ... To secure the individual's commitment, the district attorney must prove beyond a reasonable doubt that the person is a sexually violent predator." (People v. Allen, supra, 44 Cal.4th at p. 858.)
II.
CIVIL DISCOVERY PERMITTED IN SVPA PROCEEDINGS; SCOPE OF APPROPRIATE DISCOVERY IN SVPA PROCEEDINGS IS LIMITED; APPLICABLE STANDARD OF REVIEW OF DISCOVERY ORDERS IS ABUSE OF DISCRETION.
Other than providing litigants access to medical and psychological records under section 6603, subdivisions (a) and (c)(1), discussed in detail post, the SVPA is silent as to discovery rights in such proceedings. General civil discovery methods, however, have been held to be available to litigants in SVPA proceedings. (See Yartz, supra, 37 Cal. 4th 529, 537, fn. 4 [Civil Discovery Act of 1986[2] applies to an SVPA proceeding]; People v. Superior Court (Cheek) (2001) 94 Cal. App. 4th 980, 983, 988 [114 Cal. Rptr. 2d 760] *1124 (Cheek) [holding civil discovery applies to SVPA proceedings and therefore deposition method of discovery is available].)
Here, defendants challenge the trial court's orders enforcing subpoenas duces tecum issued not under the Civil Discovery Act, but under Code of Civil Procedure section 1985. (See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal. 4th 528, 535 [79 Cal. Rptr. 3d 370, 187 P.3d 86] [distinguishing "the statutory provisions governing subpoenas ([Code Civ. Proc.,] §§ 1985-1997)" from "the Civil Discovery Act ([Code Civ. Proc.,] § 2016.010 et seq.)"].) Defendants do not contend that a subpoena duces tecum is not an available discovery method in SVPA proceedings. We have not found any legal authority limiting the availability of civil discovery methods in SVPA proceedings, and there is no analytical basis for concluding subpoenas duces tecum are not available in such proceedings.[3]
(2) "[T]he scope of discovery in SVPA proceedings is circumscribed by the two narrow issues presented at trial: (1) whether the person sought to be committed `has been convicted of a sexually violent offense against two or more victims' [citation]; and (2) whether the person `has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.'" (Cheek, supra, 94 Cal.App.4th at p. 983.) "[I]nformation relating to the proof of these issues is within the permissible scope of discovery in SVPA proceedings." (Id. at p. 990.)[4]
"The standard of review for a discovery order is abuse of discretion, because management of discovery lies within the sound discretion of the trial court. [Citation.] Thus, where there is a basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court." (Cheek, supra, 94 Cal.App.4th at p. 987; see People ex rel. Lockyer v. Superior Court (2004) 122 Cal. App. 4th 1060, 1071 [19 Cal. Rptr. 3d 324] ["a trial court's ruling on a discovery motion `will be *1125 overturned upon a prerogative writ if there is no substantial basis for the manner in which trial court discretion was exercised or if the trial court applied a patently improper standard of decision'"].)
III.
THE DISTRICT ATTORNEY IS EXPRESSLY ENTITLED TO CERTAIN MEDICAL AND PSYCHOLOGICAL REPORTS UNDER SECTION 6603, SUBDIVISION (c)(1).
(3) As mentioned ante, under section 6603, subdivision (c), the district attorney in an SVPA proceeding "may obtain access to otherwise confidential treatment information concerning an alleged SVP to the extent such information is contained in an updated mental evaluation." (Albertson, supra, 25 Cal.4th at p. 807.)[5]
Section 6603, subdivision (c)(1) provides a district attorney an automatic right to certain medical and psychological records, as follows: "If the attorney petitioning for commitment under this article determines that updated evaluations are necessary in order to properly present the case for commitment, the attorney may request the State Department of Mental Health to perform updated evaluations. If one or more of the original evaluators is no longer available to testify for the petitioner in court proceedings, the attorney petitioning for commitment under this article may request the State Department of Mental Health to perform replacement evaluations. When a request is made for updated or replacement evaluations, the State Department of Mental Health shall perform the requested evaluations and forward them to the petitioning attorney and to the counsel for the person subject to this article. However, updated or replacement evaluations shall not be performed except as necessary to update one or more of the original evaluations or to replace the evaluation of an evaluator who is no longer available to testify for the petitioner in court proceedings. These updated or replacement evaluations shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated, either voluntarily or by court order. If an updated or replacement evaluation results in a split opinion as to whether the person subject to this article meets the criteria for commitment, the State Department of Mental Health shall conduct two additional evaluations in accordance with subdivision (f) of Section 6601." (Italics added.)
*1126 In Albertson, supra, 25 Cal.4th at page 805, the Supreme Court interpreted section 6603, subdivision (c)(1) as providing "an exception to section 5328's[6] general rule of confidentiality of treatment records, and allows the district attorney access to treatment record information, insofar as that information is contained in an updated evaluation. To the extent there might be any ambiguity in this regard, the history described below confirms that in an SVPA proceeding a local government's designated counsel (here, the district attorney) may obtain, through updated mental evaluations, otherwise confidential information concerning an alleged SVP's treatment." (Italics added.)
The automatic nature of the district attorney's entitlement to mental and psychological records under section 6603, subdivision (c)(1) is underscored by the Supreme Court's order in each defendant's case in which the Supreme Court stayed the trial court's orders compelling the production of documents in compliance with the district attorney's subpoenas "insofar as the order authorizes the release of information, other than medical and psychological records specified in Welfare and Institutions Code section 6603, subdivision (c) and Albertson v. Superior Court[, supra,] 25 Cal. 4th 796, 805." (First italics added.) Defendants have never challenged the district attorney's entitlement to such records.
IV.
EACH OF THE DISTRICT ATTORNEY'S FOUR ISSUED SUBPOENAS DUCES TECUM FAILS TO INCLUDE AN AFFIDAVIT SUFFICIENTLY SETTING FORTH THE MATERIALITY OF THE RECORDS SOUGHT.
Defendants contend the trial court "exceeded its jurisdiction in ordering compliance with subpoenas duces tecum that lack affidavits showing specific facts justifying discovery as required by Code of Civil Procedure, section 1985." Code of Civil Procedure section 1985 provides in relevant part: "(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, or other things under the witness's control which the witness is bound by law to produce in evidence.... [¶] (b) A copy of an affidavit shall be served with a subpoena duces tecum issued before trial, showing good cause for the production of the *1127 matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control." (Italics added.)
(4) In McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d at page 396, the Supreme Court held an "affidavit in support of the demand for inspection must identify the desired books, papers and documents and it must clearly show that they contain competent and admissible evidence which is material to the issues to be tried. The affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material." (Italics added.) The Supreme Court further stated, "[w]hat has been said applies with equal force to defendant's attempt, by subpoena duces tecum, to inspect papers and documents in the hands of third parties." (Id. at p. 398.)
In McClatchy Newspapers v. Superior Court, supra, 26 Cal.2d at page 398, the affidavit supporting a subpoena duces tecum did not specifically describe any papers or documents, or their contents, but merely referred to various financial business transactions, and averred generally that the sought-after records were "relevant and material." The Supreme Court concluded: "It follows that defendant is not entitled, on the present showing, to compel an inspection of documents in the hands of plaintiff or the third parties, but it is entitled to a writ of mandate directing respondent to set aside its orders preventing the completion of plaintiff's deposition and to make the necessary orders to effectuate those proceedings in accordance with the views expressed in this opinion." (Id. at pp. 398-399.)
(5) In Johnson v. Superior Court (1968) 258 Cal. App. 2d 829, 835 [66 Cal. Rptr. 134], the appellate court stated: "The clear import of all the cases dealing with the subject is that a subpoena duces tecum has no force or effect if the affidavit required by [former] section 1985 of the Code of Civil Procedure does not comply with the provisions of that section. The requirement of that section that the affidavit must contain a showing of good cause for the production of the matters and things described in the subpoena and `shall set forth in full detail the materiality thereof to the issues involved in the case' is not met by an affidavit which is totally devoid of any statement of facts." The court further stated, "to secure discovery by use of a subpoena duces tecum, there must be a showing of more than a wish for the benefit of all the information in the adversary's files ..." (id. at p. 837), and "`[a] mere allegation that the records are material ... constitutes a conclusion of law which does not meet the requirements' of [Code of Civil Procedure] section 1985" (id. at p. 836). The appellate court added, "the trial court must be *1128 afforded the factual data by the required affidavit to enable it to make an informed ruling on the issues of materiality and good cause." (Id. at p. 837.)
In Johnson v. Superior Court, supra, 258 Cal.App.2d at page 837, the declaration supporting the subpoena duces tecum stated in part that the affiant believed that the documents sought by the subpoena "`are material to the proper presentation of his case by reason of the following facts: They are necessary to prove the allegations in the Complaint. WHEREFORE affiant prays that Subpoena Duces Tecum issue.'" Concluding the declaration was insufficient, the appellate court explained: "This declaration fails to show any facts with reference to the alleged materiality of the desired documents either to the issues or to the subject matter of the litigation, and is devoid of any allegations whatever directed to the requirement of good cause. Similarly, we note that the entire declaration, such as it is, is based wholly on the declarant's alleged information and belief without any statement of supporting facts. Since the declaration is patently insufficient for the issuance of the subpoena duces tecum, which petitioner was charged with disobeying [citation], it was an abuse of the court's discretion to order petitioner to obey the subpoena." (Ibid.) The appellate court issued a writ commanding the trial court to vacate its order, accordingly. (Id. at p. 840; see also Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) ¶ 1:127, p. 1-32 (rev. # 1, 2005) [declaration supporting subpoena duces tecum must contain "specific facts" showing ["r]elevance to the subject matter (e.g., how the information contained in the documents tends to prove or disprove some issue in the case)" and cannot solely consist of a general legal conclusion of relevance and materiality].)
As discussed ante, the scope of permissible discovery in SVPA proceedings is limited to information relating to proof that the defendant is a person who has been convicted of a sexually violent offense against two or more victims and that the defendant has a diagnosed mental disorder that makes him or her a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal behavior. (Cheek, supra, 94 Cal.App.4th at p. 983.) We now analyze each of the subpoenas issued by the district attorney, in light of these authorities, to determine whether each subpoena included an affidavit which set forth "in full detail the materiality thereof to the issues involved in the case" (Code Civ. Proc., § 1985, subd. (b)).
A.
CSH Subpoenas Seeking Medical Records
The trial court ordered CSH to comply with the subpoenas duces tecum which required CSH to produce "[a]ny and all records relating to the *1129 treatment, diagnosis and evaluation" of each defendant. The declarations supporting the subpoenas stated: "Good cause exists for the production of the documents or other things ... for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter." The declarations further stated: "These documents or other things ... are material to the issues involved in this case for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter."
The district attorney's declarations solely state a legal conclusion that the documents requested are material to those proceedings and lack any factual bases for their materiality. Therefore, they fail to comply with the requirements of Code of Civil Procedure section 1985. Thus, the subpoenas duces tecum have no force or effect. (Johnson v. Superior Court, supra, 258 Cal.App.2d at p. 837; Pacific Auto. Ins. Co. v. Superior Court (1969) 273 Cal. App. 2d 61, 70 [77 Cal. Rptr. 836].)
Notwithstanding the ineffectiveness of the CSH subpoenas seeking medical records, as discussed ante, the Legislature has already deemed certain medical and psychological records material in SVPA proceedings through section 6603, subdivision (c). The district attorney's access to those records is not dependent upon the issuance of a subpoena duces tecum.
B.
CSH Subpoenas Seeking Nonmedical Records
In the CSH subpoenas seeking nonmedical information, the district attorney sought a variety of documents and information including visitor logs, activity logs, physical therapy session logs, patient arrival and departure logs, disciplinary records, mail arrival and departure logs, patient property requests, incoming patient property inventories, cancel package waiver forms, computer printout records of all financial transactions with respect to trust accounts, and all deposit and withdrawal slips related to defendants' trust accounts at CSH. The declaration in support of each CSH subpoena seeking such documents stated: "Good cause exists for the production of the [requested] documents ... for the following reasons: [¶] To prove that [defendant] is a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code. The above documentation is needed to assess any statements made by [defendant] to CSH personnel that may reflect on his credibility, current mental status, diagnosis, and likelihood to recidivate sexually." The declaration further stated the requested documents were material to the issues involved in the case "[t]o prove that [defendant] is a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code. The above documentation is needed to assess any *1130 statements made by [defendant] to CSH personnel that may reflect on his credibility, current mental status, diagnosis, and likelihood to recidivate sexually."
(6) While those subpoenas' declarations included a fuller statement of materiality than the declarations supporting the CSH subpoenas seeking medical records, they failed to contain sufficient factual bases or explanations for the conclusion that all of those types of documents were material to the narrow issues presented in an SVPA proceeding. Satisfaction of the statutory requirement that the supporting affidavit asserts a factual basis for materiality is particularly important here where the district attorney is seeking financial and other information defendants contend is protected by the right to privacy. (Cal. Const., art. I, § 1; Binder v. Superior Court (1987) 196 Cal. App. 3d 893, 899 [242 Cal. Rptr. 231].) In the returns, the district attorney agrees defendants each have "a privacy interest in the items sought by the subpoenas." The trial court therefore erred by ordering CSH's compliance with the subpoenas seeking nonmedical information.
C.
California Men's Colony Subpoenas
The subpoenas to the California Men's Colony sought production of all records pertaining to each defendant "while in custody or on parole under the jurisdiction of the California Department of Corrections and all documents forwarded to the CDC pertaining to [defendant] during that time period which remain in its possession. This would include (but is not limited to) the following: [Defendant]'s `C' file, parole reports, chronological reports, disciplinary reports, legal reports, and BPH section." The declarations supporting the subpoenas stated: "Good cause exists for the production of the documents or other things ... for the following reasons: [¶] To prove that [defendant] remains a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code." As to materiality, the declarations similarly stated: "These documents or other things ... are material to the issues involved in this case for the following reasons: [¶] To prove that [defendant] remains a sexually violent predator as described in Section 6600[, subdivision ](a) of the Welfare and Institutions Code."
Like the declarations supporting the CSH subpoenas, discussed ante, the declarations supporting the subpoenas to the California Men's Colony are insufficient for failing to provide factual statements of materiality in support of the broad set of documents they sought. The trial court therefore erred by ordering California's Department of Corrections and Rehabilitation to produce documents responsive to these subpoenas.
*1131 D.
Health Records Center Subpoenas
The district attorney's subpoenas to the Health Records Center sought the production of any and all medical records pertaining to each defendant "while in custody or on parole under the jurisdiction of the California Department of Corrections and all medical records forwarded to the CDC pertaining to [defendant] during that time period which remain in its possession. This would include (but is not limited to) the following: [Defendant]'s `M' File, parole outpatient clinic records, psychological reports, psychiatric reports, medications and housing."
Each subpoena was supported by a declaration, which stated: "Good cause exists for the production of the documents or other things ... for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter." The subpoena further stated: "These documents or other things ... are material to the issues involved in this case for the following reasons: [¶] To assist in fair and effective presentation at trial of this matter."
Again, the factual bases of materiality are lacking from the declarations supporting those subpoenas, rendering them ineffective. To the extent those subpoenas sought medical records available to the district attorney under section 6603, subdivision (c)(1), a subpoena was unnecessary.
E.
Amended Subpoenas
The record contains the district attorney's reply briefs filed in support of its motions to enforce the subpoenas. In those briefs, the district attorney argued that its subpoenas were supported by sufficient declarations stating materiality in compliance with Code of Civil Procedure section 1985. The briefs each stated, "[t]he [defendant] argues, the four corners of the SDT [subpoena duces tecum] does not adequately address materiality and good cause because it is addressed in the brief. [The district attorney] respectfully submits new SDT's for the Court[']s review." Attached to the brief in each case are amended declarations each revised to contain a supplemental statement of good cause in support of each subpoena.
In each reply brief, the district attorney argued, "[e]ven if the Court does not believe that there is sufficient facts shown for good cause or materiality in the modified SDT, the Court can always order [the district attorney] to modify or allow the newly proffered SDT's to issue." The version of section *1132 1987.1 of the Code of Civil Procedure in effect at the time of the court's order in 2008 provided: "When a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, or at the trial of an issue therein, ... the court, upon motion reasonably made by the party, the witness, any consumer ..., or any employee ..., or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, the witness, the consumer, or the employee from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the witness, consumer, or employee ...."
The record does not show the trial court was aware of those modified declarations before enforcing compliance with the subpoenas; the modified declarations were not discussed at the hearing on the motions to enforce the subpoenas and to quash the subpoenas.
Neither the district attorney nor defendants mention those amended subpoenas in their briefing before this court. In each return, the district attorney only generally argues the sufficiency of the declarations supporting its subpoenas, as follows: "[T]he People's assertion that the documents requested are necessary to determine whether [defendant] is likely to recidivate is an adequate statement of materiality as it relates to one of the two narrow issues present in an SVPA proceeding. Consequently, the superior court did not err in denying [defendant]'s motion to quash the subpoenas." Any argument the district attorney might have had regarding whether it had cured one or more of the deficient declarations has been forfeited.
V.
THE TRIAL COURT ERRED BY ORDERING CSH'S COMPLIANCE WITH FUTURE SUBPOENAS DUCES TECUM.
Defendants contend the trial court "abused its discretion and acted without jurisdiction in ordering Coalinga State Hospital to comply with future subpoenas duces tecum." At the hearing on the enforcement of the subpoenas duces tecum, the following colloquy occurred:
"[Defendants' counsel]: And I also object, and also, you know, I also object to anything regarding the future, that future subpoenas will be automatically honored by Coalinga State Hospital. [¶] This court has no way of *1133 knowing what is going to be in a future S.D.T. and this court should havewe should have consumer notice and a chance to object to
"The Court: We are only dealing with current S.D.T.'s. If there are future ones, you will be able to contest them any time you want.
"[Defendants' counsel]: But, Your Honor, that is what the [district attorney] is asking for is that this court sign an order that all future S.D.T.'s are going to be honored.
"[The district attorney]: Not future. It's for medical records, Your Honor, covered by the code, specifically.
"The Court: Yes. There is noall of the objections with regard to the issuance of the S.D.T.'s are determined now to be set aside and the professionals' responsibility under H.I.P.A.A., this lawsuit, exceeds their requirement of confidentiality, and they may speak to you, depending on their determination, and the court issues and orders the S.D.T. to go forward.
"[Defendants' counsel]: Is that the professional S.D.T., Your Honor?
"The Court: This one that is the subject of this litigation.
"[Defendants' counsel]: What about the future of the S.D.T.'s?
"[The district attorney]: The only thing that is covered is future medical records.
"The Court: Future medical. They will be allowed. There [are] no other S.D.T.'s at this time?
"[The district attorney]: I would ask the court [to] sign the court orders.
"The Court: The request is granted. I will do that today.
"[Defendants' counsel]: Your Honor, are you allowing all visitor logs; [¶] all mail arrival and departure logs; [¶] patient property requests; [¶] incoming property requests; [¶] deposit and withdrawal slips from the trust accounts and everything concerning the trust account?
"The Court: Yes. [¶] Was there another thing we need to talk about?
"[The district attorney]: I don't believe so.
*1134 "[Defendants' counsel]: I don't believe so.
"The Court: Thank you, folks." The court proceeded to enter the same order in all five cases.
In each case, the trial court signed an order which not only required CSH to produce medical records and treatment information pursuant to the subpoenas seeking medical records, but also to "produce and provide all medical records of [defendant] requested in any future Subpoena Duces Tecum issued during the pendency of the current petition." The court also signed an order requiring CSH to produce nonmedical records, including visitor logs and trust account information, and to "produce and provide all trust account printouts and logs relating to [defendant] in any future Subpoena Duces Tecum issued during the pendency of the current petition including deposit and withdraw[al] slips." The record does not contain any proposed future subpoenas or any discussion of what the district attorney might seek in such future subpoenas.
As discussed ante, the CSH subpoenas before the court were ineffective due to their failure to include declarations stating the factual basis of the materiality of the sought-after documents. By requiring CSH to comply with any future subpoenas the district attorney might issue pertaining to those specified topics, the trial court has excused the district attorney from satisfying the requirements of Code of Civil Procedure section 1985 and the requirement that the district attorney provide notice to the consumer before seeking personal records under Code of Civil Procedure section 1985.3. By directing compliance with such subpoenas and the timetables for production of requested documents set forth therein, the trial court has compromised defendants' ability to challenge the validity of such future subpoenas, including the scope, relevance, and good cause supporting them. The district attorney does not cite any legal authority supporting the trial court's action, and we have found none.
In each return, the district attorney argues the hearing transcript "makes clear that [defendant's] claim the court ordered compliance with non-existent future subpoenas is erroneous. The court specifically stated it was not ordering compliance with any mythical future subpoenas, but merely expected the professionals subject to the current subpoena to comply with their duty under Welfare and Institutions Code section 6603 and provide medical reports to the People as they became available. The medical records at issue have to be provided to the People pursuant to Welfare and Institutions Code section 6603 even without a subpoena. [Defendant]'s contention regarding future subpoenas is unfounded."
*1135 (7) The court's comments expressing its intention to limit the district attorney's access to medical records and treatment information under section 6603, subdivision (c)(1) are inconsistent with the actual language in the orders requiring CSH to comply with future subpoenas seeking discovery of nonmedical records. Furthermore, in SVPA proceedings, the district attorney is automatically entitled to defendants' medical records and treatment information under section 6603, subdivision (c)(1), and thus subpoenas to obtain such information are unnecessary. Thus, section 6603, subdivision (c)(1) cannot justify the portions of the trial court's orders requiring compliance with future subpoenas.
The trial court erred by requiring CSH's compliance with future subpoenas duces tecum.
VI.
THE TRIAL COURT SHOULD HAVE ENTERED A NARROWLY TAILORED ORDER EXCUSING CSH'S MEDICAL STAFF FROM HIPAA REQUIREMENTS TO PERMIT THE DISTRICT ATTORNEY ACCESS TO WHICH IT IS ENTITLED UNDER SECTION 6603, SUBDIVISION (c).
(8) Defendants argue the trial court exceeded its jurisdiction by ordering all medical staff, physicians, and psychiatrists relieved from any obligations under HIPAA as it relates to each of defendants. Through HIPAA, "Congress expressed its concern for protecting the integrity and confidentiality of personal medical records, and for preventing the unauthorized use or disclosure of such records." (Bugarin v. Chartone, Inc. (2006) 135 Cal. App. 4th 1558, 1561 [38 Cal. Rptr. 3d 505].) "Responding to the congressional mandate, DHHS [United States Department of Health and Human Services] promulgated comprehensive regulations to protect the privacy of personal medical records" (id. at p. 1562), including part 164 of title 45 of the Code of Federal Regulations (2005) which "governs the management and disclosure of medical records by `covered entities'" and "prohibits the disclosure of protected health information without an authorization" (Bugarin v. Chartone, supra, at p. 1562).
An exception for disclosure of protected health information is contained in 45 Code of Federal Regulations part 164.512(e)(1)(i) (2003), which permits disclosure of "`protected health information in the course of any judicial or administrative proceeding'" when it does so "`[i]n response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.'" (In re Christopher M. (2005) 127 Cal. App. 4th 684, 691, fn. 6 [26 Cal. Rptr. 3d 61].)
*1136 Here, the trial court ordered CSH to "permit doctors appointed by the Court to examine any and all medical records, charts, files, documents or notes related to the above named [defendant]." The order further stated, "[t]hat all treating medical staff, physicians, and psychiatrists be released from any obligation under HIPAA and be allowed to speak to [the district attorney] regarding [defendant]. [¶] This is a continuing order and shall remain in effect until terminated by the Court. This order is issued in compliance with the provisions of HIPAA (45 CFR [§] 164.512(e)). Personal service of this Court Order is not required."
(9) Because the district attorney's subpoenas were ineffective, the only basis for the court's order relieving CSH's medical staff from their confidentiality obligations under HIPAA was section 6603, subdivision (c) providing the district attorney access to certain medical information. As discussed ante, section 6603, subdivision (c)(1) permits the district attorney access to information in order to perform an updated or replacement evaluation of a defendant in a proceeding under the SVPA. Section 6603, subdivision (c)(1) provides that such updated or replacement evaluations "shall include review of available medical and psychological records, including treatment records, consultation with current treating clinicians, and interviews of the person being evaluated, either voluntarily or by court order." (See Albertson, supra, 25 Cal.4th at p. 805 [§ 6603, subd. (c) allows the district attorney access to treatment record information "insofar as that information is contained in an updated evaluation" (italics added)].)
Defendants argue the trial court has no authority to make an order relieving medical staff from their confidentiality obligations under HIPAA because "Code of Civil Procedure section 2019.010 provides the exclusive methods for discovery in special proceedings of a civil nature." Defendants solely rely on legal authority supporting the principle that the Civil Discovery Act applies to SVPA proceedings to support their argument. Defendants' argument is without merit. Section 6603, subdivision (c)(1) directly authorizes a district attorney to obtain certain confidential health information. HIPAA prohibits disclosure of confidential health information absent an authorization or a court order in the context of a judicial proceeding. Here, defendants did not authorize the release of medical information, creating the necessity for the trial court to order CSH's medical staff to disclose information the district attorney was entitled to under section 6603, subdivision (c)(1).
(10) Defendants also argue 45 Code of Federal Regulations part 164.512(e)(1)(v)(A) and (B) (2008) requires that "a protective order be issued prohibiting the parties from using or disclosing the protected health information for any purpose unrelated to the pending proceeding, and requiring the return of or destruction of the protected health information (including all *1137 copies)." Defendants further argue, "[t]he court in this instance did issue a protective order that the information [shall] not be disclosed for any other purpose, but failed to include in the protective order the mandatory requirement that any and all copies be returned or destroyed at the conclusion of the present proceeding." Qualified protective orders, however, are not required when a court orders a covered entity to disclose certain protected health information. (45 C.F.R. § 164.512(e) (2008).)
On remand, we direct the trial court to modify its order to enable CSH's medical staff to disclose information pursuant to the parameters of section 6603, subdivision (c)(1).[7]
VII.
BECAUSE EACH OF THE DISTRICT ATTORNEY'S SUBPOENAS IS INEFFECTIVE, WE DO NOT NEED TO DECIDE THE EFFECT OF THE DISTRICT ATTORNEY'S FAILURE TO COMPLY WITH THE NOTICE TO CONSUMER REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION 1985.3 OR THE TRIAL COURT'S DENIAL OF DEFENDANTS' MOTIONS FOR AN IN CAMERA REVIEW OF PRODUCED DOCUMENTS.
Defendants argue the district attorney failed to provide consumer notice as required by section 1985.3 of the Code of Civil Procedure. The district attorney did not respond to this argument in the returns. In the reply briefs the district attorney filed in the trial court in support of its motions to enforce the subpoenas and in opposition to defendants' motions to quash, the district attorney stated, "[t]here has been no violation of [Code of Civil Procedure section] 1985.3 which requires a Notice to the Consumer 10 days prior to production of the documents. Counsel has had more than the statutory time to peruse the SDT's, supporting authority and Orders supplied by [the district attorney]." Because each of the subpoenas is ineffective, we do not need to decide the consequence of the district attorney's failure to comply with the notice to consumer provisions contained in Code of Civil Procedure section 1985.3.
For the same reason, we do not need to address defendants' arguments the trial court further erred by denying their motions seeking the opportunity to review subpoenaed documents in camera for privilege before they were disclosed to the district attorney.
*1138 DISPOSITION AND ORDER
In Lee v. Superior Court (No. G041511), Semeneck v. Superior Court (No. G041523), Rabuck v. Superior Court (No. G041524), Morehead v. Superior Court (No. G041525), and Sabatasso v. Superior Court (No. G041526): The petitions for writ of mandate are granted. Let writs of mandate issue commanding the superior court to (1) vacate its orders releasing records, all dated October 7, 2008; (2) return any documents produced by CSH or the Department of Corrections and Rehabilitation in response to the subject subpoenas (other than documents produced pursuant to § 6603, subd. (c)(1)); and (3) issue an order permitting the medical staff of CSH to disclose confidential health information to the extent permitted by section 6603, subdivision (c)(1) as interpreted by the Supreme Court in Albertson, supra, 25 Cal. 4th 796.
The Supreme Court issued a stay as to each of the superior court's orders pending further order of this court. The stay in each case is dissolved on issuance of the remittitur. Having served their purpose, the alternative writs of mandate issued by this court in each case are discharged.
Sills, P. J., and Moore, J., concurred.
NOTES
[*] Semeneck v. Superior Court (No. G041523 [Super. Ct. Nos. M9837, M10477 & M11240]); Rabuck v. Superior Court (No. G041524 [Super. Ct. Orange County, Nos. M10338 & M11029]); Morehead v. Superior Court (No. G041525 [Super. Ct. Orange County, No. M10439]); and Sabatasso v. Superior Court (No. G041526 [Super. Ct. Orange County, No. M11244]).
[1] In Yartz, supra, 37 Cal.4th at page 537, the Supreme Court disapproved Leake v. Superior Court (2001) 87 Cal. App. 4th 675 [104 Cal. Rptr. 2d 767] "[t]o the extent it suggests that an SVPA proceeding is a civil action."
[2] The Civil Discovery Act of 1986 was repealed and reenacted by the 2004 Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.,) which took effect July 1, 2005. (Biles v. Exxon Mobil Corp. (2004) 124 Cal. App. 4th 1315, 1326, fn. 7 [22 Cal. Rptr. 3d 282].) Although the reenacted statutes comprising the Civil Discovery Act reflect extensive renumbering of the affected statutes, "[t]he changes [were] not intended to have any substantive effect on the law of civil discovery." (Biles v. Exxon Mobil Corp., supra, at p. 1326, fn. 7; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 395 [55 Cal. Rptr. 3d 751] [the 2004 Civil Discovery Act is codified at Code Civ. Proc., § 2016.010 et seq.].)
[3] In Albertson, supra, 25 Cal.4th at page 800, the district attorney had served a subpoena duces tecum seeking the defendant's mental health treatment files on a mental health facility where the defendant had been moved pending trial on an SVPA petition. The appellate court issued a writ of mandate ordering the trial court to deny the district attorney's requests. (25 Cal.4th at p. 801.) On review, the Supreme Court did not need to decide whether the appellate court had properly interpreted the SVPA because amendments to the SVPA (specifically, § 6603, subd. (c), discussed in detail post) had been enacted since the appellate decision and were dispositive to the issues presented on review. (Albertson, supra, at p. 803.) The district attorney's use of a subpoena duces tecum was not an issue in that case.
[4] "In SVPA proceedings, the primary purpose of discovery most likely will be to assist the parties in preparing for trial, and, to a lesser extent, to assist the parties in case evaluation and settlement." (Cheek, supra, 94 Cal.App.4th at p. 989.) These purposes are served in an SVPA proceeding when the information sought by civil discovery methods is relevant to the two narrow issues presented at trial. (94 Cal.App.4th at p. 989.)
[5] Section 6603, subdivision (a) provides that an alleged SVP "`shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports." (Italics added.) Neither defendants' access to relevant medical records nor any other right under section 6603, subdivision (a) is an issue on appeal in this case.
[6] Section 5328 was enacted in 1972. (Albertson, supra, 25 Cal.4th at p. 800, fn. 3.) Section 5328 provides in part that "[a]ll information and records obtained in the course of providing services under ... Division 6 (commencing with Section 6000) ... to either voluntary or involuntary recipients of services shall be confidential." The SVPA, sections 6600 through 6609.3, was added to division 6 of the Welfare and Institutions Code in 1995. (Albertson, supra, at p. 800, fn. 3.)
[7] In the traverses, defendants assert that since the time this court issued the alternative writs, "the medical and psychological records specified in Welfare and Institutions Code section 6603, subdivision (c) and Albertson v[.]Superior Court[, supra,] 25 Cal.4th 7[9]6, 805 have been released to the parties by respondent court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611804/ | 256 Kan. 166 (1994)
STATE OF KANSAS, Appellee,
v.
JESSE L. SHORTEY, JR., Appellant.
No. 70,202
Supreme Court of Kansas.
Opinion filed October 28, 1994.
Rebecca E. Woodman, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
*167 Jerome A. Gorman, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Robert T. Stephan, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
McFARLAND, J.:
Jesse L. Shortey, Jr., appeals his jury trial convictions of aggravated robbery (K.S.A. 21-3427) and aggravated assault on a law enforcement officer (K.S.A. 21-3411). Shortey received a controlling term of 20 years to life for these convictions.
The convictions arise from the June 4, 1991, robbery of a Kansas City gas station attendant and defendant's arrest shortly thereafter. Additional facts will be set forth in the opinion as necessary for the resolution of particular issues.
Initially, the court must determine if it has jurisdiction to entertain this appeal. K.S.A. 22-3608(1) provides, in pertinent part: "If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court's power to modify the sentence."
The notice of appeal filed herein by defendant's counsel was untimely by at least 20 days.
This court recently reviewed the general rules pertaining to an appellate court's jurisdiction to hear appeals in State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994), wherein we stated:
"The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution, Griffin v. Illinois, 351 U.S. 12, 18, 100 L.Ed. 891, 76 S.Ct. 585 (1955), or the Kansas Constitution, State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977). It is the established rule in this state that this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. See State v. Thompson, 221 Kan. 165, Syl. ¶ 1, 558 P.2d 1079 (1976); State v. Shores, 185 Kan. 586, 588, 345 P.2d 686 (1959); State v. Sims, 184 Kan. 587, 588, 337 P.2d 704 (1959). The Supreme Court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. State v. Thompson, 221 Kan. at 167; State v. Mitchell, 210 Kan. 470, 471, 502 P.2d 850 (1972); State v. Shehi, 185 Kan. 551, Syl. ¶ 1, 345 P.2d 684 (1959)."
Thus, in general, Kansas appellate courts do not have jurisdiction to entertain an appeal in a criminal case unless a notice *168 of appeal is filed within the time established by the statute. However, in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), we recognized an exception to the general rule where in the interest of fundamental fairness "a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal." (Emphasis supplied.)
Defendant has filed an affidavit of the appointed counsel responsible for the filing of the notice of appeal which sets forth the post-trial proceedings herein and which concludes: "I didn't realize that Notice of Appeal needed to be filed earlier. If that is indeed the case, it is wholly my fault, as Mr. Shortey has taken every step to insure that his appeal is prosecuted."
Under the circumstances herein, we conclude that the exception set forth in Ortiz should be applied, and we will, accordingly, entertain defendant's appeal.
For his first issue, defendant contends the district court erred in failing to instruct the jury on battery and aggravated battery as lesser included offenses of aggravated robbery.
The statute relative to included crimes is K.S.A. 21-3107, which provides, in pertinent part:
"(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
"(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved."
"(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal."
*169 In State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), we described the two-pronged test to determine if a crime is a lesser included crime under section (2)(d):
"The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.
"The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an `included crime' under the definition in 21-3107(2)(d)."
In State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990), we cautioned against confusing what the State may actually prove in its evidence with what the State was required to prove to establish the crime charged, stating: "The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d)."
Under the second prong of the Fike test, aggravated battery can be a lesser included offense of aggravated robbery. State v. Warren, 252 Kan. 169, Syl. ¶ 9, 843 P.2d 224 (1992).
Where there is no substantial testimony applicable to the lesser degrees of an offense, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Deavers, 252 Kan. 149, 155, 843 P.2d 695 (1992), cert. denied 125 L.Ed.2d 676 (1993). The duty to *170 instruct exists even though the instructions have not been requested. K.S.A. 21-3107(3).
Defendant herein was charged as follows:
"[O]n or about the 4th day of June, 1991, one Jesse L. Shortey, Jr., did unlawfully, feloniously and willfully take property, to wit: money, from the person of another, to wit: Woody Davis, by force to the person of Woody Davis, and did inflict bodily harm upon Woody Davis, in the course of such robbery, in violation of K.S.A. 21-3427. (Aggravated Robbery, `B' Felony)."
Woody Davis testified he was the only attendant in the service station and was inside the small building. Defendant was outside and hit the glass on the window, inquiring if he could use the telephone. Davis said no. Defendant then entered the building and started beating Davis. Davis was struck many times on the head, face, and shoulders and was violently thrown from one side of the room to the other. Davis testified defendant stated that he would continue beating Davis until Davis gave him the money. Defendant then removed a roll of bills from Davis' pants pocket and took a coin changer attached to Davis' pocket. Defendant then left the building.
Defendant testified that he entered the building to buy a pack of cigarettes and was told by Davis to get out as he was not supposed to be inside the building. This angered defendant, who began beating Davis and throwing him around the room as described by Davis. As to how he acquired the roll of currency and the coin changer, defendant testified:
"He's on the ground and he's pleading to me please don't hit me no more, don't hit me no more, and he pulls out this wad of money and says take this money please, just don't hit me no more, and at the state of mind that I was in, this money was in my face. I did I took the money.
"Q. Okay. What about the coin changer?
"A. Yes, sir.
"Q. Did you take a coin changer from him?
"A. I will admit he handed me the coin changer, also."
Defendant argues that he had no intent to rob while he was beating Davis and that Davis offered him the money to stop the beating. Thus, he argues, the jury should have been instructed on aggravated battery and battery under K.S.A. 21-3107(2)(d).
*171 Defendant relies on State v. Hill, 16 Kan. App.2d 432, 825 P.2d 1141 (1991), for support. In Hill, defendant was charged with aggravated robbery. Defendant and his companion were accused of taking a wallet from the victim "by force" and by "inflicting great bodily harm" upon the victim. 16 Kan. App.2d at 435. The evidence indicated defendant helped his companion beat up the victim. Defendant denied any knowledge of or taking of the wallet. He was convicted of aggravated robbery. On appeal, he contended that he was entitled to an instruction on battery. Reversing, the Court of Appeals agreed, finding that, under the Fike test, battery was charged and proven as part of the original charge. 16 Kan. App.2d at 437. In so doing, however, the court cautioned:
"There may be individual cases where battery is an appropriate lesser included offense for aggravated robbery and there will be cases where it is not, depending on the charging document and the evidence produced. To maintain that we ignore the individual facts, notwithstanding that they are set out in the charging document ... is contrary to Fike ...." 16 Kan. App.2d at 436.
Defendant's reliance on Hill is misplaced. In Hill, unlike here, defendant denied any knowledge of or the taking of the wallet. Here, defendant admitted taking the gas station proceeds from Woody Davis. Hill, therefore, is distinguishable on the facts.
In State v. Clardy, 252 Kan. 541, 847 P.2d 694 (1993), defendant was charged and convicted of one count of aggravated robbery. He contended on appeal that he was entitled to a jury instruction on battery as a lesser included offense of aggravated robbery. Defendant denied any intent to rob the victim and denied seeing the victim robbed by defendant's companions. The evidence showed that defendant struck the victim. There was no evidence that defendant took any money from the victim. 252 Kan. at 541-45. We reversed, reasoning:
"Under K.S.A. 21-3107(3), the defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence. Where there is no substantial testimony applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Deavers, 252 Kan. 149, 154-55, 843 P.2d 695 (1992).
*172 "When an information alleges a robbery was accomplished by force and that bodily harm was inflicted in the course of the robbery, battery will not be a lesser included offense of the aggravated robbery unless there is substantial evidence to prove the lesser offense of battery has been committed. Under the particular circumstances of this case, there is substantial evidence that the lesser degree of the offense charged had been committed, and an instruction on battery as a lesser included offense was required." 252 Kan. at 547.
Clardy is distinguishable on its facts. The victim's testimony herein clearly establishes that an aggravated robbery occurred as does defendant's own testimony. Under either version, defendant was able to take and intentionally did take the currency and coin changer from the person of Davis as the direct result of the beating he was inflicting upon Davis. We find no error in the trial court's failure to instruct on aggravated battery or battery under K.S.A. 21-3107.
For his second issue, defendant contends the district court erred in failing to instruct the jury on self-defense concerning the charge of aggravated assault on a law enforcement officer.
In a criminal case, a trial court must instruct the jury on the law applicable to the theories of all parties where there is evidence to support those theories. State v. Perez, 251 Kan. 736, Syl. ¶ 1, 840 P.2d 1118 (1992). A defendant is entitled to an instruction on his or her theory of the case even though the evidence introduced thereon is slight and supported only by defendant's own testimony. State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987); State v. Sullivan & Sullivan, 224 Kan. 110, Syl. ¶ 10, 578 P.2d 1108 (1978).
Absent an instruction request, an appellate court may reverse on the failure to give a jury instruction only if the trial court's failure to instruct was clearly erroneous. The failure to instruct is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict. State v. Perez, 251 Kan. 736, Syl. ¶ 4; see State v. Cooper, 252 Kan. 340, 341, 845 P.2d 631 (1992).
No request for a self-defense instruction was made in this case.
The pertinent facts applicable to this issue are summarized as follows. Two police officers, Cosgrove and Chronister, arrived at *173 the gas station almost immediately after defendant had fled the scene. The officers were cruising in the area when they saw people waving at them from the gas station's parking lot. As they were turning into the lot, the police dispatcher reported the crime on the radio. The dispatcher and citizens on the scene reported the perpetrator had fled on foot eastward to an alley. The officers separated, searching for a black male wearing a black tank top. Officer Cosgrove approached a Cadillac parked at the alley's first intersection with a street. Cosgrove observed a black male, wearing a black tank top, crouched down in the vehicle. Cosgrove radioed his partner for assistance. Defendant exited the vehicle. Cosgrove holstered his gun in order to handcuff defendant. A struggle ensued. At one point in the struggle, defendant took the officer's gun from its holster and pushed the gun barrel under the officer's chin. The officer believed he was going to be shot. The officer was able to deflect the barrel from his chin, and defendant was ultimately subdued with the assistance of Officer Chronister. Currency in the amount of $106 and the coin changer were recovered from the front seat of the Cadillac.
Defendant testified that Cosgrove had made a racial slur against him and that he struggled with the officer to protect his own life, which he believed was in danger.
Defendant contends that, applying the clearly erroneous standard of review, the conviction for aggravated assault on a law enforcement officer should be reversed and a new trial granted. We do not agree.
K.S.A. 21-3211 provides:
"A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force."
K.S.A. 21-3214(1) provides that the justification set forth in K.S.A. 21-3211 is not available to a person who "[i]s attempting to commit, committing, or escaping from the commission of a forcible felony."
Clearly, defendant herein had just committed a forcible felony and was trying to make good his escape therefrom when he was *174 confronted by the officer. Under the circumstances herein, K.S.A. 21-3214(1) precludes the giving of a self-defense instruction.
For his final issue, defendant contends the provisions of K.S.A. 1993 Supp. 21-4618 were erroneously applied to his conviction of aggravated assault on a law enforcement officer.
K.S.A. 1993 Supp. 21-4618 provides, in pertinent part:
"(a) Except as provided in subsection (c), probation, assignment to a community correctional services program or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall not apply to any crime committed by a person under 18 years of age.
"(b) When a court has sentenced a defendant as provided above, the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced pursuant to this K.S.A. 21-4618 and amendments thereto based on a finding by the court that a firearm was so used."
The pertinent facts are as follows. During the January 7, 1992, hearing on defendant's motion for a new trial, the State requested that the court make a determination as to whether 21-4618 would be applicable to the aggravated assault conviction. The statute's applicability was disputed. The court directed each counsel to send a letter to the court setting forth the respective position of each as to the applicability of the statute. This was done and, on March 31, 1992, the court determined that the statute applied. On April 24, 1992, the case was called for sentencing before a three judge probation board. At the hearing, defense counsel stated, in his opening remarks: "I would say that inasmuch as Judge Zukel has determined the gun statute applies in this case, I'd only direct my comments to the aspects of sentencing."
The sentence was as follows:
"JUDGE MORONEY: You were tried and convicted by a jury of two counts, one a B and one a C felony. You are sentenced to the custody of the Secretary of Corrections for the crime of aggravated robbery in violation of K.S.A. 21-3427 in Count One, aggravated assault on a law enforcement officer with a gun in violation of K.S.A. 21-3411 in Count Two to a term of not less than 15 nor *175 more than life in Count One and not less than 5 nor more than 20 in Count Two. I've imposed the maximum sentences in this matter due to the violent nature of the crime, the two crimes committed and the possibility that a law enforcement officer in this community could have been killed. The application for probation is denied.
"PROBATION OFFICER: Consecutive or concurrent?
"JUDGE MORONEY: The sentences are to run consecutively."
The sentencing judge made no reference to 21-4618.
The subsequent journal entry, filed May 1, 1992, stated that defendant had been mandatorily sentenced in this case pursuant to 21-4618 for use of a firearm during the commission of the crime of aggravated assault of a law enforcement officer.
Defendant contends that inasmuch as the sentencing panel made no findings relative to the applicability of 21-4618 at the time of sentencing, the statutory reference in the journal entry was ineffectual.
Defendant relies upon State v. Royse, 252 Kan. 394, 845 P.2d 44 (1993). In Royse, defendant was sentenced to maximum terms of 15 years to life on each of two counts of second-degree murder. The court failed to address whether the two sentences were to run concurrently or consecutively. When the trial court realized its omission, it ordered defendant back into court a week later and ordered the sentences to run consecutively. Defendant appealed, contending that once the sentence was imposed, the district court's power to modify the sentence was limited to reducing the sentence. 252 Kan. at 394-95.
We reversed the district court, underscoring the significance of pronouncing sentence in open court, as follows:
"Ordinarily, in a legal sense, `sentence' is synonymous with `judgment' and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has confessed or of which he has been convicted. Roberts v. State, 197 Kan. 687, Syl. ¶ 1, 421 P.2d 48 (1966). In criminal cases, the judgment must be rendered and sentence imposed in open court. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench. The court's judgment and sentence in a criminal case do not derive their effectiveness from the journal entry, or from any act *176 of the clerk; they are effective when announced. State v. Moses, 227 Kan. 400, Syl. ¶ 1, 2, 3, 607 P.2d 477 (1980).
"In State v. Zirkle, 15 Kan. App.2d 674, 814 P.2d 452 (1991), the district judge sentenced the defendant to a term of one to five years' imprisonment. After imposing the sentence, the judge inquired as to the jail time the defendant had already served, vacated the sentence, and ordered that the sentence be increased to two to five years. 15 Kan. App.2d at 675. The Court of Appeals noted State v. Moses, 227 Kan. at 402-03, and found that Zirkle had been sentenced when the judge announced the one-to five-year sentence from the bench.
"Once a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence. State v. Zirkle, 15 Kan. App.2d at 678.
"Royse's sentencing was complete when orally pronounced on August 29, 1991, and could not subsequently be increased on September 5, 1991. The sentences must be served concurrently." 252 Kan. at 397-98.
Defendant's reliance on Royse is misplaced. K.S.A. 1993 Supp. 21-4608(a) provides:
"When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as provided in subsections (c), (d) and (e)."
By statute then, when the sentencing hearing ended and consecutive sentences had not been imposed, the sentences ran concurrently. The court in Royse had no authority to bring the defendant back and increase his sentence.
The sentencing court herein imposed the maximum sentence on each count and ran them consecutively. Under 21-4618(a), the court was required to impose at least the minimum sentence of imprisonment on the aggravated assault on a law enforcement officer conviction. The finding relative to 21-4618(a) that a firearm had been used in that conviction had previously been made by Judge Zukel, as noted by defense counsel. So as to that count, only the length of sentence to be imposed was before the court. There is nothing in the statutes which precludes the court's determination, prior to the actual sentencing, that 21-4618(a) applied. The inclusion in the journal entry of the recital that 21-4618 *177 applied to the aggravated assault on a law enforcement officer conviction accurately reflected the proceedings herein and was appropriate under 21-4618(b). We find no error in this issue.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876971/ | 247 S.W.3d 103 (2008)
Kurt W. PONZAR, Appellant, and
Sandy L. Ponzar, Plaintiff,
v.
Reginald P. BODEUX, Respondent.
No. ED 90159.
Missouri Court of Appeals, Eastern District, Division Four.
March 11, 2008.
Kurt W. Ponzar, Weldon Springs, MO, for Appellant.
Daniel G. Tobben, Laura J. Gerdes, Clayton, MO, for Respondent.
Before MARY K. HOFF, P.J., SHERRI B. SULLIVAN, J., and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM.
Kurt W. Ponzar (hereinafter, "Ponzar") appeals pro se from the trial court's grant of summary judgment entered in favor of Reginald P. Bodeux (hereinafter, "Attorney"). Ponzar raises one issue on appeal, claiming Attorney's negligence was the proximate cause of his damages and that Attorney failed to advise him of issues on appeal.
We have reviewed the briefs of the parties and the record on appeal. There is no genuine issue of material fact which would preclude entry of summary judgment. Rule 74.04(c)(3). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1876982/ | 247 S.W.3d 815 (2007)
David Edward MOTES, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 07-29.
Supreme Court of Arkansas.
January 25, 2007.
Beverly C. Claunch, Heber Springs, AR, for appellant.
No response.
MOTION FOR RULE ON CLERK
PER CURIAM.
Appellant David Edward Motes, by and through his attorney, Beverly C. Claunch, has filed a motion for rule on clerk. The record reflects that appellant timely filed his notice of appeal on September 13, 2006, making his record on appeal due on or before December 12, 2006. On December 12, the circuit court entered an order extending the time for filing the transcript to January 19, 2007. Appellant states that when he attempted to tender the record to this court's clerk on January 3, 2007, the clerk refused to docket the record because the order of extension entered on December 12 did not comply with the requirements of Ark. R.App. P.-Civ. 5(b). Appellant subsequently filed the present motion.
Rule 5(b)(1), provides:
(b) Extension of time.
(1) If any party has designated stenographically reported material for inclusion in the record on appeal, the circuit court, by order entered before expiration of the period prescribed by subdivision (a) of this rule or a prior extension order, may extend the time for filing the record only if it makes the following findings:
(A) The appellant has filed a motion explaining the reasons for the requested extension and served the motion on all counsel of record;
(B) The time to file the record on appeal has not yet expired;
(C) All parties have had the opportunity to be heard on the motion, either at a hearing or by responding in writing;
(D) The appellant, in compliance with Rule 6(b), has timely ordered the stenographically reported material from the court reporter and made any financial arrangements required for its preparation; and
(E) An extension of time is necessary for the court reporter to include the stenographically reported material in the record on appeal.
Ark. R.App. P.-Civ. 5(b)(1) (2006). This court has made it very clear that we expect strict compliance with the requirements of Rule 5(b) and that we do not view the granting of an extension as a mere formality. See, e.g., Russell v. State, 368 Ark. 439, 246 S.W.3d 856 (2007) (per curiam); Davis v. State, 368 Ark. 351, 246 S.W.3d 433 (2007) (per curiam); Munn v. State, 368 Ark. 34, 242 S.W.3d 614 (2006) (per curiam). The order of extension in this case makes no reference to each of the findings of the circuit court required by the rule. Accordingly, we remand the matter to the circuit court for compliance with Rule 5(b).
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2583087/ | 302 N.Y. 502 (1951)
Walter Hanlon, Appellant,
v.
Macfadden Publications, Inc., Respondent.
Court of Appeals of the State of New York.
Argued April 4, 1951.
Decided June 1, 1951
John B. Doyle, Thomas R. McTigue, Frederic A. Johnson and Hugh G. Perry for appellant.
Henry E. Schultz, Joseph Schultz and Joseph E. Ginn for respondent.
LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE, FULD and FROESSEL, JJ., concur.
*505CONWAY, J.
This is an action to recover damages sustained by plaintiff by reason of the deceit of the defendant, his employer. Plaintiff commenced to work for defendant in 1921 and by 1935, was advertising manager of a group of defendant's magazines, earning, in addition to a base salary, a bonus or commission of 2% on all "billing" or sales of advertising space above a certain quota. This was an overriding commission in that plaintiff sold no advertising space himself but supervised the work of a group of salesmen, his commission being based upon the sales of such subordinate employees. Compensation on that basis continued through 1943. For the next year, 1944, plaintiff's commission rate was reduced from 2% to one half of 1% on certain billing above quota, and it is with the circumstances surrounding that reduction that we are here concerned.
Plaintiff had no formal contract of employment with defendant. He could have been discharged at any time or could have resigned at any time. The defendant employer at all times had the right to fix his compensation, to reduce it or to change it, without assigning any reason therefor. The employment was thus a hiring at will and the reduction in the commission rate in 1944 constituted a material change in the terms of that *506 hiring, resulting in a new or a rehiring. (Watson v. Gugino, 204 N.Y. 535, 541; Horowitz v. La France Industries, 274 A.D. 46, 47.)
The present action is based upon the claim that defendant, by false and fraudulent representations, induced plaintiff to assent to the rehiring and to continue in defendant's employ at the lowered commission rate, thereby causing him damage. Since plaintiff's complaint has been dismissed as a matter of law after a jury verdict in his favor, we consider the facts in the light most favorable to plaintiff and give him the benefit of every favorable inference which may reasonably be drawn from the evidence.
On several occasions in the latter part of 1943, two of defendant's executives talked with plaintiff about his commission rate. One, defendant's vice-president in charge of advertising, told plaintiff that the Salary Stabilization Board (a wartime agency organized in the Treasury Department to regulate wages and salaries to aid in preventing inflation, hereafter referred to as Board) was "concerned about all the money that the advertising department was making" and was threatening "to lock the top", i.e., to freeze the compensation of the advertising managers and salesmen at the dollar amount earned the previous year. Plaintiff objected that the principle of the 2% bonus was important to him, that his base salary was small in comparison with the character and responsibilities of his position but that he had been content to continue in defendant's employ at a fairly nominal salary "and take my income from the bonus arrangement * * *. When business was good it paid off well; when business was bad the company didn't have to defray as much." Plaintiff said he thought that his bonus arrangement was "a time-honored one in American business" and, in effect, that his services were worth at least what he had theretofore been receiving for them.
The vice-president said that he agreed with him. He urged plaintiff to "keep your shirt on" and promised that "he was going to fight it."
Subsequently, plaintiff inquired of him as to "how he was getting along in his fight", and was told that no determination had yet been made by the Board. On other occasions, the vice-president told him that he "was going to go before the Board *507 himself, along with our comptroller, and fight it himself in person", and, later, that he had been before the Board and had presented the case but that no decision had been made. Finally, he told plaintiff that, in view of the attitude of the Board, the defendant had decided to cut the commission rate for managers to the level above noted. The decision, he said, was "designed to placate the Board" so that the Board would not "lock the top completely." Plaintiff replied that he thought the vice-president had done "a very poor selling job on the Board" and requested permission "to go to the Board and state my own case", but that was refused, the vice-president saying that "he couldn't have his managers trooping down to the Board with exceptions." Plaintiff said he would be happy "to play along with whatever was good for the country in the war" but that he thought the issue should be met squarely, either compensation should be frozen at the previous year's dollar amount or the long-standing commission rate honored and continued without reduction in the rate. To this, the vice-president replied that plaintiff "should be a good soldier".
Plaintiff had similar conversations with defendant's supervising advertising director and later its president, who likewise told plaintiff that the reduction of his commission rate was made "in an effort to placate the Board". "In all of these many discussions", plaintiff said, "the issue had been the Salary Stabilization Board. It was the bete noir, if you want to use the expression." He further stated that he had believed what these two officers had told him about the necessity of the reduction in commission rate in order to placate the Board and was induced by their statements to submit to the cut, for "I had worked for them for 20 years, and I believed what they told me." Plaintiff's testimony as to his position in the dispute was supported by the introduction of certain documentary evidence, office memos which he had dictated at the time to the two officers mentioned.
Plaintiff thereafter continued in defendant's employ, accepted the cut and was paid at the reduced commission rate for 1944, 1945, and through September of 1946, when he left defendant's employ. Plaintiff then investigated the matter further by communicating with the former head of the Salary Stabilization *508 Board in New York City and learned that defendant's representation as to the necessity of the reduction to placate the Board "was a cock-and-bull story".
Plaintiff also read into evidence portions of examinations before trial of defendant's two executives already referred to, who conceded therein that they had never appeared before the Board in connection with plaintiff's commission rate, that the Board had made no objection that the overriding commissions of the managers were too high, that there had been no direction by the Board to cut them down and that no threat had been made by the Board to freeze compensation at the dollar level of the previous year. In other words, the representations to plaintiff were false.
The case was submitted to the jury under a charge as to which there were no exceptions or requests by defendant. In the course of his charge, the court said: "As a matter of the damage that the plaintiff is entitled to, if he is entitled to anything, he is entitled to the difference between what he would have gotten at two per cent and what he did get at one-half of one per cent. That is the measure of damage."
The jury at first returned a verdict for plaintiff without specifying the amount thereof. The jury was sent back for further deliberations but returned almost immediately asking for instructions "as to the amount of damages requested by the plaintiff in this action."
The court then said: "The amount that the plaintiff asks for is $33,579. I must say, however, that you must use your own judgment in arriving at any verdict. You have got to take different things into consideration. You are not bound by that figure. That is simply the amount that is asked. You must take into consideration that had he continued to work at that time, whether he would have earned that amount, whether by reason of illness, death, or any of the other elements, they might have been lessened. You can't speculate in any verdict. If you are satisfied that he would have continued, then you will apply this other figure as that which is offered by the plaintiff, after having taken, of course, into consideration the other things involved, as I have suggested. You are not bound by that figure. This is the figure the plaintiff asks for."
*509Defendant's counsel again took no exception, but instead asked for an additional charge that, even if the jury find that "a fraud has been committed on the plaintiff under which he is entitled to compensation", they could in their discretion award damages "for one year, two years, two and one-half years, or no years at all." The court so charged and defendant's counsel further requested that there be read to the jury the "different amounts that he [plaintiff] has computed would have been due him for his commissions for the different years of 1944, 1945 and 1946." That was done. The jury then returned a verdict in favor of plaintiff for the full amount, $33,579.
"The essential constituents of the action [for deceit] are tersely and adequately stated as representation, falsity, scienter, deception and injury." (Ochs v. Woods, 221 N.Y. 335, 338, and cases there cited; see, also, Reno v. Bull, 226 N.Y. 546, 550; Restatement, Torts, § 525; Prosser on Torts, pp. 705-706.)
In the case at bar, the evidence fully justifies findings that defendant represented to plaintiff that a reduction in his commission rate had been made necessary by the attitude of the Salary Stabilization Board; that this representation was made for the purpose of inducing plaintiff to consent to the cut in commission rate and to remain in defendant's employ at the lowered rate; that the representation was entirely false and fraudulent, and known by defendant to be so, in that defendant had never been in any difficulty with the Board, its executives had never appeared before the Board in connection with plaintiff's commission rate, and the Board had made no objection as to the amount of plaintiff's commissions; that plaintiff believed the false representation and relied upon it; that his reliance was reasonable since he was not permitted to go before the Board personally to check its accuracy; and that induced by and in reliance upon the false representation, plaintiff submitted to the cut in his commission rate, and continued in defendant's employ, rendering the same services as before but at a lower rate of compensation. All of these findings are amply supported by the proof and were implicit in the jury's verdict in plaintiff's favor. They cannot be seriously challenged now.
*510The dispute in the case at bar, at least upon the appeals, centers upon the question whether plaintiff sustained any damage or injury by relying upon the false representation. At the trial, as above noted, this point was not raised by defendant. On the contrary, the Trial Judge charged, without exception, that if the jury found that defendant had misrepresented to plaintiff, then he was damaged thereby and the measure of damage, with certain qualifications, was "the difference between what he would have gotten at two per cent and what he did get at one-half of one per cent." Indeed, defendant's counsel himself caused the dollar amount of such difference, for each of the years involved, to be read to the jury. Nevertheless, it is argued here by the defendant that the plaintiff did not prove that he was damaged by the false representation, and that consequently he has not established a cause of action.
Actual damage or injury to the plaintiff is, of course, an essential element of the action for deceit. (Urtz v. New York Central & H. R. R. R. Co., 202 N.Y. 170, 173; Ochs v. Woods, supra; Sager v. Friedman, 270 N.Y. 472, 479; Prosser on Torts, p. 768.) When, however, we accept plaintiff's proof as true and give him the benefit of every favorable inference therefrom, there can be no doubt that he has here met that requirement. It is a permissible inference on this record that plaintiff would not have continued in defendant's employ if he had known that defendant, in reducing his commission rate, was deliberately reducing his compensation for the benefit of the company, and was not acting under the compulsion of a governmental agency. What other purpose could defendant have had in making the false representation but to attempt to insure plaintiff's continuance in its employ? The inference is plain that defendant feared that if plaintiff were told the truth he would leave defendant's employ and go elsewhere in order to maintain his established commission rate. By deliberately falsifying the facts, defendant induced plaintiff to continue to render his services to defendant but at a lower rate of compensation. Plaintiff's area of choice was unlawfully circumscribed. He relied upon the false representation, continued to give his services to defendant, and accepted in return a rate of compensation lower than he had been receiving. Defendant's statements to plaintiff to "keep your shirt on" and that it would "fight" *511 the case before the Board would alone justify a finding that plaintiff would have left defendant if his rate of compensation were merely reduced as a matter of company policy and not because of the Board. In effect, plaintiff was asked to stay on with defendant and was told that his services were actually worth what he had been receiving for them, but was falsely informed by defendant that for reasons beyond its control it was prohibited by law from paying him that value. This evidence, as a jury could find, established both the true value of plaintiff's services and the fact that he had been induced to go without part of such true value through the defendant's deceit. If a jury should so find, they could then determine the extent of the injury and damage that was so inflicted upon the plaintiff.
The measure of damages in an action for deceit is firmly established. Plaintiff is entitled to indemnity for the actual pecuniary loss sustained as a direct result of the wrong. (Sager v. Friedman, supra, p. 481; Reno v. Bull, supra, pp. 552-553; 1 Clark, New York Law of Damages, § 421.) The instant case, while unusual on its facts, clearly calls for the application of this general rule. Plaintiff, of course, was not induced to part with any tangible object such as land, chattels or money as in the typical case of deceit. Instead, he parted with personal services. He was induced to render those services for a price fraudulently lowered. In the ordinary case of deceit, the measure of damage would be "the difference between the value of the thing bought, sold or exchanged and its purchase price or the value of the thing exchanged for it". (Restatement, Torts, § 549, par. [a].) The only distinction in the present case is that the jury was required to calculate the value of plaintiff's services instead of the value of the "thing bought, sold or exchanged". The true measure of damages here is the difference between the value of plaintiff's services and the price he was actually paid for them by reason of defendant's deceit. That, in effect, we think was the measure of damages applied in the trial court when the two portions quoted from the charge (supra, p. 508) are read together. The rule might have been expressed more directly and explicitly, but defendant, which took no exceptions and made no requests but instead concurred in the charge as given, cannot now complain on that score.
*512If the plaintiff were induced by false and fraudulent representations to render services for defendant gratuitously, without any compensation therefor, there could certainly be no doubt that he would have sustained injury as a result of defendant's wrong and that the measure of damages would be the reasonable value of the services fraudulently procured. Thus, it is said in Sedgwick on Damages (Vol. 2, § 673c), "* * * so where the performance of the service by the servant is obtained by fraud of the master, who by his fraud induces the servant to serve gratuitously, the servant on discovering the fraud is entitled to recover the value of his services." The measure of damage in that situation is the difference between the value of the services and zero, the amount received being nothing since the services were rendered gratuitously. The instant case differs from that situation only in degree. Here, plaintiff received some compensation for his services, but the rate of compensation was fraudulently lowered by the defendant employer. Plaintiff therefore was entitled to recover the difference between the true value of his services and the price he received for them. (Cf. Rickard v. Stanton, 16 Wend. 25, 26-27.) It so happens that the jury in the case at bar decided that the true value of plaintiff's services was an amount computed on the basis of the commission rate plaintiff enjoyed before the fraudulent reduction, even though, under the court's charge, the jury could have arrived at a lesser figure.
The judgments should be reversed and a new trial granted, with costs to abide the event.
Judgments reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000944/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-7399
JOE ROGERS,
Plaintiff - Appellant,
versus
WILLIAM D. CATOE, Director of SCDC; BARBARA
SKEEN, Director of Health Services; ROBERT
WARD, Warden of Evans Correctional Institu-
tion; PRAVIN R. PATEL, Doctor at Evans Correc-
tional Institution,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CA-99-2085-6-20AK)
Submitted: February 24, 2000 Decided: March 3, 2000
Before MOTZ and KING, Circuit Judges, and BUTZNER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Joe Rogers, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joe Rogers appeals the district court’s order denying relief
on his civil rights complaint. We have reviewed the record and the
district court’s opinion and find no reversible error. According-
ly, we affirm on the reasoning of the district court. See Rogers v.
Catoe, No. CA-99-2085-6-20AK (D.S.C. Sept. 24, 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
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4153042/ | People v Chin (2017 NY Slip Op 01880)
People v Chin
2017 NY Slip Op 01880
Decided on March 15, 2017
Appellate Division, Second 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 March 15, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
HECTOR D. LASALLE
BETSY BARROS, JJ.
2009-10764
(Ind. No. 1018/03)
[*1]The People of the State of New York, respondent,
vWayne Chin, appellant.
Lynn W. L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant, and appellant pro se.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Gamaliel Marrero of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Konviser, J.), rendered October 17, 2009, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of murder in the second degree in connection with the shooting death of the victim on June 12, 2001.
The defendant's contention that the Supreme Court erred in admitting into evidence the recording of a 911 emergency telephone call by the victim's niece is unpreserved for appellate review (see CPL 470.05[2]). In any event, contrary to the defendant's contention, the recording of the 911 call was properly admitted into evidence under the excited utterance and present sense impression exceptions to the hearsay rule, as the probative value of this evidence outweighed any prejudicial effect (see People v Wallace, 79 AD3d 1075, 1075-1076; People v Carrenard, 56 AD3d 486).
The defendant contends that he was deprived of a fair trial when the prosecutor elicited testimony from a police officer and the victim's niece regarding statements made by the victim's son at the scene, which improperly bolstered the testimony of the victim's son identifying the defendant as the shooter. The defendant's contention is partially unpreserved for appellate review, as he only raised a general objection with respect to the challenged testimony from the victim's niece (see People v Leon, 61 AD3d 776, 777). In any event, the defendant's contention is without merit. If a proffered statement also meets the requirements to be admitted as an excited utterance, its admission would be proper, notwithstanding the characterization as a prior consistent statement (see People v Buie, 86 NY2d 501, 511; People v Coward, 292 AD2d 630, 631). Here, the Supreme Court properly admitted the testimony of the police officer and the victim's niece concerning the statements of the victim's son at the scene identifying the defendant as the shooter under the excited utterance exception to the hearsay rule, and that testimony did not constitute improper bolstering (see People v Whitley, 59 AD3d 746, 747; People v Stevens, 57 AD3d 1515, [*2]1516; People v Farrell, 228 AD2d 693, 694).
The record as a whole demonstrates that the defendant received effective assistance of counsel under both federal and state constitutional standards (see Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137, 147).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are without merit.
CHAMBERS, J.P., ROMAN, LASALLE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 03-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1747934/ | 134 So. 2d 880 (1961)
242 La. 73
AIRCO REFRIGERATION SERVICE, INC.
v.
David FINK.
No. 45598.
Supreme Court of Louisiana.
November 6, 1961.
Rehearing Denied December 11, 1961.
Andrew H. Thalheim, Gretna, for applicant.
Curtis, Foster, Dillon & Huppenbauer, Francis J. Mooney, Jr., New Orleans, for plaintiff-respondent.
SANDERS, Justice.
This is a suit on a contract. The plaintiff, Airco Refrigeration Service, Inc., seeks *881 judgment against the defendant, David Fink, in the sum of $1,162.64, representing the contract price of $1,057 and extras for moving and re-installing a used air-conditioning unit at the defendant's restaurant located at Grand Isle, Louisiana. The defendant resists liability on the ground that the system failed to give satisfactory service because of defective installation.
The trial court dismissed plaintiff's suit on the contract but reserved its right to institute suit against the defendant on quantum meruit basis for the benefits which inured to him from the installation. On appeal the court reversed this judgment and rendered judgment for plaintiff in the sum of $922.64, with legal interest from the date of judgment, representing the contract price and extras less a credit of $240, the cost of insulating the ducts in conformity to the contract. See 127 So. 2d 290. Upon application of defendant we granted certiorari to review the ruling of the court of appeal.
According to the written contract, dated January 23, 1957, the plaintiff agreed for the sum of $1,057 to move a ten ton water-cooled air-conditioning unit used by defendant in his restaurant and re-install it in an equipment room outside of the building. The undertaking included the necessary electrical work, the installation of the water pump next to the cooling tower, the piping, and the installation of metal ducts. It also included the insulation of the ducts both on the inside and the outside with one inch board type Fiberglas.
The contract contained the following warranty provision:
"We will start test and place this system into operation for a total price of One Thousand, Fifty-seven Dollars ($1,057.00). However this price does not include any warranty for services to air conditioning unit other than work performed by us."
The installation was completed, and the system was placed in operation on January 31, 1957. At that time it tested as operating normally. With the advent of warmer weather, the system failed to provide adequate cooling for the restaurant. The plaintiff attributed this to scale in the well water being used which clogged the spray tree in the water tower. Upon defendant's complaint in June, plaintiff cleaned the water tower, added chemicals, and performed other air-conditioning services not covered by the contract. The plaintiff billed Fink in the sum of $105.64 for these extras. The system continued to render unsatisfactory service because of the lack of insulation on the duct which conveyed the cool air through the kitchen to the dining room. On July 18, 1957, the plaintiff wrote to the defendant offering to install the insulation if the defendant would make a partial payment on the contract price. In the meantime, however, Fink purchased a new air-cooled unit of greater capacity with which he used the ducts installed by plaintiff. He refused to make a partial payment to plaintiff. Although still in use at the time of this suit, the duct was never insulated. The cost of adding the insulation was estimated at $240.
Relying upon Article 2769 of the LSA-Civil Code, the court of appeal found a substantial performance of the contract by the plaintiff and rendered judgment for the contract price and extras less the sum of $240, the cost of insulating the duct. The court stated the applicable law as follows:
"With reference to the performance vel non of building contracts, where the contractor has defaulted, either in not completing the work or having performed defective work, but where there has been substantial performance, the contractor may sue for the full contract price. The remedy of the owner then is to allege and prove the nature and extent of the unfinished or defective work and the cost of completion and correction, the same to be deducted from the balance due under the contract. The burden is not upon the contractor *882 to prove the value of the actual work done on a quantum meruit basis."
In this Court the defendant asserts that the plaintiff cannot recover on the contract, since it is shown to have been breached, and that the court of appeal was in error in applying Article 2769[1] of the LSA-Civil Code. He relies upon Article 2520[2] of the LSA-Civil Code and the holdings of this Court in Radalec, Incorporated v. Automatic Firing Corp., 228 La. 116, 81 So. 2d 830, and B. F. Edington Drilling Company, Inc. v. Yearwood, 239 La. 303, 118 So. 2d 419.
The contract involved in the instant case is a building contract within the definition of Article 2756 of the LSA-Civil Code.[3] Article 2769 is therefore controlling. Under this codal provision the law is well settled that when the contractor has substantially performed a building contract which he has breached, he is entitled in a suit on the contract to recover the contract price less whatever damages the owner may prove attributable to the breach.[4]
Substantial performance of the contract is essential to warrant the application of this rule of law. For if the breached contract has not been substantially performed, the contractor may not recover on the contract, but is limited to recovery on quantum meruit.[5]
The principal question presented in this case is whether or not there has been substantial performance so as to permit recovery on the contract. This is a question of fact.[6] Among the factors to be considered are the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the defendant of the work performed.[7]
The evidence is conclusive that the plaintiff breached its contract only in failing to insulate the metal duct which passed through the kitchen. All other work covered *883 by the contract was properly completed. This included the moving of the air-conditioning unit and the installation of the pump, the ducts, the connections, the dampers, the switches, and the electrical wiring.
The plaintiff attributes the failure to insulate the kitchen duct to an oversight of the sheet metal worker of a subcontractor. The absence of this insulation reduced the efficiency of the system and caused the precipitation of moisture in the kitchen.
The plaintiff offered to complete the insulation if defendant would make a partial payment on the contract price. The defendant refused to make the payment.
The defendant replaced the used air conditioner with a new air-cooled unit of greater capacity. Although he continued to use the ducts, he did nothing to have the insulation completed.
The addition of the insulation to the duct presented no major problem from a structural or mechanical standpoint. If it had been added during the installation, the cost would have been substantially less than the estimate of $240, which includes the cost of a special trip to the restaurant for the adjustment.[8] The contract did not include any warranty for services to the air-conditioning unit other than work performed by the plaintiff.
We conclude, as did the court of appeal, that there was substantial performance of the contract by the plaintiff. It is, therefore, entitled to recover the contract price less damages for the nonperformance.[9] The only evidence of damages in the record is the estimate by plaintiff's expert witness that it would cost $240 to insulate the kitchen duct. Although the case was held open by the district court to permit the defendant to offer additional evidence,[10] he introduced no evidence of damages. Under these circumstances we accept the estimate of the plaintiff.[11] We find that the liability of the defendant for the extras is amply supported by the record.
While defendant has strenuously urged that this Court apply Article 2520 of the LSA-Civil Code relating to redhibition and the avoidance of sales, we have concluded that this codal article has no application if for no other reason than that the basic contract in this proceeding is not a sale.[12] Neither do we find apposite the cases of Radalec, Incorporated v. Automatic Firing Corp., supra, and B. F. Edington Drilling Company, Inc. v. Yearwood, supra, relied upon by the defendant. The first of these cases involved a sale to which redhibition was applicable. The Edington case involved a contract to drill a water well for irrigation purposes. Assuming that LSA-C.C. Article 2769 is applicable to such a contract, the facts were such as to show that a well of a specified capacity was the purpose of the contract. The Court construed the contract to contain an express warranty that the well would produce 1,000 gallons per minute. When completed, it produced approximately 650 gallons per minute. The well was never used by the defendant. The purpose of the contract had been defeated. Under these circumstances, the contract was not substantially performed so as to permit recovery on it. The case is thus distinguishable.
For the reasons assigned, the judgment of the court of appeal is affirmed.
NOTES
[1] Art. 2769. "If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract."
[2] Art. 2520. "Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice."
[3] Art. 2756. "To build by a plot, or to work by the job, is to undertake a building or a work for a certain stipulated price." See Mangin v. Jorgens, La.App., 24 So. 2d 384; 7 Louisiana Law Review 564 (1947); Planiol Civil Law Treatise (Translation), Vol. 2, Part 2, Nos. 1897-1901.
[4] Cairy v. Randolph, 6 La.Ann. 202; Reimann Const. Co. v. Upton, La.App., 178 So. 528; Davidson v. McGrath, 5 La. App. 125; Merrill v. Harang, La.App., 198 So. 386; Lillis v. Anderson, La.App., 21 So. 2d 389; Mangin v. Jorgens, La. App., 24 So. 2d 384; Brandin Slate Co. v. Bannister, La.App., 30 So. 2d 877; Poche v. Landry, La.App., 57 So. 2d 808; D'Avy v. Briley, La.App., 72 So. 2d 758; Spicuzza v. Ranzino, La.App., 73 So. 2d 208; Baker v. Stamps, La.App., 82 So. 2d 858; Norman v. Brown, La.App., 83 So. 2d 488; Jones v. Tusa, La.App., 100 So. 2d 799; Jack v. Henry, La.App., 128 So. 62; Jerrie Ice Company v. Col-Flake Corporation, D.C., 174 F. Supp. 21, aff'd 5 Cir., 278 F.2d 508.
[5] Town & Country Contractors v. Henderson, 231 La. 131, 90 So. 2d 863; Davidson v. McGrath, 5 La.App. 125; 7 Louisiana Law Review 564, 578.
[6] The trial court made no reference to the doctrine of substantial performance in its opinion; hence, that court made no findings of fact in respect to it.
[7] Ilgenfritz v. Radalec, Inc., 226 La. 59, 74 So. 2d 903; Town & Country Contractors v. Henderson, 231 La. 131, 90 So. 2d 863; Mangin v. Jorgens, La.App., 24 So. 2d 384; Jones v. Tusa, La.App., 100 So. 2d 799; Pelican Signs v. D'Aquin, La. App., 107 So. 2d 722; 3A Corbin on Contracts, §§ 700-707, pp. 308-331 (1960).
[8] The plaintiff is domiciled in New Orleans. The restaurant is located at Grand Isle, a summer resort more than a hundred miles distance by highway. At the time of the contract, the plaintiff had its personnel in the area engaged in other work. The ducts were fabricated and installed by a subcontractor likewise from New Orleans.
[9] LSA-C.C. Article 2769.
[10] The case was laid over from September 25, 1959 to November 13, 1959 for this purpose.
[11] See A.B.C. Oil Burner & Heating Co. v. Palmer, La.App., 28 So. 2d 462; Beeson v. Oden, La.App., 58 So. 2d 221.
[12] See Mangin v. Jorgens, La.App., 24 So. 2d 384; Papa v. Louisiana Metal Awning Company, La.App., 131 So. 2d 114. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1829869/ | 986 So. 2d 122 (2008)
Carol RICE and Richard D. Rice
v.
MESA GENERAL CONTRACTOR, L.L.C. and Fred L. Mesa.
No. 08-CA-115.
Court of Appeal of Louisiana, Fifth Circuit.
May 27, 2008.
*123 Alan P. Dussouy, Metairie, Louisiana, for Plaintiffs/Appellees.
*124 Richard J. Tomeny, Jr., Metairie, Louisiana, for Defendant/Appellant.
Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and GREG G. GUIDRY.
THOMAS F. DALEY, Judge.
Appellants, Mesa General Contractors, L.L.C. (Mesa) and Fred Mesa, appeal from a judgment finding that Mesa breached its construction contract with plaintiffs, Carol and Richard Rice (plaintiffs), and awarding damages in the amount of $79,539.08. Plaintiffs hired Mesa to construct an addition to their home over an existing garage. The trial court also rejected a reconventional demand made by Mesa against plaintiffs for the amount of $6,668.34, representing the amount allegedly due Mesa from plaintiffs under the contract. The trial court further declined to find Fred Mesa personally liable under the contract. The trial court awarded the plaintiffs $79,539.08 in damages.
Mesa appeals the trial court's judgment.[1] Mesa argues in brief that the evidence shows that Mesa did fully perform the construction in accordance with its contract, and further, that it was not responsible to supervise the work, as it was not hired as a general contractor. Mesa argues that the trial court erred in holding it liable for the differences in its contract with the owner and the specifications in the plans drawn up by the architectural designer, when those plans were not part of the contract between the owner and Mesa.
Mesa also argues that plaintiffs cannot now complain of different materials being used than the ones specified in the plans, because they were present when the alternate materials were installed/used, and failed to complain at that time, only complaining after the work was completed.
Mesa further argues that plaintiffs did not bear their burden of proof regarding breach of contract, nor the amount of damages. Mesa argues that the trial court erred in allowing into evidence an accounting ledger prepared by plaintiff, when the document was not listed on the pre-trial order, nor produced during discovery.
We affirm the judgment of the trial court that Mesa breached the contract with the plaintiffs, but on a different basis. We further amend the damage award as noted below.
FACTS
In 2003, plaintiffs desired to build a second floor addition on top of their existing garage. They had plans for the addition drawn up by Ronald Authement, an architectural designer and draftsman. He testified that he visited the property several times and drew up a plan, which was then reviewed by a civil engineer to determine structural load requirements, something that Authement was not qualified to do on his own, not being an architect. After the plans were finished, the Rices sought bids from three contractors. They ultimately selected Mesa General Contractor to perform certain items of construction under the plans. The plaintiffs testified that they never met or talked with Mr. Mesa, but dealt with Mr. Alan Thibodeaux, the construction supervisor for Mesa.
Plaintiff, Carol Rice, testified that she gave Authement's plans to Mr. Thibodeaux in order for him to work up the bid. Mesa's contract proposal is dated May 25, 2003 and lists a contract price of $64,875.00 *125 for Mesa's work. The contract states that the job should be complete within 12 weeks. Testimony from Mrs. Rice and Thibodeaux established that work began within two weeks of the contract's execution. Testimony also revealed that the job lasted at least 36 weeks, and that the "punch" list was never finished due to a breakdown of the relationship and this suit being filed. Mrs. Rice testified that Mr. Thibodeaux's last day on the job was February 3, 2004, at which point she felt he had not finished the scope of his contract work.
When Thibodeaux returned the contract, Mrs. Rice admittedly did not check to see if the contract provisions matched the plans, because she "assumed" they did match. It was shown at trial that in several respects, Mr. Thibodeaux's bid proposal contained differences with the plans, most notably changing Authement's specification for the floor joist system, using 2×10 joists instead of 2×12s as called for in the plans. This item, though not pointed out specifically by Thibodeaux, is clearly shown on page one of the contract. The evidence at trial showed that both parties went over the contract prior to signing it. There are several handwritten notations and changes that were made on the contract prior to signing it.
Whereas Mrs. Rice testified she felt Mesa was the "general contractor" on the job, the Mesa contract showed that Mesa did not undertake supervision of the entire job. The scope of Mesa's work was not to bring the project to completion, as the Rices would undertake interior finishing work after Mesa would finish their portion of the job. The plaintiffs secured their own building permit.
Mrs. Rice testified that problems started almost immediately; for instance, the contractor did not remove debris from her yard every day as he had promised, which prevented the plaintiffs' dogs' use of the yard until it was cleared every night.
In particular, plaintiff noted the following items with which she was dissatisfied. The window in the front of the addition was out of square. The floor joists were unevenly spaced, so hanging drywall was very problematic. The back door was not aligned properly, and there was a leak under the plate. Many of the floor joists sagged, as evidenced by photos entered into evidence. Ripped visquene covered the demolished ceiling of the garage and failed to protect areas underneath it from the elements. Hurricane clips (straps) in the roofing were either not used or were underused in areas.
Mrs. Rice noted that the roof of the addition did not tie in well to the existing structure. The plans had the hips and valleys lining up to each other in a parallel fashion. As built, the hips and valleys of the old house and the addition were not parallel to each other, but formed "parallelograms." It was visually displeasing, though Rice admitted the roof did not leak. Mrs. Rice noted that the contract called for the windows to match the existing structure, but the windows that Thibodeaux ordered did not match at all. Thibodeaux admitted that he did not take the time to find matching windows, but tried to blame that delay on Mrs. Rice. Mrs. Rice also noted that the contract called for hand-split cedar shake siding to match the existing house, but a different product was delivered. Mr. Thibodeaux admitted that he probably did not tell his supplier to order the correct item, but again tried to blame the resulting delay on Mrs. Rice. She was additionally unhappy that the weather sheathing underneath the siding was torn in places, which compromised the moisture barrier, and was apparently not corrected before the siding was installed. *126 (Thibodeaux testified that he did not know whether it got corrected.) The siding itself was installed incorrectly and had to be redone.
Other problems included water damage in the main house, along the outside wall and in the master bathroom, guest bedroom, and bath. It was discovered by Ron Daigle, a contractor whom the plaintiffs engaged to fix the floor joist system, that there was no a/c vent in the bathroom, and that there was only one (1) 6 inch a/c vent in the entire upstairs room, which was inadequate.
Mrs. Rice additionally complained about the inconvenience that the project's delay and prolonged finish date caused her family. She denied, however, restricting the contractors' access to the job while she was at work in the mornings. She explained she told Thibodeaux that if the contractors were not there by 9:00 a.m., she wouldn't put the dogs in their run, which would restrict the contractors to working inside the structure until she returned home after 1:00 p.m. Mrs. Rice complained that Thibodeaux failed to supervise his own sub-contractors, and on more than one occasion, the Rices paid Mesa's subcontractors directly, which was not their responsibility.
On cross examination, Mrs. Rice reiterated that she was unaware that Mesa's contract differed in so many details from the design plans drawn up by Authement. She admitted that the building inspector from the Parish inspected the work in December of 2003 and, after getting an engineer's approval on various items, including the floor joists and roofing, gave the "ok to close" (the walls). She admitted that she did not sue Mr. Wethern, the engineer who approved the construction for the parish's building inspector.
Mrs. Rice testified that Mr. Thibodeaux never received her punch list, because he "cut off the process" on February 5, 2004. Mr. Thibodeaux testified that at that point, he couldn't "appease" Mrs. Rice anymore.
Around May of 2004, Mrs. Rice became concerned that Mesa had not performed its work properly, so they engaged a home inspector, Mr. Paul DiLeo, to evaluate the construction. Mr. DiLeo, who was qualified as an expert in residential construction, rendered a report on June 15, 2004, that identified several areas of substandard construction. DiLeo explained that he inspected the construction first, and then sat down with the plans to correlate his findings with the plans. DiLeo explained that he was not an engineer, and would defer to an engineer regarding load calculations.
First, DiLeo found the entire floor joist construction to be inadequate, as Mesa used 2×10s when the designer's plans called for 2×12s, and further, that the 2×10s were compromised because they had been "notched" to fit the plate, and were thus inadequate to carry the expected second-floor load. He further found that the joists were haphazardly placed instead of being 16' on center, as required by the contract, the plans, and applicable construction standards.
DiLeo further found that no blocking or bridging was used, except down the center line, which he testified was required by applicable building codes. He found floor joist hangers that were improperly secured, and that not enough of them were used. DiLeo testified that joist hangers are fine if used correctly, which he found were not. He found H-clips that were incorrectly or inadequately nailed in. He found that an attic purlin brace was missing. He found an inadequate use of deadwood, which he testified was necessary to hang sheetrock correctly. He found the *127 window improperly framed and in the wrong location.
DiLeo found the asymmetrical hips and valleys on the roof, which he opined were necessary for proper drainage off the roof. He also found that some window casings and door jambs were purchased too small for them to fit around the sheetrock. He found a combination of poor lumber quality and poor installation.
DiLeo further noted that the plans called for heavy-duty Microllam beams, which Mesa eliminated entirely from the structure. He found that Mesa instead nailed two (2) 2×10s together, which he said was not as strong. He felt the roof was improperly constructed because it was not built to the plans; the ridge was in the wrong place, the purlin brace was missing, the roof was missing some cross ties, and a 2×4 brace was used instead of the specified 2×6 brace. He issued an addendum to his original report on June 26, 2004, in which he discussed how the notching in the floor joists further compromised its load-carrying ability. He testified that he was aware that at the point of tie in, the existing house had 2×10 joists, but said that it could have been correctly used in the existing structure depending on the load requirements at that location.
DiLeo opined that plaintiffs' best option was to tear out the entire renovation and start over. He based this opinion on the fact that the 2×10 floor joists were inadequate and poorly done, plus the roofs improper construction, structurally and aesthetically.
Mr. Thibodeaux, the job supervisor for Mesa, testified for the defense. He was the person responsible for drawing up the contract and supervising the work. He explained much of the project's delay was caused by trying to "appease" Mrs. Rice, but it was revealed instead that many of the delays were caused by his negligence or inattention to the details of the contract. In particular, the incident with the electrical meter and the power outage was due to improper actions in moving the electrical power stem, not a thunderstorm as Mr. Thibodeaux testified. Further, the failure of the windows and siding to match the existing structure, as per the contract, was not attributable to Mrs. Rice. Thibodeaux testified that he performed some items that were extra-contractual and paid for them himself, just to appease the client.
Thibodeaux testified that the parish's building inspector requested an engineer's approval of the various changes that Thibodeaux made to the plans, and such approval was made following some requested corrective work, and the construction passed the inspection.
Thibodeaux disagreed in many places with Mr. DiLeo's report. He said that he did use blocking and bridging down the center line, but disagreed it was necessary elsewhere, where its absence was noted. He explained that it is impossible to put all the joists exactly 16' on center, and explained how he compensated for the differences. He stated that he made the decision to use 2×10 floor joists because the existing house had them at the point of tie in, and noted that they were approved by the engineer prior to the final inspection. He explained that he didn't need joist hangers where DiLeo noted their absence, because the joists were sitting on top of the plate. He disagreed that the lumber he used was of "marginal" quality. He disagreed that the random spacing on the joists compromised the strength of the structure. He agreed that the joist hangers were randomly used, because he only used them where he needed them.
Thibodeaux explained that Mrs. Rice only complained about the hip and valley on the roof in one spot, where it showed as *128 people drove up to the house. He claimed that he straightened it out to her satisfaction, and offered to fix the one in the back, but she declined. He didn't agree with DiLeo's report regarding the wrong size window casings and door jambs. He claimed that the problem there was with the existing wall.
Thibodeaux said that he kept a set of plans on the job so the subcontractors could refer to them. He admitted that he was not on the job every day. Rice, however, claimed that the set of plans kept in the garage was ruined by rain when the roof was covered by the ripped Visquene, and with the other set being kept in Thibodeaux's truck, the subs frequently had no plans to refer to.
Thibodeaux testified that on many jobs he doesn't use H-clips when he uses 16' on center joists, but that his structures pass inspections. He agreed he probably missed the purlin brace, because he did not recall remedying it. He accounted for the uneven hips and valleys by claiming it was "that way" when a new structure was tied to an old one.
Thibodeaux admitted that he omitted the three Microllam beams, but claims that his triple 2×10 beam was stronger. He did not explain why he made this change. He admitted that he probably did not correct the ripped weather sheathing beneath the cedar shake siding, but that the Rices had not complained to him about leaks. He did not notice the bowed floor that is depicted on some of the photos in evidence. He claimed that he never finished his final punch out because the relationship with the Rices broke down.
The trial court asked for post trial memoranda and took the matter under advisement. Defendants argued that the plaintiffs failed to carry their burden of proof. In their memorandum, the plaintiffs asked for a total of $170,961.35, which represented plaintiffs' actual expenses of $83,961.35, as testified to by Mrs. Rice (which included the $17,000.00 to Daigle to fix the floor joist system), $75,000.00 to fix the roof, and $12,000.00 for inconvenience caused by the project's delayed completion.
On August 31, 2006, the trial court rendered judgment in favor of the plaintiffs, finding that Mesa had a duty to make a full and fair disclosure to the plaintiffs before making any changes to the plans and specifications prepared by the draftsman, and because Mesa deviated from the plans and specifications provided by plaintiffs, Mesa was liable for the consequences arising from such deviations. The trial court awarded the plaintiffs $79,539.08 in damages, disallowed Mesa's reconventional demand, and cancelled the lien Mesa filed on plaintiffs' property.[2]
LSA-C.C. art. 2769 states that if an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract. Under this article, a building owner seeking to recover damages from a construction contractor for defects bears the burden of proving: (1) both the existence and nature of the defects; (2) that the defects were due to faulty materials or workmanship; and (3) the cost of repairing the defects. Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., 36,361 (La.App. 2 Cir. 12/20/02), 835 So. 2d 880.
*129 We see no manifest error in the trial court's conclusion that Mesa breached the contract, but not for the same reasons. We find that the contract that was signed and executed between the parties, rather than the designer's plans (which were a guideline), was the legal document that controlled the scope of the work, including the various materials to be used. The Rices went over the contract with Thibodeaux before executing it. The record revealed that Mrs. Rice had a law degree, and as such was not a naive consumer. It is true that the contract contained some differences from the designer's plans, but these differences were not hidden. The Rices were responsible for being familiar with their plans and the contract, and may not evade their responsibility by "assuming" that the documents matched.
However, Mesa is liable to the Rices for substandard construction. The testimony substantiates defects in performance by Mesa, from both the standpoint of quality of materials and time that resulted in a substandard construction that required remedial action. The record as a whole demonstrates Mesa's (specifically, Thibodeaux's) negligence, sloppy construction, short-cuts, and inattention to specific contract details, all of which combined to create not only a substandard structure that needed significant repairs, as testified to by plaintiffs' expert, but vast delays in completion of the project.
The damage award represents $57,000.00 in payments that the plaintiffs made toward the total contract price; $17,000.00, which represents Ron Daigle's charge to fix the floor joist system; and $5,539.08, which represents amounts that plaintiffs paid directly to Mesa's subcontractors, and other expenditures plaintiffs made to repair damaged work. There was testimony that repairs to the roof were estimated at $75,000.00, though this figure was not supported by documentary evidence or testimony.
We find that the trial court abused its discretion in the amount of the damage award. The appropriate measure of damages as a result of a breach of a contract to build is what it will take to place the homeowner in the position he deserved to be in when the building was completed; the owner is entitled to cost of repairs necessary to convert the unsound structure into a sound one or the amount paid to remedy the defect. Martinez v. Reno, 99-114 (La.App. 5 Cir. 9/15/99), 742 So. 2d 1014.
Further, under Louisiana law, a building contractor is entitled to recover the contract price even though defects and omissions are present when he has substantially performed the building contract. "Substantial performance" means that the construction is fit for the purposes intended despite the deficiencies; this is a question of fact for the trial judge. Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., 36,361 (La.App. 2 Cir. 12/20/02), 835 So. 2d 880. In fashioning its damage award and not awarding the plaintiffs the entire amount of damages they requested, the trial court implicitly recognized that plaintiffs did not prove that the structure was so defective that it should be demolished. There is no justification, then, for giving the plaintiffs their addition for free. Accordingly, we amend the damage award to delete from the award $57,000.00, which represents the amounts that the plaintiffs paid Mesa toward the contract.
The Rices also presented unrebutted evidence that Mr. Daigle's repairs to the joist system caused them to lose 27 square feet of living space. Accordingly, we will *130 award the plaintiffs $3,477.30 as compensation for that lost space.[3]
The damage award, as amended, is $26,016.38, which is the amount that plaintiffs demonstrated at trial they spent to correct defects on the work performed by Mesa ($17,000.00 paid to Mr. Daigle and $5,539.08 paid to Mesa's subcontractors and to make repairs to other damaged work, and $3,477.30 compensation for lost space resulting from repairs).
Accordingly, the judgment of the trial court in finding that Mesa breached the construction contract is affirmed. The damage award is amended to $26,016.38. The Second Amended Judgment dated November 8, 2007 is amended as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Carol and Richard Rice, and against the defendant, Mesa General Contractor, L.L.C. ("Mesa"), awarding Twenty-Six Thousand Sixteen and 38/100 ($26,016.38) Dollars in damages, plus court costs and interest from date of judicial demand.
AFFIRMED AS AMENDED.
NOTES
[1] Plaintiffs do not appeal the portion of the trial court's judgment finding no personal liability on Mr. Fred Mesa.
[2] These rulings actually occurred in three separate judgments: an original judgment, an amended judgment, and a second amended judgment. See also this Court's opinion in the original appeal of this matter, 07-CA-545. Procedurally, it is the second amended judgment that is the subject of the present appeal.
[3] This amount is calculated as follows. Plaintiffs' exhibit 1 shows the addition's dimensions as 18 ft. × 28 ft., for a square footage of 504.27 sq. ft. equals 5.36 % of 504 sq. ft. 5.36% of the total contract price of the addition, $64,875, equals $3,477.30. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2168768/ | 611 N.W.2d 101 (2000)
259 Neb. 579
STATE of Nebraska, appellee
v.
Kerri LOBATO, appellant.
No. S-99-342.
Supreme Court of Nebraska.
May 26, 2000.
*102 Arthur C. Toogood, Adams County Public Defender, Hastings, for appellant.
Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.
HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
HENDRY, C.J.
INTRODUCTION
Kerri Lobato pled guilty to theft by deception, a Class III felony, and was sentenced *103 to 5 years' probation. As one of the terms of her probation, Lobato was ordered to spend 180 days in the county jail. Lobato appeals, claiming the sentence is excessive. We moved this case to our docket pursuant to our power to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb. Rev.Stat. § 24-1106(3) (Reissue 1995).
FACTUAL BACKGROUND
Lobato was charged with two counts of theft by deception on February 17, 1998. These charges resulted from Lobato's obtaining cash and gift donations from various individuals, claiming the money was to be used for Lobato's cancer treatment and prescription drugs, when in fact Lobato knew she did not have cancer.
Lobato pled guilty to one count of theft by deception. The court sentenced Lobato to 5 years' probation. As one of the conditions of probation, Lobato was ordered to serve 180 days in the county jail. In addition, the court ordered that Lobato serve this jail time without the possibility of earning good time credit. Lobato was also ordered to pay court costs and $4,511.59 in restitution. The court further ordered Lobato to write letters of apology to each victim within 30 days.
ASSIGNMENTS OF ERROR
Lobato claims, restated, that the trial court erred in (1) imposing a sentence of probation that was excessive and disproportionate and (2) denying Lobato the opportunity to earn good time credit during her 180-day jail term.
STANDARD OF REVIEW
Sentences within statutory limits will only be disturbed by an appellate court if the sentence complained of was an abuse of judicial discretion. State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999); State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
Whether a condition of probation imposed by the sentencing court is authorized by statute presents a question of law. See, State v. Wood, 245 Neb. 63, 511 N.W.2d 90 (1994); State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991).
ANALYSIS
EXCESSIVE SENTENCE
Lobato argues that "imposition of the maximum jail sentence as a condition of probation is excessive and unnecessary to rehabilitate this Appellant." Brief for appellant at 8. Under Neb.Rev.Stat. § 29-2262(2)(b) (Cum.Supp.1998), the court has the authority to sentence a defendant, as a condition of probation, "[t]o be confined periodically in the county jail or to return to custody after specified hours but not to exceed (i) for misdemeanors, the lesser of ninety days or the maximum jail term provided by law for the offense and (ii) for felonies, one hundred eighty days."
The 180-day jail term is within the statutory limits. Absent an abuse of discretion, such a sentence will be upheld on appeal. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. State v. Bartholomew, supra.
The record shows that Lobato solicited and accepted donations of money and gifts from numerous victims who had been misled by Lobato into believing that she had cancer. The trial judge at sentencing noted, "it was a scam, more or less, that you perpetuated, and I can't put you on just straight probation without some jail time, because that would be viewed as a slap on the wrist. And I think it is appropriate you serve some jail time for this offense."
Behavior such as Lobato's harms not only those victimized by the "scam," but also may cast doubt on legitimate fundraising efforts on behalf of terminally ill persons with true financial needs. The trial court did not abuse its discretion in ordering *104 Lobato to serve 180 days in jail as part of her probation.
GOOD TIME
Lobato also argues that the trial court erred in ordering that Lobato could not earn good time credits while incarcerated. "[W]hen a court sentences a defendant to probation, it may impose any conditions of probation that are authorized by statute." State v. Escamilla, 237 Neb. at 650, 467 N.W.2d at 62; State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984). Lobato asserts that she should be allowed to earn good time credits while incarcerated under Neb.Rev.Stat. § 47-502 (Reissue 1998). Section 47-502 states that a person incarcerated in a city or county jail shall receive 7 days of good time credit for every 14 consecutive days served without committing any breach of discipline or other violation of jail regulations.
We have previously addressed the impact of § 47-502 on incarcerated probationers in State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992). In Salyers, the defendant asserted that probationers serving intermittent sentences should be entitled to earn good time credit under § 47-502. We disagreed, finding that the plain language of the statute required that the jail time be served consecutively in order for § 47-502 to apply.
The State asserts that the holding of Salyers is without application in Lobato's case because § 47-502 has been amended since the Salyers decision. At the time Salyers was decided, an inmate in city or county jail was required to serve 21 consecutive days to earn 7 days of good time credit. In 1993, the Legislature amended § 47-502 to provide that inmates must serve 14 consecutive days to earn 7 days of good time credit. This amendment does not affect the holding in Salyers that probationers serving consecutive jail time are eligible to earn good time credit under § 47-502.
While the sentencing court may impose "such reasonable conditions as it deems necessary or likely to [e]nsure that the offender will lead a law-abiding life," § 29-2262(1), "`special provisions of a statute in regard to a particular subject will prevail over general provisions in the same or other statutes so far as there is a conflict,'" State v. Escamilla, 237 Neb. 647, 651, 467 N.W.2d 59, 62 (1991). Denying a probationer the ability to earn good time credit as provided for by § 47-502 is thus not a condition of probation authorized by statute. See State v. Escamilla, supra. Lobato was sentenced to serve 180 consecutive days in the county jail. She is eligible to earn good time credit under the terms of § 47-502 while incarcerated. See State v. Salyers, supra.
The State argues that because Lobato was sentenced to probation and not sentenced to "punitive" incarceration, § 47-502 need not apply. We find this distinction unpersuasive. As we noted in State v. Salyers, 239 Neb. at 1007, 480 N.W.2d at 177, the language of § 47-502 is plain and unambiguous and "specifically applies to jail inmates who have served [the required number of] consecutive days." The trial court erred in ordering that Lobato could not earn good time credit while incarcerated for 180 consecutive days.
CONCLUSION
That portion of Lobato's sentence denying good time credit under § 47-502 is vacated and the cause is remanded with directions consistent with this opinion. In all other respects, the sentence is affirmed.
AFFIRMED IN PART, AND IN PART VACATED AND REMANDED WITH DIRECTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326495/ | Lauriat, Peter M., J.
The plaintiff and counterclaim defendant, Fort Point Commercial Company, Inc. (“Hunneman”), commenced this action against Wayne Spiegel in an effort to obtain Spiegel’s cooperation with a corporate restructuring plan. A central issue to the case is which of two documents, the Shareholders *340Agreement Components (“SAC”) or the “March Document”1 controls Spiegel’s stake in Hunneman, and the effect of the applicable agreement on his equity share in the company. Hunneman asserted five claims in its Complaint against Spiegel.
Spiegel responded by asserting ten counterclaims. Against Pratt and Hunneman, he asserted claims for breach of contract (Count I), breach of the implied covenant of good faith and fair dealing (Count II), breach of fiduciary duty/freeze-out (Count III), misrepresentation (Count IV), and promissory estoppel (Count V). Against all of the counterclaim defendants, Spiegel asserted claims based on unjust enrichment (Count VI), conversion (Count VII), and constructive trust (Count VIII). He also requested an accounting (Count IX) and a declaratory judgment as to which document controls his equity interest (Count X). Hunneman, Fort Point Management & Development Corp., and Fort Point Appraisal Corp. (the “Fort Point entities”) have now moved for summary judgment on all counterclaims against them, and as to Count v. of the Complaint. Pratt has moved for summary judgment as to all counts against him. For the following reasons, the counterclaim defendants’ summary judgment motions are allowed in part and denied in part.
BACKGROUND
The relevant facts are taken from the record and viewed in the light most favorable to Spiegel, the non-moving party. See Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982). Hunneman is a leasing and brokerage firm specializing in commercial real estate. Pratt is the president and CEO of Hunneman and majority shareholder of the Fort Point entities. Spiegel was employed by Hunneman as a real estate broker for approximately twenty years. In 2001, Spiegel and Hunneman entered into the Shareholders Agreement Components (“SAC”). The SAC provided that Spiegel and two others would each receive ten percent of the equity stock interests in Hunneman. A fourth person would receive five percent of the outstanding stock, and Pratt would hold the remainder, sixty-five percent.
Section II of the SAC covers circumstances under which a shareholder might part ways with Hunneman. Section II.B. states that if a shareholder is dismissed “for cause,” his or her stock “will be deemed surrendered and cancelled without payment.” Section II.C. provides, in pertinent part:
Upon termination of the Shareholder’s working relationship with [Hunneman] other than for cause (including on account of death or permanent disability), or upon the Shareholder resigning from [Hunneman] after April 30,2003, the following shall occur: first, [Pratt] shall have the right, but not the obligation, to buy that Shareholder’s stock at a price equal to (i) two times book value (corporate net worth as set forth on [Hunneman’s] balance sheet at the close of [Hunneman’s] then last fiscal year) if the termination is during the two (2) years beginning May 1, 2003, or (ii) at three times the book value, if during the next two (2) years, or (iii) at four times the book value thereafter (the “Formula Price”); and, if termination of the Shareholder’s working relationship occurs after May 1, 2006, and the Shareholder has then continuously been a full-time [Hunneman] broker, if [Pratt] does not elect to purchase that Shareholder’s stock the Shareholder may, within thirty (30) days after termination, elect to sell his/her shares to [Hunneman], and [Hunne-man] shall then be obligated to purchase his/her shares at the Formula Price determined as of the date of that person’s election to sell.
In Section VI.A., “Application of Cash Flow,” the SAC provided: “It is intended that [Hunneman’s] profits be built to enable [Hunneman’s] cash flow to be paid and applied in ... an amount equal to 10% of the balance for a special distribution to James, Spiegel and Minnerly [to the exclusion of other minoriiy shareholders] . . .”
Another document, entitled “Hunneman Commercial Company Corporate Organization Structure Year 2001" (“Structure Agreement”), and signed by Spiegel, provided that Pratt would receive an annual salary of $175,000 for three years, but it did not address Pratt’s compensation beyond April 30, 2004.
In 2007, the Hunneman shareholders entered into negotiations to restructure the corporation. On March 12,2008, the shareholders met on Hunneman’s premises. All of the minority shareholders were present. According to the counterclaim defendants, the March 12, 2008 meeting resulted in a document titled “Agreement” (the “March Document”) which was circulated on March 16, 2008 and eventually signed by all shareholders other than Spiegel. Spiegel disputes this and contends that the shareholders could not come to a final agreement at the meeting; that they did not reduce anything to writing; and that the resulting March Document contained material provisions that were not discussed at the meeting. Pursuant to the March Document, Spiegel’s equity interest would be reduced from ten percent2 to three percent, in exchange for $40,000. Other shareholders, whose equity shares would increase by virtue of the Document, would also receive $40,000.
Section 7(C) of the March Document attempted to cover the potential situation of a single shareholder refusing to agree to the Document’s terms:
In the event that one or more of the parties refuses to document the agreements and understandings previously reached by signing this Agreement, Pratt, in his capacity as CEO of the Company, may determine to proceed with this Agreement provided at least a majority in number of Stockholders have then signed this Agreement, in which event the Company may proceed to enforce the understandings previously reached and/or the terms of prior instruments entitling rescission and or recall of *341shares or rights to receive shares of the Company previously granted.
Spiegel resigned from Hunneman on April 18, 2008. He did not object in writing to the terms of the March Document before resigning. In a letter dated May 16, 2008, Spiegel demanded that his shares be redeemed pursuant to Section II.C. of the SAC, which he claims entitles him to four times the book value of his shares. In the May 16, 2008, letter, Spiegel, through counsel, asserted that “[t]here is no question that the stated book value for the company is artificially low for a number of reasons, including but not limited to the failure to secure the outright ownership of the ‘Hunneman’ name, despite the allocation of a $250,000 expense charged to the Company by [Pratt] in the form of a note for that stated purpose as well as other questionable corporate allocations which were improperly assessed to the Company.”
The parties disagree about Hunneman’s book value in the fiscal year ending December 31, 2007. Hunne-man argues that the book value was $966,743. Spie-gel, through his expert, Matthew G. Medlin, contends that the book value was actually $4,075,660. Medlin stated in his report that he had identified accounting entries and payments between May 1, 2001 and December 31, 2007 that decreased the book value of Hunneman and that should be added to the book value in order to calculate the Formula Price. In his deposition, Spiegel admitted that between May 1,2001 and April 2008, he received multiple monetary distributions from Hunneman in the form of bonuses. Spiegel maintains that while the bonuses contributed to lowering the book value, other events caused it to become “artificially low.”
Between May 2001 and April 2008, Spiegel received Hunneman’s Balance Sheet, Income Statement, and Operating Budget on at least an annual basis. Spiegel contends that Hunneman did not provide him with all relevant financial statements and budget documents. The counterclaim defendants assert that payroll allocations were among the information in the documents Spiegel received, but Spiegel maintains that he only saw such allocations after the shareholders began to negotiate a restructuring of the company. Spiegel does admit that between 2004 and 2008, he was aware that a large portion of Pratt’s salary was allocated to Hunneman.
The parties offer conflicting interpretations of the following testimony from Spiegel’s deposition:
Q: Do you feel that you were forced out of the company?
A [Spiegel]: Yeah. In my opinion, I felt that the [March Document]. . . basically said my way or the highway.
Q: Did anybody ever tell you that if you didn’t sign [the March Document], you’d be fired?
A [Spiegel]: You know, I don’t know when David Ross said this, but he said, “If you start looking under the hood, or if you contest [Pratt], he’ll fire you, he’ll shut down the company. You don’t know what you’re dealing with.”
The parties also offer differing interpretations of another sequence of deposition testimony:
Q: So it was your decision and your decision alone to resign?
A [Spiegel]: I felt I had no choice.
Q: Nobody within the company asked you to resign?
A [Spiegel]: No.
Q: And you weren’t fired?
A [Spiegel]: No. I don’t believe so.
The counterclaim defendants maintain that these statements amount to admissions by Spiegel that he was not the subject of coercion or intimidation, while Spiegel argues that the testimony “directly evidences” that he felt coerced, intimidated, or otherwise forced to resign.
DISCUSSION
Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). When appropriate, summary judgment may be granted against the moving party. Id.; Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on each relevant issue and that the summary judgment record shows the party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden by submitting affirmative evidence negating an essential element of the non-moving party’s case, or by demonstrating that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Comm’ns Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 710 (1991).
“If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact[.]” Pederson, 404 Mass. at 17. The nonmoving party cannot defeat summary judgment by resting on its pleadings or mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). In considering a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The court views the evidence in the light most favorable to the nonmoving party. Beal *342v. Board of Selectmen of Hingham, 419 Mass. 535, 539 (1995).
I. Allegedly Derivative Nature of Counts I, II, III, VI, VII, VIII, and IX A.Background
The counterclaim defendants raise a major issue that bears on the resolution of a number of counterclaims. They assert that several of Spiegel’s claims must be dismissed because they should have been brought as a derivative action. Massachusetts’ “universal demand” statute requires all derivative actions to be preceded by a written demand upon the corporation that action be taken. G.L.c. 156D, §7.42. Spie-gel did not send a demand letter to Hunneman’s board of directors prior to asserting his counterclaims. Pratt argues that Counts III, VI, VII, VIII, and IX cannot survive summary judgment because they seek damages based on alleged misallocations of corporate funds that artificially reduced Hunneman’s book value, and that these claims are derivative in nature. He also argues that insofar as Counts I and II seek damages based on what Spiegel contends is Hunneman’s true book value, they must fail for the same reason. Hunneman and the other Fort Point entities join in Pratt’s argument.3 As Spiegel points out, the “derivative” argument is limited in scope. It applies to the counterclaims only insofar as they relate to Spiegel’s allegations of improper cost allocations and their effect on Hunneman’s book value.
“It is a basic principle of corporate law that if a majority stockholder receives corporate cash distributions and a salary in excess of the reasonable value of services rendered, the right to recover the overpay-ments belongs to the corporation.” Bessette v. Bessette, 385 Mass. 806, 809 (1982). However, “the rule of corporate recovery for wrongs to the corporation is not as inflexible as [the counterclaim defendants] portray.” Orsi v. Sunshine Art Studios, Inc., 874 F.Sup. 471, 474 (D.Mass. 1995), citing Samia v. Central Oil Co., 339 Mass. 101, 123 (1959). “Remedies should be tailored to the facts of each case,” and “the court may fashion a remedy designed to put [Spiegel] as nearly as possible in the same position that he... would have occupied had there been no wrongdoing.” Id. at 475.
B.Count III
The parties agree that Hunneman is a close corporation. A close corporation is defined by three characteristics: “(1) a small number of stockholders; (2) no ready market for the corporate stock; and (3) substantial majority stockholder participation in the management, direction and operations of the corporation.” Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 586 (1975). While a close corporation “provides an opportunity for the majority stockholders to oppress or disadvantage minority stockholders,” id. at 588, being a close corporation is not enough, by itself, to allow Spiegel to circumvent the usual derivative suit procedure. See, e.g., Bessette, 385 Mass. at 809-10 (holding derivative suit was correct course under the circumstances because minority stockholder showed only a breach of fiduciary duty owed to the corporation and not to him as an individual).
By its very nature, a corporate freeze-out claim alleges harm to the minority shareholder as an individual rather than harm to the corporation. See generally Donahue, 367 Mass. at 579 (treating freeze-out claim by minority shareholder as a direct action). Spiegel’s freeze-out claim is based in part on the fact that were he to have signed the March Document, as he felt he was being compelled to do, his equity share in the corporation would have been reduced from ten percent to three percent. At the same time, two other shareholders would have seen their equity interests increase dramatically while receiving the same monetary benefit as Spiegel. This illustrates the personal nature of his claim. For these reasons, Pratt and Hunneman’s motions for summary judgment are denied as to Count III, with respect to the issue of its derivative nature.
C.Counts VI, VIII, and IX
Spiegel’s freeze-out theory is at the heart of several of his other counterclaims. See Horizon House-Microwave, Inc. v. Bazzy, 21 Mass.App.Ct. 190, 196 (1985) (“To the degree that the gravamen of [the plaintiffs] action was abuse of fiduciary duty by a majority stockholder,” a derivative action was not required and the direct action could proceed). Spiegel’s claims for unjust enrichment (Count VI), constructive trust (Count VIII), and accounting (Count IX) are connected to his claim that he was frozen out of the corporation by Pratt’s improper actions. See Orsi, 874 F.Sup. at 475 (denying summary judgment on freeze-out claim alleging diversion of corporate assets). For example, his unjust enrichment and conversion claims may be impacted if he can show that were it not for Pratt’s actions, he would have been entitled to a special distribution under SAC Section VI.A. For these reasons, the motions for summary judgment are denied as to the issue of the derivative nature of Counts VI, VIII, and IX.
D.Counts I, II, and VII
If Spiegel can establish liability on the merits of his breach of contract claim (Count I), the just result may well be to permit direct relief as to that count, as well as to the claims for breach of the covenant of good faith and fair dealing (Count II) and conversion (Count VII). Spiegel’s recovery on those claims could depend on a calculation of his equity interest based on Hunneman’s true value, which in turn depends on resolution of whether Pratt overpaid his own salary or improperly allocated funds. See, e.g., Lapidus v. Hecht, 232 F.3d 679, 683 (9th Cir. 2000) (applying Massachusetts law) (holding claim alleging denial of stockholder voting rights could proceed directly because it was based on an alleged contractual right). See generally BioMetics v. Stocker, 2007 Mass.Super. LEXIS 304 *343(Mass.Super. 2007) (permitting several claims by close corporation shareholder to proceed directly on theory that other shareholder diverted a patent from the corporation). For these reasons, summary judgment is denied with respect to the derivative issue in Counts I, II, and VII.
II. Spiegel’s Counterclaims A. Breach of Contract (Count I)
Spiegel alleges that the counterclaim defendants violated the SAC by refusing to redeem his equity interest consistent with his interpretation of SAC Section II.C.4 Whether Pratt and Hunneman are entitled to summary judgment based on their failure to redeem Spiegel’s equity interest in the manner Spiegel suggests turns on (1) the meaning of the disputed SAC provision, and (2) whether Spiegel resigned from Hunneman or was constructively terminated without cause.
1. Interpretation of Section II.C.
The disputed portion of section II.C. reads:
Upon termination of the Shareholder’s working relationship with [Hunneman] other than for cause (including on account of death or permanent disability), or upon the Shareholder resigning from [Hunneman] after April 30,2003, the following shall occur: first, [Pratt] shall have the right, but not the obligation, to buy that Shareholder’s stock . . . ; and, if termination of the Shareholder’s working relationship occurs after May 1, 2006, and the Shareholder has then continuously been a full-time [Hunneman] broker, if [Pratt] does not elect to purchase that Shareholder’s stock the Shareholder may, within thirty (30) days after termination, elect to sell his/her shares to [Hunneman], and [Hunne-man] shall then be obligated to purchase his/her shares at the Formula Price determined as of the date of that person’s election to sell.
The parties agree that based on the first clause, if a shareholder resigned or was terminated other than for cause, Pratt had the right, but not the obligation, to purchase the shareholder’s stock. Pratt and Hunne-man argue that based on the second clause, if Pratt chose not to exercise his option to purchase the shares, Hunneman was obligated to purchase the shares if the shareholder was terminated without cause. They argue that no such obligation would arise if the shareholder resigned because the second clause only refers to “termination of the Shareholder’s working relationship,” whereas the first clause addresses termination without cause and resignation separately.
Spiegel offers a different interpretation of II.C. He contends that if Pratt declines to purchase a shareholder’s stock after termination without cause or resignation, then Hunneman is obligated to purchase the shares regardless of whether the shareholder was terminated without cause or resigned. He argues that in this context, the phrase “termination of the Shareholder’s working relationship" refers to both termination without cause and resignation. Spiegel argues that the absence of the words “or resigned” in the second clause is immaterial because the purpose of II.C. is to delineate the rights of shareholders who leave the company for a reason other than termination for cause, and because the words “other than for cause” are also absent from the second clause. In the alternative, he contends that II.C. is ambiguous and disputed facts remain regarding its meaning.
The interpretation of II.C. advanced by Hunneman and Pratt is correct as a matter of law. See Lexington Ins. Co. v. All Regions Chem. Labs., Inc., 419 Mass. 712, 713 (1995) (“The interpretation of a written contract or lease is a question of law, not fact”). Section II.C. unambiguously distinguishes between Pratt’s option to purchase the shares under one set of circumstances, and Hunneman’s obligation to do so under another. “A contract should be construed in such a way that no word or phrase is made meaningless by interpreting another word or phrase, because the interpretation should favor a valid and enforceable contract or lease rather than one of no force and effect.” Id. Moreover, the omission of a scenario involving resignation from the second clause must be presumed to have been intentional. See Chatham Pharm., Inc. v. Angier Chem. Co., Inc., 347 Mass. 208, 211 (1964) (holding, in the context of assignments, that where there is a provision regarding one party’s rights and obligations, the omission of another party’s rights and obligations is presumed to be intentional).
Given that Pratt chose not to exercise his option to purchase Spiegel’s shares, he has no remaining obligations under II.C. For that reason, Pratt’s motion for summary judgment is allowed as to Count -1 of the Counterclaim.
2. Nature of Spiegel’s Departure
Hunneman and Spiegel agree that Spiegel was not terminated for cause, but they disagree as to whether he voluntarily resigned or was constructively discharged without cause. If he was constructively discharged without cause, then under the second clause of II.C., Hunneman has an obligation to purchase his shares for four times Hunneman’s book value. Whether Spiegel was constructively discharged by virtue of a freeze-out remains undecided, see Count III, infra, so genuine factual issues remain regarding Hunneman’s obligation under II.C. For these reasons, Hunneman’s motion for summary judgment is denied as to Count I of the Counterclaim.
B. Breach of the Implied Covenant of Good Faith and Fair Dealing (Count II)
Every contract formed in Massachusetts is subject to an implied covenant of good faith and fair dealing. Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 473 (1991). The covenant ensures that “neither party shall do anything that will have the effect of *344destroying or injuring the right of the other party to receive the fruits of the contract . . .” Id. at 471-72 (internal quotations omitted). There can be no claim for breach of an implied covenant of good faith and fair dealing when there is no breach of the underlying agreement. Young v. Freeman, 2009 Mass.Super. LEXIS 336, *12 (Mass.Super. 2009). “The requirement of good faith and fair dealing! ] ultimately is circumscribed by the obligations actually contained in the agreement.” Id., citing Accusoft Corp. v. Palo, 237 F.3d 31 (1st Cir. 2001).
Spiegel alleges that Hunneman and Pratt breached the implied covenant of good faith and fair dealing by breaching Section II.C. of the SAC. As discussed with respect to Count I, supra, Pratt has no remaining obligations under II.C., but genuine issues of material fact remain as to whether Hunneman breached that provision. For this reason, as to Count II, summary judgment is allowed in favor of Pratt and denied with respect to Hunneman.
C. Breach of Fiduciary Duty (Count III)
As discussed in Part I, supra, Hunneman is a close corporation. “Stockholders in a close corporation owe one another ... a duty of utmost good faith and loyalty.” Brodie v. Jordan, 447 Mass. 866, 869 (2006) (internal quotations omitted). Spiegel alleges that Pratt breached the duties of utmost good faith and loyally, which he owed to Spiegel, by (1) “freezing-out” Spiegel and (2) by refusing to honor the SAC as Spiegel interprets it.
1. Freeze-Out
“Majority shareholders in a close corporation violate th[e] duty [of utmost good faith and loyalty] when they act to ‘freeze out’ the minority.” Brodie, 447 Mass. at 869. While freeze-outs may take many forms,5 “what [they] have in common is that, in each, the majority frustrates the minority’s reasonable expectation of benefit from their ownership of shares.” Id. The counterclaim defendants argue that Spiegel has admitted that he voluntarily resigned. Interestingly, the parties draw opposite conclusions from the same portion of Spiegel’s deposition testimony. When deposed, Spiegel testified that he “felt [he] had no choice” but to resign, and in effect, that he believed he would be terminated if he chose not to sign the March Document. The veiy statement that he believed he “had no choice” but to resign undermines the counterclaim defendants’ assertion that his resignation was voluntary. That statement, coupled with the other deposition testimony excerpted in the Background section, supra, demonstrates the existence of disputed factual issues. For this reason, Pratt’s and Hunneman’s motions for summary judgment are denied as to so much of Count III as allege a freeze-out of Spiegel.
2. Breach of SAC Section II.C.
Spiegel further alleges that Hunneman and Pratt breached the fiduciary duty they owe him by virtue of breaching the SAC Section II.C. “Where a director’s contested action falls entirely within the scope of a contract between the director and the shareholders, it is not subject to question under fiduciary duty principles.” Chokel v. Genzyme Corp., 449 Mass. 272, 278 (2007) (internal citations omitted). As determined with respect to Count I, supra, the counterclaim defendants’ interpretation of II.C. is correct as a matter of law. Because Pratt’s actions were consistent with II.C., see Count I, supra, his motion for summary judgment is allowed as to so much of Count III as asserts a breach of the SAC.
Whether Hunneman acted consistently with II. C. turns on whether Spiegel was terminated without cause or whether he resigned. If Spiegel was constructively terminated without cause, then he is entitled to redemption by Hunneman of his equity shares at the Formula Price. If he resigned, then Hunneman is not obligated to purchase his shares. Thus, whether Spie-gel can prevail on Count III based on a breach of SAC Section II.C. depends on the resolution of factual issues that remain in dispute. For this reason, Hunneman’s motion for summary judgment is denied as to Count III of the Counterclaim insofar as it alleges a breach of SAC section II.C.
D. Misrepresentation (Count IV)
“To sustain a claim of misrepresentation, a plaintiff must show a false statement of a material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiffs detriment.” Zimmerman v. Kent, 31 Mass.App.Ct. 72, 77 (1991), citing Powell v. Rasmussen, 355 Mass. 117, 118-19 (1969). The counterclaim defendants argue that Spiegel did not plead his misrepresentation claim with sufficient particularity. See Charbonnier v. Amico, 367 Mass. 146, 152 (1975) (“In all averments of fraud . . . the circumstances . . . shall be stated with particularity”); Mass.R.Civ.P. 9(b). Spiegel argues that he has made sufficient allegations to satisfy all elements of a misrepresentation claim, and that disputed factual issues remain. Specifically, he contends that between 2005 and 2007, the counterclaim defendants misrepresented Hunneman’s book value and withheld financial records; that by such misrepresentations, the counterclaim defendants intended to induce him to forfeit his equity interest and resign; and that they have denied Spiegel the true and full value of his stock.
Disputed issues of fact remain as to Hunneman’s true book value and whether Pratt and Fort Point misrepresented it with the intent to deceive Spiegel. Spiegel has consistently alleged that Hunneman and Pratt overpaid Pratt’s salary and that they made improper allocations to the other Fort Point entities. *345These allegations are sufficient to survive summary judgment. For this reason, the motions for summary judgment are denied with respect to Count IV of the Counterclaim.
E. Promissory Estoppel (Count V)
Spiegel states in his memorandum of law that he intends to pursue his promissory estoppel counterclaim only if the court concludes that the SAC is unenforceable. Where an enforceable contract exists, a claim for promissory estoppel will not lie. See Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582, 594 n.33 (2007), citing Loranger Constr. Corp. v. E.F. Hauserman Co., 376 Mass. 757, 763 (1978). Because this court has determined that SAC is enforceable, see Count I, supra, summary judgment is allowed as to Count v. of the Counterclaim.
F. Unjust Enrichment (Count VI)
A successful claim for unjust enrichment involves three elements: “(1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge by the defendant of the benefit; and (3) acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value.” Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 552 F.3d 47, 57 (1st Cir. 2009). Spiegel does not address Count VI in his memorandum of law.
To the extent Spiegel’s unjust enrichment claim refers to Pratt’s alleged obligation to purchase Spiegel’s shares under SAC Section II.C., it cannot succeed because he had no such obligation. For this reason, Pratt’s motion for summary judgment is allowed as to Count VI as it relates to II.C. To the extent that it refers to Hunneman’s alleged obligation to purchase Spiegel’s shares under II.C., disputed facts remain as to whether that obligation exists, depending upon resolution of Spiegel’s freeze-out claim. See Counts I and III, supra. For this reason, Hunneman’s motion for summary judgment as to Count VI is denied with respect to Section II.C.
To the extent that the unjust enrichment claim refers to Spiegel’s allegations that Pratt misallocated Hunneman’s corporate funds and overpaid his own salary, and that, as a result, the counterclaim defendants were enriched, disputed issues of fact remain, so all parties’ summary judgment motions must be denied as to that issue.
G.Conversion (Count VII)
Spiegel alleges that the counterclaim defendants converted his equity interest in Hunneman by making improper allocations to other Fort Point entities. “The elements of conversion may be established by a showing that one person exercised dominion over the personal property of another, without right, and thereby deprived the rightful owner of its use and enjoyment." In re Hilson, 448 Mass. 603, 611 (2007) (internal citations omitted). “There is no requirement that the one converting property must be shown to have had the intent to deprive permanently the rightful owner of its use and enjoyment, as in stealing.” Id.
Insofar as Count VII refers to the counterclaim defendants’ conversion of Spiegel’s property by refusing to honor SAC Section II.C., summary judgment is allowed as to Pratt and the Fort Point entities other than Hunneman, and denied as to Hunneman. See Count I, supra.
Insofar as Count VII refers to Hunneman’s transfer of funds to the other Fort Point entities, disputed facts remain as to Hunneman’s true book value. If such actions led to a decrease in Spiegel’s equity interest, then his conversion claim may succeed. For this reason, summary judgment is denied as to Count VII of the Counterclaim.
H.Constructive Trust (Count VIII)
Spiegel seeks a constructive trust on “any and all funds or other consideration obtained by, distributed to, or allocated for the benefit of the counterclaim defendants in violation of the SAC.” “A constructive trust may be said to be a device employed in equity, in the absence of any intention of the parties to create a trust, in order to avoid the unjust enrichment of one party at the expense of the other where the legal title to the property was obtained by fraud or in violation of a fiduciaiy relation or where information confidentially given or acquired was used to the advantage of the recipient at the expense of the one who disclosed the information.” Mass. Wholesalers of Malt Beverages, Inc. v. Attorney Gen., 409 Mass. 336, 342 (1991), citing Barry v. Covich, 332 Mass. 338, 342 (1955).
A constructive trust shall not be imposed absent fraud, breach of a fiduciaiy duty or other misconduct. Collins v. Guggenheim, 417 Mass. 615, 618 (1994), citing Barry, 332 Mass. at 442. Disputed factual questions remain regarding whether the counterclaim defendants breached a fiduciary duty they owed to Spiegel by freezing him out of the corporation, and whether they may be liable for misrepresentation and unjust enrichment. See Counts III, IV, and VI, supra. A constructive trust may be imposed in relation to any of those counterclaims. For this reason, the motions for summary judgment are denied as to Count VIII of the Counterclaim.
I.Request for Accounting (Count IX)
Spiegel seeks an accounting of “the expenses, profits, assets and liabilities earned, incurred or owned by [Hunneman] as well as an accounting of the Corporate Allocations made concerning [Hunne-man] or [the other Fort Point entities].” The counterclaim defendants argue that Count IX is now moot because they have provided Spiegel with *346Hunneman’s financial documents. “An agent or fiduciary is under a duty to keep and render accounts and, when called upon for an accounting, has the burden of proving that he properly disposed of funds which he is shown to have received for his principal or trust.” Samia, 339 Mass. at 126. “Under Massachusetts law, an equitable accounting is available only if there exists a fiduciary or trust relationship between the parties . . .” Chedd-Angier Prod. Co. v. Omni Publ’ns Int’l, Ltd., 756 F.2d 930, 937 (1st Cir. 1985). As established with respect to Count III, supra, Spiegel has a fiduciary relationship with Pratt. He does not have a fiduciary relationship with Fort Point Management and Development Corporation or with Fort Point Appraisal Corporation, so summary judgment is allowed in favor of those parties. Disputed factual issues remain as to certain financial transactions in which Spiegel alleges Pratt engaged, particularly regarding the size of Pratt’s salary and loans made to Hunneman’s affiliates. For these reasons, summary judgment is denied as to Count IX with respect to Hunneman and Pratt.
J. Declaratory Judgment (Count X)
Spiegel seeks a declaratory judgment that the March Document is unenforceable and the SAC controls the issue of redemption of his equity interest. The counterclaim defendants now seek summary judgment as to this count. Spiegel cannot be bound by the March Document because he did not sign it and never manifested an intent to be bound by its terms. See, e.g., Salem Laundry Co. v. New England Teamsters and Trucking Ind. Pension Fund, 829 F.2d 278, 280 (1st Cir. 1987) (“Parties do not become contractually bound until they mutually assent to bind themselves to an agreement”). “Wh[ere], as here, parties negotiate orally as to the terms of an agreement while intending to execute a written contract, the parties generally are not bound until the contract is signed.” Novel Ironworks, Inc. v. Werner Const. Co., Inc., 26 Mass.App.Ct. 401, 407-08 (1988). This conclusion is not altered by the March Document’s provision purporting to bind any shareholder who did not sign the document.
The March Document is unenforceable against Spiegel, and therefore the SAC remains in effect. For that reason, the counterclaim defendants’ motion for summary judgment is denied as to Count X, and summary judgment shall enter in favor of Spiegel on this count.
III. The Complaint—Declaratory Judgment (Count V)
Underlying Hunneman’s requests for relief in its Complaint is the argument that the March Document, rather than the SAC, controls Spiegel’s equity interest. In Count v. of the Complaint, Hunneman seeks alternative relief in the form of a declaratory judgment that its interpretation of II.C. is correct, and specific performance based thereon. Hunneman now seeks summary judgment as to Count v. of the Complaint. As determined with respect to Count I, supra, the March Document is unenforceable and the SAC is the controlling document. Hunneman’s interpretation of II.C. is correct as a matter of law. Whether Hunneman has any remaining obligations under II.C. turns on the issue of whether Spiegel voluntarily resigned or was constructively terminated without cause.
For this reason, Hunneman’s motion for summary judgment as to Count v. of the Complaint is allowed with respect to the issues of the controlling document and interpretation of II.C. Summary judgment is denied as to Hunneman’s request for specific performance of II.C.
ORDER
For the foregoing reasons, counterclaim defendant Stuart Pratt’s Motion for Summary Judgment is ALLOWED as to Counts I and II, as to Count III with respect to the issue of a breach of SAC Section II.C., Count V, and as to Count VI with respect to the issue of a breach of SAC Section II.C. Pratt’s Motion for Summary Judgment is DENIED as to Count III with respect to the issue of a freeze-out, as to Count IV, as to Counts VI and VII with respect to the issue of allocations of corporate funds, and as to Counts VIII, IX, and X of the Counterclaim.
Counterclaim defendant Fort Point Commercial Company’s Motion for Summary Judgment is DENIED as to Counts I and II, as to both aspects of Count III, Count IV, as to both aspects of Counts VI and VII, as to Counts VIII, IX, and X of the Counterclaim, and as to Count v. of its Complaint with respect to the request for specific performance. Counterclaim defendant Fort Point Commercial Company’s Motion for Summary Judgment is ALLOWED as to Count v. of the Counterclaim and as to Count v. of its Complaint with respect to the issues of the controlling document and interpretation of SAC Section II.C.
Counterclaim defendants Fort Point Management & Development Corporation and Fort Point Appraisal Corporation’s Motion for Summary Judgment is DENIED as to both aspects of Counts VI and VII, and as to Counts VIII and X. Counterclaim defendants Fort Point Management & Development Corporation and Fort Point Appraisal Corporation’s Motion for Summary Judgment is ALLOWED as to Count IX of the Counterclaim.
Summary judgment is ALLOWED in favor of counter-claimant Wayne Spiegel on Count X of the Counterclaim.
The counterclaim defendants refer to this document as the “March 2008 Agreement.” Spiegel calls it the “April 2nd Proposal." The court will refer to it as the “March Document.”
Spiegel contends that he now holds an eleven-percent equity interest in Hunneman. He argues that because of a settlement between Hunneman and Robert Fitzgerald, another minority shareholder, Hunneman redeemed Fitzgerald’s interest and distributed it pro rata to the other shareholders, leaving Spiegel with an eleven-percent interest. *347Hunneman consistently maintains that Spiegel’s interest was ten percent until the March Document reduced it to three percent. Thus, it appears that Spiegel’s true percent ownership is a disputed factual issue that may bear on any ultimate award of damages.
Hunneman also advances the derivative argument with respect to Count V, promissory estoppel. As discussed in CountV, infra, summary judgment is allowed on Count v. on a different ground.
In Count I, Spiegel alleges that Pratt and Hunneman also breached the SAC by failing to provide him with an accurate accounting. Pratt correctly asserts that the SAC does not contain an accounting provision. The court therefore does not address it as a ground for breach of contract.
See Donahue, 367 Mass. at 588-89 (“The [persons who employ freeze-out techniques] may refuse to declare dividends; they may drain off the corporation’s earnings in the form of exorbitant salaries and bonuses to the majority shareholder-officers and perhaps to their relatives, or in the form of high rent by the corporation for property leased from majority shareholders ...; they may deprive minority shareholders of corporate offices and of employment by the company; they may cause the corporation to sell its assets at an inadequate price to the majority shareholders . . .”). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3962187/ | On Further Motion for Rehearing.
In disposing of the motion for rehearing filed by appellants we failed to dispose of the cross appeal of the State of Texas against cross appellee, Thomas O'Connor. The District Court sustained general demurrer of O'Connor as against *Page 358
the allegations of the petition of the State of Texas. Under our view of the case, as reflected in our opinion upon the former motion for rehearing, O'Connor was liable for taxes on the 7/32nd mineral interest Therefore the District Court erred in sustaining his general demurrer and, as between the State of Texas and O'Connor, the order of this Court will be that the motion for rehearing filed by the State be sustained; the previous judgments will be set aside and judgment is here and now rendered in favor of appellants Quintana Petroleum Company and Humble Oil and Refining Company and reversed and remanded as between the State of Texas and Thomas O'Connor.
All parties are granted fifteen days in which to file motions for rehearing.
The motion for rehearing and to certify of appellee Thomas O'Connor is overruled. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2609706/ | 526 P.2d 75 (1974)
Robert L. ABBOTT and Mary Alice Abbott, husband and wife, Petitioners,
v.
The SECOND JUDICIAL DISTRICT COURT of the State of Nevada and Honorable Grant L. Bowen, Judge thereof, Respondents,
Scherry Harrah, Real Party in Interest.
No. 7186.
Supreme Court of Nevada.
August 29, 1974.
Guild, Hagen & Clark, Reno, for petitioners.
Robert E. Rose, Dist. Atty., Reno, for respondents.
Swanson, Swanson & Capurro, Reno, for real party in interest.
OPINION
ZENOFF, Justice:
Scherry Harrah, Richard Wiseman and Robert Abbott were the principal and controlling stockholders of Magnatec Corporation, a Nevada corporation, whose principal place of business was in Reno, Nevada. Harrah resides in Nevada, Wiseman and Abbott are residents of California. All three were active members of the Board of Directors of the corporation and attended director's meetings in Nevada. When the corporation fell into financial difficulties Abbott became the paid chairman of an executive committee formed to handle the responsibility of solving the corporation's financial problems.
Abbott, as chairman of the special committee, apparently promoted the idea of obtaining a loan for the corporation. A loan in fact was negotiated from the First National Bank of Nevada in Reno. To secure the loan the bank required the written guaranties of the three individuals. The guaranties were executed by written agreement which included the individuals' commitment *76 to indemnify each other if one of them was called upon to pay the bank loan to the corporation.
At the time of the loan from the bank Wiseman and Abbott acceded to Harrah's request that they execute promissory notes in her favor to take effect in the event the bank caused her to pay the entire loan made by the bank to the corporation. Abbott, in California, requested that a note for his share be delivered to him in California because at the time he was too busy to come to Nevada just to sign the note. A note was so delivered to him, he signed it in California and it was returned to Harrah in Nevada.
In course of time Harrah was called upon by the bank to pay the corporate obligation, which she did. She then made claim upon Abbott for payment of his note of $8,333.00 and brought suit thereon when he failed to pay. These proceedings followed.
Petitioner Abbott contends that the Nevada court lacks jurisdiction over him because the promissory note upon which the lawsuit is based was executed in California and that the action should be brought there. Harrah's claim of proper jurisdiction is based on NRS 14.065(2)(a) which provides that:
"Any person who, in person or through an agent or instrumentality, does any of the acts enumerated in this subsection thereby submits himself and, if an individual, his personal representative to the jurisdiction of the courts of this state as to any cause of action which arises from the doing of such acts: ... Transacting any business or negotiating any commercial paper within this state; ..."
This court approved the constitutionality of NRS 14.065 in Certain-Teed Products Corp. v. Second Judicial District Court, 87 Nev. 18, 479 P.2d 781 (1971). We said: "The constitutional concern is whether the transaction of business in Nevada produced effects here of such significance that it is not unfair to allow this state to resolve resulting litigation. In short, are traditional notions of fair play and substantial justice offended? ..."
Certain-Teed, supra, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957), and Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958), seem to set forth the criteria defining the outer limits of in personam jurisdiction over an out-of-state defendant based upon a single act within the forum state. First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Except for Abbott's mechanical step in executing his signature to the promissory note in California the entire transaction between Scherry Harrah and the petitioner took place in and had to do with events in the state of Nevada. Magnatec Corporation was a Nevada Corporation doing business in Nevada. Abbott was a principal in the stock ownership and operation of the business of the corporation in Nevada. He acted as executive head of the committee formed for the underlying purpose evidenced by the bank loan, participated in all meetings in Nevada that led to the procurement of the bank loan and gave his personal promise in Nevada to reimburse Scherry Harrah in the event she had to pay the obligation to the bank. It cannot be said that he had no connections with this state. McGee, supra; Melvin Pine & Co. v. McConnell, 273 A.D. 218, 76 N.Y.S.2d 279 (1948). In cases of this sort it is the cumulative significance of all the activities conducted in the jurisdiction rather than the isolated effect of any single activity that is determinative. Melvin Pine & Co., supra.
*77 The contacts with Nevada fulfill our criteria pronounced in Certain-Teed, supra. We need not concern ourselves at this point with deciding whether or not the signing of the note in California constituted "negotiating any commercial paper within this state" under NRS 14.065(2)(a). Modern concepts of the orderly administration of justice require that a person who comes or extends himself into a forum's territory and encourages the obligation therein appear upon reasonable call and answer in personam. Executive Properties, Inc. v. Sherman, 223 F. Supp. 1011 (D.Ariz. 1963).
Petition denied.
MOWBRAY and GUNDERSON, JJ., concur.
BATJER, Justice (dissenting).
I respectfully dissent. This petition for a writ of prohibition challenges the service of process upon the petitioners made pursuant to NRS 14.065(2)(a).
Scherry Harrah, the real party in interest in this original proceeding, filed a complaint against Robert L. Abbott and Mary Alice [Marialyce] Abbott, husband and wife, the petitioners herein, and against Richard M. Wiseman and Margaret A. Wiseman, husband and wife, seeking a judgment against the Abbotts, jointly and severally, in the sum of $8,333.33, plus interest, and a similar sum jointly and severally from the Wisemans.
The Abbotts, who were personally served with process in the state of California, moved the district court to quash the service for want of jurisdiction. Their motion was denied and this proceeding seeks to prohibit the district court from further considering Scherry Harrah's claim for relief against them.
The Abbotts, Scherry Harrah and the Wisemans were the majority stockholders in Magnatec Corporation, a Nevada corporation, sometimes hereinafter referred to as "the corporation" which found itself in financial trouble in the spring of 1970. A loan of $25,000 was eventually negotiated by officers of the corporation through an office of the First National Bank in Reno, Nevada, hereinafter referred to as "the bank," but only with the additional security of a continuing guaranty personally executed by Scherry Harrah, the Wisemans and the Abbotts.
Scherry Harrah, the Wisemans and the Abbotts, executed a written contract agreeing that if any one of the parties happened to be required to pay the bank under the continuing guaranty that the party or parties making such payment would be reimbursed by the other parties. In addition, Scherry Harrah required the Abbotts and the Wisemans to each jointly and severally execute a promissory note in her favor in the principle sum of $8,333.33, plus interest, payable upon demand if Scherry Harrah was required to repay the corporation's loan to the bank.
The Abbotts lived in the state of California. Richard M. Wiseman, who was the president of Magnatec Corporation, requested Glen Speidel, a director and member of the executive committee of the corporation to take the documents to the state of California for the Abbotts' signatures.
It is not clear from the record just where Speidel picked up the documents before taking them to the Abbotts in California, however, the promissory note was prepared on office stationery of Swanson and Swanson, Attorneys-at-Law, Reno, Nevada. The record seems to indicate that Speidel also carried the continuing guaranty for signature. This can be inferred from the fact that the promissory note, agreement and continuing guaranty were each signed by the Abbotts, and were each dated June 3, 1970. NRS 47.250(12); NRS 104.3114(3).
The corporation defaulted in its payment of the loan. The bank notified the guarantors of the default and demanded payment. This demand was not met. After a subsequent demand Scherry Harrah paid the bank the sum of $27,266.30, and then in *78 an effort to collect from her co-guarantors brought this lawsuit.
In her complaint, Scherry Harrah alleged that the petitioners, as residents of the state of California, if served pursuant to NRS 14.065, were subject to the in personam jurisdiction of the district court, by virtue of the fact that they transacted business in the state of Nevada and had negotiated, or caused to be negotiated, commercial paper within the state of Nevada.
Although the district court entered its order "in favor of the plaintiff's position," it did not specifically find, that the petitioners either negotiated, or caused to be negotiated, commercial paper in the state of Nevada, or that they transacted business in the state of Nevada, or both; but that finding must be inferred.
1. Did the Abbotts transact any business in this state? With reference to Mary Alice [Marialyce] Abbott, there is absolutely no evidence in the record to connect her with the state of Nevada for the transaction of business or otherwise. With reference to Robert L. Abbott, any conduct on his part in connection with the business of Magnatec Corporation prior to negotiations with the First National Bank of Nevada for the $25,000 loan to the corporation is not within this cause of action and should not be considered. NRS 14.065(3) limits the scope of that statute to causes of action from the acts enumerated therein.
In Certain-Teed Prods. v. District Court, 87 Nev. 18, 479 P.2d 781 (1971), this court said: "The broad language used in the statute [NRS 14.065] discloses a legislative intention to reach the outer limits of federal constitutional due process. Such phrases as `transacting any business within this state,' `negotiating any commercial paper within the state,' `committing a tortious act within this state,' are almost without restriction or limitation... . The United States Supreme Court decisions of McGee v. International Life Ins. Co., 355 U.S. 220 (78 S. Ct. 199, 2 L. Ed. 2d 223) (1957), and Hanson v. Denckla, 357 U.S. 235 (78 S. Ct. 1228, 2 L. Ed. 2d 1283) (1958), when read together, seem to set forth the criteria defining the outer limits of in personam jurisdiction over an out-of-state defendant based upon a single act within the forum state. First, the defendant must purposefully avail himself of the privilege of acting in the forum state or of causing important consequences in that state. Second, the cause of action must arise from the consequences in the forum state of the defendant's activities. Finally, the activities of the defendant or the consequences of those activities must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable." 87 Nev. at 23, 479 P.2d at 784.
The record shows that Robert L. Abbott was in the state of Nevada on June 1, 1970. The only evidence in the record that would indicate that Robert L. Abbott even discussed the loan from the bank to the corporation, while physically present in this state, is the statement by Richard M. Wiseman in his affidavit that: "both Mr. Abbott and I orally agreed in Nevada that we would be responsible for one-third respectively of the $25,000.00 loan if the corporation did not pay it."
Between Abbott and Wiseman an oral agreement may have been reached in Nevada which was later formalized, but the statement by Richard M. Wiseman cannot be relied upon as evidence that Robert L. Abbott, while physically present in Nevada, agreed with Scherry Harrah to be responsible for one-third of the $25,000 loan if the corporation failed to pay. There is no evidence that Scherry Harrah and Robert L. Abbott ever discussed or formalized the basis for the promissory note or the agreement in this state.
The consequence in the state of Nevada which arose from the Abbotts activities, to-wit, their signatures on the continuing guarantee, was the loan of $25,000 from the bank to the corporation. This cause of action did not arise from the default on that loan. The promissory note from the *79 Abbotts to Scherry Harrah upon which this cause of action arose was executed and defaulted upon in the state of California and did not arise from the consequence of the Abbotts' activities in the state of Nevada.
The criteria of Certain-Teed Prods. v. District Court, supra, is not in the disjunctive. Each of the requirements must be met. Limited to this cause of action there is no evidence that Robert L. Abbott purposefully availed himself of the privilege of acting in the state of Nevada. The cause of action did not arise from the consequence of Robert L. Abbott's activities in Nevada but, instead, arose as a result of his signing the agreement and promissory note in the state of California.
In Hanson v. Denckla, supra, the United States Supreme Court refused to approve in personam jurisdiction over a non-domiciliary and stated: "... [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." 357 U.S. at 253, 78 S.Ct. at 1240.
2. Although, the majority concluded: "We need not concern ourselves at this point with deciding whether or not the signing of the note in California constituted the `negotiating of any commercial paper within this state' under NRS 14.065(2)(a)." I believe it necessary to discuss whether the Abbotts, or either of them, negotiated, or caused to be negotiated, commercial paper within the state of Nevada. NRS 104.3101-NRS 104.3805, inclusive.
Scherry Harrah argues that Speidel was the agent of the Abbotts in his trip to the state of California to obtain their signatures. From the record it appears that Speidel was not acting on his own volition but upon Richard Wiseman's request.
The promissory note which was prepared by Scherry Harrah's attorney was placed in the hand of the courier, Speidel, either by him or by Richard M. Wiseman, the president of the corporation. Speidel took it to the Abbotts for their signature and immediately returned it to Scherry Harrah's attorney in the state of Nevada. Under these facts, negotiation was at the place of delivery in California, since it was there that the Abbotts, as makers lost control over the note. In choosing the courier, or in taking advantage of his selection by Richard M. Wiseman, as well as that particular method of communication, Scherry Harrah impliedly authorized the Abbotts to return the note through Speidel. His services were directly beneficial to the corporation and Scherry Harrah, and were only indirectly beneficial to the Abbotts if the loan assisted the corporation.
Our statutes provide that an instrument is negotiated by delivery, and that delivery with respect to instruments means the voluntary transfer of possession. NRS 104.3202(1);[1] NRS 104.1201(14);[2] and NRS 104.3102(1)(e).[3] If a maker delivers to a stranger, his promissory note which is made to a payee or order, with an understanding, either express or implied, that the stranger will deliver the note to the payee on behalf of the maker, the stranger becomes the agent of the payee and delivery *80 is sufficient to effect negotiation.[4] Here the Abbotts voluntarily transferred possession of the note to Speidel in the state of California. I believe it was error for the trial court to find that the promissory note from which this cause of action arose was negotiated in this state.
The maintenance of this suit in this state against the petitioners offends "traditional notions of fair play and substantial justice." International Shoe Company v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). I believe a writ of prohibition should issue.
THOMPSON, C.J., concurring.
NOTES
[1] NRS 104.3202(1): "Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary endorsement; if payable to bearer it is negotiated by delivery".
[2] NRS 104.1201(14): "GENERAL DEFINITIONS. [Effective until July 1, 1975.] Subject to additional definitions contained in the subsequent articles of this chapter which are applicable to specific articles or parts thereof, and unless the context otherwise requires, in this chapter: ... 14. `Delivery' with respect to instruments, documents of title, chattel paper or securities means voluntary transfer of possession."
[3] NRS 104.3102(1)(e): "In this article unless the context otherwise requires: ... (e) `Instrument' means a negotiable instrument."
[4] By analogy, respecting the delivery of deeds, compare: Hall v. Hall, 292 Ky. 772, 168 S.W.2d 10 (1943); Frederick v. Frederick, 178 N.W.2d 834 (N.D. 1970); Capozzella v. Capozzella, 213 Va. 820, 196 S.E.2d 67 (1973). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609707/ | 526 P.2d 1384 (1974)
STATE of Oregon, Respondent,
v.
Dennis Ralph WILLIAMS, Petitioner.
Supreme Court of Oregon, In Banc.
Argued and Submitted April 3, 1974.
Decided October 3, 1974.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.
HOWELL, J.
The defendant was indicted for burglary in the first degree and robbery in the first degree. He was convicted of burglary in the first degree and robbery in the second degree. The conviction was affirmed by the Court of Appeals, 16 Or. App. 48, 517 P.2d 311 (1973). We granted review to consider the question of whether the trial court must instruct the jury on all lesser included offenses whenever requested to do so by the defendant.
At the close of the trial,[1] defendant requested the court to instruct the jury with respect to the crime of criminal trespass (ORS 164.255) as a lesser included offense within the crime of burglary (ORS 164.225).[2] The trial court refused to give the instruction on criminal trespass, and on appeal the Court of Appeals sustained this action.
ORS 136.660, relating to lesser included offenses, states:
"In all cases, the defendant may be found guilty of any crime the commission of which is necessarily included in *1385 that with which he is charged in the indictment or of an attempt to commit such crime."[3]
The Court of Appeals held that the trial court is not required to instruct on lesser included offenses where there are no disputed issues of fact which warrant the submission of the lesser included offenses to the jury.
The rule that the trial judge must instruct on lesser included offenses only when justified by the evidence or inferences to be drawn from the evidence is followed by the majority of state and federal courts. 54 Mich.L.R. 707 (1956). The rule has been followed in Oregon in several previous decisions. State v. Stoneberg, 15 Or. App. 444, 517 P.2d 333 (1973); State v. Atkins, 14 Or. App. 603, 513 P.2d 1191 (1973); State v. Boucher, 13 Or. App. 339, 509 P.2d 1228 (1972).
The United States Supreme Court on several occasions has rejected any requirement that a judge must instruct on all lesser included offenses if so requested.
In Sparf and Hansen v. United States, 156 U.S. 51, 15 S. Ct. 273, 39 L. Ed. 343 (1895), the court refused to reverse a criminal conviction for failure to give an instruction on a lesser included offense. The court stated:
"* * * A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. * * * There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or of simple assault." 156 U.S. at 63-64, 15 S.Ct. at 278.
In Sansone v. United States, 380 U.S. 343, 351, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965), the United States Supreme Court held that a lesser included offense instruction is only proper where there is a "disputed factual element." The defendant is entitled to an instruction on lesser included offenses only if "there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of * * * [the greater offense] have not been proved, all the elements of one or more lesser offenses have been, * * *."
The federal circuit court in Driscoll v. United States, 356 F.2d 324, 327-328 (1st Cir.1966), vacated on other grounds, 390 U.S. 202, 88 S. Ct. 899, 19 L. Ed. 2d 1034 (1968), interpreted Sansone as follows:
"We take Sansone to mean that when the government has made out a compelling case, uncontroverted on the evidence, on an element required for the charged offense but not for the lesser-included offense, there is a duty on defendant to come forward with some evidence on that issue if he wishes to have the benefit of a lesser-included offense charge. To put it another way, while a judge cannot prevent a jury from rejecting the prosecution's entire case, he is not obligated, under these circumstances, to assist a jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecution's case by giving a lesser-included offense instruction. Two prerequisites seem vital: that there be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational." (Emphasis supplied.)
In Driscoll, the government presented direct evidence of the greater offense through three witnesses. The court stated:
"* * * The record before us discloses no efforts to impeach, contradict, or explain this testimony. All we have are the pleas of not guilty.
"We do not think that these pleas, standing alone, create the contradiction in evidence required by Sansone, supra. It is true that, at the outset of the case, *1386 the pleas of not guilty created an ultimate issue as to willfulness to be resolved by the jury. It is also true that by their silence in the face of specific and direct evidence on the issue of willfulness, appellants did not forfeit their right to have the jury instructed that willfulness must be proven beyond a reasonable doubt. But we think it is equally true that by remaining mute in the face of such evidence and relying solely on their pleas of not guilty, appellants did not create such a `disputed factual element' in the sense that entitled them to an instruction for a lesser-included offense. [Citations omitted.]" 356 F.2d at 327-328.
The state of Iowa has a statute almost identical to ORS 136.660. In State v. Merrill, 242 Iowa 1156, 49 N.W.2d 547 (1951), the Iowa Supreme Court held their statute to mean that before an instruction on lesser included offenses is required, it must be justified by the evidence. Quoting from another Iowa case, State v. Ockij, 165 Iowa 237, 145 N.W. 486 (1914), the court stated:
"`The jury ought not to be allowed to speculate upon a supposed state of facts, of which there is no evidence, in order that they may reduce a serious crime to a trifling misdemeanor. To say that a man may use a deadly weapon and inflict a wound such [as is described here], * * *, and that he may be convicted of a simple assault or assault and battery, would be to make a mockery of the penal statutes and of the enforcement of the law.'" 49 N.W.2d at 549.
The argument is made that a jury in a criminal case is entitled to accept in part and to reject in part the state's evidence. The same argument was made to and rejected by the courts in Kennedy v. Coyle, 352 F.2d 867 (7th Cir.1965); United States v. Markis, 352 F.2d 860 (2d Cir.1965); Driscoll v. United States, supra, and State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954). While there is nothing to prevent a jury, as the trier of facts, from rejecting the prosecution's case in full and finding the defendant not guilty, this does not justify instructions on unsupported lesser included offenses. "The lesser-included offense charge is not required simply because the jury could exercise its power of acquitting on the greater charge for no reason at all. * * * There must be a rational basis for its doing so." United States v. Markis, supra 352 F.2d at 867.
The dissenting opinion in the instant case suggests that the efficient administration of trials in criminal cases would be enhanced if the trial court automatically instructed on all lesser included offenses because it would be less time consuming than the "judicial time involved in making the decision to grant or refuse requested instructions" on lesser included offenses. We believe the contrary would be true. If the dissenting opinion were adopted, it would mean a trial judge must instruct on all included offenses and they could be numerous even though the evidence of the greater offense was uncontroverted and not capable of any inference which could reduce the greater offense.
However, the problem does not focus on the judicial administration of the trial of criminal cases. The question here presented is the same as in all cases, civil or criminal is there evidence, or possible inferences to be drawn from the evidence, sufficient to require submission of the charge to the jury? If the evidence is insufficient, then the court does not submit the charge to the jury for its consideration. The same rule of evidence should apply when the trial court is instructing the jury on lesser included offenses.
We agree with the decision of the Court of Appeals that a trial judge is not required to instruct on lesser included offenses where there are no disputed issues of fact which warrant the submission of the lesser included offenses to the jury.
Affirmed.
*1387 DENECKE, J., did not participate in this decision.
O'CONNELL, Chief Justice (dissenting).
The rule stated by the majority has been adopted by almost all of the courts in the United States, including Oregon.[1] A contrary view is expressed in Brown v. State, Fla., 206 So. 2d 377, 382 (Fla. 1968), where the Florida court interpreted its statute[2] to require the court to instruct on the lesser-included offense "even though the proofs might satisfy the trial judge that the more serious offense was committed."
The majority view is predicated on the idea that in its role as finder of fact the jury has the duty to act rationally on the evidence presented. If a rational examination of the evidence points either to the defendant's guilt of the crime charged or else his innocence, an instruction on a lesser-included offense is seen as an improper invitation to the jury to engage in conjecture or compromise. The majority rule is best supported by those cases in which the defendant's entire defense is based on an alibi, a plea of insanity, or the statute of limitations. In these circumstances, if the state's evidence unequivocally establishes the defendant's commission of the crime charged, it is felt that although the jury might nevertheless choose to acquit the defendant, it could not rationally find him guilty of any crime other than that charged, since there would be no reasonable ground for the jury to find that some but not all of the elements of the crime charged had been proved.[3] Furthermore, from the standpoint of the prosecution, there is also the danger that if the instruction on a lesser-included offense is given in this situation, the jury, in order to ameliorate the punishment, will bring in a verdict of guilty on a lesser-included offense when the evidence would support a conviction of the greater offense. This, it has been noted, constitutes an invasion of the trial court's function of fixing the punishment in criminal cases.
It can also be argued as a matter of pure theory that the defendant, as opposed to the state, has no interest and consequently no right to demand a lesser-included offense instruction or to complain if a requested instruction is not given. Thus, it is argued that if the state has failed to establish an essential element of the crime charged, the defendant is entitled to be acquitted and has no interest in providing the jury with alternate grounds for conviction. If, on the other hand, the jury convicts the defendant of the offense charged, it must have found that the state had established each essential element of the greater crime, so that its decision would not have been affected by an instruction on a lesser-included offense.
The weakness of this argument is that it fails to account for the danger that a jury, certain that the defendant is guilty of some criminal conduct but uncertain about the precise crime charged, may elect to bring *1388 in a verdict of guilty on that crime rather than to grant the defendant outright acquittal.
Further militating against the view restricting the circumstances in which a lesser-included offense instruction should be given is the fundamental proposition that the jury, as the trier of fact, is entitled to accept in part and reject in part the state's evidence. Starting from this premise, virtually all cases would permit a finding of a lesser-included offense, including those cases such as the example above in which the only defense is insanity, alibi, or the statute of limitations, and thus justify an instruction on lesser-included offenses in every case.
In light of these competing policies and interests, it has been suggested that the majority rule constitutes a fair compromise. However, this does not take into account other factors relating to efficiency in judicial administration.
The majority rule requires the trial judge (and eventually the appellate courts) to determine in each case whether the evidence would permit the jury to conclude reasonably that some but not all of the elements of the crime charged had been proved. Where the proof of the elements of the crime rests upon objective data (for example, whether a tax return accurately reflects the accused's income as established by business records), the court's task of determining whether there is room for the jury to pick and choose among these elements and thus reasonably find the commission of a lesser-included offense may be relatively easy in most cases. Even in such cases, frequently the credibility of the witnesses must be taken into account in deciding whether the jury could reasonably find that less than all of the elements of the crime charged had been made out. Where the severity of the offense depends upon subjective matters, such as the intent with which the act was committed, the difficulties are accentuated because the court will frequently have little but intuition to employ in deciding whether the jury would have to accept or reject all of the elements of the crime charged.[4]
We must ask, then, whether the difficulties and the judicial time involved in making the decision to grant or refuse requested instructions under the majority rule is not too high a price to pay in the effort to achieve a balance of the interests of the accused and the state. The Florida rule under which the accused is entitled to a lesser-included offense instruction, without introducing independent evidence tending to prove the lesser crime, operates to eliminate a time consuming decision point. Moreover, it reduces the possibility that the jury will convict the accused of the crime charged without evidence to support the conviction simply to punish him for some wrongdoing rather than acquit him.
From the prosecution's standpoint, the Florida rule may serve to avoid certain problems arising out of multiple prosecutions. The reason underlying the majority rule would seem to apply equally in the case where the state requests an instruction *1389 on a lesser-included offense. If the jury were to bring back a verdict of acquittal on the crime charged, the state would then be faced with the defense of double jeopardy if a lesser-included offense was thereafter charged. This consideration was deemed important in Brown v. State, 206 So. 2d 377, 382-383, where the Florida Supreme Court expressed the view that its rule "comports with logic, within the confines of our adversary system, because it enables the state to have adjudicated in one trial all aspects of a criminal charge arising out of one transaction," and that it also "protects a defendant against a `splitting of accusations' with resultant multitudinous prosecutions and trials."
In my opinion, the possible disadvantages of the Florida rule do not justify the retention of the majority rule. With respect to the argument that the Florida rule permits the jury to usurp a part of the sentencing function of the court, I would say only that although criminal conduct is classified under the statutes into rigid categories, the degree of the defendant's culpability in the commission of a particular crime may vary from case to case so that criminal conduct in reality falls along a scale of infinite gradations, and thus the line between the principal offense and the lesser-included offense is not sharply drawn. I think that it is appropriate for the jury to determine the offense consistent with the degree of culpability as it sees fit.
I do not anticipate the adoption of the minority rule would materially increase the burden of the trial court in instructing the jury in criminal cases. In most cases the accused would not wish to have the jury instructed on a variety of lesser-included offenses, because by so doing the accused would provide the jury with a longer list of crimes upon which a verdict of guilty could be based.
For the foregoing reasons, I would adopt the Florida rule and repudiate our previous position to the contrary.[5]
HOLMAN, Justice (dissenting).
In the present case the state's evidence was that defendant, a stranger to complainants, was found in complainants' home during the nighttime with a gun with which he menaced complainants while inquiring where the money and drugs were kept. He was subsequently arrested upon the premises by police who responded to a call by one of complainants who had crawled out a window. Defendant did not testify before the jury.
By refusing to instruct the jury on criminal trespass as a lesser included offense of that of burglary, the trial court would not permit the jury to find that defendant was in the complainants' dwelling without authority but was not otherwise criminally involved, which is the definition of criminal trespass in the first degree. First degree burglary is defined as follows:
ORS 164.225. "(1) A person commits the crime of burglary in the first degree if he violates ORS 164.215[[1]] and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom he:
(a) Is armed with a burglar's tool as defined in ORS 164.235 or a deadly weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.
"* * *."
By refusing to give the requested instruction the trial judge was not giving the jury the option of disbelieving that part of complainants' testimony concerning defendant's possession and use of the gun and his demands upon them.
*1390 This is illogical to me. If the jury is obligated to believe either all of the complainants' testimony or none of it, defendant is forced to testify, whether he desires to do so or not, in order to be entitled to a lesser included instruction. It is the only place in the law, to my knowledge, where such an "all or nothing" situation exists. If ORS 136.660 is generally construed to entitle a defendant to the submission of lesser included crimes, I see no adequate basis for avoiding the consequences of the statute by changing the usual manner in which a jury may treat the believability of evidence submitted to it by requiring that there must be a dispute in the evidence before the jury has the option of disbelieving part of it.
NOTES
[1] A detailed statement of the facts underlying the prosecution of the charge can be found in the companion case of State v. Stoneberg, 15 Or. App. 444, 517 P.2d 333 (1973). However, in Stoneberg the defense introduced some evidence that the burglary had been committed as a prank. No such evidence was introduced in the trial of this case.
[2] The parties agree that under the Oregon Criminal Code, criminal trespass is a lesser included offense embraced within the crime of burglary.
[3] Rule 31 (c) of the Federal Rules of Criminal Procedure states:
"Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense."
[1] See generally, Annotation: Effect of Failure or Refusal of Court, in Robbery Prosecution, to Instruct on Assault and Battery, 58 A.L.R. 2d 808; State v. Nodine, 198 Or. 679, 259 P.2d 1056 (1953); State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948); State v. Coffman, 171 Or. 166, 136 P.2d 687 (1943); State v. Stoneberg, 15 Or. App. 444, 517 P.2d 333 (1973); State v. Atkins, 14 Or. App. 603, 513 P.2d 1191 (1973); State v. Boucher, 13 Or. App. 339, 509 P.2d 1228 (1973); State v. Blocher, 10 Or. App. 357, 499 P.2d 1346 (1972).
[2] "Conviction of attempt; conviction of included offense. Upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard." Fla. Stat. § 919.16 (1965), F.S.A.
[3] Note, however, that this view ascribes a significance to a verdict of not guilty inconsistent with the normal instructions given to the jury that it is to return a verdict of guilty only if it believes beyond a reasonable doubt that the state has proved each element of the offense charged.
[4] Contrary to the fundamental assumption of the majority view, the jury might rationally believe part and reject part of the prosecution's evidence without engaging in either conjecture or compromise. For example, the state may show all the elements of an offense but that of intent through uncontroverted direct evidence, but present only the testimony of an unbelievable witness on the latter question. In such a case it would be perfectly rational for the jury to disbelieve such a witness and thus find the defendant guilty of a lesser-included offense without the aid of any evidence from the defendant. See Note, 57 N.W.U.L.Rev. 65, 66-68 (1962).
The majority rule apparently requires some counter evidence from the defendant to justify the lesser-included offense instruction. On questions of mens rea the most likely source of such evidence is the testimony of the defendant himself. Any defendant with a criminal record would thus be forced to choose between foregoing the desired instruction and placing his record before the jury. The result seems inconsistent with the defendant's right to stand mute, requiring the state to prove each element of the offense.
[5] State v. Nodine, 198 Or. 679, 259 P.2d 1056 (1953); State v. Wilson, 182 Or. 681, 189 P.2d 403 (1948).
[1] ORS 164.215. "(1) A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein.
"* * *." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590129/ | 1 N.Y.2d 594 (1956)
American Surety Company of New York, Respondent,
v.
Fannie Diamond et al., as Executors of Adolph Diamond, Deceased, et al., Appellants, et al., Defendant.
Court of Appeals of the State of New York.
Argued February 14, 1956.
Decided July 11, 1956.
Bernard Meyerson for David Diamond, appellant.
Bernard Meyerson and Herman E. Hoberman for Fannie Diamond and another, appellants.
Harold M. Harkavy, Frederick M. Garfield and I. Sidney Worthman for respondent.
CONWAY, Ch. J., DYE and FULD, JJ., concur with DESMOND, J.; FROESSEL, J., votes for reversal and remission in a separate opinion in which VAN VOORHIS and BURKE, JJ., concur.
*596DESMOND, J.
We must construe and apply this "cooperation clause" found in the automobile liability insurance policy issued by plaintiff to defendant David Diamond (and found in millions of other policies issued throughout the United States by plaintiff and other insurance companies): "Assistance and Cooperation of the Insured. The insured shall cooperate with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own cost, voluntarily make any payment, assume any *597 obligation or incur any expense other than for such immediate medical and surgical relief to others as may be imperative at the time of accident."
In this declaratory judgment suit it has been adjudged that the policy was breached and voided by the insured. That breach, it has been held herein, was the refusal of the named insured when sued in a wrongful death action to verify a cross complaint which would have brought in as a cross defendant the insured's mother who was driving the insured car at the time of the accident in question. That declaratory judgment should, we hold, be reversed for these reasons: first, that the assured, defendant David Diamond, was not required by the policy to verify the cross complaint or otherwise implead his mother; and, second, that even if the policy could be read so to require, David Diamond did all that was needful under the circumstances here related.
The material facts are undisputed. On a day in 1951 during the term of the policy the automobile was being operated by Fannie Diamond, the insured's mother, with the consent of the insured who was not present. Adolph Diamond, husband of Fannie Diamond and father of the insured, was a passenger. The automobile collided with a car driven by defendant Covelli. Adolph Diamond suffered fatal injuries. Fannie Diamond and one Weiss as executors of Adolph Diamond's will brought the wrongful death action above referred to against the named assured David Diamond. The insurer retained an attorney to represent David Diamond and the latter verified an answer prepared by that attorney. The attorney then tendered to David Diamond for signature and verification a proposed cross complaint to bring into the action as a defendant Mrs. Diamond, individually, as driver of the Diamond car. There followed some correspondence between David Diamond and his personal attorney on one side and the insurer on the other. Diamond refused to sign the third-party complaint, arguing that the policy required the insurer to defend not only the owner but any driver of the insured car, and that, accordingly, the owner as one insured should not be required to sue another insured, the driver. The insurer, however, not only continued to insist that the pleading be signed and sworn to but declined to explain its reasons for such insistence. David Diamond through his personal attorney suggested to the insurer that the dispute be *598 submitted to the Appellate Division for determination on an agreed statement of facts (Civ. Prac. Act, § 546). The insurer rejected the offer, declared the policy forfeited because of alleged non-co-operation, and then brought this action which prayed for and resulted in a declaratory judgment that the insurer is not obligated to defend the death action or to pay any judgment rendered against David Diamond therein. The Appellate Division affirmed, and we granted leave to appeal to this court.
This record shows no breach by David Diamond of the co-operation clause. There is not even an ambiguity in the policy required to be resolved in favor of the insured and against the company (Hartol Prods. Corp. v. Prudential Ins. Co., 290 N.Y. 44, 49-51). The only language in the co-operation clause that by any possible stretching could cover this situation is that which requires the insured to co-operate "in the conduct of suits". But that must mean suits of the kind mentioned in many earlier parts of the policy, that is, suits against the named insured. There is no suggestion in the policy that the "conduct" of cross suits against anyone was within contemplation of the co-operation clause. Any doubt about this should be removed by examination of the "Subrogation" clause which appears in the policy immediately after the co-operation clause. The subrogation clause reads as follows: "Subrogation. In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights." Thus, the policy says and means that no right of the insurer over against a person other than the named insured comes into existence except "In the event of any payment" under the policy. Till that time comes, the insurer has no right of suit by subrogation or otherwise and till that time there can be no duty of the insured to co-operate in any such additional suit. On the commencement of the original suit, this insurer's obligation to defend its named insured therein was complete and absolute and its performance of that obligation could not validly be conditioned on any joinder of the named insured in another action against anyone. The purpose of the co-operation clause is to constrain the assured *599 to co-operate in good faith with the insurance company in the defense of claims (Wenig v. Glens Falls Ind. Co., 294 N.Y. 195, 201). That purpose was fully met here.
When David Diamond was sued, plaintiff was bound to defend him. This policy by express terms covers the named owner as an insured and separately covers any other person lawfully driving the vehicle (Wenig v. Glens Falls Ind. Co., 294 N.Y. 195, 201, supra; Morgan v. Greater N. Y. Taxpayers Mut. Ins. Assn., 305 N.Y. 243, 249). The liability of the nondriving owner is imposed by statute (Vehicle and Traffic Law, § 59) while the liability of the actual operator flows from his personal wrongdoing (Sarine v. American Lumbermen's Mut. Cas. Co., 258 A.D. 653, 654, citing Goochee v. Wagner, 257 N.Y. 344, 347; Vehicle and Traffic Law, § 59). Since the company's covenant to defend the owner was unconditional, it had to perform, promptly and without the imposition on its assured of conditions and burdens not mentioned in the policy.
We are not withdrawing from the construction just above given to the policy when we say, additionally, that on the particular facts here David Diamond cannot be held guilty of any failure to co-operate, whatever the policy may mean. To quote a writer in the Nebraska Law Review (1954-1955, Vol. 34, p. 257): the insured "must cooperate with the company to present any fair and reasonable defense that is available, including the duty of verifying pleadings, although he is not required to cooperate in presenting a sham defense or executing instruments he believes erroneous" (emphasis ours; see Coleman v. New Amsterdam Cas. Co., 247 N.Y. 271, 276). To amount to a breach, the attitude of the assured must be one "of willful and avowed obstruction" (Coleman opinion, supra, p. 276). How could such a charge be made against this assured? His inquiries and the later inquiries by his attorney as to the purpose of the interpleader, his statement that his mother was a coassured and should not be cross-sued, brought from his insurer nothing but a peremptory demand that the questioned pleading be signed. David Diamond even went to the unusual length of proposing that the dispute be submitted to the Appellate Division (through assured's own counsel and at his own expense). Unless policyholders are to be at the mercy of the companies on some "theirs not to reason why" theory, "mere puppet[s] in the hands of the insurer" (Royal Ind. Co. v. Morris, 37 F.2d 90, 92), *600 this assured went even beyond the necessities in his effort to co-operate. In another kind of fact situation, where reasonable men could disagree (see Albert v. Public Service Mut. Cas. Ins. Corp., 292 N.Y. 633; Standard Acc. Ins. Co. v. Winget, 197 F.2d 97, 101-103, and Coleman opinion in this court, 247 N.Y. 271, supra; see Porter v. Traders' Ins. Co., 164 N.Y. 504, 509), co-operation may be a jury issue. But the insurer has the burden of proof on such an issue (8 Appleman on Insurance Law and Practice, § 4787, and cases cited) and this plaintiff certainly failed to carry that burden.
Since we are holding that this policy does not mandate the signing of a cross complaint, we do not reach any question as to the meaning or application of subdivision 3 of section 167 of the Insurance Law as to "interspouse" liabilities. We do mention in passing that David Diamond's liability, if any, to his father's executors was certainly not that of one spouse to another.
We note that this same co-operation clause has been in standard use throughout the United States for many years (see Donovan, "National Standard Provisions", 1949 Report of Amer. Bar Assn. Section on Insurance Law, p. 103; Insurance Policy Annotations, issued in 1941 by same section, Vol. 1, p. 102 et seq., and supplement, p. 53 et seq.; Sawyer on Automobile Liability Provisions, 1936, p. 145). So far as appears, this is the first recorded instance of a contention by an insurer that co-operation "in the conduct of suits" contemplates the bringing of cross suits in the name of the insured. In his authoritative work (supra) Sawyer assumes (bottom of p. 145) that the "suits" intended are "suits against the insured". If the companies are going to demand any more than that, their policies should say so. "* * * insurance contracts, above all others * * * should not be couched in language as to the construction of which lawyers and courts may honestly differ" (Janneck v. Metropolitan Life Ins. Co., 162 N.Y. 574, 577).
Still another ground is available for holding that the "suits" in the conduct of which the policy required David Diamond to co-operate were suits against him, not suits brought by him. Most of the States in which this same policy form is universal do not permit (as New York does) the filing of cross complaints against persons liable over to the original defendant (see *601 Journal of American Judicature Soc., Aug., 1954, p. 57; Clark on Code Pleading [2d ed.], p. 408; Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 230). This fact alone would make it unlikely that "suits" include cross suits.
The judgment of the Appellant Division and that of Special Term should be reversed and the complaint dismissed, with costs in all courts.
FROESSEL, J. (for reversal and remission).
The preliminary question before us on this appeal, in an action for declaratory judgment, is whether plaintiff insurance company may require its named insured, defendant here, to verify a third-party complaint as against the driver of his car, in a wrongful death action brought against him.
The instant liability insurance contract expressly requires co-operation, among other things, in "the conduct of suits". That phrase, it seems clear to us, includes cross claims between active and passive tort-feasors already joined as defendants in an action. So too, we believe, does it encompass the usual type of third-party action.
It would be well to note that this is not the case where an insured is asked to verify a complaint against any third party. In most instances such third parties would probably be mere joint tort-feasors, and the courts, of their own accord, would not grant such applications simply because of the well-settled rule that one joint tort-feasor may not bring in another.
Here, however, the named insured, not even a passenger in his own car, is only vicariously liable at most, and his negligence, if any, is thus only passive. Under these circumstances, a passive tort-feasor is entitled to bring in another who has actively committed the negligence with which he here the named insured is vicariously charged.
This, under ordinary circumstances, would be in the named insured's own best interest, where, as here, the amount claimed for damages exceeds the amount of insurance. Furthermore, it is in the public interest as well, for it avoids a multiplicity of actions, saves time and expense, and is in accord with both legislative and judicial policy to dispose of related litigation in a single action, as provided for in section 193-a of the Civil Practice Act.
That it, in a sense, amounts to a defense favoring the insurance company is of no consequence here, for that company, and all *602 other insurers, are entitled to whatever defenses, counterclaims or claims over the insurance policy and the law bestow upon, or allow to, their named insureds. Indeed, it is the duty of an insurance company to avail itself of every proper defense for if it fails to do so it might well find itself paying out numerous claims not authorized by law. This, of course, would be contrary to the best interests of the company's insureds and the public generally, for it would, in further contravention of public policy, tend to require insurance rates higher than otherwise necessary.
Clearly a defendant insured would normally commence a third-party action such as that here in question for his own protection. The difficulty here, however, is that this third party happens to be defendant's own mother. Were the driver of his car anyone else, there probably would have been no hesitancy whatever on his part to verify the proffered complaint. While he has the right to be generous, he may not do so to the prejudice of his insurer.
Under the general terms of the policy, and as driver of his car, defendant's mother would ordinarily be within the purview of the contract provisions defining those who are there "insured". However, in this case she is not, by virtue of subdivision 3 of section 167 of the Insurance Law, which provides as follows: "3. No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse unless express provision relating specifically thereto is included in the policy." This statute was designed to protect insurance companies from potentially collusive attempts to obtain indemnification by spouses suing and defending inter se where, as in the instant case, the insurer has not specifically agreed to such coverage (see generally Standard Acc. Ins. Co. v. Newman, 2 Misc. 2d 348, affd. 268 A.D. 967, motion for leave to appeal denied 294 N.Y. 646; Fuchs v. London & Lancashire Ind. Co. of America, 258 A.D. 603). Under its provisions, interspouse suits are excluded from coverage by insurers within this State in the absence of express provisions in the policy to the contrary.
Here, defendant's mother, representing her deceased husband's estate, is actually making a claim through her son and against herself as the actively negligent driver of the car in which her *603 husband met his death. That, we believe, is by statute valid ground for denying her coverage of the named insured's policy absent a provision therein to the contrary even where, as here, the interspouse suit is indirect rather than direct. Westchester Lighting Co. v. Westchester County Small Estates Corp. (278 N.Y. 175) is not controlling, for that case was decided under an entirely different statute. Thus no refusal to verify this third-party complaint on the ground of possible "circuity of action" may be justified under the insured's co-operation clause.
Since this question as to the effect of subdivision 3 of section 167 of the Insurance Law upon indirect interspouse suits has never been before this court, defendant was in doubt as to the reasonableness of the requirement that he verify a third-party complaint seeking recovery over against one who was, he believed, covered by the very same policy that shielded him. It was, at best, uncertain to him what our ruling would be. In that state of mind, he suggested to the insurer that an agreed statement of facts be first submitted to the Appellate Division for a determination of his obligation under the policy.
The insurance company, however, rejected this offer, and instead declared a forfeiture of defendant's policy for non-co-operation. Nevertheless, only two weeks after declaring the forfeiture, insurer itself in effect followed that very suggestion by undertaking this declaratory judgment action much like the submission of agreed facts proposed by insured, though perhaps a somewhat slower process. It obviously did so simply for its own protection although it first attempted to forfeit defendant's rights under the policy recognizing that if it were found wrong under the law, it would forfeit nothing but could then merely return to defend its insured in the principal action, with complete safety to itself. Finally, no prejudice to the insurer was occasioned, for, in fact, the original negligence action was already subject to the delay of a crowded calendar, and was not likely to reach the trial stage for a considerable period after issue was joined.
Under the peculiar circumstances of this case, there was, on the part of defendant, no such "willful and avowed obstruction" as we found in Coleman v. New Amsterdam Cas. Co. (247 N.Y. 271, 276, per CARDOZO, Ch. J.) but a clear willingness to co-operate. By way of contrast, it was the insurer who at first demonstrated a total lack of desire on its part to co-operate. Under *604 these particular facts, we think there has heretofore been no failure of reasonable co-operation by defendant under his policy.
We do not mean to say, however, that an insured may in any case refuse to co-operate with his insurer until the courts have ruled that he is required to do so. Where, as here, the responsibilities, liabilities and duties of the parties to an insurance contract are more than colorably in doubt, i.e., where there exists a truly bona fide controversy as to the reasonableness of the insurer's demand and an absence of "willful and avowed obstruction", we may not hold as a matter of law that there has been a refusal to co-operate.
The judgment below should be reversed, with costs, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.
Judgments reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590180/ | 5 P.3d 225 (2000)
D.P. and R.P., Appellants,
v.
WRANGELL GENERAL HOSPITAL and Elsie Hansen, Appellees.
No. S-8024.
Supreme Court of Alaska.
May 19, 2000.
Rehearing Denied, August 8, 2000.
*226 James W. McGowan, Sitka, Gregory F. Cook, Douglas, for Appellants.
William T. Council, Juneau, for Appellees.
Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
OPINION
MATTHEWS, Chief Justice.
I. INTRODUCTION
D.P. was diagnosed with schizophrenia and admitted to Wrangell General Hospital. The admitting orders stated that D.P. should remain in the building. Although D.P. remained under periodic observation, she walked out of the hospital. During her brief absence, she had sexual relations with a man whom she delusionally believed was either "Jesus" or "a prophet." D.P. sued the hospital and the duty nurse for negligence, and now appeals the superior court's grant of a directed verdict for both defendants. Because we hold that reasonable jurors could differ concerning whether the defendants breached their duty of care regarding D.P., we reverse the superior court's ruling and remand the case for trial.
II. FACTS AND PROCEEDINGS
A. Facts
D.P., 43, has a history of auditory hallucinations, delusions, and other schizophrenic symptoms. Medication has generally enabled D.P. to control her condition.
D.P. was treated by Dr. David McCandless, a Wrangell general practitioner, and Kathy Koch and Mark Walker, mental health professionals from Wrangell Mental Health Services. In April 1992 Dr. Ulrich Schoettle, a clinical psychiatrist from Seattle, also began seeing D.P. every other month.
In the spring of 1994, D.P.'s caregivers became concerned that she had stopped taking her medication. By May she was significantly more agitated and began to complain of physical distress from the medication. Despite Dr. Schoettle's recommendation of a new antipsychotic drug, D.P. underwent further deterioration by July and began to experience religious delusions.
Early on July 19, Dr. McCandless admitted D.P. to the hospital, diagnosing her with "schizophrenia, psychotic decompensation." In his hospitalization order, Dr. McCandless wrote in part as follows:
Up as tolerated, should stay in building, under observation/suicide precautions.
....
For Agitation/Hallucinations/Danger to self or Others
-Haldol 5-10 mg + Ativan 1-2 mg IM
Q4° prn[1] OR AS Needed
-Restraints prn only if danger to self or
others.
When D.P. was admitted she was distraught and delusional. During the day D.P. was observed by four nurses, each on different duty shifts. The nurses' notes show that each nurse regularly checked on D.P. at intervals ranging from a few minutes to two hours. D.P. slept intermittently throughout the day, refusing food and medication. She continued to have delusions and was distraught and agitated. At 4:00 p.m. Nurse Elsie Hansen came on duty. During Hansen's shift, D.P. was noticeably more active and "cheerful," walking throughout the hallways and visiting another room. At 6:50 p.m. Hansen's notes indicate "[D.P. is] out in hallwaystates she will walk to ER and then lay down in [her room]." At 6:55 p.m. Hansen went to check on D.P. but was unable to locate her. In the intervening five minutes, D.P. had walked out of the hospital.
Once outside the hospital, D.P. met a temporary forest service worker. In her delusional state, D.P. believed that he was either "Jesus" or "the prophet." D.P. and her new acquaintance spoke for several hours, after which they engaged in sexual relations in a local park. At approximately 10:10 p.m., police officers arrived and returned D.P. to the hospital. The next day, Dr. Schoettle had D.P. involuntarily committed to the Alaska Psychiatric Institute (API).
*227 B. Proceedings
In June 1995 D.P. sued the hospital and Hansen (collectively defendants) for negligence in failing to provide "reasonable and attentive care, including, but not limited to, adherence to physician's orders, regular monitoring and accurate record-keeping." She sought compensatory damages against both defendants and punitive damages against Hansen individually.
The defendants answered, denying D.P.'s allegations of negligence. D.P. then submitted an interrogatory, requesting that the defendants explain their denial of D.P.'s charge that "[n]o effort had been made to restrain" D.P. from leaving the hospital. The defendants replied:
The Hospital's employees understood that [D.P.] was not to be permitted to leave the Hospital facility. The nurse on duty checked on [D.P.] from time to time as the nurse felt it was necessary under the circumstances at any particular time. See the medical records, and in particular the progress notes, which document in part the contacts between Hospital employees and [D.P.]. Had any Hospital employee known that it was [D.P.]'s intention to leave the Hospital facility, she would not have been allowed to do so. Unfortunately, D.P. did leave the Hospital, but not as a consequence of any failure on the part of any Hospital employee to exercise reasonable care under the circumstances at that time.
D.P. interpreted this answer as an "ironclad" admission of the existence of a duty of care, the standard of care, and the breach of a duty of care. Therefore, D.P. did not designate any expert witnesses, choosing instead to rely solely on the defendants' interrogatory answer.
At a pretrial hearing held January 24, 1997, the superior court ruled that expert testimony was required to establish the standard of care and the breach of a duty of care. At trial on January 27, the court approved D.P.'s request to call defendants' expert witness, Dr. Schoettle, to testify regarding these issues.
D.P. experienced difficulty eliciting information favorable to her case from Dr. Schoettle. She attempted to show that Hansen breached a duty of care by violating Dr. McCandless's "cut and dried" order to keep D.P. in the hospital. Dr. Schoettle testified that a physician's orders should be viewed holistically. He explained that, as a whole, the specific instructions that D.P. should remain in the building, under observation, and with suicide precautions reflected a directive to "be attentive" to the patient, requiring "general observation and supervision."
Dr. Schoettle further testified that hospitals should maintain an "open door policy" for voluntary psychiatric patients, attempting to normalize the patient's environment rather than imposing artificial controls and restraints. He testified that the "[n]ormative community standards in hospitals for observations of psychiatric patients are checking every 15[ ] minutes to a half hour." Dr. Schoettle later clarified that only acutely suicidal patents require observation every fifteen minutes.
After D.P.'s examination of Dr. Schoettle, the defendants moved for a directed verdict under Civil Rule 50, arguing that D.P. had failed to establish either the standard of care or a breach of duty. D.P. argued that Dr. Schoettle's testimony proved that, although some flexibility existed regarding the extent of supervision necessary, none existed regarding whether to permit her exit from the building.
Although the superior court concluded that Dr. Schoettle's testimony had not established a breach, it allowed D.P. to reopen her direct examination of Dr. Schoettle to make this inquiry. After further questioning, Dr. Schoettle testified that the nurses had executed Dr. McCandless's orders within the "norm of community standards." He stated:
I don't see inin my professional opinion that there was a miscommunication, a negligence, a nursing decision where somebody made it on their own andand had some wild idea oror did anything different than I would have expected any nurse to do. Sometimes patients walk out.
Dr. Schoettle also testified that the nurses had observed D.P. with adequate frequency. *228 But Dr. Schoettle acknowledged that the "fact that the patient went out implies [negligence]," although he did not believe that the nurses were negligent. Dr. Schoettle explained that an order to stay in the building is actually "an assumed" order for any patient, psychiatric or otherwise. He noted that even in psychiatric wards, doors are often left unlocked or open, and patients are allowed to commingle.
The court concluded that Dr. Schoettle's testimony had established the standard of care but failed to show a breach of duty by either the hospital or Hansen. It therefore directed a verdict for the defendants and dismissed D.P.'s claims.
III. STANDARD OF REVIEW
In reviewing the superior court's decision to grant a directed verdict, we view the evidence in the light most favorable to the nonmoving party.[2] We will affirm a directed verdict only where reasonable jurors could not reach different conclusions.[3]
Whether expert testimony is required to show a breach of a duty of care represents a question of law to which we apply our independent judgment. We will adopt the rule of law most convincing in light of precedent, reason, and policy.[4]
IV. DISCUSSION
A. It Was Error to Require D.P. to Present Expert Testimony as to the Breach of a Duty of Care.
The general rule in medical malpractice actions provides that "the jury ordinarily may find a breach of professional duty only on the basis of expert testimony."[5] "The primary limitation to this rule is that expert testimony is not needed in non-technical situations where negligence is evident to lay people."[6] D.P. relies on this exception.
The defendants rely primarily on cases discussing whether the health care provider failed to recognize the suicidal or elopement tendencies of the patient or failed to order appropriate precautions.[7] These cases, however, are distinguishable from the present situation because D.P. does not allege that defendants failed to appreciate her mental health status, to recognize a risk of harm to her, or to order reasonable precautions. She instead faults the defendants' failure to follow the ordered precautionary measures.
It remains far from clear that D.P.'s case should be viewed as a "medical malpractice" action. Most courts characterize cases in which the plaintiff alleges a failure to adequately supervise and safeguard the patient as involving "ordinary negligence" issues.[8]*229 Further, in Alaska, medical malpractice actions are governed entirely by statute.[9] Alaska Statute 09.55.536(a) sets forth specific procedural requirements for medical malpractice cases. Under this section, either the parties must submit a malpractice claim to arbitration or the court must appoint an expert advisory panel within twenty days of the answer to the complaint. Neither occurred here. Moreover, the superior court recognized that the parties had failed to treat the action as one for medical malpractice.[10]
In Clary Insurance Agency v. Doyle,[11] we distinguished between medical malpractice issues and those involving ordinary negligence:
Not every act of a professional requires an instruction on the professional standard of care. Meier v. Ross General Hospital[12] illustrates the point. Meier involved a wrongful death action by the widow of a suicide victim who had jumped through an unbarred second story window of a hospital. The court concluded that the case supported instructions on both ordinary negligence and medical malpractice. Issues relating to improper medical diagnosis and chemotherapy treatment required an instruction on the professional standard of care. But the court concluded that an instruction on ordinary negligence was appropriate on the question of whether it was negligent to allow the decedent, who was depressed and had previously slashed his wrists, to wander freely around a hospital where there were no bars on the windows.[13]
The defendants unpersuasively rely on Nally v. Grace Community Church of the Valley[14] to distinguish Meier. In Nally, a young man who received informal pastoral counseling committed suicide.[15]Nally simply declined to extend a duty of care "to personal or religious counseling relationships in which one person provided nonprofessional guidance to another seeking advice and the counselor had no control over the environment of the individual being counseled."[16]
In view of the numerous authorities holding that a jury may readily determine whether patients known to be a risk to themselves have been adequately supervised, we hold that D.P.'s claims do not raise "strict" medical malpractice issues requiring expert testimony.[17] Whether the hospital exercised reasonable care in supervising D.P. represents a factual question for the jury's resolution under an ordinary negligence framework. We therefore hold that it was error to require D.P. to present expert testimony regarding the hospital's alleged breach of its duty of care.
B. It Was Error Not to Let D.P.'s Case Go to the Jury.
D.P. contends that the superior court should have allowed the jury to consider the *230 testimony of Dr. Schoettle and lay witnesses, in determining the issue of breach.
The defendants respond that no reasonable juror could have found that the defendants were negligent. They emphasize that the hospital is not a psychiatric hospital and lacks "any locked or secure patient facilit[ies], rooms or wards." The defendants also stress that the standard of care did not require "constant observation." They argue that D.P. conceded both that the nurses had flexibility in implementing the physician's orders[18] and that all except Hansen used reasonable care in observing D.P. They further note that Hansen discovered D.P.'s absence within five minutes.
The issues raised by the defendants concerning their use of reasonable care in supervising D.P. warrant resolution by a jury. D.P.'s pleadings and proposed jury instructions raise ordinary negligence issues. Drawing all inferences in favor of D.P. as the non-moving party, reasonable minds might differ as to whether the hospital's efforts to supervise D.P. were adequate in view of her known delusional condition. We conclude that the case should properly go to the jury under a theory of ordinary negligence.
C. The Defendants' Interrogatory Answer Is Admissible to Show the Existence of a Duty of Care.
D.P. argues that the superior court erred by refusing to characterize the defendants' interrogatory answer as an admission of both the existence of a duty and the breach of that duty. Specifically, D.P. asserts that the court erred by labeling this evidence as "discovery" rather than "proof," arguing that it should have been "weighed in the analysis of defendants' motion for a directed verdict."
Civil Rule 33(c) provides that answers to interrogatories "may be used to the extent permitted by the rules of evidence." The defendants' answer in the present case bears directly upon the hospital's duty of care and should have been admitted for that purpose. We therefore hold that the interrogatory answer is admissible on the issue of the defendants' duty of care.[19]
V. CONCLUSION
We REVERSE the directed verdicts in favor of the defendants and REMAND this case for a new trial utilizing an ordinary negligence framework.
CARPENETI, Justice, dissenting.
I. INTRODUCTION
This medical malpractice case raises the question whether a hospital staff exercised care consistent with professional medical standards of restraint and supervision for a psychiatric patient. In such cases, Alaska law requires expert testimony to establish a breach of the standard of care before the plaintiff can recover. Because plaintiff offered no such testimony, even when notified by the trial court that it was required, I would affirm the trial court's decision to dismiss the case.
II. DISCUSSION
The burdens of proof in a medical malpractice action in Alaska are set out in AS 09.55.540:
(a) In a malpractice action based on the negligence or wilful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence
(1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
*231 (2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
(b) In malpractice actions there is no presumption of negligence on the part of the defendant.
Therefore, it was D.P.'s burden to provide evidence establishing the applicable medical standard of care, the defendants' breach of that standard of care, and that the breach caused her injuries.[1] Moreover, as D.P. concedes, this court has previously followed the well-established rule that "[i]n medical malpractice actions the jury ordinarily may find a breach of professional duty only on the basis of expert testimony."[2]
A. D.P.'s Case Was a Medical Malpractice Action as That Term Is Used in AS 09.55.540 and .550.
The court concludes that D.P.'s claims do not raise "`strict' medical malpractice" issues[3] and that "[i]t remains far from clear... that D.P.'s case should be viewed as a 'medical malpractice' action."[4] I disagree. Both the broad statutory use of the term "medical malpractice" and the commonly recognized legal definition of "malpractice" favor an application that covers lawsuits like D.P.'s.
The definitions section of the statutory chapter governing medical malpractice claims contains individual definitions indicative of the breadth of services and types of health service providers that the legislature intended that chapter to cover. For instance, AS 09.55.560(4) defines "professional negligence" as "a negligent act or omission by a health care provider in rendering professional services." And AS 09.55.560(5) defines "professional services" to include a "service provided by a health care provider that is within the scope of services for which the health care provider is licensed." Finally, AS 09.55.560(1) defines "health care provider" to include: "a nurse ...; a physician ...; a hospital ...; [and] an employee of a health care provider acting within the course and scope of employment." Taken together, the only conclusion to be drawn from these definitions is that sections 09.55.540 and .550 must apply to a broad range of actions taken in the provision of medical services. These services comfortably include the supervision of psychiatric patients in a hospital.
Similarly, the common definition of "malpractice" is:
Professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them.[5]
Given the broad definition commonly applied to "malpractice" and the similarly broad statutory definitions in our statutes on "medical malpractice," I cannot agree that D.P.'s claim is one of "ordinary negligence" and not one of "medical malpractice." Accordingly, to the degree that the court suggests that D.P.'s claim that she was entitled to "reasonable and attentive care, including, ... adherence to physician's orders" was not a claim of medical malpractice, I cannot agree.
B. The Notion of "Ordinary Negligence" Is Not Applicable Within the Context of a Professional Negligence Action.
I also disagree with the court's conclusion that it is appropriate to allow a jury to *232 resolve D.P.'s claim "under an ordinary negligence framework."[6] Implicit in this conclusion is the view that the individual acts that in the aggregate comprise any given medical service may be finely parsed into those acts judged under the rubric of ordinary negligence and those acts judged under the rubric of professional negligence. California, with its similar statutory scheme for medical malpractice, has rejected this approach.[7]
Moreover, the logic underlying the parsing approach to acts by health care providers is flawed because "ordinary negligence" is not applicable in a professional negligence case. The court relies on Meier v. Ross General Hospital,[8] a California case, for the proposition that "ordinary negligence" can exist in a medical malpractice setting.[9] But as the California Supreme Court recently explained in Flowers v. Torrance Memorial Hospital Medical Center,[10]
whether the cause of action is denominated "ordinary" or "professional" negligence or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial....
... [A] defendant has only one duty, measured by one standard of care, under any given circumstances.[11]
That court then went on to further explain that when courts allow seemingly obviously negligent acts to supplant the need for expert testimony to establish the appropriate standard of care, their "reasoning confuses the manner of proof by which negligence can or must be established and the character of the negligence itself."[12]
The logic of Flowers and the cases that follow it is persuasive. There cannot be two standards of care that apply to one person for the same act at the same timeone "professional" and one "ordinary."
The allegedly negligent act at issue in this case took place during the provision of professional medical services. In these circumstances, AS 09.55.540 requires proof of the applicable standard of care and proof of a breach of that standard of care. Because there was no expert testimony, the plaintiff's case was insufficient unless an exception to the rule could be found.
C. Reliance on the Common Knowledge Exception Is Not Appropriate in This Case.
The court finds an exceptionthe "common knowledge exception"to the rule that expert testimony is needed to establish the standard of care. But that exception is incompatible with our statutory framework. Moreover, even if the common knowledge exception does not conflict with AS 09.55.550, it is inappropriate to apply it on the facts of this case.
1. The common knowledge exception is not compatible with AS 09.55.550.
The common knowledge exception has been explained as applying "when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised."[13] That is, the *233 type of injury incurred could not have happened in the absence of negligence. But AS 09.55.550 provides, in part, that "[t]he jury shall be ... instructed that injury alone does not raise a presumption of the health care provider's negligence or misconduct."
The common knowledge exception therefore allows the inference of negligence to be drawn from the proved existence of injury under a broad set of possible circumstances within the knowledge and observation of the general populace. This is, however, essentially a working definition of "presumption."[14] Since AS 09.55.550 explicitly requires the court to instruct the jury that "injury alone does not raise a presumption of... negligence," application of the common knowledge exception is inconsistent with Alaska law.
2. Even if generally applicable, the common knowledge exception should not be applied on the facts of this case.
There are two theories under which the hospital could have become liable to D.P. First, either Dr. McCandless or Dr. Schoettle, or both, could have been professionally negligent in prescribing D.P.'s course of treatment and care. But D.P. did not allege any failing by either of her doctors. Accordingly, the hospital and nursing staff are not liable to D.P. for shortcomings attributable to Dr. McCandless's treatment and supervision order,[15] unless there were changed circumstances that should have alerted the nursing staff to take appropriate action.[16] D.P. therefore cannot rely on any claim that suggests alternative methods of physical, supervisory, or narcotic restraint should have been ordered or implemented because these decisions were within the doctors' exclusive province of professional responsibility.
Second, and relevant to the common knowledge exception, D.P.'s nurses may have been professionally negligent in implementing Dr. McCandless's flexible treatment order. But, as with a doctor's professional judgments, a failure in care arising out of a nurse's discretionary actions implicates professional negligence. As the court in Sabol v. Richmond Heights General Hospital[17] stated:
The law of medical negligence imposes on physicians engaged in the practice of medicine a duty to employ that degree of skill, care and diligence that a physician or surgeon of the same medical specialty would employ in like circumstances. Likewise, nurses are persons of knowledge and skill and must employ that degree of care and skill that a nurse of ordinary care, skill and diligence would employ in similar circumstances.[18]
Thus, to support this theory D.P. had to provide expert testimony establishing the appropriate standard of care of a professional nurse operating under similar circumstances,[19] unless the proper level of supervision and restraint of a psychiatric patient was peculiarly within the common knowledge of the average citizen. That it was not in *234 this case is evident by reviewing Flowers, which makes clear the strictly limited range of the common knowledge exception:
In this regard, this court has on numerous occasions articulated the general rule applicable in negligence cases arising out of the rendering of professional services: "The standard of care ... is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of the layman." The "common knowledge" exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson "is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised." The classic example, of course, is the X-ray revealing a scalpel left in the patient's body following surgery.[20]
This is clearly not such a case. The measures which a nurse might appropriately take to monitor a paranoid schizophrenic patient, and to dissuade such a patient from leaving should that be her obvious intent, and to attempt to restrain her in the event persuasion was unsuccessful, are not obvious to the lay person.[21]
Moreover, Alaska has legislatively nullified the doctrine of res ipsa loquitur in medical malpractice cases.[22] Yet under D.P.'s theory of the case, the fact that she got outside the building indicates that there was a breach of the standard of care. This argument is virtually indistinguishable from res ipsa loquitur. Moreover, "proof of a bad result or mishap is no evidence of lack of skill or negligence."[23] D.P.'s conclusion therefore leaps two stepsthe standard of care and breachwhen only one is implicated by the fact of her leaving the building. The first step, and the step on which D.P.'s case falters, is the question of the standard of care. What was the applicable standard of care for the nursing staff to protect D.P. from herself? What was the staff required or permitted to doand what was it precluded from doingin fulfilling its duty to her?
Laypersons cannot accurately answer that question without expert assistance. Both Alaska law and the realities of decisionmaking lead to that conclusion. Whether Nurse Hansen's checking up on D.P. five minutes after seeing her in the hallway (and discovering she was gone) was commensurate with the professional standards of a nurse in Wrangell General Hospital supervising a psychiatric patient is surely an issue outside the common knowledge of laypersons.
D. D.P.'s Claims Were Properly Dismissed Because She Failed to Produce Evidence to Support a Breach of the Duty of Care Established by Dr. Schoettle's Testimony.
Finally, D.P.'s negligence claim fails on the alternative basis that even when the evidence is viewed in the manner most favorable to her, it does not support a claim that Nurse Hansen failed to properly supervise D.P. under the standard of care set out in Dr. Schoettle's testimonythe only evidence produced at trial on that subject.
Dr. Schoettle's uncontradicted testimony established that "the nursing notes do not suggest any negligence whatsoever on the part of the nursing staff." Since D.P. did not provide documentary evidence or her own witness (expert or not) to testify on this claim, Dr. Schoettle's testimony established the standard of care and that there was no *235 breach of that standard by the nurses' actions. Accordingly, D.P. did not made out a prima facie case of professional negligence against the nursing staff.
III. CONCLUSION
Alaska law required D.P. to present expert testimony to establish that the hospital or its staff violated standards of professional care while she was under their control. Because she did not do so, I would affirm the trial court. I would not allow this medical malpractice case to proceed under an "ordinary negligence" framework. I therefore dissent.
NOTES
[1] "Prn" is medical shorthand for "as needed."
[2] See Fairbanks N. Star Borough v. Lakeview Enters., Inc., 897 P.2d 47, 53 n. 5 (Alaska 1995).
[3] See id.
[4] See Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
[5] Kendall v. State, Div. of Corrections, 692 P.2d 953, 955 (Alaska 1984) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980)).
[6] Id.
[7] See, e.g., Rudy v. Meshorer, 146 Ariz. 467, 706 P.2d 1234, 1236-38 (App.1985) (requiring expert testimony to show that psychiatrist "was negligent in his determination that [decedent] was not suicidal"); Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 Ill.App.2d 251, 236 N.E.2d 309, 313 (1968) (requiring expert testimony to determine "whether defendant doctors failed to exercise ordinary skill and care in not characterizing decedent as a suicidal risk"); Kanter v. Metropolitan Med. Ctr., 384 N.W.2d 914, 916 (Minn.App.1986) (recognizing that expert testimony would assist trier of fact in determining whether nurse should have recognized patients' "potential [suicidal] tendencies").
[8] See, e.g., Meier v. Ross Gen. Hosp., 69 Cal. 2d 420, 71 Cal. Rptr. 903, 445 P.2d 519, 523, 529 (1968) (where decedent leapt from hospital window, alleged failure to supervise involved only "ordinary negligence" issues since it did not concern "the propriety of any controverted medical diagnosis or treatment"); Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162, 164 (1939) (where patient leapt from window, "whether [attendant] should have locked the screen ... or [] taken some other precaution to prevent plaintiff's escape, is not a question on which a jury requires the advice of trained psychiatrists"); Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743, 745, 749 (1953) (where decedent hung herself with her nightgown, expert testimony not required to determine "whether the patient was reasonably safeguarded and protected, in the circumstances in view of her known condition" because case was not "strictly speaking a malpractice case"); Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556, 557 (1961) (action was "not a malpractice case" where patient with known suicidal tendencies strangled herself with plastic tubing while unattended in locked room because it did not concern "improper diagnosis or negligent treatment" but rather "failure of the specific duty of exercising reasonable care to safeguard and protect a patient with known suicidal tendencies from injuring herself"). But see Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 N.W.2d 486, 488-89 (1986) (where emergency room patient fell from hospital cart, court refused to find that laypersons could determine whether hospital had duty to restrain or supervise patients on carts).
[9] See AS 09.55.530-.560.
[10] The court, however, did rely on AS 09.55.540 in requiring D.P. to present expert testimony.
[11] 620 P.2d 194 (Alaska 1980).
[12] 69 Cal. 2d 420, 71 Cal. Rptr. 903, 445 P.2d 519 (1968).
[13] Doyle, 620 P.2d at 200.
[14] 47 Cal. 3d 278, 253 Cal. Rptr. 97, 763 P.2d 948 (1988).
[15] Id. 253 Cal. Rptr. 97, 763 P.2d at 950-52.
[16] Id. 253 Cal. Rptr. 97, 763 P.2d at 957.
[17] D.P.'s arguments for the hospital's breach of its duty involve issues of ordinary custodial care of patients, not specialized care that requires the use of medical judgment: Did the hospital monitor the front door properly? Did the staff take reasonable precautions to prevent D.P. from leaving? We note, however, that in so far as D.P. intends to argue issues that involve specialized medical decisionssuch as the appropriate level of physical restraints or medicationshe can do so only through expert testimony.
[18] D.P. admitted that the nurses have "all the discretion in the world" as to how closely to observe D.P. and what precautions to take, but argued that "[t]he one issue they don't have discretion about is keeping her in the hospital or out of the hospital."
[19] See Alaska R. Evid. 402 ("All relevant evidence is admissible" unless otherwise provided); Alaska R. Evid. 401 ("Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").
[1] See AS 09.55.540.
[2] Kendall v. State, Div. of Corrections, 692 P.2d 953, 955 (Alaska 1984) (ellipsis omitted) (quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 200 (Alaska 1980)).
[3] Op. at 229.
[4] Op. at 228.
[5] Black's Law Dictionary 959 (6th ed.1990) (defining "malpractice").
[6] Op. at 229.
[7] See Bellamy v. Superior Court, 50 Cal. App. 4th 797, 57 Cal. Rptr. 2d 894, 900-01 (1996):
Some ... tasks may require a high degree of skill and judgment, but others do not. Each, however, is an integral part of the professional service being rendered. Trying to categorize each individual act or omission, all of which may occur within a space of a few minutes, into "ordinary" or "professional" would add confusion in determining what legal procedures apply if the patient seeks damages for injuries suffered at some point during the course of the examination or therapy. We do not see any need for such confusion or any indication the Legislature intended MICRA's applicability to depend on such fine distinctions. (Footnote omitted.)
[8] 69 Cal. 2d 420, 71 Cal. Rptr. 903, 445 P.2d 519 (1968).
[9] Op. at 228-229.
[10] 8 Cal. 4th 992, 35 Cal. Rptr. 2d 685, 884 P.2d 142 (1994) (in banc).
[11] See id. 35 Cal. Rptr. 2d 685, 884 P.2d at 146 (footnote omitted).
[12] Id. 35 Cal. Rptr. 2d 685, 884 P.2d at 147.
[13] Id. (footnote and internal quotation marks omitted) (quoting Engelking v. Carlson, 13 Cal. 2d 216, 88 P.2d 695 (1939)).
[14] See Blacks Law Dictionary 1203 (7th ed.1999) (defining "presumption" as "[a] legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts"); see also Commentary to Alaska Rule of Evidence 301(a), second paragraph (defining "presumption").
[15] See Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 Ill.App.2d 251, 236 N.E.2d 309, 314 (1968) (holding that hospital was under no duty to take precautions not ordered by the attending physician); State v. Washington Sanitarium and Hosp., 223 Md. 554, 165 A.2d 764, 766 (1960) (stating that "[i]t was not incumbent upon the nurses and attendants to apply restraints or supervision which the attending physician" did not order); Sabol v. Richmond Heights Gen. Hosp., 111 Ohio App. 3d 598, 676 N.E.2d 958, 960 (1996) (holding that the hospital was not liable where its staff provided the protective measures ordered by the attending physician to prevent suicide).
[16] See Washington Sanitarium, 165 A.2d at 766.
[17] 111 Ohio App. 3d 598, 676 N.E.2d 958.
[18] Id. at 960 (emphasis added) (citations omitted).
[19] See Hitch v. Ohio Dep't of Mental Health, 114 Ohio App. 3d 229, 683 N.E.2d 38, 45 (1996); Payne v. Milwaukee Sanitarium Found., Inc., 81 Wis. 2d 264, 260 N.W.2d 386, 390-91 (1977) ("Where the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary.") (citation omitted).
[20] 35 Cal. Rptr. 2d 685, 884 P.2d at 147 (emphasis added) (footnote and citations omitted).
[21] See Baker v. United States, 226 F. Supp. 129, 132 (S.D.Iowa 1964) ("It is particularly recognized in the treatment of mental patients that diagnosis is not an exact science.... Further the objective is treatment not merely incarceration. Treatment requires the restoration of confidence in the patient. This in turn requires that restrictions be kept at a minimum. Risks must be taken or the case left as hopeless.") (emphasis added) (citations omitted), aff'd, 343 F.2d 222 (8th Cir.1965).
[22] See Priest v. Lindig, 583 P.2d 173, 175-76 & n. 7 (Alaska 1978) (citation omitted).
[23] Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 Ill.App.2d 251, 236 N.E.2d 309, 312 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2615230/ | 9 Kan. App. 2d 15 (1983)
668 P.2d 200
EDMUND HERL & LOUISE HERL, Appellees,
v.
JULIUS A. LEGLEITER, et al., Appellants.
No. 54,478
Court of Appeals of Kansas.
Opinion filed August 25, 1983.
Gregory J. Herrman, of Hays, for the appellants.
Michael S. Holland, of Russell, for the appellees.
Before FOTH, C.J., REES and SPENCER, JJ.
FOTH, C.J.:
After bench trial the trial court found that the oil and gas lease in question here had expired because the lessees had failed to "commence" a well within the one year primary term. The defendant lessees appeal, contending primarily that certain preliminary steps taken in anticipation of drilling were sufficient to constitute commencement of a well under the terms of the lease.
On March 27, 1980, lessors Edmund and Louise Herl and lessee Julius A. Legleiter entered into an oil and gas lease covering 80 acres of land in Ellis County, Kansas. Legleiter subsequently sold participating interests to a number of other persons who were joined in this suit as lessees-defendants. The lease was a standard Kansas Producers 88 which provided for a primary term of one year and also:
"If no well be commenced on said land on or before the 27th day of March, 1981, this lease shall terminate as to both parties...."
It further provided:
"If the lessee shall commence to drill a well within the term of this lease or any extension thereof, the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch...."
On March 27, 1981, no drilling rig was on the lease. However, certain preparations for drilling had been made, including construction of an access road, staking of the location, construction of *16 pits at the site and delivery of mud to the well site and of stem and casing pipe to a location off the lease but accessible to it.
On that day, a Saturday, lessor Edmund Herl wrote a check to lessee Legleiter in payment for a 1/32nd working interest in the lease. On the following Monday, March 29, 1981, Herl stopped payment on the check. On April 7, 1981, there having been no activity on the lease, Herl filed this suit.
The trial court made extensive findings of fact. It concluded that under the law of Kansas, making preparations to drill does not constitute commencement of drilling where the lessee neither owns a drilling rig nor has one under contract. It therefore declared the lease terminated by its own terms. Lessee filed a motion to set aside the judgment or in the alternative for a new trial. At the end of the hearing of that motion the trial court denied the motion, repeating and expanding its previous analysis of the Kansas case law. It also, however, made an incidental finding that Legleiter had acted in good faith in making preparations for drilling.
In its findings of fact, which are unchallenged, the trial court related the history of the dealings between the lessor Herl and the lessee Legleiter, and also those between Legleiter and Montgomery Exploration, Inc., the drilling company utilized by Legleiter in his operations. We summarize:
The lease here in question covered the west 1/2 of a quarter section. Herl gave a similar lease to Legleiter at the same time covering the east 1/2. Legleiter drilled on the east 1/2 (Herl No. 1) in January, 1981, using Montgomery's rig. When that well was finished both leases had just over two months to run.
From Herl No. 1 the rig went to four other locations and drilled four wells between January 24 and March 8, 1981. The last of the four was on land owned by Legleiter.
At the conclusion of Legleiter's own well he still had 19 days to commence drilling Herl No. 2 on this lease. The Montgomery rig, however, was moved to Rooks County where it drilled a well which was finished March 23, 1981. From there, although this lease still had four days to go, the rig moved to another well in Rooks County, drilling from March 24 to April 16, 1981. By this time the Herl lease deadline had expired.
The court found that although Legleiter had entered into preliminary negotiations with Montgomery to drill Herl No. 2, *17 he had no firm commitment from them and no written contract with them as required by their policy. Further, he had no rig of his own and no access to another rig. After the lease deadline of March 27, 1981, and until suit was filed he made no effort to secure a rig from either Montgomery or anyone else.
It was this failure to have a drilling rig or any arrangements to get one which the trial court found fatal to the lessees' claim to have commenced a well by the last day of the primary term. In so finding the court placed primary reliance on Shoup v. First Nat'l Bank, 145 Kan. 971, 67 P.2d 569 (1937). There escrowed leases were to be delivered to the lessee if he should "commence operations for the drilling of a test well" within five days of an extension agreement, or by July 29, 1935. Prior to the agreement the site had been staked and a cellar dug. Within the five days "some rig timber, band wheel, walking beam, rig bottom timbers, Sampson post, and some other similar equipment was placed on the location." 145 Kan. at 974. The problem was that the lessee had only an oral contract with a driller, who in turn was still looking for someone with tools when the five days expired. The lessee eventually found someone equipped to drill. In October a new cellar was dug, and the well was spudded (i.e., the drill bit first penetrated the ground) November 1, 1935.
It was there contended that the hauling of the materials to the site within the five days constituted the commencement of operations. The court noted several cases from other jurisdictions which might support such a contention, and also earlier Kansas cases which seemed to ascribe a more restrictive meaning to the "commencement" of operations. It then concluded:
"The testimony shows clearly that Swearer or his assigns were looking for someone with adequate equipment with whom they could contract for drilling the well, and that from about July 29, 1935, when the first load of equipment was dumped, until about October 23, 1935, nothing was done, and that the well was not spudded until November 1, 1935. It may be doubted that the dumping of some usable and useful equipment on a location by one who has no intention of drilling a well himself, but expects it to be used by some one with whom he may contract thereafter for drilling of a well constitutes, in any sense, a commencement of operations for drilling of the well, but assuming that it does, and giving to appellant the benefit of every inference of the evidence adduced by him, it fails utterly to show that the `operations' so commenced were continued with due diligence to completion." 145 Kan. at 978-9. Emphasis added.
The lessees here point out that the emphasized language is dictum, since the case was actually decided on the ground that *18 the lessee there didn't pursue the drilling with due diligence even if it were assumed that the preparatory steps amounted to "commencement" of operations. While that is true, the dictum strikes us as very strong, and fully supportive of the trial court's finding in this case of "no commencement."
Further, the lack of diligence relied on by the court in Shoup was found despite the lessee's strenuous efforts to find a contractor to drill. As the court put it:
"Here such diligence as was shown between July 28 or 29, when the rig timbers, etc., were placed on the location, and about the date the second cellar was dug, was to find a driller with equipment, and not to prosecute the operation started when the first materials were delivered." 145 Kan. at 979-80.
In this case, not only did the lessee not have a driller with a rig, but after the preparatory steps did not even look for one. In this case, as in all cases we have found where the issue has been considered, the duty to commence is accompanied by a duty to continue operations with due diligence. If, as the Shoup court did, we give lessees the benefit of assuming that the preparatory steps were the commencement of drilling, the fact remains that after such "commencement" nothing took place, either on the lease or off. Lessees can point to no activity after March 27, 1981, which demonstrates any effort on their part to continue the well to completion, even if we assume it was commenced.
The trial court's post-judgment finding of Legleiter's good faith did not affect the result in the trial court's mind, nor does it in ours. Legleiter may in good faith have attempted to commence a well, but as a matter of fact the steps he took fell short of accomplishing what he was attempting to do.
The lessees' claim of estoppel cannot be sustained. First, the issue was not presented to the trial court until the post-judgment motion. Second, there is no showing of any action lessees took in reliance on Herl's check. See Lines v. City of Topeka, 223 Kan. 772, Syl. ¶ 4, 577 P.2d 42 (1978).
There are a number of things we are not called upon to decide in this case. One is whether a well must be spudded to be commenced. Other states differ on this question; our court has not addressed it but in its only three cases on "commencement" has apparently assumed that something less might constitute commencement, at least of drilling "operations." Shoup v. First Nat'l Bank, 145 Kan. 971; Phillips v. Berg, 120 Kan. 446, 243 Pac. *19 1054 (1926); Hennig v. Gas Co., 100 Kan. 255, 164 Pac. 297 (1917). Another is whether there is a meaningful difference between such terms as "commence to drill a well," "commence operations to drill a well," and "commence drilling operations." See, e.g., Solberg v. Sunburst Oil & Gas Co., et al., 73 Mont. 94, 235 Pac. 761 (1925). A third is the result if a lessee commenced drilling operations in good faith, with rig committed, and then could not carry through promptly because of weather or other circumstances beyond his control.
We conclude only that the trial court's finding that lessees had not commenced to drill a well within the primary term of the lease is not erroneous as a matter of law, and it did not err in finding that the lease had expired by its terms.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877010/ | 247 S.W.3d 920 (2008)
STATE of Missouri, Respondent,
v.
David Earl ROBERSON, Appellant.
No. WD 67595.
Missouri Court of Appeals, Western District.
March 25, 2008.
Nancy McKerrow, Columbia, MO, for appellant.
Shaun MacKelprang, Jefferson City, MO, for respondent.
Before HARDWICK, P.J., SMART, J. and WELSH, Sp. J.
ORDER
PER CURIAM.
David Roberson appeals from his conviction on four counts of forgery. The judgment is affirmed. Rule 30.25(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1914083/ | 981 A.2d 220 (2009)
COM., DEPT. OF TRANSP., BUREAU OF DRIVER LICENSING
v.
YOURICK.
No. 98 WAL (2009).
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/1783782/ | 646 So. 2d 1305 (1994)
HERITAGE CABLEVISION
v.
NEW ALBANY ELECTRIC POWER SYSTEM OF the CITY OF NEW ALBANY, MISSISSIPPI.
No. 91-CA-00460.
Supreme Court of Mississippi.
December 8, 1994.
*1306 W.O. Luckett, Jr., Luckett Law Firm, Clarksdale, for appellant.
William C. Spencer, Nathan W. Kellum, Mitchell McNutt Threadgill Smith & Sams, Tupelo, for appellee.
Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.
HAWKINS, Chief Justice, for the Court:
STATEMENT OF THE CASE
On December 7, 1988, Mike Biffle (hereinafter "Biffle"), an employee for the appellant Heritage Cablevision (hereinafter "Heritage"), was installing cable on a pole owned by the appellee New Albany Electric Power System of the City of New Albany (hereinafter "New Albany Electric"). Charlie Huffstatler (hereinafter "Huffstatler"), an employee of New Albany Electric, had at the same time parked a pick-up truck at the top of an inclined driveway. As Huffstatler reached to open the door to the truck, the parking brake popped out, causing the truck to roll down the driveway, hit the pole and injure Biffle.
New Albany Electric filed a Complaint for Declaratory Judgement against Heritage and Biffle in the Circuit Court of Union County on March 1, 1990, asking the court to confirm the existence and validity of an indemnity agreement between the two companies. Biffle answered on March 16, 1990, by filing a Motion to Dismiss pursuant to Rule 12(b)(6) which New Albany Electric responded to on April 18, 1990, and which was granted on March 6, 1991. On April 5, 1990, Heritage responded to New Albany Electric's complaint and joined Huffstatler under Rule 14 as third-party defendant. Eight days later Huffstatler filed an Answer to Third Party Complaint and Defenses.
Heritage then filed a Motion for Summary Judgement on all issues and against all parties on June 25, 1990. New Albany Electric filed its own Motion for Summary Judgement on July 18, 1990, asserting the existence and validity of the indemnification agreement. On March 25, 1991, an order granting summary judgement for New Albany Electric and denying summary judgement for Heritage was entered by Judge Robert Kenneth Coleman in the Union County Circuit Court.
*1307 Aggrieved by this order, Heritage filed a Notice of Appeal on April 8, 1991.
FACTS
This case has its beginnings on December 7, 1988, a date which will probably never live in infamy. Mike Biffle, an employee for Heritage Cablevision, was installing cable on a pole at the lower end of an inclined driveway. A half-ton pickup truck had been parked at the upper end by Charlie Huffstatler, employee of New Albany Electric. The truck was in park and the parking brake set, but when Huffstatler reached to open the truck door the parking brake popped loose. The truck rolled down the driveway, struck the pole on which Biffle was working and knocked him to the ground, causing extensive injuries.
New Albany Electric filed a Complaint for Declaratory Judgement against Biffle and Heritage on March 1, 1990, claiming an indemnification clause between Heritage and them relieved them of liability for Biffle's injuries. Biffle, on March 16, 1990, filed a Motion to Dismiss which New Albany Electric responded to in April of 1990 and which was granted in March of 1991. On April 5, 1990, Heritage answered, contending they were not bound by this indemnification clause, that the clause was invalid or inapplicable; and further that the negligence or strict liability of a third party was the sole proximate cause of the accident and that workers' compensation was Biffle's exclusive remedy. Finally, Heritage also used this response to join Huffstatler under Rule 14 as a third-party defendant. Huffstatler filed an Answer to Third Party Complaint and Defenses on April 26, 1990.
On June 25, 1990, Heritage filed a Motion for Summary Judgement as to all contested issues and against all parties. The Motion reads:
Comes now Defendant, Heritage Cablevision, Inc. by and through counsel, Luckett Law Firm, P.A. and pursuant to Rule 56 Mississippi Rules of Civil Procedure and moves the court for a summary judgement in its favor on all issues in this cause and for grounds states that there is no genuine issue as to any material fact and that it is entitled to judgement as a matter of law.
Movant relies upon; 1) Complaint, 2) Response To Complaint and Third Party Complaint, 3) Answer to Third Party Complaint and Defenses and 4) Deposition of Charlie Huffstatler which are attached hereto as Exhibits 1, 2, 3, and 4 respectively.
About a month later New Albany Electric entered its own Motion for Summary Judgement which similarly claimed that there were no genuine issues as to any material fact, and, like their previous Complaint for Declaratory Judgement, stated that an indemnity clause existed between them and Heritage which relieved them of all liability.
The clause in question is part of a 1967 agreement between New Albany Electric and New Albany T.V. Cable, Inc., a company Heritage bought and obtained cable servicing contracts from after execution of the 1967 agreement. The clause in question reads in relevant part:
10. Licensee shall indemnify, protect, and save harmless Licensor from and against any and all claims and demands for damages to property and injury or death to persons, including payments made under Workmen's Compensation Law or under any plan for employee's disability and death benefits, which may arise out of or be caused by the erection, maintenance, presence, use or removal of said attachments or by the proximity of the respective cables, wires, apparatus and appliances of the parties hereto; or by any act of Licensee, its agents or employees, on or in the vicinity of Licensor's poles, or arising out of the negligence of Licensor as to personal injuries received or suffered by agents or employees of Licensee while they are engaged in activities authorized by this Agreement. Licensee shall carry insurance, to protect the parties hereto from and against all claims, demands, actions, judgments, costs, expenses, and liabilities of every name and nature which may arise or result directly or indirectly, from or by reason of such loss, injury or damage... .
*1308 Although Heritage was not a party to the original contract, they did utilize the licensing agreement to use the cable described therein. Furthermore, in 1982 they executed with New Albany Electric an amendment to the 1967 contract which altered the original payment plan but left the indemnity clause untouched.
Both the nature of the relationship between the old and new cable companies and the history of Heritage's conduct under the original agreement were further illuminated during the discovery process of this case. Heritage's responses to New Albany Electric's requests for admissions read as follows:
COMES NOW Defendant, Heritage Cablevision, Inc. by and through counsel, Luckett Law Firm, P.A. and responds to Plaintiff's request for admissions as follows:
REQUEST NO. 1: Admit that Heritage Cablevision was assigned the duties and obligations of New Albany T.V. Cable, Inc. provided for in the agreement between New Albany T.V. Cable, Inc. and New Albany Electric Power System of the city of New Albany, Mississippi, dated July 14, 1967, a copy of which is attached to the Complaint as Exhibit "A."
RESPONSE: Heritage Cablevision, Inc. is without sufficient knowledge or information to admit or deny the request. It has made reasonable inquiry pursuant to the dictates of Rule 36 Mississippi Rules Of Civil Procedure and can find no documentary evidence of any "assignment".
REQUEST NO. 2: Admit that Heritage Cablevision, since it began servicing the New Albany area, has recognized and adhered to the agreement dated July 14, 1967, a copy of which is attached to the Complaint as Exhibit "A."
RESPONSE: Admitted.
REQUEST NO. 3: Admit that Heritage Cablevision had used the poles provided by City of New Albany pursuant to the agreement dated July 14, 1967, a copy of which is attached to the Complaint as Exhibit "A," in servicing cable in the City of New Albany.
RESPONSE: Admitted with the qualification that the only use by Heritage Cablevision, Inc. of the "poles" has been since Heritage purchased the cable television system from New Albany T.V. Cable, Inc.
REQUEST NO. 4: Admit that the agreement between Heritage Cablevision and New Albany Electric Department dated September 20, 1982, a copy of which is attached to Complaint as Exhibit "A," acted as a supplement of the agreement dated July 14, 1967, a copy of which is attached to Complaint as Exhibit "A."
RESPONSE: Denied. The 1982 agreement is an amendment to the 1967 agreement not a supplement. The documents speak for themselves as to what is intended by the words contained therein.
Heritage's responses to New Albany's interrogatories also prove to be useful:
COMES NOW Defendant, Heritage Cablevision, Inc. and responds to Plaintiff's first set of interrogatories as follows:
INTERROGATORY NO. 1: Please describe the process in which Heritage Cablevision obtained the cable servicing contracts from New Albany T.V. Cable, Inc.
RESPONSE: Heritage came to learn that the New Albany system was for sale and it purchased the then existing system.
INTERROGATORY NO. 2: What contractual relationship, if any, existed between Heritage Cablevision and the Electric Department of the City of New Albany on December 7, 1988?
RESPONSE: Heritage Cablevision, Inc. is of the position that any and all contractual relationships that existed between Heritage Cablevision, Inc. and the City of New Albany on December 7, 1988, would be the 1967 Agreement attached to the Complaint and the 1982 Amendment attached to the Complaint.
INTERROGATORY NO. 3: Identify and describe any contracts, duties or obligations regarding the City of New Albany assigned to Heritage Cablevision from New Albany T.V. Cable, Inc.
RESPONSE: Heritage is of the opinion that its contracts, duties, and obligations regarding the City of New Albany are contained in the 1967 Agreement and the *1309 1982 Amendment thereto attached to the Complaint. It knows of no specific assignment with respect to said contracts.
INTERROGATORY NO. 4: What is the basis of Defendant, Heritage Cablevision's contention that it is a party to the supplemental contract dated September 20, 1982, attached to the Complaint as Exhibit "A," and not a party to the original contract dated July 14, 1967, attached to the Complaint as Exhibit "A."
RESPONSE: Heritage states that it is a party to the supplemental contract dated September 20, 1982, because it executed said Amendment. It is of the position that it is not a party to the contract dated July 14, 1967, attached to the Complaint as Exhibit A because it did not execute said contract.
After considering the evidence and the parties' memoranda of law, Judge Robert Kenneth Coleman of the Union County Circuit Court granted summary judgement on March 25, 1991, for New Albany Electric and denied it for Heritage Cablevision:
IT IS THEREFORE, ORDERED, THAT:
1. The motion for summary judgement filed by Heritage Cablevision, Inc. is hereby denied.
2. The motion for summary judgement filed by the New Albany Electric Power System of the City of New Albany, Mississippi is hereby sustained and the Indemnity Agreement entered into between New Albany Electric Power System of the City of New Albany, Mississippi and Heritage Cablevision, Inc. is valid and in accordance with Paragraph X of said agreement, Heritage Cablevision shall indemnify, protect and save harmless New Albany Electric Power System of the City of New Albany, Mississippi, from and against any and all claims and demands for damages to the injuries received by Mike Biffle on December 7, 1988.
Aggrieved by this order, Heritage filed a Notice of Appeal on April 8, 1991.
LAW
In reviewing a Rule 56 Summary Judgement one should bear in mind that "summary judgement is not a substitute for a trial on disputed fact issues; it permits a court to render judgement on the law when no disputed facts are found to exist. The court is not the factfinder on summary judgement, but may only determine if issues are to be tried." Smith v. H.C. Bailey Companies, 477 So. 2d 224 (Miss. 1985). Both parties in this case professed that there were no disputed material facts and an examination of the record shows this to be true. Therefore, in at least this respect, an award of summary judgement is appropriate.
As there are no factual matters in contention, all that remains for this court to decide are issues of law. The procedure for making such a determination is well known:
This court conducts de novo review of a lower court's grant of summary judgement. Pearl River County Bd. of Supervisors v. South East Collections Agency, Inc., 459 So. 2d 783, 785 (Miss. 1984). "The general standard that an appellate court applies in reviewing the grant or denial of a summary judgment motion is the same as that employed by the trial court initially under Rule 56(c)." 10 Wright, Miller & Kane, Federal Practice and Procedure § 2716 (1983 and Supp. 1988).
The law governing the grant or denial of a motion for summary judgment is familiar and well established. Fruchter v. Lynch Oil Co., 522 So. 2d 195, 198 (Miss. 1988). In Dennis v. Searle, 457 So. 2d 941 (Miss. 1984), we explained:
The trial court must review carefully all of the evidentiary matters before it admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgement as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied. 457 So.2d at 944.
Short v. Columbus Rubber and Gasket Co., 535 So. 2d 61 (Miss. 1988).
*1310 We now address the issues presented in this particular case.
I. WHETHER THE NEGLIGENCE AND/OR STRICT LIABILITY OF A THIRD PARTY WAS THE SOLE PROXIMATE CAUSE OR THE CONTRIBUTING PROXIMATE CAUSE OF THE UNDERLYING ACCIDENT.
A reading of New Albany Electric's Complaint for Declaratory Judgment, their Motion for Summary Judgement and the order granting the summary judgment reveal that they are concerned almost exclusively with the validity and applicability of the 1967 indemnification clause. The actions of a third party and whether they somehow caused the injury in question are irrelevant in determining the legal question of the validity of this clause. Furthermore, although Heritage does briefly raise this issue on appeal, they never point to any facts or law which would enable this Court to fully address this issue. We therefore, find no merit to this contention.
II. WHETHER HERITAGE CABLEVISION IS BOUND BY THE 1967 AGREEMENT BETWEEN NEW ALBANY ELECTRIC AND NEW ALBANY T.V. CABLE, INC.
Heritage claims that as it was not a party to the original 1967 contract, it should not be bound by the indemnity clause contained therein. A determination of this issue is hampered somewhat by the lack of documentation in the record regarding the sale of New Albany T.V. Cable, Inc. to Heritage Cablevision. However, ample evidence exists elsewhere.
First, Heritage acknowledged during discovery that it has been using the television cable attached to New Albany Electric's poles under the 1967 agreement since it bought New Albany T.V. Cable. They cannot pick and chose the provisions upon which to be bound.
§ 59 Acceptance of benefits
Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation, or statute which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions, and it has been said that such cases are referable, when no fraud either actual or constructive is involved, to the principles of election or ratification, rather than to those of equitable estoppel. The result produced, however, is clearly the same, and the distinction is not usually made. Such estoppel operates to prevent the party thus benefitted from questioning the validity and effectiveness of the matter or transaction insofar as it imposes a liability or restriction upon him, or, in other words, it precludes one who accepts the benefits from repudiating the accompanying or resulting obligation. And the principle of estoppel by the acceptance of benefits may operate to prevent a party from profiting by his own wrong. 28 Am.Jur.2d Estoppel and Waiver § 59 (1966). (Emphasis added.)
Heritage cannot accept the benefit under this contract and also repudiate its obligations. Whether they actually signed the original 1967 document is irrelevant now that they have been operating under it for so many years. Equity obliges Heritage to acknowledge that they are bound by the agreement.
Moreover, further evidence of Heritage's past willingness to accept the original contract can be seen in the 1982 agreement between them and New Albany Electric. This agreement amended the payment terms of Article 8 in the 1967 contract and is signed by representatives of both Heritage and New Albany Electric. It reads in part, "The New Albany Electric Department and Heritage Cablevision agree that the following amendment shall be a part of the agreement between the parties dated August 2, 1967." Clearly this bound Heritage to the 1967 contract.
Finally, Heritage conceded during discovery that they had recognized and adhered to the 1967 agreement since they started servicing the New Albany area. They also stated that "Heritage Cablevision, Inc. is of the position that any and all contractual relationships *1311 that existed between Heritage Cablevision, Inc. and the City of New Albany on December 7, 1988, would be the 1967 Agreement attached to the Complaint and the 1982 Amendment attached to the Complaint" and further that "Heritage is of the opinion that its contracts, duties and obligations regarding the City of New Albany are contained in the 1967 Agreement and the 1982 Amendment thereto attached to the complaint." These words constitute a specific acknowledgement by Heritage that the 1967 contract contains its duties and obligations to New Albany Electric. Under the circumstances, their claim that no such duties and obligations exist is incomprehensible.
Whether by principles of equitable estoppel, the 1982 amendment, or Heritage's own admissions, it is clear that Heritage should be and is bound by the 1967 agreement between New Albany Electric and New Albany T.V. Cable.
III. WHETHER THE INDEMNIFICATION CLAUSE IN THE 1967 AGREEMENT IS VOID AND UNENFORCEABLE UNDER MISS. CODE ANN. § 31-5-41.
Miss. Code Ann. § 31-5-41, the statute which Heritage claims renders the indemnity clause void, reads:
"Hold harmless" clauses in construction contracts are void; exceptions.
With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, structures, highway bridges, viaducts, water, sewer, or gas distribution systems, or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise, and/or agreement contained therein to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable.
This section does not apply to construction bonds or insurance contracts or agreements.
Miss. Code Ann. § 31-5-41.
Although a straightforward reading of this statute would lead one to think that it only applied to construction contracts, Heritage in its brief quotes several cases and attempts to perform elaborate legal gymnastics to prove otherwise. As this Court has not yet decided this issue, Heritage is forced to rely on the persuasive, yet non-binding holdings of our cousins in the Federal system.
One such case is based on a fact pattern quite similar to case at bar. Lorenzen v. South Central Bell Telephone Co., 546 F. Supp. 694 (S.D.Miss. 1982), aff'd 701 F.2d 408 (5th Cir.1983), involves a licensing agreement between South Central Bell and Clearview Cable of Clinton, Inc., which allowed Clearview to use the phone company's poles to provide cable television in the Clinton area. This contract also had an indemnification agreement much like the one in the 1967 contract in the present case and, although South Central Bell and its employees were not directly involved, an employee of the cable company was injured while working on a pole. The phone company paid Lorenzen, the injured cable employee, and moved for summary judgement against Clearview based on the indemnification contract. In response to Clearview's attempt to block the enforcement of the indemnity agreement by interposing § 31-5-41, the United States District Court for the Southern District of Mississippi wrote:
The Court concludes that said section does not bar South Central Bell's maintenance of its present claim for indemnity.
Here we have no construction contract and Clearview has not made an agreement to construct anything.
Clearview, by the "License Agreement For Pole Attachments" which is at issue merely obtained a license, rather than agreeing to construct anything....
Simply put: this License Agreement was not a "construction contract" within the meaning and prohibition of § 31-5-41. Therefore, that section does not bar South Central Bell from enforcing the indemnity provisions of its contract with Clearview.
Id. at 697.
Heritage tries to distinguish Lorenzen from the case at bar by pointing out that the injury in question happened under different *1312 circumstances: "(1) the injuries arose directly out of the installation of Clearview's cable; (2) the negligence, allowing the defective pole to exist, occurred at the site of Clearview's cable connection; and (3) Clearview and its employee had some control of the workplace." However, these distinctions are just details concerning the nature of the accident. They have little bearing on the essence of the underlying contract and do nothing to prove that the 1967 licensing agreement is of the same character as a § 31-5-41 construction contract.
Heritage's protestations to the contrary, the 1967 contract is a licensing agreement and not a construction contract. Therefore, § 31-5-41 does not apply to prevent the enforcement of the indemnification clause contained therein.
IV. WHETHER THE INDEMNIFICATION CLAUSE COVERS AN INCIDENT SUCH AS THIS ONE.
This issue is largely a matter of contract interpretation. The 1967 indemnification clause states that the licensee cable company shall indemnify licensor New Albany Electric against, among other things, claims arising from, "any act of Licensee, its agents or employees, on or in the vicinity of Licensor's poles, or arising out of the negligence of Licensor as to personal injuries received or suffered by agents or employees of Licensee while they are engaged in activities authorized by this agreement." (Emphasis added.)
The claim in this case is based on an injury which arose out of the licensor's negligence and was suffered by an employee of the licensee while he was engaged in activities authorized by the agreement.[1] If one were to follow the words of the contract alone, one would be forced to conclude that the indemnity clause applies. Heritage, however, claims that one must look beyond the words of the contract here to determine the true intent of the parties. If one does so, claims Heritage, it becomes apparent that this type of injury was never meant to be covered by this agreement.
Heritage's assertions that the intent of the parties should be used to determine the true meaning of this contract are correct. "In interpreting the writing at issue, the cardinal rule of construction is to give effect to the mutual intentions of the parties." Kight v. Sheppard Bldg. Supply, Inc. 537 So. 2d 1355, 1359 (Miss. 1989). "The first rule of contract interpretation is to give effect to the intent of the parties." Estate of Hensley v. Estate of Hensley, 524 So. 2d 325, 327 (Miss. 1988). Heritage errs, however, in proposing that this court look beyond the clear language of this contract to determine what this intent is.
Our concern is not nearly so much what the parties may have intended as it is with what they said, for the words employed are by far the best resource for ascertaining intent and assigning meaning with fairness and accuracy. This is particularly so where... one of the parties ... was not a party to the original contract.
UHS-Qualicare v. Gulf Coast Community Hospital, 525 So. 2d 746, 754 (Miss. 1987).
*1313 This rule of law is well established. "In contract construction cases our focus is upon the objective fact the language of the contract. We are concerned with what the contracting parties have said to each other, not some secret thought of one not communicated to the other." Osborne v. Bullins, 549 So. 2d 1337, 1339 (Miss. 1989). "The most basic principle of contract law is that contracts must be interpreted by objective, not subjective standards. A court must effect `a determination of the meaning of the language used, not the ascertainment of some possible but unexpressed intent of the parties.'" Cherry v. Anthony, Gibbs, Sage, 501 So. 2d 416, 419 (Miss. 1987) (quoting Hunt v. Triplex Safety Glass Co., 60 F.2d 92, 94 (6th Cir.1932)).
Only if the contract is unclear or ambiguous can a court go beyond the text to determine the parties' true intent. This rule is well elucidated in the Cherry case. "Parol evidence as to surrounding circumstances and intent may be brought in where the contract is ambiguous, but where, as here, the contract was found to be unambiguous it has no place. The parties are bound by the language of the instrument." Id. Cherry also states that "the mere fact that the parties disagree about the meaning of a contract does not make the contract ambiguous as a matter of law." Id. A reading of the clause in question reveals no such ambiguity, nor does Heritage cite one.
Heritage also asks this court to invalidate this clause as violative of public policy. According to Cappaert v. Junker, 413 So. 2d 378 (Miss. 1982):
In determining whether contracts should be invalidated on the ground that they violate public policy, we have held that this should not be done unless the contract is prohibited by the Constitution, a statute, or condemned by some decision of the courts construing the subject matter. This was expressed in State ex rel Knox v. Hines Lbr. Co., 150 Miss. 1, 115 So. 598 (1928), in the following language:
The power to invalidate contracts or agreements on the ground that they violate public policy is far reaching and easily abused, and this court is committed to the doctrine that the public policy of the state must be found in its constitution and statutes, "and when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials." U.S. v. Trans-Missouri Freight Ass'n, 166 U.S. [290 at] 340, 17 S.Ct. [540 at] 559, 41 L. Ed. 1007 [1897].
Cappaert at 380.
Heritage does not proffer any statute, constitution, or case that this clause actually violates. They do, however, cite Butler v. United States, 726 F.2d 1057 (5th Cir.1984), as a case in which an indemnity clause was overturned for public policy reasons. Its use here is inappropriate. In Butler the indemnitee actively prevented the indemnitor from making an accident site safer. The public policy justification in that case is quite clear measures to increase public safety should be encouraged, not prevented. Furthermore, it is wrong to hold an indemnitor liable to an indemnitee when the indemnitee did not allow him to stop the injury. There is no such intentional conduct here on the part of New Albany Electric against Heritage. Because of this, and because of the lack of any other possible public policy justifications, this court should not, on this basis, invalidate this clause.
It is quite possible that when this clause was agreed to the parties were not contemplating this particular type of accident. Nevertheless, this Court cannot reach back in time to read the parties' minds. The law allows the Court to look no further than the unambiguous written agreement between the two companies. With our vision so directed, our only choice under the law is to enforce the clause as written and find that Heritage Cablevision is indemnified to New Albany Electric.
V. WHETHER WORKER'S COMPENSATION LAWS PROVIDE THIS INJURED PARTY HIS EXCLUSIVE REMEDY.
The exclusivity provision of the Mississippi's Worker's Compensation Act is found at 71-3-9 of the Mississippi Code Annotated:
*1314 The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parent, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.
Miss. Code Ann. § 71-3-9.
The existence of a contract for indemnity, however, changes the applicability of the exclusiveness statute. Although this court has not ruled specifically in this area, the aforementioned federal Lorenzen case addresses this issue:
The existence of the express indemnity agreement between Clearview and South Central Bell takes this case outside the prohibition of § 71-3-9, Mississippi Code of 1972, Annotated and brings this case within the majority rule recognized in Anno., 100 ALR.3rd 356; and Ball v. Oregon Erecting Co., 273 Or. 179, 539 P.2d 1059, 1061-63 (1975), that workmen's compensation acts do not bar a claim for indemnity by the third-party from the employer when that claim is based on an express contract of indemnity.
Lorenzen, 546 F. Supp. at 696.
The Mississippi Worker's Compensation Act is intended to benefit employees and guarantee that they will be remunerated if injured during the course of employment. Mississippi Code Annotated § 71-3-1 reads in part:
Citation and Purpose.
This chapter shall be known and cited as "Worker's Compensation Law," and shall be administered by the workers' compensation commission, hereinafter referred to as the "commission," cooperating with other state and federal authorities for the prevention of injuries and occupational diseases to workers and, in event of injury or occupational disease, their rehabilitation or restoration to health and vocational opportunity... .
Miss. Code Ann. § 71-3-1.
The enforcing of a freely entered into indemnity clause in no way impugns the beneficent purposes of the statute. Although such an agreement may alter who ultimately pays when an employee is injured, the employee will still be compensated. Because of this, the 1967 indemnity clause can fairly be said in this case to void the effects of the worker's compensation exclusivity statute and to allow a claim for indemnification.
After reviewing the record before us in the light most favorable for the non-movant Heritage Cablevision, it is clear that the movant New Albany Electric is entitled to summary judgment on the issue of the validity and applicability of the indemnity clause. Although Heritage was not one of the makers of the 1967 licensing agreement which contains the indemnity clause, it is now bound by that agreement under principles of equity and equitable estoppel and by its own admission that the agreement contains its duties and obligations to New Albany Electric. Furthermore, Miss. Code Ann. § 31-5-41 does not prevent the enforcement of this clause as § 31-5-41 applies only to construction contracts and the 1967 contract here being considered is a licensing agreement.
In addition, a reading of the plain language of the indemnity clause shows that it is meant to cover an accident such as the one which befell Biffle. Moreover, no ambiguity exists which would allow this court to look beyond the contract's plain words to examine parol evidence. Finally, as the freely entered into indemnification clause takes this case outside of the workers' compensation exclusivity statute, the workers' compensation act will not bar a claim for indemnity under the indemnification clause.
*1315 The summary judgment for New Albany Electric and denying summary judgment for Heritage Cablevision is affirmed.
AFFIRMED.
DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, BANKS, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
NOTES
[1] Not only was Biffle engaged in an activity which was authorized by the agreement, he was engaged in the activity which was the very purpose of the agreement. The preamble to the contract reads:
WHEREAS, Licensee proposes to furnish community antenna television distribution service for delivery via cable in the city of New Albany, to its customers and will need to erect and maintain aerial cables, wires, and associated appliances throughout the area to be served and desires to attach such cables, wires and appliances to poles of Licensor; and to attach such cables, wires and appliances to poles of Licensor; and
WHEREAS, said service which Licensee proposes to offer the public can only be provided through local distribution facilities using public and private rights-of-way, which facilities are not available to Licensee except by attachment of its cables, wires, and appliances to Licensor's poles or by its own construction of duplicate pole lines, and
WHEREAS, Licensor is willing to permit, to the extent that it may lawfully do so, the attachment of said cables, wires and appliances to its poles for the purposes proposed by Licensee where, in its judgement, such attachments will not interfere with its own service requirements, including considerations of economy and safety.
At the time of the accident, Biffle was attaching cable to New Albany Electric's poles, exactly what the contract was designed to make possible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609693/ | 84 Wash. 2d 391 (1974)
526 P.2d 361
THE STATE OF WASHINGTON, Respondent,
v.
JAMES EVERETT McFARLAND, Petitioner.
No. 42929.
The Supreme Court of Washington, En Banc.
September 12, 1974.
FINLEY, J.
James E. McFarland was found guilty of unlawful possession of a controlled substance by a Pierce County Superior Court jury. The trial court denied a motion to suppress and admitted certain evidence allegedly tainted under the "fruit of the poisonous tree" doctrine of Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), a derivative of the exclusionary rule created in Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), and extended to the states in Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R. 2d 933 (1961). The Court of Appeals affirmed the verdict of the jury in an unpublished opinion. We granted a petition for review. Herein, we affirm the decision of the Court of Appeals and the trial court.
Prior to the advent of the criminal prosecution in the Superior Court involved in the instant case, petitioner McFarland was involved in a criminal prosecution in the Tacoma Municipal Court in which he pleaded guilty to two traffic counts and was convicted on a third count of assault. It must be conceded that he was not adequately apprised of his right to counsel and was not, in fact, represented by counsel at his trial and conviction on the assault charge in the Tacoma Municipal Court. Furthermore, the municipal court judgment might well have been set aside or voided on appeal, but no such definitive action was or has been taken to date. After his conviction in municipal court, McFarland was sentenced to 90 days in the city jail and ordered committed. Thereupon, before leaving the court room, he gave oral notice of appeal, an appeal bond was set, and McFarland was immediately taken to the city jail. Shortly thereafter at the city jail he was booked and searched. Approximately 20 amphetamine tablets were found on his person. As a result of this, he was charged in the Superior Court in the instant case with unlawful possession of a *393 controlled substance, and counsel was appointed for him. He pleaded not guilty and, as hereinbefore indicated, moved to suppress the evidence obtained at the city jail as having been acquired during a search incident to a commitment declared unlawful by Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972).
[1] The exclusionary rule of Weeks and Mapp has spawned the so-called "fruit of the poisonous tree" doctrine which requires the suppression of all evidence that is derived as a consequence of an illegal search or seizure.
Commentators agree that the most important social good or purpose of the so-called exclusionary rule, described in the common vernacular, is to "police the police," i.e., to discourage and deter police conduct violative of the Fourth Amendment protection against unreasonable searches and seizures. Thus, in situations where there is no police deterrent effect to be served by exclusion of particular evidence, the United States Supreme Court has steadfastly rejected application of the exclusionary rule. See, e.g., United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); Brown v. United States, 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973); Alderman v. United States, 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). Cf. Cardwell v. Lewis, 417 U.S. 583, 41 L. Ed. 2d 325, 94 S. Ct. 2464 (1974).
[2] In our judgment, the instant case does not involve an unwarranted intrusion by the police violative of the "unreasonable search and seizure" provisions of the Fourth Amendment. It does involve a routine and, we daresay, justifiable booking and an administrative search when McFarland arrived at the jail pursuant to a then outstanding Tacoma Municipal Court judgment. Assuming at the present that the Tacoma Municipal Court judgment was not only voidable but void on due process constitutional grounds, cf. Haislip v. Morris, 84 Wash. 2d 106, 524 P.2d 405 (1974), this has not, in fact, depreciated in any way the actual probative value of the 20 amphetamine tablets as evidence. Now, in retrospect, it is claimed that by some *394 kind of legal alchemy or relation-back theory or, at best, by a dubious collateral attack on the Tacoma Municipal Court judgment, the evidence, i.e., the 20 amphetamine tablets should be labelled verboten "fruit of the poisonous tree" and properly subject to McFarland's motion to suppress in the instant case.
By way of summary, it seems to us significant that in the instant case, an independent judicial proceeding in the Tacoma Municipal Court, was followed by the necessary and routine custodial jail search. Hence, there was no police misconduct directly involving an unlawful search and seizure violative of the Fourth Amendment, and thus, the ostensible purpose of the exclusionary rule as embodied in the "fruit of the poisonous tree" doctrine is in no way to be served in the instant case by exclusion of the allegedly tainted evidence, 20 amphetamine tablets found on McFarland's person at the time he was searched and transferred to the custody of the Tacoma city jail. For the reasons indicated, the judgment of the trial court should be affirmed. It is so ordered.
HALE, C.J., and HUNTER, HAMILTON, WRIGHT, and BRACHTENBACH, JJ., concur.
HALE, C.J. (concurring specially)
I join in the opinion but would make further reference to the absurd consequences produced by latter-day judicial thinking on the suppression of sound evidence in criminal cases. In many cases, the rule of suppression sounds the death knell of the State's case for light and transient causes arising out of a minor and sometimes even trifling infraction of a rule of evidence committed by a distant peace officer at a distant place. In this case, I cannot find where any officer committed any error whatever with respect to the arrest and search of the defendant, and the judge's error if any was unrelated to the present case.
Defendant accepted the burdens of his guilt in two traffic offenses, freely acknowledging them in open court by his plea of guilty; his guilt in another charge was established *395 by trial. He now asserts that the claimed errors, based upon a failure of the court to notify him that his right to counsel would be at public expense, occurring in these three cases should be visited upon the State in another wholly separate, distinct and unrelated offense.
From the moment that the defendant entered the courtroom of the municipal court, throughout all stages of his arraignment, trial, sentencing and trip from the courtroom to the jail, he was engaged in the commission of a crime. During that interval, in the presence of the judge, court attaches and peace officers, he was liable to arrest and prosecution for the crime he was then actively engaged in committing the concealed and unlawful possession on his person of a contraband and illegal drug. And, it is immaterial whether the illegal and concealed object on his person was a deadly weapon, a grenade or bomb, heroin or amphetamine. In any event, the court's failure to appoint counsel in three municipal court cases had no relevance to the proof of guilt in the unlawful possession of drugs case nor should it operate to immunize the defendant from prosecution for other crimes committed by him in the courthouse during the trial of the very charges which brought him there.
Aside from the doubtful conclusion that it was error to allow the defendant to plead guilty after he had been succinctly advised in writing by the judge that he had both a right to counsel and to a continuance enabling him "to prepare a proper defense or to seek advice," the error should not be deemed transferable to another case involving a separate and distinct crime having no connection whatever with the crimes or the trials in which the error is said to have occurred.
What was strenuously argued here is actually a new theory of jurisprudence the theory of floating error, fluttering from place to place until it lights on a point where it will do the defendant the most good. Defendant's convictions without counsel in the three municipal court cases, it is argued, were conceived in error notwithstanding that the *396 defendant, after being advised of his right to counsel at the outset made no claim of indigency and did not request counsel. The record discloses a singular lack of curiosity on defendant's part concerning appointment of counsel at public expense and further discloses no inclination to request counsel until after he had testified in his own behalf. He freely and voluntarily elected both to plead guilty to two charges and to go to trial without counsel on the third.
To be reversible, the claimed error must be proximate to the conviction. Error should not be transferable from one cause to a different and wholly unrelated one; nor should it be judicially expanded to create an immunity from prosecution for other and different crimes tried in other and different cases. This should be specially true of error arising in the trial of an offense committed before, during and after a judicial proceeding not connected with the judicial proceedings in which the error is claimed. Accordingly, it should be stated as a principle that error asserted in the prosecution of one set of crimes is not proximate and cannot be transferred to the prosecution of a wholly separate, distinct and unrelated crime.
There is another reason, however, why a failure to advise of the right to counsel at public expense in the municipal court cases cannot operate as error in the illegal possession of drugs case, and that is the lack of causation. This error cannot be deemed to have contributed to a wrongful conviction, for an attorney in the discharge of his duty to his client ought not participate in the commission or concealment of a crime. Aside from the accidental circumstance that counsel, in the three municipal court cases, might conceivably have persuaded the court to grant probation, or enter a judgment of acquittal in the three cases in which defendant was convicted, thus obviating the lawful search at the jail, the lawyer could not have surreptitiously disposed of the illegal drugs or taken possession of them without becoming particeps criminis. The most that can be made of the court's error in the municipal court cases is that, had counsel been appointed there, circumstances *397 might have developed so that possession of the drugs would never have been revealed. This possibility does not rise to the concept of legal cause.
That the services of counsel might possibly have enabled the defendant to prevail in municipal court or induce him to demand a continuance and thus conceal his offense, counsel's services would not have prevented the defendant from committing a crime he had already committed and was continually committing but would simply enable him to hide it. And, of course, for the attorney surreptitiously to relieve his client of the contraband so as to protect him from conviction would not only make the attorney particeps criminis but would constitute a service neither required of nor reasonably to be expected of counsel. Professional services to a client do not legitimately extend to committing an offense nor concealing the evidence of one.
STAFFORD, J. (dissenting)
I am as greatly concerned as the majority with the critical drug problems that face law enforcement agencies and our courts. Nevertheless the majority's disenchantment with the "exclusionary rule" does not change the fact that it still is part and parcel of the framework of criminal law within which we are required to operate. Further, while the denunciatory remarks of the specially concurring opinion make interesting reading, they add more heat than light and fail to reflect today's law.
Because the majority has chosen to ignore the real problem before the court, I am compelled to dissent. In doing so it is necessary to review all of the facts.
A Superior Court jury found James E. McFarland guilty of unlawful possession of a controlled substance. The Court of Appeals affirmed the verdict in an unpublished opinion. We granted a petition for review.
The evidence used to convict appellant in Superior Court was obtained as the result of a search conducted while he was being booked at the Tacoma city jail pursuant to a municipal court conviction, sentence and commitment. Appellant contends the municipal court conviction, sentence *398 and commitment were void. Thus, he asserts, the fruits of the booking search, conducted in connection therewith, should have been excluded. He argues that the trial court erred by denying his pretrial motion to suppress the evidence in question.
The testimony and exhibits properly before us reveal that appellant was charged in municipal court with driving without a valid operator's license, driving while his driving privileges were suspended, and with third-degree assault. He appeared in court August 15, 1972. The municipal court clerk handed him a document entitled "RULES, RIGHTS AND PROCEDURES IN THE MUNICIPAL COURT" which contained the following information:
You have the right to be represented by a lawyer and may have your case continued to a later date in order to prepare a proper defense or to seek advice. You are not, however, required to employ a lawyer, but may defend yourself in court.
Thereafter, on the same day, appellant pleaded guilty to the two traffic charges and not guilty to the charge of assault, whereupon the municipal court proceeded immediately to trial on the assault charge. Appellant was not represented by counsel at any stage of the pretrial, trial or post-trial proceedings, a fact that the State did not deny at the Superior Court hearing on appellant's motion to suppress evidence. Further, the State does not deny that, as appellant left the stand, he informed the municipal judge he had no funds with which to hire an attorney. Finally, the State does not deny the court's failure to inform appellant that, as an indigent, he had the right to have the court appoint a lawyer to represent him at no personal cost.
At the conclusion of the August 15 trial the municipal court judge found appellant guilty of assault, sentenced him to 90 days in the city jail and ordered him committed. Before leaving the courtroom appellant gave oral notice of appeal, an appeal bond was set and appellant was immediately taken to the city jail.
Shortly thereafter, appellant was booked and searched at *399 the city jail. Approximately 20 amphetamine tablets were found on his person. As a result, he was charged in Superior Court with unlawful possession of a controlled substance.
Based upon indigency, the Superior Court appointed counsel to represent appellant. Appellant pleaded not guilty and moved to suppress the evidence obtained at the city jail as having been acquired during a search incident to a commitment declared unlawful by Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). The motion was denied. At the subsequent trial, appellant was found guilty as charged.
Appellant contends the trial court erred by denying his motion to suppress the evidence taken from him during the booking search which was made pursuant to an unlawful jail commitment. I must agree.
Prior to Argersinger, it was generally assumed that defendants were not entitled to court-appointed counsel in minor or petty criminal cases. The information sheet furnished appellant, August 15, 1972, was consistent with that widely held view. It failed to inform him that if he were an indigent, he would be entitled to a court-appointed lawyer at no personal cost.
Argersinger changed that legal misconception. On June 12, 1972, nearly 2 months prior to appellant's municipal court trial, the Argersinger court said, at page 37:
We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
(Italics mine.) It was made abundantly clear that in criminal cases the right of an indigent defendant to the assistance of counsel is guarantied by the sixth amendment to the United States Constitution, citing Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55, 84 A.L.R. 527 (1932). The Supreme Court further declared that such right was made applicable to the states by the Fourteenth Amendment, *400 citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R. 2d 733 (1963).
Although both Powell and Gideon are felony cases, Argersinger recognizes, at page 32, that "their rationale has relevance to any criminal trial, where an accused is deprived of his liberty." Both cases indicate one of the fundamental rights applicable to all criminal prosecutions is that of representation by counsel. See also In re Oliver, 333 U.S. 257, 92 L. Ed. 682, 68 S. Ct. 499 (1948), in which the penalty was only 60 days imprisonment.
The rationale of Argersinger places the fundamental right to representation by counsel within reach of all accused of petty crimes and misdemeanors, as well as those charged with felonies. Thus, the determination basic to a court's power to imprison a defendant found guilty of any crime (either petty or felony) is whether he knowingly waived his fundamental right to representation by counsel. Preliminary to that determination, however, are two other fundamental issues: (1) whether the defendant must first affirmatively request counsel, or whether the court must inform the defendant of his rights; and (2) whether a knowing and intelligent waiver must be established affirmatively or whether a reviewing court may rely upon an incomplete or silent record and assume waiver.
Both preliminary issues were resolved by Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), and its progeny. In Zerbst the United States Supreme Court stated, insofar as pertinent, at pages 464-65:
It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights."...
...
The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused... is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver *401 by the accused. While an accused may waive the right to counsel ... it would be fitting and appropriate for that determination to appear upon the record.
(Footnotes omitted. Italics mine.) Thereafter, the principles declared in Zerbst were held equally applicable to asserted waivers of the right to counsel in state criminal proceedings. Rice v. Olson, 324 U.S. 786, 89 L. Ed 1367, 65 S. Ct. 989 (1954). In the latter case the defendant did not claim to have requested counsel, but alleged that he had not been informed of his right to counsel and thus had not waived the right. The court held, at page 788:
A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.
(Italics mine.) Finally, the United States Supreme Court said in Carnley v. Cochran, 369 U.S. 506, 516, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1962):
Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.
(Italics mine.) Clearly then, whether the crime is a felony, a misdemeanor or a petty crime, a court has the duty to inform a defendant of his right to counsel, which includes the right to court-appointed counsel if he cannot afford to hire his own. Equally clear is the fact that waiver of that fundamental right may not be presumed from a silent record. The record must demonstrate that an accused was offered counsel but intelligently and understandingly rejected it.
The statute and case law of this state has followed a pattern similar to that which preceded Argersinger, on the federal level. It has been determined by statute[1] and by *402 court decision that in felony cases a trial judge must: (1) ascertain whether the defendant is incapable of employing counsel because of his poverty. Wilken v. Squier, 50 Wash. 2d 58, 309 P.2d 746 (1957); Wakefield v. Rhay, 57 Wash. 2d 168, 356 P.2d 596 (1960); Aichele v. Rhay, 57 Wash. 2d 178, 356 P.2d 326 (1960). (2) If the defendant is incapable of employing counsel, the trial judge must fully inform him of his right to have counsel appointed at public expense. Wilken v. Squier, supra. (3) The trial judge must ask whether the defendant desires the aid of such counsel according to Wilken, Wakefield and Aichele. (4) Finally, according to the impact of the foregoing cases, the trial judge is responsible for the record clearly showing that the first three steps have been taken. See also Morgan v. Rhay, 78 Wash. 2d 116, 470 P.2d 180 (1970).
Argersinger has now supplied the rationale necessary to apply the foregoing fundamental principles to cases involving misdemeanors and petty crimes. In fact, Argersinger leads us one step beyond. Absent a knowing and intelligent waiver of the above enumerated constitutional rights, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial.[2] As stated in Argersinger, at page 33:
We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex *403 than when a person can be sent off for six months or more.
(Italics mine.)
In the instant case it is clear the municipal court judge failed to provide appellant with the information required by Argersinger. In fact, the information furnished him was both incomplete and misleading. Since appellant was not informed of his right to counsel, it cannot be said that he knowingly and intelligently waived that right. An indigent cannot be said to have waived his right to court-appointed counsel if he has not been informed he has such a right. State v. Tetzlaff, 75 Wash. 2d 649, 652, 453 P.2d 638 (1969). The absence of waiver is particularly evident in the instant case because it apparently was not generally known that a defendant had such a right, if charged with petty crimes and misdemeanors. Further the inadequate information furnished appellant by the municipal court afforded him no opportunity either to request or waive an attorney based upon indigency.
Since appellant was not represented by a lawyer at any stage of the proceeding, the municipal court had no power to imprison him for any period of time, however short, absent a knowing and intelligent waiver of counsel. Argersinger v. Hamlin, supra at 33 and 37.[3]
The conviction, sentence and commitment to jail imposed upon appellant were directly contrary to Argersinger. The judgment of conviction was pronounced by a court without jurisdiction and thus was void. As stated in Johnson v. Zerbst, supra at 468:
If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" *404 due to failure to complete the court as the Sixth Amendment requires by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction ... is void...
(Footnote omitted. Italics mine.) See also Waley v. Johnston, 316 U.S. 101, 86 L. Ed. 1302, 62 S. Ct. 964 (1942); Horn v. Bailie, 309 F.2d 167 (9th Cir.1962).
Although the municipal court proceeded under a void conviction, sentence and commitment, the State has suggested that the jailer was still entitled to search him because appellant was lodged in jail. In support of this proposition the State invited this court to consider some purported jail rules contained in its brief, contrary to the rules on appeal and cases on the subject. This improperly injected subject matter should not have been considered.[4] Without question a jailer is authorized to search a person at the time of booking to prevent the smuggling of contraband into jail, but there is a difference between the power to search to protect the integrity of the jail and the right to use the fruits of that search in a subsequent prosecution of the one searched. It is the latter problem that concerns us, i.e., whether the State may use the fruit of a search which stems from a void conviction, sentence and commitment.
The evidentiary situation confronting us closely parallels *405 the common search and seizure rule that in the absence of a valid search warrant, seizure of evidence from one's person is justified only if it is substantially contemporaneous with and incident to a lawful arrest. See Giordenello v. United States, 357 U.S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245 (1958); State v. Poe, 74 Wash. 2d 425, 445 P.2d 196 (1968); State v. Wilson, 70 Wash. 2d 638, 641, 424 P.2d 650 (1967). Even more closely analogous is the unlawful arrest followed by a search of the person in the jail. In United States v. Di Re, 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222 (1948), Di Re was arrested, frisked and taken to the police station where he was asked to empty his pockets. Some evidence was obtained. Thereafter, he was booked and more thoroughly searched at the jail. The latter search produced evidence which was introduced at trial over defendant's objection. The United States Supreme Court reversed the conviction holding that the arrest was illegal and that a conviction based on evidence obtained under such circumstances could not stand. The high court observed at page 595:
a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.
(Footnote omitted.)
We should hold that evidence obtained from a person as the result of a search made in the jail at or near the time of booking and at a time substantially contemporaneous with and incident to a void conviction, sentence and commitment is subject to a motion to suppress. Evidence that is unlawfully seized should be excluded if a timely motion for its suppression is made. State v. Biloche, 66 Wash. 2d 325, 327, 402 P.2d 491 (1965); Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R. 2d 933 (1961).
Appellant herein made a timely motion to suppress the evidence seized substantially contemporaneous with and incident to the void conviction, sentence and commitment. The trial court erred by denying the motion and subsequently admitting the unlawfully seized evidence at trial.
*406 The State, in oral argument and in its brief, contends appellant did not perfect his appeal from the municipal court judgment. This, it is said, resulted in the dismissal thereof. Based upon such asserted dismissal, the State seems to suggest that appellant's attempt to insert the issue of voidness of the conviction, sentence and commitment is not well taken. The thought seems to stem from the idea that a dismissal of the appeal rendered the municipal court judgment and sentence final and valid, thus any attack thereon would be impermissibly collateral in nature.
In support of the above proposition the State's brief includes an appendix composed of what purports to be appellant's notice of appeal from the municipal court, a municipal court notice that the appeal will be dismissed if not timely prosecuted and an order of dismissal and remand purportedly entered by the Superior Court, January 29, 1973. As with the jail rules, improperly submitted for our consideration, we are also invited to consider the incorrectly proffered material that purports to be court records. Once again, we should decline the invitation to go outside the record.[5]
However, even if one assumes appellant's motion to suppress the evidence is a collateral attack on the municipal court conviction, sentence and commitment, it does not follow that the attack is invalid. The rule that a former judgment of conviction may not be collaterally attacked does not apply if the judgment of conviction is void. State v. Dericho, 107 Wash. 468, 182 P. 597 (1919). A void order, judgment or decree is a nullity, as distinguished from one that is merely erroneous, and may be attacked collaterally *407 at any time and in any proceeding by the one adversely affected. Brown v. Brown, 46 Wash. 2d 370, 281 P.2d 850 (1955); France v. Freeze, 4 Wash. 2d 120, 102 P.2d 687 (1940); Picardo v. Peck, 95 Wash. 474, 164 P. 65 (1917); see also Horn v. Bailie, supra. Thus, appellant's attack upon the void conviction, sentence and commitment, and the resultant booking search is not subject to the collateral attack rule. Appellant properly challenged the void conviction, sentence and commitment together with the booking search based thereon.
As indicated earlier, the trial court erred by failing to grant appellant's motion to suppress the evidence obtained as the result of the void conviction, sentence and commitment.[6] The trial court should be reversed.
Ordinarily a cause would be remanded for a new trial. In the instant case, however, the evidence subject to the motion to suppress was the only evidence offered in support of the State's case. In the absence of such evidence, the case should be dismissed.
ROSELLINI and UTTER, JJ., concur with STAFFORD, J.
Petition for rehearing denied October 29, 1974.
NOTES
[1] At the time appellant appeared in municipal court both RCW 10.40.030 and RCW 10.01.110 were applicable. In July 1973 they were superseded by CrR 3.1, 4.1 and 4.2. The new criminal rules reflect the case law of this court and have somewhat broadened the duties formerly imposed on trial judges by statute. However, indigent defendants have not acquired rights they did not possess formerly. The rights with which we are here concerned are constitutional and the statutory provisions related above merely reflected legislative confirmation thereof. They are not, however, legislatively created. Wakefield v. Rhay, 57 Wash. 2d 168, 356 P.2d 596 (1960).
[2] It is of interest to note that CrR 3.1 provides: (a) (1) "The right to counsel shall extend to all criminal proceedings for offenses punishable by loss of liberty regardless of their denomination as felonies, misdemeanors or otherwise ..." (Italics mine.) (c) (1) "he shall ... be advised of his right to counsel.... and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge."
To the same effect see JCrR 2.11 (a) and (c) (1).
[3] We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved because in the instant case appellant was convicted, sentenced and committed to jail.
[4] The State's brief contains what purports to be a copy of "jail rules" pertaining to a search of persons booked at the jail. Our review of the record, including the statement of facts, transcript, and exhibits reveals that the so-called "jail rules" were not marked or admitted at any stage of the instant case. Nothing indicates that the trial court even saw or considered them. The "rules" are not properly before us.
Even if they had been admitted during the suppression hearing or the subsequent trial, they are not properly before us. An exhibit may be brought before this court for consideration only in the statement of facts. See ROA I-34; ROA I-35; and Chaffee v. Chaffee, 19 Wash. 2d 607, 145 P.2d 244 (1943); Lee v. Gorman Packing Corp., 154 Wash. 376, 282 P.2d 205 (1929). This was not done. Thus, the material is not properly before us for consideration.
[5] A review of the record, including the statement of facts, transcript and exhibits reveals that the so-called "exhibits," set forth in the appendix to the State's brief, were not marked or admitted at any stage of the instant proceedings. They are not mentioned in the statement of facts. An exhibit may be brought before us for consideration only in the statement of facts. See ROA I-34; ROA I-35; Chaffee v. Chaffee, supra; Lee v. Gorman Packing Corp., supra. This was not done. The material contained in the appendix to the State's brief is not properly before us for consideration.
[6] This case does not circumscribe an officer's authority to make a warrantless search and seizure incident to a lawful arrest or a warrantless search and seizure during a lawful custodial detention subsequent to a lawful arrest. These issues are not before us.
At this writing United States v. Edwards, 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974) is the latest pronouncement on the subject of warrantless custodial searches and seizures. In Edwards the defendant had been lawfully arrested and lawfully detained at the jail. The Supreme Court held the warrantless search and seizure was not violative of defendant's Fourth Amendment rights although the search and seizure, made during the lawful detention, occurred nearly 10 hours subsequent to the lawful arrest. In short, Edwards was not only based upon a lawful arrest, but upon a subsequent lawful custodial detention as well. Unlike Edwards, defendant's custodial search and seizure was incident to a void, and thus unlawful, commitment. Edwards is not in point on the issue before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2577033/ | 188 F. Supp. 2d 223 (2002)
THE CAYUGA INDIAN NATION OF NEW YORK, et al., Plaintiffs, and
The Seneca-Cayuga Tribe of Oklahoma and the United States of America, Plaintiff-Intervenors,
v.
George E. PATAKI, as Governor of the State of New York, et. al., Defendants.
Nos. 80-CV-930, 80-CV-960.
United States District Court, N.D. New York.
March 11, 2002.
*224 *225 *226 *227 *228 Rubinbaum LLP, New York City (Martin R. Gold, Raymond J. Heslin, of counsel), for Cayuga Indian Nation of New York.
Mariscal Weeks McIntryre & Friedlander, Phoenix, AZ (Glenn M. Feldman, Brian Mueller, of counsel), for Seneca-Cayuga Tribe of Oklahoma.
Hank Meshorer, Special Litigation Counsel, U.S. Department of Justice, Environment & Natural Division, Washington, D.C. (Roger R. Martella, Jr., Asst. Section Chief Indian, Resources Section of counsel), for U.S.
Hon. Eliot Spitzer, Attorney General of the State of New York, Albany, NY (David B. Roberts, Howard L. Zwickel, Christopher Hall, John Pickett, Assistant Attorneys General, of counsel), for State defendants.
Huber Lawrence & Abell, New York City (Theodore F. Duver, of counsel), for New York State Elec. & Gas Corp.
Goodwin Procter & Hoar, Boston, MA (Anthony M. Feeherry, of counsel), for Miller Brewing and De. Class.
Harris Beach & Wilcox, Rochester, NY (Brian Laudadio, of Counsel), for Def. Counties.
MEMORANDUM-DECISION AND ORDER
McCURN, Senior District Judge.
The court assumes familiarity with this protracted land claim litigation, spanning more than two decades, based upon transactions occurring over two hundred years ago, and generating no less than 17 written decisions. Following two separate trials, on October 2, 2001, the court entered judgment in this case in the amount of $247,911,999.42, representing the jury's February 17, 2000, damage award of $36,911,672.62, and the court's subsequent prejudgment interest award of $211,000,326.80.
Not unexpectedly, entry of this judgment resulted in a flurry of motion activity. On October 17, 2001, three sets of motions were filed: (1) post-judgment motions setting forth six different grounds for relief on behalf of the State itself, as well as on behalf of the various State agencies and individual agency heads named in the original complaints ("the State");[1] (2) motions by the Cayuga Indian Nation of New York and the Seneca-Cayuga Tribe of Oklahoma ("the tribal plaintiffs") to amend the judgment and a "conditional motion" *229 for a new trial; and (3) the non-State defendants'[2] motion to amend the judgment. Several days later, on October 22, 2001, the plaintiff-intervenor the United States of America ("U.S.") filed a motion seeking to dismiss all defendants except the State from its complaint in intervention.
For analytical purposes, these motions can be broadly divided into two categories those pertaining to amendment of the judgment and those seeking a new trial. In the former group are: (1) the non-State defendants' motion to amend the judgment pursuant to Fed.R.Civ.P. 52(b) and 59(e), making it final as against all parties; (2) the tribal plaintiffs' motion to amend the judgment allowing an immediate appeal of same in accordance with Fed.R.Civ.P. 54(b); and (3) the U.S.' motion to dismiss the non-State defendants from its complaint in intervention. As will be seen, although not identical, these three motions are closely related and hence the court will analyze them together; it will then separately analyze the remaining motions.
I. Amendment of Judgment
Background
The two motions to amend the judgment and the U.S.' motion to dismiss must be viewed in the larger context of this decades-old litigation, and particularly this court's decision in Cayuga Indian Nation of New York v. Pataki, 79 F. Supp. 2d 66 (N.D.N.Y.1999) ("Cayuga XI"). Partially to avoid the unfathomable task of "conducting separate jury trials with respect to the approximately 7,000 private individual landowners, as well as the [other] non-State defendants[,]" among other things, in Cayuga XI this court granted the U.S.' motion "to first proceed to trial against the State[.]" Id. at 74. "[T]he only direct opposition" to that motion was from the State "which argue[d] ... that separate trials would be inefficient given that it intends to offer basically the same proof at any and all trials conducted in connection with this action." Id. at 76. The court gave little credence to that opposition argument explaining, "[t]he only possibility of a substantial overlap in proof is remote indeed, ... given the repeated assurances by both the State and federal governments that if the court grants this motion for a separate trial, that will end this litigation." Id.
Then the court went on to enumerate the various assurances made by the U.S., the State and the tribal plaintiffs that once a judgment was entered against the State, those parties would not be pursuing further claims against the non-State defendants. See id. at 76-77. Given those assurances, the court found that "the likelihood of future subsequent trials seem[ed] all but moot[.]" Id. at 77. The court concluded by "stress[ing] that the non-State defendants, which by court order are not participating in this upcoming trial, are not bound in any way, such as through the application of collateral estoppel or res judicata, by any determinations made in the State's damage trial." Id. at 77-78 (emphasis added). It is against this procedural backdrop which the court is considering the present motions to amend the judgment in this case, as well as the U.S.' motion to dismiss.
Discussion
A. Rule 52(b)
Among other things, Rule 52(b) provides that "[o]n a party's motion filed no later *230 than 10 days after entry of judgment, the court may amend its findings or make additional findings and may amend the judgment accordingly." Fed.R.Civ.P. 52(b). In accordance with this Rule, the non-State defendants are moving to amend the October 2, 2001 judgment so it is final as against all parties, even though the State was the only defendant participating in Phases I and II. See Affidavit of William Dorr (Oct. 16, 2001) ("Dorr Aff.") at 2, ¶ 2; id. at 4, ¶ 16 (emphasis added); see also Non-State Defendants' Notice of Motion at 1-2.
Offering two distinct bases for this motion, the non-State defendants first assert that the judgment should be amended to indicate that it is final as against all parties because otherwise there is a possible Seventh Amendment violation. Anticipating that despite prior assurances to the contrary, including those made in connection with the U.S.' motion for a separate trial, the plaintiffs will attempt to recover against the non-State defendants in subsequent trials, the non-State defendants are raising the possibility of inconsistent verdicts and hence a violation of the Seventh Amendment's guarantee to a jury trial. More specifically, the non-State defendants reason that in the event of future trials, their Seventh Amendment rights would be violated because a second jury would be reexamining facts and issues previously decided by the jury in Phase I, a proceeding in which those defendants did not participate.
As another reason for amending the judgment herein, the non-State defendants are relying upon the doctrine of judicial estoppel. In general, judicial estoppel "`prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by [the party] in a prior legal proceeding.'" Bridgeway Corp. v. Citibank, 201 F.3d 134, 141 (2d Cir.2000) (quoting Bates v. Long Island R.R., 997 F.2d 1028, 1037 (2d Cir.1993)). Because in Cayuga XI the tribal plaintiffs, the U.S. and the State vouched that after completing litigation against the State, those parties would not be pursuing further trials against the non-State defendants, see Cayuga XI, 79 F.Supp.2d at 77, the non-State defendants contend that "the tribal plaintiffs and the [U.S.] should be judicially estopped from seeking further trials against th[os]e ... defendants[;]" and based upon that estoppel, the court should amend the judgment to indicate that it is final as against all parties. See Memorandum of Law in Support of the Non-State Defendants' Motion to Amend the Judgment at 7. The non-State defendants are seeking this amendment "so that the judgment is final and the parties may proceed with an appeal of all issues they deem appropriate." Dorr Aff. at 2, ¶ 4. Alternatively, these defendants are "request[ing] that [the court] issue a scheduling order for motions for summary judgment on the issue of damages against the non-State defendants." Id. at 7, ¶ 26.
The State does not oppose this Rule 52(b) motion to amend. But if the court grants such relief, as the State observes, plainly there would be "no need for separate Rule 54(b) certification[,]" such as the tribal plaintiffs are seeking. See State Defendants' Memorandum of Law in Opposition to the Cayuga Plaintiffs' Motion to Amend the Judgment ("St.Oppn.Memo.") at 1, n. 1; and Letter from David Roberts to Court of 11/19/01 ("Roberts Ltr") at 1.
The tribal plaintiffs, on the other hand, do oppose the non-State defendants' motion to amend, reasoning that there is no possible Seventh Amendment violation because this court previously ordered separate trials as opposed to bifurcation. Implicit in this argument is the notion that because any subsequent trials would be *231 wholly separate, there would be no danger of a different jury trying factual issues which were previously decided by the jury in Phase I. Furthermore, the tribal plaintiffs contend that the Seventh Amendment is not implicated here, and thus cannot provide a basis for amending the judgment making it final as against all parties, because in Cayuga XI this court explicitly held that the non-State defendants would not be bound "in any way ... by any determinations made in the State's damage trial." See Cayuga XI, 79 F.Supp.2d at 77-78.
The tribal plaintiffs respond that the non-State defendants' judicial estoppel argument is similarly unavailing. In particular, the tribal plaintiffs assert that judicial estoppel does not apply here because the remarks upon which the non-State defendants are relying in this regard are "unsworn precatory remarks of counsel in different stages of the same proceeding[.]" Cayugas' Memorandum of Law in Opposition to Defendants' Post-Judgment Motions ("Cay.Oppn.Memo.") at 9. At a minimum, the tribal plaintiffs contend that this Rule 52(b) motion to amend is "premature[.]" Id. at 12.
The U.S. does not directly respond to the non-State defendants' Rule 52(b) motion to amend. The U.S. reasons, however, that its motion to dismiss all of the defendants except the State from its complaint in intervention renders moot "the non-State Defendants' concern that the [U.S.] would seek further trials or remedies from them[.]" See Plaintiff-Intervener United States' Response to Defendants' Post-Judgment Motions ("U.S.Resp.") at 34. The U.S. is overlooking the fact though that unless the court grants the non-State defendants' Rule 52(b) motion to amend the judgment, because the tribal plaintiffs are not making a similar dismissal motion, the non-State defendants would remain defendants in this action at least with respect to the tribal plaintiffs' complaints. In any event, consistent with the representations it made in connection with its motion for a separate trial against only the State as a defendants, the U.S. once again asserts that it will not be "pursu[ing] any further trials or remedies against" the non-State defendants. See id. at 34-35 (emphasis added).
The non-State defendants retort that "it appears that the parties to this lawsuit all concur that the judgment should be amended to reflect that it is final and that no further trials should be held to award damages against the non-State defendants." Affidavit in Response to the Tribal Plaintiffs' Conditional Post Trial Motion and in Further Support of the Non-State Defendants' Motion to Amend the Judgment (Nov. 15, 2001) at 1-2, ¶ 2 (emphasis added). Clearly the non-State defendants have selectively reviewed the post-trial submissions because, as the preceding outline of the same reveals, the parties do not all agree that the court should amend the judgment in accordance with Rule 52(b). Accordingly, it is necessary for the court to more closely analyze the propriety of granting the non-State defendants' Rule 52(b) motion.
1. Seventh Amendment
The Seventh Amendment, which protects the right to a jury trial, reads as follows:
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
U.S. Const. amend. VII. This "Reexamination Clause does not limit or alter trial judges' historically broad discretion to sever *232 issues for trial[,]" Simon v. Philip Morris Incorporated, 200 F.R.D. 21, 34 (E.D.N.Y.2001); but it does prohibit a given issue from being tried by different, successive juries. See In re Visa Check/Mastermoney Antitrust Litigation, No. 00-7699, 2001 WL 1242717, at *29 n. 9 (2d Cir. Oct.17, 2001) (citing Blyden v. Mancusi, 186 F.3d 252, 268 (2d Cir.1999)). Thus, for example, in Blyden the Second Circuit found a Seventh Amendment violation where "both the liability ... and the damages juries were asked to determine whether the same acts constituted `reprisals,'" thus "creat[ing] the real possibility amounting to a probability that acts found to be `reprisals' by the liability jury were different from the acts found to be `reprisals' by the damages juries." Blyden, 186 F.3d at 268 and 269. By engaging in "sound case management," however, such as "carefully defin[ing] the roles" of the "successive juries," and "carefully craft[ing] the verdict form[s][,]" it is possible for courts to avoid running afoul of the Seventh Amendment. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 169 n. 13 (2d Cir.2001), pet. for cert. filed, 70 USLW 3429 (Dec. 17, 2001) (NO. 01-908).
In contrast to Blyden, at least at this juncture, there has been no showing of an actual Seventh Amendment violation in the present case. In fact, in the court's opinion the non-State defendants' claim of a Seventh Amendment violation is purely conjecture given the pledges catalogued by this court in Cayuga XI that the tribal plaintiffs, the U.S. and the State would not be pursuing further remedies against the non-State defendants. See Cayuga XI, 79 F.Supp.2d at 76-77. What is more, in the extremely unlikely event of subsequent trials against the non-State defendants, a violation of the Seventh Amendment would not necessarily follow because, as mentioned above, in Cayuga XI this court expressly held that the non-State defendants would not be bound in any way by determinations made in the State's trial. See id. at 77-78. Therefore, even if the practically inconceivable occurs, and there are subsequent trials against the non-State defendants, those defendants would not be bound by Phases I and II wherein the State was the only participating defendant.
Finally, despite the Seventh Amendment's guarantee to a jury trial, the court retains "substantial discretion to employ appropriate mechanisms of jury control[.]" See Simon, 200 F.R.D. at 33. Thus even if, as the State suggested in Cayuga XI, there is a substantial overlap in evidence between Phases I and II and any subsequent proceedings, it does not necessarily follow that a violation of the non-State defendants' Seventh Amendment rights would result. That is so because it would be possible to structure any subsequent trials in such a way so as to avoid violating the non-State defendants' right to a jury trial. See Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1127 (7th Cir. 1999) (citation omitted). In light of the foregoing, the non-State defendants' anticipatory constitutional breach does not justify amending the judgment to make it final as against all parties.
2. Judicial Estoppel
The non-State defendants' reliance upon judicial estoppel as a basis for amending the judgment herein is similarly misplaced. Positing that "[t]he tribal plaintiffs and [U.S.] should be judicially estopped from seeking further trials because they pledged to the Court that a single trial against the State would end" this litigation, the non-State defendants reason that "permit[ting] plaintiffs to backpedal now would seriously undermine the Court's decision to allow for a separate trial." Dorr Aff. at 6, ¶ 23. The court disagrees, and *233 for the reasons set forth below declines to apply the "rare remedy" of judicial estoppel as a means of amending the judgment this case. See In re Bradlees Stores, Inc., No. 00-16033, 2001 WL 1112308, at *10 (S.D.N.Y. Sept.20, 2001) (citation omitted); see also In re Venture Mortgage Fund, L.P., 245 B.R. 460, 472 (Bankr.S.D.N.Y. 2000) (internal quotation marks and citation omitted) (emphasis added) (Judicial estoppel "is a rarely used doctrine designed `to protect the court, not a party, from a party's chicanery.'").
"Although [the Supreme Court] ha[s] not had occasion to discuss [judicial estoppel] elaborately," it long ago explained that doctrine as follows:
[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.
New Hampshire v. Maine, 532 U.S. 742, 748-49, 121 S. Ct. 1808, 1814, 149 L. Ed. 2d 968 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555, 39 L. Ed. 578 (1895)). In contrast to equitable estoppel, "which is designed `to ensure fairness in the relationship between parties[,]'" judicial estoppel is "a means to `preserve the sanctity of the oath' or to `protect judicial integrity by avoiding the risk of inconsistent results in two proceedings.'" Simon v. Safelite Glass Corp., 128 F.3d 68, 71 (2d Cir.1997) (quoting Bates, 997 F.2d at 1037-38) (other citation omitted). "Because the rule is intended to prevent improper use of judicial machinery, ..., judicial estoppel is an equitable doctrine invoked by a court at its discretion[.]" New Hampshire, 532 U.S. at 750-51, 121 S.Ct. at 1815 (internal quotation marks and citations omitted).
In New Hampshire v. Maine, the Supreme Court acknowledged that "the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle[.]" Id. (citations omitted). Despite that, the Court went on to identify "several factors [which] typically inform the decision whether to apply the doctrine in a particular case[.]" Id. "First, a party's later position must be clearly inconsistent with its earlier position." Id. (internal quotation marks and citations omitted) (emphasis added). "Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled[.]" Id. (internal quotation marks and citations omitted). The third factor identified by the Supreme Court "is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. (citations omitted).
Before examining whether the non-State defendants are entitled to rely upon judicial estoppel, it should be noted that in New Hampshire the Supreme Court stressed that by "enumerating th[o]se factors, [it][was] not establish[ing] inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel." Id. (emphasis added). Indeed, the Supreme Court, like the Second Circuit, has noted that a court's inquiry in assessing the applicability of judicial estoppel in a given case is inherently fact specific. See id.; see also See United States v. West Productions, Ltd., 168 F. Supp. 2d 84, 88 (S.D.N.Y.2001). Thus, in terms of the first element, the Second Circuit has instructed courts to look not only at the nature of the prior position, but also *234 whether that position was taken in a "prior proceeding." See West Productions, 168 F.Supp.2d at 87 (citing Bates, 997 F.2d at 1037) (emphasis added).
In assessing the first component of judicial estoppel, the court will assume for the sake of argument that the tribal plaintiffs, the U.S., or both are taking an inconsistent position with respect to the issue of future trials against the non-State defendants (i.e. they will be pursuing such trials despite contrary assurances made in connection with the U.S.' earlier motion for a separate trial against the State alone). Even giving the non-State defendants the benefit of that assumption, the court finds that those defendants are not entitled to rely upon judicial estoppel to amend the judgment because the plaintiffs did not take an inconsistent position in a prior proceeding. Significantly, "[t]he Second Circuit has never held that judicial estoppel can apply to inconsistent positions in the same proceeding [.]" Tuff-N-Rumble Management v. Sugarhill Music Pub., 99 F. Supp. 2d 450, 457 (S.D.N.Y.2000) (citations omitted) (emphasis added). "There are good reasons for not extending [judicial estoppel] to cover inconsistencies in the same proceeding[,]" as Judge Sweet soundly reasoned, "including the tensions between judicial estoppel and the liberal pleading standards of the Federal Rules, which permits alternative and inconsistent defenses, and the fact that the ultimate purpose of judicial estoppel, to prevent abuse of the courts by litigants, is easier to control when inconsistent facts are asserted in the same proceeding." Id.; see also United States Fidelity & Guaranty Co. v. Petroleo Brasileiro S.A., No. 98 CIV 3099, 2001 WL 300735, at *10 (S.D.N.Y. March 27, 2001) (internal quotation marks and citations omitted) ("Circumspection in the use of judicial estoppel is warranted because of a concern for offending the liberal spirit of the federal pleading rules, and, in particular because of its tension with the alternative pleading provisions of Fed. R.Civ.P. 8(e)(2)."). In the present case, because the purportedly inconsistent statements were made earlier in this same proceeding and not in a prior, separate legal proceeding, the court agrees with the tribal plaintiffs that the non-State defendants have fallen short in satisfying the first judicial estoppel element.
Furthermore, "[b]ecause judicial estoppel is invoked to protect the integrity of the judicial process from the threat of inconsistent results, there must be a true inconsistency between the statements in the two proceedings. If the statements can be reconciled there is no occasion to apply an estoppel." Simon, 128 F.3d at 72-73 (citing, inter alia, AXA Marine & Aviation Ins. (UK) Lt. v. Seajet Indus. Inc., 84 F.3d 622, 628 (2d Cir.1996)) (emphasis added). Although they recognize that a prior inconsistent statement is a prerequisite to applying judicial estoppel, the non-State defendants have not made any attempt to show such an inconsistency. The non-State defendants' focus upon what they deem to be the "unequivocal" nature of the tribal plaintiffs' and the U.S.' earlier statements, i.e. granting the U.S.' motion for a separate trial would mean "no further trials against the non-State defendants[.]" See Non-St. Def. Supp. Memo. at 8-9 (footnote omitted). The non-State defendants are missing the point however. It is not the unequivocal nature of the prior statement which is significant; rather it is the inconsistency of the subsequent statement which is determinative for judicial estoppel purposes.
Here, with respect to the plaintiff-intervenor U.S., there is no "clear inconsistency" in terms of its position regarding the non-State defendants. In fact if anything, the U.S.' position is even stronger *235 than it was in 1999 when it argued for a separate trial against the State as the sole defendant. At that time, the U.S. declared that "the case would end right there[]" if it obtained a judgment against the State, and "[t]here is no need for the[] 7,000 individual[] [landowners] to ever go to court." See Cayuga XI, 79 F.Supp.2d at 76 (internal quotation marks and citations omitted). Now, the U.S. is backing up those earlier statements with actions. As will be discussed more fully below, after reviewing the New York land claims, including the present one, "[t]he Departments of Justice and the Interior .. concur with the view of the prior Administration that it is the policy of the [U.S.] not to seek relief from parties in the New York land claims that acquired lands from the State or subsequent landowners in good faith." United States' Motion to Dismiss all Defendants from United States' Complaint Excepting New York State at 5 (emphasis added). "[T]o implement this policy[,]" the U.S. is now seeking to "delet[e] from ... [its] complaint all claims and remedies against all parties other than New York State." Id. (emphasis added). In light of the foregoing, the non-State defendants are extremely hard-pressed to show a "clear inconsistency" between the U.S.' prior litigation strategy with respect to the non-State defendants and the position which it is advancing as part of these post-judgment motions.
It is true that in contrast to the U.S., the tribal plaintiffs are not yet moving for dismissal of the non-State defendants from this action. The court is unwilling to find a "true inconsistency," however, between the tribal plaintiffs' earlier assertion that "as a practical matter if there is one trial against the State that will be it[,]" and their relative silence now on that issue. See Cayuga XI, 79 F.Supp.2d at 77 (internal quotation marks and citations omitted). Indeed, the tribal plaintiffs' willingness to seek Rule 54(b) certification of an immediate appeal, in this court's view, conforms to its position several years ago in this litigation that a trial against the State alone would for all intents and purposes end this lawsuit. Thus far, the tribal plaintiffs have not affirmatively indicated that they intend to change horses in mid-stream and aggressively pursue claims against the non-State defendants. Therefore, as with the U.S., the court is unable to find a "clear inconsistency" in terms of the tribal plaintiffs' position regarding pursuing further trials against the non-State defendants.
In the absence of prior inconsistent statements in an earlier proceeding, none of the policies underlying judicial estoppel are thwarted in this case. This is not a situation where "plaintiffs have tried to obtain an advantage over their adversaries by litigating on one theory, and then seek[ing] an inconsistent advantage by pursuing an incompatible theory." Motrade v. Rizkozaan, Inc., No. 95 Civ. 6545(DC), 1998 WL 108013, at *6 (S.D.N.Y. March 11, 1998) (internal quotation marks and citation omitted). In fact, as just mentioned and as will be discussed more fully below, the U.S. is holding steadfast to the position it took in 1999 when it moved for a separate trial against the State; it will not be seeking any relief against the non-State defendants in this action. To be sure, at least at this point the tribal plaintiffs are not following the U.S.' lead by making a similar motion to dismiss, but the current circumstances are a far cry from "a party [which] has `sold' its position to one court[,]" and [which] is now "`turn[ing] around and repudiat[ing] it in order to have a second victory.'" See Motrade, 1998 WL 108013, at *6 (quoting AXA Marine, 84 F.3d at 628) (other citation and quotation omitted). Moreover, *236 because the Second Circuit has "limit[ed] the doctrine of judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain[,]" see Simon, 128 F.3d at 72 (citing Bates, 997 F.2d at 1038) (emphasis added), and because such certainty is lacking here, there is no reason for the court to invoke this "rare remedy."
At the end of the day, the non-State defendants have failed to convince this court that it should exercise its discretion and apply the doctrine of judicial estoppel to amend the judgment. The non-State defendants have not met their burden of showing that any of the plaintiffs made a "truly inconsistent[]" statement; that is one which "necessarily precludes the truth of the other," see Hotel Syracuse, Inc. v. City of Syracuse Industrial Development Agency, 155 B.R. 824, 837 (Bankr. N.D.N.Y.1993) (citations omitted), much less that such a statement was made in a prior, "separate legal proceeding[][.]" See Kunica v. St. Jean Financial, Inc., 233 B.R. 46, 58 (S.D.N.Y.1999) (citations omitted) (emphasis added). Accordingly, there is no need for the court to address the remaining judicial estoppel factors. What is more, the non-State defendants' inability to meet their burden of proof in this regard precludes granting their Rule 52(b) motion to amend the judgment based upon a finding of judicial estoppel. See Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 18 F. Supp. 2d 297, 301 (S.D.N.Y.1998) (citation omitted) (denying defendant's motion for judicial estoppel where defendant could not meet its burden of establishing the second element).
To conclude, given the tenuous nature of both the non-State defendants' Seventh Amendment and judicial estoppel arguments, the court denies without prejudice their motion to amend the judgment, to make it final as against all parties. As will be seen, however, the denial of this motion does not mean that an immediate appeal cannot be had in this case; but the scope of that appeal will not be as broad as the non-State defendants are advocating on this Rule 52(b) motion.
B. Rule 54(b) Certification
Like the non-State defendants, the tribal plaintiffs are moving to amend the judgment but they are relying upon a different federal rule. Instead of granting the non-State defendants' motion to amend the judgment making it final as against all parties under Rule 52(b), the tribal plaintiffs maintain, as Fed.R.Civ.P. 54(b) allows, that the court should certify for immediate appeal the October 2, 2001 judgment wherein the State is the only named defendant. Given the court's denial of the non-State defendants' motion to amend the judgment, this motion for certification becomes all the more significant.
"When [a] district court has resolved at least one but fewer than all of the claims in an action, Rule 54(b) permits the court to direct the entry of a final judgment `only upon an express determination that there is no just reason for delay.'" L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 86 (2d Cir.1998) (quoting Fed.R.Civ.P. 54(b)) (emphasis added). Therefore, as Rule 54(b) "makes clear ... if the District Court does not both direct entry of judgment and expressly determine that there is no just reason for delay, then its order or decision is not final, whether or not it is labeled a `judgment.'" HBE Leasing Corp. v. Frank, 48 F.3d 623, 631 (2d Cir.1995) (footnote omitted). Following issuance of this court's decision in Cayuga Indian Nation of New York v. Pataki, 165 F. Supp. 2d 266 (N.D.N.Y.2001) ("Cayuga XVI"), the Clerk of the Court entered judgment in accordance therewith, but that judgment did not include a "no *237 just reason for delay" determination because at that time none of the parties were seeking entry of a final judgment under Rule 54(b). Thus, despite the State's assertion to the contrary, see Memorandum of Law in Support of State Defendants' Post-Judgment Motions ("St.Supp. Memo.") at 34, the absence of language allowing for immediate appeal of the October 2nd judgment was intentional. Now, however, the issue of whether the court should certify that judgment for immediate appeal is squarely before the court on the tribal plaintiffs' current motion made pursuant to Rule 54(b).
A district court has discretion to enter a final judgment in accordance with the plain language of Rule 54(b), but "the exercise of [same] must follow the procedures set out [therein.]" HBE Leasing, 48 F.3d at 631 (emphasis added). More specifically, in exercising its discretion under that Rule, "`(1) multiple claims or multiple parties must be present, (2) at least one claim, or the rights or liabilities of at least one party, must be fully decided within the meaning of 28 U.S.C. § 1291, and (3) the district court must make an express determination that there is no just reason for delay and expressly direct the clerk to enter judgment.'" Ishihara Chemical Co., Ltd., No. 99 MISC. 232(FB), 2000 WL 1898484, at *1 (E.D.N.Y. Dec.19, 2000) (quoting Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1091 (2d Cir.1992)) (emphasis added). Although "[t]he Second Circuit has cautioned against the overuse of Rule 54(b) certification," at the same time it "has also ... sanctioned the use of [such] certification `where there are interest[s] of sound judicial administration and efficiency to be served.'" See Bristol Technology, Inc. v. Microsoft Corp., 127 F. Supp. 2d 85, 90 (D.Conn.2000) (quoting Hogan v. Consol. Rail Corp., 961 F.2d 1021, 1025 (2d Cir.1992)) (other citations and internal quotations marks omitted).
Strict adherence to Rule 54(b)'s requirements for certification of an immediate appeal arises out of "[r]espect for the `historic federal policy against piecemeal appeals[.]'" See L.B. Foster, 138 F.3d at 86 (quoting Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S. Ct. 1460, 1465, 64 L. Ed. 2d 1 (1980)) (quoting in turn Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S. Ct. 895, 901, 100 L. Ed. 1297 (1956)). This "policy promotes judicial efficiency, expedites the ultimate termination of an action and relieves appellate courts of the need to repeatedly familiarize themselves with the facts of a case." Oklahoma Turnpike Authority v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001). Accordingly, the Supreme Court has consistently admonished that certification under Rule 54(b) should "not be granted routinely." L.B. Foster, 138 F.3d at 86 (citing Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465) (other citation omitted) (emphasis added). Taking a similar view, on more than one occasion the Second Circuit has recognized that a court's power under Rule 54 "`should be used only in the infrequent harsh case' where there exists `some danger of hardship or injustice through delay which would be alleviated by immediate appeal.'" Id. (quoting, inter alia, Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir.1978)) (other citations omitted). By the same token though, Rule 54(b) "attempts to strike a balance between the undesirability of more than one appeal in a single action and the need for making review available in a multiple-party or multiple-claim situations at a time that best serves the needs of the litigants.'" See Oklahoma Turnpike Authority, 259 F.3d at 1241 (quoting 10 Charles A. Wright, Arthur R. Miller & Mary Kay *238 Kane, Federal Practice and Procedure: Civil 2d § 2654 at 35 (1982)).
Keeping in mind the policies underlying Rule 54(b), the court will turn to the tribal plaintiffs' motion made thereunder.[3] In the present case, all three criteria for certification under Fed.R.Civ.P. 54(b) are met. As to the first element, not only are there multiple claims, but as should be patently obvious by now, there are also multiple parties. Among other things, in Cayuga XI, in denying the U.S.' motion for a finding of joint and several liability, the court reasoned that the tribal plaintiffs had sustained a divisible injury. See Cayuga XI, 79 F.Supp.2d at 72. Furthermore, the court found that the relationship among the defendants was akin to that of multiple tortfeasors, where "their wrongs are independent and successive[,]" but where "the State could be deemed an original or primary tortfeasor[]" due to its initial violation of the Nonintercourse Act. Id. at 73 (internal quotation marks and citation omitted) and 74. Indeed, in granting the U.S.' motion for a separate trial as against the State, the court effectively severed plaintiffs' claims against the non-State defendants from those of the State. Thus, because there are both multiple claims and multiple parties, the first element for certification under Rule 54(b) is satisfied in this case.
Turning to the "fully decided" or finality aspect of Rule 54(b) certification, it is well settled that "[t]o be considered `final,' an order must be `final' in the sense that it is `an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Oklahoma Turnpike Authority, 259 F.3d at 1242 (quoting Curtiss-Wright Corp., 446 U.S. at 7, 100 S.Ct. at 1464) (quoting in turn Sears, Roebuck & Co., 351 U.S. at 436, 76 S.Ct. at 900) (emphasis added). "While the exact definition of `claim' for purposes of Rule 54(b) is unsettled, ..., a `claim' is generally understood to include all factually or legally connected elements of a case." Id. (and cases cited therein). One commentator has explained this "notion of connectedness" as follows:
[A] judgment is not final unless the claims disposed of are separable from the remaining claims against the same parties. Separability is an elusive term, and no reliable litmus test exists for determining when a claim is a distinct claim of relief. Courts, however, have concentrated on two factors: (1) the factual overlap (or lack thereof) between the claims disposed of and the remaining claims, and (2) whether the claims disposed of and the remaining claims seek separate relief.
Id. at 1242-43 (quoting Moore's Federal Practice 3d § 202.06[2]) (citing Curtiss-Wright Corp., 446 U.S. at 8, 100 S.Ct. at 1464-65) (district court should "consider such factors as whether the claims under review were separable from the others remaining *239 to be adjudicated"). "Thus, a judgment is not final for the purposes of Rule 54(b) unless the claims resolved are distinct and separable from the claims left unresolved." Id. at 1243.
As previously discussed, in the context of the U.S.' motions for a finding of joint and several liability and for a separate trial, this court implicitly found that plaintiffs' claims against the State were "distinct and separable" from their claims against the non-State defendants. See Cayuga XI, 79 F.Supp.2d at 74. Furthermore, after the court's prejudgment interest award in Cayuga XVI, plaintiffs' claims against the State can also be considered final in that that decision effectively ended the litigation between those parties, leaving nothing for the court to do but to enforce the judgment if necessary. See Ishihara Chemical, 2000 WL 1898484, at *2 (citing Ginett, 962 F.2d at 1092). The merits of plaintiffs' claims against the State have now been completely resolved, as well as issues pertaining to plaintiffs' remedies against the State. Thus, the court finds that the finality aspect of Rule 54(b) certification is readily met here.
The third requirement an express determination that there is no just reason for delay "has not been taken lightly by this Circuit." See HBE Leasing, 48 F.3d at 631 (emphasis added). For instance, the Second Circuit has "found an abuse of discretion where entry of judgment has been accompanied by a mere repetition of the statutory language that `there is no just reason for delay,' without any reasoned explanation for such determination." Id. (citations omitted). Simply put, "a certification that is conclusory or merely quotes the words of ... Rule [54(b)] is insufficient." L.B. Foster Co., 138 F.3d at 86 (citations omitted). By the same token, however, relying upon the seminal case of Curtiss-Wright, the Second Circuit has explained that "[w]here the court has directed the entry of final judgment as to claims that are separable from and independent of the unresolved claims, and has provided an informative explanation, its conclusion that there is no just reason for delay is entitled to `substantial deference.'" Id. at 86-87 (quoting Curtiss-Wright, 446 U.S. at 10, 100 S.Ct. at 1466). Moreover, "[i]f the question of whether certification should have been granted is a close one, [the Second Circuit] will normally accept it if that course `will make possible a more expeditious and just result for all parties.'" Id. (quoting Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974)).
In the present case there is no just reason for delaying an immediate appeal of the October 2, 2001 judgment. In its role as "`dispatcher'" under Rule 54(b) and in exercising its discretion thereunder, this court has determined that the "`appropriate time'" for the appeal of this final decision regarding plaintiffs claims' against the State is now. (See Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. at 1465) (quoting Sears, Roebuck, 351 U.S. at 435 and 437, 76 S.Ct. at 899 and 900). Surely this case involving a wrong which occurred over 200 years ago and litigation spanning two decades is one of the few "infrequent harsh case[s]" warranting certification under Rule 54(b). See L.B. Foster, 138 F.3d at 86 (internal quotation marks and citations omitted). Reviewing plaintiffs' claims against the State at this juncture would best serve the needs of all litigants, including the non-State defendants. If on appeal plaintiffs' claims against the State are upheld and it remains liable for the entire amount of damages sustained by plaintiffs, that would obviate the need for any further litigation by the plaintiffs against the non-State defendants. Furthermore, even if the State pursues claims for contribution *240 or indemnification or both against the non-State defendants, the tribal plaintiffs "should not be forced to await the outcome of that separate, distinct and independent quarrel before judgment is entered on [their] behalf." See id. (citation omitted). If, on the other hand, the court declines to certify plaintiffs' claims against the State for immediate appeal, a considerable delay would undoubtedly result as at least the tribal plaintiffs pursue their remaining claims against the non-State defendants.[4] Given that there are approximately 7,000 non-State defendants, the resulting delay from those subsequent trials is practically incomprehensible.
The likelihood of a substantial delay is exacerbated by the possibility that the tribal plaintiffs will not expeditiously pursue claims against the non-State defendants and in the meantime focus on settlement with the State instead. The court hastens to add, as it has always maintained, that settlement is a laudable goal here, and even at this advanced stage in the litigation the court continues to strongly encourage the parties to renew such efforts. In this regard, the court commends the U.S.' recent declaration that "[e]ven if the judgment becomes appealable, the [U.S.] stands willing to recommence settlement discussions and is willing to support reasonable stays before the District Court and the Second Circuit to facilitate settlement discussions." U.S. Resp. at 30.
In any event, clearly any danger of hardship or injustice, especially to the non-State defendants, could easily be alleviated by granting the tribal plaintiffs' motion for certification of an immediate appeal of the October 2, 2001 judgment. Given the course this litigation would take absent an immediate appeal of plaintiffs' claims against the State, i.e. countless trials involving 1000s upon 1000s of private landowner defendants, it is hard to imagine a case where the interests of judicial administration and efficiency would be better served by entry of a final judgment in accordance with Fed.R.Civ.P. 54(b). Furthermore, as the U.S. soundly reasons, "[a]llowing an appeal by the State prior to any further proceedings involving the other defendants is consistent with the Court's decision to bifurcate the damages trial as it may lead to a final resolution of all the issues in this case without further burden on other parties." Id. at 30 (emphasis added). As the foregoing discussion also makes clear, the equities involved here, especially pertaining to the individual private landowners also weigh heavily in favor of granting the tribal plaintiffs' Rule 54(b) motion. Finally, the substantial public import of the issues which this land claim litigation raises, especially taking into account the considerable amount of prejudgment interest awarded, provides further justification for an immediate appeal of the October 2, 2001 judgment. See Hudson River Sloop Clearwater v. Dept. of Navy, 891 F.2d 414, 419 (2d Cir.1989). In short, because all of the criteria for certification of an immediate appeal of this court's October 2, 2001 judgment under *241 Rule 54(b) have been met, the court hereby grants the tribal plaintiffs' motion for such relief.
C. Motion to Dismiss
Currently the U.S.' policy with respect to New York land claims including the present one, is "not to seek relief from parties ... that acquired lands from the State or subsequent landowners in good faith." United States' Motion to Dismiss all Defendants from United States' Complaint Excepting New York State ("U.S. Dismissal Memo.") at 5 (emphasis added). This represents a shift in policy from the time the U.S. first intervened in this lawsuit in 1992. At that time, mirroring the complaints of the tribal plaintiffs, the U.S. named several non-State entities as defendants as well as the class of private landowners. See U.S. Complaint in Intervention at ¶ 5. Since 1992 there have been several legal developments which the U.S. claims have prompted it to change its policy in terms of the role of private landowners in New York land claim actions. Those legal developments are outlined in the U.S.' memorandum of law filed in support of this motion to dismiss, and there is no need to repeat the same herein. See U.S. Dismissal Memo. at 3-4.
Suffice it to say that after reviewing those legal developments, slightly more than a year ago, on the eve of a new federal government administration, the U.S. advised the parties in several of the New York land claims that "at the appropriate time[,]" it would be "fil[ing] motions ... to hold that New York State is liable for any and all remedies awarded by the court and that the [U.S.] does not need the private landowners in its suit to obtain full relief from the State on behalf of the Tribes." Id. at 4 (internal quotation marks omitted). Thereafter, the U.S. began implementing that policy by, for instance, filing a motion to amend its complaints to omit the State as a defendant in Canadian St. Regis Band of Mohawk Indians v. State of New York, No. 82-CV-783, 82-CV-1114, 89-CV-829, another land claim action which is currently pending before this court. Just recently the court granted the U.S.' motion in that regard deleting "all claims and remedies against defendants other than the State and the [New York Power Authority]." Canadian St. Regis Band of Mohawk Indians v. New York, 205 F.R.D. 88, 90 (N.D.N.Y.2002) (footnote omitted). The present motion is yet another example of the U.S. implementing this policy change with respect to private landowners who acquired their property in good faith.
As in Canadian St. Regis, the State does not oppose this motion by the U.S., explaining that in its view "[t]here was never any good reason for the plaintiffs, including the ... [U.S.], to pursue a claim for ejectment and for damages against the Counties and the individual landowners." See Roberts Ltr at 1. Calling the U.S.' motion "a welcome change in policy and rhetoric,"[5] the non-State defendants do not oppose this motion, but they view it as an "empty offer" given that the tribal plaintiffs are not making a similar motion. See Non-State Defendants' Response to the Plaintiffs' Post-Trial Motions at 4 (citation omitted).
The tribal plaintiffs are opposing this motion to dismiss, describing it as "premature" because the State has not adopted the view that it should be "held entirely and singularly liable for all damages in this *242 case[.]" Cay. Oppn. Memo. at 12. In fact, as recently as November 19, 2001, the State "reiterate[d] and incorporate[d] its prior opposition to the Court's damages' rulings in this case, including but not limited to, the court's determination to hold the State responsible for all damages (including prejudgment interest) covering the entire period of the Cayugas' alleged dispossession." See Roberts Ltr at 1. As a point of clarification, the U.S. accurately notes that earlier in this litigation the court "interpreted the [`U.S.'] Complaint In Intervention as asserting claims for relief against the State ... as well as the individual and State agency defendants included in the complaint and complaint in intervention of the tribal plaintiffs." Id. at 1-2 (citation omitted). Furthermore, the tribal plaintiffs point to the fact that the State has not yet "forsworn any claims for contribution or indemnification from the Non-State Defendants." See Cay. Oppn. Memo. at 12. The tribal plaintiffs also note that the State "has not abandoned its Eleventh Amendment defense, which, if successful, would relegate the Cayugas to pursuing their claims against the Non-State Defendants." Id. Lastly, the tribal plaintiffs observe that the State has indicated that it intends to appeal at least the issue of its liability. See id. Thus the tribal plaintiffs strongly urge this court to "hold in abeyance" the U.S. "motion to dismiss the non-State defendants pending the determination of all appeals." Id. (emphasis added).
There is no need to hold the U.S.' motion in abeyance. Given the procedural posture of this action, especially in recent years where the plaintiffs, albeit guided by rulings from this court, have been intent on pursuing relief from the State alone, the court hereby grants the U.S.' motion to dismiss all defendants from its complaint in intervention except the State of New York. Of course, at least for the time being the non-State defendants remain in this action by virtue of having been named in the tribal plaintiffs' respective complaints.
D. Interim Prejudgment Interest
In Cayuga XVI, this court did not explicitly address the issue of whether plaintiffs were entitled to recover prejudgment interest for the period between the jury's February 17, 2000, verdict and October 2, 2001, the entry date of the judgment ("interim prejudgment interest"). Implicit in Cayuga XVI was the assumption, however, that the $200 million plus prejudgment interest awarded therein included interest for that interim period as well as for the preceding years. One day after entry of the judgment the tribal plaintiffs immediately sought clarification of Cayuga XVI, asserting that the lack of any specific mention of interim prejudgment interest created a "potential ambiguity[.]" See Affirmation in Opposition to Plaintiffs' Motion to Amend the Judgment (Nov. 14, 2001) ("Roberts Affirm."), exh. A thereto (Letter from Martin Gold to Court of 10/03/01). Vehemently opposing such clarification, the State responded by noting the potential for a substantial additional award of prejudgment interest above and beyond the roughly $211 million already awarded by the court. See id., exh. B thereto (Letter from David Roberts to Court of 10/09/01 ("Roberts 10/09/01 Ltr") at 2-3). Refusing to award interim prejudgment interest, the court flatly stated "[t]hat [the October 2, 2001,] judgment will stand as a final order of this court[,]" and it "decline[d] to alter or amend same." Id., exh. C thereto at 2. Despite the court's clear rejection of this request for interim prejudgment interest, the tribal plaintiffs are again seeking such interest. This time that request is in the form of a motion to amend the judgment made pursuant to *243 Fed.R.Civ.P. 52(b), 59(e), and 60(a). See Tribal Plaintiffs' Amended Notice of Motion at 2, ¶ (b).
There are two components to the tribal plaintiffs' request for additional prejudgment interest. First, they are seeking such interest on the jury's $35 million dollar award for the fair market value of the claim area. Prejudgment interest on that award should include the time frame from February 27, 2000, the verdict date, through October 2, 2001, the entry date of the judgment. The tribal plaintiffs are proposing two different rates for that interest "either at the post-judgment rate applicable to judgments entered at that time of 6.278%, or at the rate of 5.54% testified to by Dr. Berkman, compounded annually[.]" Id. (emphasis added). The tribal plaintiffs are also attempting to recover additional prejudgment interest "upon the jury's rental award of $1,911,672.62 and the Court award of $211,000,326.80 of prejudgment interest thereon through June 30, 2000, calculated from June 30, 2000 to October 2, 2001." Id. The tribal plaintiffs are seeking additional prejudgment interest commencing on June 30, 2000, because in Cayuga XVI, the court adopted, with some modifications, the prejudgment interest calculations of the U.S.' economic expert, Dr. Berkman, but he only calculated such interest through June 30, 2000. According to the tribal plaintiffs, and in keeping with the formula employed by this court in Cayuga XVI of reducing Dr. Berkman's calculations by 60%, such interest should be awarded "at the rate of 5.54%, compounded annually and reduced by sixty (60%) percent[.]" Id.
Putting aside for the moment the issue of whether the tribal plaintiffs have any legal basis for their request for additional prejudgment interest, the court cannot overlook the practical implications of same. As has been the case since the prejudgment interest issue first arose in this case, the figures are not inconsequential. For instance, applying "Dr. Berkman's year 2000 rate of 5.54% compounded to the accrued rent principal and interest from July 2, 2000 to October 2, 2001 and then reduc[ing] that amount by 60%[,]" would result in additional prejudgment interest for rent of approximately six million dollars. Roberts Affirm. at 2, ¶ 5, and exh. D thereto. Calculating additional prejudgment interest on the $35 million jury verdict "using the post-judgment interest rate in effect on February 17, 2000, compounded annually[,]" would result in interim interest on that sum of $3,648,630.19. Id. at 2, ¶ 6; and exh. E thereto. Using the post-judgment interest rate calculated in accordance with 28 U.S.C. § 1961(a),[6] which the State claims is 2.49% for the October 2, 2001 judgment, and reducing that amount by 60% would yield $569,827.86 in additional prejudgment interest on the $35 million jury verdict. See id. at 2, ¶ 6; and exh. F thereto.
In no uncertain terms the State responds that "the court should adhere to its prior ruling and refuse to amend the judgment to add approximately ten million dollars in additional prejudgment interest." St. Oppn. Memo. at 1. The court agrees with the State that the tribal plaintiffs' backdoor attempt to obtain additional prejudgment interest interest the court has already refused to award is completely unfounded. Although not framed as a motion *244 for reconsideration, clearly that is what the tribal plaintiffs are seeking; yet they have not identified any of the three grounds that form the basis for such a motion in this district. See, e.g., Sumner v. McCall, 103 F. Supp. 2d 555, 557 (N.D.N.Y.2000) (internal quotation marks and citations omitted) (emphasis added). ("Generally, the prevailing rule in the Northern District recognizes only three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice."). Moreover, in seeking interim prejudgment interest on the jury's $35 million damage award for the current value of the claim area, the tribal plaintiffs are conveniently overlooking the fact, as the State is quick to point out, that prior to the Phase II hearing regarding the issue of prejudgment interest, this court "stress[ed] ... that any [such] interest award would be confined to the rental value damages award." See Cayuga Indian Nation of New York v. Pataki, Nos. 80-CV-930 and 80-CV-960 (N.D.N.Y. April 18, 2000) at 6. Finally, to the extent the tribal plaintiffs are maintaining that an award of interim prejudgment interest is mandatory, otherwise they will not have received full and just compensation, the court disagrees.
To support this argument, the tribal plaintiffs improperly rely upon Magee v. U.S. Lines, Inc., 976 F.2d 821 (2d Cir. 1992). To be sure, there, the Second Circuit did remand that case because the district court denied plaintiff recovery of prejudgment interest, see id. at 823; but that was a maritime claim, and as this court noted in Cayuga XVI, in the maritime context "there is a `traditional hospitality to prejudgment interest[.]'" See Cayuga XVI, 165 F.Supp.2d at 295 (quoting City of Milwaukee v. Cement Div., Nat. Gypsum Co., 515 U.S. 189, 196, 115 S. Ct. 2091, 2096, 132 L. Ed. 2d 148 (1995)). Thus, Magee does not in any way advance the tribal plaintiffs' argument that an award of interim prejudgment interest is mandatory in the present case.
Moreover, as with nearly all aspects of prejudgment interest, whether to award the same for the interim period between a verdict and entry of judgment lies within the court's sound discretion. See, e.g., United States of America for the Benefit of Towerridge, Inc. v. T.A.O., Inc., No. Civ-95-42-BL, 1996 WL 924671, at *3 (W.D.Okl. June 11, 1996) ("The court in its discretion and based on equitable considerations finds that prejudgment interest should be awarded on the amount of the verdict beginning on the 13th day of November, 1994, until the date of judgment."). Here, the court declines to exercise that discretion to make such an award. In its 100 page decision in Cayuga XVI, this court thoroughly addressed the prejudgment interest issue and made what is undeniably a substantial award of same to the tribal plaintiffs. Such interest, in combination with the jury's verdict of $36,911,672.62 has resulted in the tribal plaintiffs receiving full and just compensation even without an award of interim prejudgment interest.
E. Exclusivity of Judgment
Inadvertently omitted from the October 2, 2001 judgment was any reference to the U.S., as plaintiff-intervener on behalf of the tribal plaintiffs. Evidently this omission prompted the State's motion pursuant to Fed.R.Civ.P. 59(e) to amend that judgment "to run solely, or at least jointly, in favor of the [U.S.] as trustee for all successors-in-interest of the historic Cayuga Indian Nation." St. Supp. Memo. at 26 (footnote *245 omitted) (emphasis added).[7] The State reasons that such an amendment is necessary to ensure that "[t]he [U.S.,] either by itself or under judicial supervision, will thereby be responsible for ensuring that any judgment issued in this case is allocated appropriately among all tribes that are descended from the historic Cayuga, including the plaintiffs and any other such tribes that may have standing to sue under the Nonintercourse Act ...." Id. at 26-27 (footnote omitted). The State offers three separate reasons as to why the judgment should be amended. From the State's perspective, through such an amendment "the Court will ensure: (1) that all descendants of the historic Cayuga Indian Nation share in the award in this case, which by its own terms provides full compensation for the harm allegedly suffered by the Nation in 1795 and 1807; (2) that further judicial resources will not be unnecessarily expended on this claim; and (3) that the State and other defendants will not be subjected to the possibility of multiple liability for a single harm to the Nation." Id. at 27.
Although it agrees that "the Court should amend the judgment to reflect that the judgment runs jointly in favor of the [U.S.], the Cayuga Indian Nation, and the Seneca-Cayuga Tribe," the U.S. specifically requests that "the Court defer consideration of the State's suggestion that the judgment run exclusively in favor of the [U.S.]" See U.S. Resp. at 1 (emphasis added). In a similar vein, the tribal plaintiffs do not object to modification of the judgment to run jointly in their favor, as well as in favor of the U.S., as trustee for the tribal plaintiffs. See Cay. Oppn. Memo. at 13. The tribal plaintiffs do object, however, to amending the judgment as the State suggests "for the potential benefit `of all successors-in-interest of the historic Cayuga Indian Nation.'" Id at 14 (quoting St. Supp. Memo. at 26). From the tribal plaintiffs' viewpoint, such an amendment "would convert this from a judgment awarded to benefit the two specific tribal plaintiffs to an open-ended class-action type judgment fund that could be used to pay future damage awards to an ill-defined class of non-parties and other strangers to this litigation." Id. The court does not agree with this characterization of the State's motion, but for the reasons set forth below it does agree with the U.S. and the tribal plaintiffs that the proper way to proceed at this juncture is to amend the October 2, 2001 judgment to reflect that the U.S., as trustee for the tribal plaintiffs, is also a plaintiff-intervener in this action and the judgment runs jointly in favor of the U.S. and those plaintiffs. Basically Rule 60(a) allows a court to correct clerical errors in a judgment "at any time of its own initiative or on the motion of any party[.]" Fed.R.Civ.P. 60(a). As that Rule allows and because the parties readily agree, as just indicated, the court will amend the October 2, 2001 judgment to reflect that that judgment runs jointly in favor of the U.S. and the tribal plaintiffs.
To the extent that the State is seeking to amend that judgment to run exclusively in favor of the U.S., however, the court denies the State's motion. The U.S. identifies several persuasive reasons as to why at this time the court should not hold that the judgment runs exclusively in favor of the U.S. Perhaps most significant is the fact that "this issue [of exclusivity] raises questions of both law and policy for the [U.S.] and for the tribal plaintiffs, including, for example, whether the [U.S.] and/or *246 the tribal plaintiffs should hold the principal jointly or exclusively, how the principal should be allocated between the New York Cayuga, the Seneca-Cayuga, and other potentially interested parties, and how the principal should be invested and disbursed." U.S. Resp. at 27. The court concurs with the U.S.' assessment of these important law and policy concerns, which, if possible, should be resolved outside the litigation arena:
The ramifications of such decision need to be analyzed by decision makers at the Interior and Justice Departments, as well as by the tribal plaintiffs. The Plaintiffs also need to come together and consult with each other in the aim of coming to a resolution that ideally would alleviate any need for further court involvement in how the money should be handled.
Id. To date, such discussions have not occurred, but the court places great credence in the U.S.' representation that between now and the time the judgment is actually executed, it "will work toward an agreement with all the Plaintiffs that ideally would be presented jointly to the Court." Id. In light of the foregoing, the court hereby grants the State's motion to amend the judgment to provide that the judgment runs jointly in favor of the plaintiff-intervener the U.S., as trustee, and the tribal plaintiffs. The court denies the State's motion without prejudice to renew, however, to the extent that the State is seeking to amend the judgment to reflect that it runs exclusively in favor of the U.S.
II. New Trial
A. State Defendants' Motions
1. Vacate Judgment & JMOL
As Fed.R.Civ.P. 50(b) permits, the State is renewing its motion for judgment as a matter of law. Then, as now, the State is challenging the opinion testimony of the U.S.' expert real estate appraiser, Arvel Hale, contending that his "sales data were unreliable" and his "methodology failed to meet the standards of Daubert and Kumho Tire [.]"[8] St. Supp. Memo. at 3 and 8. Thus the State asserts that "the court should enter judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) and dismiss plaintiffs' claim for damages and prejudgment interest against the State defendants[.]" Id. at 1 (emphasis added). In other words, the State is seeking to nullify both the jury verdict and this court's subsequent prejudgment interest decision so that it will bear no financial responsibility for violating the Nonintercourse Act in its dealings with the Cayuga in 1795 and again in 1807.
This is not the first time the court has had before it challenges to the reliability of Mr. Hale's sales data and to his methodology. *247 In fact, the State has previously made these arguments on three separate occasions: (1) as part of its pre-Phase I motion in limine to preclude Hale's testimony; (2) in connection with the seven day Daubert hearing; and (3) as part of the State's motion for judgment as a matter of law made at the close of all of the proof during Phase I. Each time the court rejected the State's challenges. Following the Daubert hearing the court found, among other things, that Hale's testimony was both "reliable and relevant[,] ... and w[ould] assist the jury in deciding the property valuation issue[.]" See Cayuga XIII, 83 F.Supp.2d at 328. At the close of the Phase I proof, the State again attacked Mr. Hale's testimony and the court again rejected that attack, denying the State's Rule 50 motion in that regard. See Transcript (Feb. 10, 2000) at 2310-29. There is nothing in this renewed motion by the State which convinces the court at this late date to alter its prior decisions.
Besides offering nothing more than a rehash of arguments, the court hastens to add that the State's renewed Rule 50 motion improperly focuses solely upon the proof presented through Hale, rather than upon the record as a whole. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 2110, 147 L. Ed. 2d 105 (2000) (emphasis added) ("[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record."). When the court, as it must, considers not just Mr. Hale's testimony, but the record as a whole pertaining to property valuation, it remains convinced that there is no basis for the State's challenge to either his data or his methodology. The weaknesses in the State's argument become all the more apparent taking into account the "strict" standard which the State must satisfy before it would be entitled to judgment as a matter of law. See Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir.1988). "Judgment as a matter of law is proper under Fed.R.Civ.P. 50 only if, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached." Caruso v. Forslund, 47 F.3d 27, 32 (2d Cir.1995) (emphasis added) (internal quotation marks and citations omitted).
Given the undeniably novel valuation issues presented by the damage phases of this litigation, as the record makes abundantly clear, most certainly this is not a case where "there c[ould] be but one conclusion as to the verdict that reasonable [persons] could have reached." See id. Indeed, again largely because of the unique property valuation issues presented herein, there were a myriad of conclusions which reasonable persons could have drawn from the Phase I record evidence. Moreover, adopting the State's arguments regarding Hale's testimony would require the court to make credibility determinations, weigh the evidence, or both, and that is not a court's function on a Rule 50 motion such as the present one. See Raniola v. Bratton, 243 F.3d 610, 616 (2d Cir.2001).
Finally the court observes that "the Second Circuit espouses a particularly broad standard for the admissibility of expert testimony[,]" such that "after Daubert ... rejection of expert testimony is the exception rather than the rule." See Colon v. BIC USA, Inc., No. 00 CIV. 3666, 2001 WL 1631402, at *11 (S.D.N.Y. Dec.19, 2001) (internal quotation marks and citations omitted). Accordingly, as it has each and every time it has been presented with the State's opposition to Mr. Hale's testimony, the court rejects those arguments *248 and denies the State's motion for judgment as a matter of law based on same.
B. Alternative Relief
Because the court has denied the State's motion for judgment as a matter of law, it must next consider the State's motion for alternative relief. In particular, alternatively, the State is seeking to have the court "either reconsider its calculation of prejudgment interest or order a new jury trial concerning the rental value of the property in the claim area." St. Supp. Memo. at 17 (emphasis added). The State reasons that such relief "is appropriate because the jury seriously misjudged the year by year fair rental value of the claim area and the Court explicitly declined to take this mistake into account in its discretionary calculation of prejudgment interest." Id. at 18 (footnote omitted) (emphasis added).
1. Prejudgment Interest Recalculation
The State's motion for recalculation of the prejudgment interest award suffers from the same infirmity as its motion for judgment as a matter of law: the State is not offering any new arguments which would justify such reconsideration. In arguing that the court should reconsider its calculation of prejudgment interest, the State contends that "[t]he fair rental values indicated on the verdict form do not comport either with the Court's instructions to the jury or with the testimony at trial." See id. at 19. The court discussed and resolved both of those issues in Cayuga XVI. See Cayuga XVI, 165 F.Supp.2d at 273-84; and 358-363. Furthermore, as the U.S. accurately notes, the State has "present[ed] no facts or law contradicting the Court's finding[s]" in this regard. U.S. Resp. at 18.
Moreover, the court agrees with the U.S.' observation, made in a slightly different context, that the State's arguments have not become more persuasive by repetition. See id. at 4. Nor does repetition of these previously unavailing arguments satisfy the "demanding standard" for reconsideration in this Circuit. See Sumner, 103 F.Supp.2d at 558. As Judge Kahn so aptly wrote in Sumner, "[a] simple difference of opinion, no matter how deep it runs, will not warrant reconsideration." Id. at 558-59. Rather than amounting to a clear error of law, which is a possible basis for reconsideration, the court's prior rulings as to the fair rental value aspect of the jury's verdict, which the State again is disputing, are "`simply a point of disagreement between the Court and the litigant[,]'" and do not provide a sufficient basis for disturbing the jury verdict. See id. at 559 (quoting In re C-TC 9th Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y. 1995)). Accordingly, the court hereby denies the State's motion for reconsideration, seeking to have the court recalculate the amount of prejudgment interest due in this case.
2. Fair Rental Value Damages
If the court declines, as it has, to modify its prejudgment interest calculation, then the State is moving for a new trial "solely on the issue of fair rental value damages." See St. Supp. Memo. at 26. In making this motion, the State is relying upon Fed. R.Civ.P. 59(a), which generically provides that a district court may grant a new trial "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a)(1). The State again harkens back to its previously unsuccessful argument that "[t]he jury's conclusion that the fair rental value was an identical $17,156.86 in each year is unsupported by the record." St. Supp. Memo. *249 at 23. Taking that argument one step farther, the State contends that the jury's findings as to fair rental value "go[] beyond a simple judgment call regarding credibility issues[.]" Id. Rather, according to the State, "the jury reached a seriously erroneous result, and given the adverse impact that this verdict has when prejudgment interest is awarded on the basis of the jury's figures, the verdict amounts to a miscarriage of justice." Id. (citations omitted). If the court agrees with the State and grants this motion for a new trial, the State further contends that the court "must also vacate its award of prejudgment interest since that award was based on the jury's verdict." Id. at 26 (footnote omitted). In other words, the State is attempting to get in through the backdoor what it could not get in through the front door, i.e. recalculation of the prejudgment interest award.
Other than the broad, general statements set forth above, the State does not provide any substantive reasons as to why the court should grant a new trial. Presumably the same arguments which formed the basis for the State's argument that the court should recalculate the prejudgment interest award, i.e. the verdict does not conform with the court's instructions or with the testimony, also form the basis for this motion for a new trial. These arguments carry no more weight just because the State is seeking different relief, that is a new trial instead of reconsideration. As the Second Circuit recently clarified, "a decision is against the weight of the evidence, for purposes of a Rule 59 motion, if and only if the verdict is seriously erroneous or a miscarriage of justice." Farrior v. Waterford Board of Education, 277 F.3d 633, 635 (2d Cir.2002) (emphasis added). Put in a slightly different way, "[u]nder Rule 59, a new trial will only be granted if the court determines that the `verdict was against the weight of the evidence [and that] the jury has reached a seriously erroneous result or ... the verdict is a miscarriage of justice.'" Jackson v. Town of Hempstead, No. 98-CV-5635, 2002 WL 199834, at *2 (E.D.N.Y. Feb.4, 2002) (quoting Farrior, 277 F.3d at 635) (emphasis added). Here, the State has not satisfied that stringent standard. Instead, it is merely reiterating arguments which the court has previously rejected, albeit in a slightly different context that is, calculation of the prejudgment interest award.
However, the State is making a new procedural argument. In Cayuga XVI, this court observed that "in all likelihood, the State did waive its right to object to the jury's verdict as inconsistent[.]" Cayuga XVI, 165 F.Supp.2d at 278 n. 5. In light of that observation, although the State and the U.S. devote a fair amount of attention to their respective waiver arguments, there is no need to address the same. First of all, as the court stressed in Cayuga XVI, because there was no need to, it did "not definitively hold that the State ha[d] waived its right to object to the verdict as inconsistent[.]" Id. (emphasis added). Thus, to the extent the State is relying upon a finding of waiver as a possible basis for a new trial, that reliance is misplaced. Of equal if not more import is the fact that the State has not shown how the waiver issue supports a finding that somehow it is entitled to a new trial. Consequently, in all respects the court denies the State's motion for a new trial.
III. Stay
The State is seeking a stay of execution of the $247,911,999.42 judgment in this case pending appeal. First, the State is attempting to secure an automatic stay pursuant to Fed.R.Civ.P. 62(f). Failing that, the State maintains that alternatively *250 the court should grant a stay pursuant to Fed.R.Civ.P. 62(d) and (h). The State further maintains that the court also should waive the posting of a supersedeas bond.[9] The State only mentions in passing Rule 62(h), which "allows a court certifying a judgment under Rule 54(b) to stay its enforcement until the entering of a subsequent judgment or judgments." See Curtiss-Wright, 446 U.S. at 13 n. 3, 100 S.Ct. at 1467 n. 3. Thus, given that the State has confined its analysis to the propriety of a stay under Rule 62(f) or 62(d), the court will limit its analysis accordingly.
A. Rule 62(f): Automatic Stay
Relying upon Fed.R.Civ.P. 62(f), the State asserts that it is entitled to an automatic stay of the judgment in this case. Basically that Rule "adopts the state provisions of the forum state [but] only where the underlying judgment is `a lien upon the property of the judgment debtor' in that state (i.e., where there is the functional equivalent of a bond in terms of security)." Federal Insurance Company v. County of Westchester, 921 F. Supp. 1136, 1138 (S.D.N.Y.1996) (quoting Fed.R.Civ.P. 62(f)) (emphasis added). As several courts have recognized, Rule 62(f) "is unambiguous." Id. (quoting Marandino v. D'Elia and JOFR Assocs., 151 F.R.D. 227, 229 (D.Conn.1993)). Thus, "`[a]s a prerequisite, a judgment must be a lien in the state where the district is located.'" Id. Even in the face of Rule 62(f)'s plain language, and the State's ready admission that the judgment herein "is not a lien upon [its] real property[,]" the State nonetheless urges the court to enter an automatic stay under that Rule. See St. Supp. Memo. at 36 (emphasis added) Although unstated, evidently the State is urging the court to expand Rule 62(f) beyond its plain meaning because if a "judgment debtor, [such as the State,] shows that it has met the requirements of [that] Rule[,]" then "a district court must grant a stay without a supersedeas bond[.]" FDIC v. Ann-High Associates, No. 97-6095, 1997 WL 1877195, at *4 (2d Cir. Dec.2, 1997) (citing Hoban v. Washington Metro. Area Transit Auth., 841 F.2d 1157, 1158 (D.C.Cir.1988)) (emphasis added). In contrast, as will be more fully discussed below, ordinarily a party seeking a stay of a judgment pursuant to Rule 62(d) must post a supersedeas bond.
Correctly viewing Rule 62(f) as inapplicable here, the tribal plaintiffs succinctly respond that "the State has no `automatic' entitlement to a stay in this action." Cay. Oppn. Memo. at 17. The U.S. agrees that an automatic stay is not appropriate, and urges the court to "decline to adopt New York's suggestion that it expand Rule 62(f) to apply to judgments that do not impose liens upon real property." U.S. Resp. at 31. There is no need for the court to become mired down in the State's argument for an expansion of Rule 62(f) because, as will be more fully discussed below, under the unique facts of this case the court deems it a proper exercise of its discretion under Rule 62(d) to both grant a stay pending appeal and to waive the State's posting of a supersedeas bond.
B. Rule 62(d): "Discretionary" Stay
Subject to the exceptions set forth in Rule 62(a), none of which apply here, Rule *251 62(d) provides in pertinent part that "[w]hen an appeal is taken the appellant by giving a supersedeas bond may obtain a stay[.]" Fed.R.Civ.P. 62(d) (emphasis added). As will be more fully explained below, the State automatically would be entitled to a stay under Rule 62(d) if it were willing to post a supersedeas bond, but it is not. Instead, not only is the State seeking a stay of the judgment pending appeal, but it is also seeking to have the court invoke "equitable principles" under Rule 62(d) to waive the posting of a supersedeas bond. See St. Supp. Memo. at 38 and 46.
In deciding whether an appellant is entitled to a stay under Rule 62(d), a court should consider four factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably harmed absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
County of Westchester, 921 F.Supp. at 1138 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119, 95 L. Ed. 2d 724 (1987)). Flexibility is essential when considering those factors. See Morgan Guar. Trust Co. v. Republic of Palau, 702 F. Supp. 60, 65 (S.D.N.Y.1988), vacated on other grounds, 924 F.2d 1237 (2d Cir.1991). Separately analyzing the four factors enumerated above, the State concludes that each of them is easily met and hence it is entitled to a stay of the judgment.
The U.S. "does not object to the State's request for a stay pending appeal pursuant to Rule 62(d)[,]" but rather than examining the four Hilton factors identified above, it "believes" that the State's purported status as a solvent judgment creditor "is controlling[.]" See U.S. Resp. at 33. Thus the U.S. reasons, "there is little to no risk of harm to the Plaintiffs if the Court grants a stay here." Id.
The tribal plaintiffs are taking the exact opposite view, maintaining that in deciding the propriety of a stay, the court should examine each of the four factors enumerated above. When the court does that, the tribal plaintiffs assert that the State is unable to meet its "burden as to any of the four elements, let alone all of them." Cay. Oppn. Memo. at 18. Consequently, they contend that it is not proper to stay execution of the judgment in this case. Recognizing the right to an automatic stay under Rule 62(d) in conjunction with the posting of a bond, however, the tribal plaintiffs do not object to a stay if the States "post[s] ... a bond sufficient to cover the judgment during the anticipated protracted appeal." Id. at 20.
As the foregoing outline of the parties' respective positions shows, in deciding whether the State is entitled to a stay, the first issue is whether the court should invoke the "familiar" four-part formula of the Supreme Court, see County of Westchester, 921 F.Supp. at 1138, or whether, as the U.S. contends, it should disregard those factors and simply rely upon the State's purported solvency as a judgment creditor.
There is some validity to the U.S.' assertion that resolution of the stay issue does not require an analysis of the four Hilton factors. It is not as the U.S. suggests, however, the State's claimed status as a solvent creditor which is dispositive. Despite the seemingly discretionary language of Rule 62(d) (i.e., an appellant "may obtain a stay"), there is a significant body of case law "interpret[ing] [that] Rule ... as entitling an appellant to a stay as a matter of right upon posting of a supersedeas bond or upon the court's waiver of the *252 bond requirement where the appeal is taken from a monetary judgment or its equivalent." Yankton Sioux Tribe v. Southern Missouri Waste Management District, 926 F. Supp. 888, 890 (D.S.D.1996) (and cases cited therein) (emphasis added). Plainly any appeal in the present case will be from a monetary judgment. Thus after Yankton Sioux, if the State prevails on its waiver of bond argument, arguably it would be entitled to a stay as a matter of right. Analyzing the stay issue in this way, would obviate the need for a separate analysis of the four stay factors articulated above.
In an abundance of caution, however, and because there is some support for analyzing the stay issue first and then proceeding to the waiver issue,[10] the court will consider the four stay factors. When it does that, even in a rather cursory manner, the court has little difficulty finding that a stay of the execution of this $247,911,999.42 judgment is warranted. The fact that "applications for stays are generally granted[,]" see John Hancock, 1993 WL 515376, at *1, lends further credence to the court's determination that the unique facts of this case mandate staying execution of the judgment herein.
Addressing the four stay elements in reverse order, the court finds there is a broader public interest at stake here which strongly favors granting a stay the impact a stay or denial of a stay will have on New York State taxpayers. As the State's Director of the Division of the Budget, Carole E. Stone, avers, and the court agrees, "it [would be] against the public interest to pay the judgment before appeals are finally exhausted[,] ... and would seriously prejudice the taxpayers." Affidavit of Carole E. Stone (Oct. 16, 2001) at 2, ¶¶ 2 and 4. As Ms. Stone convincingly explains, immediate payment of this nearly $250 million judgment would seriously prejudice State taxpayers because if the "monies were spent on purchasing land, buildings or other capital items, and the judgment were later overturned, it could be extremely difficult and disruptive to recover any funds already expended." Id. at ¶ 4. The court also agrees with the State's observation that "in the event of a reversal on appeal, the plaintiff Tribes, which have limited resources, may not be able to repay any funds that they spend during the pendency of the appeal." Id. This too bolsters the court's finding that the broader public interest vis-a-vis New York State taxpayers as a whole augurs in favor of granting a stay.
Furthermore, as detailed more fully in the affidavits of Raymond E. Lockwood, Vice-Chairman of the Cayuga County Legislature, and Robert W. Hayssen, Chairman of the Seneca County Board of Supervisors, the court finds that without a stay there is a very real possibility that other parties interested in this litigation will be substantially harmed. Such harm could result from a significant loss in the Counties' respective tax bases if during what will undoubtedly be a lengthy appeal process, the tribal plaintiffs use judgment monies to purchase land in the claim area land which would be non-taxable, thus reducing the Counties' tax bases and *253 tax revenue generally. See Affidavit of Raymond E. Lockwood (Oct. 12, 2001) at 2, ¶¶ 5-7; and Affidavit of Robert W. Hayssen (Oct. 15, 2001) at 2, ¶¶ 5-7. In short, as in River Oaks Marine, Inc. v. Town of Grand Island, No. 89-CV-1016S, 1992 WL 406813 (W.D.N.Y. Dec.10, 1992), "[m]any innocent third parties may suffer if execution is allowed to proceed." Id. at *1 (citing Olympia Equipment v. Western Union Telegraph Co., 786 F.2d 794 (7th Cir.1986)). Moreover, the court cannot ignore the fact that there would be no concomitant harm to the tribal plaintiffs if it grants a stay because they would be entitled to post-judgment interest. See 28 U.S.C. § 1961.
On the other hand, the State cannot show the requisite irreparable harm absent a stay. The State's argument of irreparable harm is seriously undermined "by the well-established principle that quantifiable money damages cannot be deemed irreparable harm." See Harris v. Butler, 961 F. Supp. 61, 63 (S.D.N.Y.1997) (citing, inter alia, Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989)). Because the judgment herein is only for "quantifiable money damages," the State is unable to establish this particular stay element.
As to the likelihood of success on appeal, "court[s] ha[ve] required only that the petitioner demonstrate a `substantial case on the merits,' even if ultimate success is not a mathematical probability." Morgan Guar. Trust, 702 F.Supp. at 65 (citing Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977)). Here, there is no need to engage in a detailed analysis of the relative merits of any appeal by the State. As the court in Morgan Guar. Trust so succinctly put it, "because of the difficulties of the issues ... presented, it would be foolhardy to predict that there is no likelihood of success on appeal." Id. Moreover, as the D.C. Circuit recognized in Holiday Tours, "`tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo be maintained.'" Id. at 66 (quoting Holiday Tours, 559 F.2d at 844-45). The difficult legal questions which have arisen during the course of this more than twenty-year old litigation are legion. Furthermore, as detailed in the Stone, Lockwood and Hayssen affidavits, given the potential for significant disruption to the centuries-old status quo, the equities overwhelmingly favor maintaining the status quo pending appeal. Given the unique nature of this land claim litigation and the myriad of novel legal issues presented nearly every step of the way, particularly in the more recent damage phases, this case cries out for maintenance of the status quo. Simply put, even though denial of a stay would not result in irreparable harm to the State, because the other factors tip decidedly in favor of a stay, the court finds such relief is justified.
Having determined that the unique facts of this case mandate staying execution of the judgment, the court must next address the State's contention that it should not be required to post a supersedeas bond in this case. Arguing that as a "sovereign ... plainly [it] has the financial ability to pay the full judgment with accrued interest[,]" the State maintains that the court should waive the posting of a bond. St. Supp. Memo. at 47 (citing Stone Aff. at ¶¶ 2, 3 and 5) (other citation omitted). The State further offers that the posting of a bond "is unnecessary ... and against the broader public interest." Id. Finally, if the court declines to waive the posting of a bond and finds that an alternative form of security or a reduced bond is required, then "the State submits that there should *254 be further proceedings conducted to determine the nature and amount of security that would be appropriate[.]" Id. at 48.
"[A]ccept[ing] the State's representations that it will make good as a judgment creditor," the U.S. "does not object to the State's request to waive a bond[]" pending appeal. U.S. Resp. at 1 (emphasis added). More specifically, relying upon the State's assurances through its Director of the Division of Budget that "it will satisfy any judgment determined after exhausting appeals[,]" the U.S. asserts that waiver of a supersedeas bond is proper here. Id. at 34 (citing Stone Aff. at ¶¶ 2, 3, and 5). Moreover, the U.S. points to the potential for "wast[ing] the State's resources[]" if the State is forced to obtain a bond. Id.
Again in contrast to the U.S., the tribal plaintiffs do object to waiving the bond requirement for the State. The tribal plaintiffs posit two reasons why waiver of the supersedeas bond is not proper. First they challenge the State's assertion that it can satisfy the judgment upon legislative appropriation, speculating because "of the political controversy surrounding this case[,]" plaintiffs may "face an attempt by the State to block final payment in some way by politicians with a `Native American' agenda." Cay. Oppn. Memo. at 20. Second, the tribal plaintiffs question the State's ability to pay the judgment if, as the State suggests, it will have difficulty posting a bond.
"It is commonly understood that `[t]he purpose of a supersedeas bond is to preserve the status quo while protecting the non-appealing party's rights pending appeal.'" Harris, 961 F.Supp. at 62 (quoting Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1190-91 (5th Cir.1979)) (other citation omitted). The requirement of posting a supersedeas bond "serves three purposes viz., it allows an appellant to pursue an appeal without first satisfying the judgment, it protects an appellee's rights and ability to collect the judgment and it guarantees an appellee the costs of delay incident to the appeal." Brabson v. Friendship House of Western New York, Inc., No. 94-CV-0834, 2000 WL 1335745, at *1 (W.D.N.Y. Sept. 6, 2000) (citation omitted). "In spite of the general requirement that a judgment debtor post a supersedeas bond in the full amount of the judgment, ..., the district court, in its discretion, may use equitable principles to grant such a stay without a full bond if the filing of a supersedeas bond would irreparably harm the judgment debtor and, at the same time, such a stay would `not unduly endanger the judgment creditor's interest in ultimate recovery.'" Port Chester Electrical Construction Corp. v. HBE Corp., No. 86 Civ. 4617, 1991 WL 258737, at *1 (S.D.N.Y.1991), rev'd on other grounds, 978 F.2d 820 (2d Cir.1992) (quoting Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1155 (2d Cir.1986), rev'd on other grounds, 481 U.S. 1, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987)) (other citation omitted). In this regard, the Second Circuit has "held that in some circumstances an `inflexible requirement' for `denial of a stay of execution unless a supersedeas bond is posted' can amount to unjust confiscation of the debtor's property[.]" Liberty Mut. Ins. Co. v. Bankers Trust Co., 769 F. Supp. 130, 131 (S.D.N.Y.1991) (quoting Texaco, 784 F.2d at 1154) (other citation omitted). Other factors germane to the determination as to whether to waive the posting of a bond include "the degree of confidence that the district court has in the availability of funds to pay the judgment...; [w]hether the defendants' ability to pay the judgment is so plain that the cost of a bond would be a waste of money ...; and `[w]hether the defendant is in such a precarious financial situation that the requirement *255 to post a bond would place other creditors of the defendants in an insecure position[.]'" Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir.1988) (internal quotation marks and citations omitted).
The State, as the moving party, has the burden of "objectively demonstrat[ing]" the reasons why the court should "depart from the usual requirement of a full security supersedeas bond to suspend the operation of an unconditional money judgment[.]" See Port Chester Electrical, 1991 WL 258737, at *2 (internal quotation marks and citation omitted). In this vein, it should be noted that "[a]lthough courts sometimes waive the full supersedeas requirement, they often require alternative security considerably in excess of the amount of the judgment." Id. (citations omitted).
The waiver issue need not detain the court for long. Given its status as a "sovereign taxing authority[,]" see Stone Aff., at 2, ¶ 5, the court is confident in the State's ability to pay the judgment herein. See Ortiz v. New York City Housing Authority, 22 F. Supp. 2d 15, 40 (E.D.N.Y. 1998), aff'd on other grounds, 198 F.3d 234, 1999 WL 753153 (2d Cir.1999) (granting motion for stay of execution with waiver of supersedeas bond because, as a government subdivision, City Housing Authority had "ample means" to satisfy the judgment); River Oaks Marine, 1992 WL 406813, at *2 (granting defendants' motion to stay execution of judgment without posting a bond or obtaining other security because, inter alia, defendant was a municipal corporation); accord Norco Constr., Inc. v. King County, 106 Wash.2d 290, 721 P.2d 511, 514 (1986) (state and counties exempt from posting supersedeas bonds because the government treasuries serve as guarantees that any award of damages can be collected). Relying in part upon the Director of the Division of Budget's averment that "the plaintiffs can be secure that upon legislative appropriation, any judgment, and statutory post-judgment interest, will be paid by the State[,]" plaintiffs' rights and their ability to collect on this judgment against the State will not be jeopardized during the appeal process even without the posting of a bond. See Stone Aff. at 2, ¶ 5. Furthermore, because plaintiffs will be entitled to post-judgment interest which, as just noted, the State recognizes it must pay, a bond is not needed to ensure plaintiffs the cost of delay incident to appeal. Surely the prospect of additional interest on this sizeable judgment should be more than sufficient motivation for the State to proceed in a timely fashion with this appeal.
In addition, in assessing the need for a supersedeas bond the court cannot over-look principles of state sovereignty and federalism. See Easter House v. State of Illinois Department of Children and Family Services, 645 F. Supp. 107, 108 (N.D.Ill. 1986). Here, as in Easter House, this "federal court[] [would] ... not [be] show[ing] respect for the dignity and interests of ... [New York] [S]tate by requiring it to post a supersedeas bond where, ..., [the] [tribal] plaintiff[s] seriously challenge[] neither the state's willingness nor its ability to satisfy an adverse judgment." Id. Likewise, the tribal plaintiffs have not shown that "the complexity of the State's collection process [nor] the amount of time required to collect on a judgment after it is affirmed on appeal[,]" see Federal Deposit Insurance Corporation v. A & R Construction, Inc., 921 F. Supp. 153, 155 (citations omitted), somehow justify requiring the State to post a supersedeas bond.
Finally, the court cannot ignore the fact that not only would a bond need to be sufficient to cover the face value of the judgment, but, as Local Rule 67.1 requires, it would need to be for an additional 11% *256 "to cover interest and any damage for delay as may be awarded, plus $250 to cover costs." See L.R. 67.1. Given that "it would be almost impossible to find a bonding agency willing and able to secure a judgment of this size[,]" and that "the potential costs to the State of posting a bond ... would be prohibitively expensive[,]" see Stone Aff. at 3, ¶ 6, the posting of a supersedeas bond here would be "far from practicable." See International Distribution Centers, Inc. v. Walsh Trucking Co., Inc., 62 B.R. 723, 732 (S.D.N.Y.1986) (quoting Federal Prescription Service v. American Pharmaceutical Association, 636 F.2d 755, 760-61 (D.C.Cir.1980)). Due to all of these "unusual circumstances," including the fact that the judgment debtor is the State of New York, and thus the tribal plaintiffs' interests as judgment creditors "would not be unduly endangered[]" even if the State is not required to post a supersedeas bond, the court waives the requirement of posting such a bond in this case. See Texaco, 784 F.2d at 1155 (citation omitted).
IV. Substitution of Successor State Agencies
There is one final procedural matter pertaining to the judgment in this case, and that is the State's motion to substitute "the successor State agencies for the Stage agency defendants named in plaintiffs' complaints." See St. Supp. Memo. at 49. As detailed in the State's supporting memorandum of law, several of the State agencies named as defendants in the tribal plaintiffs' complaints are no longer in existence. See id. Likewise, because this litigation has spanned more than two decades, there have been changes in the individual public official defendants. There being no opposition to this substitution motion, and for the reasons set forth in the State's supporting memorandum, see id. at 49, in accordance with Fed.R.Civ.P. 25(d), the court hereby grants the court's motion to revise the caption with respect to the State defendants, in the manner reflected in exhibit D to attorney Roberts' affirmation of October 15, 2001.
V. Tribal Plaintiffs' "Conditional" Motion
In moving for a new trial pursuant to Fed.R.Civ.P. 59(a) and seeking an additional $1,749,963,279 in prejudgment interest, the tribal plaintiffs emphasize that they are seeking such relief "only, and in that event only," if this court "grants a new trial or otherwise amends the judgment at the request of the State of New York or any other party[.]" See Amended Notice of Conditional Motion at 1 (emphasis added). Given the court's rulings herein, in combination with the terms in which this "conditional" motion is couched, the court hereby denies the same as moot.
VI. Tribal Plaintiffs' Miscellaneous Motions
Taking issue with the court's 60% reduction of Dr. Berkman's prejudgment interest calculations, the tribal plaintiffs are seeking to have the court "amend its Phase II findings to adopt the Cayugas' expert's conclusions as to the amount of prejudgment interest[.]" Memorandum of Law In Support of Conditional Motion for a New Trial and Amendment of Findings and Judgment at 13. The court finds no merit to this argument and adheres to its prior rulings in this regard. Therefore, the court denies the tribal plaintiffs' motion to amend the judgment pursuant to Fed.R.Civ.P. 52(b) and 59(e).
Lastly the tribal plaintiffs are seeking to have this court "reconsider its pre-trial determination denying ejectment as a remedy." Id. at 14. The tribal plaintiffs reason that the court should revisit this issue *257 because "[i]n weighing the equities of granting ejectment, the Court ... emphasi[zed] ... laches, which it attributed to the Cayugas in failing to commence this action earlier." Id. Further, the tribal plaintiffs reason, because the court has "now determined that no finding of laches against the Cayugas is warranted, [it] should reconsider its decision denying ejectment as a remedy." Id. There is no sound reason for revisiting the ejectment issue. Laches was only one of several factors which this court considered in deciding whether or not ejectment was a viable remedy in this case; it was not the determinative factor. See Cayuga Indian Nation of New York v. Cuomo, Nos. 80-CV-930, 80-CV-960, 1999 WL 509442 (N.D.N.Y. July 1, 1999). Moreover, because the issue of ejectment has been thoroughly litigated, briefed and resolved, there is no valid reason for reopening that contentious issue. Thus, the court hereby denies the tribal plaintiffs' motion to grant ejectment as a remedy.
Conclusion
After carefully considering the parties' numerous post-trial motions, for the reasons set forth herein the court hereby:
(1) DENIES without prejudice to renew the non-State defendants' motion to amend the judgment pursuant to Fed.R.Civ.P. 52(b);
(2) GRANTS the tribal plaintiffs' motion for certification pursuant to Fed.R.Civ.P. 54(b);
(3) GRANTS the plaintiff-intervener U.S.' motion to dismiss all defendants except the State of New York from its complaint in intervention;
(4) DENIES the tribal plaintiffs' motion for additional prejudgment interest;
(5) GRANTS the State' motion to amend the judgment to provide that it runs jointly in favor of the U.S., as trustee, and the tribal plaintiffs;
(6) DENIES without prejudice to renew the State's motion to amend the judgment to run exclusively in favor of the U.S.;
(7) DENIES the State's motion for judgment as a matter of law pursuant to Fed.R.Civ.P.50;
(8) DENIES the State's motion for reconsideration seeking recalculation of the prejudgment interest;
(9) DENIES the State's motion for a new trial pursuant to Fed.R.Civ.P. 59(a);
(10) GRANTS the State's motion for a stay of execution of the judgment and to waive the posting of a supersedeas bond pursuant to Fed.R.Civ.P. 62(d);
(11) GRANTS that State's motion for substitution of the successor State agencies pursuant to Fed.R.Civ.P. 25(d);
(12) DENIES the tribal plaintiffs' "conditional" motion for a new trial pursuant to Fed.R.Civ.P. 59(a);
(13) DENIES the tribal plaintiffs' motion to amend the judgment pursuant to Fed.R.Civ.P. 52(b) and 59(e); and
(14) DENIES the tribal plaintiffs' motion for reconsideration of the court's prior determination denying ejectment as a remedy.
The Clerk of the Court is hereby directed to amend the October 2, 2001 judgment accordingly.
IT IS SO ORDERED.
NOTES
[1] See Cayuga Indian Nation of New York v. Cuomo, Nos. 80-CV-930, 80-CV-960, 1999 WL 509442, at *3 *4 (N.D.N.Y. July 1, 1999) (construing plaintiffs' respective complaints broadly, court read original complaints as including the State itself as a defendant, even though various State agencies and individual agency heads were named as defendants therein, but not the State itself).
[2] The non-State defendants consist of Miller Brewing Company, individually and as representative of the defendant class of approximately 7,000 landowners, as well as Seneca and Cayuga Counties.
[3] Before examining each of the Rule 54(b) criteria, the court is compelled to comment upon the fact that despite the stringent requirements outlined above for certification under that Rule, the tribal plaintiffs have provided only the most conclusory reasons for granting such relief. The tribal plaintiffs did not even bother to address the first two criteria for Rule 54(b) certification. And as to the third criteria, without providing either a factual or legal basis, they baldly assert that "[t]he posture of this case, ..., fully meets the requirements for the express determination that there is no just reason for delay and for direction for the entry of judgment." See Memorandum of Law in Support of Motion to Amend Judgment at 4 (citations omitted). Despite those deficiencies both the State and the U.S. agree, albeit for different reasons, that as Fed.R.Civ.P. 54(b) allows, the court should grant the tribal plaintiffs' motion for immediate appeal of the October 2, 2001 judgment.
[4] As will be more fully discussed above, at least at this juncture the U.S. is taking the position that it will not be pursuing any relief against the non-State defendants in this land claim action. Given the court's familiarity (borne from presiding over same for more than 20 years) with land claims in New York, it is extremely hesitant to speculate as to the future course of this lawsuit. In the court's experience, parties' litigation strategies frequently change, often times depending upon which way the political wind is blowing; so while the U.S.' current position is that it will not be pursuing any relief from the non-State defendants, the court can envision that policy changing, especially if this lawsuit continues to proceed at a glacial pace.
[5] The non-State defendants improperly characterize the U.S.' motion as one to amend whereas it is actually a motion to dismiss.
[6] Unlike prejudgment interest rates, post-judgment interest rates are statutorily governed by 28 U.S.C. § 1961(a) which provides that "computations of post-judgment interest are based on the weekly average 1-year constant maturity Treasury yield, for the calendar week preceding the date of judgment." Roberts Affirm. (11/14/01), exh. B thereto (Roberts 10/09/01 Ltr at 2).
[7] The State is seeking this amendment in the event the court does not vacate the judgment. Obviously, because the court refuses to vacate the judgment, it must address this motion to amend the judgment.
[8] As the parties are well aware, "[i]n Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the Supreme Court instructed that the Federal Rules of Evidence require the trial court to `ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'" Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir.2000) (quoting Daubert, 509 U.S. at 589, 113 S. Ct. 2786). Subsequently, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999), the Supreme Court made "clear that this gate-keeping function applies not just to scientific expert testimony" as discussed in Daubert, but also to testimony based on "`technical' and `other specialized' knowledge.'" Id. (quoting Kumho Tire, 526 U.S. at 141, 119 S. Ct. 1167) (quoting in turn Fed.R.Evid. 702). In accordance with this case law, this court conducted a comprehensive Daubert hearing with respect to the three real estate appraisers which the parties retained to value the claim area. See Cayuga Indian Nation of New York v. Pataki, 83 F. Supp. 2d 318 (N.D.N.Y.2000) ("Cayuga XIII").
[9] A supersedeas bond is "required of one who petitions to set aside a judgment or execution and from which the other party may be made whole if the action is unsuccessful." Adsani v. Miller, 139 F.3d 67, 70 n. 2 (2d Cir.1998) (internal quotation marks and citation omitted). "In addition, `supersedeas' refers to the name of the writ containing a command to stay proceedings at law, suspending the power of the trial court to execute on the judgment appealed from." Id. (citations omitted).
[10] See, e.g., Endress + Hauser, Inc. v. Hawk Measurement Systems Pty. Ltd., 932 F. Supp. 1147, 1148 (S.D.Ind.1996) ("Initially, we must decide whether Hawk is entitled to a stay pending appeal. If we find that a stay is appropriate, we must then decide whether to waive the supersedeas bond requirement and allow some form of alternate security[.]"); John Hancock Mutual Life Ins. Co. v. Amerford International Corp., No. 91 Civ. 8635(JFK), 1993 WL 515376, at *1 (S.D.N.Y. Dec.8, 1993) ("Prior to deciding whether the equities of this case require the posting of a partial supersedeas bond (or no bond at all), it is necessary first to consider whether the Court should order a stay at all."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725011/ | 289 So. 2d 116 (1974)
Grace Q. EDMONSTON
v.
A-SECOND MORTGAGE COMPANY OF SLIDELL, INC., et al.
No. 53438.
Supreme Court of Louisiana.
January 14, 1974.
Rehearings Denied February 15, 1974.
*118 Frank B. Hayne, III, Hammett, Leake & Hammett, New Orleans, for plaintiff-applicant.
Kenneth J. Berke, Stahl & Berke, New Orleans, Garic Kenneth Barranger, Barranger, Barranger, Jones & Fussell, Covington, for defendants-respondents.
SUMMERS, Justice.
Plaintiff Grace Q. Edmonston owned a house and lot in Pearl River, Louisiana, as part of her separate estate acquired prior to her marriage to Lucien E. Edmonston. After they were married she and her husband applied for and obtained a $16,000 loan from Standard Life Insurance Company of the South. As a condition precedent to the loan, Standard required plaintiff and her husband to insure their lives for $8,000 each in whole life policies with double indemnity benefits in the event of accidental death. These policies were assigned by the Edmonstons to Standard under an "assignment of collateral security" agreement. The assignment, dated January 7, 1964, was executed contemporaneously with a first mortgage in favor of Standard securing the $16,000 loan bearing upon the Pearl River property.
Terms of the assignment agreement provided that, upon the death of either Mr. or Mrs. Edmonston, Standard would apply the proceeds to discharge the mortgage, or, at their option, pay the proceeds to the beneficiary. The policy insuring Lucien E. Edmonston's life named Grace Q. Edmonston as beneficiary.
*119 Later, on September 24, 1964, plaintiff and her husband negotiated a $4,000 loan from A-Second Mortgage Company of Slidell, Inc. To secure the payment of this loan, the Edmonstons executed a second mortgage in the principal sum of $7,200 in favor of A-Second affecting the Pearl River property.
Two years later the Edmonstons experienced financial difficulties. To alleviate the problems involved, they agreed to convey the Pearl River property to A-Second for the satisfaction of their mortgage indebtedness to A-Second, as well as the indebtedness in favor of Standard. To evidence this agreement the Edmonstons executed a dation en paiement conveying the property to A-Second. In turn A-Second declared the mortgage note of $7,200 in its favor satisfied, granting to the Edmonstons, at the same time, due acquittance and discharge of all indebtedness affecting the property. By this transaction, and by further agreements, A-Second assumed payment of the mortgage note held by Standard, agreeing to make all payments as they came due, and to maintain the life insurance policies in effect by premium payments. Although not objecting to the transfer of title to A-Second, Standard would not and did not release the Edmonstons from the effects of the mortgage obligation owed to Standard.
Lucien E. Edmonston was accidentally killed on March 28, 1967. According to the terms of the policy on his life, this event made the $16,000 double indemnity proceeds payable to his wife as beneficiary. On April 26, 1967 the balance due on Standard's mortgage loan was $14,512.87. At that time Standard prevailed upon Mrs. Edmonston to apply $14,512.87 of the $16,000 policy proceeds to the payment of the mortgage note which they held and to accept the balance of $1,487.13 in cash in full satisfaction of her claim as beneficiary. To manifest her agreement to this transaction, Mrs. Edmonston executed a document titled "Release of Claimant" on May 1, 1967 wherein she acknowledged receipt of the $16,000 due her as named beneficiary in the policy. From this amount she applied $14,512.87 to the satisfaction of the mortgage note in favor of Standard, and the mortgage and the note secured thereby were cancelled in full. A check for the $1,487.13 balance was issued to Mrs. Edmonston, duly endorsed by her and deposited to her account.
This suit followed on March 7, 1968 in which Mrs. Edmonston, as plaintiff, seeks judgment against Standard for $14,512.87, plus penalties, attorneys' fees, interest and costs. Alternatively, she prays for judgment in the same amount against A-Second and its successors C. A. Corporation and U.S. Thrift and Loan Corporation. Defendant A-Second and its successors (to whom we shall refer individually and collectively as A-Second) filed a third party petition against Standard for recovery of any amounts which they were adjudged to owe Mrs. Edmonston. Standard in turn third partied A-Second.
The trial court denied relief to Mrs. Edmonston. On appeal to the First Circuit the judgment was affirmed. La.App., 273 So. 2d 707. We granted certiorari to review these judgments. La., 277 So. 2d 440.
I.
Mrs. Edmonston's principal demand against Standard is based upon allegations that she was distressed by her husband's death and did not knowingly and voluntarily pay the balance due on the mortgage note held by Standard; hence, she alleges, Standard was not authorized by the policy assignment or otherwise to apply the proceeds to the satisfaction of the balance due on the mortgage note it held.
It is unnecessary in this connection to consider the enforceability of the policy assignment, for the record does not adequately support the contention that Mrs. Edmonston was unaware of her rights or obligatons at the time she agreed with Standard that the policy proceeds could be applied to *120 the satisfaction of the balance due on the mortgage note. We do not agree with her contention that she did not act freely and voluntarily. As already noted, she accepted the balance due and signed the "Release of Claimant" agreement. She had been furnished a full statement of the proposed disposition of the funds. In addition, she was knowledgeable, had some experience in affairs of this kind, and was fully aware of the fact that she and her husband had not been discharged from the obligation to Standard. She concedes she was aware of the fact that she was primarily liable on the note held by Standard despite the fact that A-Second had assumed its payment.
With this finding we dismiss Mrs. Edmonston's principal demand against Standard for return of the $14,512.87 paid on the balance due on the mortgage note.
II.
Mrs. Edmonston's alternative demand is, however, the central issue argued in briefs to this Court. The contention is that the trial court and Court of Appeal erred in not invoking and applying the actio de in rem verso to permit her to recover $14,512.87 against A-Second. This restitutionary remedy is founded upon principles of unjust enrichment embodied in Civil Code articles 21 and 1965.[1] The action derives from the maxim that natural justice requires that no one should be enriched at the expense of another. It is used to fill a gap in the law where no express remedy is provided. According to this position, A-Second was, in fact, relieved of the payment of that amount and thereby enriched to that extent while, at the same time, Mrs. Edmonston was impoverished by her discharge of an obligation which A-Second had assumed to pay on her behalf.
This Court set out the requirements to be met before the actio de in rem verso was applicable in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So. 2d 422 (1967). The case concerned an action by a subcontractor, as buyer of a faulty caulking compound, against the successor to the manufacturer of the compound for the amount the subcontractor was cast in judgment to pay to the contractor as damages incurred in recaulking made necessary by the faulty compound. This Court applied the actio de in rem verso to the subcontractor's claim for indemnity against the successor to the manufacturer, which it held was unjustly enriched by this payment.
To deter courts from turning to equity to remedy every unjust displacement of wealth with unregulated discretion, certain limitations are applicable to the actio de in rem verso. The Minyard decision set forth five prerequisites which must be satisfied to successfully invoke the action: 1) There must be an enrichment; 2) there must be an impoverishment; 3) there must be a connection between the enrichment and the impoverishment; 4) there must be an absence of "justification" or "cause" for the enrichment and impoverishment; and 5) the action will only be allowed when there is no other remedy at law, i. e., the action is subsidiary or corrective in nature.
*121 1) Enrichment
There must be an enrichment.
A-Second by the dation en paiement executed on October 18, 1966 acquired the Edmonston house and lot for a recited consideration of $5,178.24the balance due on the Edmonston obligation to A-Secondand the assumption by A-Second of the balance due on the first mortgage to Standard in the sum of $14,512.87, a total $19,691.11 paid for a property valued by Standard's appraisers at $24,100. Thus, when Mrs. Edmonston discharged the $14,512.87 obligation to Standard, A-Second was relieved of the payment of that debt which it had assumed and therefore A-Second's patrimony was enriched to that extent.
There is no merit to A-Second's contention that it acquired the Edmonston property subject to the encumbrances and for that reason it was entitled to all benefits derived from the life policies since it paid the premiums. At the time of the dation, no contract was entered into which would entitle A-Second to the proceeds of the life insurance. There was, moreover, no legal requirement between Mrs. Edmonston and A-Second that Mrs. Edmonston discharge A-Second's obligation to pay the mortgage note due Standard. To the contrary, A-Second had, by the dation, given the Edmonstons full acquittance and discharge of all encumbrances affecting the property. That is to say, Mrs. Edmonston owed A-Second nothing, still A-Second was the beneficiary of $14,512.87 when Mrs. Edmonston paid the mortgage note held by Standard. Thereby A-Second received a benefit they had never bargained for, the discharge of its obligation to Standard. To that extent A-Second was unquestionably enriched and in our view the case falls within the meaning of enrichment as that term is contemplated by the actio de in rem verso.
2) Impoverishment
There must be an impoverishment.
The Court of Appeal was of the opinion that Mrs. Edmonston suffered no impoverishment. By paying the mortgage note held by Standard, on which she was personally liable, the court reasoned, Mrs. Edmonston was released from this debt to her benefit.
This point of view overlooks the fact that Mrs. Edmonston gave up her house and lot to A-Second in the dation en paiement to satisfy all debts bearing against the property. When she paid Standard, therefore, she was paying an obligation of A-Second. Actually, she paid the $14,512.87 twice: once in the dation en paiement by conveying her house to A-Second with the understanding that A-Second would pay that debt and again when she paid Standard. She was thus impoverished when her patrimony was diminished by the amount paid to Standard.
3) There must be a connection between the enrichment and the resulting impoverishment.
There was a causal connection between Mrs. Edmonston's impoverishment and A-Second's enrichment as our discussion demonstrates. When Mrs. Edmonston paid the balance due to Standard and the mortgage and note were cancelled, A-Second immediately became the beneficiary to the exact extent of the payment. Mrs. Edmonston's one act of payment therefore simultaneously enriched A-Second and impoverished her. Unless Mrs. Edmonston prevails here, A-Second gets a $24,100 home for $5,178.24 as a direct consequence of the payment. These facts meet the test which requires that "It must be clear that the defendant would not have been enriched unless the plaintiff has been impoverished." Guttridge and David, The Doctrine of Unjustified Enrichment, 5 Cambridge L.Jour. 204, 214 (1933-35).
*122 4) There must be an absence of "justification" or "cause" for the enrichment and the impoverishment.
"Cause" is not in this instance assigned the meaning commonly associated with contracts, but, rather, it means that the enrichment is justified if it is the result of, or finds its explanation in, the terms of a valid juridical act between the impoverishee (Mrs. Edmonston) and the enrichee (A-Second) or between a third party (Standard) and the enrichee. A valid juridical act with the enrichee is essential to a finding of "cause". Nicholas, Unjustified Enrichment in the Civil Law and Louisiana Law, Part I, 36 Tul.L.Rev. 622 (1962).
The issue, then, is whether there is a contract, express or implied, between Mrs. Edmonston and A-Second or Standard and A-Second which would justify the enrichment of A-Second. If there is such, the contract is the law between them and it serves as a legal cause or justification for the enrichment. If cause is found, the enrichment is not unjustified and the attempt to invoke the actio de in rem verso must fail. For it is not every unjust enrichment which warrants the resort to equity; only the unjust enrichment for which there is no justification in law or contract allows equity a role in the adjudication.
A-Second argues that justification or cause does appear on the face of the policy assignment from the Edmonstons to Standard. But this does not suffice to satisfy the requirement. The French law requires an act between the impoverishee and the enrichee or the third party and the enrichee. This is the better test. See Nicholas, Id., at 625, 628, 631.
The contract of assignment relied upon by A-Second is an agreement between the Edmonstons and Standard, not with A-Second the enrichee. A-Second is neither mentioned nor contemplated in this contract. And the dation was the only juridical act between Mrs. Edmonston and A-Second even remotely associated with the facts at issue. The dation concerned the giving in payment of the Edmonston house and lot in satisfaction of A-Second's mortgage and the assumption by A-Second of the obligation to discharge the Standard mortgage and pay the policy premiums. No element of this agreement entitles A-Second to the policy proceeds utilized by Mrs. Edmonston to satisfy the Standard mortgage.
Moreover, the assignment by Mrs. Edmonston to Standard has no real bearing on the issues, for its validity is extremely questionable. Mrs. Edmonston is not permitted under this Court's jurisprudence to assign her beneficiary rights before they actually accrue, for at the time of the assignment Mr. Edmonston had the right, by the terms of the policy on his life, to change the beneficiary at any time. Dorset v. Thomas, 152 La. 60, 92 So. 734 (1922); Douglass v. Equitable Life Assur. Soc., 150 La. 519, 90 So. 834 (1922); 2A Appleman, Insurance Law and Practice, ¶¶ 1257, 1282 (1966).
5) The action will only be allowed where there is no other remedy at law, i. e., the action is subsidiary.
Civil Code Article 21 expressly states that the judge can turn to equity (actio de in rem verso) only where there is no express law. The action must not be allowed to defeat the purpose of a rule of law directed to the matter at issue. It must not "perpetrate a fraud on the law." Minyard v. Curtis Products, Inc., 251 La. 624, 205 So. 2d 422 (1967).
There is no remedy available to Mrs. Edmonston other than the actio de in rem verso. She has, in effect, paid the debt of another and the actual benefit to A-Second cannot be questioned. Principles of negotiorum gestor are inapplicable, for *123 she had no intent to benefit A-Second. La.Civil Code arts. 2295-2300. There is no remedy by which she can recover the money paid to Standard for she was obligated to them. But she owed no obligation to A-Second, and there was no requirement in law or by contract, that she discharge A-Second's debt to Standard; and there is no contract or rule of law which permits Mrs. Edmonston to reclaim from A-Second the $14,512.87 enrichment resulting to A-Second by the payment of that amount to Standard.
It follows, therefore, that the action here is subsidiary in character; it will defeat no rule of law and equity will prevail by allowing Mrs. Edmonston to recover from A-Second.
And, since we are doing equity, A-Second will be allowed a credit for insurance premiums paid on the life policies. Douglass v. Equitable Life Assur. Soc., 150 La. 519, 90 So. 834 (1922).
For the reasons assigned the judgments of the trial court and Court of Appeal are reversed, and judgment is rendered in favor of Grace Q. Edmonston and against A-Second Mortgage Company of Slidell, Inc., C. A. Corporation, and U.S. Thrift and Loan Corporation, individually, jointly and in solido, in the amount of $14,512.87, plus legal interest from the date of judicial demand until paid, and for all costs of these proceedings, less a credit of $321.70, the amount paid on policy premiums, with legal interest thereon from date of judicial demand.
All other demands of plaintiff, and all third party demands asserted herein are denied.
CULPEPPER, J., dissents, being of the opinion that the judgment of the Court of Appeal is correct.
DIXON, J., dissents.
NOTES
[1] La.Civil Code art. 21:
"In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent."
La.Civil Code art. 1965:
"The equity intended by this rule is founded in the christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity."
See also La.Civil Code articles 501, 507, 1793, 2147, 2301, 2302, 3407 for examples of legislation based on principles of unjust enrichment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1793765/ | 556 S.W.2d 644 (1977)
Louise CRAIG, Appellant,
v.
Lee ALLEN et al., Appellees.
No. 1042.
Court of Civil Appeals of Texas, Tyler.
October 6, 1977.
Rehearing Denied October 27, 1977.
*645 Bill D. Rosenstein, Stephens, Corn & Rosenstein, Tyler, for appellant.
Rex A. Nichols, Nichols & Parker, Longview, for appellees.
McKAY, Justice.
This is a personal injury case involving an alleged "whiplash" type injury resulting from a rear end collision. Appellant filed suit against appellees, Lee Allen and Donna Childs, alleging various counts of negligence in the operation of an automobile by the former, and negligent entrustment of the automobile to the former by the latter. Appellees answered by general denial and a specific allegation that appellant's injury or disability, if any, was caused by accidents or occurrences "which occurred either prior to or subsequent to the accident forming the basis of this lawsuit." The evidence was submitted to a jury which found on two special issues that plaintiff was entitled to $300.00 as reasonable and necessary medical and hospital expenses, but made a finding of zero for physical pain and mental anguish suffered by appellant in the past and which in reasonable probability she would suffer in the future from her injuries which resulted from the occurrence in question. On the basis of these findings the court rendered judgment that appellant take $300.00 from appellees. Appellant perfected her appeal from this judgment.
Appellant brings three points of error. Points one and two complain that the trial court erred in failing to grant appellant's motion for new trial for the reason that the jury's answers to special issues one and two were so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Point three complains that the trial court erred in admitting into evidence "a portion of an unsworn medical report which medical report constituted hearsay." This report will be discussed more fully at a later point.
The record shows that the collision in question occurred on May 30, 1975, at about 5:30 p.m. at the intersection of Front and Bonner Streets in the City of Tyler, Texas. *646 Both vehicles were located in the outside westbound lane of Front Street at the time of the collision. Appellant testified that she was stopped at a red light at the intersection involved when her vehicle was struck from the rear by a vehicle driven by appellee Allen. She described the impact as a "good jolt." Allen testified that he was stopped at the intersection immediately behind appellant's vehicle; that when the light turned green both drivers proceeded forward and Allen "bumped" the rear of appellant's car as appellant took off "a little bit slower" than Allen. Photographs of the two vehicles introduced into evidence show little, if any, discernible damage to either vehicle.
As a result of the collision, appellant allegedly sustained a cervical sprain or so-called "whiplash" type injury. She testified that she had suffered neck and shoulder pains, having "a dull ache in my neck at all times." She further testified that she had previously incurred the same type injury resulting from another rear-end collision "seven or eight years back," but that it hadn't bothered her for "at least five years." She did not miss any work because of the injury although a fellow worker, Eunice Stanford, testified that appellant "couldn't turn her neck, she couldn't reach for packages on the shelves up high, had difficulty bending." Appellant for two weeks following the accident was under the care and treatment of her family physician, Dr. Donald Knarr, who then referred her to Dr. Van Garrett, an orthopedic surgeon, who treated her through January, 1976. According to his deposition read into evidence, Dr. Garrett's examination on June 25, 1975, revealed some "tenderness in the left side of the neck and on top of the left shoulder blade," and "limitation of flexion and extension, that is, bending forward and bending back of the neck." He indicated that appellant was experiencing some muscle spasm, but that there were no outward signs of injury in the area. He concluded that she had sustained a sprained neck and that she had "either contused or slightly pinched one of the nerves in the neck," producing a loss of sensation in her left hand. However, appellant had told Dr. Garrett that she had not had any prior neck or shoulder injuries. Dr. Garrett recommended that she "undergo physical therapy, take muscle relaxants and pain medication as needed." He testified that an injury of this type would normally have a maximum convalescent period of about six months. Dr. Knarr did not testify at the trial.
Dr. P. M. DeCharles, an orthopedic surgeon who examined appellant on September 23, 1975, at the request of appellees' attorney, also testified by way of deposition at the trial. Dr. DeCharles testified that upon his examination appellant had "normal motion" in the cervical area and that any muscle spasms she had were "markedly voluntary" which meant that "the mechanism of pain is not present." Upon neurological examination Dr. DeCharles found that "the reflexes were all present and equal and the sensation was rather bizarre and by that I mean, that it just did not follow the anatomical lines thatas we know them." He testified that appellant's subjective complaints during the course of the examination "were not real" and that certain sensations appellant described were "medically impossible." Upon examining an x-ray of appellant's neck he noted some "minimal arthritic hypertrophic changes" resulting from "the usual wear and tear that you would expect to find in a woman or a man of that age." He indicated that if appellant had been his regular patient he "wouldn't have prescribed anything."
Appellant introduced into evidence doctor bills from Dr. Knarr of $151.00, from Dr. Garrett of $147.00, from Dr. Richard F. Ulrich, a neurologist who performed tests at the request of Dr. Garrett of $60.00, for physical therapy of about $700.00, and various pharmaceutical receipts. Appellee stipulated that such bills were reasonable but took issue with appellant on the necessity of such. Appellee introduced for impeachment purposes a letter from Dr. Knarr to appellant's attorney, a portion of which stated that he had given appellant injections intermittently since January of 1970 for a whiplash injury sustained in November *647 of 1968. Appellant's point three complains of the admission of this letter.
The only special issues submitted or requested were the two on damages. Nowhere in the record is there any objection to the submitted charge. The issue of whether appellant sustained an injury was controverted in the evidence, but no issue on injury was submitted or requested. The trial court found as a matter of law that appellee's actions constituted negligence and such negligence was the proximate cause of any injury appellant might have received. However, where a ground of recovery consists of more than one issue, and one or more of the issues necessary to sustain such ground of recovery are submitted to and answered by the jury, and one or more of such issues are omitted, without request, or objection, and there is evidence to support a finding thereon, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment. Hopkins v. Standard Fire Ins. Co., 554 S.W.2d 270 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ); McAllister v. Gardner, 373 S.W.2d 316, 320 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.); Rule 279, T.R.C.P. Therefore, it is deemed as found that appellant was injured as the result of appellee's negligence.
The finding of injury notwithstanding, after a review of the entire record and after having weighed and balanced all the evidence, both that in favor and against the verdict and judgment, we are of the opinion that we would not be justified in concluding that the finding of the jury in regard to special issue two was so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point one is overruled.
Point two complains that the finding of the jury on special issue one of $300.00 as reasonable and necessary expenses for medical and hospital care was so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. After a review of the entire record and after having weighed and balanced all the evidence, both that in favor and against the verdict and judgment, we are of the opinion that we would not be justified in concluding the finding of the jury in regard to special issue one was so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point two is overruled.
Point three complains of the admission into evidence of the above mentioned portion of the letter from Dr. Knarr to appellant's attorney concerning Dr. Knarr's treatment of appellant for a prior "whiplash" injury, appellant contending that such constituted hearsay. It appears from the record that appellant herself had previously testified as to such prior injury. In addition, appellant's counsel subsequently introduced the letter in its entirety. The trial court's admission of evidence over objection is deemed to be harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103, 1104 (1917); Missouri-Kansas-Texas RR. Co. v. Shelton, 383 S.W.2d 842 (Tex.Civ.App.-Dallas 1964, writ ref'd n.r.e.); Medina Electric Cooperative, Inc. v. Ball, 368 S.W.2d 227 (Tex.Civ.App.-San Antonio 1963, no writ). The admission of such letter, if error, was harmless error. Rule 434, T.R.C.P. Point three is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1137737/ | 466 So.2d 1309 (1985)
Gregory HARRIS
v.
BEST OF AMERICA INC. and Jerry A. Blessing.
No. 84 CA 0077.
Court of Appeal of Louisiana, First Circuit.
February 26, 1985.
Rehearing Denied April 12, 1985.
Writ Denied June 7, 1985.
*1310 Sondra Cheek, Bogalusa, for plaintiff.
Richard Machen, Slidell, Levy, Oubre & Rosenthal, and Bryan Pedeaux, New Orleans, for defendants-appellants.
Before COLE, CARTER and LANIER, JJ.
CARTER, Judge.
This is an appeal from the trial court's determination that plaintiff, Gregory Harris, was entitled to recover from Best of America, Inc. (Best) and Jerry A. Blessing certain damages for faulty work under a construction contract.
On November 25, 1981, Gregory E. Harris and Best, through its president, Jerry A. Blessing, entered into a contract for the construction of a two-bay car wash located in Washington Parish. On April 7, 1982, Harris filed suit against Best and Blessing alleging that the car wash was unfit for the use for which it was intended and demanding return of the price paid, costs of repairs, loss of income, attorney fees, damages for inconvenience and distress, as well as judgment in solido against Best and Blessing.
Defendants reconvened for $3,792.14 due and owing under the construction contract and for damages to reputation.
After trial, the trial judge rendered judgment in favor of plaintiff and against defendants *1311 for $38,000.00 to repair defects in the facility, plus lost revenue of $60.00 per day for the thirty days necessary to make the repairs. In addition, the plaintiff was awarded $200.00 for each of his experts, plus the entire cost of the services rendered by the experts. The defendants were awarded $3,792.14 plus legal interest from date of judicial demand. The court further found that Best was, in fact, the alter ego of Jerry A. Blessing and rendered judgment against Best and Blessing jointly, severally, and in solido.
Defendants appeal, alleging three assignments of error: (1) the trial court should have awarded only the damages set forth in the contract; (2) the court should not have relied solely on the testimony of the plaintiff's experts; and, (3) the court should not have ruled that Best was the alter ego of Blessing and pierced the corporate veil.
ASSIGNMENT OF ERROR NO. 1
In this assignment of error, the defendants contend that there were stipulated damages provided in paragraph five of the contract and that these were the only damages that could have properly been awarded the plaintiff.
Under the contract, construction was to commence on or about November 30, 1981, and was to be completed on or before December 31, 1981. This was to be a "turn key" project, i.e., Best was to build a car wash facility completely ready for operation by December 31, 1981, in return for $60,000.00.
A formal acceptance of performance of the contract was signed by Harris on December 31, 1981. Approximately one month later, Harris discovered defective workmanship in the form of cracks in the drain pits and the concrete driveways.
Plaintiff testified that when he began negotiating with Best for construction of a car wash, Best showed him a set of plans and used them as a selling point throughout the negotiations. These plans were paraphed for identification with the contract.[1] According to paragraph two of the contract, the car wash was to be built in strict accordance with these plans. Plaintiff submitted these plans to his bank to obtain project financing.
At trial, defendants argued that they never agreed to build the car wash strictly according to the plans. On appeal, however, defendants concede that the car wash failed to meet the specifications as provided in the building plans. They argue that this failure triggered the provisions of paragraph five, which defendants contend provide two mutually exclusive penalties: (1) $6,000.00 for failure to complete the job according to specifications; or (2) $200.00 per day for failure to complete the facility by December 31, 1981.
Defendants contend the car wash was completed by December 31, 1981, as evidenced by Harris' formal acceptance, therefore, only a flat payment of $6,000.00 is applicable regardless of the amount of actual damages. We disagree.
Paragraph five of the contract provides:
In the event contractor fails to deliver completed structure, as set forth above, Contractor agreed to pay to Owner the amount of $6,000.00, as stipulated damages, in addition to the amount of $200.00 per day until completion of said structure and acceptance by owner thereof. (Emphasis added)
Defendants' reliance on paragraph five is misplaced. Clearly, the phrase "as set forth above" refers to paragraph four and stipulates damages for non-delivery of a "turn key" car wash by a specific date (December 31, 1981).[2] The *1312 car wash was delivered and accepted on December 31,1981. Therefore, the penalty clause became inapplicable after that time.
Upon the subsequent discovery of defects in the facility, the applicable law is set forth in LSA-C.C. art. 2756 et seq., and more specifically articles 2762 and 2769.
LSA-C.C. art. 2762 provides:
If a building, which an architect or other workman has undertaken to make by the job, should fall to ruin either in whole or in part, on account of the badness of the workmanship, the architect or undertaker shall bear the loss if the building falls to ruin in the course of ten years, if it be a stone or brick building, and of five years if it be built in wood or with frames filled with bricks.
This article comprehends both the use of faulty materials and defective workmanship. Manzanares v. American Intern. Forest, 389 So.2d 1142 (La.App. 3rd Cir. 1980), writ denied, 395 So.2d 811 (La.1980); Parker v. Brown, 150 So.2d 306 (La.App. 2nd Cir.1963).
LSA-C.C. art. 2769 provides:
If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.
This article sets forth the duty of a contractor to execute the work contracted for in a proper manner.
It is well settled that a contractor is bound to warrant his work and is responsible for any damages caused by defective workmanship. Even had this contract not specifically so provided, it would have been implied that the work would be performed in a good, workmanlike manner. Davidge v. H & H Const. Co., 432 So.2d 393 (La. App. 1st Cir.1983); Troy v. Bretz, 399 So.2d 667 (La.App. 1st Cir.1981).
Defendants were properly cast in judgment for repairs proven by the plaintiff to be necessary to correct the defendants' defective workmanship, and this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In this assignment of error, the defendants argue that the trial court should not have relied solely on the testimony of plaintiff's experts in determining the award of damages.
In proving the extent of the damages, plaintiff called two expert witnesses, namely James Aronstein and Lamon Moody.
James Aronstein testified as an expert in the field of geotechnical engineering (soils and foundations). He stated that the plans called for the soil to be compacted to 95%, but his tests revealed a compaction of only 60-86%. In this state, Aronstein opined that the soil would have a low bearing capacity and would likely settle. In turn, this settlement would lead to cracks in the concrete.
*1313 In assessing the construction of the drain pits, Aronstein stated that the plans called for the pits to be poured in place with four-inch concrete sides with one-half inch steel reinforcing bars on twelve-inch centers. The bottom slab of the pit was to be tied in with the pit walls, and the entire pit was to be tied into the floor of the car wash and protected with a visqueen water barrier. His inspection of the pits showed that they were prefabricated rather than poured in place. The pit walls were only one and a half to two and a half inches thick with no reinforcing steel and no water barrier. Additionally, the concrete tested at 1500 pounds per square inch (psi) versus the 4000 psi specified. Furthermore, the pit was not tied into the car wash floor and the pit area was over-excavated. He found voids ranging from fifteen inches to over thirty inches under the pit floor and large cracks between the car wash floor and the top of the pit. Aronstein testified that the pit was not fit for its intended purpose.
Aronstein also found that the concrete compressive strength of the driveways tested out to 3000-3500 psi whereas the plans specified 4000 psi. Aronstein felt that this strength deficiency could lead to concrete failure.
Additionally, Aronstein found that borings of the car wash floor showed that the wire mesh reinforcement was located on the bottom of the slab whereas the specifications required that it be in the slab center. The wire mesh gives the concrete additional tensile strength to reduce cracking, and Aronstein was of the opinion that in its present location, the wire was not functional.
Mr. Lamon Moody testified as an expert in the fields of consulting engineering and civil structural engineering. He examined the invoices and delivery tickets from the concrete company and stated that the highest strength concrete delivered was 3000 psi and some loads were only 2500 psi. He stated that the drain pits did not in any way resemble the design specifications and that there had been extensive concrete failure in the pit walls.
Furthermore, Moody found that all three borings in the driveway and floor showed that the wire mesh reinforcement was on the bottom of the slab, making the wire totally ineffective. The borings also revealed voids under the concrete driveways. Employing various measuring devices, Moody made a careful and detailed analysis over an extended period of time of numerous cracks and determined they were "shear cracks", which run completely through the slab and indicate complete concrete failure. He stated that the concrete could fail beneath the wheels of a vehicle, causing shear cracks to radiate underneath the brick walls of the car wash, causing them to collapse. Moody was of the opinion that as presently constructed, there was a "drastic deviation from the design drawings" and that the car wash could not be used for the purpose for which it was intended.
As an alternative to the complete razing of the structure, Moody stated that it would be possible to use concrete saws to cut the slabs in the two bays away from the building foundation, and then remove the entire floor area, including the pits, which could be removed safely with jackhammers. The concrete could then be repoured properly. He estimated this would cost $35,000.00 plus $3,000.00 for soil tests. The entire operation would take approximately seven weeks. He recommended that a full-time inspector be employed during the repair work at an estimated cost of an additional $5,000.00.
Defendants' expert, Mr. Herbert C. Sanders, testified as an expert on concrete slabs. He stated that he made an inspection trip to the car wash and that he was unsure of what to look for because he had not been informed of the specifics of plaintiff's complaint. Nevertheless, he visually examined the pits and the cracks in the slab. In his opinion, the cracks were thermal in nature, that is, they did not go all the way through the slab and thus did not indicate slab failure. However, he admitted he used no measuring devices in reaching his conclusion. He also admitted that the voids under the pits and driveway were *1314 totally unacceptable. He stated that 3000 psi concrete could be sufficient for a car wash, but that proper compaction of the soil base was very important if 3000 psi concrete was employed. He observed that the wire mesh was on the bottom of the slab in at least one location and that, to be effective, it should be approximately at the midpoint of the slab.
The weight which the trial court gives to the testimony of an expert witness is determined by the qualifications, the field experience, and the facts upon which his opinion is based. The trial judge has considerable discretion in accepting or rejecting expert testimony. Ford v. Dixie Buick, Inc., 400 So.2d 228 (La.App. 4th Cir.1981). Additionally, the trial court need not accept all of the testimony of any witness as being either true or false and may believe and accept a part or parts of a witness' testimony and refuse to accept any part or parts thereof. Veals v. Manis, 437 So.2d 359 (La.App. 4th Cir.1983), writ denied, 441 So.2d 1222 (La.1983); Holmes v. Southeastern Fidelity Ins. Co., 422 So.2d 1200 (La.App. 1st Cir.1982), writ denied, 429 So.2d 133 (La.1983). The factual conclusions arrived at by the trier of fact must be given great weight and should not be reversed unless clearly wrong. Arceneaux v. Domingue, 365 So.3d 1330 (La. 1978).
We have reviewed the entire record, including the trial judge's written reasons for judgment, and conclude that his factual findings are not manifestly erroneous.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In their final assignment of error, defendants contend that the trial judge erred in ruling that Best was the alter ego of Blessing and holding Blessing liable in solido with Best.
A corporation is an entity distinct from all the members who compose it. LSA-C.C. art. 435[3]. The estates and rights of a corporation belong exclusively to the corporation and not to its members. LSA-C.C. art. 436[4].
As a general rule, individual shareholders are not liable for the debts of the corporation. LSA-C.C. art. 437[5]. However, there are limited exceptions to the rule of non-liability of shareholders for the debts of a corporation whereby the court may ignore the corporate fiction and hold the individual liable. In such situations, a litigant can reach an individual shareholder by "piercing the corporate veil," thereby rendering the individual liable for the debts incurred by the corporation. Liberto v. Villard, 386 So.2d 930 (La.App. 3rd Cir.1980).
One such exception to the non-liability rule involves situations where fraud or deceit has been practiced on a third party by *1315 the shareholder acting through the corporation. LSA-R.S. 12:95; Kingsman Enterprises v. Bakerfield Elec. Co., 339 So.2d 1280 (La.App. 1st Cir.1976); Dillman v. Nobles, 351 So.2d 210 (La.App. 4th Cir. 1977); Bossier Millwork & Supply Co. v. D. & R. Const. Co., 245 So.2d 414 (La.App. 2nd Cir.1971).
In the case sub judice, there are no allegations of fraud and deceit. Plaintiff knew from the beginning that he was contracting and dealing with the corporation and not with Blessing personally.
The corporate veil may be pierced, even in the absence of fraud, where there has been a disregard of the corporate entity to such an extent that the corporation is indistinguishable from the shareholders. Cahn Elec. Appliance Co., Inc. v. Harper, 430 So.2d 143 (La.App. 2nd Cir.1983); Smith-Hearron v. Frazier, Inc., 352 So.2d 263 (La.App. 2nd Cir.1977), writ denied, 353 So.2d 1337 (La.1978); Dillman v. Nobles, supra. See also Brown v. Benton Creosoting Co., 147 So.2d 89 (La.App. 2nd Cir.1962); Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943), affirmed 209 La. 343, 24 So.2d 610 (1945). When the members fail to conduct a corporation on a separate footing, the court may ignore the corporate entity and hold individual members liable to third parties. In such a situation, the corporation is referred to as the "alter ego" of its members. Union Local P-1476, Etc. v. Union, Etc., 408 So.2d 371 (La.App. 1st Cir.1981); Kingsman Enterprises v. Bakerfield Elec. Co., supra.
However, where fraud or deceit is absent, other circumstances must be so strong as to clearly indicate that the corporation and shareholder operated as one. Kingsman Enterprises v. Bakerfield Elec. Co., supra; Cahn Elec. Appliance Co., Inc. v. Harper, supra.
When a party seeks to pierce the corporate veil, the situation must be viewed with regard to the totality of the circumstances in each case. Kingsman Enterprises v. Bakerfield Elec Co., supra; Liberto v. Villard, supra. Because Louisiana considers the concept of the corporation beneficial, the principle that the corporation is a separate entity should be disregarded only in exceptional circumstances. Kingsman Enterprises v. Bakerfield Elec. Co., supra; Cahn Elec. Appliance Co., Inc. v. Harper, supra; Liberto v. Villard, supra.
Louisiana courts have listed circumstances which justify the imposition of the doctrine as follows:
(1) Commingling of corporate and shareholder funds;
(2) Failure to follow statutory formalities required for incorporation and for the transaction of corporate affairs;
(3) Undercapitalization;
(4) Failure to provide separate bank accounts and bookkeeping records; and
(5) Failure to hold regular shareholder or director meetings.
Kingsman Enterprises v. Bakerfield Elec. Co., supra; Smith-Hearron v. Frazier, Inc., supra.
In the case sub judice, the trial judge found that Blessing failed to conduct Best on a corporation footing to the extent that the corporation ceased to be separate from Blessing. The trial judge determined that since Best declared a loss on its last IRS tax return while paying its president and primary, if not only, shareholder an annual salary of $100,000.00, Best was not adequately capitalized. The trial judge also determined that Best had held an insufficient number of board meetings. Based upon these findings, the trial judge pierced the corporate veil and cast Blessing in judgment solidarily with Best.
Plaintiff contends that Blessing's personal funds were commingled with Best's corporate funds, thus demonstrating that the corporate identity was ignored. Plaintiff reasons that the rule of shareholder non-liability should be circumvented on the basis of an entry on the corporate tax return reflecting as an asset $32,841.00 due from a stockholder (presumably Blessing).
However, it is clear from the record that separate banking accounts were maintained by Best and Blessing. Additionally, the questioned fund transfers *1316 in the instant case were explained as loan transactions.[6] Such circumstances do not demonstrate a commingling of corporate funds with the funds of the individual, thereby destroying the separate identities of the entities. See Kingsman Enterprises v. Bakerfield Elec. Co., supra.
Plaintiff also contends that Best did not hold a sufficient number of board of director meetings.
LSA-R.S. 12:81 discusses the role of directors in Louisiana corporations law; and there is no requisite number of meetings a corporation's board must have to maintain their corporate status. The evidence clearly shows that Best became incorporated in January, 1980. Furthermore, a copy of the minutes of a January 13,1980 board meeting and an excerpt from the minutes of a November, 1981 special board meeting were made part of the record.[7] We cannot say that two board meetings in two years is an insufficient number of meetings, which justifies piercing the corporate veil.
Plaintiff further contends that Best is undercapitalized. Plaintiff points out that Best's 1981 federal tax return shows capital of $200.00, while gross receipts for the year totalled over $1,200,000.00, and that the tax return showed a loss, yet the corporation paid Blessing over $100,000.00 in salary for the year. Plaintiff reasons that these facts demonstrate that Best was undercapitalized and support the trial judge's finding that Blessing was the corporation's "alter ego."
The law specifically authorizes the establishment of a corporation by a sole stockholder and individuals are specifically authorized to assume only limited liability by setting up a minimally capitalized corporation. Cahn Elec. Appliance Co., Inc. v. Harper, supra; Abraham v. Lake Forest, Inc., 377 So.2d 465 (La.App. 4th Cir.1979), writs denied 380 So.2d 99, 100 (La.1980). Furthermore, Best stock had no par value, which is permissible under LSA-R.S. 12:61(A), and the consideration received upon initial issuance of these shares was apparently allocated to stated capital[8].
Plaintiff had the heavy burden of producing clear and convincing evidence to show that Blessing was the "alter ego" of Best. The factors cited by plaintiff are not frequent, serious, or exceptional so as to warrant piercing the corporate veil to hold Blessing liable on Best's contract with plaintiff. Cf. Hight Enterprises v. Smith and Johnson, 421 So.2d 267 (La.App. 4th Cir.1982), writ denied 427 So.2d 1206 (La. 1983).
The totality of facts in the instant case does not support a finding that the corporation had ceased to exist as an entity, separate and distinct from its sole shareholder. Although Blessing, in his testimony, exhibited limited, if not incorrect, knowledge of the intricacies of his corporation, the evidence clearly establishes that Best operated as a legal entity distinct from its shareholder, Blessing. Best had been an active sales company for almost two years with a recognizable identity, although the contract in the instant case was Best's first attempt at construction. In fact, it is evident from the record that plaintiff was familiar with Best and never doubted he was dealing with the corporation and not Blessing personally. Further, the corporation and Blessing maintained separate bank accounts. Transactions between the corporation and Blessing were documented so as to maintain the separate *1317 identity of the funds. Board meetings were conducted, one in fact specifically for obtaining authority by board resolution to enter into the construction contract with plaintiff. The totality of facts pointed out by plaintiff fails to justify the contravention of the rule of shareholder non-liability for corporation debts, and the trial judge erred in "piercing the corporate veil" and in holding Blessing solidarily liable with Best for the debt.
CONCLUSION
For the above reasons, the judgment of the trial court is affirmed, except that portion of the judgment casting Jerry A. Blessing liable solidarily with Best, which is reversed. Costs of this appeal are to be equally divided between plaintiff and defendant Best.
AFFIRMED IN PART; REVERSED IN PART.
NOTES
[1] Although the plans and specifications were paraphed with the contract, they were not made a part of the record.
[2] The contract provides in pertinent part as follows:
1. Contractor does hereby agree with Owner to erect and finish, in accordance with the conditions set forth, in a perfect and workmanlike manner, and to deliver to owner, free from all claims or liens, a commercial building, on the property belonging to Owner, and being more particularly described as follows:
[property description omitted]
2. Said work is to be done in strict accordance with the draings (sic) and specifications which I, Notary, have paraphed for identification with this contract and which shall be correlative, without any change whatsoever, it being understood that the terms and conditions of this contract shall prevail should there be any conflict between it and the specifications or other documentation.
3. No new work of any description, or any work of any kind whatsoever shall be considered as extra, unless a separate estimate in writing for the same shall have been submitted by contractor before its commencement and the consent of the owner obtained thereto in writing.
4. Contractor is to furnish all labor, tools, equipment, materials, appliances, scaffolding, and cartage of every description necessary to do said work, which shall commence on or about November 30, 1981, and deliver the work free from all liens and all claims for labor and material, in perfect repair, broom clean and in good condition and complete on or before December 31, 1981.
5. In the event contractor fails to deliver completed structure, as set forth above, Contractor agreed to pay to Owner the amount of $6,000.00, as stipulated damages, in addition to the amount of $200.00 per day until completion of said structure and acceptance by owner thereof.
6. All of said work to be performed for the price and sum of $60,000.00.... (Emphasis added)
[3] LSA-C.C. art. 435 provides:
Corporations are intellectual beings, different and distinct from all the persons who compose them.
[4] LSA-C.C. art. 436 provides:
The estate and rights of a corporation belong so completely to the body, that none of the individuals who compose it, can dispose of any part of them.
In this respect the thing belonging to a body, is very different from a thing which is common to several individuals, as respects the share which every one has in the partnership which exists between them.
[5] LSA-C.C. art. 437 provides:
According to the above rule, what is due to a corporation is not due to any of the individuals who compose it, and vice versa.
A creditor of a corporation can not therefore compel any of the members thereof to pay what may be due to him by the corporation; he can demand his payment of the corporation only, through their president, syndic or attorney in fact, and he can seize no other effects but such as belong to the corporation, provided the debt has been contracted by the corporation through their president, syndic, or attorney in fact; for if all the individuals who compose the corporation have signed the deed personally, every one of them may be compelled to make payment, either for his individual portion or in solidum, when it has been stipulated expressly that the debt was contracted in solidum.
[6] In his testimony, Blessing denied that there were any loans made to him, but the documents introduced into evidence clearly show that the questioned funds had been a loan to Blessing by the corporation.
[7] In his testimony, Blessing testified he was unaware of any meeting of the board of directors subsequent to the inception of the corporation. However, an excerpt from the minutes of the board of directors dated November, 1981, clearly demonstrates that the corporation's governing body acted to give Blessing authority to contract, on behalf of the corporation, with Harris.
[8] Although Blessing testified at trial that the capitalization was $10,000.00 and that he and his wife each owned 5,000 shares, the documents of record clearly demonstrate that the stated capital was $100.00 and that Blessing only received 100 shares. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/701009/ | 61 F.3d 908
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Bobby F. McREYNOLDS, Appellant,v.Ray HOBBS, Warden, Wrightsville Unit, Arkansas Department ofCorrection; Grant Harris, Assistant Warden, WrightsvilleUnit, Arkansas Department of Correction; Gallion Lay,Major, Wrightsville Unit, Arkansas Department of Correction;K.E. Luckett, Lt., Wrightsville Unit, Arkansas Departmentof Correction; Brook Parks, Classification Officer,Wrightsville Unit, Arkansas Department of Correction; R.McCallister, originally sued as R. McAlester, Appellees.
No. 94-3435.
United States Court of Appeals,Eighth Circuit.
Submitted: July 3, 1995.Filed: July 24, 1995.
Before FAGG, MAGILL, and BEAM, Circuit Judges.
PER CURIAM.
1
Arkansas inmate Bobby McReynolds brought this 42 U.S.C. Sec. 1983 complaint against prison officials at the Wrightsville Unit of the Arkansas Department of Correction, alleging they forced him to work on the hoe squad with an injured hand resulting in a permanent disabling injury. After taking testimony at an evidentiary hearing, the district court found the prison officials acted in accordance with instructions from the infirmary and their established procedure and did not knowingly endanger McReynolds's health. Based on our review of the record, we conclude these findings are not clearly erroneous. Having reviewed the issue de novo, we also agree with the district court that McReynolds did not establish an Eighth Amendment violation. See Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994) (prison official cannot be held liable for Eighth Amendment violation unless official knows of and disregards excessive risk of serious harm to inmate's health or safety); Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir.1993) (prison officials violate Eighth Amendment when they knowingly compel inmate to perform physical labor that is beyond inmate's strength, endangers inmate's health, or is unduly painful).
2
We reject McReynolds's argument that the district court abused its discretion in denying his request for appointment of counsel. The complaint and McReynolds's discovery requests, among other things, show he was able to present his claim and investigate the facts, and the issues were not complex. See Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir.1991), cert. denied, 504 U.S. 930 (1992). Finally, McReynolds's complaint that the district court refused to admit into evidence certain inmate affidavits fails, because McReynolds cannot show the hearsay statements in the affidavits would have changed the result of this case.
3
Accordingly, we affirm. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1877014/ | 247 S.W.3d 588 (2008)
Denise D. LEACHMAN, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 90223.
Missouri Court of Appeals, Eastern District, Division Four.
March 18, 2008.
Lisa M. Stroup, Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Cory Lee Atkins, Assistant Attorney General, Jefferson City, MO, for respondent.
Before MARY K. HOFF, P.J., and SHERRI B. SULLIVAN, J., and GEORGE W. DRAPER III, J.
ORDER
PER CURIAM.
Denise D. Leachman (Movant) appeals from the motion court's judgment denying her Rule 24.035 motion for post-conviction relief (motion) without an evidentiary hearing. Movant pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), to: one count of kidnapping, in violation of Section 565.110; three counts of first-degree robbery, in violation of Section 569.020; one count of second-degree assault, in violation of Section 565.060; one count of stealing frbm a person, in violation of Section 570.030; and five counts of armed criminal *589 action, in violation of Section 571.015.[1] The trial court found Movant was a prior and persistent offender and sentenced her to a total term of 25 years. Movant thereafter filed her motion, pursuant to Rule 24.035, alleging ineffective assistance of her plea counsel. The motion court issued findings of fact and conclusions of law denying the motion.
We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. The motion court's findings of fact and conclusions of law are not clearly erroneous. Rule 24.035(k). An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).
NOTES
[1] All statutory references are to RSMo 2000, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3100418/ | /s
Fourth Court of Appeals
San Antonio, Texas
June 13, 2014
No. 04-13-00704-CV
BILL MILLER BAR-B-Q ENTERPRISES LTD.,
Appellant
v.
Faith H. GONZALES,
Appellee
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 361586
Honorable Tina Torres, Judge Presiding
ORDER
On May 28, 2014, this court rendered an order stating that oral argument would not
significantly aid the court in its determination of the issues, and therefore, this appeal would be
submitted on briefs on July 8, 2014. In the order we noted that either party was entitled to file a
motion to reconsider the court’s determination regarding oral argument.
On June 6, 2014, appellant filed a motion to reconsider, asking this court to permit oral
argument. On June 12, 2014, appellee filed a motion opposing appellant’s motion to reconsider,
asking this court to deny appellant’s motion and stand by its original decision to submit the
appeal on briefs. After considering the motion and the response, we GRANT the motion to
reconsider and ORDER the appeal to be submitted on oral argument. However, the appeal will
not be submitted or argued on July 8, 2014, the date set out in our May 28, 2014 order. Rather,
we ORDER the submission date of July 8, 2014, withdrawn. This appeal will be submitted on
oral argument at a date and time to be determined by this court. The parties will be notified
when the court determines the date and time of submission and oral argument.
It is so ORDERED on June 13, 2014.
PER CURIAM
ATTESTED TO: ___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2446547/ | 4 A.3d 692 (2010)
IN RE J.S.C.
No. 2634 EDA 2009.
Superior Court of Pennsylvania.
June 18, 2010.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610406/ | 59 Cal.2d 276 (1963)
379 P.2d 481
29 Cal. Rptr. 1
JOE WOLLAM, Individually and on Behalf of the Members of CULINARY WORKERS AND BARTENDERS UNION, LOCAL 535, Plaintiff and Respondent,
v.
CITY OF PALM SPRINGS et al., Defendants and Appellants.
Docket No. L.A. 26854.
Supreme Court of California. In Bank.
March 12, 1963.
*278 Jerome J. Bunker, City Attorney, for Defendants and Appellants.
Lionel Richman, Lewis Garrett and Herbert M. Ansell for Plaintiff and Respondent.
TOBRINER, J.
[1] While an ordinance may properly regulate the use of sound trucks if narrowly drawn to avoid specific evils, such as raucous noise or traffic congestion, an ordinance which indiscriminately sweeps within its ambit an inhibition of the communication of a message invades the right of free speech. Because, as we shall show, the instant ordinance falls within the latter category, it cannot stand.
On August 27, 1958, the City Council of Palm Springs enacted Ordinance No. 395, adding chapter 44 to the city's ordinance code. The ordinance governs the use of sound trucks; it consists of five articles, each article incorporating numerous provisions. Article 440 contains definitions applicable throughout the chapter; article 441 governs registration of trucks for commercial use; article 442 covers trucks for noncommercial use; article 443 sets up regulations pertaining to the use of both commercial and noncommercial trucks; and article 444 provides penalties and a provision for separability.
Both the commercial and noncommercial user must file a registration statement with the chief of police containing specified information, including the name of the owner and user of the truck, the wattage and volume of the equipment of the truck, and the distance for which sound will be thrown from the truck. The registration statement, after being certified by the chief of police and returned to the applicant, apparently serves as a license for use. The chief of police "shall not return to the applicant a certified copy of the Registration Statement," if he finds, among other matters, that the conditions of pedestrian movement are such that the sound truck "would constitute a detriment to traffic safety" or if the application reveals that the applicant would violate the regulations prescribed in article 443.
Article 443 restricts the hours of use to four specified hours a day, totally forbidding utilization on Sundays and holidays; it prohibits the operation of sound trucks unless the truck *279 proceeds at a speed of at least ten miles per hour;[1] it requires that the volume of sound be controlled so that it will not be audible in excess of 200 feet from the truck, not be unreasonably loud, raucous, jarring, disturbing, and not be a nuisance to persons within the area of audibility;[2] it limits the equipment usable to that having a maximum output of 15 watts, and it includes other provisions not presently pertinent.
Plaintiff Wollam brought this action on behalf of himself and the members of the Culinary Workers and Bartenders Union, Local 535, attacking the ordinance as unconstitutional. The trial court upheld this contention upon the ground that the ordinance unconstitutionally sought to prevent stationary use of sound trucks.
The stipulated facts recite that "As part of its campaign to make known to members of the public the existence of payment of substandard wages by certain employers and the existence of substandard working conditions ... plaintiffs have from time to time adopted various means of peaceful publication. These have included, among other things, the use of sound amplification equipment containing only human speech and containing a statement of grievances of employees. Said sound amplification equipment has been placed in an automobile which has been parked at the curb during the time said sound amplification equipment is in use." The stipulation further states that plaintiff desires to use only stationary sound trucks, and that defendants will enforce the ordinance and arrest any violators.[3]
The sole issue before this court relates to the constitutional *280 validity of section 4430.3 which the trial court concluded to be invalid "insofar as it applies to the dissemination of information from motor vehicles lawfully parked by requiring said motor vehicles to be ambulatory." To resolve the stated problem we must answer two questions. First, does the freedom of speech guaranteed by the First Amendment, which admittedly applies to the content of the communication, extend, as well, to the means of communication? More particularly, does it include sound trucks? Second, if so, does the section in question exceed the permissible range of regulation so as to impinge on constitutionally guaranteed rights? For the reasons hereinafter set out we believe that both of these questions should be answered affirmatively.
We turn first to the question of whether the protection of free speech as incorporated into the Fourteenth Amendment[4] extends to the use of a sound truck as a means of dissemination of opinion. Our problem here emanates primarily from two decisions of the United States Supreme Court rendered within a half year of one another. Reconciliation of the results reached in these two cases has caused difficulty to the commentators[5] and to this court.[6]
In the first of these cases, Saia v. New York (1948) 334 U.S. 558 [68 S.Ct. 1148, 92 L.Ed. 1574], the court declared unconstitutional an ordinance of the City of Lockport, New York, which prohibited the use of sound amplifying equipment unless authorized by the chief of police. Saia, a Jehovah's Witness, suffered conviction for violation of the ordinance in setting up a loud speaker in a public park and broadcasting religious programs without obtaining a permit from the chief of police.
Justice Douglas, speaking for the majority of the United States Supreme Court, held that the use of this means of communication fell within the protection of free speech of the First Amendment and that the ordinance failed. Instead of narrowly and specifically prohibiting the abuses that precipitated the ordinance, it granted a general discretion to the chief of police which could be applied in an area wide of the mark. The court explained, "The statute is not narrowly *281 drawn to regulate the hours or places of use of loudspeakers, or the volume of sound (the decibels) to which they must be adjusted.... The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal. A more effective previous restraint is difficult to imagine.... Loudspeakers are today indispensable instruments of effective public speech. The sound truck has become an accepted method of political campaigning. It is the way people are reached...."
Indicating that narrowly drawn regulation of sound trucks would be permissible, although prohibition in the uncontrolled discretion of the chief of police would fail, Justice Douglas stated, "The present ordinance would be a dangerous weapon if it were allowed to get a hold on our public life. Noise can be regulated by regulating decibels. The hours and place of public discussion can be controlled. But to allow the police to bar the use of loud-speakers because their use can be abused is like barring radio receivers because they too make a noise.... Any abuses which loud-speakers create can be controlled by narrowly drawn statutes. When a city allows an official to ban them in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas...." (Pp. 560-562; italics added.)
Justice Frankfurter, with Justices Reed and Burton concurring, dissented upon the basis that "the limitations by New York upon the exercise of appellant's rights of utterance did not ... exceed the accommodation between the conflicting interests which the State was here entitled to make in view of the time and place and circumstances." (At p. 566; italics added.) Justice Jackson, alone of the members of the court, held that the regulation did not involve the issue of free speech.
In the second case to which we alluded, supra, Kovacs v. Cooper (1949) 336 U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608], the Supreme Court sustained a conviction under an ordinance of the City of Trenton, New Jersey, which read: "That it shall be unlawful for any person ... to ... operate ... for any ... purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton, any device known as a sound truck, loud speaker or sound amplifier ... which emits therefrom loud and raucous noises and is attached to and upon any vehicle operated or standing *282 upon said streets or public places aforementioned." (P. 78; italics added.)
Chief Justice Vinson and Justice Burton joined with Justice Reed, who announced the opinion of the court. While the decision construed and upheld the ordinance as a limited prohibition of equipment emitting "loud and raucous noises," it did not sustain the power of the state absolutely to prohibit the use of sound trucks. In fact, Justice Reed stated: "Absolute prohibition within municipal limits of all sound amplification, even though reasonably regulated in place, time and volume, is undesirable and probably unconstitutional as an unreasonable interference with normal activities." (At p. 82.) The court sustained the Trenton ordinance as a reasonable legislative regulation, saying, "City streets are recognized as a normal place for the exchange of ideas by speech or paper. But this does not mean the freedom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities." (P. 87; italics added.)
Justices Frankfurter and Jackson in separate opinions concurred with the majority for the same reasons which prompted them to dissent in Saia. Justice Murphy dissented without opinion.
In an opinion in which Justices Douglas and Rutledge concurred, Justice Black also dissented. The basic thrust of Justice Black's opinion indicated that the court's limitation of the ordinance to equipment emitting loud and raucous noises lacked support; that the defendant had not been charged or convicted with such a limited offense, and that the record did not show that the noise emitted was "loud or raucous." Further, he pointed out that the State Supreme Court in its decision had not so limited the offense. On this basis, Justice Black concluded that the ordinance constituted an absolute prohibition and fell within the dictates of Saia. In a separate opinion Justice Rutledge stated that, aside from questions of free speech, the ordinance, as indicated by the differing interpretations of the Supreme Court, should be invalidated as too vague to constitute due process.
We believe that the Saia and Kovacs decisions are, in essence, reconcilable, and indicate two essential propositions. The first of these, implicit in Saia, recognizes that the use of a sound truck as an effective means of human communication falls within the constitutional guarantee of freedom of speech. *283 The second position, intimated in Saia and made explicit in Kovacs, specifies that this means of communication may be controlled by state and local governments to "prohibit acts or things reasonably thought to bring evil or harm to its people." (P. 83.) There Justice Reed stated the ordinance "is an exercise of the authority granted to the city by New Jersey `to prevent disturbing noises,' N.J. Stat. Ann., tit. 40, § 48-1(8), nuisances well within the municipality's power to control. The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community." (P. 83.) As one commentator on Kovacs concluded: "... the Kovacs decision, while displaying internal confusion, has left the fundamental rights of sound truck use essentially unchanged: municipalities may impose reasonable regulations as to place, time, and volume, but still may not absolutely ban sound trucks nor subject them without adequate standards, to previous restraints that may allow possible censorship." (62 Harv. L. Rev. 1228, 1229; see also 47 Mich. L. Rev. 1007; 14 Mo. L. Rev. 194; 2 U.C.L.A.L. Rev. 561; 34 Cornell L.Q. 626; but see 22 So.Cal.L. Rev. 416; 97 U. Pa. L. Rev. 730.)[7]
Our decision in Haggerty v. Associated Farmers of Calif. (1955) 44 Cal.2d 60 [279 P.2d 734], followed the lines marked out in Saia and Kovacs. There we held that the ordinance fell within the proper exercise of the police power to protect the public from the specific abuse of the loud speaker; the ordinance "makes unlawful the emission or transmission of `any loud and raucous noise upon or from any public highway or public thoroughfare or from any aircraft of any kind whatsoever.'" (P. 62.) The enactment carefully defines raucous noise in order to prevent the "aural aggression" to which Justice Frankfurter alluded in Kovacs. Our opinion quotes the following statement in Kovacs: "We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities." (P. 67.) The court concludes, "The county, in the exercise of the police power of the state, has a legitimate interest in the *284 preservation of the safety and tranquility of its citizens. It cannot be said that the present ordinance is not reasonably directed to that end." (P. 70.)
[2, 3] The rule of these cases that the sound truck falls within the constitutional protection of free speech and that it is subject to the specific regulation of its ill effects rests upon the realities of the modern role of such trucks and the necessity for reasonable curtailment of the excessive use of their sound mechanism.
In certain instances the sound truck may be the only practical means for communication of opinion; alternative modes of communication, such as radio or television, may be prohibitively expensive, not available, or not effective. [4] In the instant case the union seeks to inform the public at the job site of its disagreement with the employer. An exposition of the union's position in a dispute may in certain cases be best conveyed by a prepared communication, carefully scrutinized, rather than by the extemporaneous and often inarticulate utterances of a picket. The loss of the loud speaker thus becomes a curtailment of the recognized right of the union to publicize effectively its cause at the job site. (See McKay v. Retail Auto. S.L. Union No. 1067 (1940) 16 Cal.2d 311 [106 P.2d 373]; Thornhill v. Alabama (1940) 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093].)
[5] The right of free speech necessarily embodies the means used for its dissemination because the right is worthless in the absence of a meaningful method of its expression. To take the position that the right of free speech consists merely of the right to be free from censorship of the content rather than any protection of the means used, would, if carried to its logical conclusion, eliminate the right entirely. [6] The right to speak freely must encompass inherently the right to communicate. The right to speak one's views aloud, restricted by the ban that prevented anyone from listening, would frame a hollow right. Rather, freedom of speech entails communication; it contemplates effective communication.
[7] On the other hand the selection of the means of communication and the use of such means is not limitless. The municipality may issue reasonable and necessary regulations as to such matters. But the right to regulate does not necessarily sanction the outright prohibition. [8] The municipality cannot justify the prohibition of sound trucks upon the ground that the municipality cannot otherwise avoid loud and raucous noise. [9] The municipality in the proper exercise *285 of its police power may prescribe volume limitations. [10] Thus the proper test of regulation by a municipality in this area turns upon whether the regulation is a reasonable and necessary one. A measure unnecessary for police purposes should not serve as the justification for an abridgement of the fundamental freedom of free speech.
We therefore turn to the second question which we proposed above: whether the city has exceeded the permissible range of regulation so as to impinge on constitutionally guaranteed rights. We must determine whether section 4430.3[8] is a necessary regulation governing the use of this means of communication.
Section 4430.3 primarily aims to control traffic. The provision is drawn from a model ordinance recommended by the National Institute of Municipal Law Officers in their Report No. 123 (1948) entitled, "Municipal Control of Noise Sound Trucks Sound Advertising Aircraft Unnecessary Noises Model Annotated Ordinances." The report partly sets out the basis for the provision requiring sound trucks to be ambulatory. "This suggested regulation is designed to prevent the operator of a sound truck from blaring forth his message continuously from one spot as it is generally conceded that continuous noise is more than likely to result in injury to nerves, health, annoyance, disturbance and nuisance.... Also, and primarily, if the truck keeps moving, it will not cause crowds to collect about it with the usual attendant traffic congestion and resultant hazards.... The requirement of a speed of at least ten miles per hour for sound trucks prevents intentional traffic congestion as well as the evils already referred to. It seems well established that more people will be killed or injured where streets are crowded by pedestrians and motorists with some, or both, wanting to move on and some wanting to listen to the sound truck. If the sound truck keeps moving pedestrians cannot crowd around it and get hit by passing cars...."
Although the ordinance thus proposes to prevent traffic congestion by the requirement that the sound trucks keep moving, its inevitable result must virtually prohibit the effective use of the truck for any complete message or communication. Its mechanized voice must necessarily be restricted to a short blurb, as the truck, with controlled volume, *286 rolls past. Any address of sustained reason becomes impossible.
Section 4430.3 covers a larger area than the excision of the evils to which it was directed. Its reach is not limited to the prohibition of a sound truck which impedes the flow of pedestrian and vehicular traffic or which creates a dangerous traffic situation. Rather it sets up a blanket prohibition against the use of a stationary sound truck. The provision fails because, assuming its valid police purpose, it proceeds beyond that which is necessary. Because of its breadth it restrains both improper and proper communication; it exceeds its justification.
To the extent that section 4430.3 seeks to prevent prolonged distraction and annoyance by operation of the truck in one spot, the identical purpose is achieved by section 4430.7.[9] That section imposes volume limitation and requires that the sound be so controlled that it will not be "disturbing or a nuisance to persons within the area of audibility."
Nor is the prohibition of the stationary sound truck necessary for the prevention of traffic hazards. Assuming for the purpose of determining this issue that the ordinance sets up proper standards for the action of the chief of police, the ordinance contains another provision to prevent this undesired consequence. The chief "shall not" issue a license if he finds the sound truck "would constitute a detriment to traffic safety." (§ 4412.2)
[11] The Supreme Court of the United States has recently reiterated the principle that an unnecessarily wide embrace of a statute, entailing the curtailment of constitutional freedoms, cannot be justified by the sanctity of its purposes. Thus in Shelton v. Tucker (1960) 364 U.S. 479 [81 S.Ct. 247, 5 L.Ed.2d 231], the Supreme Court declared unconstitutional an Arkansas statute requiring every teacher as a condition of employment in a state-supported school or college, to file annually an affidavit listing without limitation every organization to which he had belonged or regularly contributed in the preceding five years. In describing the impropriety of exceeding the bounds of legitimate inquiry, Justice Stewart said, "In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that *287 broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of the legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose." (P. 488; italics added.)
Justice Stewart set out a number of prior decisions which illustrate this approach. These cases are relevant to the present case. "In Lovell v. Griffin, 303 U.S. 444 [58 S.Ct. 666, 82 L.Ed. 949], the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. State, 308 U.S. 147 [60 S.Ct. 146, 84 L.Ed. 155], the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the Court noted that where legislative abridgment of `fundamental personal rights and liberties' is asserted, `the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but may be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.' 308 U.S., at 161. In Cantwell v. Connecticut, 310 U.S. 296 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352], the Court said that `[c]onduct remains subject to regulation for the protection of society,' but pointed out that in each case `the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' 310 U.S. at 304." (See also: Cramp v. Board of Public Instruction (1961) 368 U.S. 278 [82 S.Ct. 275, 7 L.Ed.2d 285]; Louisiana ex rel. Gremillion v. National Assn. for Advancement of Colored People (1961) 366 U.S. 293 [81 S.Ct. 1333, 6 L.Ed.2d 301]; Smith v. California (1959) 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205]; Winters v. New York (1948) 333 U.S. 507 [68 S.Ct. 665, 92 L.Ed. 840]; Thornhill v. Alabama (1940) 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093].)
[12] In the instant case the obstruction to the use of the sound truck to convey a complete message is absolute. As we have pointed out, this prohibition of the use of the stationary sound truck is not necessary in order to avoid traffic hazards because the ordinance provides other means for so doing. Nor *288 does the ordinance specifically direct itself to the elimination of loud and raucous noise; instead, it prohibits the dissemination of an address by means of the truck which is not loud or raucous. The regulation, which narrows down to loud and raucous, upheld in Haggerty, embraces all sounds here. The volume of sound which could properly be prohibited in the narrow channel of loud and raucous is no narrow channel here. It is the volume of sound which, like water, may be distributed over wide lands, shallow in depth and slight in impact.
In summary, the vice of the present ordinance lies in its practical prohibition of the conveyance of a message to the public. The ordinance prevents any continuous statement, argument, or sustained presentation of a point of view that cannot be transmitted during the truck's fleeting, momentary passage. Yet the purposes of the ordinance could have been achieved without such an incursion into the field of free speech. An ordinance narrowly drawn may properly reach to the evils which it seeks to avoid. Instead, here, the ordinance sweeps within its broad ambit the constitutional right to tell a whole story by means of this method of communication.
For this reason, we hold that section 4430.3 of the Ordinance Code of the City of Palm Springs is unconstitutional. The judgment is affirmed.
Gibson, C.J., Traynor, J., Peters, J., and Peek, J., concurred.
McCOMB, J.
I dissent. I would reverse the judgment for the reasons expressed by Mr. Justice Shepard, and concurred in by Mr. Presiding Justice Griffin and Mr. Justice Coughlin, in the opinion prepared for the District Court of Appeal in Wollam v. City of Palm Springs (Cal. App.) 24 Cal. Rptr. 142.
The principal question here involved is the constitutionality of section 4430.3 of article 443 of Ordinance No. 395 enacted by the City Council of Palm Springs. A majority of this court holds that the above mentioned section is unconstitutional because it abridges the freedom of speech guaranteed by the First Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment.
Section 4430.3 of the ordinance provides that sound amplifying equipment shall not be operated unless the truck upon *289 which it is mounted is operated at a speed of at least ten miles an hour except when the truck is stopped because of traffic conditions.
As set forth in the majority opinion, the ordinance was based upon a model recommended by the National Institute of Municipal Law Officers. That body, in its report, stated that the reason for the regulation was to prevent the operator of a sound truck from blaring forth a message from one spot because continuous noise was more likely to result in injury to nerves, health, disturbances and nuisances, as well as to cause traffic congestion with resulting injuries and fatalities.
It is obvious from the wording of the report that traffic control was not the only reason for the model ordinance. A stationary truck blaring forth its message is very much of a traffic hazard because of the natural inclination of motorists to look for the source of the sound and away from preceding or oncoming traffic. It is also a problem insofar as pedestrians are concerned because of the natural curiosity of idle persons to gather and obstruct public sidewalks and streets.
In considering the constitutional validity of the ordinance, I agree with the rule set forth by Mr. Chief Justice Gibson, speaking for a majority of this court in In re Petersen, 51 Cal.2d 177, 182 [7] [331 P.2d 24], that "Ordinances are presumed to be valid, and no provision of the challenged ordinance may be condemned as an improper exercise of the police power if any rational ground exists for its enactment. (Hart v. City of Beverly Hills, 11 Cal.2d 343, 348 [79 P.2d 1080]; Parker v. Colburn, 196 Cal. 169, 178 [236 P. 921].)" (Italics added.) (Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, 496 [9] [20 Cal. Rptr. 621, 370 P.2d 325]; Dittus v. Cranston, 53 Cal.2d 284, 286 [1] [1 Cal. Rptr. 327, 347 P.2d 671]; Johnson v. Superior Court, 50 Cal.2d 693, 696 [1], 699 [7] [329 P.2d 5]; Lundberg v. County of Alameda, 46 Cal.2d 644, 652 [10] [298 P.2d 1]; Jersey Maid Milk Products Co. v. Brock, 13 Cal.2d 620, 636 [1] [91 P.2d 577].)
Cities and counties everywhere are seeking a solution to the difficult problem of regulating sound trucks so as not to unreasonably interfere with freedom of speech and at the same time safeguard others in the enjoyment of their private property and the public highways.
Our court, in upholding a county antinoise ordinance in Haggerty v. Associated Farmers of Cal., 44 Cal.2d 60, 70 [2] [279 P.2d 734], said: "The county, in the exercise of the *290 police power of the state, has a legitimate interest in the preservation of the safety and tranquility of its citizens. It cannot be said that the present ordinance is not reasonably directed to that end."
The leading United States Supreme Court cases are Saia v. New York (1948) 334 U.S. 558 [68 S.Ct. 1148, 92 L.Ed. 1574], and Kovacs v. Cooper (1949) 336 U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608]. In Saia, the court held unconstitutional a city ordinance which forbade the use of loud speakers in public places without first obtaining a permit from the chief of police. The ordinance was held to abridge the guarantee of freedom of speech, not because it forbade oral expression of views via loud speaker, but because it established a prior restraint, without any standards prescribed for the exercise of discretion by the chief of police. Such prior restraint, the court held, might have passed the tests of constitutionality had the ordinance been "narrowly drawn to regulate the hours and places of use of loud-speakers, or the volume of sound (the decibels) to which they must be adjusted." (P. 560.)
In Kovacs, an ordinance which forbade the use or operation on the public streets of a sound truck, or of any instrument emitting loud and raucous noises attached to a vehicle, on public streets was held not to infringe the right of free speech. Mr. Justice Reed, who announced the judgment of the court, said: "The use of sound trucks and other peripatetic or stationary broadcasting devices for advertising, for religious exercises and for discussion of issues or controversies has brought forth numerous municipal ordinances. The avowed and obvious purpose of these ordinances is to prohibit or minimize such sounds on or near the streets since some citizens find the noise objectionable and to some degree an interference with the business or social activities in which they are engaged or the quiet that they would like to enjoy. A satisfactory adjustment of the conflicting interests is difficult as those who desire to broadcast can hardly acquiesce in a requirement to modulate their sounds to a pitch that would not rise above other street noises nor would they deem a restriction to sparsely used localities or to hours after work and before sleep say 6 to 9 p.m. sufficient for the exercise of their claimed privilege.... Unrestrained use throughout a municipality of all sound amplifying devices would be intolerable." (336 U.S. at p. 81.) (Italics added.)
The opinion continued, at page 87: "City streets are recognized *291 as a normal place for the exchange of ideas by speech or paper. But this does not mean the freedom is beyond all control. We think it is a permissible exercise of legislative discretion to bar sound trucks with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of municipalities. On the business streets of cities ... such distractions would be dangerous to traffic at all hours useful for the dissemination of information, and in the residential thoroughfares the quiet and tranquility so desirable for city dwellers would likewise be at the mercy of advocates of particular religious, social or political persuasions. We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets."
Further, the court said in Kovacs: "All regulatory enactments are prohibitory so far as their restrictions are concerned, and the prohibition of this ordinance as to a use of streets is merely regulatory. Sound trucks may be utilized in places such as parks or other open spaces off the streets. The constitutionality of the challenged ordinance as violative of appellant's right of free speech does not depend upon so narrow an issue as to whether its provisions are cast in the words of prohibition or regulation. The question is whether or not there is a real abridgment of the rights of free speech.
"Of course, even the fundamental rights of the Bill of Rights are not absolute. The Saia case recognized that in this field by stating `The hours and place of public discussion can be controlled.'" (Pp. 85-86.)
The use of the two words "hours" and "places" implies that there may be an absolute prohibition at certain hours and at certain places. It does not mean that there must be permissible hours at every place.
The Palm Springs ordinance follows precisely the guide set forth in the Saia case. It is narrowly drawn to regulate the hours of use, the volume of sound, and the places of use. It does not permit any official, or official body, to control the use of loud speaking equipment in his, or its, uncontrolled discretion, and, therefore, it avoids the infirmity of the ordinance involved in the Saia case which, according to Mr. Justice Douglas, because it was not so narrowly drawn, sanctioned a "device for suppression of free communication of ideas."
In Commonwealth v. Geuss, 168 Pa. Super. 22 [76 A.2d 500], affirmed 368 Pa. 290 [81 A.2d 553], an ordinance was upheld that entirely prohibited the use of sound amplifying *292 devices on the busiest streets of Allentown, Pennyslvania. The United States Supreme Court dismissed the appeal for lack of a substantial federal question (342 U.S. 912), citing Kovacs v. Cooper, supra.
The Pennsylvania court, in addition to pointing out that the ordinance was valid as a safety measure, stated: "There is no absolute right of free speech with sound trucks or other amplifying devices on city streets, as urged upon us by appellants. The right is subject to curtailment on `busy streets in the business area.'
"If we were to uphold the contention of appellants it would be tantamount to ruling that a sound truck or other amplifying device may be added to each individual's right of freedom of speech. The result would indeed be intolerable. It is daily becoming more difficult for a person to concentrate on his work in a downtown office building because of the noises apparently necessary and incidental to the conduct of affairs in the life of a modern city. And if the councilmanic bodies of the municipalities are not to be permitted to prohibit the operation of sound trucks and the blare of this ultramodern means of communication on certain streets or in certain areas, then there will no longer be any authority lodged anywhere to safeguard ... `the steadily narrowing opportunities for serenity and reflection'; and we may add `the steadily narrowing opportunities' to keep the streets open and available for safe movement of people and property, the primary purpose to which streets are dedicated. [Citation.]" (76 A.2d at pp. 503-504.)
The Pennsylvania court then quoted the New Jersey Supreme Court when the Kovacs case was before it: "`The freedom to express one's opinions and to invite others to assemble to hear those opinions does not contain the right to compel others to listen. The means of expression through a sound amplifier is tantamount to compulsion. The booming voice of a speaker in crowded thoroughfares of the city forcibly attracts the attention of almost all within a wide area. That alleged right was never intended to be guaranteed by either [United States or New Jersey] Constitution,' nor, may we add, by the Constitution of Pennsylvania." (76 A.2d at p. 504.)
The majority of our court states that the city's requirement to keep sound trucks moving is unnecessary as a safety measure because another section of the ordinance provides that the police department shall not issue a license if it finds that the *293 sound truck would be a detriment to traffic safety, but, as has been pointed out above, traffic safety is not the only area in which police power may be exercised. In Kovacs, the United States Supreme Court said: "The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community." (336 U.S. at p. 83.)
The majority concludes that "the vice of the present ordinance lies in its practical prohibition of the conveyance of a message to the public," and "... the ordinance sweeps within its broad ambit the constitutional right to tell a whole story by means of this method of communication."
Mr. Justice Peters, in a recent unanimous opinion of this court, American Civil Liberties Union v. Board of Education, ante, pp. 203, 220 [28 Cal. Rptr. 700, 378 P.2d 980] said: "In the final analysis, the determination that a particular statute is or is not too broad in the constitutional sense turns not so much on its language as upon its effect. A statute may be phrased in words that are `broad,' in that they convey general rather than specific concepts, and yet be the means of stating a regulation that is narrow and limited in its application. (See for example the two ordinances involved in Saia v. New York, 334 U.S. 558 [68 S.Ct. 1148, 92 L.Ed. 1574], and Kovacs v. Cooper, 336 U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513, 10 A.L.R.2d 608].)"
The effect of the ordinance may be to prohibit plaintiff from conveying a sustained message, but the ordinance is not the sole cause thereof. The same effect may occur in a variety of ways, e.g., a motorist or pedestrian passing a stationary truck would also receive an incomplete message; and even a willing listener cannot be compelled to hear a message from beginning to end. Furthermore, the mere belief as to the precise way in which plaintiff's speech will bring about the best results does not justify invalidating the ordinance. "Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved." (Breard v. Alexandria, 341 U.S. 622, 642 [71 S.Ct. 920, 95 L.Ed. 1233, 35 A.L.R.2d 335].)
The effect sought by plaintiff, i.e., a guarantee that a complete message be conveyed, can only be achieved if it is granted an exclusive permit. If others are permitted the same freedom at the same time and place, each sound truck *294 will necessarily interfere with the other so that none of the messages will be coherent, and the clamor from several megaphones will be unbearable.
The majority of this court overlooks the crucial fact that when plaintiff asserts a right to remain parked at the curb at the site of the trade dispute, it is not claiming or making a public use of the street in common with all other members of the public, but is claiming an absolute and exclusionary right to appropriate a particular segment of the street for its private and exclusive use.
It is fundamental that the basic right of free speech guaranteed by the Constitution belongs equally to everyone, and the effect, if the majority opinion is followed to its logical conclusion, is that confusion and disorder would prevail on the streets of Palm Springs. The striking employees could park their sound truck in front of their employer's place of business and proceed to blast forth their message in loud tones, while the employer could park a sound truck of his own in front of his place of business and blast forth his message in equally loud tones, with the result that a chaotic condition would be created which the innocent citizens and peace officers would be powerless to alleviate. Such a condition in a civilized state would be intolerable.
That such a situation was never intended to be sanctioned by the guarantee of free speech was pronounced in Cantwell v. Connecticut, 310 U.S. 296, 308 [60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352]: "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious."
Since the ordinance in the present case bears a substantial relation to the health, safety and general welfare of the public as a whole and is not arbitrary, unreasonable or capricious, thus constituting a denial of due process under the Fourteenth Amendment to the United States Constitution, it is a valid exercise of the police power of the city, and it does not unreasonably interfere with plaintiff's right of free speech. Freedom of speech on the public streets is not prohibited; it is only the amplification of such speech by the means of stationary sound trucks at which the ordinance is aimed.
As Mr. Justice Shepard said in his opinion for the District Court of Appeal: "The exercise of any human right or privilege always recognizes the reasonable protection of the exercise of the same right in others and the welfare, health *295 and happiness of all.... We would be naive indeed if we ignored the common knowledge that loud speakers of sound trucks used on public streets have as their primary purpose the overriding of all ordinary traffic noise and sidewalk conversation so that the sound truck message will, by force of sound volume, demand attention." (Wollam v. City of Palm Springs, supra (Cal. App.) 24 Cal. Rptr. 142, 144-145.)
For each and all the reasons enunciated above, I would sustain the ordinance in its entirety.
Schauer, J., concurred.
NOTES
[1] Section 4430.3 of article 443 provides: "Sound amplifying equipment shall not be operated unless the sound truck upon which such equipment is mounted is operated at a speed of at least ten (10) miles per hour except when said truck is stopped or impeded by traffic. Where stopped by traffic, the sound amplifying equipment shall not be operated for longer than one (1) minute at each such stop."
[2] Section 4430.7 of article 443 reads: "The volume of sound shall be controlled so that it will not be audible for a distance in excess of two hundred feet (200') from the sound truck, and the volume of sound shall be so controlled that it will not be unreasonably loud, raucous, jarring, disturbing, or a nuisance to persons within the area of audibility."
[3] A previous ordinance of the City of Palm Springs which purported to regulate picketing was declared unconstitutional in Rees v. City of Palm Springs (1961) 188 Cal. App.2d 339 [10 Cal. Rptr. 386]. That ordinance in part rested upon "the necessity of preventing unreasonable obstruction on its streets." (P. 341.) The court pointed out, among other matters, that "when the regulation transcends the reasonable necessity of the circumstances ... the legislative pronouncement becomes invalid." (P. 344.)
[4] This inclusion is no longer open to question. See e.g., Smith v. California (1959) 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205].
[5] See 34 Cornell L.Q. 626; 62 Harv. L. Rev. 1228; 47 Mich. L. Rev. 1007; 14 Mo. L. Rev. 194; 22 So. Cal. L. Rev. 416; 2 U.C.L.A.L. Rev. 561; 97 U. Pa. L. Rev. 730.
[6] Haggerty v. Associated Farmers of California (1955) 44 Cal.2d 60 [279 P.2d 734].
[7] Two decisions have sustained absolute prohibitions of sound trucks since the decision in Kovacs. (Brinkman v. City of Gainesville (1951) 83 Ga. App. 508 [64 S.E.2d 344]; State ex rel. Nicholas v. Headley (1950, Fla.) 48 So.2d 80.) Both of these decisions, however, ignore the Saia decision.
[8] See footnote 1, supra.
[9] See footnote 2, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610410/ | 379 P.2d 672 (1963)
J. H. BECK, Plaintiff in Error,
v.
Evelyn Porterfield BECK, J. V. Vanderslice and Virginia Lee Vanderslice, Defendants in Error.
No. 39905.
Supreme Court of Oklahoma.
February 26, 1963.
Thomas E. Shaw, Madill, for plaintiff in error.
Welch & Dudley, Madill, for defendant in error Evelyn Porterfield Beck.
*673 BLACKBIRD, Chief Justice.
This is the second divorce action between plaintiff in error, hereinafter referred to merely as "Beck", and the defendant in error, Evelyn Porterfield Beck, hereinafter referred to merely as "Evelyn". When they first met and were married the same day, March 4, 1960, in his home city of Fort Worth, Texas, Beck was more than seventy years of age and Evelyn was in her early forties, with three minor children by a previous marriage, and living in Rush Springs, Oklahoma, where her parents, the defendants in error, J.V. Vanderslice and Virginia Vanderslice, resided.
About three months after their marriage, or in June, 1960, the couple purchased, for $8,000.00, a large lot with a small dwelling on it, on Caney Creek, in Marshall County, Oklahoma, near Lake Texoma. Their first divorce, on August 22nd of the same year, was obtained on Evelyn's petition alleging incompatibility. By the decree, Beck was awarded the home, determined to have been purchased with his separate funds, and she was awarded $500.00 in alimony, payable in 10 monthly installments. Slightly more than a week later, they signed a joint motion to set the decree aside. On September 9, 1960, Beck borrowed more than $900.00 on his Fort Worth home and gave Evelyn half of this money. (It appears likely that this enabled her to make the five-hundred dollar down payment on a 1957 Model Chevrolet she purchased for $800 or $850, and which auto Beck later traded in on a Ford Station Wagon, after paying the $300 or $350 balance due on its purchase price). The motion to set aside the couple's divorce decree was heard, and sustained, three days later on September 12, 1960.
On the latter date, Beck deeded the east half of the Caney Creek property to Evelyn, and they returned to their home there. Instead of occupying the home in the normal husband-wife manner, however, Beck slept on the screened porch and moved some of his personal belongings to a trailer house parked on the homesite. During the five or six weeks he slept on the porch, he caused certain structural modifications to be made on it that converted part of the porch into an additional room of the residence.
On October 7th, 1960, Evelyn executed and delivered to Mrs. Vanderslice a real estate mortgage on the part of the premises previously deeded to her, as aforesaid. According to its terms, said mortgage was given to secure payment of a five-thousand-dollar loan.
Consistent with the above-mentioned conveyance of the record title to Evelyn of that part of the lot on which the residence was located, Beck accompanied her to his insurance office on October 8, 1960, and, by an endorsement attached thereto, had the insurance policy on the residence changed from naming both of them as the "Insured" (as the policy was originally issued ir June) to naming only "Evelyn Beck" as the "Insured".
Thereafter, on January 24th, 1961, Evelyn applied, in her name only, for homestead exemption on the property.
Exactly one year after the couple first met and married, they again separated, Beck taking a few furnishings out of the *674 aforementioned trailer house, and moving into what he termed a two-room "shack", in Kingston, Oklahoma, where he was residing when this action was tried.
Six days later, or on March 10, 1961, the couple went together to the office of Mr. Beck's attorney, and, while there saw to the execution of two warranty deeds, designed to vest in Beck a life estate in a small parcel of the homesite 17 feet by 31 2/3 feet, under, and on three sides of, the aforementioned remodeled porch and bedroom combination. The deed that was executed by both of the parties granted Beck the privilege of using the bathroom facilities in the "adjoining" house. On the same date, before the same attorney as a Notary Public, Mrs. Vanderslice released her aforesaid mortgage as to that small portion of the premises. Also, on the same date, the west one-half of the larger tract (whose record title was still in Beck's name) was conveyed to Mr. and Mrs. Vanderslice by a joint tenancy deed executed by both Evelyn and Beck before the same attorney.
Thereafter, on April 3, 1961, according to Evelyn's testimony, she and Beck concluded another transaction in Beck's attorney's office in which she assigned to Beck the title to the 1958 Model Oldsmobile he had apparently owned when they were married, and she returned to him the wedding rings he had given her. In return, he executed and delivered to her a quit claim deed conveying back the small part of the premises in which, during the month before, she had conveyed to him the life estate, as aforesaid.
When Beck instituted the present divorce action against Evelyn, April 25, 1961, on the ground of extreme cruelty, he named the Vanderslices as additional defendants. His petition alleged, among other things in substance, that his joining Evelyn in having their previous divorce decree set aside, had been induced by her promise to co-habit with him in the usual and normal manner, but that she never intended, and subsequently refused, to carry out this promise, and that therefore the setting aside of the divorce had been induced by fraud perpetrated upon him by her; that his execution and delivery to her of the aforementioned deed to the east half of the Caney Creek property, on the same day he joined her in the motion to set aside the divorce decree, was not for the purpose of making her a gift of said property, but was done in consideration of her said promise to co-habit with him as a normal wife and, as she had refused to fulfill said promise, the deed was void for failure of consideration, and because procured by her said fraud.
As to the hereinbefore described mortgage from Evelyn to Mrs. Vanderslice, Beck's petition alleged that no consideration was paid for it, that it covered part of his homestead, but was executed without his knowledge or consent, and constituted a deliberate attempt to obstruct his regaining title to said property. Beck's petition further alleged that Evelyn had in her possession a 28-gauge Remington Automatic shotgun that was his exclusive property. Beck further alleged, in substance, that he was totally and permanently disabled, unable to earn a livelihood, and was without funds to support himself, or to prosecute the action, but that Evelyn was a young ablebodied woman capable of supporting him and financially able to pay his attorney's fees and the court costs. He prayed, among other things, that Evelyn be ordered to return to him the shot gun and to pay him $100.00 per month as alimony and support money. He further prayed that the Caney Creek property be restored to him, and, in substance, that its title be quieted in him.
In her Answer, Evelyn denied virtually all of Beck's above-described allegations. She specifically denied his assertions that his conveyance to her of the home property had not been a gift and that she had perpetrated any fraud upon him. In the cross-petition accompanying her answer, Evelyn alleged that she and Beck were incompatible, but denied that she had in any way contributed to their incompatibility.
*675 She also alleged that she is the owner of the Caney Creek home and denied that Beck had any right, title, or interest therein. She prayed that she be granted a divorce from Beck, in substance that title to the home be quicted in her, and that she be decreed to be the owner of the aforementioned shot gun, free of any claim of Beck to any right, title, or interest therein. She further prayed that Beck be required to pay her attorney's fee, and that she be granted such other and further relief to which she might be entitled.
The answer of the Vanderslices was, in substance, a general denial of all of Beck's allegations affecting them, or their property rights, except that Evelyn had executed and delivered to Mrs. Vanderslice the aforementioned real estate mortgage. Among other things, they also alleged that the mortgage was executed and delivered for an adequate consideration, and that it constituted a valid and subsisting prior lien on the property it covered.
At the trial of the action, Beck testified (in support of his petition) that Evelyn paid no money consideration for his conveyance to her of the Caney Creek home, when they jointly moved to have their divorce set aside, as aforesaid. He further testified that he executed and delivered the deed to her because "she promised to live with me, and be my wife"; that she did not carry out this promise; that she "had" him build the additional room on the house and that she locked him out of her room many times. Although Beck first testified that Evelyn had, at all times since the divorce was set aside, refused to live with him as a wife, when interrogated, on cross-examination, about specific instances, he admitted that on several occasions they had occupied the same room and bed. Beck further testified, among other things, that he executed and delivered the deed covering the West Half of the Caney Creek tract to the Vanderslices "On" Mr. Vanderslice's promise that he would build a house on it, "* * * and he would straighten her (Evelyn) out, and get her to change her mind." At another point, Beck's testimony concerning that deed was as follows:
"Q You don't claim that that is not a good deed, do you?
"A I guess it's all right. They didn't fulfill their promise to me as they said they would. * * *."
Facts disclosed in Beck's testimony concerning his financial situation, did not establish that he was either without income, or resources, from which to maintain himself.
Evelyn testified, among other things in substance, that she never agreed, in consideration for joining Beck in having the divorce decree set aside, to live with him in all respects as a wife. As she put it, he came to Marlow, Oklahoma, where she had moved and obtained a job, a few days after the divorce, and told her:
"* * * if I would come back and carry his name only that I wouldn't have to live with him, that he would live in a trailer house and besides, give me a deed to the home and give me $100 a month to live on. * * *."
Evelyn testified that when she and Beck returned to the Caney Creek home, after she had accepted his proposition, she refused to occupy the same room with him, and he moved his personal belongings out of the home to the trailer house, and slept on the screened porch. She further testified, however, that, after part of the porch was remodeled into the bedroom, she and Beck slept together in the only bed in it; that she continued to cook the meals for both, and they ate together in the kitchen of the home, all continuing until they separated in March, 1961, when he moved into the trailer house. Evelyn further testified, in substance, that the reason for her conveying to Beck the life estate in the small portion of the premises after their separation, was to give him assurance of having a place to live (he had apparently been accusing her of trying to "run him off", as some of his testimony puts it) and that the consideration for his conveying it back to her approximately a month later, was *676 her return to him of title to the Oldsmobile and her wedding rings.
Mr. Vanderslice's testimony revealed that he had constructed the house, Beck testified he promised to build on the west half of the Caney Creek property; and he testified to a transaction involving his purchase of Beck's trailer house for more than it was worth, contemplated to show that he had paid Beck an adequate consideration for said parcel, or lot, of land.
At the close of the trial, the court entered a decree finding the issues generally in Evelyn's favor, and granting her a divorce on the ground of incompatibility. The decree also established Evelyn to be the owner of the couple's Caney Creek home, but determined Beck to be the owner of the shot gun. The court further decreed that each of the divorced parties should pay their own attorneys fees, but taxed the costs of the action against Beck. After the overruling of his motion for a new trial, Beck perfected the present appeal. Only he and Evelyn have filed briefs herein.
Under one proposition advanced for reversal of the trial court's decree as it concerns the real estate awarded to Evelyn, Beck argues generally that said decree is not sufficiently sustained by, and is contrary to, the evidence and to the laws of this State. Specifically, he points to an oral remark made by the Judge, after hearing the evidence, to the effect that he was going to hold that Beck gave Evelyn the Caney Creek home. Beck argues, in substance, that due to the confidential relationship which unquestionably existed between him and Evelyn, and the economic advantages and benefits she gained by his conveyance to her of said property, she had the burden which she failed to sustain of proving that said property was transferred to her as a gift. As the remark by the judge referred to was not incorporated in the decree appealed from, it cannot be used to reverse said decree. See Diem v. Diem, Okl., 372 P.2d 19, 23, and cases there cited.
With reference to the existence of a valid consideration for his conveyance of the home to Evelyn, Beck first challenges the plausibility of Evelyn's testimony that all she agreed to do for said conveyance was "carry his name". He also argues, in substance, that if such was actually the only thing she agreed to do in return for said conveyance, that same was not a "good consideration" therefor, as that term is defined in Title 15 O.S. 1961 and 1963, § 106. We believe that when the portion of Evelyn's testimony referred to is viewed in the context of her other testimony, and of the facts it tends to prove, that it was her intention, by using the quoted words, to convey the idea that the promise she gave Beck was to return to him as his ostensible wife in a platonic husband-wife relationship, or as a wife "in name only" as far as sexual matters were concerned. Beck's claim that he was defrauded, or led to believe otherwise, is not substantiated by the undisputed fact that for several weeks, while part of it was being converted into an additional room, Beck slept on the screened porch. If, at the time he deeded the home to Evelyn on September 12th, 1960, she promised to share his bed in consideration therefor, it is passing strange that he waited so long to lodge any complaint about this, and that he continued to cooperate with, and assist, her in acting as the exclusive owner of the property, as herein related, and in trying, with the assistance of his attorney, to "live with" such a domestic arrangement. We cannot say that the trial court's judgment or decree is clearly against the weight of the testimony bearing directly upon the parties' agreement, and we are convinced that it is clearly supported by the weight of the circumstantial evidence. Nor do we think that, in the light of the indicated view of the true import of the parties' agreement, it lacked adequate consideration flowing from Evelyn to her once-divorced husband, Beck. It appears to us as having been contemplated to entail her making a home for him, with the obligation to cook his meals, and to attend to other chores *677 connected with operating a household. Although contradicted to some extent by Beck, Evelyn's testimony was that she performed such duties from the time she returned with him to the Caney Creek home, until they separated and ceased all semblance of living together. Beck does not contend that if her testimony was worthy of belief (and we think it was) that her assumption of such duties did not constitute a valid consideration, under our statutes, for his conveyance. It may be that at the time he made his proposal to Evelyn, he hoped that sooner or later, after she had resumed living under the same roof with him, they would eventually attain somewhat the same degree of consortium, normal for husbands and wives with less variance in their ages. If this be true, it is plain that such hope never did materialize. An understanding of, or sympathy for, his plight, however, does not restrain us from concurring in the trial court's findings, in effect, that Beck's allegations of Evelyn's fraud were never proved. Neither of the three cases, from which he extracts expressions of this court, and attempts to apply them to this case, are in point. In more recent cases, we have indicated that the "burden of proof" rule applicable to persons in confidential relationships generally, which Beck seeks to have applied here, does not apply with equal force to marital relationships. See McKinney v. Odom, Okl., 363 P.2d 272, quoting from Holliday v. Holliday, Okl., 327 P.2d 456, and McClure v. Kerchner, 107 Okl. 28, 229 P. 589, 594, quoting Schouler on Wills. As to another case in which a relationship of natural affinity was involved, see Higgins v. Pipkin, Okl., 360 P.2d 231, 235. For principles applied to a non-marital relationship, see White v. Morrow, 187 Okl. 72, 100 P.2d 872, 875, 876. Here the evidence is insufficient that Evelyn's influence over Beck was "undue" (within the meaning of that term as used in the rule) or sufficiently different from that quite generally exercised over men by members of the opposite sex with whom they have been associated in a relationship of natural affinity, to have clouded her deed from Beck with a presumption of invalidity, or to have placed upon her the burden of freeing it of such a cloud.
In accord with our foregoing conclusions, the judgment of the trial court is hereby affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/93555/ | 148 U.S. 245 (1893)
HUME
v.
BOWIE.
No. 1107.
Supreme Court of United States.
Submitted February 6, 1893.
Decided March 20, 1893.
ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.
*249 Mr. Enoch Totten for the motion.
Mr. Walter D. Davidge and Mr. S.T. Thomas opposing.
*252 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court:
This case comes before us on a motion to dismiss the writ of error for want of jurisdiction, upon the ground that the judgment brought here by the writ is not a final judgment. Baker v. White, 92 U.S. 176; Rice v. Sanger, 144 U.S. 197; Brown v. Baxter, 146 U.S. 619. The question involved is one of power, for if the court had power to make the order, when it was made, then it was not a final judgment, as it merely vacated the former judgment for the purpose of a new trial upon the merits of the original action. If the court had no jurisdiction over that judgment, the order would be an order in a new proceeding, and in that view final and reviewable.
*253 The rule is unquestionably correctly laid down in Müller v. Ehlers, 91 U.S. 249, that when judgment has been rendered, and the term expires, a bill of exceptions cannot be allowed, signed and filed as of the date of the trial, in the absence of any special circumstances in the case, and without the consent of parties or any previous order of court. But it is always allowable, if the exceptions be seasonably taken and reserved, that they may be drawn out and signed by the judge afterwards, and the time within which this may be done must depend upon the rules and practice of the court and the judicial discretion of the presiding judge. Dredge v. Forsyth, 2 Black, 563; Chateaugay Iron Co., Petitioner, 128 U.S. 544.
The Supreme Court of the District had power to prescribe rules upon the subject, and had done so. Under those rules, whenever the judge was unable to settle the bill of exceptions, and counsel could not settle it by agreement, a new trial followed as matter of course. If, therefore, in this case, the bill of exceptions was open to be settled at the time of the granting of the new trial, the power to grant the latter existed. If the bill were settled, the court in general term could hear the case, and if reversible error were found, could set aside the judgment; and if the bill could not be be settled, the judgment was necessarily so far in fieri as to be susceptible of being vacated under the rule. Ordinarily where a party, without laches on his part, loses the benefit of his exceptions through the death or illness of the judge, a new trial will be granted. N.Y. Life & Fire Ins. Co. v. Wilson, 8 Pet. 291, 303; Borrowscale v. Bosworth, 98 Mass. 34, 37; Wright v. The Judge of the Detroit Superior Court, 41 Michigan, 726; State v. Weiskittle, 61 Maryland, 48; Benett v. P. & O. Steamship Co., 16 C.B. 29; Newton v. Boodle, 3 C.B. 795; Nind v. Arthur, 7 Dowl. & Lowndes, 252. And here the rule is so prescribed.
The rules also provided that the terms of court might be prolonged by adjournment for the purpose of settling bills of exceptions, and an order was accordingly entered prolonging the term at which this judgment was rendered, for the purpose of doing that in this case. This was equivalent to *254 the practice in many jurisdictions of entering an order granting additional time, after the expiration of the term, in which to settle such bills. The provision as to the prolongation of the term for the particular purpose is a mere difference in phraseology and not of the substance, and the question as to the close of the term in other respects is quite immaterial.
It is argued that, as Rule 2, fixing the terms of the Circuit Court, provides that the May term shall not continue beyond the second Saturday in July, except to finish a pending trial, the order extending the term under Rule 62, for the special purpose of settling bills of exceptions, beyond the limit fixed by Rule 2, could not extend such term beyond the commencement of the succeeding term, which was in this instance the third Monday of October, 1888. The May term, it is said, must necessarily have come to an end, either by the act of the justice who held it, or by operation of law through the efflux of time and the commencement of the succeeding term. But we are of opinion that under these rules the term may be continued indefinitely by order of court, so far as the settlement of bills of exceptions is concerned, and concur in the views of the Supreme Court of the District expressed in Jones v. Pennsylvania Railroad, 18 Dist. Col. 426, where it was held that Rule 62 was valid, and that while it would be more proper to specify the time to which the term might be extended under the provisions of that rule, yet an omission to do so did not invalidate the order.
It is to be remembered that the Supreme Court of the District sitting at special term and the Supreme Court sitting in general term is still the Supreme Court; that the judgment of the general term setting aside a verdict and judgment at law, and ordering a new trial, is equivalent to remanding the cause to the special term for a new trial; that an appeal from the special to the general term is simply a step in the progress of the cause during its pendency in the court; and that, though the judges may differ, the tribunal remains the same. Metropolitan Railroad v. Moore, 121 U.S. 558, 573; Ormsby v. Webb, 134 U.S. 47, 62. Some other judge must act on a motion for new trial by reason of inability created by death, *255 and while this order was entered at a term subsequent to that at which the judgment was rendered, it was entered in a matter kept within the control of the court by the order of prolongation. Mr. Justice Merrick, if living, might have settled the bill of exceptions in the case in April, 1889, at the time the motion under consideration was made, and inasmuch as, because of his decease, the bill of exceptions could not be settled by him, and counsel could not settle it by agreement, Rule 64 applied. At all events, the court had power to carry that conclusion into effect, and this being so, the order that it entered awarding a new trial was not a final judgment.
The distinction between Phillips v. Negley, 117 U.S. 665, and this case is, that there a verdict and judgment had been taken against the defendant and no motion was made or proceeding had at that term for the purpose and with the view of setting aside the judgment. The litigation was at an end upon the adjournment of the term and the successful party discharged from further attendance.
The result is that the writ of error must be
Dismissed. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2611726/ | 310 P.2d 296 (1957)
The CITY AND COUNTY OF DENVER, a Municipal Corporation, John D. McLucas, as Zoning Administrator of the City and County of Denver, and his Successors In Office, Plaintiffs in Error,
v.
L. C. STACKHOUSE, d/b/a Stackhouse Construction Company, Defendant In Error.
No. 17979.
Supreme Court of Colorado. En Banc.
April 22, 1957.
John C. Banks, Earl T. Thrasher, Denver, for plaintiffs in error.
Jean J. Jacobucci, Donald W. Marshall, Denver, for defendant in error.
MOORE, Chief Justice.
We will refer to defendant in error, plaintiff in the trial court, as plaintiff, and to plaintiffs in error, defendants in the trial court, as defendants, or by name.
Plaintiff in his complaint sought to have a certain building permit declared valid; he also sought a decree enjoining defendants from in any manner interfering with the construction of the building authorized under that permit.
In his complaint plaintiff alleged: The capacities of the various parties; the enactment by the municipality of a zoning ordinance pursuant to charter authority; his desire to erect a four-unit multiple dwelling on a designated parcel of property; that inquiries were made as to the zoning classification of this property; that he and his broker were informed by defendants that the described property was in a Residence "C" district where the proposed use was permissible; that relying on this information he purchased the property February 10, 1955, obtained a building permit from defendants and has expended the sum of about $18,000 in constructing the building; that on June 14, 1955, he was ordered by defendant Zoning Administrator to discontinue construction for the reason that such construction was in violation of requirements of the zoning ordinance applicable to Residence "B" districts; that he appealed the aforesaid order to the Board of Adjustment and that said Board sustained the action of the Zoning Administrator; that he has no plain, speedy or adequate remedy at law; that the action of the Board of Adjustment was invalid and that defendants should be decreed to be estopped and precluded from recalling *297 or revoking the building permit issued to him.
Defendants filed a motion to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted. This motion was argued, taken under advisement, and denied. Defendants then filed their answer. As a first defense they placed in issue all material allegations of the complaint. As a second and additional defense, they alleged that under the charter and the zoning ordinance of the municipality, a Board of Adjustment has been established to hear and determine all appeals from the Department of Zoning Administration; that plaintiff had availed himself of this appellate procedure and had suffered an adverse decision in that the Board sustained the Zoning Administrator; that plaintiff has or had a plain, speedy and adequate remedy at law relating to an appeal from the Board and that that remedy was exclusive of all other appellate procedures.
An ordinance of the City and County of Denver pertinent to the issues reads as follows: (Ordinance 117, Series 1954, Sec. 2-1)
"No permit or certificate, the use of which may be subject to ordinances, shall be issued by the Chief Building Inspector until the Department of Zoning Administration has certified that the use to be made of the permit or certificate is made in full compliance with this ordinance."
Under other applicable zoning ordinances the four-unit multiple dwelling which plaintiff started to erect under his permit could be built upon a lot having 4,000 or more square feet if situated in a Residence "C" district, but if situated in a Residence "B" district, a minimum area of 12,000 square feet was required for such a building. The area of the lot in question was approximately 4,700 square feet; hence the proposed structure was within the terms of the ordinance if erected in a "C" district, but not if erected in a "B" district.
There is no dispute in the pertinent facts. Plaintiff instructed his real estate broker to ascertain that the lots were zoned as Residence "C"; plaintiff himself inquired of the defendants as to the zoning covering the specific lots and was informed that it was Residence "C"; the zoning map which he had theretofore secured from the city showed a "C" designation; and after taking these precautions he purchased the lots for the express purpose of building the fourunit multiple dwelling. He then prepared his plans for the building, and plot plan, which were submitted to the defendants with his application for the building permit. The official then in charge of the city's zoning office checked the plans and consulted the zoning map which was kept back of the counter where it was not available to plaintiff. This official then informed plaintiff that the property was in a "C" district and he then endorsed upon plaintiff's plans the required certificate that the zoning was proper. The building permit was thereupon issued authorizing the erection of the four-unit multiple dwelling upon the lots specifically described.
The permit which was actually issued authorizing the building to be erected also stated that the property was located in a "B" district. The only evidence which bears upon the question of the knowledge of plaintiff that this reference to a "B" district was in the permit was the testimony of plaintiff who said that he never saw it, or read it, until four months after its delivery to him when he was ordered to stop building; that its function was only as a receipt; that he had no reason to examine it; and that a document which is used as a building card (furnished with the permit) is posted on the job for inspection purposes.
Plaintiff proceeded with the construction until June 14, 1955, about four months after the permit was issued, when he received an order from the city to cease construction; the reason assigned for the order being that upon further checking it had been found that plaintiff's building was in the wrong zone and that the permit had been issued in error.
*298 Plaintiff's summary of the argument for affirmance of the judgment contains, inter alia, the following:
"1. The doctrine of estoppel is applicable against a municipality attempting to revoke a permit upon which the permittee has reasonably relied in making substantial expenditures. * * *
"2. Plaintiff's remedy in this case is derived from equity, and constitutional and charter rights. The board of adjustment has no equity jurisdiction, nor power to review the validity of the ordinance. The `appeal' procedure provided by the ordinance could not offer any relief to plaintiff in his situation. Hence his resort to the courts by this action was proper. * * *
"3. * * * Defendants made a determination upon certain evidence and granted the permit. Four months later, upon the same evidence, they attempted to reverse their first determination and revoke the permit. This is prohibited by the established law of Colorado, plaintiff having expended substantial sums in the interim in reliance on the permission."
Defendants deny the correctness of these assignments and urge that plaintiff's exclusive remedy was to seek review of the action of the Board of Adjustment which upheld the order revoking the permit.
Questions to be Determined.
First: Under the pertinent undisputed facts of this case, was the trial court correct in holding that defendants were estopped to contest the validity of the permit issued to plaintiff?
This question is answered in the affirmative. While it may be true, as argued by counsel for defendants, that "The doctrine of estoppel is not applied as freely against a municipal corporation as against an individual", it is, nevertheless, well established in the law that the doctrine of estoppel in pais is fully applicable against a municipality if it is necessary to invoke it to prevent manifest injustice. Piz v. Housing Authority, 132 Colo. 457, 289 P.2d 905. In Piz v. Housing Authority, supra, numerous decisions of this court are cited which fully sustain resort to the doctrine of estoppel against governmental agencies to prevent injustice. This is such a case.
Second: Was the trial court correct in rejecting the argument of counsel for defendants that plaintiff's sole remedy was to seek review of the proceedings before the Board of Adjustment?
This question is answered in the affirmative. The limited jurisdiction of the Board of Adjustment, created and deriving all of its powers from the city charter, extended no further on "appeal" than to determine whether the Zoning Administrator's original action in granting a permit for a "C" district type structure in a "B" district was erroneous as measured by the terms of the zoning ordinance. But the terms of the ordinance are plain on this subject and there could be no dispute but that the Board, having resort solely to the terms of the ordinance, would of necessity be bound to find that the permit was in error. And, in any further "appeal" under the ordinance-prescribed certiorari procedure, the court, under Rule 106(4), R.C.P. Colo., would be confined to a review of the record upon the same restricted issue, and likewise could only affirm that the permit did not comply with the ordinance terms.
What "adequate remedy" then, was available to plaintiff by an ordinance-appeal when the board was powerless, because of its restricted jurisdiction, to do anything other than affirm that the permit did not comply with the requirements of the ordinance?
In Hedgcock v. People, 91 Colo. 155, 13 P.2d 264, 265, this court stated, inter alia:
"It is claimed in behalf of the building inspector that mandamus does not lie, and that Reed's only remedy is to be found in the charter of Denver. The charter provisions allow an appeal from the building inspector to a socalled board of adjustment, and the decisions of that board, the charter says, *299 may be reviewed by a court of record by certiorari. Municipal Code 1927, pp. 115-119. It is argued that, unless the procedure outlined in the charter be pursued, and within the time which it fixes, one aggrieved by the action of the building inspector is precluded and resort to mandamus, as attempted here, is unavailing. The first answer is that a city charter cannot repeal provisions of the Civil Code, nor control jurisdiction of courts. People [ex rel. Bear Creek Development Corp.] v. District Court, 78 Colo. 526, 242 P. 997. Secondly since in the circumstances of the record the ordinance sought to be enforced by the building inspector, as determined below, and approved here, was inapplicable, the board of adjustment was without power to consider the situation. * * * and in Williams v. Gage, 3 N.J.Misc. 1095, 130 A. 721, where it was contended, as here, that `certiorari of the action of this board is the proper remedy,' that court said that certiorari `would be inefficacious. It is not the proper remedy.' * * * Such a board, the court said, has `no authority or jurisdiction to act as an appellate body for the purpose of reviewing the legal or equitable character of the building inspector's act in allowing or rejecting an application for a building permit, nor to pass upon the question as to whether the provisions of the zoning ordinance are in furtherance of the proper exercise of the police power of the municipality.'"
Obviously, the Board of Adjustment has no jurisdiction to entertain plaintiff's equitable right of action. Being without jurisdiction of it, the "appeal" proceedings to which plaintiff was induced to submit before the board were a nullity, and could in no manner preclude his right to prosecute his action in a tribunal having proper jurisdiction.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610413/ | 191 Kan. 80 (1963)
379 P.2d 311
HELEN CARTER, Appellee,
v.
CHARLES CARTER, Appellant.
No. 43,066
Supreme Court of Kansas.
Opinion filed March 2, 1963.
Charles F. Forsyth, of Erie, argued the cause, and Clark M. Fleming, of Erie, was with him on the briefs for the appellant.
Charles E. Henshall, of Chanute, argued the cause and was on the briefs for the appellee.
The opinion of the court was delivered by
WERTZ, J.:
This was an action by plaintiff (appellee) Helen Carter against her husband, defendant (appellant) Charles Carter, for a divorce, custody of the minor children and a division of their acquired property.
*81 The trial court entered judgment granting a divorce to the wife on the ground of extreme cruelty on the part of the husband, made provisions for the custody and maintenance of the minor children, and made an equitable division of property.
The husband appeals on the sole ground that the competent evidence of the wife's corroborative witnesses was insufficient to justify the granting of the divorce and the consequential relief prayed for in her petition.
In his brief and oral argument on appeal defendant admits the judgment of the trial court must be upheld if the wife's testimony of cruel treatment is in any way corroborated. The record in this case is replete with evidence showing a course of conduct on the part of defendant toward his wife which tended to humiliate and degrade her and which could properly be characterized as extreme cruelty.
The record discloses the parties were married in 1944 and soon thereafter began having trouble. In 1955 they had a disagreement over increasing the family, the husband wanting another child, the wife fearing pregnancy. At the instigation of the husband they consulted a marriage counselor. In 1960 at the instigation of the husband the parties again sought marriage counseling. In July of 1961 the wife called a police officer claiming her husband had struck her. The officer testified he responded to the call and found the wife upset and crying; that in the presence of the husband she told him her husband struck her; that he observed the right side of her face was red; and that he advised both of them, since this was family trouble, to see an attorney.
Mrs. Ross, a baby sitter, testified that on one occasion when she approached the house she heard defendant cursing and calling his wife a liar; that she then left the premises without going into the house.
Mrs. Bryant testified she saw black and blue marks on plaintiff's arms; that when the Carters visited her home they argued all of the time; that she had heard defendant call the plaintiff dirty names [the specified names need not be printed herein]; that she accompanied both the plaintiff and defendant on a two-week trip from Chanute to Illinois by way of the Ozarks, and that defendant argued with the plaintiff throughout the entire trip.
Ellen Carter, defendant's mother, testified she knew plaintiff and defendant were having trouble through the years ever since their *82 marriage; that she knew plaintiff and defendant went to a marriage counselor in Topeka, Kansas.
The parties' son testified that his father and mother argued frequently. The daughter testified she wished her father would be kinder to her mother.
No useful purpose would be gained in further narrating the evidence contained in a record consisting of more than 175 pages of testimony of some 30 witnesses.
Extreme cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physical violence, nor need it connote viciousness but only conduct which is unusual, disapproved and not conducive to the normal acts in accepted society. It is now generally held that any unjustifiable and long-practiced course of conduct by one spouse toward the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted or threatened. Under some circumstances it may not be necessary that such conduct should continue over a long period to constitute extreme cruelty. It is not necessary that the corroboration support plaintiff's allegations throughout the course of mistreatment or as to every detail of plaintiff's testimony. The principal reason for the requirement of corroboration has been, and is, for the prevention of collusion between the parties to a divorce. It is not essential that it alone sustain the judgment or that it support the plaintiff's testimony as to all of the allegations. Such a strict requirement might tend to thwart justice owing to the privacy of the relations between the parties. (Brown v. Brown, 171 Kan. 249, 232 P.2d 603, 32 A.L.R.2d 102; Hoppe v. Hoppe, 181 Kan. 428, 312 P.2d 215.)
In the instant case there was nothing in the record to indicate collusion, and the corroborative evidence fulfilled the requirements of our code (G.S. 1949, 60-1509). Furthermore, there was not only direct and corroborative testimony but also circumstantial evidence which the trial court could and did believe that defendant's actions deeply wounded plaintiff's feelings and worried her greatly, and that the legitimate ends and objects of matrimony had been utterly destroyed thereby. Corroborative testimony may be circumstantial as well as direct. A decision based on testimony corroborative in character and convincing to the trier of the facts will not be disturbed on appeal. (Kelso v. Kelso, 182 Kan. 665, 324 P.2d 165; Tuley v. Tuley, 168 Kan. 106, 211 P.2d 95; Hoppe v. Hoppe, supra.)
*83 In view of what has been said we are of the opinion that the record clearly discloses corroborative evidence, both direct and circumstantial, sufficient to fulfill the requirements of our code and to support the judgment rendered by the trial court, and the judgment must be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2610417/ | 61 Wash. 2d 565 (1963)
379 P.2d 366
ROBERT M. HUMPHREY et al., Respondents,
v.
WILLIAM JENKS et al., Appellants.[*]
No. 36234.
The Supreme Court of Washington, Department One.
March 7, 1963.
Clarence J. Coleman, for appellants.
Newell Smith (of Bell, Ingram & Smith), for respondents.
ROSELLINI, J.
This action was brought to establish a private easement over a portion of a vacated street in the *566 Town of Mukilteo, title to the vacated portion involved being in the appellants, who own Lot 29 of West & Wheeler's Seaview 5-acre tracts, Snohomish County. The respondents own Lot 30, which adjoins Lot 29 on the south. Both properties are adjacent on the east to a road which was the Seattle-Everett Speedway at the time the plat was dedicated.
In about the year 1941 a new state highway was constructed more or less parallel to and overlapping the old speedway. This highway was graded so that a steep bank prevented convenient access from the respondents' property except through use of a driveway which ran from the northeast corner of Lot 30 along the east side of Lot 29 (on the speedway and highway right of way) to a point where it turned onto the highway. This driveway had been in use for at least 18 years at the time of the trial.
In 1958, the respondents' predecessors in title petitioned the Town of Mukilteo to vacate that portion of the old speedway which lay between their eastern boundary and the western boundary of the state highway right of way. The appellants filed a similar petition pertaining to the portion of the speedway which lay east of their property, and a petition was also filed by the owners of Lot 26, which adjoined the appellants' property on the north. These petitions were granted by an ordinance of the Town of Mukilteo.
The driveway was situated for the most part on the highway right of way, and this portion of it was not affected by the vacating of the speedway. However, a triangular portion of the driveway, 6 feet wide at its widest point and 20 feet long, lay within the confines of Lot 29, at the point where it adjoined Lot 30, as a result of the vacation of the speedway. In 1958, the appellants put up barriers at this point, thus challenging the respondents' claim of an easement in the driveway, and this lawsuit followed.
The trial court found that the easement had been established and was not extinguished by the vacating of the *567 speedway in front of Lot 29. On appeal, the appellants do not dispute the fact that the respondents had acquired an easement prior to the vacation of the road, but they contend that the respondents are estopped to deny that it was lost when they petitioned for vacation of that portion of the speedway which adjoined their property.
[1] It is well established in this jurisdiction that the vacation of a platted street or alley puts an end to all interest of the public in the land, but does not affect private easements over the streets by those who have bought with reference to the plat and in reliance thereon. Brown v. Olmsted, 49 Wn. (2d) 210, 299 P. (2d) 564; Howell v. King Cy., 16 Wn. (2d) 557, 134 P. (2d) 80, 150 A.L.R. 640; Van Buren v. Trumbull, 92 Wash. 691, 159 P. 891.
The case of Howell v. King Cy. is annotated at 150 A.L.R. 644, and the rule stated in the annotation is as follows:
"Where a landowner has a private right of way in a strip of land which is or subsequently becomes a public street or highway, such private right is ordinarily held to survive the vacation or abandonment of the street or highway by the public."
[2] It is true that a lot owner, by his conduct, may estop himself from claiming such an easement. In 5 Restatement of Property § 559, p. 3299, the rule is stated as follows:
"The obligations arising out of a promise respecting the use of land are extinguished as against a person entitled to enforce them to the extent necessary to protect from unreasonable harm a person who has acted in reasonable reliance upon conduct by the person entitled to enforce the obligations if such person should reasonably have foreseen that his conduct was likely to produce the action taken."
And in 2 American Law of Property § 8.99, p. 305, the rule is similarly stated:
"An easement may be extinguished by conduct of the owner of it even though he had no intention to give up the easement. This is due to the general principle that the owner of an easement will not be permitted to change a *568 position once taken by him if the change would cause undue hardship to the owner of the servient tenement."
The only conduct relied upon by the appellants as creating an estoppel is that of the respondents' predecessors in petitioning for the vacation of that portion of the old speedway which lay between Lot 30 and the new highway. The portion of the driveway which is the subject of this lawsuit was not involved in that petition. The owners of Lot 30 have at no time abandoned the use of the driveway. It is their sole means of access to the highway, and they have indicated no intention of relinquishing their easement.
Most significantly, there has been no change of position on the part of the appellants which would render it inequitable to recognize the easement of the respondents. Except for the one occasion on which barriers were placed across the driveway, there has been an uninterrupted use of the driveway for 18 years. The appellants have not shown that the maintenance of the easement over the small corner of their lot would work a hardship upon them. There is nothing in the record to indicate that they intend to abandon the driveway as a means of access to their property, and it seems their sole purpose is to prevent its use by their neighbors.
The appellants cite the case of Burmeister v. Howard, 1 Wash. Terr. 207, and contend that it supports their view that the respondents are estopped from claiming an easement in that portion of the driveway which lies on land which was a part of the road vacated by the Town of Mukilteo. In that case, the dispute was between owners of land on opposite sides of an alley, which had been dedicated by their common grantor. Prior to the action, they had joined with other owners whose property adjoined the alley and petitioned for vacation of the alley. In their petition, they asked that the west 7 feet of the 10-foot-wide alley be given to the owners on that side, and that the remaining 3 feet be divided equally between the lot owners on both sides of the alley, alleging as a reason that the alley was of little or no use, and that the owners of lots *569 on the west side had relinquished 7 feet from the fronts of their lots to widen the street, thereby reducing the size of their lots. This petition was granted. Thereafter, one of the owners whose land adjoined the alley on the east side brought suit to establish his right to one half of the land adjoining his property, which had formerly been a part of the alley.
We held that, while the statute provided that, on vacation of a street or alley, the property should be divided equally between the adjoining owners, the plaintiff had, by joining in the petition to make a different division of the land, which was done and rights acquired thereby, estopped himself from asserting the right which he formerly had under the statute.
It will be seen that the case of Burmeister v. Howard, supra, did not involve a claim of an easement, and that the elements of estoppel were present. There was an act on the part of the plaintiff which manifested his willingness to relinquish his claim to one half of the alley adjoining his property, and as a result of which rights were acquired by others, and acted upon to the extent that it would have been inequitable to allow the plaintiff to repudiate the position taken in his petition.
Also cited by the appellants is Rowe v. James, 71 Wash. 267, 128 P. 539. In that case, the vacated street in question had been dedicated by an owner whose land extended only to the eastern boundary of the street. The owners of the property adjoining this eastern boundary brought suit to quiet title to one half of the street, contending that they were entitled to it because they had been induced by misrepresentations of the defendants to surrender their valuable rights of access, light, and air. The defendants were cotenants, and the court found that only two of them had made the false representations, which were that the plaintiffs would receive one half of the vacated street adjoining their land. Because the platter of the land had not owned land beyond the eastern boundary of the street, *570 the vacation of the street resulted, in law, in the vesting of the fee in the defendants.
This court held that the cotenants who had misrepresented the law, knowing it to be otherwise, were estopped to claim any right in that portion of the street which they had told the plaintiffs they would receive as a result of the vacation of the street.
In the course of the opinion, it was said that the plaintiffs, by joining in the petition for vacation, had surrendered their easements of access, light, and air. No authorities were cited. But assuming that statement was correct, it does not control the issue here. The respondents did not join in the petition for vacation of the portion of the road over which they claimed an easement, but petitioned separately for vacation of that portion which lay in front of their own property. There was no act on their part which would evidence a willingness to surrender their right to use the driveway which was their only means of access to the highway, and in fact as we have said, this driveway was located principally upon the highway right of way and not upon the vacated road.
It can be reasoned that, one who petitions for vacation of a street adjoining his property, knowing that the owner of the land on the opposite side has the fee title to the center of the street, expresses willingness to surrender his easements of access, light, and air in that portion of the street which belongs to his neighbor, just as his neighbor expresses a willingness to surrender like easements if the vacated street is to be used by the abutting owners for building purposes. But, as we have pointed out in the preceding paragraph, this is not such a case.
We conclude that the respondents are not estopped to assert the existence of the easement.
There was no conduct on the part of the respondents or their predecessors manifesting an intent to abandon their easement. Furthermore, even though it be assumed that the petition for a vacation of a portion of the road could be construed as such a manifestation, there was no reliance *571 on the part of the appellants with resulting hardship to them. The trial court did not err when it entered its order establishing the easement as prayed.
The judgment is affirmed.
OTT, C.J., HILL, HUNTER, and HALE, JJ., concur.
NOTES
[*] Reported in 379 P. (2d) 366. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1141402/ | 412 So. 2d 1383 (1982)
Lucius DOUCET, D.D.S.
v.
DENTAL HEALTH PLANS MANAGEMENT CORPORATION and Guaranty Income Life Insurance Company.
No. 81-C-2268.
Supreme Court of Louisiana.
April 5, 1982.
*1384 Charles Emile Bruneau, Jr., Christenberry & Bruneau, Ltd., New Orleans, Dale R. Baringer, Bryan, Schaneville & Baringer, Baton Rouge, for relator.
Patrick C. Morrow, James P. Ryan, Morrow & Morrow, Opelousas, for respondents.
BLANCHE, Justice.
Plaintiff dentist, Lucius Doucet, brought suit in the parish of his domicile against defendant Dental Health Plans Management Corporation, alleging that it had breached its contract to pay him fees for dental services he provided to the insureds of its related corporation, Guaranty Income Life Insurance Company, under a dental health plan. In the same suit plaintiff joined as defendant Guaranty Income Life Insurance Company, alleging that, as the underwriter of the dental health plan, it was also responsible to him for payment of his claim.
Defendant, Dental Health, filed a dilatory exception of prematurity on the ground that the contract sued upon requires plaintiff's claim to be submitted to arbitration.[1] Both defendants filed declinatory exceptions of venue, contending that the suit should have been filed in the parishes where the defendant's registered offices are located. The trial court overruled all exceptions, and the court of appeal denied writs.
Denial of the exception of prematurity was premised upon the trial court's conclusion that the contract between plaintiff and Dental Health is a contract of insurance. Classification of the contract at issue as an insurance contract renders the arbitration provisions of that contract unenforceable under R.S. 22:629.[2] See Macaluso v. Watson, 171 So. 2d 755 (La.App. 4th Cir. 1965), appeal after remand, 188 So. 2d 178 (La.App. 4th Cir. 1966). We cannot agree that the contract sued upon is a contract of insurance and, accordingly, we reverse.
The contract between the plaintiff dentist and Dental Health Plans Management Corporation, titled "Dental Professional Service Agreement", is primarily an agreement by the plaintiff to provide dental services to the insureds under a dental health insurance policy. A very small part of the remuneration received by the plaintiff in return for these services is in the form of a Key Man insurance agreement, the cost of which is borne by the defendant. That insurance agreement is attached and designated as a supplement to the Dental Professional Service Agreement. However, provision for this insurance agreement and its attachment to the contract sued upon *1385 does not transform that contract into one of insurance.
The plaintiff's suit is not based upon his status as an insured under a contract of insurance. Plaintiff seeks to recover fees due to him for services rendered pursuant to a professional service agreement. That contract provides that any dispute arising out of the agreement or its breach shall be submitted to arbitration. As the professional service agreement cannot be classified as a contract of insurance, its arbitration provisions are fully enforceable. Plaintiff instituted this suit in the district court without first submitting his claim to arbitration. His suit should, therefore, have been dismissed upon the exception of no right of action raised by defendant, Dental Health.
Our holding that the contract sued upon is not a contract of insurance also mandates reversal of the trial court's ruling on the exception of improper venue. The general venue rule requires that an action against a domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located. C.C.P. art. 42(2). Plaintiff filed suit in his own domicile, however, relying upon the exceptions provided by C.C.P. art. 76. That article provides that an action to recover benefits under a life, health and accident, or other type of insurance policy may be brought in the parish where the beneficiary is domiciled. These exceptions are clearly inapplicable to the plaintiff's suit for damages caused by the breach of a professional services agreement.
Because the suit does not come under any exception to the general venue rule, it is governed by Article 42 of the Code of Civil Procedure, and plaintiff's suit should have been filed in the parish or parishes where defendant's registered offices are located. See Herring v. National Reserve Life Insurance Company, 104 So. 2d 264 (La.App. 1st Cir. 1958).
For the foregoing reasons, the trial court judgment overruling the exceptions of no right of action and improper venue is reversed.
DENNIS, J., concurs in part and dissents in part with reasons.
WATSON, J., dissents.
DENNIS, Justice, concurring in part and dissenting in part.
I respectfully concur in part and dissent in part.
Except to note that "a very small part" of the contract between the plaintiff dentist and Dental Health is in the form of an insurance agreement, the majority opinion fails to furnish any explanation of why this is not an insurance contract, viz., a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies. La.R.S. 22:5. I believe that the contract sued upon is an insurance contract and that its arbitration clause cannot be enforced to deprive the courts of jurisdiction. La.R.S. 22:629, in pertinent part, provides:
A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation or agreement:
* * * * * *
(2) Depriving the courts of this state of the jurisdiction of action against the insurer....
* * * * * *
B. Any such condition, stipulation or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provision of the contract.
The contract between the plaintiff dentist and Dental Health Plans Management Corporation is primarily an agreement by the plaintiff to provide dental services to insureds under Guaranty Income Life Insurance Company's dental insurance policy for remuneration. Additionally, however, as further remuneration, the corporation agreed to provide death benefits covering the life of the plaintiff dentist payable to his beneficiary or designee. La.R.S. 22:5 *1386 defines insurance as a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies. See Francis v. Texas & Pacific Railway Employees Hospital Association, 148 So. 2d 118 (La.App.3d Cir. 1963). Accordingly, the corporation having agreed to pay specific benefits in the event of the dentist's death, the contract at issue is an insurance contract under the terms of La. R.S. 22:629 and the arbitration clause contained therein is void and unenforceable. See Macaluso v. Watson, 171 So. 2d 755 (La. App. 4th Cir. 1965), appeal after remand, 188 So. 2d 178 (La.App. 4th Cir. 1966).
I agree, however, that the trial court's decision overruling the exception of venue should be reversed. The general venue rule requires that an action against a domestic corporation, or a domestic insurer, shall be brought in the parish where its registered office is located. La.C.C.P. art. 42(2). Plaintiff filed suit in his own domicile, however, relying on the exceptions provided by La.C.C.P. art. 76. The action was brought in a court of improper venue because the suit does not fall within any of the exceptions.
La.C.C.P. art. 76 provides:
An action on a life insurance policy may be brought in the parish where the deceased died, the parish where he was domiciled, or the parish where any beneficiary is domiciled.
An action on a health and accident insurance policy may be brought in the parish where the insured is domiciled or in the parish where the accident or illness occurred.
An action on any other type of insurance policy may be brought in the parish where the loss occurred or the insured is domiciled.
The allegations and prayer of plaintiff's petition are for the recovery of money due under a contract whereby the defendants are obliged to pay him fees for dental services he has provided to insureds. He does not allege a cause of action to recover insurance benefits based on the death of a person covered by a life insurance policy or because of an accident or illness covered by health and accident insurance. He does not allege a cause of action for loss covered by any other type of insurance policy. His petition does not contain any allegation from which it may be inferred that it is a suit based upon his status as an insured. Because the suit does not come under any exception to the general venue rule, it is governed by Article 42 of the Code of Civil Procedure, and plaintiff's suit should be filed in the parish or parishes where defendants' registered offices are located. See Herring v. National Reserve Life Insurance Co., 104 So. 2d 264 (La.App. 1st Cir. 1958).
This court should affirm the trial court judgment insofar as it overruled the exception of prematurity and reverse the part of its decree which overruled the exception of improper venue. The exception of improper venue should be sustained, and the case should be remanded to the trial court for it to determine, pursuant to La.C.C.P. art. 121, whether to dismiss the action or in the interest of justice to transfer it to a court of proper venue.
Accordingly, I respectfully concur in part and dissent in part.
NOTES
[1] The exception was improperly denominated as an exception of no right of action. See Cook v. AAA Worldwide Travel Agency, 360 So. 2d 839 (La.1978).
[2] R.S. 22:629, in pertinent part, provides:
A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation or agreement:
* * * * * *
B. Depriving the courts of this state of the jurisdiction of action against the insurer... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3102247/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00133-CV
IN THE INTEREST OF N.P., JR., A.P., J.P., and J.V, Jr., Children
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-PA-02931
Honorable Charles E. Montemayor, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE MARION, AND JUSTICE CHAPA
In accordance with this court’s opinion of this date, the trial court’s Order of Termination
is AFFIRMED. We GRANT appellate counsel’s request to withdraw. No costs of appeal are
assessed because appellant is indigent.
SIGNED May 28, 2014.
_____________________________
Sandee Bryan Marion, Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984489/ | Order filed March 21, 2014
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00153-CV
____________
FIDEL PIZANO AND MARIA SANCHEZ AND ALL OTHER
OCCUPANTS, Appellants
V.
HREAL COMPANY, LLC, Appellee
On Appeal from the Co Civil Ct at Law No 2
Harris County, Texas
Trial Court Cause No. 1041050
ORDER
The notice of appeal in this case was filed February 13, 2014. To date, the
filing fee of $195.00 has not been paid. No evidence that appellant has established
indigence has been filed. See Tex. R. App. P. 20.1. Therefore, the court issues the
following order.
Appellant is ordered to pay the filing fee in the amount of $195.00 to the
Clerk of this court on or before March 31, 2014. See Tex. R. App. P. 5. If
appellant fails to timely pay the filing fee in accordance with this order, the appeal
will be dismissed.
PER CURIAM | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2984495/ | March 20, 2014
JUDGMENT
The Fourteenth Court of Appeals
JOHANNES “JOE” ELMGREN AND VALARIE ELMGREN, INDIVIDUALLY
AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN, Appellants
NO. 14-13-00044-CV V.
INEOS USA, LLC F/K/A INNOVENE USA, LLC, INEOS POLYMERS, INC.,
A/K/A INEOS OLEFINS, INEOS OLEFINS & POLYMERS USA, A DIVISION
OF INEOS USA, LLC, AND JONATHAN “BUBBA” PAVLOVSKY, Appellees
________________________________
This cause, an appeal from the summary judgment in favor of appellees,
Ineos USA, LLC f/k/a Innovene USA, LLC, Ineos Polymers, Inc., a/k/a Ineos
Olefins, Ineos Olefins & Polymers USA, a division of Ineos USA, LLC, and
Jonathan “Bubba” Pavlovsky, signed December 13, 2012, was heard on the
transcript of the record. We have inspected the record and find error in the
judgment. We therefore order the judgment of the court below REVERSED in
part and REMAND the cause for proceedings in accordance with the court’s
opinion. Specifically, we reverse the trial court’s granting of summary judgment
pursuant to chapter 95 of the Texas Civil Remedies and Practice Code as to
appellee Pavlovsky. With regard to appellants the Elmgrens’ claims based on
negligent-activity and negligent-undertaking theories, we reverse the trial court’s
granting of summary judgment as to all appellees. In all other respects, we
AFFIRM the summary judgment.
We further order that each party shall pay its costs by reason of 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/2984719/ | September 22 2015
DA 15-0057
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 280N
IN THE MATTER OF:
L.M.W. and R.M.W.,
Youths in Need of Care.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause Nos. DN-12-72(A) and
DN-12-73(A)
Honorable Ted O. Lympus, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Elizabeth Thomas, Attorney at Law; Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie Schulz, Assistant
Attorney General; Helena, Montana
Emily Von Jentzen, Assistant Attorney General, Child Protection Unit;
Kalispell, Montana
Ed Corrigan, Flathead County Attorney; Kalispell, Montana
Submitted on Briefs: July 15, 2015
Decided: September 22, 2015
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 M.W., the father of L.M.W. and R.M.W., appeals from the orders of the Montana
Eleventh Judicial District Court, Flathead County, terminating his parental rights to
R.M.W. and L.M.W. We affirm.
¶3 M.W. is the biological father of L.M.W. (born in 2004) and R.M.W. (born in
2009).
¶4 On December 7, 2012, L.M.W. and R.M.W. were adjudicated as Youths in Need
of Care and temporary legal custody (TLC) was granted to the State. The decision to
remove the children from the home and grant TLC to the State was based on problems in
the home including physical neglect, failure to provide for the children’s needs, and
exposure to family violence. On January 11, 2013, the District Court approved the
treatment plan that was prepared for M.W. regarding the children.
¶5 TLC was extended twice to provide M.W. additional time to work on his treatment
plan. In June 2014, the Department of Public Health and Human Services, Child and
Family Services Division (DPPHS) filed a petition for termination of M.W.’s parental
rights.
2
¶6 On January 7, 2015, the District Court determined that the best interests of the
children L.M.W. and R.M.W. would be served by termination of the parent-child
relationship. Accordingly, the District Court entered an order terminating M.W.’s
parental rights to the children L.M.W. and R.M.W.
¶7 On appeal, M.W. argues as follows: (1) the District Court erred in finding that
M.W. did not successfully complete his treatment plan and was unlikely to change within
a reasonable amount of time, and (2) the treatment plan was not appropriate and failed to
meet the needs of the children and M.W.
¶8 We review a district court’s decision to terminate parental rights for abuse of
discretion. In re A.J.W., 2010 MT 42, ¶ 12, 355 Mont. 264, 227 P.3d 1012. A court
abuses its discretion when it acts arbitrarily, without employment of judgment, or in
excess of the bounds of reason. A.J.W., ¶ 12. Under this standard, we review a district
court’s findings of fact for clear error, and its conclusions of law to determine whether
they are correct. In re C.J.K., 2005 MT 67, ¶ 13, 326 Mont. 289, 109 P.3d 232.
Failure to Complete Treatment Plan
¶9 M.W. argues that the District Court erred in finding he did not successfully
complete his treatment plan and was unlikely to change within a reasonable amount of
time because the court lacked clear and convincing evidence to make the decision.
¶10 Section 41-3-609(1)(f)-(2), MCA, states “[t]he court may order a termination of
the parent-child legal relationship upon a finding established by clear and convincing
evidence” if “the child is an adjudicated youth in need of care and both of the following
exist: (i) an appropriate treatment plan that has been approved by the court has not been
3
complied with by the parents or has not been successful; and (ii) the conduct or condition
of the parents rendering them unfit is unlikely to change within a reasonable time.” The
court must also find that continuation of the parent-child relationship “will likely result in
continued abuse or neglect or that the conduct or the condition of the parents renders the
parents unfit, unable, or unwilling to give the child adequate parental care.” Section
41-3-609(2), MCA.
¶11 The District Court properly found that the treatment plan was not complied with or
was not successful and M.W. was unfit and unlikely to change within a reasonable time
due to his mental deficiencies. The court based this determination on testimony from
several professionals, including case workers from DPHHS, who determined that M.W.
could not follow through with parenting skills the specialists taught him, could not set
boundaries or provide discipline, and failed to maintain sobriety. Both R.M.W. and
L.M.W. have significant developmental, behavioral, and emotional issues requiring high
levels of specialized care. As part of the State’s effort to help M.W. comply with the
parenting plan, it provided him with intensive training from professionals to teach him
the parenting skills necessary to manage the special needs of the children, but M.W. was
unable to implement those skills. The District Court thoroughly evaluated testimony
reflecting this problem noting M.W.’s inability to make sustainable changes to his
behavior owing in part to his mental limitations. The court found that M.W. had only
partially completed the plan, that progress was minimal and incomplete after 25 months,
even despite efforts to accommodate his limitations.
4
¶12 Finally, the Court determined, based on testimony from witnesses, that
continuation of the parent-child relationship would likely result in continued abuse or
neglect because M.W. did not have the mental capacity and ability to care for the children
or provide for their special needs. Section 41-3-609(2), MCA.
¶13 Termination of parental rights is appropriate when the goals and objectives of the
treatment plan have not been met. Section 41-3-609(1)(f)(i), MCA. Partial compliance
with the treatment plan is not sufficient to preclude termination of parental rights. In re
S.M., 2001 MT 11, ¶ 44, 304 Mont. 102, 19 P.3d 213. The District Court thoroughly
evaluated the evidence presented regarding M.W.’s inability to parent the children. The
court based its decision on clear and convincing evidence that partial compliance was not
sufficient and M.W. failed to meet the goals and objectives of the plan, even with
accommodations. We conclude the District Court did not err in its findings as they are
supported by clear and convincing evidence.
Appropriateness of Treatment Plan
¶14 Finally, M.W. argues that the treatment plan was not appropriate as it failed to
meet the specific needs of the children and M.W. as the father. M.W. raises this issue for
the first time on this appeal. M.W. was represented by counsel when he agreed to the
treatment plan on January 11, 2013. M.W. also failed to object to the treatment plan at
the District Court proceedings in this termination action. A parent who fails to object to a
treatment plan waives the right to argue on appeal that the plan was not appropriate.
In re A.A., 2005 MT 119, ¶ 26, 327 Mont. 127, 112 P.3d 993; In re T.S., 2013 MT 274,
¶ 25, 372 Mont. 79, 310 P.3d 538. M.W. has waived appellate review of this argument
5
because he failed to raise this issue during the negotiation of the treatment plan, during
efforts to comply with the plan, or at the termination proceedings. Therefore, it is
unnecessary to determine the merits of this claim.
¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s ruling was not an
abuse of discretion.
¶16 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
6 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2876630/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00251-CR
Brenda Sue Gaines, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 8110, HONORABLE LLOYD DOUGLAS SHAVER, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Brenda Sue Gaines guilty of forgery and assessed her
punishment at two years in state jail. See Tex. Penal Code Ann. § 32.21 (West Supp. 2008).
Appellant contends that the evidence is legally and factually insufficient to sustain the jury’s verdict.
She also contends that her videotaped statement to the police was erroneously admitted in evidence.
We overrule these contentions and affirm the conviction.
When there is a challenge to the sufficiency of the evidence to sustain a criminal
conviction, the question presented is whether a rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979)
(legal sufficiency); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (legal
sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In a
legal sufficiency review, all the evidence is reviewed in the light most favorable to the verdict; it is
assumed that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew
reasonable inferences in a manner that supports the verdict. Clayton, 234 S.W.3d at 778. In a
factual sufficiency review, all the evidence is considered equally, including the testimony of defense
witnesses and the existence of alternative hypotheses. Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.—Austin 1992, no pet.).
Although due deference still must be accorded the fact finder’s determinations, particularly those
concerning the weight and credibility of the evidence, the reviewing court may disagree with the
result in order to prevent a manifest injustice. Johnson, 23 S.W.3d at 9; Cain v. State,
958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The evidence will be deemed factually insufficient
if the evidence supporting the verdict is so weak as to make the finding of guilt clearly wrong
or manifestly unjust, or if the verdict is against the great weight and preponderance of the
available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson,
23 S.W.3d at 11.
The check in question, State’s exhibit one, was presented at a Lampasas grocery store
on the night of June 30, 2007. The check, for $236.04, purported to be written on an account at the
Union State Bank in Florence belonging to Karyn Haggard, and it bore that signature. It was
undisputed that this check was a forgery. The vice president and head bookkeeper at the bank
testified that the account number on the check was invalid and that no one named Karyn Haggard
had a checking account at the bank.
James Ward testified that he was working as “front end manager” at the grocery store
on the night of June 30. Ward said that, in accordance with store policy, he was paged by checker
2
Jessica Gill to approve a check that had been written for more than the amount of purchase. Ward
identified exhibit one as the check he was asked to approve and appellant as the person who had
presented it. Having apparently had a prior unfavorable experience with appellant, Ward took the
check to his office, paged the store manager, and then called the police.
The manager in charge that night was Diane Harding. She testified that when she
responded to Ward’s page, he gave her the check and explained the situation to her. Harding then
went to Gill’s checkout counter and asked appellant, whom Harding identified in court, for
identification. Appellant told Harding that she did not have any identification. Harding testified that
appellant offered to write a new check for the amount of purchase. Harding told appellant that,
without proper identification, she would not be allowed to give a check for any amount. At this
point, the police arrived.
The subsequent police investigation led to a vehicle parked outside the grocery store
and to the occupant of the vehicle, Erica Ann Charles. The evidence shows that Charles was with
appellant in the store, but left the store when the check was questioned. Two purses were found in
the car. One of the purses contained three blank checks having the same decorative image as exhibit
one. One of these checks purported to be for the same account shown on exhibit one. Another check
purported to be for an account at the Extraco Bank in “Coppers Cove” and bore the name Karyn
Haggard with a Copperas Cove address. The third check purported to be for an account at the
National Bank in Copperas Cove and bore the name Pamela Longley with a Kempner address.
Between them, the two purses also contained nine purported temporary driver’s licenses in the names
3
of Karyn Haggard and Pamela Longley with a variety of addresses in Copperas Cove, Kempner,
Florence, and Lufkin.
Pictures taken by the store’s security cameras show appellant in the store at the time
of the offense, both alone and with Charles. Appellant gave an oral statement to the police following
her arrest, and a video recording of the statement was introduced in evidence. In her statement,
appellant admitted participating in the forgery scheme with Charles.
Appellant contends that the evidence is legally and factually insufficient to support
the guilty verdict because no witness testified to having seen appellant pass the forged check.1
Appellant was not convicted for passing the forged check, however, but for possessing the check
with intent to pass it. Moreover, the court’s charge authorized appellant’s conviction as either the
primary actor or as a party to the offense with Charles. See Tex. Penal Code Ann. § 7.02 (West
2003). Both Ward and Harding identified appellant as the person who presented the check to Gill,
and Harding also testified that appellant offered to write a new check for the amount of purchase.
Appellant admitted her involvement in the crime in her oral statement. Viewing this evidence in
the light most favorable to the verdict, the jurors could find beyond a reasonable doubt that
appellant, alone or as a party, possessed the forged check with intent to pass it. The evidence is
legally sufficient.
Both appellant and Charles were present when the forged check was presented to Gill,
and it is possible that the check was actually passed by Charles. Nevertheless, the evidence supports
1
Jessica Gill, the checker to whom the check was presented, was not allowed to testify because
the State failed to include her on its witness list.
4
the inference that appellant was guilty, at least as a party, of possessing the forged check with intent
to pass it. Viewing all the evidence in a neutral light, the evidence supporting the verdict is not so
weak or so contrary to the preponderance of the available evidence as to make the finding of
guilt clearly wrong or manifestly unjust. The evidence is factually sufficient to sustain
appellant’s conviction.
Appellant’s remaining contention is that the video recording of her statement to the
police was erroneously admitted because the State failed to timely provide a copy of the recording
to the defense. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(5) (West 2005). Article 38.22,
section 3 lists five prerequisites for the admission of an oral statement made during custodial
interrogation, the fifth of which is that “not later than the 20th day before the date of the proceeding,
the attorney representing the defendant [be] provided with a true, complete, and accurate copy of all
recordings of the defendant made under this article.” Id. This requirement is to be strictly construed.
Id., art. 38.22, § 3(e); see Tigner v. State, 928 S.W.2d 540, 546 (Tex. Crim. App. 1996).
Appellant’s trial began with voir dire on March 10, 2008. That is the “date of the
proceeding” for the purpose of section 3(a)(5). See Tigner, 928 S.W.2d at 546. From the statements
of counsel during the several discussions of this issue during the course of the trial, and from
documents introduced for the record by both parties, we glean the following facts:
• Defense counsel received general discovery from the State in October 2007.
Among other things, counsel received a copy of the police incident report.
• At page thirty of the incident report there is a summary of appellant’s police
interview followed by this statement: “The video recording of the Gaines interview
was marked and tagged as evidence and attached to the original incident report.”
5
• The district attorney maintains an open file policy and the recording of appellant’s
statement was available at the district attorney’s office.
• The first time the State expressly informed defense counsel that it intended to
introduce the recorded statement in evidence was during a pretrial hearing on either
February 22 or 29, 2008. Both of these dates are less than twenty days before March
10.
• Defense counsel actually received a copy of the recording two days before trial
began.
Appellant contends that the trial court should not have admitted her recorded
statement because “[b]oth the State and Gaines agreed that a true, complete and accurate copy of the
videotape in question was not provided to counsel for Gaines until the Saturday night prior to the
start of the jury trial (less than 20 days prior to the start of the trial).” This argument fails to take into
consideration the holding of the court of criminal appeals in Lane v. State, 933 S.W.2d 504 (Tex.
Crim. App. 1996). The issue in that case was whether section 3(a)(5) requires the actual delivery
of a copy of the recording to defense counsel. Id. at 514. The court held that it did not:
Affording defense counsel access to the recordings effectuates [the purposes of the
statute] as much as requiring actual delivery. So long as defense counsel is informed
of the existence of the recording and permitted reasonable access to a copy, the
purpose of § 3(a)(5) has been met. . . .
In the present case, the tapes were played at a pre-trial hearing and admitted
into evidence. . . . [D]efense counsel was placed on notice of the existence and
contents of the recordings, and the recordings were available to him in the district
clerk’s office. He was thus provided with a copy of the tape.
Id. at 516.
6
In the cause before us, defense counsel was placed on notice of the existence and
contents of the video recording of appellant’s statement when he was given a copy of the police
incident report in October 2007. The video recording was available to him in the district attorney’s
office. Therefore, he was at that time “provided” a copy of the recording within the meaning of
article 38.22, section 3(a)(5) as construed in Lane. See McClenton v. State, 167 S.W.3d 86, 90-91
(Tex. App.—Waco 2005, no pet.); see also Aguirre v. State, No. 03-05-00370-CR, 2007 Tex. App.
LEXIS 354, at *29-32 (Tex. App.—Austin June 13, 2007, pet. struck) (mem. op., not designated for
publication). Lane does not require that counsel be told whether the State intends to use the
recording at the time the recording is provided, and Lane expressly rejects appellant’s contention that
the State must actually deliver a copy of the recording to counsel in order to satisfy section 3(a)(5).
The trial court did not err by overruling appellant’s objection to the admission of her recorded
statement.
The judgment of conviction is affirmed.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: June 9, 2009
Do Not Publish
7 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1268677/ | 577 S.E.2d 822 (2003)
259 Ga. App. 772
LaSONDE
v.
CHASE MORTGAGE COMPANY et al.
No. A02A2135.
Court of Appeals of Georgia.
January 31, 2003.
Reconsideration Denied February 20, 2003.
*823 Jack LaSonde, pro se.
Stites & Harbison, John C. Porter, Jr., Atlanta, for appellees.
JOHNSON, Presiding Judge.
Jack LaSonde filed a complaint against Chase Mortgage Company f/k/a Chemical Mortgage Company, Chase Manhattan Mortgage Corporation (collectively "Chase Mortgage"), and Wayne McGregor seeking damages and equitable relief claiming Chase Mortgage wrongfully interfered with McGregor's agreement to sell LaSonde real property. LaSonde also claimed that Chase Mortgage is liable for abusive litigation for filing a dispossessory action against him. This is an appeal from the dismissal of two counts of LaSonde's three-count complaint.
The following facts are undisputed: Cleveland Watkins purchased residential real estate with a loan from Chase Mortgage Company f/k/a Chemical Mortgage Company. The promissory note was secured by a security deed assigned to Chase Mortgage. Watkins sold the property to McGregor, and McGregor sought approval from Chase Mortgage to allow him to assume the loan. Chase Mortgage denied McGregor's request.
McGregor then entered into a contract with LaSonde in which LaSonde would lease the property from McGregor with an option to purchase it. LaSonde moved into the residence and, in December 1999, exercised the purchase option and entered into a sales contract with McGregor. McGregor then told LaSonde that the loan on the property was assumable, but that there was a dispute and that Chase Mortgage refused to provide him with payoff information. The loan went into default, and the property was foreclosed upon. Chase Mortgage bought the property at the foreclosure sale and filed a dispossessory action against Watkins and LaSonde. The trial court granted the writ of possession.
A few days later, LaSonde proceeded to close on the purchase of the property with funds he borrowed from another lender. After the loan closed, LaSonde filed the underlying suit.
In Count 1 of the complaint, LaSonde sought relief from Chase Mortgage, claiming it interfered with his sales contract with McGregor by refusing to provide McGregor with payoff information on the loan and refusing to accept payments from McGregor. In Count 2, LaSonde alleged Chase Mortgage was liable for abusive litigation because it filed the dispossessory action. In Count 3, LaSonde sought specific performance from all three defendants.
The trial court dismissed Counts 1 and 2 of the complaint, holding there could be no action for tortious interference with contract because Chase Mortgage was not a stranger to the contract between LaSonde and McGregor. At that time, the trial court did not enter judgment on Count 3. LaSonde filed a direct appeal from the order of dismissal, *824 but this Court dismissed the appeal.[1] Later, the trial court granted summary judgment to Chase Mortgage and McGregor on Count 3 of the complaint, noting that Count 3 had been rendered moot because LaSonde had already received the relief requested in that count. LaSonde now appeals from the order granting summary judgment, which incorporates by reference the earlier order dismissing Counts 1 and 2 of the complaint.
1. LaSonde contends the trial court erred in dismissing Count 1 for failure to state a claim upon which relief could be granted.[2] There was no error.
In order to be liable for interference with a contract, a defendant must be a stranger to both the contract and the business relationship giving rise to and underpinning the contract.[3] One is not a stranger to the contract just because he is not a party to the contract.[4] A tortious interference claim requires, among other things, wrongful conduct by the defendant without privilege; "privilege" means legitimate economic interests of the defendant or a legitimate relationship of the defendant to the contract, so that he is not considered a stranger, interloper, or meddler.[5] A person with a direct economic interest in the contract is not a stranger to the contract.[6] Parties to an interwoven contractual arrangement are not liable for tortious interference with any of the contracts or business relationships.[7]
It is clear that Chase Mortgage was not a stranger to the sales contract between LaSonde and McGregor. Chase Mortgage held the note and security deed to the property at issue. Indeed, Chase Mortgage was responsible for deciding whether to permit LaSonde or McGregor to assume the loan on the property. Chase Mortgage had a direct economic interest in the property which was the subject of the sales contract.
A motion to dismiss for failure to state a claim should be sustained if the allegations of the complaint reveal, with certainty, that the plaintiff would not be entitled to relief under any state of provable facts asserted in support of the complaint.[8] Because the complaint reveals with certainty that Chase Mortgage was not a stranger to the sales contract, the trial court properly dismissed LaSonde's claim based on tortious interference with contract.[9] We note that the trial court's decision is consistent with the Supreme Court's express desire to limit the number of entities against which a claim of tortious interference with contract may be maintained.[10]
2. LaSonde argues that the trial court erred in dismissing Count 2 for failure to state a claim upon which relief could be granted. He urges that the trial court's findings, namely that Chase Mortgage succeeded in obtaining a writ of possession and that LaSonde failed to give written notice of his intent to file an action for abusive litigation, were issues of fact. Therefore, he maintains, the issues should have been submitted to a jury. We disagree.
OCGA § 51-7-82(c) provides that it is a complete defense to any claim for abusive litigation that the person against whom the claim is asserted was substantially successful on the issue forming the basis for the claim of abusive litigation in the underlying civil proceeding. Chase Mortgage succeeded in obtaining the writ of possession against LaSonde, and the judgment in that case was not appealed. Chase Mortgage's success precludes *825 LaSonde's recovery for abusive litigation.
Moreover, OCGA § 51-7-84(a) requires that the allegedly injured party give written notice to the other party that he intends to sue for abusive litigation in order to give the potential defendant the opportunity to withdraw the allegedly abusive action or pleading. It is undisputed that no such notice was given to Chase Mortgage. Thus, the trial court properly dismissed Count 2 of the complaint.
Judgment affirmed.
BLACKBURN, P.J., and MILLER, J., concur.
NOTES
[1] Case No. A02A0954, dismissed February 15, 2002.
[2] See OCGA § 9-11-12(b)(6).
[3] Pruitt Corp. v. Strahley, 270 Ga. 430, 510 S.E.2d 821 (1999).
[4] Atlanta Market Center Mgmt. Co. v. McLane, 269 Ga. 604, 608(2), 503 S.E.2d 278 (1998).
[5] Disaster Svcs. v. ERC Partnership, 228 Ga.App. 739, 740-741, 492 S.E.2d 526 (1997).
[6] Atlanta Market Center Mgmt., supra at 609(2), 503 S.E.2d 278.
[7] Pruitt Corp., supra.
[8] Watkins v. Hereth, 257 Ga.App. 184, 570 S.E.2d 629 (2002).
[9] See id.
[10] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1030129/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6774
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAVIES JUNIOR THOMPSON, a/k/a Man, a/k/a Sld Dft 3:01CR184-
3, a/k/a Manhova,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:01-cr-00184-GCM-3)
Submitted: September 10, 2009 Decided: September 15, 2009
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Patrick Foster, Jr., LAW OFFICES OF MARK FOSTER, PC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina,
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Havies Junior Thompson appeals the district court’s
order denying relief on his motion for reduction of sentence
filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We find no
reversible error and we thus affirm for the reasons stated by
the district court. United States v. Thompson, No. 3:01-cr-
00184-GCM-3 (W.D.N.C. Apr. 6, 2009). 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
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2596731/ | 728 F. Supp. 453 (1989)
Glenda KENNARD, Plaintiff,
v.
HARRIS CORPORATION, a foreign corporation, Sanders Data Systems Group, a foreign corporation, and Paradyne Corporation, a foreign corporation, Jointly and Severally, Defendants.
No. 89-CV-72946-DT.
United States District Court, E.D. Michigan, S.D.
December 1, 1989.
Phoebe A. Corry, for plaintiff.
Kim A. Gasior and Keefe Brooks, Detroit, Mich., for Harris Corp.
Richard P. Smith, Detroit, Mich., for Paradyne Corp.
ORDER DENYING PLAINTIFF'S MOTION TO REMAND CAUSE TO THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
HACKETT, District Judge.
Plaintiff initiated the instant product liability action against defendants on August *454 25, 1989, in the Wayne County Circuit Court. The complaint alleges that defendants' negligence and breach of warranties caused plaintiff to incur permanent injuries which cause her pain, suffering, disability and mental anguish.
On October 4, 1989, defendants removed the action to this court pursuant to 28 U.S.C. § 1441, et seq. It is undisputed that diversity of citizenship exists among the parties in this suit. Plaintiff alleges, however, that the amount in controversy does not meet the $50,000.00 minimum requirement to vest this court with jurisdiction pursuant to 28 U.S.C. § 1332(a). Plaintiff thus moves for remand to the Wayne County Circuit Court.
"[T]he general rule [to determine jurisdiction pursuant to § 1332(a)] is that the amount claimed by a plaintiff in good faith controls unless it appears to a legal certainty that the claim is for less than the jurisdictional amount or unless the amount claimed is merely colorable." Bennett v. E.F. Hutton Co., Inc., 597 F. Supp. 1547, 1561 (N.D. Ohio 1984), citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938) (emphasis supplied). In the instant matter, plaintiff has pled only that "... the amount in controversy exceeds $10,000.00, exclusive of interest and costs." Complaint, Count I, ¶ 14, Count II, ¶ 13. Nowhere does plaintiff plead or argue that her damages are less than $50,000.00. Plaintiff has refused to stipulate that her damages are limited to that amount. Affidavit of Kim Adam Gastor, Exhibit A to Defendant Harris Corporation's Response to Motion to Remand. Accordingly, the complaint, which normally determines the amount in controversy to determine federal jurisdiction, is not dispositive in the instant suit. The court here cannot determine the amount in controversy from plaintiff's pleadings.
A defendant may remove a suit to federal court notwithstanding the plaintiff's failure to state an amount in controversy that establishes federal jurisdiction. Mielke v. Allstate Insurance Co., 472 F. Supp. 851, 852-853 (E.D.Mich.1979). Where the plaintiff's pleadings are insufficient to determine the amount in controversy, the court may consider the allegations of the petition for removal. McCurtain County Production Corp. v. Cowett, 482 F. Supp. 809, 813 (E.D.Okla.1978) and affidavits submitted in opposition to remand, Smith v. Executive Fund Life Insurance Co., 651 F. Supp. 269, 270 (M.D.La.1986). The court may also "make an independent evaluation of the monetary value of the claim." Id., citing Rollwitz v. Burlington Northern Railroad, 507 F. Supp. 582, 585 (D.Mont.1981). This court accordingly proceeds to make its own determination of the amount in controversy.
Plaintiff alleges that she sustained serious, permanent and progressing injuries that include pain, suffering, disability and mental anguish; loss of her voice and her ability to sing, and extreme humiliation and embarrassment. Plaintiff also claims to have incurred large sums of money for medical care and treatment and lost wages and loss of employability. She anticipates continuing medical expenses.
Defendant Harris Corporation requests that the court take judicial notice that Wayne County juries have been very liberal in awarding damages in product liability/personal injury lawsuits. Exhibit B of defendants' brief in opposition to plaintiff's motion to remand cites jury verdict results in Wayne County that have been published by the Detroit Bar Association. Those citations include nineteen products liability suits from 1986 through 1989 in which juries have awarded verdicts much larger than $50,000.00. "Federal courts may take judicial notice of proceedings in other courts of record." Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.), cert. denied, 449 U.S. 996, 101 S. Ct. 535, 66 L. Ed. 2d 294 (1980), quoting Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir.1969), cert. denied, 397 U.S. 1065, 90 S. Ct. 1503, 25 L. Ed. 2d 686 (1970); Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310, 312 (7th Cir.1970). The court accordingly takes notice of those proceedings.
After careful review of the parties' pleadings and briefs in this matter, the *455 court finds that there is a probability that the amount in controversy exceeds $50,000.00. It does not appear to a legal certainty that the claim is for less than that amount. See St. Paul Mercury, 303 U.S. at 288-289, 58 S. Ct. at 590; Bennett, 597 F.Supp. at 1561. Accordingly, plaintiff's motion to remand is DENIED.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1501924/ | 92 F.2d 41 (1937)
NAVIGAZIONE GENERALE ITALIANA
v.
SPENCER KELLOGG & SONS, Inc.[*]
THE S. S. MINCIO.
No. 468.
Circuit Court of Appeals, Second Circuit.
August 9, 1937.
Loomis, Williams & Donahue, of New York City (Homer L. Loomis, of New York City, of counsel), for appellant.
*42 Bigham, Englar, Jones & Houston, of New York City (Martin Detels and Charles W. Harvey, both of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This is an appeal from a final decree in admiralty dismissing the libel in a suit brought by the owner of the steamship Mincio for the recovery of cargo's contribution to general average losses and expenses in respect to the Mincio's engines and rudder and kindred damages alleged to have been sustained by her in working free from the strand in the Parana river on October 9 and 10, 1926, whereon she lay for about thirty-six hours. The general average adjusters reported that the total damage as a result of the stranding was $50,552.43, that $40,503.33 thereof was particular average chargeable to the owner of the vessel alone, and that the balance amounting to $10,049.10 was general average chargeable to both ship and cargo. The libelant in this suit, brought for the cargo's proportion of the last-mentioned item, sought recovery of $6,451.16.
The Mincio, a steel single screw steamer of from 7,000 to 8,000 tons, was overhauled at Genoa two months prior to the stranding where she had received the highest classification from the Italian Lloyds. She left Rosario in the Argentine on October 7, 1926, having at that port taken on board a partial cargo of 232,947 bushels (or 5963 tons) of linseed in bulk belonging to the respondent. She was in charge of a local compulsory pilot and was bound for Buenos Aires, where she was to complete her cargo of linseed in bulk by loading about 1,000 tons additional. She was to carry the cargo of linseed in bulk to New York under a charter party between Spencer Kellogg & Sons of South America, which excepted strandings, and provided that "average if any" should be "payable according to York-Antwerp Rules of 1924."
When the Mincio, with a draft of 22 feet, 6 inches, had proceeded down the Parana river as far as Martin Garcia Station, she came to anchor at 2:45 p. m. October 8, because the water was running too low in the channel for safe navigation. At 9:45 a. m. October 9, after a signal from the government semaphore that the water in the channel had reached a depth of 22 feet, 8 inches, she weighed anchor by order of her pilot and resumed her voyage down the river. About 10:15 a. m., as she was nearing buoy K-93 just above the entrance of Nuevo Channel, she stranded on the muddy, sandy bottom of the river. The river there is approximately 14 miles wide and the distance from the Uruguayan coast from 2 to 2½ miles. The width of the navigable channel at the point of stranding is about 150 feet, and the depth of water according to the soundings taken by the first officer, accompanied by the second officer, shortly after grounding, was 22 feet, 1 to 2 inches, at the bow and stern, and 23 feet at the center of the vessel. As soon as the vessel grounded, she lay on the bottom of mud and sand a little to the left side of the channel. Her engines were at once stopped and her anchors run out, including a kedge anchor run to the "starboard aft" in order to prevent the wash of any vessel passing on the starboard from pushing her stern "against the nearby bank." The place where the stranding occurred was within the zone of the Pamperos or South American hurricanes. There was evidence that such a hurricane, coming as it ordinarily does from the southwest, would tend further to lower the depth of the water. In any event it would rock, pound, and strain the vessel. The master of the Mincio testified that there was "danger of opening up seams in the plating of the steamer," though he said "the vessel was resting on an even keel with a slight list to starboard." The second officer testified that the ship was resting on the bottom at the bow and at the stern but not in the center, that, as the cargo was in the center, the ship would be strained, and, if the wind increased in velocity, might be pushed further into the bank of the channel so that, in order to proceed, she would have to be lightened and the cargo discharged. The master thought that the danger was not "immediate," but the second officer stated that it was imminent. If a serious leak developed by reason of the opening of the seams, the linseed would have been damaged and would tend to swell and choke the pumps and perhaps burst the ship's plating.
After the Mincio had stranded, the master notified the ship's agent at Buenos Aires that she had stopped at buoy K-93 *43 "for insufficiency of water" and the agents sent a tug with an official on board from the harbor master's office. The steamer attempted to get off the strand by running her engines full speed astern from 11:30 a. m. to 11:45 a. m. This was done because it was thought that the water had risen sufficiently so that she could be floated, but the attempt met with no success. On October 10, according to the engine log, the engines were again run from 11:30 to 11:45, also from 12 noon until 4 p. m., and again from 7:30 p. m. to 10:30 p. m., when the vessel got free from the bar. During the time she was aground her deck crew were engaged in taking soundings of the channel from small boats and in taking soundings of the bilges of the different holds.
After being released from the strand, the Mincio proceeded to Buenos Aires, a survey of her engines and the rudder transmission lines was held, and slight repairs to them were made. After she reached New York and discharged her cargo she was drydocked. It was then found that seventeen plates forward on the port side of the bottom of the ship were more or less badly set up or indented and the rivets and landings were leaking. Approximately 5,000 rivets scattered through the bottom plating were leaking, the cement in the double bottom on the port and starboard side was broken and disturbed from forward to aft of amidships, the frames, the floors and intercostals in the way of the damaged plating on the port side were more or less started and buckled and rivets were broken off. Rivets were leaking in No. 1 and No. 2 tank margins and there was also substantial damage to the ship's engine and steering machinery.
On the discharge of the cargo at New York, the owner of the Mincio asserted a general average lien, and in consideration of the surrender of that lien the appellee agreed in writing that, if Johnson & Higgins were appointed adjusters to determine whether and to what extent the damage constituted general average according to the provisions of the contract of appointment and to the laws and usages applicable to the case, it would pay to the owners of the vessel or Johnson & Higgins according to its ratable proportion so much of the losses and expenses as upon an adjustment of the same to be stated by Johnson & Higgins might be shown by the statement to be a charge upon the cargo. Johnson & Higgins made a general average adjustment according to which $6,451.16 was chargeable to the cargo and recovery of that amount is sought by the owners of the Mincio in the present suit.
The errors assigned by the appellant are that the District Court erred (1) in holding that there was no danger threatening the vessel sufficient to constitute a case in general average and (2) in not enforcing the agreement to pay whatever the average adjusters should find to be due to the shipowner.
There must be fair reason to regard a vessel in peril in order to require a contribution in general average. While the courts in some cases have used expressions indicating that both in general average and in salvage cases it is essential that the property at risk be subject to an immediately impending danger, we think the "imminency" of the peril is not the critical test. If the danger be real and substantial, a sacrifice or expenditure made in good faith for the common interest is justified, even though the advent of any catastrophe may be distant or indeed unlikely. In pointing out the broad discretion which must be allowed in such cases to the master of the vessel, Judge Hough said in Willcox, Peck & Hughes v. American Smelting & Refining Co. (D. C.) 210 F. 89, 91: "If he finds danger in a land-locked harbor, in shallows, at anchor, or moored to a wharf, it should be no answer to register a landsman's opinion as to the necessary absence of danger at such a place."
As Curtis, J., said in Lawrence v. Minturn, 17 How. 100, 109, 15 L. Ed. 58, where the necessity of a jettison of cargo was questioned: "It is true, that when it was actually made, the sea was smooth, and the ship in no immediate danger. But it satisfactorily appears, that these boilers and chimneys could not be thrown overboard, without the greatest risk, when there was any considerable sea. To require delay until a storm, would be, in effect, to prohibit the sacrifice."
It is argued on behalf of the cargo that there was no real risk. The master is quoted as testifying that "there was no immediate danger to ship or cargo," but he qualified this by saying that there was a danger "of opening up seams in the plating of the steamer" a prognosis which *44 the survey showed was actually realized. Indeed, when a vessel is stranded she and her cargo are practically always in a substantial peril. Such a vessel is helpless because she cannot pursue her intended voyage or deal effectively with any emergency which may arise. If in the present case a storm or any other cause had further lowered the water in the Parana, the ship would have been likely to take a further list and to strain her plates. If she should sink deeper into the mud and come to rest on some hidden submerged rock or other obstruction, that also would subject her to a further strain. The uneven bottom on which, according to the testimony of the second officer, she was already resting, also made it imperative that she should get off the strand as soon as possible, not only in order to resume her voyage but to insure the safety of ship and cargo. Where a vessel is stranded and it cannot be certain how soon she can be moved, unusual expenditures incurred in attempting to get her off the strand are proper subjects of general average. Such we believe is the doctrine of the English decisions. Vlassopoulos v. British & Foreign Marine Insurance Co., Ltd., (1929) 1 K.B. 187, 199; Charter Shipping Co. v. Bowring Jones & Tidy, 36 Ll.L.Rep. 272, 274, 275; The Bona, (1895) P. 125; and likewise of the American authorities: Aktieselskabet Fido v. Lloyd Braziliero (C.C.A.) 283 F. 62, 70, 71; The Leonie O. Louise, 4 F.(2d) 699 (C.C.A.5); The Pendragon Castle, 5 F.(2d) 56 (C.C.A.2); The Plymouth Rock (D.C.) 9 F. 413, 416; The Saragossa, Fed.Cas.No.12,334, 1 Ben. 551, 552.
In the present case we think the elements requisite to a general average act were established. There was the danger that the seams of the steamer's plating would open as was proved by the testimony of both the master and the mate and likewise by the heavy bottom damage actually sustained. There was the realization of that peril acknowledged in the master's testimony and manifested by the care with which he watched for rising water in the steamer's bilges. There was the intentional extraordinary use of the steamer's engine machinery to drive her over the bar into the deeper water and thereby at the earliest opportunity to free her from her position of peril, regardless of the risk of damage which such extraordinary use necessarily involved. These things constituted the general average act and rendered the respondent liable to contribute its proportion of expenditures incurred for the common benefit of ship and cargo.
The claim of the respondent that large vessels were constantly stranding in the river, though readily released without damage or risk, is disputed, and seems to us without sufficient foundation. The notice to the Argentine government of the stranding of the Mincio resulted in an official investigation and the dispatching of an official from the harbor master's office. Such attention would hardly be given to an ordinary incident of frequent occurrence and no importance.
Inasmuch as a case for general average was established, the agreement to pay whatever the average adjusters found due to the shipowner ought to be enforced. The case is not like that of United States v. Atlantic Mutual Ins. Co., 298 U.S. 483, 56 S. Ct. 889, 891, 80 L. Ed. 1296, where there was no agreement to pay the amount found due by the average adjuster, so that Justice Van Devanter, who wrote the opinion of the court, remarked: "In the absence of some stipulation on the subject, and there was none, his function was only that of aiding or assisting the owner in gathering and stating data and making appropriate calculations as a suggested basis for an adjustment to be made by the owner, or under the owner's direction."
In the present case the lien of the ship upon the cargo to secure payment of its share in general average was released upon the agreement by the respondent: "that so much of the losses and expenses * * * as upon an adjustment of the same to be stated by Johnson & Higgins, Average Adjusters, according to the provisions of the contract of affreightment and to the laws and usages applicable, may be shown by the statement to be a charge upon said cargo, or to be due from us, shall be paid by us respectively, according to our ratable proportion thereof, to the owners of said vessel, or Johnson & Higgins, in and for settlement in accordance with said statement."
It is not necessary to say that the agreement contemplated a submission to the general average adjusters of the issue whether the case was one of general average. Cf. Corrado Societa Anonima Dinavagazione v. L. Mundet Sons, Inc. (D. *45 C.) 18 F. Supp. 37. We have, therefore, discussed the evidence bearing on that question and have found that the situation was such. We think that the agreement did contemplate the submission of the amount of the expenditures and what proportion of general average expenses should be borne by the cargo. Upon examination of the statement of the adjusters we find that the expenditures classed by them as general average expenses were proper ones. Nor do we find any attacks made upon the adjustment by the respondent other than certain claims that the case was not one for general average and that the vessel was unseaworthy. None of these general criticisms is borne out by the record. Accordingly we have a situation where a case for general average has been established, no successful attack has been made on any item allowed by the adjusters, and the respondent has agreed to pay the amount found due. So far as the items were proper charges in general average, and they seem to us such, the decision in Rebora v. British & Foreign Marine Ins. Co., 258 N.Y. 379, 180 N.E. 90, where the findings of the adjusters were held conclusive, is pertinent. The situation in no way resembles one in which there is no agreement to accept such findings. Accordingly there is due the libelant from the respondent $6,451.16, with interest from November 8, 1928, the date of the general average statement under which interest has been reckoned to that date. (See Exhibit 4, p. 23.)
As already intimated, the contention that the vessel was unseaworthy, based as it is on little more than speculation, ought not to prevail. Likwise we think that there was no breach of clause 3 of the charter due to failure to cross the bar. The clause was not an absolute guaranty to cross the bar safely, but only that the steamer should not be loaded with more than could reasonably be expected to be carried over the bar. The failure to pass was due to the wrong signal of the government semaphore rather than to any negligence in loading that rendered the vessel unseaworthy or caused a breach of clause 3 of the charter.
The decree is reversed, with costs, and a decree directed for the libelant and against the respondent for $6,451.16, together with interest from November 8, 1928.
NOTES
[*] Writ of certiorari denied 58 S. Ct. 271, 82 L.Ed. ___. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1089633/ | 430 So.2d 1217 (1983)
COMMERCIAL UNION INSURANCE COMPANY
v.
Armand V. MELIKYAN, et al.
No. 82 CA 0624.
Court of Appeal of Louisiana, First Circuit.
April 5, 1983.
Rehearing Denied May 20, 1983.
*1218 David S. Bell, Baton Rouge, for plaintiffappellee, Commercial Union Ins. Co.
Jerry McKernan, Baton Rouge, for defendant-appellee, Arman V. Melikyan.
Lawrence A. Durant, Baton Rouge, for defendant-appellee, John A. Melton.
Craig Kaster, Baton Rouge, for defendant-appellee, Don R. Estellee.
Stephen K. Peters, Baton Rouge, for defendant-appellant, Arman V. Melikyan.
Before LOTTINGER, COLE and CARTER, JJ.
CARTER, Judge.
This appeal by Arman V. Melikyan arises out of a series of transactions which are as follows.
In 1973, plaintiff, Commercial Union Insurance Company (Commercial), entered into a General Application and Indemnity Agreement with Lent, Inc., as principal, and with Lent, Inc., Arman V. Melikyan, John A. Melton, and Don (Donathan) R. Estelle, as indemnitors, providing for indemnification to Commercial for any sums that Commercial may be required to pay on bonds issued for Lent, Inc. for performance of certain construction contracts.
Relying upon this indemnification agreement, Commercial subsequently issued performance bonds on three separate jobs undertaken by Lent, Inc.[1] Lent, Inc. defaulted on payments to certain subcontractors *1219 and Commercial made various payments to discharge its bond obligations.[2]
After making payments to discharge its bond obligations, Commercial filed this proceeding naming as defendants, Melikyan, Melton, and Estelle, and seeking a judgment in solido against the defendants in the sum of $40,313.76, with interest, attorney's fees, and costs.
After the original petition was filed, Commercial filed a motion to dismiss its action against John A. Melton, reserving all rights and causes of action against all other defendants, namely, Melikyan and Estelle. On February 3, 1980, judgment was signed pursuant to the motion, and this judgment is now final and not a part of this appeal.
It appears from the record that in April of 1976, in consideration of the transfer of all of Estelle's stock in Lent, Inc., that Lent, Inc., Melikyan, and Melton entered into a Hold Harmless Agreement with Estelle agreeing to hold him harmless and indemnify him (Estelle) from all claims, damages, *1220 actions, etc., including attorney's fees, resulting from any obligation Estelle may incur as an indemnifier of Lent, Inc. On January 23,1980, Estelle filed an answer to the petition of Commercial, denying the various allegations and asserting affirmative defenses, and additionally filed a thirdparty demand against Melikyan and Melton. In Estelle's third-party demand, he asked for judgment (based on the Hold Harmless Agreement) against Melton and Melikyan for all amounts that he may be condemned to pay to Commercial, plus costs and attorney's fees.
Therefore, at this stage, we find Commercial filing suit against Melikyan, Estelle, and Melton, as three of its four indemnifiers, and Estelle filing a third-party petition against Melton and Melikyan as two of three of his indemnifiers. Melton was released from the suit by Commercial, as to Commercial's claim, but remains in the proceeding as one of three indemnifiers of Estelle under the 1976 Hold Harmless and Indemnification Agreement between Estelle and Melton, Melikyan, and Lent, Inc.
On February 26, 1980, Melikyan filed an answer to the petition of Commercial, an answer to the third-party demand of Estelle, and additionally filed a third-party demand against Melton alleging that Melton, as a co-debtor in solido, was liable for contribution to Melikyan for one-half of the debts and liabilities owed both to Commercial and Estelle.
Melton filed an answer to the third-party petition of Melikyan and additionally filed a reconventional demand against Melikyan alleging that in the event that he is found to be a co-debtor in solido with Melikyan (to Estelle) as a result of Estelle's third-party action, then Melikyan is indebted to Melton for one-half of any sums for which he may be held liable to Estelle.
The trial court determined that the actual amount owed to Commercial was $37,300.04, plus attorney's fees of $11,978.59, for a total of $49,278.63. Since there were four indemnifiers on the General Application and Indemnity Agreement (Lent, Inc., Melikyan, Melton, and Estelle), and one of these indemnifiers (Melton) had been released by Commercial, the total amount was then reduced by one-fourth to reflect Melton's release, and judgment was rendered in favor of Commercial and against Melikyan and Estelle, in solido, in the amount of $36,958.77.[3]
The trial court further rendered judgment in favor of third-party plaintiff Estelle and against third-party defendants, Melikyan and Melton, in solido, for any sums that Estelle actually pays to Commercial, plus in any event, the sum of $1,397.25 as attorney's fees and additionally all costs.
The third-party demand of Melikyan against Melton seeking contribution for "one-half of the total amount of debts and liabilities allegedly owed to both Commercial and Estelle" was rejected.
The reconventional demand of Melton against Melikyan seeking contribution by Melton from Melikyan in the event that Estelle was successful in effecting recovery against Melton on the Estelle claim was also rejected.
Melikyan, alone, has appealed with the following assignments of error:
1. The trial court erred in holding that Commercial Union sustained its burden of proof by a mere showing of "good faith payment," although it failed to prove the claims it paid were owed by Lent, Inc., as principal, or were bonded claims for which the appellant would be liable as indemnitor.
2. The trial court erred in awarding attorney's fees to Commercial Union and Don R. Estelle against appellant.
3. The trial court erred in reducing the debt by one-fourth rather than onethird.
4. The trial court failed to recognize the legitimacy of appellant's claim for *1221 contribution of one-half from John A. Melton with respect to the obligation of appellant to Commercial Union and Don R. Estelle.
ASSIGNMENT OF ERROR NO. 1
Appellant contends that although Commercial proved that it paid these claims, it failed to prove that Lent, Inc. actually owed the claims, and that even if Lent's liability had been established, the indemnitors would not be liable unless it was proven that liability was within the scope of the bond obligation undertaken by Commercial.
As we appreciate appellant's argument, he is saying that because La.Civ.Code art. 3037[4] requires that the surety obligation not exceed what may be due by the debtor nor be contracted under more onerous conditions, Commercial was bound to satisfactorily prove at trial the amounts of the claims against Lent, Inc. and whether the claims were within the scope of the bond obligation. Appellant fails to recognize, however, that this is a suit on a contract of indemnity, not on suretyship. The contract of indemnity forms the law between the parties and must be interpreted according to its own terms and conditions. See Grady v. Alfonso, 315 So.2d 832 (La. App. 4th Cir.1975). In a surety contract, the surety cannot be bound to the obligee to any greater extent than the obligation contained in the agreement between the obligor and obligee, but in an indemnity contract, the principal and indemnitors can be bound to the surety in any manner they elect in consideration of the surety issuing the bond covering the principal obligation.
The answer to appellant's claim lies in Section 5 of the General Application and Indemnity Agreement. That Section reads as follows:
"5. We agree that the Company shall have the exclusive right to decide and determine whether any claim, liability, suit or judgment made or brought against the Company or any of us on any such bond shall or shall not be settled, compromised, resisted, defended, tried or appealed, and the Company's decision thereon, if made in good faith, shall be final and binding upon us. An itemized statement of payments made by the Company for any of the purposes specified herein, or the voucher or vouchers for such payments, shall be prima facie evidence of our liability to reimburse the Company for such payments, with interest." (Underlining by the Court)
This Section clearly gives to Commercial the exclusive right to determine whether the claims should be settled. Proof of payments made by Commercial constitute prima facie evidence of defendants' liability. Two notarized documents, entitled "Receipt, Release, Assignment and Subrogation," were entered into evidence, one executed by Vincent's Construction, and one executed by B & B Insulation, which attest to the amounts paid to these companies by Commercial on its bond obligation. (Payments on claims to these two companies were the only payments that were contested by the defendants).
The only real issue is whether these payments were made in "good faith". The trial court found that they were. Testimony and evidence received during trial show that Commercial made repeated efforts to discuss the claims with Mr. Melikyan. The trial court found that Mr. Melikyan had some questions as to the amount of the Vincent claim but did not dispute the existence of the claim. However, neither Mr. Melikyan nor any other of the indemnitors ever furnished to Commercial any basis on which a defense to the amounts of any claims could have been made.
*1222 Apparently, appellant argued in the trial court that some claims exceeded the original subcontract agreements and that Commercial should have known about these changes and should have refused to honor the additional claims. However, Mr. Melikyan testified that he never gave Commercial any change orders or any other written document or any evidence showing any change in the B & B or the Vincent contract.
The trial court stated the following in written reasons and we agree:
"First, the court notes that the bond for private work in this case issued to Lent for the protection of Niro was for a total of $256,400.00. An inspection of the bond (filed in evidence as C.U.-5) fails to show that the coverage is less than the above total for any one contract or subcontract. In other words, the bond is not broken down into specific amounts of protection per subcontract. In short, the court believes that the bond in question provided a coverage limit up to the face amount regardless of the original contract limit of a subcontractor. It would be novel indeed for this court to hold that a claim by a subcontractor which exceeded the original subcontractor price, but which did not come even close to exceeding the bonded amount, would not be covered by the bond. This is especially true when, as here, the bond makes no distinction, or even mention of any subcontract. The court believes that so long as the face amount of the bond has not been exceeded, then all payments by plaintiff relating to the Niro job were proper."
Having found that plaintiff properly paid the claims in good faith, in accordance with authority given to it in the indemnity agreement, we now look to see if plaintiff can be indemnified for these payments. Section 2 of the General Application and Indemnity Agreement reads as follows:
"2. We will perform all the conditions of such bonds and indemnify the Company against any and all liability, loss, costs, damages, fees of attorneys and other expenses which the Company may sustain or incur in consequence of the execution of such bonds, including but not limited to, sums paid or liability incurred in settlement of, and expenses paid or incurred in connection with claims, suits or judgments under any such bonds, expenses paid or incurred in enforcing the terms hereof, in procuring or attempting to procure release from liability, or in recovering or attempting to recover losses or expenses paid or incurred, as aforesaid."
We find no ambiguity in this provision. Clearly, the indemnitors bound themselves to Commercial for any and all liability Commercial may incur in consequence of the execution of the bonds.
ASSIGNMENT OF ERROR NO. 2
Appellant contends that the awards of attorney's fees to Commercial and Estelle are based on contractual guaranties which were given under more onerous conditions than the principal obligation owed by Lent, Inc. to its creditors, in violation of La.Civ. Code art. 3037. Appellant argues that since the obligation by him to Commercial was dependent upon the liability of Lent Inc. to its creditors, Commercial's rights against its indemnitors are limited thereby. Again, we point out that we are not dealing with a suretyship obligation, but with a contract of indemnity which must be construed according to its own terms.
With regard to attorney's fees claimed by Commercial, the trial court held as follows:
"Furthermore, the court also holds that the defendants must pay to plaintiff $6,978.59, which sum reflects the expenses and fees of attorneys which the plaintiff incurred as a consequence of Lent's default. Authority for this award is found in the clear unambiguous language of Section 2 of the indemnity agreement referred to above. Additionally, the court awards the plaintiff $5,000.00 as reasonable attorney's fees in connection with the enforcement of the indemnity agreement, as provided in the indemnity agreement."
The claim by Commercial for attorney's fees is based solely on Section 2 of the *1223 General Application and Indemnity Agreement which forms the law between the parties. That section clearly provides for attorney's fees incurred in the execution of the bonds. See Al Smith's Plumbing, Etc. v. River Crest, Inc., 365 So.2d 1122 (La.App. 4th Cir.1978).
With regard to Estelle, the Hold Harmless Agreement entered into between him and Lent, Inc., Melikyan, and Melton clearly provides that Estelle be indemnified for any attorney's fees he may incur as an indemnitor of Lent, Inc. Again, this contract forms the law between the parties and the award to Estelle of attorney's fees incurred in enforcing the Hold Harmless Agreement is correct.
ASSIGNMENT OF ERROR NO. 3
The indemnity agreement lists Lent, Inc., as principal, and Lent, Inc., Melikyan, Melton, and Estelle as indemnitors. Appellant, relying on La.Civ.Code art. 3035[5], argues that since Lent, Inc. was the principal in the indemnity agreement, that it cannot also be an indemnitor in the same agreement. Thus, only the three named individuals are indemnitors, and the release of Melton must operate to reduce the claim by one-third rather than one-fourth.
In the indemnity contract, Lent, Inc. is identified as a principal and as an indemnitor. The language of the agreement clearly indicates that Lent, Inc. is bound, in either capacity, with the three individuals for any liability Commercial may incur in consequence of the execution of the bonds. The trial court was correct in finding that there were four solidary obligors and in reducing the judgment by one-fourth.
ASSIGNMENT OF ERROR NO. 4
Appellant argues that he is entitled to contribution from John Melton for one-half of his total liability.
La.Civ.Code art. 2103 provides that a defendant who is sued on a solidary obligation may enforce contribution, if he is cast, against his solidary co-debtor. However, when a creditor settles with one solidary obligor, there is no basis for a claim by the unreleased solidary obligor for contribution against the released solidary obligor. Since the creditor has deprived the unreleased obligor of his right to enforce contribution, the amount recoverable against the unreleased obligor is reduced pro rata. Wallace v. Pan American Fire & Cas. Co., 386 So.2d 158 (La.App. 3rd Cir.1980). Commercial settled with and released John Melton, and the trial court correctly reduced Commercial's total claim to reflect this release. Melikyan has no further rights against Melton for any part of the amounts Melikyan may pay to Commercial.
However, as to Melikyan's claim against Melton for contribution for sums Melikyan must pay to Estelle on the Hold Harmless Agreement, the trial court judgment is reversed. The trial court correctly found that Melikyan and Melton were liable, in solido, to Estelle, because of the Hold Harmless Agreement, for any amounts Estelle might have to pay to Commercial and for attorney's fees. Because Melikyan and Melton are solidary obligors, as to the Hold Harmless Agreement, Melikyan's claim for contribution from Melton on any amounts Melikyan pays to Estelle should be allowed, but only for one-third of the amount, not one-half, since Lent, Inc., Melton and Melikyan were the three obligors on the Hold Harmless Agreement contracted with Estelle.[6]
After the delays for answering this appeal had expired, Commercial, appellee, filed a Motion to File Additional Evidence in Record with this Court seeking an increase in attorney's fees for post-trial legal *1224 services rendered. LSA-C.C.P. art. 2133 provides that an appellee is not obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. This Commercial did not do; therefore, we cannot grant an additional amount in attorney's fees for legal services rendered post-trial.
For the above reasons, the trial court judgment denying Melikyan's claim for contribution against Melton for sums Melikyan may pay to Estelle is reversed and judgment is rendered in favor of Arman V. Melikyan and against John A. Melton for one-third (1/3) of any sums that Melikyan may pay to Estelle under the Hold Harmless Agreement only. In all other respects, the judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.
NOTES
[1] This appeal involves only one of the jobs, a job for which Commercial bonded a contract between Lent, Inc. and Niro Atomizer, Inc. in the amount of $256,400.00 in August, 1975. The job was for the various work at the Conoco Plant in Lake Charles, Louisiana.
[2] The trial court found and we agree as follows:
"The third and final contract and the only one which remains in controversy, is an agreement signed on August 7, 1975 between Lent and Niro Atomizer, Inc. for construction of improvements at the Continental Oil Company (Conoco) plant in Lake Charles. Once again the controversy centers around two subcontracts entered into by Lent, one being with B & B Insulation of Louisiana, Inc., and a second with Vincent Construction, Inc. The court will deal with each subcontract separately; however, it is important to note at the outset that the original bond issued on the work by plaintiff was in the amount of $256,400.00.
"First was the contract signed between Lent and B & B in July of 1975 for insulation work on the Niro job. For simplicity, the court will divide the B & B subcontract into two separate phases. The first phase shall be called the purchase order work; the second shall be labeled as extra work.
"The first phase entailed work at the initial price of $82,800 which was covered under the original bond. Subsequent to this time, new purchase orders were made totalling $36,955.73. The present controversy involves this second figure. Defendant argues that because this figure was not included in the original contract, plaintiff's bond did not cover it and therefore plaintiff should not have made any payments which related to this $36,955.73 figure for new purchase orders. Plaintiff argues in opposition that the bond did cover increases such as this, and therefore, the indemnitors agreement `reaches' the plaintiff's payments relating to this amount.
"The second phase involves extra work B & B did on the job, only partly paid for by Lent, and the later paid-up by plaintiff. It is apparent to the court that the extra work referred to simply means day to day extras any job would entail. The total extra work billed by B & B was $27,582.58; of this amount, Lent paid $10,225.98 leaving a balance of $17,356.60 which was later paid in full by plaintiff. Defendant raises the same argument as above; namely that this work was not covered by the original bond and therefore should not have been paid by plaintiff.
"The second subcontract on the Niro job was with Vincent Construction, Inc. the total due Vincent came to $16,163.10 of which $11,403.24 was paid by plaintiff. Defendant submits two defenses to this payment by plaintiff: 1) defendant raises the same defense as above, namely that this was work done not bonded by plaintiff, and therefore plaintiff should not have paid it; 2) in the alternative, defendant argues that even if this work by Vincent was bonded Lent had a defense to Vincent's claim and plaintiff was notified of such, and therefore should not have paid it.
"The court now turns to a consideration of the defenses raised by the defendant in light of the indemnity agreement signed by the defendant's, the applicable provisions of the bond between Niro and Lent, and finally the jurisprudence on the issue.
"First, the court notes that the bond for private work in this case issued to Lent for the protection of Niro was for a total of $256,400.00. An inspection of the bond (filed in evidence as C.U.-5) fails to show that the coverage is less than the above total for any one contract or subcontract. In other words, the bond is not broken down into specific amounts of protection per subcontract. In short, the court believes that the bond in question provided a coverage limit up to the face amount regardless of the original contract limit of a subcontractor. It would be novel indeed for this court to hold that a claim by a subcontractor which exceeded the original subcontractor price, but which did not come even close to exceeding the bonded amount, would not be covered by the bond. This is especially true when, as here, the bond makes no distinction, or even mention of any subcontract. The court believes that so long as the face amount of the bond has not been exceeded, then all payments by plaintiff relating to the Niro job were proper."
[3] No one sued Lent, Inc. or made Lent, Inc. a defendant or third-party defendant, and no claim was filed against Lent, Inc. for any sum whatsoever, including no claim for contribution.
[4] La.Civ.Code art. 3037 provides as follows:
Art. 3037. Extent of suretyship obligation
"The suretyship can not exceed what may be due by the debtor, and not be contracted under more onerous conditions.
It may be contracted for a part of the debt only, or under more favorable conditions.
The suretyship which exceeds the debt or which is contracted under more onerous conditions shall not be void, but shall be reduced to the conditions of the principal obligation."
[5] La.Civ.Code art. 3035 provides as follows:
Art. 3035. Suretyship, definition
"Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not."
[6] Lent, Inc. (along with Melikyan and Melton) also was a party to the Hold Harmless Agreement but not sued in any capacity. The amount recoverable must be reduced by onethird to reflect Lent, Inc.'s pro rata share. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1695646/ | 581 So.2d 357 (1991)
Jean Edna MUMPHREY, as Tutor for, and on Behalf of Alan David Mumphrey, Jr., a Minor
v.
Ralph J. GESSNER, M.D., Walter H. Brent, Jr., M.D. Chalmette General Hospital, Inc., Sherman Bernard, Commissioner of Insurance and the Louisiana Patient's Compensations Fund.
No. 90-CA-2187.
Court of Appeal of Louisiana, Fourth Circuit.
May 30, 1991.
*358 Stewart E. Niles, Jr., Deborah A. Van Meter, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellee Ralph J. Gessner, M.D.
James E. Hritz, Rodney J. Lacoste, Jr., Stassi, Rausch & Giordano, Metairie, for defendants-appellants Ralph J. Gessner, M.D., Walter H. Brent, Jr. M.D., Chalmette General Hosp., Inc., Sherman Bernard Com'r of Ins. and the Louisiana Patient's Compensation Fund.
Before KLEES, LOBRANO and WARD, JJ.
KLEES, Judge.
The Louisiana Patient's Compensation Fund appeals the trial court's granting of summary judgment dismissing its third party demand against Dr. Ralph Gessner. We affirm.
This action arises out of a claim by Jean Edna Mumphrey on behalf of the minor, Alan David Mumphrey, for the wrongful death of his mother, Donna Mumphrey, on February 11, 1985, following complications which arose after Ms. Mumphrey underwent back surgery.
Plaintiff first submitted the claim to a medical review panel pursuant to La.R.S. 40:1299.41 et seq., the Medical Malpractice Act. On October 15, 1987, the panel found that Dr. Ralph Gessner and Dr. Walter H. Brent, Jr. had failed to comply with the appropriate standard of care as charged in the complaint of malpractice. The panel also found that the evidence did not support the conclusion that Chalmette General Hospital and Dr. Richard Foster had failed to meet the applicable standard of care.
On November 9, 1987, plaintiff filed a petition for damages against Drs. Brent, Gessner, and Foster, and Chalmette General Hospital. Subsequently, LAMMICO, the professional liability insurer for both Drs. Gessner and Brent, was also named as a party defendant.
Plaintiff reached a settlement in the amount of $100,000 with Dr. Brent. On June 28, 1989, the settlement and release of plaintiff's claims against Dr. Brent was judicially approved. On the same date, a motion to dismiss without prejudice LAMMICO, Dr. Gessner, Chalmette General Hospital and Dr. Foster was also filed and signed. Finally, plaintiff filed a fifth supplemental and amending petition against the Louisiana Patient's Compensation Fund, the Office of The Commissioner of Insurance of the State of Louisiana and the Office of the Attorney General of the State of Louisiana seeking excess damages and alleging an admission of liability by Dr. Brent pursuant to La.R.S. 40:1299.44(C)(5).
On September 13, 1989, the Fund answered and by third party demand sought contribution from Drs. Gessner and/or Foster and credit against plaintiff's recovery for said doctors' negligence. The Fund asserted it was entitled to make such a claim for credit to the full extent of the *359 statutory limits of liability of Drs. Gessner and Foster, due to their alleged negligence.
An exception of no cause of action, or alternatively motion for summary judgment, was filed by plaintiff claiming that as a matter of law, the settlement with Dr. Brent constituted a statutory admission of liability, and that the only issue to be litigated between the plaintiff and the Fund was the quantum of damages. By judgment dated March 1, 1990, the trial court ruled in favor of the plaintiff.
The issue of the Fund's right to contribution based on the alleged negligence of the third-party defendants, Drs. Gessner and Foster, was not addressed by the trial court's judgment. The court granted plaintiff's motion for summary judgment upholding the statutory admission of liability by Dr. Brent. The court also granted plaintiff's motion to sever, bifurcating plaintiff's trial for damages from the Fund's third-party demand for contribution.
Before plaintiff's trial on quantum began, a settlement was entered into between plaintiff and the Fund whereby plaintiff received $200,000 over and above the $100,000 already received from Dr. Brent. The settlement agreement was adopted by the trial court, and the motion and order of dismissal explicitly reserved the Fund's right to proceed against Dr. Gessner pursuant to its third-party demand for contribution.
In response to the Fund's third-party demand, Dr. Gessner filed a motion for summary judgment asserting that the Fund had no cause or right of action to seek contribution from him. The Fund asserted that it had a right to contribution against Dr. Gessner for damages it had paid to the original plaintiff through legal subrogation. On November 12, 1990, the trial court granted the motion for summary judgment, dismissing the third-party demand of the Fund against Dr. Gessner. The Fund has appealed devolutively from this judgment.
On appeal, the Fund contends that it is entitled to seek contribution from Dr. Gessner because: (1) As an obligor which has paid a debt it owes with or for another, the Fund has recourse against that other (Dr. Gessner) by means of the legal subrogation provided for in La.Civil Code art. 1829; and (2) Public policy mandates that the Fund be allowed to seek contribution from allegedly negligent health care providers in order to protect the fiscal integrity of the Fund. Conversely, appellee Dr. Gessner argues that the Fund has no right to seek contribution under the terms of R.S. 40:1299.44(C)(5), especially as that section has been interpreted by the Louisiana Supreme Court in Stuka v. Fleming, 561 So.2d 1371 (La.1990), cert. denied by Louisiana Patient's Compensation Fund v. Stuka, ___ U.S. ___, 111 S.Ct. 513, 112 L.Ed.2d 525 (1990).
After reviewing the applicable law, we agree with the trial judge that the Fund has no right to seek contribution in this instance.
R.S. 40:1299.44(C)(5) states, in pertinent part:
In approving a settlement or determining the amount, if any, to be paid from the patient's compensation fund, the court shall consider the liability of the health care provider as admitted and established where the insurer has paid its policy limits of one hundred thousand dollars, or where the self-insured health care provider has paid one hundred thousand dollars.
The instant case, like Stuka v. Fleming, supra, involves a suit against multiple health care providers after the plaintiff has settled with one of those health care providers for $100,000. In Stuka, the plaintiff had settled with one doctor for $100,000 and released with prejudice two other doctors, and was claiming excess damages from the Fund. The issue before the Court was whether the Fund, in its litigation with the plaintiff over quantum, could attempt to prove the liability of the two non-contributing doctors in order to get a potential $100,000 from each.
After stating that the statute does not expressly provide for a case in which multiple health care providers have been joined as defendants and only one pays $100,000 *360 in settlement, the Court held that the Fund could not litigate the issue of liability in order to get contribution from the other health care providers. Stuka v. Fleming, supra, 561 So.2d 1371. The Court noted that, after such a settlement has occurred between the malpractice victim and a health care provider, the status of the Fund is more in the nature of a statutory intervenor than a party defendant. Id. at 1374, citing Williams v. Kushner, 449 So.2d 455, 458 (La.1984). At that point, the only issue between the victim and the Fund is the amount of damages sustained by the victim. Id. The Court concluded by stating:
We recognize that this literal interpretation of the statute affords less rights to the Fund when claims against multiple health care providers are settled than when such claims are tried. In the case of a trial the Fund has the opportunity for reduced exposure when more than one health care provider is determined to be liable. But in the case of a settlement with one health care provider for $100,000 the Fund does not have this opportunity in the subsequent litigation with the victim. However, the Legislature chose in cases of settlement simply to declare the admission of liability by the $100,000 payment of one health care provider and did not provide for the Fund's affirmative right to litigate liability on the part of any other named or unnamed health care providers.
Id. (Emphasis added).
Appellant argues that Stuka v. Fleming does not control this case because of two distinguishing factors: (1) In Stuka, the non-contributing health care providers were released with prejudice; whereas, in the instant case, Dr. Gessner was released without prejudice; and (2) Stuka only applies to the litigation between the malpractice victim and the Fund, which has ended in this case because the Fund has settled with the plaintiff, and only the Fund's claim for contribution remains. We find neither of these arguments to be persuasive.
Dr. Gessner's release without prejudice would be significant only if the Fund were subrogated to plaintiff's rights against him as a co-obligor under Civil Code article 1829(3). However, the Fund is not a co-obligor with liable health care providers. Our Supreme Court has stated that "[t]he fund is not a negligent party and does not have the status of an Article 2315 defendant." Koslowski v. Sanchez, 576 So.2d 470 (La. 1991), quoting Williams v. Kushner, 549 So.2d 294, 296 (La.1989). The Court termed the Fund "a third party with an interest in the proceedings when damages exceed $100,000. Koslowski, supra at 474.
According to the jurisprudence interpreting the Medical Malpractice Act, the position of the fund is sui generis; it is a creature of statute and has only those rights expressly given to it by the legislature. Therefore, in Kelty v. Brumfield, 534 So.2d 1331 (La.App. 4th Cir.1988), writ denied, 536 So.2d 1221 and 536 So.2d 1222 (La.1989), this court held that the Fund did not have the right to urge the defense of prescription under Civil Code article 3453 once the health care provider had settled for its maximum liability. We stated:
Thus the Fund is limited by the provisions of the Medical Malpractice Act, the act which created it. We are of the opinion that the legislature did not intend to give the Fund equal status as a party defendant once the health care provider settled for its maximum liability. In those instances, the legislature reserved to the Fund only the right to contest the amount of damages and nothing more. We therefore conclude, under the factual scenario of this case, that the Fund was not given the status of "creditor or other person" within the meaning of Civil Code Article 3453.
Id. at 1334. Similarly, we hold in the instant case that the Fund does not have the status of a co-obligor under article 1829 and is not subrogated to the plaintiff's rights against the health care providers. Therefore, it makes no difference whether the health care provider has been released with or without prejudice.
Appellant's second argument is that the instant case is fundamentally different from Stuka v. Fleming because there is no *361 longer any litigation between the Fund and victim, as the Fund has settled with the plaintiff for $200,000. However, Stuka held that the Fund is precluded from litigating the issue of the liability of a non-contributing health care provider once there has been a settlement for $100,000. Even though the victim is no longer in the suit, the liability of Dr. Gessner to the victim would still have to be litigated in order to determine whether the Fund is owed contribution. As the Court stated in Stuka, the statute does "not provide for the Fund's affirmative right to litigate liability on the part of any other named or unnamed health care providers." 561 So.2d at 1374. In view of this language, we find that the trial court was correct in holding that the Fund has no right to seek contribution in this case.
Finally, with regard to appellant's public policy argument, we find that the fiscal integrity of the Patient's Compensation Fund is adequately protected by the statute which created it, without granting it a right to contribution not contemplated by that statute.
Accordingly, for the reasons stated, we affirm the summary judgment of the trial court dismissing appellant's claim for contribution.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1733184/ | 367 So.2d 836 (1979)
Hiram DEVORE, Individually and Annie Inez Devore
v.
HOBART MANUFACTURING COMPANY, Cleveland Manufacturing Company, and Cleveland Consolidated, Inc.
No. 62810.
Supreme Court of Louisiana.
January 29, 1979.
Rehearing Denied March 5, 1979.
*837 Dee D. Drell, Gravel, Roy & Burnes, Alexandria, for plaintiff-applicant.
Grove Stafford, Jr. and John C. Pickels, Stafford, Randow, O'Neal & Smith, Edwin O. Ware, III, Dist. Atty., Gus A. Voltz, Jr., Asst. Dist. Atty., for Sybil T. Jones and the Rapides Parish School Bd., defendants-respondents.
CALOGERO, Justice[*]
Plaintiff Annie Devore, a school board employee who was injured on October 2, 1974 when boiling water spewed out of a double steamer in a school kitchen, and whose claim for damages against the steamer's manufacturer prescribed for failure to sue in one year, contends in this litigation that she is entitled to recover from the Rapides Parish School Board and their Director of School Food Service, Mrs. Sybil T. Jones, because defendants negligently misadvised her and her lawyer that the manufacturer of the steamer was Cleveland Manufacturing Company, rather than Cleveland Range Company.
The trial court dismissed plaintiff's petition on exception of no cause of action and the Court of Appeal affirmed. 359 So.2d 1108.
We recite the following chronology of asserted and/or conceded facts:
October 2, 1974Plaintiff's accident and injury occurred.
July 30, 1975Plaintiff's attorney wrote the school board requesting the name of the manufacturer of the steamer.
August 15, 1975Sybil T. Jones, Director of School Food Service wrote plaintiff's attorney advising that the manufacturer of the equipment was Cleveland Manufacturing Company of Cleveland, Ohio.
Between August 15, 1975 and September 30, 1975Plaintiff's attorney determined that Cleveland Manufacturing Company was not listed by the Secretary of State as a foreign corporation authorized to do and/or doing business in Louisiana (it was stipulated that Cleveland Range Company was likewise not listed); plaintiff's attorney consulted the Secretary of State's listing to determine the names and addresses of all corporations having names similar to Cleveland Manufacturing Company and discovered therein only Cleveland Consolidated, Inc.
September 30, 1975Suit was filed against Cleveland Consolidated, Inc., Hobart Manufacturing Company, a company the name of which plaintiff apparently gave her attorney, and Cleveland Manufacturing Company, the name furnished by Mrs. Jones.
October 1, 1975Anniversary date of the accident.
June 18, 1976Plaintiff by supplemental petition sued Cleveland Range Company and, in the alternative, defendants Rapides Parish School Board and Sybil T. Jones.
December 6, 1977An exception of prescription by Cleveland Range Company was maintained.
Plaintiff's petition against Rapides Parish School Board and Mrs. Jones states:
"7.
On July 30, 1975, counsel for petitioners wrote a letter to the Rapides Parish *838 School Board requesting information as to the manufacturer of the equipment alleged to have caused the aforesaid injuries to petitioner, ANNIE INEZ DEVORE; defendant Rapides Parish School Board was at that time, and still is, the owner and custodian of the aforesaid equipment, and, in response to the aforesaid request by counsel for petitioners, the said Rapides Parish School Board through Mrs. Sybil T. Jones, Director of School Food Services, on August 15, 1975, replied to counsel for petitioners, in writing, that the manufacturer of the equipment referenced above was `Cleveland Manufacturing Company of Cleveland, Ohio.' Petitioners, relying on the representations made by the said Mrs. Jones filed this action against Cleveland Manufacturing Company.
8.
Defendant, Sybil T. Jones, at all times knew or should have known that the actual manufacturer of the aforesaid equipment was the Cleveland Range Company, and, for reasons unknown to petitioners, negligently misinformed petitioner's counsel as to the proper manufacturer of the steamer. Said representations by Mrs. Jones were negligent, and said Rapides Parish School Board as employer of petitioner ANNIE INEZ DEVORE, and as owner and custodian of the steamer, had a duty to petitioners to properly apprise them of the name of the proper manufacturer of the said equipment and defendants, Rapides Parish School Board and/or Sybil T. Jones breached that duty; further petitioners had a right to rely upon said representations because of defendant School Board's position as employer of petitioner, ANNIE INEZ DEVORE, and as owner and custodian of the steamer."
Neither fraud nor intentional misrepresentation was alleged in the petition; nor are these elements arguably present in the case.
Plaintiff in the trial court and in the Court of Appeal asserted that Article 2315 and Article 2316 of the Louisiana Civil Code support this cause of action for negligent misrepresentation. While they cited no Louisiana cases on point they did cite and argue as analogous support for their position Restatement (Second) of Torts, Section 552.[1]
The Court of Appeal determined that Louisiana law did not afford plaintiff a cause of action upon the recited facts and concluded that even if they were to hold pertinent in Louisiana the common law cause of action for negligent misrepresentation referred to and defined in the Restatement that plaintiff had not met the pecuniary interest test set forth therein. The Court of Appeal further discussed and found without merit the claim that Mrs. Jones' letter was incident to a stipulation pour autri existing by virtue of the insurance contract between the Board, plaintiff's employer, and its compensation insurer, and also a good Samaritan argument urging that even absent any duty to furnish correct information, the party who gratuitously undertakes a response to an information request assumes a duty of care. 359 So.2d at 1111.
*839 We are in agreement with the trial and intermediate appellate courts' conclusions set forth in White v. Lamar Realty, Inc., 303 So.2d 598 (La.App. 2nd Cir. 1974) that Civil Code articles 2315 and 2316 ". . . afford a broad ambit of protection for persons damaged by intentional and negligent acts of others . . ." sufficient to encompass a cause of action for negligent misrepresentation. However, we are not required in the resolution of this case to determine fully the extent to which and the conditions under which our law affords a cause of action for such a tort. We find it sufficient to conclude that here plaintiff has not stated a cause of action against defendants.
We are not here concerned with fraudulent misrepresentation (see White v. Lamar Realty, Inc. supra and Restatement [Second] of Torts, Section 549, discussing damages for fraudulent misrepresentation). Nor do we have here negligent misrepresentation that results in physical harm (see Restatement [Second] of Torts, Section 311). Rather we have here a claim of negligent misrepresentation alleged to have caused pecuniary loss.
For plaintiff to prevail here our Louisiana law would require the existence of a legal duty on the part of the defendants to supply correct information. On the facts set forth in plaintiff's petitions, no such legal duty appears to exist. And it is to the facts set forth in the petitions that we must direct our attention, for in passing upon an exception of no cause of action the correctness of well-pleaded factual allegations is conceded and the issue for determination is whether the face of the petition presents a case which legally entitles the plaintiff to the redress sought. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La. 1975).
Our inquiry must further focus on whether there was indeed an affirmative duty to insure that the information given was correct, for negligence is the breach of a legal duty, a sine qua non in a tort action such as this. See Callais v. All State Insurance Co., 334 So.2d 692 (La.1976) (on rehearing).
Plaintiff falls short of stating a cause of action. Under the facts alleged in the petitions and conceded by the parties, there was no duty on the part of defendants to give failproof information. There is merely established the existence of an employment relationship between plaintiff and defendant Board, the Board's ownership and custody of the steamer alleged to have caused plaintiff's injury, the attorney-client relationship between plaintiff and the attorney requesting the name of the equipment's manufacturer, reliance by the plaintiff on the information given, and the fact that the name furnished was incorrect. There are no facts set forth which would in our view impose upon the employer-equipment custodian a duty to plaintiff or her attorney to exercise the care in supplying correct information which ultimately proved lacking. There is no allegation that the purpose of requesting the information was communicated in detail sufficient to apprise defendants of the high degree of reliance which plaintiff and her attorney would place on it, nor is there alleged defendants' knowledge of the extent of reliance planned. It is not alleged that the information sought was within the defendants' exclusive knowledge or control, nor asserted that plaintiff or her attorney was prohibited or prevented from personally inspecting the equipment or otherwise personally determining the manufacturer thereof.
It cannot be presumed that Jones or the School Board knew or should have known that plaintiff's attorney would rely entirely upon the information furnished, make no independent investigation, forego discovery, fail to timely file against the proper defendant, and let prescription run. And the risk of plaintiff's having a law suit prescribe if information given was incorrect was not alleged to be one which defendants could reasonably have been required to appreciate. That risk was and should have been much more obvious to plaintiff and her attorney than to defendants.
With respect to plaintiff's good Samaritan and stipulation pour autri arguments the Court of Appeal did not err in its adverse *840 resolutions. The arguments are without merit.
The courts below were correct. The exception of no cause of action was properly maintained.
Decree
Accordingly, the judgment of the Court of Appeal is affirmed. All costs are assessed against relators.
AFFIRMED.
TATE, J., dissents and assigns reasons.
MARCUS, J., concurs.
DENNIS, J., dissents.
TATE, Justice, dissenting.
I respectfully dissent.
The majority holds that a school board, a public body, has no duty to ascertain that information is correct, which it furnishes to the attorney of its employee, even though the school board knows or should know that the attorney will rely upon the information furnished in order to file a suit.
The suit concerns the employee's injuries during the course of her employment with the school board, when a steamer exploded. The purpose of the letter was to ascertain the manufacturer of the malfunctioning equipment for purposes of suing such manufacturer in tort. The equipment itself, and all information concerning its purchase and the name of its manufacturer, was solely within the possession of the school board.
I doubt that a public body may refuse to furnish any citizen non-privileged information within its possession. Nevertheless, I would agree that probably no action for tort damages will lie if the public body fails to furnish such information.
However, once the public body has agreed to furnish such informationknowing that the other party will rely and act upon it, and may suffer substantial damage if the information is incorrect, then the public body should be liable for damages resulting from negligently furnished misinformation, under ordinary principles of Louisiana and Anglo-American negligence law.
The error in the majority's reasoning, in my opinion, is that it assumes, without analysis, that under the above-outlined circumstances there was no duty upon the school board (once it agreed to furnish the information to be relied upon) to give correct rather than incorrect information as to the name of the manufacturer.
Of course, if there was no duty, there is no liability. However, the very issue before us is whether there is a duty.
I respectfully suggest that a duty of reasonable care to furnish correct information (if any at all is furnished) is imposed upon a public agency under Civil Code Articles 2315 and 2316, whenknowing that such information will be relied upon by the employee furnished the information (to his detriment, if false)the public agency furnishes information within its exclusive knowledge, which information concerns a matter which occurred during the course of the inquirer's employment relationship with it.
In Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978), we recently discussed the basis of delictual liability in Louisiana. We there stated, 360 So.2d 1334 (footnotes omitted):
The standard of conduct required of persons in Louisiana in their relationships with one another is stated in simple, general terms set forth in Article 2315 of the Louisiana Civil Code of 1870:
"Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it. "* * *."
This single article forms the basis of all tort liability in Louisiana. The remaining articles of the Civil Code's chapter of legal principles regulating offenses and quasi-offenses, Articles 2316 through 2324, contain amplifications as to what constitutes "fault" and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.
*841 Under the civilian tradition of our state the courts have been given a broad, general principle of legislative will from which they are required to determine when the interest of society is best served by requiring one who harms another to respond in damages for the injury caused. In deciding whether the conduct in a specific case falls below that in which a person can engage without becoming responsible for resultant damage, a court must refer first to the fountainhead of responsibility, Article 2315, and next in applying the article to the many other articles in our code which deal with the responsibility of certain persons or that which arises due to certain types of activity. After searching through the code itself a jurist should refer in turn to the acts of the legislature, local governments, and other legislative and administrative bodies. Then, having explored the legislative and administrative sources of standards of proper conduct, a court should turn next to the experience of the judiciary in the interpretation and application of these standards to actual situations.
In the present instance, fault liability under Article 2315 is sought to be imposed under the immediately succeeding "negligence"-fault provision, Article 2316: "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." (As we will note later, in Louisiana the negligence concept is largely patterned upon the American experiencewant of due care under the circumstances, i. e., of the fact-situation within the contemporary social contextcommon to Louisiana and the other American states.)
Insofar as other legislative enactments are concerned, none directly provide as to fault. However, we may deduce (if we deduce anything relevant at all), that a public bureaucracy in a free society is the servant of the people and must open its files to all non-privileged information. See, e. g., the Public Records Act, La.R.S. 44:1-42, especially R.S. 1, 32, 33. Arguably, if the public agency furnishes the information (instead of requiring the inquiring citizen to ascertain himself its content in the public records), the agency must assure that the citizen receive correctly the information as reflected by its records, at least when it realizes or should realize that the citizen may act to his detriment if the information furnished is incorrect.
The public agency's liability in the instant case rests on a broader basis, however, than this statutory expression of a citizen's right to the correct information in the agency's files. Under ordinary negligence principles, Article 2316, the agency is liable for its negligently furnishing false information, when the information was furnished under circumstances from which the agency knew or should have known that the person acting upon the information would receive foreseeable harm if the information was false.
As we stated in Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600, 602 (La.1978) (citations omitted): "Actionable negligence results from the creation or maintenance of an unreasonable risk of injury to others. * * * In determining whether the risk is unreasonable, not only the seriousness of the harm that may be caused is relevant * * *, but also the likelihood that harm may be caused * * *."
Under our private law, thus, every person is under a legal duty to avoid creating an unreasonable risk of foreseeable harm to any other person, and a public agency is no more exempt from that duty than is any private corporation or individual. If under the present circumstances the present defendant agency created an unreasonable risk of harm to the plaintiff, then it violated a legal duty owed to the plaintiff and, therefore, is responsible to her for damages thereby caused. Articles 2315, 2316.
The issue, of course, is whether the risk of harm created in the particular case before us was unreasonable, taking into consideration the usual indiciathe likelihood of harm to result from negligent misrepresentation, the magnitude of the risk created (the seriousness of the harm which may *842 result, for instance), the social utility values enhanced or eroded by the conduct (an undue burden upon the public agency in being careful with the information it dispenses, for instance, balanced against the social interest advanced in permitting a citizen to rely and act upon information furnished him by his government in the expectation he will act and rely upon it). See Restatement of Torts 2d, Sections 282, 284, 291, 292, 293 (1965).
Tested by all these normal criteria of negligence, the defendant agency created an unreasonable risk of harm to the plaintiff by its negligent misrepresentation under the circumstances shown, and the agency should be held liable for the damages which resulted as a consequence of its misrepresentation. It violated a duty imposed by Article 2316 upon it (and upon any other public or private person under similar circumstances) to use due care in furnishing information within its files, which the agency knew or should have known would be relied upon by the person receiving it, and which (if false) was likely to cause substantial harm to the person furnished it and relying upon it.[1]
As both parties note, the issue of liability for negligent misrepresentation has never before arisen in Louisiana. In this case of first impression, it is not inappropriate to look to the experience of other American jurisdictions that have previously considered the issue: The reasonable care due under the circumstances occurs in the same American context as it now arises in Louisiana, without any uniquely civilian or Louisiana legal precept involved.
The American Law Institute Restatement of Torts is an effort to codify and analyze the American experience in evolving both general rules of tort liability and particular rules for particular fact-situations. Section 552, Restatement of Torts 2d (1977) has attempted to distil a rule of liability for negligent misrepresentation from the decisions of the other American jurisdictions in which the issue has arisen.
The Section, entitled "Information Negligently Supplied for the Guidance of Others," provides:
(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 or 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.
*843 (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.
In concluding that (if applicable in Louisiana) the principles set forth by this Restatement section do not justify the plaintiff's cause of action, our brethren of the intermediate court concluded that the defendant agency could not be liable because it had no "pecuniary interest" in the transaction. (It is not seriously disputed that all other requirements for liability under the Section are met.)
The comments to the Restatement section explain that the short-hand term "pecuniary interest" is to differentiate an actionable circumstance from one in which a purely gratuitous service is performed as a favor. Comment c. They further explain that the pecuniary interest may be not only a direct benefit but also of a more indirect character, and note "The fact that the information is given in the course of the defendant's business, profession or employment is a sufficient indication that he has a pecuniary interest in it, even though he receives no consideration for it at the time." Comment d.
I am simply unable to conclude that, even tested by the "pecuniary benefit" requirement as understood in its functional sense in the Restatement, a public body is absolved from any liability for false information which it furnishes in the course of the performance of its public function (which, it seems to me, includes permitting members of the public full access to non-privileged information in its files), when it realizes that the individual who receives the information may be damaged if this information proves to be incorrect.[2]
For instance, the Casualty and Surety Division of our Louisiana Insurance Rating Commission is required to furnish information to the public as to the liability coverage furnished by policies issued in Louisiana, and the mere fact that no fee is charged for this service (until recently) should not absolve this public agency from any damage caused by its negligence in furnishing false information of this nature sought from it by members of the public. No more should a lack of due care absolve the present public agency for its negligence in furnishing information as to the manufacturer of equipment maintained by it (information in its files only) sought for purposes of suing that manufacturer in tort for injuries sustained by a school board employee on school board premises.
The cause of action for negligent misrepresentation is discussed in Prosser on Torts, Section 107, pp. 704-710 (4th ed. 1971). With regard to the duty of ordinary care in furnishing information, Prosser states "* * * where the representation, although itself gratuitous, is made in the course of the defendant's business or professional relations, the duty is usually found" (p. 1706) and "[w]hen the representation is made directly to the plaintiff, in the course of his dealings with the defendant, or is exhibited to him by the defendant with knowledge that he intends to rely upon it . . ., there has been no difficulty in finding a duty of reasonable care" (p. 707).
The plaintiff cites to us a number of decisions from other American jurisdictions which have recognized an action for negligent misrepresentation under circumstances analogous to the present. Most of them are cited at 65 C.J.S. Negligence § 20 (1960). This encyclopedia notes that under most American authorities a false statement negligently *844 made may be the basis of a recovery of damages for loss sustained as a consequence of reliance thereupon. It further notes that this liability is generally limited by certain requirements, including a special relationship between the parties by reason of which the party furnished the information has the right to rely on the other for such information, and that the person giving the information should be chargeable with knowledge (a) that it is intended for a serious purpose, (b) that the other intends to rely and act on it, and (c) that if the information is erroneous the person acting upon it is likely to be injured by relying upon it.
I see no need in analyzing these other American decisions in detail. The principles evolved and applied by them are consistent with my view that in Louisiana an action for negligent misrepresentation is available under circumstances such as the present.
In the present case, Louisiana's Civil Code Article 2316, which provides for actionable fault by reason of negligence, should therefore be construed as requiring the exercise of reasonable care by a public agency, when it furnishes information within its exclusive possession to its employee in connection with injuries sustained by that employee in the course of his employment, and when the agency knows that this information will be relied upon by the employee in filing suit and that, if the information is false, the employee may lose valuable rights should suit be filed against the wrong defendant in reliance upon the incorrect information furnished him by the agency.
One last note: At the risk of overdramatizing the issue which has arisen in the present rather mundane litigation, one can glimpse the first faint shadowings of a problem which may increasingly occupy the attention of our judicial institutions during the remaining decades of this century and in the first decades of the century to come: How may we hold accountable the governmental bureaucracies in a mass society to an individual damaged by the carelessness or indifference of the bureaucracy in performing services for the citizenry that the individual served by his government may reasonably expect should be fulfilled so as not to cause unreasonable risk of harm to him?
Our political philosophy expressed by our federal and state constitutions is to protect the rights of individuals against misuse of governmental power. The social values expressed by our private law are to protect the rights and enforce the obligations of individuals. Conceding that my view somewhat exaggerates the social implications of the majority's decision, nevertheless in my opinion the majority decision slights these fundamental political and social values of our society, when we hold that a governmental agency is not responsible for harm caused by its careless misrepresentation in a reply to a serious inquiry from a citizen, under circumstances where the agency knows the information is sought for a serious purpose and that false information given the citizen is likely to (and does) cause serious harm to that citizen.
NOTES
[*] Chief Judge James E. Bolin participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.
[1] Section 552 of Restatement (Second) of Torts provides:
"(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 or 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."
[1] The majority implies that the agency had no reason to believe that the attorney would rely upon the information furnished by it in filing suit, and it perhaps implies that the attorney should have gone over to the school board office to inspect its records or to inspect the actual defective equipment (assuming it was still existent). I simply cannot agree that an attorney cannot rely upon a formal communication from a public body, an agency which in a democratic society has a duty to the public with responsibility, for instance, to maintain records open to the public's inspection. The majority's implication imposes an unreasonable standard of duty upon an attorney in the conditions of our modern society, where of necessity the labors and duties of the various components of society are specialized and where we must not waste the talents and limited time (or increase their cost to the public) of an attorney or other citizen by expecting him not to rely upon information of apparent authenticity furnished him by a public agency in its reasonable expectation that he will act upon it to his detriment if false. I am simply unable to perceive any reason why, in the exercise of ordinary prudence, the attorney should doubt the veracity of such information or be required to investigate its reliability.
[2] I pretermit discussion of the school board's obvious pecuniary interest in furnishing the plaintiff the name of the tortfeasor, for the purpose of his suit, in which the school board may intervene to recover workmen's compensation benefits paid by it to the plaintiff arising out of the work-accident at issue. See La.R.S. 23:1101-1103. However, the obvious economic interest of the school board in facilitating its employee's tort recovery is an additional indicia upon which the plaintiff's attorney might rely in assuming that the information furnished him by the school board was reliable and had not been carelessly furnished with expectation that the attorney would verify it further. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611743/ | 39 Cal. App. 2d 15 (1940)
SAMUEL RAPPAPORT, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.
Civ. No. 12598.
California Court of Appeals. Second Appellate District, Division Two.
May 8, 1940.
Maurice C. Sparling for Petitioner.
J. H. O'Connor, County Counsel, Douglas De Coster, Assistant County Counsel, and Delvy T. Walton for Respondents.
Moore, P. J.
A writ of review having been issued, this matter is now before us for decision as to whether or not the respondent court exceeded its jurisdiction in making the two orders by which petitioner is aggrieved.
Petitioner is an official court reporter of respondent court. Prior to the 19th day of April, 1938, department 12 of said court had for 59 days conducted a trial of the action of Williams *18 v. Davis. Petitioner reported 52 days of said proceedings. From the judgment entered in favor of the defendant Davis, plaintiff took an appeal by the alternative method. (Code Civ. Proc., sec. 953a). On said 19th day of April, said plaintiff filed her written request for the preparation of a transcript in which she stated that personal arrangements had been made with the court reporters relative to their compensation (Code Civ. Proc., sec. 953b). Cotemporaneously, said plaintiff and petitioner, by writing, agreed that petitioner would furnish his portion of the transcript and that plaintiff would pay petitioner a small portion of the statutory fees as the work of issuing the transcript progressed, and in the event of her ultimate success by judgment or favorable compromise, she would pay petitioner the full statutory fees for his work. A duly executed waiver of the undertaking required by said code section was filed by petitioner.
It does not appear that plaintiff ever failed to perform her obligations under the agreement as subsequently modified. But, notwithstanding her promptness, after more than seven months had passed from the date of the agreement, petitioner had transcribed but a small portion of his notes of said trial. She sought to expedite her appeal by invoking the aid of the court. On January 4, 1939, in response to an order to show cause why he should not be compelled to proceed with said transcription, the judge of department 34 of said respondent court before whom the order was returnable, made and entered its order that petitioner "proceed immediately with the preparation of the balance of the record reported by him ... and that the same be prepared in accordance with the written agreement heretofore made between the said reporter and appellant Edna J. Williams upon payment by her of the said reporter's compensation, as provided in said agreement and the said amendments thereto".
Petitioner having failed to comply with said order, the same judge cited petitioner to show cause why he should not be adjudged guilty of contempt. But, before the hearing of said citation, to wit, on the 28th day of February, 1939, the judge in said department 12 of said court, upon the application of petitioner,entered an order for the purpose of vacating said order of department 34. Forthwith said plaintiff applied to this court (Division I) for a writ of review for the purpose of determining the validity of said order of department 12. *19 After decision annulling said order by this court [Williams v. Superior Court] (Cal.App.) 91 PaCal.2d 152, the Supreme Court upon a hearing annulled said order made in department 12 on February 28th. (See, Williams v. Superior Court, 14 Cal. 2d 656 [96 PaCal.2d 334], for more complete details.) Upon a remand to the superior court, said citation theretofore issued by said department 34 came on for hearing on January 26, 1940, together with a motion of petitioner to vacate said first order of January 4, 1939. Petitioner's motion was denied but after two continuances, said contempt citation was heard on the 4th day of March, 1940, in said department 34, following which petitioner was found guilty of contempt and he was ordered to pay a fine of $500 and to be confined in the county jail until said order of January 4, 1939, should be complied with. Aiming to effect a reversal of said judgment of contempt, petitioner has asked for this review. The questions for determination are as follows:
1. Did respondent court have jurisdiction to order petitioner to prepare said transcript "in accordance with the terms" of a contingent agreement, which is contrary to public policy and void?
2. Did the judge of department 34 exceed his jurisdiction by interjecting his order into a proceeding which had been previously assigned to and was regularly pending and undetermined before department 12 of the same court?
3. Did the court have jurisdiction to enter its said order of January 4, 1939, without first giving notice to the respondent Davis?
4. Did department 34 have jurisdiction to make said order of January 4, 1939, summarily ordering specific performance of the written portion of an unadjudicated, partly oral and partly written contract in a collateral and quasi-criminal proceeding?
5. Did department 34 have jurisdiction to make such an order as that of March 4, 1940, adjudging petitioner guilty of contempt?
[1] 1. Petitioner contends that the Supreme Court decided only that department 12 had no jurisdiction to vacate said order of January 4th. But in reaching that very conclusion the Supreme Court must have determined that in making said order, department 34 did have jurisdiction. It could not have decided otherwise in view of the provisions of *20 the Constitution which vests the superior court with jurisdiction over such matters and not in a particular department of said court. (Const., art. VI, sec. 6.) It was held (Williams v. Superior Court, 14 Cal. 2d 656 [96 PaCal.2d 334]) that department 12 had no power to interfere with a proceeding pending in department 34 because the matter had been, in accordance with the rules of said trial court, properly assigned to and was pending before department 34. Since that holding is the law of the case, we are bound thereby. [2] If it is adjudged that in making an order the trial court acted within its jurisdiction, the inquiry ends and the order must be affirmed. (Bridges v. Superior Court, 14 Cal. 2d 464 [94 PaCal.2d 983]; Fuller v. Board of Medical Examiners, 14 Cal. App. 2d 734 [59 PaCal.2d 171]; Homan v. Board of Dental Examiners, 202 Cal. 593, 595 [262 P. 324]; Code Civ. Proc., sec. 1074.)
[3] But petitioner contends that the court exceeded its jurisdiction in that the order required petitioner to prepare a transcript "in accordance with the written agreement" which is void as against public policy. It is conceded that the Supreme Court correctly held that the validity of the agreement could not properly be determined in the case before it but only in an appropriate action filed for that purpose. [4] After arrangements are made for the reporter's compensation, it becomes his duty to deliver the transcript with reasonable promptness to the clerk (Gjurich v. Fieg, 160 Cal. 331 [116 P. 745]) and upon his failure to do so, it is incumbent upon the court to require the performance of such duty. (Code Civ. Proc., sec. 953a.) By requiring petitioner to proceed with the transcription in accordance with the written agreement, department 34 was not considering the validity of the contract or the rights of the parties under it. Said order left the parties in "statu quo" in so far as it pertains to their rights or remedies. The purpose and effect of the order were to control the behavior of an adjunct of the superior court, to direct an official who had a clear duty under said section 953a. Having neither jurisdiction nor occasion to adjudge the rights of the parties under the contract, the judge directed his attention to the paramount issue before him, viz., to enforce the performance by the stenographic reporter of his said legal duty. If the court had ordered plaintiff to post a bond required by said section, or any other *21 particular thing not specified in the agreement, it would thereby and to that extent have attempted to adjudge the rights and duties of the parties. It was outside of the functions of the court to inquire into the personal arrangements made between said plaintiff and petitioner with respect to the compensation of petitioner for his transcript. Thus, the judge of department 34 was acting clearly within the jurisdiction of the court in ordering the petitioner to proceed, as directed by said order of January 4th.
[5] 2. Petitioner's second contention is that department 34 by said order exceeded its jurisdiction by interfering with a proceeding which was regularly pending before department 12, where the law suit had been tried. But this is contrary to said decision of the Supreme Court which holds that department 34 did have jurisdiction to make said order because the proceeding had been duly assigned to department 34.
[6] 3. The contention that department 34 had no jurisdiction to enter said order of January 4th without first giving notice to respondent Davis, finds no support in law. It was not essential to the jurisdiction of the court that any notice be given to respondent. When the court's attention was directed to the fact that the petitioner had been remiss in the preparation of the transcript, it was a matter purely between the reporter and the court, and the court could not do otherwise than to require petitioner to proceed with the transcribing of his notes. Such notice to appellee of the proposed proceedings of January 4th could neither add to nor take from the duty or the power of the court to perform the duty enjoined by the statute. Respondent had already stipulated to extend the time for the preparation of the transcript to February 28, 1939, practically eight weeks later than the day of the first order of department 34. A notice to him, therefore, of the court's intention to enforce the timely preparation of the transcript would have performed no useful office, for he would have no interest in the transcript until it should be finally presented for certification.
4. The fourth issue raised by petitioner has been answered in our discussion under the first proposition. We observed, however, that the record contains no evidence of the alleged oral agreement.
[7] 5. As to the jurisdiction of the court to adjudge petitioner guilty of contempt on May 4, 1940, petitioner contends *22 that there is no evidence of wilful disobedience of said first order of January 4, 1939. Since the court did have jurisdiction to enter said order, it necessarily follows that continued failure of petitioner to comply therewith was a contempt of the court's authority. (Code Civ. Proc., sec. 1209, subd. 5.) Having such power and jurisdiction, our attention is confined to a consideration of whether there was any substantial evidence before said department 34 which would sustain its jurisdiction to punish petitioner for contempt. (Bridges v. Superior Court, supra.) [8] In order to sustain an order for contempt, two essential facts must appear, namely: (1) There must be notice or actual knowledge of the order, for the disobedience of which citation for contempt has issued; and (2) the act ordered to be done must be within the power of the contemnor to perform. (5 Cal.Jur. 913, sec. 20.)
The record clearly shows that petitioner had notice of the entry of said first order and he makes no claim that he did not have knowledge thereof. In the second place, there is no evidence of petitioner's inability to perform. [9] His answer to the contempt citation discloses that immediately following the entry of the order of January 4, 1939, he presented his grievances to the judge of department 12, who advised him that said agreement for the preparation of the transcript was void; that it had been impossible for him to comply with the order without resulting either in complete collapse of his physical condition, with permanent injurious effects to himself and to his life, or in the alternative, without causing him serious financial loss, which he averred he would be unable to bear. He then proceeded to state that the immediate preparation of the balance of the transcript would require a period of 60 days exclusively upon said transcript without deriving any income whatsoever from any source, and necessitating his refusal to take any work of any nature whatsoever during said period, and that his physical and financial loss would be irretrievable. In nothing that he averred did petitioner offer any valid excuse or prove his inability to comply with the court's order. The burden of proving his inability to comply with the order was upon petitioner. (In re Pillsbury, 69 Cal. App. 784 [232 P. 725]) and he has failed to carry the burden. His claim that the time spent upon the preparation of said transcript would have been a total loss is absurd in view of his obligation. The fact that he was able to continue *23 to perform as a court reporter after the order of January 4, 1939, demonstrates that he was qualified to read the notes necessary to complete the transcript which he had been ordered to prepare.
For the foregoing reasons, the orders are affirmed.
Wood, J., and McComb, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611763/ | 38 Cal. App. 2d 703 (1940)
YOSHIKO YAMAUCHI, Respondent,
v.
J. F. O'NEILL et al., Appellants.
Civ. No. 11133.
California Court of Appeals. First Appellate District, Division Two.
May 3, 1940.
Bronson, Bronson & McKinnon and O'Keefe & O'Keefe for Appellants.
J. E. McCurdy and J. W. Coleberd for Respondent. *705
Spence, J.
Plaintiff sought damages for personal injuries sustained through the negligence of defendants when a delivery truck owned by defendants O'Neill, doing business as Broadway Creameries, and operated by defendant McNally, their employee, struck and ran over plaintiff. A trial by jury was had and plaintiff recovered judgment in the sum of $3,000. Defendants appeal from said judgment.
The main issue discussed in the briefs is that of the status of plaintiff at the place of the accident, which accident occurred in a driveway leading into a court in the center of a business block in the city of San Mateo. Plaintiff was a customer of M. Daba & Co., one of the business houses in said block and she claims that her status was that of an invitee at the place of the accident. Defendants claim that plaintiff's status was that of a mere licensee. It therefore appears appropriate to summarize the evidence bearing upon said issue.
The entire business block, including the driveway and court, was owned by the Wisnom Company, which company leased the stores on the ground floor and some apartments on the second floor to various tenants. The block was bounded on the east by B Street and on the south by First Avenue. M. Daba & Co. leased the store on the corner of B Street and First Avenue. This store had a frontage amounting to approximately 28 feet on B Street, and the store of the defendants had approximately the same amount of frontage immediately to the north of the Daba store on B Street. The front entrances of both stores, which were the main entrances thereto, were located on B Street. The side of the Daba store ran approximately 80 feet along First Avenue to the driveway in question. This driveway was approximately 10 feet wide and was covered for approximately 30 or 35 feet by the second story of the building as it ran in a northerly direction to the open court in the center of the block. The Daba store had a rear entrance on the driveway and the defendants' store had a rear entrance on the court. The above-mentioned front and rear entrances constituted the only entrances to these two stores. The other stores had rear entrances on the court and there was also a rear entrance to the apartments from the court.
The driveway and court were customarily used in common by all of the tenants and those persons having business dealings *706 with said tenants. The lease of the defendants was admitted in evidence and it leased to said defendants their store "together with the right to use in common with other tenants of said lessor, the present driveway and alley way ... for the purpose of obtaining ingress and egress from the demised premises, provided ... that such driveway use shall be so limited and controlled by them so as not to interfere with the rights of other tenants of the said lessor to use the said driveway for the purpose of the business which the lessor may permit them to conduct thereon".
The driveway was used mainly for delivery purposes but it also appears that some of the tenants and the customers of the tenants made use thereof in going to and coming from the stores. Plaintiff had been a customer of M. Daba & Co. and its predecessor in the same location for many years prior to the accident. Plaintiff conducted a laundry on the south side of First Avenue at a point approximately opposite the driveway and it was her custom to enter the Daba store by the rear entrance located on the driveway. The manager of the lessor testified to the use of the driveway by the customers of the lessees and Mr. Daba testified that his customers, to the extent of an average of about 10 every day, entered his store from the driveway. Mr. Daba further testified that there had never been any barricades or chains across this driveway and that it had been open at all times for the use of anyone who wanted to go in or out. There were signs at the entrance to the driveway reading "Go Slow" and "Blow Your Horn".
Turning to the events of the day of the accident, the testimony shows that plaintiff had crossed First Avenue to the driveway and had entered the Daba store through the rear entrance and was in the act of returning to her place of business over the same route and was walking in the driveway toward the street when she was struck from the rear by defendants' panel delivery truck as it was backing out of the driveway. When plaintiff entered the rear door of the Daba store she noticed defendants' truck standing at the rear of defendants' store and she again noticed it at the same place as she left by said rear door. Said truck was headed north; the engine was not running; and plaintiff saw no one in the vicinity of the truck. The defendant McNally testified that he went out, got in the car, started the motor, put it in reverse, *707 backed out, heard the plaintiff scream and stopped the car. He testified that he did not see plaintiff prior to the accident and it appears entirely probable that he was in the car ready to start it at the time that plaintiff emerged into the driveway from the Daba store. The construction of the panel delivery truck prevented him from obtaining a direct view of the driveway to the rear from the driver's seat and his only means of obtaining any view to the rear was by means of a rear view mirror supported on a bracket or prong on the left side of the truck. This mirror, however, afforded only a view of the left or west side of the driveway, it being impossible to obtain a view therein of the remaining portion of the driveway, including that portion in which plaintiff was walking. Said defendant admitted nevertheless that he proceeded to back said truck out through the driveway without sounding his horn or giving any warning to persons who might be endangered by this movement. Plaintiff did not see or hear the truck as it approached from the rear and she was struck down and run over while walking on the east side of said driveway at a point about six feet north of the sidewalk on First Avenue.
[1] Defendants' main contention is that "Under the evidence plaintiff was at best a licensee and consequently the only duty owed was to refrain from any wilful or wanton conduct." We find no merit in this contention. It assumes that plaintiff was "at best a licensee". In our opinion this is an erroneous assumption as we believe that the uncontradicted evidence shows that plaintiff was an invitee rather than a licensee. We deem it unnecessary, however, to discuss this question at any length for even if it be assumed that plaintiff was a licensee, rather than an invitee, we believe that defendants' conclusion is based upon a general rule of law which has no application to the facts before us.
[2] The rule upon which defendants rely finds expression in many of the authorities but it is limited in its application to cases dealing with the duty owed to a licensee with respect to the condition of the premises or, as sometimes expressed, to cases involving only passive negligence as distinguished from active negligence. The authorities may not be entirely in accord in determining what constitutes passive negligence and what constitutes active negligence but there can be no doubt whatever that the negligent operation of a moving vehicle *708 in a place where the operator has good reason to expect the presence of licensees constitutes active negligence as distinguished from passive negligence. Under such circumstances the duty owed by the operator of the moving vehicle to a licensee, whether such operator be the licensor or any other person, is not merely the duty to refrain from wilful or wanton conduct but is the duty to exercise ordinary care.
The distinction is clearly drawn with respect to cases involving active negligence in Lucas v. Walker, 22 Cal. App. 296, where the court said at page 301 [134 P. 374]:
"A licensee under such circumstances is entitled to recover for any injury to himself, in the absence of contributory negligence upon his part, resulting from the active negligence of the licensor, and such licensor is responsible in damages for any overt act of negligence though the same be neither wilful nor wanton."
"The cases cited by appellant in support of the proposition to the effect that a mere licensee can recover only for wilful or wanton injury, are all cases where the plaintiff was either a trespasser or mere licensee, and was injured solely by reason of the unsafe condition of the premises and without any active, or overt act of negligence, committed against him by the occupant or owner of the premises. (Citing authorities)."
The same distinction is made in Herold v. Mathews Paint House, 39 Cal. App. 489 [179 P. 414], in which the court cited with approval the case of Lucas v. Walker, supra, and said, "That rule, however, does not apply to a case where the licensee is upon the premises of a defendant and is injured by an overt act of negligence committed against him by the defendant. Where the injury results from such an act the licensor is responsible."
The above-mentioned cases are in line with the great weight of authority as shown by the cases collected in an annotation entitled, "Liability to trespasser or bare licensee as affected by distinction between active and passive negligence" found in 49 A.L.R. at page 778. There is also the recent case of Babcock v. Nolton, lvout2; Nev. __________ [71 PaCal.2d 1051], in which the court said at page 1054, "There is no evidence of wilful or wanton negligence on the part of appellant's employee in backing the truck against respondent's car, but the evidence sustains lack of due care on his part, resulting in active negligence, for which appellant is liable. The great *709 weight of authority is to the effect that a person guilty of active negligence, as distinguished from passive negligence, is liable for resulting injury to a licensee."
The foregoing authorities sufficiently distinguish most of the cases cited by defendants. Defendants also cite and rely upon Hamakawa v. Crescent Wharf etc. Co., 4 Cal. 2d 499 [50 PaCal.2d 803], Lindholm v. Northwestern Pac. R. R. Co., 79 Cal. App. 34 [248 P. 1033], and Kirkpatrick v. Damianakes, 15 Cal. App. 2d 446 [59 PaCal.2d 556]. Perhaps it is appropriate to refer briefly to these cases. The Hamakawa case was decided upon the ground that the plaintiff was upon a portion of the premises "where he had no right to be and where the defendant did not know, and had no reason to expect him to be at the time he was injured". (P. 503.) The Lindholm case was decided upon the ground that the plaintiff was on a portion of the premises "where he was neither invited nor expected to go". (P. 39.) That case distinguishes Lucas v. Walker, supra, and Herold v. Mathews, supra, stating that the last-mentioned cases were decided "upon evidence that the licensor was or had good reason to be aware of the presence of the licensee in the place of danger". (P. 40.) The Kirkpatrick case was decided upon the ground that plaintiff was a trespasser being on the premises without any permission, express or implied. Furthermore, it does not appear that the driver in that case was aware of the presence of the plaintiff or had any reason to expect plaintiff to be at the place where she was injured.
[3] In the case before us plaintiff was in no sense a trespasser. She was admittedly either an invitee or a licensee and she was injured by the active negligence of defendants at a place where defendants had good reason to expect the presence of invitees and licensees. Under these circumstances, we believe the question of whether plaintiff was an invitee or licensee was wholly immaterial for in either case defendants owed to plaintiff the duty to exercise ordinary care in the operation of the delivery truck and could be held liable for their breach of that duty. (See Pomponio v. New York, N. H. & H. R. R. Co., 66 Conn. 528 [34 A. 491, 50 Am. St. Rep. 124, 32 L.R.A. 530], cited with approval in Lucas v. Walker, supra, p. 302.) From what has been said, it follows that there is no merit in defendants' contentions that the trial court erred in denying their motion for a nonsuit and *710 their motion for a directed verdict. These motions were based upon the claim that there was no evidence of wilful or wanton conduct and therefore no evidence of any breach of duty toward plaintiff. It further follows that there was no error in refusing to submit to the jury the question of whether plaintiff's status was that of an invitee or a licensee as that issue was an immaterial issue.
[4] Defendants further contend that the trial court erred in the giving and refusing of certain instructions to the jury. This contention involves several instructions relating to the issue of negligence. Our reading of these instructions leads us to the conclusion that there may be merit in the claim that the trial court committed error but we are still confronted with the question of whether the claimed error resulted in prejudice to the defendants.
It is not claimed that the evidence was insufficient to sustain the implied finding of negligence and in our opinion the evidence conclusively showed such negligence. As we view the record, the case was not a close one but on the contrary, we believe that the only reasonable conclusion which could have been drawn from the admitted facts was that the defendant driver was guilty of negligence which was the proximate cause of plaintiff's injuries. Under such circumstances, it cannot be said that the claimed error in the instructions relating to negligence was prejudicial and it is our duty to affirm the judgment by virtue of the mandate found in section 4 1/4 of article VI of the Constitution.
The judgment is affirmed.
Nourse, P. J., and Sturtevant, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877057/ | 829 F. Supp. 906 (1993)
Kathleen M. KUBICKI, Plaintiff,
v.
Nicholas F. BRADY, Secretary, Department of the Treasury, Defendant.
Civ. A. No. 93-71176.
United States District Court, E.D. Michigan, S.D.
August 27, 1993.
*907 Robert Moran, Detroit, MI, for plaintiff.
Elizabeth J. Larin, Asst. U.S. Atty., Detroit, MI, for defendant.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTIONS TO STRIKE AND FOR SANCTIONS
GADOLA, District Judge.
Plaintiff Kathleen Kubicki filed a complaint in the United States District Court for the District of Columbia on September 24, 1991, alleging Title VII sex discrimination under 42 U.S.C. § 2000e-16. On January 24, 1992, the court dismissed the complaint for failure to timely effect service of process as required by Rule 4(f) of the Federal Rules of Civil Procedure. Plaintiff then filed motions to reconsider and to change venue. These motions were granted and the case was transferred to this court. Now before this court are defendant's motion to dismiss for lack of subject matter jurisdiction and plaintiff's motions for sanctions and to strike portions of the defendant's reply brief.
I. BACKGROUND FACTS
Plaintiff is a former special agent of the Bureau of Alcohol, Tobacco, and Firearms ("Bureau"). On August 24, 1987 and January 16, 1988, plaintiff filed complaints with the Equal Employment Opportunity Commission ("EEOC") concerning alleged sex discrimination in her workplace. These two complaints were consolidated for processing and hearing for the Bureau to make an initial finding. The Bureau issued a proposed disposition of no discrimination.
Prior to a hearing on the initial disposition, plaintiff was transferred from Detroit to Chicago. Plaintiff objected to the transfer and ultimately resigned from the Bureau. The EEOC then allowed plaintiff to file a second complaint alleging constructive discharge. The Bureau subsequently entered a final decision against plaintiff on June 20, 1990, finding that there was no discrimination.
At this stage in the administrative process, plaintiff had the choice of either filing suit in district court or petitioning for review of the Bureau's final decision by the Merit Systems Protection Board ("MSPB"). Plaintiff chose the latter and filed her appeal with the MSPB on July 13, 1990.
On October 11, 1990, the MSPB's administrative law judge made an initial ruling dismissing plaintiff's petition. Plaintiff then had the choice of appealing this decision for review by the full board of the MSPB by November 15, 1990. She also could have filed with the Court of Appeals for the Federal Circuit, the EEOC, or a district court within thirty days of November 15, 1990, the date when the initial decision would become final if she did not appeal it to the full MSPB.
Plaintiff decided to appeal her claim to the full board, but she filed this appeal on November 27, 1990, thereby missing the deadline by twelve days. The MSPB then gave the plaintiff an opportunity to show good cause for the lateness of the petition of appeal and granted an extension to December 10, 1990 for her to file a brief in support of her petition. Plaintiff's counsel filed such a *908 brief on December 14, 1990, four days late. On February 22, 1991, the MSPB ruled that plaintiff had not shown good cause for the November 27, 1990 untimely filing of the petition of appeal, thereby making the original decision of the administrative law judge final.
Plaintiff then had thirty days from the receipt of the notice of the final decision to petition the EEOC or file in district court. She was on notice of these rights from the initial decision of the MSPB which explained all of her rights of appeal in the event of a final decision against her. Plaintiff's attorney received the MSPB final decision on the timeliness issue on February 25, 1991. On April 1, 1991, more than thirty days after receiving notice of the final decision, plaintiff petitioned the EEOC. The EEOC denied consideration of the petition on August 21, 1991, ruling that plaintiff's petition was untimely. It informed plaintiff that she could no longer pursue any administrative appeals, but that she could file in district court within thirty days of receipt of the denial of consideration.
Plaintiff filed suit in district court in the District of Columbia on September 24, 1991, within thirty days of her receipt of notice from the EEOC. On November 19, 1991, the district court ordered the plaintiff to perfect service. When plaintiff failed to perfect service within the time specified, the district court dismissed the case. Subsequently, the district court granted plaintiff's motion to reconsider its dismissal order and then transferred the case to this court.
II. TIME LIMITS FOR FILING ADMINISTRATIVE APPEALS
Following an initial decision of the MSPB, a complainant may file a petition for review by the full board. MSPB regulations require that the petition must be filed within thirty-five days of the initial decision. 5 C.F.R. § 1201.114(d). The MSPB will grant an extension of this time limit upon a showing of good cause. Id. § 1201.114(e).
Following a final decision of the MSPB, a complainant may file a petition of appeal with the EEOC. EEOC regulations require that in order for the petition to be timely, it "must be filed with the Commission ... within thirty (30) days after receipt of notice of the final decision of the MSPB." 29 C.F.R. § 1613.414(c).
III. MOTION TO DISMISS
This case turns on whether plaintiff failed to exhaust her administrative remedies and, if so, whether plaintiffs action is thereby barred and thus should be dismissed. This court finds that plaintiff failed to exhaust her administrative remedies and as a result, her complaint should be dismissed.
A. Exhaustion of Remedies
It is clear that plaintiff failed to exhaust her administrative remedies because her petition for review to the EEOC was untimely. Under EEOC regulations, plaintiff had thirty days after receipt of the notice of the MSPB's final decision to petition the EEOC for review. Plaintiff failed to meet the required deadline, and the EEOC found that plaintiff's petition was untimely and properly denied consideration.
Plaintiff argues that her failure to meet the required deadline should be excused because the MSPB ruling of February 22, 1991 did not fully notify her of her appeal rights as required by 29 C.F.R. § 1613.282. This regulation requires that "[a]n agency shall notify an employee or applicant of his right to file a civil action, and of the 30-day time limit for filing in any final action on a complaint." Id. Plaintiff claims that the February 22, 1991 ruling of the MSPB constituted the final decision on her complaint and thus should have fully explained her rights of appeal. The February 22, 1991 failure to show good cause ruling only mentioned plaintiff's right to appeal that particular decision to the Court of Appeals for the Federal Circuit.
Plaintiff fails to point out, however, that she had already been fully notified of her appeal rights in the October 11, 1990 initial decision of the MSPB. This decision then became the final decision of the MSPB on November 15, 1990, when plaintiff failed to file a timely petition for review. In its February 22, 1991 order, the MSPB stated that *909 the "initial decision will remain the final decision of the Board with regard to the merits of the case."
The February 22, 1991 decision of the MSPB was merely a final order concerning its finding that plaintiff did not show good cause for her untimely petition. In the October 11, 1990 decision of the MSPB, which later became the final decision of the MSPB, plaintiff was informed that the final decision date was "important" because the "date on which the initial decision becomes final also controls when you can file a petition for review with the Equal Employment Opportunity Commission (EEOC) or with a federal court." The initial decision (later final decision) went on to explicitly detail her rights and the requirements for filing with a district court or the EEOC. Plaintiff was also represented by counsel during this entire period. By failing to file a timely petition with the EEOC, plaintiff failed to fully exhaust her administrative remedies.
Plaintiff is required to fully exhaust her administrative remedies before filing a Title VII claim in district court. Brown v. General Services Administration, 425 U.S. 820, 823-33, 96 S. Ct. 1961, 1963-68, 48 L. Ed. 2d 402 (1976). Even if she did not exhaust her administrative remedies, plaintiff argues that the Sixth Circuit does not recognize exhaustion of remedies as a bar to suit based on that court's ruling in Langford v. U.S. Army Corps of Engineers, 839 F.2d 1192 (6th Cir.1988). In Langford, the court held that civilian employees of the army alleging age discrimination were not required to exhaust their administrative remedies before filing in district court.
The ruling in Langford, however, does not apply to this case. The Langford plaintiffs filed in federal court when their administrative proceedings were still ongoing. In this case, however, administrative proceedings had already ended because of plaintiff's failure to follow the required regulations of the EEOC. As another court has pointed out, "The court in Langford was not required to decide what effect the failure to comply with administrative time limits would have on a subsequent civil action." Ivey v. Rice, 759 F. Supp. 394, 400 (S.D.Ohio 1991), aff'd, 961 F.2d 1577 (6th Cir.1992). In Ivey, the district court dismissed an action for failure to notify the EEOC within required deadlines. The court argued that
if no sanction may be imposed for failure to comply with the administrative regulations, they would be rendered meaningless, thereby frustrating the goals of the administrative process. The unreasonableness of such a result indicates that the Langford holding should be confined to the circumstances in that case.
Id.
Other courts have come to similar conclusions. In Johnson v. Bergland, 614 F.2d 415, 417-18 (5th Cir.1980), the court stated that "administrative complaint procedures must be complied with" and that
if the agency does not reach the merits of the complaint because the complainant fails to comply with the administrative procedures, the court should not reach the merits either. Otherwise the complainant might be dilatory in the administrative level, knowing that he can get into federal court anyway.
The purpose of the exhaustion of administrative remedies doctrine "is to permit an administrative agency to apply its special expertise in interpreting relevant statutes and in developing a factual record without premature judicial intervention." Southern Ohio Coal Co. v. Donovan, 774 F.2d 693, 701 (6th Cir.1985). "The requirement that the plaintiff exhaust administrative remedies prior to instituting suit is intended to ensure that the Commission will have been afforded an opportunity to attempt conciliation and voluntary settlement, the preferred means for resolving employment discrimination disputes." Parsons v. Yellow Freight Systems, Inc., 741 F.2d 871, 873 (6th Cir.1984).
Plaintiff's untimely filing with the EEOC constituted a failure to exhaust her administrative remedies. The cases discussed above indicate that plaintiff's action should be barred because of this failure.
B. Exhaustion of Remedies as Bar to Plaintiff's Action
Plaintiff argues that failure to exhaust administrative remedies is not a jurisdictional *910 bar, but rather is merely a condition precedent to action in a district court. As such, defendant's motion to dismiss for lack of subject matter jurisdiction should be denied. Plaintiff relies on Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982), where the Court ruled that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court." The Court said that such procedural requirements were subject to waiver, estoppel, and equitable tolling. Id. at 393, 102 S.Ct. at 1132. Zipes, however, was later qualified in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984) (per curiam), where the Court stated that "[procedural] requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants." Id. at 152, 104 S.Ct. at 1726.
Plaintiff further relies on Boddy v. Dean, 821 F.2d 346, 350 (6th Cir.1987), where the Sixth Circuit held that a failure to comply with administrative regulations requiring EEOC counseling was not a jurisdictional issue. In Boddy, the plaintiff failed to bring his complaint to the attention of an EEOC counselor within the thirty day period required by EEOC regulations. Plaintiff analogizes this case to Boddy and Zipes, and therefore argues that her suit is not jurisdictionally barred.
Defendant argues that plaintiff's failure to exhaust administrative remedies is a jurisdictional bar to her action. Defendant claims that Zipes does not apply to this case because Zipes involved a plaintiff's failure to file a complaint with the EEOC within thirty days of the discriminatory event. Defendant argues that this case can be distinguished from Zipes because this plaintiff had met the original thirty day requirement for filing with the EEOC, but then later failed to exhaust her administrative remedies due to untimely filings with the MSPB and the EEOC. Defendant argues that Zipes is limited to cases involving the initial filing of a complaint with the EEOC and not to later proceedings.
This court finds that the failure to exhaust administrative remedies in this case is not a bar to jurisdiction, but is a condition precedent to plaintiff's case. The Sixth Circuit provides strong guidance in this area. It stated that "[o]ur decision that the 30-day requirement is not jurisdictional is consistent with previous decisions of this court that time requirements in statutes designed to eliminate unlawful discrimination in employment are not jurisdictional." Boddy, 821 F.2d at 350. The Sixth Circuit paid particular attention to the fact that the time provision in Boddy appeared only in the regulations and not as a statutory provision. Id. This case is similar in that plaintiff's failures to meet filing deadlines were also violations of regulations. The Sixth Circuit also asserted that treating an administrative requirement as jurisdictional is inappropriate in Title VII actions which usually involve laymen, unassisted by attorneys. Id. (citing Zipes, 455 U.S. at 397, 102 S.Ct. at 1134; Love v. Pullman Co., 404 U.S. 522, 527, 92 S. Ct. 616, 619, 30 L. Ed. 2d 679 (1972)).
Even though failure to exhaust administrative remedies is not a jurisdictional bar, it is still a condition precedent to an action in this court. Brown, 425 U.S. at 832, 96 S.Ct. at 1967. This failure should be treated "`like a statute of limitations' that is subject to waiver, estoppel, and equitable tolling." Boddy, 821 F.2d at 350 (quoting Zipes, 455 U.S. at 393, 102 S.Ct. at 1132). This court finds that plaintiff does not present a sufficient equitable explanation for her failure to exhaust the administrative remedies. Defendant has not waived the exhaustion requirement as is evidenced by its preliminary motion. Furthermore, plaintiff in no way tolled the requirements of the EEOC regulations.
Plaintiff's only explanation is that the February 22, 1991 ruling of the MSPB failed to adequately notify her of her appeal rights. As has already been discussed, plaintiff was well aware of her appeal rights. She was fully notified of them in the initial decision that later became the final decision of the MSPB on the merits of her case as required by 29 C.F.R. § 1613.282.
It is clear that plaintiff has repeatedly and without good cause failed to act diligently as required by the various administrative regulations *911 before both the EEOC and the MSPB. "One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence." Baldwin, 466 U.S. at 151, 104 S.Ct. at 1726. At each stage plaintiff was represented by counsel and has failed to show good cause for each failure to meet the required deadlines. The fact that plaintiff was represented by counsel throughout also denies plaintiff the opportunity to claim that she was merely a lay complainant confused by the various administrative proceedings. This court construes defendant's motion to dismiss under Rule 12(b)(1) as a motion to dismiss under Rule 12(b)(6). In her complaint, plaintiff did not, and could not, allege that she satisfied the condition precedent of exhausting her administrative remedies by meeting the EEOC deadline required by 29 C.F.R. § 1613.414(c). As a result, plaintiff's case is dismissed as an action that fails to state a claim upon which relief can be granted.
IV. MOTION TO STRIKE AND MOTION FOR SANCTIONS
Given the fact that this court has granted defendant's motion to dismiss, plaintiff's motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure based on the alleged deficiencies in defendant's arguments is denied. The motion to strike a portion of the defendant's reply brief is also denied.
ORDER
Therefore, it is hereby ORDERED that defendant's motion to dismiss is GRANTED, and plaintiff's motions to strike and for sanctions are DENIED.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453014/ | 982 S.W.2d 472 (1998)
ATLANTIC LLOYD'S INSURANCE COMPANY OF TEXAS, Appellant,
v.
SUSMAN GODFREY, L.L.P., Jeffrey W. Chambers, and Thomas A. Adams, IV, Appellees.
No. 05-96-00981-CV.
Court of Appeals of Texas, Dallas.
August 26, 1998.
*473 Thomas B. Alleman, Winstead Sechrest & Minick PC, Dallas, for Appellant.
Barry C. Barnett, Susman Godfrey, L.L.P., Dallas, for Appellees.
Before OVARD, MALONEY and BRIDGES, JJ.
OPINION
OVARD, Justice.
This is an appeal from a summary judgment in a declaratory action brought by an insurer, Atlantic Lloyd's Insurance Company of Texas (Atlantic), to determine coverage under a general liability insurance policy issued to the law firm of Susman Godfrey, L.L.P., including two of its attorneys, Jeffrey W. Chambers and Thomas A. Adams, IV (collectively "the Firm"). The pivotal issue is whether an attorney's solicitation letter sent to a prospective client provided a professional *474 service. We conclude it did not. For this and other reasons set out below, we affirm.
FACTUAL AND PROCEDURAL HISTORY
A. THE LETTER
Several years ago, the Firm represented an injured woman in a medical negligence suit against Dr. Larry Likover. Likover and the woman settled the lawsuit, and the settlement agreement included a confidentiality clause. On January 21, 1994, Adams allegedly violated the confidentiality clause by sending a letter to a former patient of Likover informing the patient of the previous lawsuit filed against Likover. In the letter, Adams invited the former patient to contact the Firm to discuss the patient's particular circumstances and offered to answer any questions if the patient chose to file a lawsuit against Likover. Likover learned of this letter, which can best be characterized as a solicitation letter, and sued the Firm for defamation, among other claims.
B. TENDERING LIKOVER'S LAWSUIT
The Firm maintained an insurance policy with Atlantic which imposed on Atlantic a duty to defend and indemnify the Firm for suits seeking damages for bodily injury, property damage, personal injury, and advertising injury. Pursuant to the insurance policy, the Firm tendered Likover's lawsuit to Atlantic. Atlantic filed a declaratory judgment action seeking a determination that it had no duty to defend and indemnify the Firm. Atlantic argued that the policy did not cover the underlying injury of the Likover suit, or alternatively, the policy contained a provision excluding coverage for incidents involving professional services. The Firm filed its own motion for summary judgment stating that Atlantic had a duty to defend or indemnify the Firm.
C. SUMMARY JUDGMENT
The trial court's final judgment expressly granted the Firm's summary judgment motion while denying Atlantic's motion. The final judgment, however, also included the following language:
It is ORDERED that [Atlantic] has a duty to defend [the Firm] in the underlying lawsuit.
The final judgment fails to address Atlantic's duty to indemnify the Firm. The judgment concludes that "[a]ll other relief not expressly granted herein is denied."
In five points of error, Atlantic contends the trial court erred in rendering summary judgment for the Firm because (1) the Firm's policy does not provide coverage because the underlying injury is not an advertising injury, and (2) alternatively, if the underlying injury is an advertising injury, a "Designated Professional Services" exclusion precludes coverage. To the extent the trial court's final judgment does not provide Atlantic with a duty to indemnify, the Firm argues in a conditional cross-point the trial court erred in denying its motion for summary judgment for indemnity.
STANDARD OF REVIEW
The standards for reviewing a summary judgment are well established: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment must show that the plaintiff has no cause of action. A defendant may meet this burden by either (1) disproving at least one essential element of each theory of recovery, or (2) conclusively proving all elements of an affirmative defense. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993).
DUTY TO DEFEND AND INDEMNIFY
An insurer's duty to defend and duty to indemnify are two distinct and separate duties. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). *475 The duty to defend an insured is based upon the terms of the insurance contract. National Union Fire Ins. Co. v. Merchants Fast Motor Lines, 939 S.W.2d 139, 141 (Tex.1997). A duty to defend arises if a plaintiff sues an insured, alleging facts that potentially support claims for which there are coverage. Id. The duty to defend is determined from the face of the pleading, without reference to the truth or falsity of the allegations. Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965). The insurer is to compare the four corners of the complaint with the four corners of the insurance policy to determine if the allegations potentially fall within the coverage of the policy. Id. at 23-25. The focus of the inquiry is the facts alleged; legal theories alleged are not determinative of the duty to defend. See Maayeh v. Trinity Lloyds Ins. Co., 850 S.W.2d 193, 195 (Tex.App.-Dallas 1992, no writ).
A. ADVERTISING INJURY
Before we address the central issue of whether an attorney's solicitation letter to a potential client provided a professional service, we must first address Atlantic's argument that the Firm's policy does not cover the underlying suit. Specifically, Atlantic argues that Likover's injury as a result of the January 21, 1994 letter written by Adams to Likover's former patient does not constitute an "advertising injury."
The Firm's insurance policy provides coverage for advertising injuries and provides the following definition of such an injury:
1. "Advertising injury" means injury arising out of one or more of the following offenses:
a. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;
b. Oral or written publication of material that violates a person's right of privacy;
c. Misappropriation of advertising ideas or style of doing business;
d. Infringement of copyright, title or slogan.
Contrary to the Firm's claims, Atlantic does not concede that the injury is an advertising injury.[1] Therefore, we must analyze the nature of the underlying claim to determine if the policy covers the incident.
It is well established that the construction of insurance policies is governed by ordinary contract principles. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). The construction of the insurance policy is a question of law for the court to determine. Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983). If a term is susceptible to only one reasonable construction, it is the court's duty to give the word used its plain meaning. Puckett v. United States Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984).
The policy defines the term "advertising injury" as an injury arising from a written publication which slanders a person. Based on Adams's letter, Likover asserts a defamation cause of action. The crux of Likover's lawsuit is that Adams attempted to influence a former patient to sue Likover because of his allegedly deficient medical work. Adams's letter characterizes Likover's work as "sloppy, callous, unacceptable, impersonal, and indifferent," and states that his conduct was "so outrageous" that previous litigants obtained a multi-million dollar settlement. Clearly, the purpose of Adams's letter is to cast Likover in an unfavorable light to encourage a lawsuit against Likover. Adams then boasts about the Firm's previous success to gain the business of Likover's former patient.[2] Given the policy's plain meaning, it *476 is clear that Likover's lawsuit falls within the term "advertising injury" provided by the policy.
B. PROFESSIONAL SERVICES EXCLUSION
Having concluded that Likover alleges an advertising injury, we now address the pivotal issue: whether an attorney's solicitation letter sent to a prospective client provided a professional service. It is Atlantic's argument that the professional services exclusion clause precludes coverage for an attorney's solicitation letter. The professional services exclusion contained in the Firm's policy provides:
EXCLUSIONDESIGNATED PROFESSIONAL SERVICES
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART.
SCHEDULE
Description of professional services:
LEGAL SERVICES INCLUDED BUT NOT LIMITED TO COUNSELING, ADVICE, OR ANY OTHER SERVICES REGARDLESS OF WHERE, HOW AND BY WHOM PROVIDED WHICH MAY BE OR ARE PROVIDED OR RENDERED BY LAWYERS, PARALEGALS AND OTHERS WORKING IN A LAW OFFICE AND/OR ADMINISTRATION, MANAGEMENT OR OTHER SERVICES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LEGAL SERVICES DESCRIBED HEREIN.
With respect to any professional services shown in the Schedule, this insurance does not apply to "bodily injury," "property damage," "personal injury" or "advertising injury" due to the rendering or failure to render any professional service.
Atlantic claims that the phrase "professional services" includes acts that are an integral aspect of the practice of law, and the solicitation of clients is an integral aspect. The Firm contends Adams's letter, however, merely creates the opportunity to provide professional services for others. The letter does not render legal services and does not constitute the practice of law. The letter, thus, is incidental to the practice of law, and coverage is not precluded by the professional services exclusion.
In determining the applicability of the professional services exclusion to Atlantic's duty to defend and indemnify the Firm, we must ascertain whether the solicitation of business constitutes the rendering of professional services. We are unable to locate, and neither party brings to our attention, any Texas cases which construe the phrase "professional services" in the factual context presented here.[3] The definition of "professional services" most often used was discussed initially in Maryland Casualty Co. v. Crazy Water Co., 160 S.W.2d 102, 104 (Tex.Civ.App.-Eastland 1942, no writ). In Maryland Casualty Co., the court stated that the term "profession" is best understood by mention of prominent elements and characterized by how others use its distinguishing education or special knowledge. Id.; see also Direlco, Inc. v. Bullock, 711 S.W.2d 360, 362 (Tex. App.-Austin 1986, writ ref'd n.r.e.). This definition is supported by Marx v. Hartford Accident & Indem. Co., 183 Neb. 12, 157 N.W.2d 870, 871-72 (1968). The Nebraska Supreme Court defined the term "professional services" as something more than an act flowing from mere employment. Id. To determine whether a particular act is considered a professional service, that court concluded the focus is on the act itself and not the title or character of the party performing the act. Id.
According to these definitions, it is clear that a professional must perform more than an ordinary task to perform a professional service. To qualify as a professional service, the task must arise out of acts particular *477 to the individual's specialized vocation. We do not deem an act a professional service merely because it is performed by a professional. Rather, it must be necessary for the professional to use his specialized knowledge or training. See Bank of Cal., N.A. v. Opie, 663 F.2d 977, 981 (9th Cir.1981); Shelton v. American Ins. Co., 507 So. 2d 894, 896 (Miss. 1987); Danks v. Maher, 177 So. 2d 412, 417-18 (La.Ct.App.1965).
Atlantic offers two reasons why it has no duty to defend and indemnify the Firm. First, Atlantic contends the regulated nature of client solicitation subjects the letter to the professional services exclusion. Next, Atlantic argues Adams's letter reflects the exercise of trained judgment and specialized knowledge which are indicia of a professional. We will address both arguments in turn.
Atlantic argues the strict regulation of client solicitation supports its position that client solicitation is an integral aspect of the practice of law and thus coverage is excluded by the professional services exclusion. Atlantic directs this Court to the Texas Disciplinary Rules of Professional Conduct. See TEX. DISCIPLINARY R. PROF'L CONDUCT, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp.1998) (TEX. STATE BAR R. art. X, § 9). The Disciplinary Rules of Professional Conduct contain very stringent guidelines pertaining to written solicitations of clients. TEX. DISCIPLINARY R. PROF'L CONDUCT 7.02, 7.05. Atlantic argues that because the written solicitation of clients is heavily regulated by the profession of law itself, written solicitations thus fall within the exclusion for professional services. We disagree with this argument.
Atlantic would have this Court believe that the mere presence of outside professional regulation of a subject area transforms that subject area into a matter inherent to that profession. Applying this logic, almost any matter regulated would be subsumed into a matter inherent to that profession. Not all acts performed by a professional are professional services. See Bank of Cal., N.A., 663 F.2d at 981; see also Cohen v. Empire Cas. Co., 771 P.2d 29, 31 (Colo.Ct. App.1989) (office expenses are incidental to a lawyer's business and cannot be considered part of his activities inherent to the legal profession). Rather, these regulations are used to guide the profession to ensure the effective administration of the profession as a whole. Professional services are considered those acts which use the inherent skills typified by that profession, not all acts associated with the profession. See Bank of Cal., N.A., 663 F.2d at 981.
Atlantic next argues the professional services exclusion precludes coverage because Adams's letter contains statements that reflect the specialized knowledge inherent to the legal profession. Atlantic argues that Adams evaluated the situation, concluded that medical negligence had caused an injury, discussed the existence of a prior settlement, and expressed his interest in pursuing a cause of action on the patient's behalf. According to Atlantic, these actions constitute professional services inherent to the profession. We do not agree.
We look to the letter itself to determine if the Firm provided professional services. See Marx, 157 N.W.2d at 871-72. The Firm did not render professional services in the letter. None of the opinions or language in the letter provided legal services. The Firm did not advise Likover's former patient, but rather invited him to contact the Firm. The letter offered no legal opinion with respect to the patient's particular case. The letter simply acknowledged that he was a former patient of Likover and that Likover previously had been the subject of litigation. The letter then concluded by offering the possibility of representation. The Firm merely engaged in a practice designed to acquire new business.
The Firm outlined the possibility for representation. If the recipient of the solicitation letter chose to pursue representation, then the Firm would have the opportunity to offer professional services. The letter itself does not provide any professional services. It is merely a medium for attracting new clients, and thus is incidental to the profession. The decision to send a solicitation letter to Likover's former patient allegedly in violation of the confidentiality clause was not the rendering of professional services. The solicitation letter was rather an invitation to *478 pursue the opportunity to render professional services. The Firm's potential liability did not arise from acts in rendering professional services. Instead, the Firm's potential liability arose from allegedly defamatory statements contained in the solicitation letter, the sending of which was incidental to professional services.
Furthermore, the solicitation of clients does not require the specialized skills particular to the legal profession. Soliciting clients does not require a lawyer to use the specialized education and knowledge inherent to lawyers. A lawyer's day-to-day functions include advising clients, drafting pleadings, analyzing caselaw, and conducting trial strategy sessions, among other activities. These functions each require skills solely belonging to the legal profession. If the Firm did breach a duty not to defame, it breached the general duty not to defame, owed by all, which does not arise strictly out of the legal profession. See Treadway v. Vaughn, 633 So. 2d 626, 629 (La.Ct.App.1994).
We hold that this solicitation letter, which we have determined does not include any legal advice, does not fall within the exclusion for "Designated Professional Services" in the Firm's policy. We overrule Atlantic's points of error. We next address the Firm's conditional cross-point.
THE FIRM'S CROSS-POINT
In its conditional cross-point, the Firm argues the trial court erred to the extent the final judgment does not provide Atlantic with a duty to indemnify. We disagree.
In its petition, the Firm alleged that Atlantic had a duty to defend or a duty to indemnify the Firm. The Firm then filed a motion for summary judgment contending that Atlantic had a duty to defend or indemnify the Firm, the same relief it requested in the petition. The trial court granted the Firm's motion and expressly stated that Atlantic had a duty to defend.
Neither the Firm's petition nor its motion for summary judgment asked for a declaration that Atlantic had a duty to defend and a duty to indemnify. Rather, the petition and the motion for summary judgment sought relief in the disjunctive. The trial court could only grant summary judgment on a duty to defend or a duty to indemnify. Because the relief sought was requested in the disjunctive, the trial court's only available option was to select either the duty to defend or the duty to indemnify. The trial court correctly ordered Atlantic to defend the Firm. In essence, the Firm received the relief it requested from the trial court. The Firm is now unable to seek additional relief from this Court on appeal. See Page v. Geller, 941 S.W.2d 101, 102 (Tex.1997) (holding it is error for a trial court to grant more relief than requested). We overrule the Firm's conditional cross-point and affirm the trial court's judgment.
NOTES
[1] In its brief, Atlantic essentially does concede that Likover's defamation falls within the coverage provision for advertising injury. Atlantic fails to argue that Likover's defamation claim is not an advertising injury. Instead, Atlantic relies solely on its argument that the professional services exclusion precludes coverage. Despite this line of argument in its brief, at oral argument Atlantic expressly denied it was conceding that Likover's defamation claim falls squarely within the advertising injury provision in the insurance contract.
[2] Specifically, the letter stated, "we obtained for the patient a multi-million dollar settlement from all responsible parties." This language was used despite the existence of a confidentiality agreement.
[3] Previous cases discussing the term "professional services" most frequently involve medical negligence claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900127/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00512-CV
IN RE LOWE’S HOME CENTERS, LLC
Original Mandamus Proceeding 1
PER CURIAM
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Jason Pulliam, Justice
Delivered and Filed: September 9, 2015
PETITION FOR WRIT OF MANDAMUS DISMISSED AS MOOT
Relator filed its petition for writ of mandamus and expedited motion for stay of trial on
August 18, 2015, challenging the trial court’s order granting severance of claims in the underlying
personal injury action. On August 20, 2015, this court issued an order temporarily abating the
mandamus proceeding to allow the trial court to rule on relator’s motion to reconsider the
challenged order.
Relator filed a status report and motion to dismiss on August 28, 2015. Relator has advised
that the issues raised by the mandamus proceeding have become moot, and the mandamus petition
1
This proceeding arises out of Cause Nos. 2014-CI-09253, styled John Salas v. Lowe’s Home Centers, LLC; Lowe’s
Companies, Inc.; and Alfonso Lopez, and 2015-CI-12273, styled Leonardo Mercado v. Lowe’s Home Centers, LLC;
Lowe’s Companies, Inc.; and Alfonso Lopez, pending in the 407th Judicial District Court, Bexar County, Texas, the
Honorable Laura Salinas presiding.
04-15-00512-CV
should be dismissed. Accordingly, relator’s motion is granted and this original proceeding is
dismissed as moot.
PER CURIAM
-2- | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1327668/ | 411 S.E.2d 850 (1991)
Carl W. SMITHSON, Sr., dba Smithson Bros. Well Service Co., Plaintiff Below, Appellee,
v.
UNITED STATES FIDELITY & GUARANTY COMPANY, and Basil Thumm, Defendants Below, Appellants.
No. 20073.
Supreme Court of Appeals of West Virginia.
Submitted September 24, 1991.
Decided November 22, 1991.
*853 Thomas C. Cady, Morgantown, for appellee.
John E. Busch, Busch & Talbott, L.C., Elkins, for appellants. *851
*852 MILLER, Chief Justice:
United States Fidelity & Guaranty Company (USF & G) appeals an adverse jury verdict in which its insured, Carl W. Smithson, Sr., doing business as Smithson Brothers Well Service Company, recovered $95,833 in a first-party bad faith settlement practices suit. USF & G argues that the trial court erred in failing to disqualify plaintiff's attorney and in not finding that the appraisal procedure under the policy barred the present suit. Several other errors relate to the damage award. We find that the plaintiff failed to present sufficient evidence of economic loss to support the verdict.
I.
USF & G insured a truck with a drilling rig attachment that was owned by the partnership of Carl Smithson and his brother, Danny Smithson. The policy limit was $60,000. On September 16, 1985, the truck was destroyed in a gas well explosion. The insured made a claim for the value of the equipment together with tools. After the insured submitted his proof of loss form, the two parties could not agree on the actual cash value of the property. Consequently, on January 15, 1986, USF & G invoked the appraisal procedure provided for in the policy.[1]
On February 11, 1986, Carl Smithson retained an attorney, who initially refused to agree to submit the claim to appraisal; however, two months later, the attorney changed his mind and selected an appraiser to represent the plaintiff on May 8, 1986. Smithson's appraiser and USF & G's appraiser could not agree on the value of the property damaged.
Under the policy appraisal procedure, the two appraisers are required to select an umpire. The parties could not agree on an umpire. Eventually, the matter was referred to the American Arbitration Association (AAA), which designated an umpire. On April 18, 1988, the umpire estimated the loss at approximately $67,000. Because the actual cash value of the insured's property exceeded the policy limit, USF & G paid the insured $60,000.
Subsequently, on June 14, 1988, Mr. Smithson sued USF & G, alleging that the insurer acted in bad faith by failing to settle his claim promptly. At trial, the circuit court directed a verdict for Mr. Smithson on the issue of liability because *854 he had substantially prevailed in the underlying appraisal proceeding.[2]See Syllabus Point 1, Hayseeds, Inc. v. State Farm Fire & Casualty Co., 177 W.Va. 323, 352 S.E.2d 73 (1986). The only issue submitted to the jury was the amount of consequential damages the plaintiff could recover, which included net economic losses, aggravation, and inconvenience.[3] The jury rendered a verdict of $95,833, and the trial court awarded the plaintiff attorney's fees equal to one-third of this amount.
II.
The first issue raised by USF & G is the trial court's failure to disqualify Mr. Smithson's attorney when USF & G informed the court that it desired to call him as a witness. USF & G contends that Mr. Smithson's attorney unduly prolonged the appraisal process, thereby increasing the plaintiff's economic losses. In support of its argument, USF & G cites DR 5-102 under Canon 5 of the Code of Professional Responsibility.[4] A similar prohibition is found in Rule 3.7 of the current Rules of Professional Conduct.[5] Both of these rules state that it is unethical for a lawyer representing a client to appear as a witness on behalf of the client except under very limited conditions. Here, USF & G proposed to call the plaintiff's attorney and question him on matters that were adverse to his client's interests. In this situation, courts have recognized the potential for abuse and and have been reluctant to disqualify the attorney without a showing of compelling circumstances.
The Arizona Supreme Court analyzed this issue in Cottonwood Estates, Inc. v. Paradise Builders, Inc., 128 Ariz. 99, 624 P.2d 296 (1981). The trial court sua sponte disqualified the plaintiff's attorney upon learning that the defendant planned to call him as a witness. The Supreme Court of Arizona began by recognizing the general rule that where counsel representing a party discerns that he will be a witness for such party, the attorney should ordinarily withdraw from representation. In analyzing this issue, the Arizona court cited our case of Edmiston v. Wilson, 146 W.Va. 511, 120 S.E.2d 491 (1961), where we stated in Syllabus Points 7 and 8:
"7. Any practice which enables an attorney, while engaged in the prosecution or the defense of litigation, to testify as a witness in the course of such litigation is disapproved.
"8. When counsel for a party to a cause finds that he is required to be a material witness for his client he should *855 immediately so advise his client and retire as counsel in the case."
In Edmiston, we decided the case without reference to the canons of legal ethics and instead relied on cases from other jurisdictions where general dissatisfaction had been expressed concerning this practice.[6] The rationale for such a rule is explained in Ethical Consideration 5-9 under Canon 5 of the Code of Professional Responsibility:
"Occasionally a lawyer is called upon to decide in a particular case whether he will be a witness or an advocate. If a lawyer is both counsel and witness, he becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively."
DR 5-102(A) does recognize a few exceptions in which a lawyer may still represent a client and testify on his behalf. These exceptions are delineated in DR 5-101(B)(1) through (4):
"(1) If the testimony will relate solely to an uncontested matter.
"(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
"(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."
Courts have recognized these exceptions. See, e.g., J.P. Foley & Co. v. Vanderbilt, 523 F.2d 1357 (2d Cir.1975); Cottonwood Estates, Inc. v. Paradise Builders, Inc., supra; Branom v. Smith Frozen Foods of Idaho, Inc., 83 Idaho 502, 365 P.2d 958 (1961); Robbins v. Hannen, 194 Kan. 596, 400 P.2d 733 (1965).
In Cottonwood Estates, the court stated that DR 5-102(B) does not automatically disqualify a lawyer if he is "called as a witness other than on behalf of his client[.]" 128 Ariz. at 104, 624 P.2d at 301. Rather, the lawyer "may continue the representation until it is apparent his testimony is or may be prejudicial to his client." 128 Ariz. at 104, 624 P.2d at 301. However, the court further recognized the potential for abuse where a party moves to disqualify opposing counsel on the ground that he may be called as a potential witness:
"DR 5-102(B) works ... to prevent opposing counsel from contriving some tactical need for calling the attorney thereby triggering disqualification. See Smith v. Arc-Mation, [402 Mich. 115, 261 N.W.2d 713 (1978) ]. To call for the disqualification of opposing counsel for delay or other tactical reasons, in the absence of prejudice to either side, is a practice which will not be tolerated. Phillips v. Liberty Mutual Insurance Co., 43 Del. Ch. 436, 235 A.2d 835 (1967); Galarowicz v. Ward, 119 Utah 611, 230 P.2d 576 (1951).
"By misusing the advocate-witness prohibition, an attorney might elbow opposing counsel out of the litigation for tactical reasons. International Electronics Corp. v. Flanzer, 527 F.2d 1288 (2d Cir.1975); J.P. Foley & Co. v. Vanderbilt, 523 F.2d [1357] at 1360 (Guerin, *856 J. conc.)." 128 Ariz. at 104-05, 624 P.2d at 301-02.
Because of these concerns, the court in Cottonwood Estates formulated this rule with regard to motions to disqualify opposing counsel:
"When an attorney is to be called other than on behalf of his client, a motion for disqualification must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client." 128 Ariz. at 105, 624 P.2d at 302.[7]
Other courts have adopted a similar rule. See, e.g., Davis v. Stamler, 494 F. Supp. 339 (D.N.J.1980), aff'd, 650 F.2d 477 (3d Cir. 1981); Cazares v. Church of Scientology of Cal., Inc., 429 So. 2d 348 (Fla.App.), review denied, 438 So. 2d 831 (1983); Serody v. Serody, 19 Mass.App. 411, 474 N.E.2d 1171 (1985). We agree with the foregoing analysis because it strikes a reasonable balance between the potential for abuse and those instances where the attorney's testimony may be truly necessary to the opposing party's case.
Consequently, we conclude that when an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that the attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney's client.
In this case, USF & G's motion to disqualify stated that the plaintiff's attorney would be called as a witness because part of the delay in settling the claim was the plaintiff's attorney's fault. USF & G represented that the attorney had already conceded this point in his deposition. However, USF & G failed to show that the desired testimony could not have been developed by other witnesses. Indeed, it seems likely that the USF & G employee who adjusted the fire loss and participated in the appraisal process could have testified about the delay allegedly caused by the plaintiff's attorney. Moreover, USF & G's attorney who oversaw the appraisal process was not associated with the law firm that ultimately defended the insurer in the bad faith suit. USF & G made no showing that its first attorney was unavailable to testify about the delay. Accordingly, we find the disqualification issue without merit.
III.
USF & G next asserts that the plaintiff's bad faith suit was barred because the underlying fire loss was settled through arbitration. USF & G cites several cases in which we held that where a contract provides for mandatory arbitration, it precludes the parties from litigating the controversy in the courts. Our most comprehensive case on this subject is Board of Education v. W. Harley Miller, Inc., 160 W.Va. 473, 236 S.E.2d 439 (1977), where we set out this general rule in Syllabus Point 1:
"Where parties to a contract agree to arbitrate either all disputes, or particular limited disputes arising under the contract, and where the parties bargained for the arbitration provision, such provision is binding, and specifically enforceable, and all causes of action arising under the contract which by the contract terms are made arbitrable are merged, in the absence of fraud, into the award of the arbitrators."
However, we further acknowledged that a contractual requirement of arbitration is *857 not absolute and will not be enforced if there was disparate bargaining power, if there was an adhesion contract, or if the provision was unconscionable.[8]
The initial fallacy in USF & G's argument is that the insurance contract did not provide for arbitration, but rather for an appraisal of the loss. Under an ordinary appraisal clause, the only issue is the amount of the loss. Questions concerning policy defenses or coverage are not addressed in appraisals. The narrow purpose of an appraisal and the lack of an evidentiary hearing make it a much different procedure from arbitration. See Hartford Lloyd's Ins. Co. v. Teachworth, 898 F.2d 1058 (5th Cir.1990); Southeast Nursing Home, Inc. v. St. Paul Fire & Marine Ins. Co., 750 F.2d 1531 (11th Cir.1985); Ice City, Inc. v. Insurance Co. of N. Am., 456 Pa. 210, 314 A.2d 236 (1974). See generally 44 Am.Jur.2d Insurance § 1680 (1982 & Supp.1991).
Although the parties ultimately agreed to have the umpire appointed by the AAA, the appraisal procedure was not then converted into arbitration. Moreover, we are reluctant to apply our arbitration law to an insurance policy appraisal provision that is neither mandatory nor the exclusive remedy for settling casualty losses. See Annot., 25 A.L.R. 3d 680 (1969 & Supp. 1991).
Finally, if an insurer could utilize the appraisal process to shield itself from the consequences of failing to make a reasonable settlement offer on a fire loss, it would defeat the principles involved in Hayseeds, Inc. v. State Farm Fire & Casualty Co., 177 W.Va. 323, 352 S.E.2d 73 (1986), and its progeny. We stated this general rule in Syllabus Point 1 of Hayseeds:
"Whenever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for: (1) the insured's reasonable attorneys' fees in vindicating its claim; (2) the insured's damages for net economic loss caused by the delay in settlement, and [(3)] damages for aggravation and inconvenience."
This case is like any first-party claim where the insured and the insurance company fail to agree about the amount of the loss. For example, in Thomas v. State Farm Mutual Automobile Insurance Co., 181 W.Va. 604, 383 S.E.2d 786 (1989), the insured was involved in an accident and sought payment for the damage to his truck under the collision coverage of his motor vehicle policy. The insured submitted repair estimates totaling approximately $10,000, but because the insurance company's appraiser estimated the loss at only $4,960, the company offered the lower amount. The offer was rejected. When the insured filed suit against his insurer, he recovered $10,168 for the property damage and towing and storage fees.
On appeal, the company contended that it should not be held liable for the additional Hayseeds damages for economic loss and attorney's fees because Hayseeds applies only to those situations where the insurer refuses to make any settlement offer. We rejected this contention:
"The critical language in Hayseeds refers to `a policyholder [who] substantially prevails in a property damage suit against its insurer.' Syllabus Point 1, in part. In property damage claims, the loss is tangible and the amount of damages is ordinarily readily susceptible to calculation.... Because a property damage claim is fixed and calculable, there is little danger that the insurer will be exposed to excessive damages. This *858 can give rise to the temptation to place as low a value as possible on the claim in the hope that the insured will settle at the low figure rather than fight. Courts have recognized that this type of conduct on the part of the insurer is actionable under a bad faith theory." 181 W.Va. at 607, 383 S.E.2d at 789. (Citations omitted; footnote omitted).
We then outlined when an insured can recover Hayseeds damages in Syllabus Point 2 of Thomas:
"The question of whether an insured has substantially prevailed against his insurance company on a property damage claim is determined by the status of the negotiations between the insured and the insurer prior to the institution of the lawsuit. Where the insurance company has offered an amount materially below the damage estimates submitted by the insured, and the jury awards the insured an amount approximating the insured's damage estimates, the insured has substantially prevailed."
Consequently, under the foregoing principles, we conclude that a first-party suit based on Hayseeds will not be barred by the settlement of the loss in an appraisal proceeding under the fire insurance policy if the insured substantially prevailed in the appraisal proceeding over the amount of the loss.
As we have earlier noted, the insured substantially prevailed in the appraisal proceeding. The company offered $25,000 before it invoked the appraisal provision. The insured had demanded the policy limit of $60,000. Once the claim was submitted to appraisal, the amount of loss was determined to be $67,000. Clearly, under Thomas, the insured has substantially prevailed.
IV.
USF & G further asserts that the trial court erred when it ruled that Donald Haislip, the insurance agent who sold the policy to Mr. Smithson, was an agent of USF & G. Because he was found to be an agent of the insurer, the trial court held that, under Rule 801(d)(2)(D) of the West Virginia Rules of Evidence, the plaintiff could testify about remarks Mr. Haislip's made to him about the policy.[9] We recognized this rule in Syllabus Point 3 of Canterbury v. West Virginia Human Rights Commission, 181 W.Va. 285, 382 S.E.2d 338 (1989):
"A statement is not hearsay if the statement is offered against a party and is a statement by his [or her] agent or servant concerning a matter within the scope of his [or her] agency or employment, made during the existence of the relationship. W.Va.R.Evid. 801(d)(2)(D)."
USF & G submitted an affidavit with a motion in limine requesting the trial court to prohibit the plaintiff from repeating the agent's statements. The affidavit stated that Mr. Haislip was not employed by USF & G, but rather by Chamberlaine & Flowers, which was an independent insurance company with multiple lines of insurance from various companies, only one of which was USF & G.
The legislature settled this question when it enacted W.Va.Code, 33-12-23 in 1957: "Any person who shall solicit within this State an application for insurance shall, in any controversy between the insured or his beneficiary and the insurer issuing any policy upon such application, be regarded as the agent of such insurer and not the agent of the insured." (Emphasis added).
In Knapp v. Independence Life & Accident Insurance Co., 146 W.Va. 163, 118 S.E.2d 631 (1961), we applied this statute. There, the insured purchased a family medical insurance policy which provided $10,000 coverage. The original policy did not provide coverage for cancer; however, approximately one year later, the company sent the insured a rider providing for cancer *859 benefits without any increase in the premium. Although the company sent its agent a letter explaining that the coverage for cancer treatment was limited to $500, the broker neglected to forward this information to the insured. When the insured's wife developed cancer and incurred medical expenses of $2,500, the company refused to pay more than the rider amount of $500. On appeal, the insurer contended that the soliciting broker was not its agent, but rather the insured's. We rejected this point in Syllabus Point 1:
"By virtue of Section 23, Article 12, Chapter 33, Code, 1931, as amended, any person who shall solicit within this State an application for insurance shall, in any controversy between the insured or his beneficiary and the insurer issuing any policy upon such application, be regarded as the agent of the insurer and not the agent of the insured."
In the alternative, the insurance company argued that W.Va.Code, 33-12-13, addressed only those matters involved in procuring the application for insurance. We rejected this assertion as well:
"The position of the defendant is that... the statute [applies] only to the extent that the application is involved and that the statute does not apply to a controversy in which other questions or issues are in dispute. This position is clearly untenable and can not be given judicial sanction. It is obvious from the clear and unambiguous language of the statute that the solicitor of the application for insurance should be regarded for all purposes as the agent of the insurer in any controversy between it and the insured or his beneficiary." 146 W.Va. at 169, 118 S.E.2d at 635.
Even though we stated in Syllabus Point 4, in part, of Maynard v. National Fire Insurance Co. of Hartford, 147 W.Va. 539, 129 S.E.2d 443 (1963), that "a mere soliciting agent of the insurer ... has [no] authority... to bind the insurer," Maynard did not cite W.Va.Code, 33-12-23, or the Knapp case.[10] To the extent it contradicts the statute and Knapp, it is overruled. Clearly, under Knapp and the statute, Mr. Haislip was an agent of USF & G; therefore, his remarks to Mr. Smithson were admissible under Rule 801(d)(2)(D) of the West Virginia Rules of Evidence.[11]
V.
USF & G next asserts that the trial court erred in allowing the plaintiff to testify that he had been offered $70,000 for the insured property before the fire loss. In other contexts, we have allowed the owner of property, both real and personal, to express an opinion on its value. This was based on the assumption that an owner has some knowledge of his property's worth. See, e.g., West Virginia Dep't of Highways v. Sickles, 161 W.Va. 409, 242 S.E.2d 567 (1978), overruled on other grounds, West Virginia Dep't of Highways v. Brumfield, 170 W.Va. 677, 295 S.E.2d 917 (1982); Adkins v. City of Hinton, 149 W.Va. 613, 142 S.E.2d 889 (1965); Tennessee Gas Transmission Co. v. Fox, 134 W.Va. 106, 58 S.E.2d 584 (1950).[12]Cf. State v. Masters, 179 W.Va. 752, 373 S.E.2d 173 (1988) (testimony of owner of video store concerning the value of a video cassette recorder is *860 generally competent to establish the value of property stolen).
It is true, as USF & G asserts, that the remark was couched in terms of an offer the plaintiff received and was technically hearsay.[13] However, admission of this testimony was not reversible error because the value of the vehicle was not a material issue in the case.
VI.
USF & G's next assignments of error are two theories both arising from the same event. USF & G asserts that the trial court erred in refusing to give its instructions on comparative fault and mitigation of damages. The underlying factual predicate for both of these instructions is that the plaintiff's attorney unduly delayed the appraisal process. We believe this factual predicate is without merit and, therefore, decline to discuss the possible validity of these legal theories.
USF & G invoked the appraisal clause which provided specified procedures.[14] USF & G failed to follow certain steps which would have enabled it to avoid the unreasonable delay.[15] The appraisal language specifically states that "[t]he appraisers shall first select a competent and disinterested umpire[.]"[16] Even though the plaintiff took several months to select an appraiser, the bulk of the delay in settling the claim was due to the appraisers' failure to promptly select the umpire.
The policy language addresses such a dilemma when it states that if after "fifteen days [the appraisers are unable] to agree upon such umpire, then, on the request of the Insured or Company, such umpire shall be selected by a judge of a court of record in the State in which such appraisal is pending." Fifteen days after the plaintiff selected his appraiser, USF & G could have requested the Circuit Court of Gilmer County to appoint an umpire.
Rather than exercise its clear right under the policy, USF & G allowed the matter to drift for approximately eighteen months until the parties finally agreed to have the AAA select an umpire in November of 1987. The actual resolution of the value of the loss did not occur until April of 1988. Courts have applied concepts of waiver and estoppel to insurance appraisal proceedings. See, e.g., Bard's Apparel Mfg., Inc. v. Bituminous Fire & Marine Ins. Co., 849 F.2d 245 (6th Cir.1988); Southeast Nursing Home, Inc. v. St. Paul Fire & Marine Ins. Co., supra; Kester v. State Farm Fire & Casualty Co., 726 F. Supp. 1015 (E.D.Pa.1989); Home Indem. Co. v. Bush, 20 Ariz.App. 355, 513 P.2d 145 (1973); Giulietti v. Connecticut Ins. Placement Facility, 205 Conn. 424, 534 A.2d 213 (1987); Weiss v. Insurance Co. of Pa., 497 So. 2d 285 (Fla.App.1986); Hanover Fire Ins. Co. v. Drake, 170 Va. 257, 196 S.E. 664 (1938). See generally 44 Am. Jur.2d Insurance § 1687. In this case, USF & G, as the party seeking the appraisal, had an affirmative duty to see that the appraisal procedures outlined in the policy were followed.
Moreover, "[a] plaintiff is not under a duty to mitigate damages if the other party, who had the duty to perform under the contract, had equal opportunity to perform and equal knowledge of the consequences of nonperformance." 22 Am.Jur.2d Damages § 508 at 591 (1988). (Footnotes omitted). *861 The breadth of this rule is more fully discussed in S.J. Groves & Sons Co. v. Warner Co., 576 F.2d 524, 530 (3d Cir. 1978):
"Where both the plaintiff and the defendant have had equal opportunity to reduce the damages by the same act and it is equally reasonable to expect the defendant to minimize damages, the defendant is in no position to contend that the plaintiff failed to mitigate. Nor will the award be reduced on account of damages the defendant could have avoided as easily as the plaintiff. See Dobbs, Handbook on the Law of Remedies § 37 at 186 (1973). The duty to mitigate damages is not applicable where the party whose duty it is primarily to perform a contract has equal opportunity for performance and equal knowledge of the consequences of nonperformance. See Parker v. Harris Pine Mills, 206 Or. 187, 291 P.2d 709 (1955)."
Accord SHEA-S & M Ball v. Massman-Kiewit-Early, 606 F.2d 1245 (D.C.Cir. 1979); McCarty v. United States, 185 F.2d 520 (5th Cir.1950); Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So. 2d 823 (1968); Smith v. Watson, 406 N.W.2d 685 (N.D.1987); Ecksel v. Orleans Constr. Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987).
The foregoing rule seems logical and reasonable. Although it does not appear that we have had occasion to consider this rule, we have held that the burden of proof is on the defendant to show that the plaintiff failed to mitigate his damages. Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990); Mason County Bd. of Educ. v. State Superintendent of Schools, 170 W.Va. 632, 295 S.E.2d 719 (1982); Martin v. Board of Educ., 120 W.Va. 621, 199 S.E. 887 (1938); Huntington Easy Payment Co. v. Parsons, 62 W.Va. 26, 57 S.E. 253 (1907). Thus, we conclude that in contract cases, where the defendant has refused to perform and had the same opportunity to mitigate the damages as the plaintiff by taking some action, the defendant is foreclosed from asserting that the plaintiff failed to mitigate his damages. To hold otherwise would allow the wrongdoer to profit from his own wrong.
VII.
USF & G's final contention centers on the plaintiff's lack of evidence to support the $95,000 verdict for economic losses. The only testimony about economic losses incurred was by Danny Smithson, one of the partners in Smithson Brothers Well Service Company. He testified that one month after the fire, the partnership had to finance the purchase of another rig, which resulted in a monthly debt payment of $3,000. The only other evidence about economic losses was a vague estimate made by Danny Smithson that the partnership lost $50,000 in profits before USF & G finally paid the loss. No attempt was made to prove this loss with any detailed evidence from the partnership accounts or its tax returns.
The insured cannot recover the amount paid on the principal of the loan. This amount was recovered against USF & G in the appraisal proceeding. A double recovery would result if the partnership could collect under its insurance policy for the destroyed rig and then also recover the purchase price of the new rig from USF & G in a bad faith suit. See, e.g., Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 673 P.2d 1200 (1984). However, the plaintiff is entitled to prejudgment interest on the $60,000 from the date of the loss until it was paid. Hardman Trucking, Inc. v. Poling Trucking Co., 176 W.Va. 575, 346 S.E.2d 551 (1986).
While Hayseeds permits the insured to recover net economic loss caused by an unreasonable delay in settlement of the claim, it does not alter our traditional damage rule, as stated in Syllabus Point 3, Kentucky Fried Chicken of Morgantown v. Sellaro, 158 W.Va. 708, 214 S.E.2d 823 (1975):
"Compensatory damages recoverable by an injured party incurred through the breach of a contractual obligation must be proved with reasonable certainty."
See also Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967); Steinbrecher v. *862 Jones, 151 W.Va. 462, 153 S.E.2d 295 (1967).
This case bears some resemblance to Addair v. Motors Insurance Corp., 157 W.Va. 1013, 207 S.E.2d 163 (1974), where the owner of a truck sought to recover damages for loss of use of his vehicle for eighty-three days. Evidence was introduced as to the gross receipts that would have been received each day if the truck had been operating. However, there were no detailed deductions for its operating expenses. We held in Syllabus Point 5 that this proof was insufficient:
"`Loss of profits can not be based on estimates which amount to mere speculation and conjecture but must be proved with reasonable certainty.' Point 5, Syllabus, State ex rel. Shatzer v. Freeport Coal Company, 144 W.Va. 178 [107 S.E.2d 503 (1959) ]."
We conclude that while the plaintiff failed to prove any net economic loss, he can recover attorney's fees incurred during the successful appraisal proceeding. These fees were $15,000. The trial court should also award plaintiff prejudgment interest from the date of the loss until the policy proceeds were paid. In addition, once these amounts are calculated, they will represent the losses authorized by Hayseeds, and, as indicated in Hayseeds, an additional one-third attorney's fees would be proper in pursuing this first-party claim in the court below.
If the plaintiff desires to accept this amount, a judgment may be entered below. However, if the plaintiff wishes to have a new trial, then the judgment may be set aside and a new trial awarded, as we directed in Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).
Reversed and remanded with directions.
NOTES
[1] The appraisal provision states:
"Appraisal. If the Insured and the Company fail to agree as to the amount of loss, each shall on the written demand of either, made within sixty days after receipt of proof of loss by the Company, select a competent and disinterested appraiser, and the appraisal shall be made at a reasonable time and place. The appraisers shall first select a competent and disinterested umpire, and failing for fifteen days to agree upon such umpire, then, on the request of the Insured or the Company, such umpire shall be selected by a judge of a court of record in the State in which such appraisal is pending. The appraisers shall then appraise the loss, stating separately the actual cash value at the time of loss and the amount of loss, and failing to agree shall submit their differences to the umpire. An award in writing of any two shall determine the amount of loss. The Insured and the Company shall each pay his or its chosen appraiser and shall bear equally the other expenses of the appraisal and umpire. The Company shall not be held to have waived any of its rights by any act relating to appraisal."
[2] The highest offer made by USF & G before the appraisal procedure was invoked was $25,000.
[3] The trial court refused to instruct the jury on punitive damages.
[4] At the time of this litigation, DR 5-102 of the Code of Professional Responsibility, was in effect:
"Withdrawal as Counsel When the Lawyer Becomes a Witness. (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).
"(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client."
[5] On June 30, 1988, this Court adopted the Rules of Professional Conduct, which became effective on January 1, 1989. These rules superseded the Code of Professional Responsibility. The current counterpart of DR 5-102 is Rule 3.7 of the Rules of Professional Conduct, which provides:
"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
"(1) the testimony relates to an uncontested issue;
"(2) the testimony relates to the nature and value of legal services rendered in the case; or
"(3) disqualification of the lawyer would work substantial hardship on the client.
"(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."
[6] This Court first adopted a Code of Professional Ethics for Lawyers in 1947. See 128 W.Va. Reports xvii (1947). Rule 19 of that Code stated:
"When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client."
[7] Courts have also indicated that disqualification motions should be viewed cautiously because, if granted, the client would be deprived of his chosen counsel. See, e.g., W.T. Grant Co. v. Haines, 531 F.2d 671 (2d Cir.1976); Security Gen. Life Ins. Co. v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986) (en banc); Comden v. Superior Court, 20 Cal. 3d 906, 145 Cal. Rptr. 9, 576 P.2d 971, cert. denied, 439 U.S. 981, 99 S. Ct. 568, 58 L. Ed. 2d 652 (1978); Borman v. Borman, 378 Mass. 775, 393 N.E.2d 847 (1979).
[8] Syllabus Point 3 of Board of Education v. W. Harley Miller, Inc., supra, provides:
"It is presumed that an arbitration provision in a written contract was bargained for and that arbitration was intended to be the exclusive means of resolving disputes arising under the contract; however, where a party alleges that the arbitration provision was unconscionable or was thrust upon him because he was unwary and taken advantage of, or that the contract was one of adhesion, the question of whether an arbitration provision was bargained for and valid is a matter of law for the court to determine by reference to the entire contract, the nature of the contracting parties, and the nature of the undertakings covered by the contract."
[9] Rule 801(d)(2)(D) of the West Virginia Rules of Evidence provides: "A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship[.]"
[10] The full text of Syllabus Point 4 of Maynard is:
"Neither a mere insurance adjuster as such nor a mere soliciting agent of the insurer as such has authority to admit or deny liability of the insurer on a policy of fire insurance or to bind the insurer by waiver of the provisions of the policy relative to proof of loss or to bind the insurer by estoppel to assert and rely on such policy provisions."
[11] The plaintiff contends that Mr. Haislip recommended that he purchase $75,000 coverage for his vehicle, and advised him that, in the event of a total loss, the policy limits would be paid.
[12] Syllabus Point 1 of Tennessee Gas states:
"A witness in a proceeding in eminent domain who is acquainted with the land involved, or who has recently visited and examined it and is familiar with the market value of other lands in the same locality, or who owns and has lived upon the land, is sufficiently qualified to give his opinion of its market value. The opinion evidence of a witness so qualified is admissible but its weight and its credibility are questions for the jury."
[13] In Syllabus Point 2 of State v. Boswell, 107 W.Va. 213, 148 S.E. 1 (1929), we recognized, without discussing the hearsay implications, that testimony about a bona fide offer to purchase an item was admissible to prove the item's market value.
[14] For the full text of the appraisal provision, see note 1, supra.
[15] We assume for purposes of the discussion that USF & G timely invoked the appraisal process by demanding it within sixty days after receiving the insured's proof of loss.
[16] USF & G's failure to comply with the appraisal is further evidenced by the language in the policy following the provision dealing with how an umpire is selected if the appraisers cannot agree. It is not until an umpire has been selected that "the appraisers shall then appraise the loss[.]" Thus, the first step in the appraisal process is the selection of the appraisers who then select an umpire. See generally 44 Am. Jur.2d Insurance § 1690 (1982). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1440744/ | 704 F.Supp. 583 (1988)
George S. LIAKAKOS
v.
CIGNA CORPORATION; CIGNA Worldwide, Incorporated; James T. Morone; Arnold A. Trillet J.J. Talarico; and Does 1-100, Inclusive.
Civ. A. No. 87-0390.
United States District Court, E.D. Pennsylvania.
November 23, 1988.
As Amended November 23, 1988.
*584 William B. Lytton, Robert J. LaRocca, Marion K. Littman, Kohn, Savett, Klein & Graf, P.C., Philadelphia, Pa., for plaintiff.
Stephanie A. Middleton, Philadelphia, Pa., for defendants.
OPINION
GAWTHROP, District Judge.
On August 16, 1988, it appearing that this court had diversity jurisdiction, I entered an order permitting further discovery to proceed. Upon further examination of the pertinent law and the facts of this case, I now, sua sponte,[1] vacate and modify my previous order as it relates to subject matter jurisdiction.
Background
Plaintiff, George S. Liakakos, is a Greek national and a naturalized citizen of the United States. In 1978, he became an employee of AFIA Worldwide (AFIA), working as a senior branch assistant in AFIA's Athens office. AFIA was later acquired by CIGNA Worldwide, Incorporated (CIGNA), a Delaware corporation with its principal place of business in Philadelphia, Pennsylvania.[2] In 1984, plaintiff was assigned to the position of Director, Loss Control in Athens. In 1985, CIGNA notified plaintiff that his employment would be terminated effective April 1, 1985. Plaintiff brought suit in the Superior Court of California for the County of Los Angeles on March 14, 1986. Eight months later, the case was removed to the United States District Court for the Central District of California, which transferred the case to the United States District Court for the Eastern District of Pennsylvania.
I. Does this court have subject matter jurisdiction under 28 U.S.C. § 1332(a)(2)?
Under 28 U.S.C. § 1332(a)(2), federal courts are vested with original jurisdiction in cases involving "citizens of a State and citizens or subjects of a foreign state." In my previous memorandum, I stated:
In [his] affidavit, plaintiff states that he is both a naturalized United States citizen and a citizen of Greece. He also asserts that "[n]otwithstanding my United States citizenship, Greece always has considered and continues to consider me a Greek citizen." Since plaintiff is recognized as a Greek citizen, he has a diversity claim under 28 U.S.C. § 1332(a)(2)....
Liakakos v. Cigna Corp., slip op. at 2-3, No. 87-390 (E.D.Pa. August 16, 1988) [1988 WL 85704].
*585 In Aguirre v. Nagel, 270 F.Supp. 535 (E.D.Mich.1967), the plaintiff, a minor, was injured when she was struck by defendant's automobile. Both the plaintiff and the defendant were citizens of Michigan. The plaintiff was, however, also a citizen of Mexico, by virtue of her parent's Mexican citizenship. The court ruled that because plaintiff was a Mexican citizen, it had subject matter jurisdiction under the literal meaning of 28 U.S.C. § 1332(a)(2).
The result in Aguirre has been criticized by most commentators, see, e.g., Wright, Miller & Cooper, Federal Practice and Procedure § 3621 (2d ed. 1984), and the few cases that have ruled on the issue have refused to follow it in the case of naturalized Americans.[3]See: Raphael v. Hertzberg, 470 F.Supp. 984 (C.D.Cal.1979), appeal dismissed, 636 F.2d 1227 (9th Cir. 1980), Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980), Nazareth Candy Co., Ltd. v. Sherwood Group, Inc., 683 F.Supp. 539 (M.D.N.C.1988). The reasoning behind these cases is as follows:
1. The purposes behind alienage jurisdiction are not present in the case of naturalized Americans. One of the major considerations that may have prompted this provision was the fear of "entanglements with other sovereigns that might ensue from failure to treat the legal controversies of aliens on a national level." Iran Handicraft and Carpet Export Center v. Marjan Intern'l Corp., 655 F.Supp. 1275, 1277 (S.D.N.Y.1987), quoting Chang v. Northwestern Memorial Hospital, 506 F.Supp. 975, 977 n. 1 (N.D.Ill.1980). Where, however, the proponent of diversity jurisdiction is a United States citizen, "there is little reason to fear that a foreign government may be affronted by a decision adverse to that citizen, even if the American citizen also purports to be a citizen of that foreign nation." Raphael v. Hertzberg, supra., 470 F.Supp. at 986.
2. Where the plaintiff is an American citizen, "the risk of bias in a state forum against the litigant because he is also a foreign national would appear less substantial." Sadat v. Mertes, supra., 615 F.2d at 1186, n. 13.
3. To permit dual citizens the right to use their prior citizenship to create or destroy diversity would give them an unfair advantage over other litigants.
Imagine, for example, a native-born American, born of Japanese parents, domiciled in the State of California, and now engaged in international trade. A dispute could arise in which an Australian customer seeks to sue the American for, say, breach of contract in a federal court in California. The native-born American possibly could claim Japanese citizenship by virtue of his parentage, ... as well as his status as a citizen of California and defeat the jurisdiction of the federal courts because of the absence of complete diversity. Arguably, cases as this are precisely those in which a federal forum should be afforded the foreign litigant in the interest of preventing international friction.
Sadat, 615 F.2d at 1186 (citation omitted).
4. To permit naturalized Americans to use their prior nationality for purposes of diversity would be incompatible with the oath they took upon becoming citizens, wherein they renounced allegiance to foreign states or sovereignties. See: Nazareth Candy Company v. Sherwood Group, Inc., supra., 683 F.Supp. at 542.
I note that the first and second reasons are not entirely applicable to the case at bar. Although a foreign country might ascribe little importance to one of its citizens who has become naturalized and resides in the United States, it might attach greater importance to his case where the naturalized citizen has returned to the country of his origins. Furthermore, in this case, there may indeed by a greater possibility of prejudice, since a jury might assume that because plaintiff was born in Greece, and resides there, he is a Greek national. Nevertheless, I conclude that these concerns are outweighed by the third and fourth factors. To permit a dual national *586 to retain his previous citizenship for purposes of diversity jurisdiction would tend to make his oath of allegiance meaningless, letting him create, or destroy, jurisdiction to a greater degree than the statute contemplates. I also note that the plaintiff has taken no steps to renounce his United States citizenship, and indeed considers himself a Californian citizen. See: Plaintiff's affidavit ¶ 9. See also: Sadat, 615 F.2d at 1188 (Plaintiff's "actions subsequent to his naturalization evince his resolve to remain a U.S. citizen despite his extended stay abroad.")
Accordingly, I vacate that portion of my previous decision, wherein I found that plaintiff could state a diversity claim under § 1332(a)(2).
II. Does this court have subject matter jurisdiction under 28 U.S.C. § 1332(a)(1)?
Section 1332(a)(1), 28 U.S.C. § 1332(a)(1) gives the federal courts original jurisdiction over "citizens of different states." "[D]iversity of citizenship must be shown to have existed at the time of commencement of the action in state court and at the time of the filing of the petition for removal." Kerstetter v. Ohio Casualty Insurance Co., 496 F.Supp. 1305, 1307 (E.D.Pa. 1980). For diversity to exist, plaintiff must be shown to have been not only an American citizen, but a citizen of a particular state. See: Van Der Schelling v. U.S. News & World Report, 213 F.Supp. 756, 762 (E.D.Pa.), aff'd 324 F.2d 956 (3d Cir. 1963), cert. denied, 377 U.S. 906, 84 S.Ct. 1166, 12 L.Ed.2d 177 (1964) (American domiciled abroad not a state citizen for purposes of § 1332(a)(1)).
State citizenship is equated with domicile. Williamson v. Ostenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed. 758 (1914); S.S. Dadzie v. Leslie, 550 F.Supp. 77, 79, n. 3 (E.D.Pa.1982); "A person's domicile is that place where he has his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom." Michelson v. Exxon Research and Engineering Co., 578 F.Supp. 289, 290 (W.D.Pa.), aff'd 745 F.2d 47 (3d Cir.1984).
"[C]itizenship is not necessarily lost by protracted absence from home, where the intention to return remains." Butler v. Pollard, 482 F.Supp. 847, 851 (E.D.Okl. 1979). Similarly, absence from one's domicile because of overseas employment does not constitute a change of domicile. Maple Island Farm v. Bitterling, 196 F.2d 55, 58 (8th Cir.), cert. denied, 344 U.S. 832, 73 S.Ct. 40, 97 L.Ed. 648 (1952); White v. All America Cable & Radio, Inc., 642 F.Supp. 69, 72 (D.Puerto Rico 1986); Bell v. Bell, 326 Pa.Super. 237, 473 A.2d 1069, 1077 (1984).
For a change in domicile to occur, the person whose citizenship is at issue must reside in the new domicile and "have no fixed and definite intent to return and make [his] home where [he was] formerly domiciled" District of Columbia v. Murphy, 314 U.S. 441, 454-55, 62 S.Ct. 303, 309, 86 L.Ed. 329 (1941) (footnote omitted). See also: Lew v. Moss, 797 F.2d 747, 749-750 (9th Cir.1986); Holmes v. Sopuch, 639 F.2d 431, 433 (8th Cir.1981). There is a presumption in favor of the old domicile, Lange v. Penn Mutual Life Insurance Co., 843 F.2d 1175, 1179 (9th Cir.1988), and the party asserting a change in domicile must do so by clear and convincing evidence. Avins v. Hannum, 497 F.Supp. 930, 936 (E.D.Pa.1980); Herzog v. Herzog, 333 F.Supp. 477 (W.D.Pa.1971). "More evidence is required to ... establish a change of domicile from one nation to another than from one state to another...." Maple Island Farm v. Bitterling, supra., 196 F.2d at 59.
The burden of persuasion as to diversity jurisdiction remains at all times on the proponent of jurisdiction. The effect of the presumption of prior domicile does not change the burden of proof, but merely shifts the burden of production onto the party attacking jurisdiction. "Once the attacker comes forward with evidence that the domicile has changed, the burden of production shifts back to the party asserting jurisdiction. That party has the burden of persuasion throughout to establish by a preponderance of evidence that the claimed diverse domicile has not been changed." *587 St. Onge v. McNeilus Truck and Mfg., Inc., 645 F.Supp. 280, 282 (D.Minn.1986).
A party's domicile may be determined by a number of factors, including: "voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, ... driver's license and automobile registration, and payment of taxes." Lew v. Moss, 797 F.2d at 750.
Plaintiff, by way of affidavit, has stated that he was employed with CIGNA with the understanding that he would return to the United States; that during 1986 he returned to this California to look for employment, but was unsuccessful in his attempt; that he "continued to own and maintain his home in California and to maintain [his] bank account, [his] voter registration and driver's license there and to pay California taxes as before...." Plaintiff's Affidavit, ¶ 8. Plaintiff also states that as of March 14, 1986, the date of the suit, he intended to move his family back to California "as soon as I could find a job there." Id.
Defendants, for their part, have produced an application for employment, dated March 11, 1986, from Mr. Liakakos an international manufacturing company, located in Athens, Greece.
In Sadat v. Mertes, supra., the plaintiff, one Moheb A.H. al Sadat, had taken an overseas job which required him to relocate to Beirut, Lebanon. After the plaintiff's employment was terminated, the company agreed to pay the cost of transporting Mr. Sadat and his family from Lebanon back to the United States. The plaintiff, however, did not return to the United States, but left for Alexandria, Egypt, where he registered as a permanent resident. In his affidavit in opposition to the defendant's motion to dismiss, he stated that he "owns his home in Cairo, Egypt and considers himself a resident of Egypt ... [and] maintains said home in Cairo, Egypt...." Based upon this evidence, the Seventh Circuit found that Mr. Sadat was domiciled abroad, and therefore was not a state citizen for purposes of 28 U.S.C. § 1332(a)(1). Sadat, 615 F.2d at 1181-82.
In this case, by contrast, plaintiff never purchased property in Greece, but rented an apartment there, on a yearly basis. Plaintiff's affidavit, ¶ 4. He continued to pay California taxes, and maintained his bank account, voter registration, and driver's license. At the conclusion of his employment with CIGNA, he returned to California where he searched, unsuccessfully, for employment. This case is, therefore, distinguishable from Sadat.
Although plaintiff, prior to the commencement of this action, wrote a letter to a Greek company, inquiring about employment possibilities, he also went to the United States during this same time, where he spent three months looking for employment in California. Accordingly, the application to the Greek company does not constitute clear and convincing evidence that plaintiff had acquired a new domicile in Greece.
Based on the evidence before me, I find that at the time this suit was commenced and removed to federal court, plaintiff had the intent to remain a Californian domiciliary; consequently, this court has subject matter jurisdiction under 28 U.S.C. § 1332(a)(2).
NOTES
[1] Lack of subject matter jurisdiction may be raised at any time by parties or by the court, sua sponte. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194, n. 2 (9th Cir.1988); Veal v. Kerr-McGee Coal Corp., 682 F.Supp. 957, 960 (S.D.Ill. 1988); Essington Metal Works, Inc. v. Retirement Plans of America, Inc., 609 F.Supp 1546, 1550 (E.D.Pa.1985).
[2] CIGNA Corporation is likewise a Delaware Corporation, with its principal place of business in Philadelphia. Of the remaining defendants, Arnold A. Trillet and J.J. Talarico are citizens of New Jersey, and James T. Morone is a citizen of Pennsylvania. In his complaint, plaintiff states that the "true names and capacities of DOES 1-100 are unknown to the plaintiff ... Plaintiff will amend this complaint to insert said true names and capacities upon ascertainment." Plaintiff has not amended his complaint with respect to these individuals.
[3] Aguirre has only been followed in one case, in the context of a foreign citizen holding a United States "green card." Robinson v. Anastasiou, 339 F.Supp. 472 (S.D.Tex.1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3766551/ | OPINION
On December 14, 1992, appellee, Jack Alger, pled guilty to four counts of rape, in violation of R.C. 2907.02, and three counts of gross sexual imposition, in violation of R.C. 2907.05. He was subsequently sentenced by the Lake County Court of Common Pleas to serve an indefinite term of incarceration of ten to twenty-five years on each count of rape, and a definite term of incarceration of two years on each count of gross sexual imposition, each sentence to be served consecutively. Having pleaded guilty to a sexually oriented offense, appellee became subject to a sexual predator hearing under Ohio's version of Megan's Law, newly amended R.C. Chapter 2950.
By judgment entry filed July 16, 1997, the trial court, suasponte, dismissed the proceedings for adjudicating appellee as a sexual predator, holding that Ohio's version of Megan's Law was unconstitutional as applied to appellee. Appellant appealed, and, pursuant to this court's decision in State v. Williams (Jan. 29, 1999), Lake App. No. 97-L-191, unreported, the judgment of the trial court is affirmed. _________________________________ JUDGE WILLIAM M. O'NEILL
FORD, P.J.,
NADER, J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2611755/ | 39 Cal. App. Supp. 2d 775 (1940)
ALEXANDER RIABOFF, Respondent,
v.
PACIFIC TELEPHONE AND TELEGRAPH CO. (a Corporation), Appellant.
California Court of Appeals.
March 15, 1940.
Pillsbury, Madison & Sutro for Appellant.
George B. White for Respondent.
Griffin, J., and Fritz, J. (Memorandum Opinion).
In this action a judgment in the sum of $253.55 was awarded plaintiff by reason of the alleged negligence of the defendant Pacific Telephone & Telegraph Co. in erroneously spelling the name of the plaintiff in its telephone directory. Defendant does not deny the error but contends that by reason of its rule limiting liability for such error and the contract entered into for the service to plaintiff, the judgment should not be greater than $52.15.
[1] Respondent contends that defendant is a common carrier and therefore comes within the provisions of section 2174 of the Civil Code, which provides that "the obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract". This may be true, although we do not so decide, to a limited extent. In this state there is a total absence of authority on the point but if it be true, defendant is a common carrier only of messages which are entrusted to it for transmission and delivery. (Sec. 2168, Civ. Code.) It is upon this theory that the decision in Parks v. Alta California Tel. Co. (no longer authority in this state) rests (see 13 Cal. 422, p. 424 [73 Am. Dec. 589]), but as to the principal business of the defendant--the furnishing of facilities by which one person transmits to another [39 Cal. App. Supp. 2d 777] messages by word of mouth, the great weight of opinion is that defendant is not a common carrier.
"The weight of authority is almost unanimous that telegraph and telephone companies, under the common law, are not common carriers." (Jones, Telegraph and Telephone Companies, 2d ed., pp. 24, 25, and numerous cases there cited.)
The appellant is governed by and is required under the Public Utilities Act (1937 Deering's Gen. Laws, Act 6386, par. 14) to file schedule of "rates, tolls x x x charges" etc. "to be collected or enforced, together with all rules, regulations, contracts, charges" etc., "which in any manner affect or relate to rates, tolls. x x x or service". Concededly appellant complied with this requirement and among others was Rule and Regulation No. 14:
"The company is liable for errors or omissions in the listings of its subscribers in the telephone directory in an amount not in excess of the charge for that exchange service during the effective life of the directory in which the error or omission is made."
The plaintiff made his application for service, which was accepted by the company on a printed form furnished by the company. The application contained the following language: "The Pacific Telephone & Telegraph Co. is requested to furnish the applicant, in accordance with its rates, rules and regulations on file with the Railroad Commission of the State of California, telephone service and facilities as detailed herein", etc.
The rule No. 14, hereinabove stated, was on file and in effect at the time of the application.
[2] We are of the opinion that the service contracted for by respondent does not come within the provisions of section 2174 of the Civil Code, supra. It is true that a telephone directory is "an essential instrumentality in connection with the peculiar service which a telephone company offers for the public service and convenience" (California etc. Storage Co. v. Brundige, 199 Cal. 185, 188 [248 P. 669, 47 A.L.R. 811]), but it is likewise true that the preparation and delivery of such directory is in no way related to the business of transmitting and delivering messages entrusted to its care but is an established convenience and service for those of the public who use the facilities furnished for the transmission by [39 Cal. App. Supp. 2d 778] themselves of their own messages. As to these the company is not a common carrier, is charged in the preparation of its directory with the exercise of ordinary care and is liable as a public service corporation for the breach of its contract to include its subscriber's name therein.
[3] The rates charged for such service are governed and fixed by the Public Utilities Act, supra. They cannot be varied or departed from and are in part dependent upon appellant's rule of limitation of liability. When such service is contracted for, the rate so fixed by law represents "the whole duty and the whole liability of appellant" (Western Union Tel. Co. v. Esteve Bros. & Co., 256 U.S. 566, 572 [41 S. Ct. 584, 65 L. Ed. 1094]) and "becomes a part of the contract, and the rights and liabilities under the contract must be determined with reference to the law in effect". (Correll v. Ohio Bell Tel. Co., (Ohio) [27 N.E. (2d) 173], Oct. 10, 1939.)
[4] In our opinion appellant's rule fourteen (14) aforesaid became a part of respondent's contract both by reference and by operation of law and, in the absence of any showing that such rule was unreasonable, was binding upon respondent.
In view of this determination, it is unnecessary to consider other points presented by appellant.
The judgment is reversed with directions to the trial court to enter judgment for plaintiff against defendant in the sum of $52.15, appellant to recover its costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737492/ | 557 S.W.2d 797 (1977)
Francis B. Slaughter NORMAN, Appellant,
v.
FIRST BANK & TRUST, BRYAN, Texas, et al., Appellees.
No. 16912.
Court of Civil Appeals of Texas, Houston (1st Dist.).
August 11, 1977.
Rehearing Denied October 6, 1977.
*799 Benton Musslewhite; Helm, Pletcher, Hogan & Burrow; Shirley M. Helm, Houston, for appellant.
Lawrence, Thornton, Payne & Watson, Billy M. Payne, Bryan, for appellees.
COLEMAN, Chief Justice.
Francis B. Slaughter Norman filed this suit against the First Bank and Trust, Bryan, Texas, and against her alleged husband Paul Leslie "Bill" Norman, to enforce her claimed homestead rights in a certain tract of rural land. She appeals from an adverse judgment entered by the court on the verdict of a jury. Affirmed.
On February 21, 1973 Bill Norman executed in favor of the bank a deed of trust on property which included approximately 73 acres in the Mill McDowell League of Grimes County, Texas. He represented to the bank that the 73 acre tract was not a part of his homestead and that he was a single man. Plaintiff claims that at the time the deed of trust was executed this property was her homestead and that she and Bill Norman were man and wife by reason of a common law marriage consummated in December 1955. Bill Norman defaulted on the loan which was secured by a deed of trust and the bank purchased the property at a Trustee sale in June 1975.
In response to the special issues submitted the jury found the elements of a common law marriage in favor of the plaintiff Francis B. Slaughter Norman. Bill and Francis Norman began living together as man and wife in 1955. In March 1963 they moved onto the property in dispute and continued to live there until April 4, 1972, when the house was destroyed by fire. The subject property was conveyed to Francis Norman by her father in 1963. In 1966 Mrs. Norman joined with her father in conveying the property to Bill Norman who assumed the payments. The evidence conclusively establishes that this property was used as a homestead by Mr. and Mrs. Norman up to the date of the fire in 1972.
Immediately after the fire Francis and Bill Norman moved into a house which they owned in Bryan, Texas. Mrs. Norman testified that she did not immediately go to the house in Bryan. She first went to her daughter's house in Iola which was near the claimed homestead property, and the weekend after the fire she went to Bryan and "spent a lot of time at the Hale house in Bryan, Texas, 2616 Melba Circle, which Bill had assumed the loan on that house." She further testified that she stayed in Shiro some, and that in August Bill rented an apartment in Houston for her, and that she stayed down there some.
Mrs. Norman testified that at the time of the fire there was what is referred to a a "rent house" on the property, but that it was filled with hay and was not suitable for habitation at the time of the fire. She testified that she intended to come back to the home place and make it her home as soon as it was habitable. She testified that she and Mr. Norman had had a little trouble before the fire and that they had some trouble soon after the house burned down. It was her testimony that Bill told her he *800 would fix up the place to move back on the property. When Mr. Norman finally told her that he was not going to rebuild the house she arranged to have the rent house put in shape for occupancy and in the early part of 1974 she moved into the rent house. During the period following the fire they ran cattle on the property, used the rent house for storage of hay and possibly had a garden on the property. A barn and a large building previously used as a skating rink were located on this property. Nobody actually lived on the property until Mrs. Norman moved back in 1974.
An insurance policy dated April 6, 1957, bearing a loss payable clause to First Bank and Trust Company, Bryan, Texas, and issued to Paul Norman covered a metal frame building located on the property in question and is described as being "ownerdwelling". The tax-assessor collector of Brazos County testified that his records reflect that Paul Norman designated part of Lot 24 and 25, Block 2, Culpepper Manor No. 3 in Bryan, Texas as his homestead. He testified that Melba Circle is a street that "runs in Culpepper Manor". This designation of homestead appears in the tax records for the years 1972 and 1973. Homestead designations can be made during the period from January 1st to May 1st. Mr. Norman was not present at the trial and did not testify.
The trial court submitted three issues relating to the question of common law marriage, and predicated on an affirmative answer to those issues he submitted Special Issue No. 4 reading:
"Do you find from a preponderance of the evidence that on February 21, 1973, the 73 acre tract in McDowell League was the rural homestead of plaintiff?"
In connection with Special Issue No. 4 the following instruction was given:
"You are instructed in connection with the foregoing Special Issue that a `rural homestead' is property of not more than 200 acres that is used for a purpose consistent with the maintenance of a home. The method of dedicating a rural homestead is by the occupancy of the land by the family as a place of the family's residence and by the use of the land for family purposes. You are further instructed that once property has been impressed with the homestead character, it continues to be a homestead until and unless the homestead is abandoned, or another homestead is acquired. If one of the spouses abandons the homestead this does not deprive the other spouse of the right to claim and continue use of the property as his or her homestead. Moreover, a husband cannot work a divestiture of the wife's homestead rights through transactions of any nature without her joinder. You are instructed further that once property becomes homestead, the homestead claimant may cease to occupy the property without destroying the homestead character of the property as long as the homestead claimant intends to return to occupy the homestead property at some time.
You are further instructed that the husband has the right to designate a homestead and he may claim a homestead on property designated by him in the occupancy of the property."
The plaintiff objected to the last sentence of the instruction quoted above for the reason that the statement constituted a comment upon the weight of the evidence and it was "an unnecessary instruction since the husband's alleged homestead is not an issue here, only the homestead of the alleged wife, Mrs. Lucille Norman, and consequently, the instruction has no relevance to any issue to be decided by the jury, and as a comment upon the evidence could be and is highly prejudicial to the plaintiff's case."
In her motion for new trial the plaintiff stated that the trial court erred in entering judgment upon the verdict because Special Issue No. 4 is immaterial since it incorrectly included the last sentence of the instruction quoted above as part of the definition of homestead. The plaintiff stated:
"The inclusion of this definition undoubtedly confused the jury and was an incorrect statement of law in the context of the facts of this case and therefore *801 caused any finding as to such issue to be immaterial, thus requiring a new trial."
The plaintiff also included in her motion for a new trial her contention that the trial court erred in entering judgment upon the verdict because the evidence in the case established as a matter of law that the property in question was the homestead of the plaintiff in February 1973, when the deed of trust in question was executed. Appellant properly preserved in her motion for a new trial the contention that there was no evidence to support the jury's answer to Special Issue No. 4.
The plaintiff also contended as a matter of law it was established that the property in question was the homestead of the plaintiff prior to 1972, and that there was no proof or finding establishing the abandonment of the homestead after that date.
In the motion for new trial the plaintiff contended that the trial court erred in entering judgment based on Special Issue No. 4 because the answer made by the jury to that issue was contrary to the great weight and overwhelming preponderance of the evidence.
The evidence establishes that prior to 1972 the property in question constituted the homestead of Mr. and Mrs. Norman. When homestead rights are once shown to exist in property, they are presumed to continue, and anyone asserting an abandonment has the burden of pleading and proving it by competent evidence. Sullivan v. Barnett, 471 S.W.2d 39 (Tex.1971). The bank plead abandonment and presented evidence tending to show the acquisition of a new homestead after the parties were forced to move from the property in question by reason of the destruction of their residence. The bank did not request separate issues dealing with the question of abandonment or with the question of the acquisition of a new homestead.
Special Issue No. 4 submitted the controlling issue of whether the property in question was the homestead of the parties on the date Mr. Norman executed the deed of trust securing his note at the bank. The subsidiary issues of abandonment and of the acquisition of a new homestead were presented to the jury by explanatory instructions. This procedure is authorized by Rule 277, Vernon's Texas Rules Annotated. There was no objection to this method of submitting the case although Mrs. Norman submits in her brief that the issue of abandonment was waived by the failure to request an issue on this point.
Proof that a new homestead has been acquired establishes abandonment of the old homestead as a matter of law. Silvers v. Welch, 127 Tex. 58, 91 S.W.2d 686 (1936); Calvin v. Neel, 191 S.W. 791 (Tex. Civ.App.Fort Worth 1916, writ ref'd). In Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960 (1943), the court said:
"... the acquiring of a new home is not always the acquiring of a new homestead, and one does not necessarily abandon a homestead by merely moving his home."
The facts of that case show that a widow having homestead rights in rural property remarried and moved from her home to the rural homestead of her new husband with no intention of returning to her former home. She continued to use her property for farming purposes. The combined acreage of her farm and her husband's farm was less than 200 acres. The court held that it was not required that she both use and occupy the property for a homestead, but only that she either use or occupy the property. The court held that Mrs. Johnson's intention to abandon the homestead rights in her separate tract of land did not constitute an abandonment when she continued to use the property for homestead purposes. The court pointed out that they were not faced with a case in which it was sought to add additional land to an existing homestead tract, but that the case was one in which the tract under consideration and the Alex Johnson tract were both actually impressed with the homestead status by occupancy and use before the marriage of Ida and Alex Johnson.
Here we are not faced with such a case since the homestead rights of Mrs. Norman *802 and the agriculture land can not be combined with homestead rights in a city lot subsequently acquired. Commerce Farm Credit Co. v. Sales, 288 S.W. 802 (Tex. Comm'n App.1926, holding approved).
It is settled law that although the wife may not own the fee or any part of it in lands impressed with the homestead character, she does have an estate in such lands, to wit, the homestead, vested and absolute, of which she could not be deprived except by alienation by her own consent and, by which upon the death of her spouse becomes a life estate. No mortgage or trust deed or other lien on the homestead is valid. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929).
In Hudgins v. Thompson, 109 Tex. 433, 211 S.W. 586 (1919), the supreme court quoted with approval this statement of the law:
"If, however, the husband, in fraud of the right of the wife and without her consent, should seek by an abandonment to withdraw the homestead from the pale of its exemption given for the benefit of the family, he could have no power to do so; but while he acts in good faith and not against the will of the wife, having alone in view the good of the family, of which by nature and by law he is the recognized head, his power to abandon a homestead ought not to be questioned; and, in the absence of evidence to the contrary, it ought to be presumed, when a removal from a homestead is made, that it was made in good faith and with the consent of the wife."
The court held that the husband could where acting in good faith abandon the homestead even though the wife would not consent to such abandonment.
There is evidence from which the jury could have concluded that immediately after the fire Mr. and Mrs. Norman moved into premises in the City of Bryan which were suitable for a homestead; that at that time they were married and living together; that Mr. Norman intended to make the premises a home for his family and continued to make use of it as his home. While there was evidence to the contrary such findings are sufficient to establish the acquisition of a new homestead and to establish abandonment of the old homestead as a matter of law. Silvers v. Welch, 127 Tex. 58, 91 S.W.2d 686 (1936). Since there is sufficient evidence to sustain the findings that Mr. Norman has selected a homestead in the City of Bryan, and has occupied it for the family, the matter of Mrs. Norman's intent to claim or abandon a homestead for herself is no longer decisive. Burk Royalty Company v. Riley, 475 S.W.2d 566 (Tex. 1972). A designation of the Bryan residence as a homestead for tax purposes by Bill Norman is some evidence of his intention of making this property his homestead. unaccompanied by any act evidencing an intention to return to his former home is evidence that a new homestead has been acquired and the old one abandoned. Hinton v. Uvalde Paving Co., 77 S.W.2d 733 (Tex. Civ.App.Dallas 1934, writ ref'd).
The above statements of the applicable law point up the contention of Mrs. Norman that the trial court erred in instructing the jury that "the husband has the right to designate the homestead and may claim a homestead on property designated by him even though his wife fails to join him in the occupancy of the property." That this is not an affirmatively erroneous statement of the law was determined in Schulz v. L. E. Whitham & Co., 119 Tex. 211, 27 S.W.2d 1093 (1930), where the supreme court stated:
"... the homestead right may attach although the wife may never move upon the property ... the homestead estate exists when the husband resides on the property, even though the wife absents herself therefrom, so long as the husband recognizes and discharges his moral and legal obligation to support her.. . ."
It is true that the definite instruction given by the court omitted to inform the jury that the husband must act in good *803 faith in abandoning and establishing a homestead. In this respect, however, the objection made to the court's instruction did not specifically and clearly point out wherein it was claimed that the instruction was insufficient or in error. The objection to the charge only informed the court of the contention that the instruction constituted a comment on the weight of the evidence. This is not sufficient. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955).
The court may not in its charge comment directly on the weight of the evidence, but the court's charge shall not be objectionable on the ground that it incidently constitutes a comment on the weight of the evidence where it is properly a part of the explanatory instruction or definition. Rule 277, Vernon's Texas Rules Annotated. The objection made to the charge was not well founded.
In her motion for new trial appellant asserts that the finding of the jury in answer to Special Issue No. 4 is contrary to the great weight and preponderance of the evidence and that, therefore, the trial court erred in entering judgment on the verdict. It is well established that where the evidence raises an issue of fact it must be submitted to the jury and that a judgment must be entered on the answer made thereto. The trial court does not err in entering a judgment based on the jury's answer to an issue even though he considers that the answer is contrary to great weight and preponderance of the evidence. The burden was on the appellant to establish the affirmative of the issues submitted. There were no objections to the charge on the ground that the judge failed to instruct the jury on the burden of proof on the subsidiary issues of abandonment and establishment of a new homestead. The appellant had the burden of proof on Special Issue No. 4. To be entitled to a reversal of a judgment on appeal it is her burden to show that she is entitled to recover as a matter of law on the facts found by the jury and the undisputed facts. She has failed to sustain this burden.
Appellant seeks reversal on the ground of jury misconduct in that certain statements were made by the jurors either misconstruing the law or injecting into deliberations matters not admitted into evidence. Two jurors testified that the following statements were made:
1. That since Bill and Frances Norman were married she would share in his property. That there would be a trial or divorce or something like this and at that time there would be a settlement of community property in which Frances Norman would share.
2. That since Frances Norman had joined her father in a deed to Bill Norman, he could do anything he wanted with the property without regard to her homestead claim. That there was probably an agreement between the couple that each would take care of their own business.
3. That this piece of property could not legally be a homestead.
4. That the man had the right to designate the homestead and anything he did would be binding on appellant.
A trial court grants a new trial on the grounds of jury misconduct if (1) material misconduct actually occurred, and (2) if it reasonably appears that injury probably resulted to the complaining party. Rule 327, T.R.C.P.; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). Where no findings of fact are requested or filed as in the instant case, the appellate court will presume the trial court found every issuable fact in favor of appellee and against appellant. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965).
Statement number 4 listed above, the fact that Mr. Norman had the right to choose the homestead, was merely a restatement of an instruction given to the jury by the court and did not constitute misconduct.
Two jurors were called to testify. Mr. Carraway testified that the statements listed as numbers 1 and 2 were not made until after Special Issue No. 4 was *804 answered. The other juror testified that they were made prior to answering Special Issue No. 4. Mr. Carraway's testimony was weakened by further testimony indicating that he was unsure as to exactly when the statements were made. Improper conduct which occurs after the jury has answered issues which might have been affected thereby is not reasonably calculated to affect the verdict and is not reversible error. Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143, 146 (1946). In support of the trial court's action in overruling the motion for a new trial, we presume a finding that the conduct occurred after the issue was answered. This is a fact determination that is binding on this court if there is any evidence to support the finding. Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729 (1943); Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143 (1946).
The charge of misconduct in that a statement was made that this piece of property could not legally be a homestead is based upon the testimony of Mr. Carraway. The court's instruction in effect that the husband had the right to designate the homestead was called to Mr. Carraway's attention and he testified that this instruction was read to the jury and was discussed by members of the jury prior to the answering of Special Issue No. 4. He testified that one or more members of the jury stated that the effect of the instruction was that whatever property the husband designated was binding upon his wife. Mr. Carraway further testified:
"During the trial, you know, the records were brought up. Andwhere, as you know, we are not lawyers and that kind of thingbut, that was the feeling of the jury because of what was brought out in the records, where there was a homestead filed."
He stated that this statement had an effect upon the jury "because I think that we felt it had been brought out in the trial, it was the law on it." The next question which Mr. Carraway was asked reads:
"Okay, and it was binding upon her regardless of what the other facts might be, since he designated the property in Bryan, that binded her as to any homestead she might claim, is that right?"
Mr. Carraway answered:
"Yes, sir, because II still think that this reverts back to the deed situation, that actually the property wasn't legallyto be a legal piece of property that could be homestead."
He then testified that that was so stated in the jury room.
It is unclear from this exchange whether the juror who made the statement said that the property could not legally be homestead because Bill Norman had designated a new homestead or whether it was because the property had been conveyed to and held by Bill Norman in his name. The witness testified that he thought it reverted back to the deed situation; he did not attempt to state the actual words spoken in the jury room. He seems to be saying that he thought that the farm property could not legally be designated as a homestead and that something to that effect was stated in the jury room. When this statement is considered with his testimony immediately preceding relating to the meaning of the court's charge and the manner in which it should be applied to the case, no misconduct is shown.
The law is clear that a juror is not guilty of misconduct, and the verdict need not be set aside, when one or more jurors simply misconstrue a portion of the court's charge and state the erroneous interpretation to other members of the jury. Compton v. Henrie, 364 S.W.2d 179 (Tex.1963).
In order to justify the reversal of the judgment entered by the trial court on the basis of this statement, it is necessary that we find the statement was an incorrect statement of the law and that as a probable result the jury answered Special Issue No. 4 in a manner different from the answer which would have been returned had the statement not been made. There is no testimony that any juror changed his vote as a result of the statement.
*805 When misconduct is established, the question of injury is one of law for the reviewing court. Under the above quoted rule both the trial and reviewing courts have the right to review the matter in the light of the entire record. By the entire record is meant the evidence heard on the motion presenting misconduct, the evidence on the main trial, and any and all other parts of the record which may throw light on the question of injury. The juror may not preserve or destroy his verdict by testifying to the mental processes by which he reached the same. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (Tex.1943); Trousdale v. Texas & N.O.R. Co., 154 Tex. 231, 276 S.W.2d 242 (1955).
If we assume that this was a statement of law which was not included in the court's charge, it was merely the statement of one who did not hold himself out as a lawyer or as having a knowledge of the law greater than that of the other jurors. There is no showing that the statement was extensively discussed in the jury room or any circumstances which would establish that any juror's vote was influenced by the statement.
We are unable to hold after reviewing the evidence both on the hearing of the motion, the trial of the case and the record as a whole, that injury probably resulted to the appellant from the acts of jury misconduct presented.
The plaintiff also asserts that the trial court erred in failing to include in the judgment a decree that Bill and Francis Norman are married as required by the verdict of the jury.
The purpose of the suit as shown by the pleadings was to determine property rights. The plaintiff did not seek a declaratory judgment or other adjudication of her marital relationship with Bill Norman in the allegations or prayer in her petition. This point was not preserved in plaintiff's motion for new trial. No error is presented by this point.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1562110/ | 69 F.2d 676 (1934)
OLD MISSION PORTLAND CEMENT CO.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 7195.
Circuit Court of Appeals, Ninth Circuit.
March 12, 1934.
*677 Geo. E. H. Goodner, of Washington, D. C., for petitioner.
Sewall Key and Helen R. Carloss, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR and GARRECHT, Circuit Judges, and NORCROSS, District Judge.
GARRECHT, Circuit Judge.
This is a petition to review the findings of fact, opinion, and decision of the United States Board of Tax Appeals, which involved petitioner's income taxes for the years 1923 to 1926, inclusive, and presents for our determination the following questions:
1. Whether the Board's finding that petitioner's limestone properties, known as the Barbee, Underwood, and Flint deposits, had a fair market value as of March 1, 1913, of $63,121, is supported by any substantial evidence.
2. Whether the amortization of bond discount on the bonds of the petitioner's affiliate, the California Central Railroad, held by the petitioner may be deducted in computing the consolidated net income of the affiliated companies for the years 1923 to 1926, inclusive.
3. Whether the petitioner may deduct as business expenses donations to the San Francisco Community Chest, donations to the Y. M. C. A., and an amount paid to a fund to promote a state-wide referendum for an increased gasoline sales tax levy in order to provide additional funds for road building.
The Board made findings of fact which may be briefly stated as follows:
The petitioner is a California corporation organized in 1912 for the purpose of engaging in the manufacture of Portland cement. Its capital consists of 350,000 shares of common stock of the par value of $10 per share. It is the successor of the San Juan Portland Cement Company incorporated in 1906, and was organized by bondholders of said company when it defaulted payment of interest upon its bonds in the amount of $1,300,000. At a sheriff's sale the bondholders purchased all of the assets of the company for $20,700.
These assets so acquired included limestone deposits known as the Barbee, Underwood, and Flint deposits, about 88 miles south of San Francisco, stocks and bonds of the San Juan Pacific Railway Company which connected the deposits with the Southern Pacific Railway (a distance of 7 miles), the Chittenden Ranch, and an unfinished cement plant.
Thereafter the bondholders' committee organized the California Central Railroad Company and turned over to it the stocks and bonds of the San Juan Pacific Railway Company in exchange for the stocks and bonds of the said California Central Railroad Company.
Thereupon the petitioner was organized, and in exchange for 175,000 shares of its common stock of the par value of $10 a share, it acquired from the bondholders' committee the unfinished cement plant, machinery, equipment, etc., which were valued at approximately $500,000 and the lands (2,463 acres) containing the petitioner's deposits. In 1916 the petitioner made the necessary financial arrangements and undertook the completion of its cement plant, which was finished at an additional cost of $500,000, and production started in 1918.
*678 The Barbee deposit was adjacent to the plant; the Underwood and Flint deposits were 2 and 3 miles, respectively, from the plant, and were reached by a narrow gauge railroad constructed after 1913 and extended as operations progressed after 1918. The deposits were exhausted in or about 1927.
In its income tax returns for the years 1918, 1919, 1920, and 1921 the petitioner claimed deductions for depletion of mineral deposits at the rate of 10 cents per ton. Upon its income tax returns for the years 1922, 1923, 1924, and 1925 the petitioner claimed deductions for depletion of mineral deposits at the rate of 20 cents per ton on a valuation of $1,034,398.10 for the deposits on the basis of data furnished in a schedule (Form F) filed December 19, 1922. This schedule indicated that the Underwood deposits had been depleted of lime rock, but not of clay, since 1920; that the Barbee property contained no high-grade limestone but considerable clay; that the Flint property was supplying all the lime rock being used and that it was estimated that it would be exhausted six and one half years from March, 1921, when the plant began using it, although the 1918 estimate had indicated available tonnage for eight years. Between March, 1920, when the Underwood deposit was exhausted, until March, 1921, when the Flint deposit was used, 50,093.50 tons of lime rock were obtained from one E. A. Pearce at 10 cents per ton.
The schedule further showed that the lands had been set up on the books at a valuation of $1,202,653.10, that $48,000 of that amount represented the value of the plant site and $75,000 the value of the Chittenden Ranch for agricultural purposes (the land containing clay not used, but no limestone), and that $45,255 should be deducted as the residual value of the deposit lands, leaving $1,034,398.10 as the value of the deposits. On the basis of a consumption of 329,337.12 tons and a prospective consumption of 1,035,000 tons by the time the Flint deposit was exhausted (less the amount obtained from the Pearce Company) the estimated tonnage to be removed was 1,314,243.62 tons and the division of $1,034,398.10 by that tonnage would give the depletion rate of 79 cents a ton.
On September 23, 1912, the petitioner had purchased the mineral rights to 8,750 acres on the El Gabilan Rancho for 50,000 shares of common stock and suggested in the schedule that an increase of 25 per cent. be allowed in the capacity of the mill; that depletion be figured over an assumed corporate life of 40 years from May 1, 1918, and on such a basis the depletion rate would be over 19 cents per ton. The petitioner therefore adopted the figure of 20 cents a ton.
The Commissioner determined that on March 1, 1913, there were 1,700,000 tons of merchantable limestone in the three said deposits, suitable for the making of Portland cement, and fixed the fair market value thereof on that date at $63,121, or 3.713 cents per ton of limestone in place. In computing petitioner's income for the years here involved, depletion deductions were allowed at the rate of 3.713 cents per ton for the limestone removed and consumed in those years as follows:
1923 .................... $8,973.73
1924 .................... 7,875.87
1925 .................... 9,171.74
1926 .................... 9,135.69
Petitioner claims that due to the scarcity on the Pacific Coast of limestone suitable for making Portland cement, the said deposits had a market value on March 1, 1913, far in excess of that allowed by respondent and approved by the Board.
Throughout the years involved in this proceeding, petitioner owned substantially all of the capital stock of the San Juan Pacific Railway Company, a California corporation, and this latter company owned substantially all of the stock of the California Central Railroad Company, a California corporation. Respondent has ruled that the three companies were affiliated for income tax purposes throughout the years involved in this proceeding and there is no controversy over that ruling.
In 1912, the California Central Railroad Company issued its own bonds at a discount, which discount it amortized over the life of the bonds at the rate of $3,381.18 each year. In computing consolidated net income for the years involved here, respondent has allowed deductions in respect of such bond discount, in the amount of $375.99 for the years 1923, 1924, and 1925, and in the amount of $220.79 for the year 1926. He disallowed the balance of the amount of such amortization applicable to the years in question, because those balances were applicable to bonds held in the respective years by petitioner. In other words, respondent recognized the right of the Railroad Company to amortize and deduct that portion of its bond discount applicable to the bonds held by the public, but disallowed as a deduction that *679 portion of the discount applicable to the bonds owned by petitioner.
In each of the years 1923 to 1926, inclusive, petitioner donated $1,000 to the San Francisco Community Chest, this amount being the allotment assigned to the petitioner by the Community Chest committee. Publicity through the newspapers and by means of placards on doors was given to such contributions, which petitioner claims resulted in good will and increased business. In 1926 petitioner donated $2,500 to the San Francisco Y. M. C. A., which was then beginning the erection of a new building. The purchase of cement materials for said building was to be allotted to the various cement companies in proportion to their donations. As the result of said donation, petitioner furnished its proportionate share of the material that went into the building. In 1926, petitioner contributed $3,000 to a fund to be used in a state-wide campaign on a referendum to increase the gasoline sales tax in California, in order to provide the state with much needed funds for additional road construction and maintenance over a period of twelve years. The referendum was successful and the state embarked on an extensive road building campaign, using large quantities of cement and cement materials of which petitioner furnished its proportionate share. All of these deductions were disallowed.
In the petition for review the petitioner has made thirty-two assignments of error. No good purpose can be served by enumerating these in detail or in discussing them at length. The opinion will pass upon the points raised, it being sufficient here to say that six of these assignments (1 to 6, inc.) concern six exhibits, the same being petitioner's income tax returns for 1912, 1913, 1914, 1915, 1916, and 1917 introduced by respondent, over the objection of petitioner. Five of these assignments (7 to 11, inc.) concern petitioner's income tax returns for the years 1918, 1919, 1920, 1921, and 1922, likewise introduced by respondent over petitioner's objection. Five of these assignments (12 to 16, inc.), being petitioner's capital stock tax returns for the years 1917, 1918, 1919, 1920, and 1922, introduced by respondent over petitioner's objection. Another assignment (17) being abatement claim in respect to 1917 capital stock tax assessed against petitioner, likewise admitted in evidence, and three assignments (18 to 20, inc.), being letters from the petitioner, likewise objected to and admitted. Eight assignments of error (21 to 28, inc.) are predicated on alleged error of the Board in its findings as to value of limestone deposits. The remaining assignments of error (30, 31, and 32) are upon the failure of the Board to allow the deductions hereinafter discussed.
The Board of Tax Appeals determined that petitioner's limestone deposits had a fair market value as of March 1, 1913, of $63,121. At the hearing before the Board respondent introduced a statement to show how the Commissioner of Internal Revenue arrived at the depletion deductions, which, with the determination by the Commissioner that the amount stated, $63,121, was the fair market value of the deposits as of the date named, constituted a prima facie case, which must stand unless overcome by substantial evidence. Nichols v. Commissioner (C. C. A.) 44 F.(2d) 157.
It is likewise true that this value was an issue of fact and the finding of the Board of Tax Appeals must be sustained if based upon any substantial evidence. Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289. And this court has held that we are bound by the decision of the Board, where the evidence does not compel a contrary conclusion. Pedder v. Commissioner (C. C. A.) 60 F.(2d) 866.
The petitioner produced three expert witnesses who testified at length and gave their opinions as to the value of the property in question as of March 1, 1913. One of these witnesses, who had formerly been connected with the petitioner, but who had no interest at the time of testifying, stated that in his opinion the fair market value as of March 1, 1913, was 82 cents a ton; another expert witness, who at the time of testifying was an official of the petitioner, testified that the fair market value of the deposit of limestone at the date in question was approximately 78 cents; and the other expert, who had no connection with the properties involved in any way, gave the figure of 89.2 cents per ton as a fair value of the date in question. This court has held that "the presumption of correctness is attached to the Commissioner's findings." Matern v. Com'r, 61 F.(2d) 663, 666. So from the outset the determination by the Commissioner of the fair market value of the property in question was prima facie correct and the burden of establishing it as incorrect was upon the petitioner.
Petitioner insists that because there was no witness to contradict the testimony of its expert witnesses the Board was required to accept it as true. The Board was *680 not bound by the opinion testimony of petitioner's experts. Where the Board itself has experience and knowledge or where there are other facts or any substantial evidence upon which it may predicate a judgment, it may ignore the opinions of expert witnesses. This is particularly true when their testimony as to values was in conflict with other facts disclosed. The weight of the evidence is a matter for the judgment of the Board, and its finding, where supported by any substantial evidence, is conclusive. Had the testimony of these experts stood alone and uncontradicted it might have been sufficient to overcome the presumption of correctness of the Commissioner's findings. However, respondent while offering no oral testimony did introduce in evidence certain exhibits, being petitioner's income tax returns for the years 1913 to 1922, inclusive, and the capital stock returns from 1917 to 1922, inclusive, and certain letters of the petitioner.
To the admission of this evidence petitioner objected, but in so far as these documents had a bearing upon the determination of the issue of fair market value, they were admissible, particularly as they tended to contradict the evidence of the expert witnesses, who assumed to base their estimates partially upon their knowledge of subsequent events and the prospective earnings from these cement deposits.
Statements by petitioner in several of these exhibits that none of its stock had ever sold for more than $2 per share, and that some had been exchanged at 75 cents a share, was admissible, because the deposits here involved had been acquired by the petitioner together with the Chittenden Ranch and the incompleted cement plant by exchanging therefor 175,000 shares of its stock. If at the time this stock was valued at the maximum price for which it ever sold, the value of all these assets at the time would have been $350,000. As petitioner valued the machinery and plant alone at $500,000, the Chittenden Ranch at $75,000 for agricultural purposes, and the residual value of the land at $45,255, a valuation of the cement deposits at $63,121 could not be considered unwarranted.
To all of these, except one, the petitioner objected. These exhibits contained certain statements and admissions against interest which were given some weight in the decision of the case by the Board of Tax Appeals.
From the findings and opinion of the Board it appears that only such matter in these documents as was in the nature of admissions against interest or pertinent was given consideration in arriving at its decision. The ruling of the Board permitting these exhibits to be received in evidence for the purpose stated was not error.
The petitioner during the taxable years 1923 to 1926 was affiliated with the California Central Railroad Company and the San Juan Pacific Railroad Company, and the affiliated companies filed consolidated returns.
In 1912 the California Central Railroad Company issued its own bonds at a discount. In amortizing this bond discount over the life of the bonds, the amount of the amortization applicable to each of the four years under consideration is $3,381.18. The Commissioner allowed part of this amount as deductions in the consolidated returns for 1923, 1924, 1925, and 1926, the amounts disallowed being the amortization on bonds held by petitioner. The Board sustained the Commissioner's action.
There is no express provision in the Revenue Act which grants the right to a taxpayer to deduct an amortized discount over the life of the bonds where the bonds are issued at a discount, but this privilege is derived from certain Treasury Regulations. The regulations here invoked as the basis for this claim are:
Treasury Regulations 62: Art. 545. * * * (3) (a) If bonds are issued by a corporation at a discount, the net amount of such discount is deductible and should be prorated or amortized over the life of the bonds.
Treasury Regulations 69: Art. 635. Consolidated net income of affiliated corporations. Subject to the provisions covering the determination of taxable net income of separate corporations, and subject further to the elimination of intercompany transactions (whether or not resulting in any profit or loss to the separate corporations), the consolidated taxable net income shall be the combined net income of the several corporations consolidated.
Under these regulations the Commissioner and the Board of Tax Appeals have uniformly held that the acquisition of bonds of a subsidiary company by a parent company, as in this case, are intercompany transactions, and the amortization of discount on such bonds is not deductible in a consolidated return. While the point is not without difficulty, we are unable to say that the determination of the Board of Tax Appeals is not correct.
*681 Petitioner urges as error failure of the Board to allow as deductions from income the amount of $1,000 paid by petitioner for each of the years 1923 to 1926, inclusive, as its allotment to the San Francisco Community Chest, also the failure to allow as a deduction $2,500 paid by petitioner in the year 1926 to the San Francisco Y. M. C. A., and, further, the failure to allow as a deduction the amount of $3,000 paid by petitioner in the year 1926 to a fund to promote a state-wide referendum for an increased gasoline sales tax levy.
Although the statutes permit deductions for contributions to charitable organizations by individuals, there is no provision for such deductions by corporations. It is provided, however, by certain Treasury Regulations that certain donations made by a corporation may be deducted as an ordinary and necessary business expense, where such donations are to institutions conducted for the benefit of the corporation's employees, also donations "for a benefit flowing directly to the corporation as an incident to its business."
The donations to the San Francisco Community Chest clearly come within the class of contributions from which only indefinite and indirect benefit may be expected, which would not bring these within the regulations. The contribution listed on petitioner's book as "All California Highway Lobbying $3,000," and concerning which petitioner's witness testified that the term lobbying might be interpreted as being correct, is not such an outlay as constitutes an ordinary and necessary business expense. There was no error in not allowing this item. The contribution of $2,500 to the Y. M. C. A. of San Francisco toward its building fund was made with the understanding that so far as the cement supplied in the building concrete construction work was concerned, the petitioner would receive its share on the proportional basis of its donation, and that petitioner as a result did receive its proportion of the cement work for that individual job, and for other work in the immediate vicinity which came under the Y. M. C. A. project. We are constrained to hold that petitioner's so-called donation was in fact a business expenditure made for the purpose of directly acquiring more business and so deductible in computing income as a business expense.
Accordingly the petition of the taxpayer praying that the subscription relating to the Y. M. C. A. be treated as an ordinary and necessary business expense is granted. The order and decision of the Board of Tax Appeals in all other respects is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2448605/ | 939 S.W.2d 183 (1996)
Rita D. SCHLAGER and Ronald J. Schlager, Appellants
v.
Robert CLEMENTS, Jr., Roy E. Brown, Alton C. Todd and Brown, Todd, Hagood & Davenport, Appellees.
No. 14-94-00746-CV.
Court of Appeals of Texas, Houston (14th Dist.).
September 5, 1996.
Rehearing Overruled October 10, 1996.
*185 Kathleen Hopkins Alsina, C. Vance Christopher, Houston, for appellants.
George W. Vie, III, Bill Griffey, Carl J. Wilkerson, Galveston, Kenneth Tekell, Houston, David M. Gunn, Bellaire, for appellees.
Before LEE, HUDSON and EDELMAN, JJ.
OPINION
LEE, Justice.
Appellants, Rita and Ronald Schlager, appeal a summary judgment in favor of appellees, Robert Clements, Jr., Roy E. Brown, Alton C. Todd and Brown, Todd, Hagood & Davenport, and judgment awarding appellees' attorney's fees. The Schlagers filed this legal malpractice action alleging negligence, violations of the Texas Deceptive Trade Practices Act (DTPA), breach of contract and gross negligence. Appellees counterclaimed under the DTPA alleging that the action was groundless and brought in bad faith or for the purpose of harassment. Appellees moved for and received a summary judgment in their favor. The trial court held a bench trial on appellees' counterclaim and awarded $50,000 in attorney's fees. In four points of error, the Schlagers appeal both the summary judgment and the judgment awarding appellees attorney's fees. We affirm.
The Schlagers owned and successfully operated two emergency medical clinics in Brazoria County. Despite the fact that the medical clinics were not being offered for sale, TDR Management, Inc. (TDR) approached the couple and offered to purchase the clinics. The parties eventually agreed on a purchase price of $465,000 for the clinics. TDR paid $65,000 in cash and the Schlagers received notes for the remaining $400,000. TDR took over the operation of the clinics and, soon thereafter, defaulted on the notes forcing the Schlagers to pursue foreclosure proceedings. TDR brought suit against the Schlagers alleging fraud in the sale of the clinics and contending that the Schlagers were interfering with the operation of the clinics. To assist in defending the matter, the Schlagers hired Robert Clements of Brown, Todd, Hagood & Davenport. Clements *186 filed a counterclaim on behalf of the Schlagers seeking to recover on the unpaid notes.
TDR was also a general partner of Consolidated Medical Clinic Emergency Centers, Ltd., (Consolidated) which owned and operated five medical clinics in Houston. While Consolidated had a bankruptcy reorganization pending, the Sisters of Charity to the Incarnate Word entered into negotiations with TDR and Consolidated for the purchase of all seven clinics. During this same time, TDR attempted to settle with the Schlagers so that the sale to the Sisters of Charity could be completed. The Schlagers alleged that they instructed Clements to find out where TDR was getting the money for the proposed settlement, but TDR refused to provide the requested information. Eventually, the parties agreed on a settlement of $300,000, less attorney's and broker's fees of $30,000. The Schlagers presented some evidence that they requested assurances that TDR was not negotiating with a third-party for a sale of the clinics for more than $300,000. The Schlagers contend that despite this request, the settlement was expressly contingent on TDR's sale of the clinics for no more than $300,000. The parties ultimately discovered that the seven clinics were sold for $1.3 million of which $300,000 was allocated to the two Brazoria clinics previously owed by the Schlagers. The Schlagers eventually became dissatisfied with Clements' representation of them and brought this legal malpractice action.
In their first point of error, the Schlagers contend that the trial court improperly granted appellees a summary judgment. The standard of review to be followed in a summary judgment is well-established. The movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant and any doubts are resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Karl v. Oaks Minor Emergency Clinic, 826 S.W.2d 791, 794 (Tex. App.-Houston [14th Dist.] 1992, writ denied).
Summary judgment for the defendant is proper when the proof shows that no genuine issue of material fact exists on one or more of the essential elements of the plaintiff's cause of action, or when the defendant establishes each element of an affirmative defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990). A defendant who moves for summary judgment has the burden of showing as a matter of law that no material issue of fact exists on the plaintiff's cause of action. Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 166-67 (Tex.1987).
The function of a summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. Dallas Cent. Appraisal Dist. v. G.T.E. Directories Corp., 905 S.W.2d 318, 319 (Tex.App.-Dallas 1995, writ denied). The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit, but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that no genuine issue of material fact remains. Id. at 320.
In a legal malpractice case, the plaintiff must prove a duty owed to him by the defendant, a breach of that duty, injury proximately caused by the breach and damages. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995). A lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney, based on the information the attorney has at the time of the alleged act of negligence. Dyer v. Shafer, Gilliland, Davis, McCollum & Ashley, Inc., 779 S.W.2d 474, 477 (Tex. App.-El Paso 1989, writ denied) (citing Cosgrove v. Grimes, 774 S.W.2d 662 (Tex.1989)); Cook v. Irion, 409 S.W.2d 475, 477 (Tex.Civ. App.-San Antonio 1966, no writ). To prevail in a legal malpractice action, a plaintiff must prove "a suit within a suit" by demonstrating that he would have prevailed in the *187 underlying action but for his attorney's negligence. Mackie v. McKenzie, 900 S.W.2d 445, 449 (Tex.App.-Texarkana 1995, writ denied). Although proximate cause in a legal malpractice action is usually a question of fact, it may be determined as a matter of law if the circumstances are such that reasonable minds could not arrive at a different conclusion. Id. If the attorney demonstrates that his failure to act was not the cause of any damages to the client, a summary judgment may be proper. See id. (affirming summary judgment because replacement counsel negotiated a settlement under which the client collected more than she would have received had the will been set aside in a will contest suit; the client suffered no damages as the result of the attorney's conduct resulting in a failure of the client's will contest); MND Drilling Corp. v. Lloyd, 866 S.W.2d 29 (Tex. App.-Houston [14th Dist.] 1987, no writ) (attorney entitled to summary judgment in legal malpractice case because plaintiff could not show that it would have prevailed if attorney had filed a response to a motion for summary judgment in the underlying action).
Appellees moved for summary judgment contending that Clements' activities did not cause the Schlagers any injury. Appellees' motion states that it was entitled to summary judgment because:
1. Had the Schlagers learned of the $1.3 million purchase price for all seven clinics, they would not have settled the TDR lawsuit.
2. If the Schlagers had not settled the TDR lawsuit, TDR would have filed for bankruptcy relief and the Sisters' of Charity purchase of the clinics would not have occurred.
3. If TDR had filed for bankruptcy, the Schlagers would not have received more than $270,000.
In support of its motion, appellees' presented the deposition testimony of Rita Schlager, Craig Cavalier and Susan Peters. Rita Schlager testified that if she and Ronald had known about the Sisters' of Charity pending sale and purchase price, they would not have settled with TDR for $300,000. Cavalier, a bankruptcy and commercial litigation attorney, testified in his deposition that if he was representing TDR and the Schlagers refused to settle, he would have recommended that TDR file bankruptcy. He also testified that Clements did a "good job" of getting as much as he could for the Schlagers because if TDR had filed for bankruptcy, the purchase price of the two Brazoria County clinics would have been adversely affected. The Sisters of Charity had allocated $300,000 of the total purchase price of $1.3 million to the two clinics previously owned by the Schlagers. Cavalier testified that this allocation was done internally by the Sisters of Charity so that it could establish a purchase price for the five Houston clinics. He opined that if less than $1 million had been allocated to the five Houston clinics, the settlement probably would not have been completed because the creditors of Consolidated would not have agreed to the confirmation of Consolidated's bankruptcy plan. Cavalier stated, "there w[ere] no excess funds that would have gone back to the general and limited partners which could have been reallocated to the purchase price of the two clinics." Cavalier concluded his deposition by testifying that the pleadings available to Clements at the time of the settlement and closing on the sale of the clinics,
fail[ed] to reveal any evidence or basis upon which one can rely to arrive at a conclusion that either the allocation of the purchase price of $1 million to the five medical clinics located in Houston was inappropriate or that excess funds from such sale after the payment of all creditors of Consolidated Medical bankruptcy estate resulted in distribution to TDR Management, Inc. I think I can also opine that in my belief Mr. Clements acted in a reasonably prudent manner.
Appellees also presented deposition testimony by Susan Peters, the bankruptcy attorney who represented Consolidated in its bankruptcy. Peters testified that if the sale had not been completed, TDR would have been forced into filing for bankruptcy. She further testified that if less than $1 million were allocated to the Houston clinics, Consolidated's reorganization plan would not have been confirmed and the sale would not have been possible. Finally, she opined that she *188 would not have been able to get a better result for the Schlagers than Clements did.
Based on Cavalier's and Peters' deposition testimony and other summary judgment evidence, appellees argue that the evidence demonstrates that Clements was not the cause of any injury to the Schlagers. Accordingly, they argue that they were entitled to a summary judgment against the Schlagers.
The Schlagers did not attempt to directly refute appellees' expert testimony that they would not have recovered more if TDR were "forced" into bankruptcy. Instead, they relied on expert deposition testimony by James Cooper-Hill and Phil Snow. Cooper-Hill testified that Clements should have conducted discovery. He opined that if Clements had pursued discovery, he would have been able to determine the purchaser and total purchase price of the clinics. He believed this would have improved the Schlagers bargaining position and allowed them to recover additional funds. He refused to state an additional amount that the Schlagers would have been able to recover because it would have been speculative. He stated, "I can't tell you that the Schlagers would have been (sic) gotten $10 more or a $100,000 more." When specifically pressed to state an amount of damages which were caused by Clements' failure to adequately review the bankruptcy pleading, Cooper-Hill admitted the damages were:
Whatever was left on the table. I have not been retained as an expert to assess damages, only to give an opinion as to liability. Damages is (sic) another issue.
Later in his deposition, Cooper-Hill further testified that he thought the allocation of $1 million for the Houston clinics was an unfair allocation. He noted that the Brazoria County clinics had sold for $465,000 not long before the package sale of all of the clinics. He also noted that the five Houston clinics were valued at $269,000 in Consolidated's bankruptcy schedules, yet the Houston clinics were valued at $1 million and the Brazoria clinics were valued at $300,000 for purposes of the sale.
The gist of Cooper-Hill's testimony was that Clements should have performed additional discovery or more actively represented the Schlagers in other ways. The following is indicative of his testimony:
If it's a package deal, the Sisters [of Charity] have no motivation to the allocation. If Mr. Clements had participated in the discussion of the allocationif the discussions of the allocation had been a three-party discussion involving the Schlagers and their attorney, and TDR and it's representative, and the Sisters of Charity, what I'm suggesting is, you then had the opportunity for the allocation to be different. Mr. Clements, by his inaction and neglect, permitted that allocation to be a two-party discussion between the Sisters of Charity and the (sic) TDR, and TDR being the general partner in the Consolidated partnership.
What I'm saying is that if Mr. Clements had participated in the allocation discussion, it could have been a different result and a different allocation. And he was in a position to do that. He just didn't.
The Schlagers also presented deposition testimony by Phil Snow, a bankruptcy attorney. Snow also testified that Clements should have obtained information about the bankruptcy and the sale of the clinics to the Sisters of Charity in order to allow the Schlagers maximum recovery.
Both Snow and Cooper-Hill agreed with Cavalier that no direct payments were made to the TDR principals. However, both Snow and Cooper-Hill indicated that through a series of affiliated organizations, some of the TDR principals received funds from the settlements, allegedly to the Schlagers' detriment. Also, both Snow and Cooper-Hill testified that Schlagers' position was prejudiced or compromised because Clements failed to properly represent the Schlagers.
We have reviewed the summary judgment proof submitted by the parties and find that the summary judgment was properly granted. Neither Snow or Cooper-Hill directly attacked appellees summary judgment evidence. Rather, the Schlagers presented summary judgment evidence demonstrating that Clements should have performed additional discovery and other activities. The *189 Schlagers experts did not contradict appellees' expert testimony that the Schlagers did not sustain any damages regardless of whether Clements' representation was deficient.
The Schlagers contend that Cooper-Hill's testimony contradicted appellees' claim of no damages. Cooper-Hill testified, "I can't tell you that the Schlagers would have been (sic) gotten $10 more or a $100,000 more" and that the Schlagers' damages were "whatever was left on the table." However, he also admitted that he was not retained to assess damages. Instead, he was only retained to give an opinion as to damages. Thus, his testimony was not competent summary judgment proof of damages. See TEX. R.CIV.P. 166a(c); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam), Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex.App.-Corpus Christi 1994, writ dism'd w.o.j.); Gibson v. Methodist Hosp., 822 S.W.2d 95, 100 (Tex.App.-Houston [1st Dist.] 1991, writ denied).
In order to avoid a summary judgment once a defendant has produced competent evidence negating an element of a cause of action, the plaintiff must introduce evidence which raises a fact question on that element of the cause of action. If the plaintiff fails to carry this burden, summary judgment is proper. Maranatha Temple v. Enterprise Prods. Co., 893 S.W.2d 92, 97 (Tex.App.-Houston [1st Dist.] 1994, writ denied). Because the Schlagers did not present any competent evidence which indicates that they were damaged as a result of Clements' actions or inactions, the summary judgment was proper. The Schlagers' first point of error is overruled.
In their final three points of error, the Schlagers complain of the award of attorney's fees to appellees. Several months after the trial court granted appellees a summary judgment, the court held a hearing on appellees' counterclaim for recovery of its attorney's fees under the DPTA. See Tex.Bus. & Com.Code Ann. 17.50(c) (Vernon Supp.1996). Appellees' attorney, Bill Griffey, testified that in defense of the suit, appellees had incurred approximately 880 hours or $93,000 in attorney's fees. At the conclusion of this hearing, the trial court awarded appellees $50,000 in attorney's fees. Soon thereafter, pursuant to a request, the trial court issued findings of fact and conclusions of law. Included within these findings and conclusions were the following (numbering by trial court):
Findings
5. The matters encompassed by plaintiffs' claims and defendants' counterclaim arose from the same transaction, and the same facts were required to defend plaintiffs' claims as to prosecute defendants' counterclaim.
6. Defendants' counterclaim necessarily involved the same facts as plaintiffs' claims for common law breach of contract, common law negligence and other common law torts, and alleged statutory violations of the DTPA.
7. Defendants incurred reasonable and necessary attorneys' fees in defending plaintiffs' claims, and in prosecuting their DTPA counterclaim, in the amount of $50,000.
8. Plaintiffs' DTPA claims were brought in bad faith or for the purpose of harassment.
Conclusions
1. Plaintiffs' DTPA claims were brought in bad faith.
2. Plaintiffs' DTPA claims were brought for the purpose of harassment.
3. Plaintiffs' DTPA claims were groundless.
In their second point of error, the Schlagers contend that the trial court abused its discretion in finding that the suit was groundless and brought in bad faith or for purposes of harassment. Appellees counterclaimed for their attorney's fees under section 17.50(c) of the DTPA, which provides:
On a finding by the court that an action under this section was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment, the court shall award to the defendant reasonable and necessary attorneys' fees and court costs.
*190 TEX.BUS. & COM.CODE ANN. § 17.50(c) (Vernon Supp.1996). Under Sec. 17.50(c), "groundless" means a claim having no basis in law or fact, and not warranted by any good faith argument for the extension, modification, or reversal of existing law. Donwerth v. Preston II Chrysler-Dodge, Inc., 775 S.W.2d 634, 637 (Tex.1989). The standard for determining whether a suit is groundless is "whether the totality of the tendered evidence demonstrates an arguable basis in fact and law for the consumer's claim." Splettstosser v. Myer, 779 S.W.2d 806, 808 (Tex.1989). The court may consider evidence that is legally inadmissible or subject to other defects in making this determination if there is some good faith belief that the tendered evidence might be admissible or that it could reasonably lead to the discovery of admissible evidence. Donwerth, 775 S.W.2d at 637. A suit is brought in "bad faith" if it is motivated by malicious or discriminatory purpose. Central Texas Hardware, Inc. v. First City, Texas-Bryan, N.A., 810 S.W.2d 234, 237 (Tex. App.-Houston [14th Dist.] 1991, writ denied). Whether a suit is groundless or brought in bad faith is a question of law for the trial court. Donwerth, 775 S.W.2d at 637. Our review of the trial court's determinations under Section 17.50(c) is a question of law under an abuse of discretion standard. Id. at 637 n. 3; see also Selig v. BMW of North America, Inc., 832 S.W.2d 95, 103 (Tex.App.-Houston [14 Dist.] 1992, no writ).
In support of their counterclaim, appellees presented evidence that at various times, the Schlagers threatened to sue the attorney who assisted them with the sale of the clinics to TDR and TDR's attorneys. They also presented evidence that before the malpractice action was filed, Clements encouraged the Schlagers to talk with another attorney "because I think that he will tell you that there is just nothing there." Despite this advice, the Schlagers filed a pro se suit against Clements in Harris County alleging approximately $900,000 in actual and DTPA trebling damages. The Schlagers opposed a motion to transfer venue to Brazoria County, which was eventually granted, and moved for a default judgment. Appellees also moved to dismiss the action because the Schlagers had failed to designate an expert for twenty-one months after the trial court ordered them to designate within thirty days. The Schlagers eventually retained counsel and amended their petition. Once appellees were able to depose the Schlagers' experts, approximately six years after suit was filed, they moved for and received a summary judgment contending there were no damages. Appellees also contend that the lack of damages to the Schlagers indicates that the suit was groundless and brought in bad faith.
In addition, appellees rely on several letters written by the Schlagers while the TDR suit was pending. At different times during the TDR suit, the Schlagers wrote:
1. It certainly upsets me when I hear that [TDR and its principals are] laughing and think they are really getting away with this;
2. It now makes me sick to go over all this because of what they have been getting away with. They are taking every penny out of it for themselves and it is "rent free" and they have the nerve to say we are cheating them;
3. It makes me sick to review the records and see how well we were doing and how badly it's gone the last ten months; and
4. I am going to keep pushing the D.A.'s office also.
Appellees argue that these excerpts indicate that the Schlagers were upset because they made a bad deal with TDR. They contend that the Schlagers brought suit against them because they were frustrated by TDR and with other previous parties. Appellees maintain that this demonstrates that the Schlagers had a "malicious purpose" for bringing the suit.
The Schlagers, on the other hand, argue that the suit was not groundless, brought in bad faith or bought solely for the purpose of harassment. They argue that the suit was not groundless because legal malpractice is actionable under the DTPA. See DeBakey v. Staggs, 612 S.W.2d 924 (Tex.1981) (per curiam). They also point to their various allegations that Clements failed to adequately investigate and otherwise properly represent them as a basis for finding that the suit was not groundless.
*191 Similarly, the Schlagers argue that they did not bring the suit in bad faith, with malicious intent. They maintain that they trusted Clements to adequately represent them and that they put their life savings in his control only to be "seriously damaged" by his failure to properly handle the claim and settlement. Ronald testified that they did not have anything personal against Clements; rather, they believed that he did not properly represent their interests.
Finally, the Schlagers assert that the suit was not brought solely for the purpose of harassment and note that the trial court only found that the suit was brought for purposes of harassment. The trial court did not indicate, in its findings, that the suit was brought solely for harassment as Donwerth indicates is required in order to support an award of attorney's fees on that basis. See Donwerth, 775 S.W.2d at 638. However, as the supreme court noted in Donwerth, the finding of harassment is tied to the finding of groundlessness and bad faith because "it is difficult to conceive of a case which was not groundless but was brought for purposes of harassment." Id. As a result of this link between groundlessness and harassment, the Schlagers primarily rely on their argument that the suit was not groundless and brought in bad faith to demonstrate that the suit was also not brought for the purposes of harassment. On appeal, appellees do not argue that the suit was brought for harassment. They rely on the forgoing evidence to show that the suit was groundless and brought in bad faith and do not argue that the suit was brought to harass, the other potential ground for the award under section 17.50(c).
We are to apply an abuse of discretion standard when reviewing a trial court determination that a suit was groundless and brought in bad faith. Donwerth, 775 S.W.2d at 637 n. 3; Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 270 (Tex.App.-Corpus Christi 1994, writ denied). When reviewing a trial court's finding under the abuse of discretion standard, we may not substitute our judgment for that of the trial court. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); Total Minatome Corp. v. Santa Fe Minerals, Inc., 851 S.W.2d 336, 338 (Tex. App.-Dallas 1993, no writ). Rather, we are limited to determining whether the trial court abused its discretion by (1) acting arbitrarily and unreasonably, without reference to guiding rules or principals; or (2) misapplying the law to the established facts of the case. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); Landry's Seafood Inn v. Wiggins, 919 S.W.2d 924, 927 (Tex.App.-Houston [14th Dist.] 1996, no writ); Ramsey v. Lewis, 874 S.W.2d 320, 322 (Tex.App.-El Paso 1994, no writ); Long John Silver's Inc. v. Martinez, 850 S.W.2d 773, 775 (Tex.App.-San Antonio 1993, writ dism'd w.o.j.). An abuse of discretion is not found, however, if the trial court bases its decision on conflicting evidence. Davis, 571 S.W.2d at 862.
There is no indication that the trial court acted arbitrarily or unreasonably, without reference to guiding rules or principals. Rather, its findings and conclusions track the statute and the necessary elements to award attorney's fees under section 17.50(c). Because there was conflicting evidence presented by the parties indicating that the suit was groundless and brought in bad faith, it was within the trial court's discretion as the finder of fact. Thus, even if we might have reached a different conclusion than the trial court, the trial court did not misapply the law to the facts of the case. Because the trial court was within its discretion, we overrule the Schlagers' second point of error.
In their third point of error, the Schlagers attack the trial court's finding of $50,000 in attorney's fees. They maintain that the evidence was insufficient because appellees failed to segregate their DTPA attorney's fees from the remaining causes of action. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex.1991). In Stewart Title, the supreme court held that
When a plaintiff seeks to recover attorney's fees in cases where there are multiple defendants, and one or more of those defendants have [settled], the plaintiff must segregate the fees owed by the remaining defendants from those owed by the settling defendants. *192 Id. at 10-11. The court also indicated that a similar burden may arise where there are various claims made against one party. Id. at 11 ("If a party refuses, over objection, to offer evidence segregating attorney's fees among various claims or parties, and an appellate court determines that segregation was required ..."). However, an "exception to this duty to segregate arises when the claims involved stem from the same transaction and are so interrelated that their `prosecution or defense entails proof or denial of essentially the same facts.'" Id. (quoting Flint & Assoc. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex. App.-Dallas 1987, writ denied)). Thus, if the causes of action are "`intertwined to the point of being inseparable,' the party suing for attorney's fees may recover the entire amount covering all claims." Id. (quoting Gill Sav. Ass'n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex.App.-Houston [14th Dist.] 1989), modified, 797 S.W.2d 31 (Tex. 1990)).
Griffey testified that all of the fees incurred and service performed in defense of the case were the result of the Schlagers' DTPA/malpractice cause of action. On cross-examination, Griffey admitted that if the DTPA cause of action had not been included, he would have reduced the amount of work performed on the case by approximately twenty percent. He also stated that the same depositions would have been taken and the same level of discovery would have been necessary if the DTPA claim had not been brought. Finally, he admitted that he could not specifically identify what amount of time was spent working on the DTPA claim.
The Schlagers maintain that the evidence is insufficient to support the trial court's finding of $50,000 in attorney's fees because the same work would have been performed if the DTPA claim had not been pursued and because Griffey could not demonstrate what fees were incurred in conjunction with the DTPA claim. These arguments were presented to the trial court. The trial court found the attorney's fees to be $50,000, which was well below the amount testified to by Griffey. In light of the fact that all of the Schlagers' claims arose out of Clements' representation of them and his alleged failure to gather information they deemed important to the settlement negotiations with TDR, we find that the trial court's finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust or erroneous. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Skrepnek v. Shearson Lehman Bros., Inc., 889 S.W.2d 578, 579 (Tex.App.-Houston [14th Dist.] 1994, no writ). Accordingly, we overrule the Schlagers' third point of error.
In their fourth point of error, the Schlagers contend that Griffey should not have been allowed to testify as an expert because appellees did not properly respond to their request for records of the attorney's fees incurred. During discovery, the Schlagers sought production of "any documents" relied on by an expert for his testimony. The Schlagers argue that Griffey was presented as an expert on attorney's fees and, therefore, appellees were required under rule 215(5) to provide the documents which supported his testimony. See TEX.R.CIV.P. 215(5).
When the Schlagers made their objection, Griffey admitted that the day before he had prepared an affidavit which, he thought, would reduce the length of his testimony and assist in the presentation of appellees' case. He also stated, however, that he faxed a copy of this affidavit to opposing counsel when it was completed. Because of the Schlagers' objections, appellees withdrew the affidavit as an exhibit. Also, during the Schlagers' voir dire of him, Griffey stated that he had reviewed his file in preparation for his testimony and admitted that he could not remember in detail the number of hours that he, other attorneys, and his support staff had worked on the case over the eight years the litigation had been pending.
The Schlagers assert that it was error to allow Griffey to testify because his testimony was based on the billing records that he reviewed and those documents had not been produced pursuant to their request for production. In support of their argument, the Schlagers rely on Varner v. Howe, 860 S.W.2d 458 (Tex.App.-El Paso 1993, no writ). We agree that Varner is applicable; *193 however, we disagree that it supports the Schlagers' argument.
In Varner, the appellant similarly claimed that the trial court erred in allowing an attorney to testify because he had failed to furnish his billing statements and contract of employment. There, the attorney was named as a testifying expert in a response to an interrogatory which also indicated that the billing statements and contract of employment would be included with the response to the requests for production. The documents were not produced and were not admitted at trial, but the attorney was allowed to testify.
The El Paso court noted that a trial court does not have any discretion under rule 215(5) if a specific witness is not identified and specifically requested documents are not produced. Id. at 464; see also Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). However, because the attorney was properly identified as an expert in the response to interrogatories, the court held that his testimony was properly admitted. The court stated:
The trial court properly applied the automatic sanction to the billing statements that were never furnished. We conclude, however, that the court was not only correct in permitting Howe's attorney to testify on his attorney's fees but it would have been an abuse of discretion not to have done so.
Varner, 860 S.W.2d at 464.
The facts in the current case are nearly identical to Varner. Griffey was properly identified[1] and no documents were admitted. The only evidence which was admitted was Griffey's testimony. Griffey's testimony was based on personal knowledge even though he had recently referred to his client files. If anything, the failure to produce the documents would affect the weight of Griffey's testimony rather than its admissibility. In fact, the trial court only awarded $50,000 in attorney's fees despite the fact that Griffey had testified that his fees were reasonable and necessary to defend the suit and that they were in excess of $90,000.
We find that the trial court did not abuse its discretion in allowing Griffey to testify. Accordingly, we overrule the Schlagers' fourth point of error.
The judgment of the trial court is affirmed.
EDELMAN, J., concurs in the results only.
NOTES
[1] The responses to interrogatories were not included in the appellate record. However, during the discussion between counsel and the court, appellees' attorney stated that he had "been designated for years as an expert" to testify about attorney's fees. The Schlagers did not dispute this assertion at trial or on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877078/ | 829 F. Supp. 325 (1992)
LINCOLN ALAMEDA CREEK, et al., Plaintiffs,
v.
COOPER INDUSTRIES, INC., et al., Defendants.
And Related Counterclaims.
No. C-91-0272 MHP.
United States District Court, N.D. California.
September 29, 1992.
*326 Arthur D. Levy, Ewell & Levy, San Francisco, CA, for Lincoln Alameda Creek, Patrician Assoc. Inc.
Joseph J. Armao, Cynthia L. Koehler, Heller Ehrman White & McAuliffe, San Francisco, CA, for Cooper Industries Inc., McGraw-Edison Co.
Edward E. Martins, Hayward, CA, for Campbell Realty of California, Mary Orsetti.
William J. Monahan, Burriss Monahan & Riley, PC, Mountain View, CA, for Beta Associates, Ferma Corp.
MEMORANDUM AND ORDER
PATEL, District Judge.
This action involves a third-party complaint brought by defendant, and now third-party plaintiff, Mary Orsetti ("Orsetti"), against third-party defendant, Beta Associates *327 ("Beta"). Orsetti is seeking indemnification or contribution from Beta for alleged negligence, breach of warranty, and misrepresentation in their preparation of a ground contaminants investigation. This matter is now before the court on Beta's motion to dismiss the complaint and for summary judgment pursuant to Federal Rule of Civil Procedure 56. After careful consideration of the parties' submissions and arguments, the court GRANTS Beta's motion for summary judgment.
BACKGROUND
The facts underlying this third-party complaint are not in dispute. Mary Orsetti entered into an agreement with the plaintiff, Lincoln Alameda Creek ("Lincoln"), for the sale of a piece of property located at 29990 Union City Boulevard, Union City, California. According to the agreement, Lincoln's purchase was conditioned upon its approval of the condition of the soils, sub-soils and groundwater of the property. In October, 1986, Lincoln hired Beta, an environmental consultant, to perform a subsurface soil and groundwater contaminants investigation of the property in order to assist Lincoln in deciding whether to purchase it. This contract between Beta and Lincoln was an oral contract.
Beta was not given a copy of the purchase contract between Lincoln and Mary Orsetti during its investigation of the property, and Lincoln did not discuss its terms with Beta. Beta obtained some information regarding the property from Orsetti's real estate agent, but was not able to get in contact with Mary Orsetti. Beta placed several calls to Orsetti in order to get additional historic information, but these calls were not returned.
The report was completed on November 21, 1986 and was given to Lincoln. Lincoln did not discuss with Beta their intention that the report would be for the benefit of anyone other than Lincoln. Beta was also not informed that Mary Orsetti would review or rely on the report. Beta did not have a contract with Orsetti, and did not give Orsetti any express warranty.
The report stated that Beta's analysis of the land did not reveal any of the "constituents of concern" and therefore they felt the property was clear of contamination. The sale of the land was subsequently completed. Lincoln is presently involved in litigation with Orsetti for the alleged contamination of the property. Orsetti brought this third-party complaint against Beta for its alleged negligence, breach of warranty, and misrepresentation in the preparation of the ground contamination report. Orsetti is seeking indemnification and compensatory damages from Beta.
Beta's motion for summary judgment turns on the following issues: (1) whether Beta owed Orsetti any duty of care in the preparation of the report, (2) whether Orsetti was a third-party beneficiary of the contract between Lincoln and Beta and (3) whether Beta committed any fraud or misrepresentation to the damage of Orsetti.
DISCUSSION
I. Legal Standard
Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial ... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). See also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (the nonmoving party may not rely on the pleadings but must present significant probative evidence supporting the claim); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").
The court's function, however, is not to make credibility determinations. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.
*328 II. Negligence Argument
An essential element of any negligence claim is a legal duty of care. All persons have a duty "to use ordinary care to prevent others being injured as the result of their conduct...." Rowland v. Christian, 69 Cal. 2d 108, 112, 70 Cal. Rptr. 97, 443 P.2d 561 (1968). But liability is not automatically imposed on someone for injuries sustained by another person. Rather, a defendant is liable only for those injuries which were reasonably foreseeable to the defendant at the time of the act. Dillon v. Legg, 68 Cal. 2d 728, 739, 69 Cal. Rptr. 72, 441 P.2d 912 (1968). Whether a duty will be imposed depends on a number of factors, including: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of the injury suffered, (3) the degree of certainty the plaintiff was injured, (4) the connection between the defendant's conduct and the injury, (5) the moral blame attached to the conduct, and (6) the policy of preventing future harm. Biakanja v. Irving, 49 Cal. 2d 647, 650, 320 P.2d 16 (1958).
Orsetti argues that Beta owes a duty to both Lincoln and herself. As the seller of the property, she was a foreseeable user of the report. Beta knew its findings would affect her decision of whether to sell the property and upon what conditions the sale would be made. Therefore, it was likely that any negligence in the performance of the testing would result in harm to her.
A. Accountant Liability Theory
Orsetti relies on the California decisions which have held accountants liable to foreseeable plaintiffs who rely on negligently prepared financial statements. See International Mortgage Co. (IMC) v. John P. Butler Accountancy Corp., 177 Cal. App. 3d 806, 223 Cal. Rptr. 218 (1986); Bily v. Arthur Young & Co., 7 Cal. App. 4th 1636, 271 Cal. Rptr. 470 (1990). In IMC the court reversed a long line of decisions requiring privity in negligence suits against accountants, and held that tort liability should be delimited only by foreseeability. IMC, 177 Cal.App.3d at 820, 223 Cal. Rptr. 218. Therefore, because innocent plaintiffs foreseeably rely on financial statements prepared by independent auditors, the auditors are liable for any negligently prepared statements even though they have no contractual relationship with the plaintiffs. Id.
Orsetti likens the position of Beta to that of an accountant, arguing that in both cases, a negligently prepared report will result in harm to foreseeable users. The California Supreme Court, however, recently overruled these appellate court decisions and held that an auditor owes no general duty of care regarding the conduct of an audit to persons other than the client. Bily v. Arthur Young & Company, 3 Cal. 4th 370, 11 Cal. Rptr. 2d 51, 73, 834 P.2d 745, 767 (1992). In applying the Biakanja factors set forth above, the Biley court stated that the foreseeability rule would result in a large number of expensive lawsuits of questionable merit. Id. 11 Cal. Rptr.2d at 72-73, 834 P.2d at 767-68. Therefore, the court opted for a more circumscribed approach to protect investors and returned to the rule of privity. Id. at 72-73, 834 P.2d at 767-68. The only exception to the reinstated rule of privity regards that group of specifically intended beneficiaries of the report who are known to the auditor and for whose benefit the report is made. Id. at 73, 834 P.2d at 768. This group may recover on a theory of negligent misrepresentation.
Therefore, in order for Orsetti to recover under a general negligence theory, she must prove that Beta owed her a legal duty. But Orsetti has not alleged that she was in privity with Beta. Instead she has relied on the "foreseeability rule" laid out by the accountant cases. This "rule", however, is no longer available.
Orsetti's later attempt to distinguish Beta's contamination report from financial statements prepared by independent auditors is not persuasive. The Bily court acknowledged that other groups of professionals, such as engineers, supply information and evaluations for others to use. In order to achieve consistency in the law of negligent misrepresentation, the same approach must be used in suits by third persons claiming reliance on the information and opinions. Therefore, for all groups of information-supplying professionals, liability is limited to *329 those persons the information is intended to benefit. See Bily, 11 Cal.Rptr.2d at 75, 834 P.2d at 769.
In addition, Orsetti presents no authority for the notion that the suppliers of contamination reports are liable to both parties in an agreement to sell a piece of property, regardless of privity. The facts underlying this case are not unique. The preparation of a professional's report such as a contamination report or an engineer's report is frequently a condition of sale. Therefore, if both parties to the transaction are ordinarily beneficiaries of such reports, it is quite remarkable that there are no cases on this issue. And the parties cite none.
Moreover, Orsetti has not presented sufficient facts to prove the duty factors set out in Biakanja. She has been able to conduct discovery with Lincoln and yet has not come up with any facts to show that Lincoln's contract with Beta was intended to affect Orsetti. She also has not alleged that she even read the report before selling the property. In addition, as the court in Bily pointed out, Orsetti could have hired her own environmental consultant to prepare a contamination report for her use. A broad rule of liability is of dubious benefit when an efficient means of self-protection is available. See Bily, 11 Cal.Rptr.2d at 72, 834 P.2d at 766.
B. "Tort Of Another" Theory
Orsetti alternatively relies on the theory of the "tort of another" to support her negligence claim. This theory is set out in Prentice v. North American Title Guaranty Corp., 59 Cal. 2d 618, 30 Cal. Rptr. 821, 381 P.2d 645 (1963). In Prentice, an escrow holder's negligence in closing a land sale forced the sellers to bring a quiet title action against third parties. As part of the same suit, the sellers recovered the attorneys' fees incurred in the action from the negligent escrow holder. This shifting of attorneys' fees was an exception to the general rule that attorneys' fees are to be paid by the party employing the attorney. The exception provides that "[a] person who through the tort of another has been required to [bring or defend an action] against a third person is entitled to recover compensation for ... attorneys' fees, and other expenditures thereby suffered or incurred." Id. at 620, 30 Cal. Rptr. 821, 381 P.2d 645.
Prentice involved the question of awarding attorneys' fees as a measure of damages wrongfully caused by the defendant's improper actions. Id. at 621, 30 Cal. Rptr. 821, 381 P.2d 645. But a legal duty of care is still required in order to recover the attorneys' fees under the theory of a "tort of another." In Sooy v. Peter, 220 Cal. App. 3d 1305, 270 Cal. Rptr. 151 (1990), the plaintiffs brought suit against an attorney for allegedly false representations he made to their attorney. The defendant attorney filed a cross-complaint against the plaintiffs' attorney for his fees incurred in defending the suit on the theory that these costs were attributable to the plaintiffs' attorney's professional negligence in failing to keep the plaintiffs informed. The court refused to award attorneys' fees because the plaintiffs' attorney's professional duty of care did not extend to the attorney/defendant. Id.
Therefore, the application of the "tort of another" theory does not replace the need to find a legal duty in a negligence claim. This theory only comes into question after the duty has been found and liability has been assessed. Orsetti's reliance on this theory is, therefore, misplaced. In any claim for negligence, the plaintiff must prove that the defendant owed her a legal duty of care.
Orsetti has failed to create a genuine issue of material fact as to whether Beta owed her a duty. Accordingly, Beta's motion for summary judgment regarding the negligence cause of action is GRANTED.
III. Intended Beneficiary Argument
In order to recover under a theory of breach of contract and warranty, Orsetti must be an intended beneficiary of the contract between Beta and Lincoln. "For a third party to qualify as a beneficiary under a contract, the contracting parties must have intended to benefit that third party, and their intent must appear from the terms of the contract." Kirst v. Silna, 103 Cal. App. 3d 759, 763, 163 Cal. Rptr. 230 (1980) (citing Cal.Civ.Code § 1559). The third party beneficiary *330 must show that the contract was made "expressly" for her benefit. R.J. Cardinal Co. v. Ritchie, 218 Cal. App. 2d 124, 135, 32 Cal. Rptr. 545 (1963). Therefore, Orsetti must show that the contract between Beta and Lincoln was clearly intended to inure to her benefit.
Orsetti argues that since the contract between Beta and Lincoln is not before the court, Beta has not proven that Orsetti was not an intended beneficiary. But there is no written contract between Beta and Lincoln. The contract was oral and its relevant terms have been provided in the Shafer Declaration. According to this declaration, Orsetti was not an intended beneficiary. Beta and Lincoln never discussed the report being produced for the benefit of Orsetti, nor did they intend it to benefit her.
From the available facts, therefore, it is clear that the contract was not made "expressly" for her benefit. Orsetti has had the opportunity to conduct discovery with Lincoln but has not provided any facts to counter Beta's assertion that Orsetti was not an intended beneficiary of the contract. Even if she now says she relied on the contamination report, she has not presented any facts to prove that Lincoln and Beta intended for her to rely on it.
Orsetti also argues that Beta's agreement to test her property included a "warranty of workmanlike service that is comparable to a manufacturer's warranty." Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 133-34, 76 S. Ct. 232, 237, 100 L. Ed. 133 (1956). Ryan, however, involved an action brought by a shipowner against the stevedoring contractor for indemnity on injuries sustained by an employee of the stevedoring contractor from improperly stored cargo. The court found that a "warranty of workmanlike service" was implied into the contract between the shipowner and the contractor. Id. Ryan is not analogous to the present case because, unlike the parties in Ryan, Beta and Orsetti do not have a contractual relationship. Since there is no contract between Beta and Orsetti, a warranty cannot be implied.
Accordingly, Beta's motion for summary judgment regarding the breach of contract and warranty cause of action is GRANTED.
IV. Fraud/Misrepresentation Argument
One who fraudulently makes a misrepresentation for the purpose of inducing another to act in reliance upon it is liable for the loss caused by the justifiable reliance on the misrepresentation. Rest.2d Torts § 525. The elements which the plaintiff must prove in order to recover on a claim of fraud include: (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) resulting damage. Cicone v. URS Corp., 183 Cal. App. 3d 194, 200, 227 Cal. Rptr. 887 (1986).
Similarly, the elements of negligent misrepresentation include: (1) misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the misrepresentation, (4) ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed, and (5) resulting damage. Fox v. Pollack, 181 Cal. App. 3d 954, 962, 226 Cal. Rptr. 532 (1986). In both of these actions, therefore, Orsetti must prove that Beta intended to induce her reliance on the contamination report and that she did in fact justifiably rely on the report to her detriment.
The "class of persons entitled to rely upon the representations is restricted to those to whom or for whom the misrepresentations were made. Even though the defendant should have anticipated that the misinformation might reach others, he is not liable to them." 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 721 at 820. In Bily v. Arthur Young Co., the California Supreme Court adopted the Restatement approach to determine whether there was an "intent to benefit". The Bily court reasoned that the language of the Restatement:
"creates an objective standard that looks to the specific circumstances (e.g., supplier-client engagement and the supplier's communications with the third party) to ascertain whether a supplier has undertaken *331 to inform and guide a third party with respect to an identified transaction or type of transaction. If such a specific undertaking has been made, liability is imposed on the supplier. If, on the other hand, the supplier `merely knows of the ever-present possibility of repetition to anyone, and possibility of action in reliance upon [the information] on the part of anyone to whom it may be repeated,' the supplier bears no legal responsibility."
Bily, 11 Cal.Rptr.2d at 75, 834 P.2d 745 at 769-70 (emphasis in original). Liability is limited to those whom the engagement is designed to benefit in order to allow the supplier of information to ascertain the potential scope of its liability and make rational decisions regarding the undertaking.
Therefore, in order to recover under a theory of negligent misrepresentation, the plaintiff must be an intended beneficiary of the contract. Her reliance on the report is otherwise not justified. As argued in the previous section, Beta was hired by Lincoln, and Lincoln alone, to perform the testing on the property. Lincoln and Beta never discussed the possibility that Orsetti would be relying on the report and Orsetti herself never informed Beta that she would rely on the report. Since Beta was not informed that Orsetti would rely on the report, it would not have been able to include its potential liability to Orsetti in its assessment of whether to prepare the report. Orsetti has not presented any facts to contradict Shafer's declaration as to the specific circumstances surrounding the agreement to prepare the report. Therefore, there is no triable issue of fact regarding Beta and Lincoln's intent to benefit her through the preparation of the contamination report.
Accordingly, Beta's motion for summary judgment regarding the misrepresentation cause of action is GRANTED.
CONCLUSION
The court GRANTS the third-party defendant's motion for summary judgment.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2234963/ | 929 N.E.2d 270 (2010)
OLIVER
v.
STATE.
No. 45A03-1002-CR-53.
Court of Appeals of Indiana.
July 9, 2010.
KIRSCH, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
FRIEDLANDER, J., concurs.
ROBB, J., concurs. | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.