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https://www.courtlistener.com/api/rest/v3/opinions/2987388/ | Order Issued March 21, 2013 Withdrawn; Order filed March 22, 2013
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00011-CV
____________
KERRY A. KILBURN AND CYNTHIA H. KILBURN, Appellant
V.
FORT BEND COUNTY DRAINAGE DISTRICT, Appellee
On Appeal from the County Court at Law No 1
Fort Bend County, Texas
Trial Court Cause No. 11-CCV-044047
ORDER
On March 21, 2013, this court issued an order requiring appellants to file a
brief by April 22, 2013 or risk dismissal for want of prosecution. It was brought to
the clerk’s attention that the brief had been filed February 28, 2013. Therefore, we
issue the following order:
This court’s March 21, 2013 order is withdrawn. Appellee is ordered to file
a brief on or before April 2, 2013.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3356885/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Defendants move to dismiss this case for lack of subject matter jurisdiction. The plaintiffs in their complaint allege a violation of section 9-374 of the Connecticut General Statutes. Clearly, the court has subject matter jurisdiction to determine whether the statute has been violated.
Defendants also move to dismiss the case claiming that there has been insufficiency of process. They claim that each member of the Berlin Town Committee should have been served. They cite General Statutes 52-57(a) for this proposition. However, that statute is inapplicable. The court finds that General Statutes 52-57(e) is the appropriate statute and that the service was not defective.
The Motion to Dismiss is denied.
ALLEN, J. CT Page 1015 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1877102/ | 188 So. 2d 817 (1966)
STRATTON
v.
MAYS.
No. 35188.
Supreme Court of Florida.
May 1966.
Certiorari denied without opinion. 183 So. 2d 43. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590103/ | 5 P.3d 1234 (2000)
2000 Utah Ct. App. 189
STATE of Utah, in the interest of V.T., a person under eighteen years of age.
STATE of Utah, Plaintiff and Appellee,
v.
V.T., a minor, Defendant and Appellant.
No. 990380-CA.
Court of Appeals of Utah.
June 22, 2000.
*1235 Joel Berrett, Roosevelt, for Appellant.
Jan Graham, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellee.
Before Judges BENCH, BILLINGS, and ORME.
OPINION
ORME, Judge:
¶ 1 V.T. appeals the juvenile court's adjudication that by his continued presence during the crime, he was an accomplice to theft, a class A misdemeanor, in violation of Utah Code Ann. § 76-6-404 (1999). We reverse.
BACKGROUND
¶ 2 On June 12, 1998, V.T. and two friends, "Moose" and Joey, went to a relative's apartment to avoid being picked up by police for curfew violations. The boys ended up spending the entire night at the apartment.
¶ 3 The next morning, the relative briefly left to run an errand, while the boys remained in her apartment. She returned about fifteen minutes later to find the boys gone, the door to her apartment wide open, and two of her guns missing. She immediately went in search of the group and found them hanging out together near her apartment complex. She confronted the boys about the theft of her guns and demanded that they return them to her. When they failed to do so, she reported the theft to the police.[1]
¶ 4 Two days after the theft of her guns, she discovered that her camcorder, which had been in the apartment when the boys visited, was also missing, and she immediately reported its theft to the police. The police found the camcorder at a local pawn shop, where it had been pawned on the same day the guns were stolen.
¶ 5 Still inside the camcorder was a videotape featuring footage of V.T., Moose, and Joey. The tape included a segment where Moose telephoned a friend, in V.T.'s presence, and discussed pawning the stolen camcorder. V.T. never spoke or gestured during any of this footage.[2]
*1236 ¶ 6 V.T. was eventually picked up by the police, while riding in a car with Moose. V.T. was charged with two counts of theft of a firearm; one count of theft, relating to the camcorder; and, for having initially given the police a phony name, one count of giving false information to a peace officer, a violation of Utah Code Ann. § 76-8-507 (1999).
¶ 7 The juvenile court held hearings on September 22, 1998 and January 29, 1999. V.T. was tried under an accomplice theory on the three theft charges. The court found that V.T. had committed class A misdemeanor theft of the camcorder and had provided false information to a peace officer.[3] The juvenile court summarized the basis for its adjudication concerning the camcorder theft as follows:
I am going to find him guilty and I think the additional information that I have here that brings me peace of mind is that he was present a second time, he was shown on the camcorder when the camcorder was being handled at a time when he could've distanced himself from the activity. Not only do I have him there once with the group . . . on the second incident . . . there is no gap on him being there when [the camcorder] is being handled and talked about and used in the confines of a room with a group of friends and those who were involved in this illegal activity.
V.T. appeals his adjudication concerning the theft of the camcorder.
ISSUE AND STANDARD OF REVIEW
¶ 8 The sole issue presented by V.T. is whether there was sufficient evidence to support the adjudication that he was an accomplice in the theft of the camcorder. When reviewing a juvenile court's decision for sufficiency of the evidence, we must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court's determination, see State v. Layman, 1999 UT 79, ¶ 12, 985 P.2d 911, reversing only when it is "against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Walker, 743 P.2d 191, 193 (Utah 1987).
ANALYSIS
¶ 9 Utah's accomplice liability statute, Utah Code Ann. § 76-2-202 (1999), provides:
Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.
As with any other crime, the State must prove the elements of accomplice liability beyond a reasonable doubt. See State v. Lopes, 1999 UT 24, ¶ 11, 980 P.2d 191; State v. Labrum, 959 P.2d 120, 123 (Utah Ct.App. 1998).
¶ 10 The State argues that V.T.'s continued presence during the theft and subsequent phone conversation about selling the camcorder, coupled with his friendship with the other two boys, is enough evidence to support the inference that he had "encouraged" the other two in committing the theft and that he is therefore an accomplice to the crime. Black's Law Dictionary defines encourage as: "[t]o instigate; to incite to action; to embolden; to help." Black's Law Dictionary 547 (7th ed.1999). The plain meaning of the word confirms that to encourage others to take criminal action requires some form of active behavior, or at least verbalization, by a defendant. Passive behavior, such as mere presenceeven continuous presenceabsent evidence that the defendant affirmatively did something to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as "encouragement" as that term is commonly used.
¶ 11 The case law in Utah is consistent with this definition: "`Mere presence, or even prior knowledge, does not make one an accomplice'" to a crime absent evidence *1237 showingbeyond a reasonable doubtthat defendant "advise[d], instigate[d], encourage[d], or assist[ed] in perpetuation of the crime." Labrum, 959 P.2d at 123 (quoting State v. Kerekes, 622 P.2d 1161, 1166 (Utah 1980)).
¶ 12 In Labrum, the defendant was convicted of attempted criminal homicide due to his participation in a drive-by shooting.[4]See 959 P.2d at 122. The juvenile court gave defendant an enhanced sentence, based on its finding that defendant had acted in concert with two or more persons in committing the shooting and was therefore subject to the "group crime enhancement" contained in Utah Code Ann. § 76-3-203.1(1)(a) & (b) (1999). See Labrum III, 959 P.2d at 122. For purposes of that statute, "in concert" means that the other individuals who participated with defendant would be criminally liable for the offense as accomplices under Section 76-2-202. See Utah Code Ann. § 76-3-203.1(1)(b) (1999).
¶ 13 On appeal, we held that there was insufficient evidence to find that Behunin, one of the passengers in the car who defendant was alleged to have acted "in concert" with, would be guilty if tried under an accomplice liability theory for the shooting. See Labrum III, 959 P.2d at 123-24. The juvenile court's findings supporting the group crime enhancement showed only that Behunin had been present before, during, and after the shooting and later was in defendant's presence when he boasted to a third party about the shooting. See id. Although Behunin apparently endorsed the boasting, we held these findings were insufficient to show that he solicited, requested, commanded, encouraged, or intentionally aided Labrum in committing the shooting.[5]See id.
¶ 14 Two other Utah cases further illuminate the level of participation necessary to establish criminal liability as an accomplice. In State v. Smith, 706 P.2d 1052 (Utah 1985), our Supreme Court concluded there was sufficient evidence to convict Smith of aggravated robbery and theft based on a theory of accomplice liability. See id. at 1056-57. But in that case, there was testimony that Smith had recruited one of his co-defendants to aid in the robbery, that he selected the house to rob, and that he provided and drove the getaway car to and from the crime scene. See id. at 1056. This testimony was sufficient *1238 to show that Smith had solicited and intentionally aided his co-defendants in committing the robbery. See id. at 1056-57.
¶ 15 In State v. Webb, 790 P.2d 65 (Utah Ct.App.1990), we upheld Webb's conviction for aggravated robbery of a jewelry store under an accomplice theory. See id. at 84-85. Although the evidence was conflicting, there was testimony that Webb had solicited a co-defendant to steal the getaway car and give it to him, that Webb said he knew someone who would sell the stolen goods for them, and that he had sorted through the stolen jewelry with his partners-in-crime at a friend's house. See id. This evidence was sufficient to find that Webb had "solicited, requested, commanded, encouraged, or intentionally aided" in the robbery. Id. at 85.
¶ 16 These three cases make it clear that something more than a defendant's passive presence during the planning and commission of a crime is required to constitute "encouragement" so as to impose accomplice liability in Utah. There must be evidence showing that the defendant engaged in some active behavior, or at least speech or other expression, that served to assist or encourage the primary perpetrators in committing the crime.[6]
¶ 17 The juvenile court's conclusion that V.T. was an accomplice to the camcorder theft was not supported by the evidence in this case. No evidence whatsoever was produced indicating V.T. had encouragedmuch less that he solicited, requested, commanded or intentionally aidedthe other two boys in the theft of the camcorder.[7]
¶ 18 Instead, the evidence, read in the light most favorable to the juvenile court's decision, shows only that V.T. was present with the other two youths, albeit at multiple times: when the camcorder was stolen; when they were confronted about the theft of the guns; and when the plan to pawn the camcorder was being discussed by Moose. In sharp contrast to Smith and Webb, however, there is no indication in the record that V.T. had instigated, incited to action, emboldened, helped, or advised the other two boys in planning or committing the theft. The circumstantial evidence presented in this case, which only shows V.T.'s continuous presence during the events surrounding the theft, is sufficient for finding only that V.T. was a witnessnot an accompliceto the theft of the camcorder.[8]See Labrum III, 959 P.2d at 123-24. And knowledge of a theft, without more, does not make one an accomplice. See People v. Taylor, 219 Ill. App.3d 47, 161 Ill.Dec. 835, 579 N.E.2d 383, 385, appeal denied, 142 Ill.2d 663, 164 Ill. Dec. 926, 584 N.E.2d 138 (1991).
*1239 ¶ 19 The juvenile court's conclusion of accomplice liability was heavily influenced by the videotape footage of V.T., who at the time of the filming was necessarily in the presence of the camcorder, after it had been stolen. In fact, the court found that even though there was not enough evidence presented to find that V.T. was an accomplice in the theft of the guns, which were stolen at the same time and from the same apartment as the camcorder, the videotape footage was enough to find that V.T. was an accomplice to the camcorder theft.[9] The juvenile court's heavy reliance on this footage shows that it made its conclusion of accomplice liability based not on any evidence that V.T. had encouraged the others to steal the camcorder, as required by section 76-2-202, but instead on the sole fact that V.T. allowed himself to remain in the company of Joey, Moose, and the stolen camcorder before, during, and immediately after the theft. As explained above, this "guilt by association" theory is not a basis on which accomplice liability can be premised under Utah law.
CONCLUSION
¶ 20 The facts in this case prove only that V.T. was present before, during, and after the theft of the camcorder. The lack of any evidence showing that he at least encouraged the other defendants in stealing the camcorder precludes the juvenile court from finding, pursuant to Utah Code Ann. § 76-2-202 (1999), that V.T. was an accomplice to that theft. Accordingly, we reverse the juvenile court's adjudication that V.T. was an accomplice in the theft of the camcorder.
¶ 21 WE CONCUR: RUSSELL W. BENCH, Judge, and JUDITH M. BILLINGS, Judge.
NOTES
[1] A few days after confronting the boys about her stolen guns, one of the boys returned one of the guns to her and she found the butt of the other gun on her porch.
[2] The videotape was shown at trial, but was never admitted into evidence and is therefore not part of the record on appeal. As a result, we have not seen any of the footage of V.T. Both parties, however, are in agreement as to what the videotape showsa silent V.T., being filmed by Joey, during which time Moose talks to another person on the phone about selling the stolen camcorder to a pawn shop.
[3] The juvenile court concluded there was insufficient evidence presented to support a finding that V.T. had been an accomplice in the theft of the guns.
[4] Our 1998 Labrum decision was actually the third in a series. The juvenile court initially sentenced Labrum to fifteen years in prison for attempted criminal homicide plus an additional six-year group crime enhancement. See State v. Labrum, 881 P.2d 900, 902 (Utah Ct.App.1994) (Labrum I ). Labrum appealed the sentence based on the juvenile court's failure to make written findings supporting the application of the enhanced sentence. See id.
On appeal, we upheld the sentence and declined to address the issue of the lack of written findings due to Labrum's failure to raise that issue before his sentencing. See id. at 905-06. On certiorari, the Utah Supreme Court overruled our decision upholding the imposition of the enhanced sentence and held that, defendant's apparent waiver notwithstanding, the group crime enhancement statute required the entry of written findings supporting its imposition. See State v. Labrum, 925 P.2d 937, 940 (Utah 1996) (Labrum II). Thus, the Supreme Court vacated the enhanced sentence and remanded for resentencing. See id. at 941.
On remand, the sentencing court again applied the group crime enhancement to Labrum's sentence, this time basing its decision on several factual findings, and Labrum again appealed. See State v. Labrum, 959 P.2d 120, 122 (Utah Ct.App.1998) (Labrum III). In that case, as more fully explained in the text, we held that the juvenile court's factual findings were insufficient to find that the other passenger had acted "in concert" with Labrum and therefore the imposition of the group crime enhancement to Labrum's sentence was improper. See id. at 122-24.
[5] The State attempts to distinguish our decision in Labrum III on the basis of the less deferential standard of review we applied to one of the sentencing court's findings of fact. See Labrum III, 959 P.2d at 123 n. 6. This argument is wide of the mark in the context of this case. We rely upon Labrum III, not for its discussion concerning the standard of review of a court's findings of fact, but for its discussion of what level of participation by a defendant is legally sufficient to impose criminal liability under section 76-2-202. The State makes no attempt in its brief to explain how the actions taken by Behunin in Labrum III would not be sufficient to impose accomplice liability while the almost identical actionor more precisely, inactionby V.T. is somehow sufficient in this case. At oral argument, the State explained this case is different because, basically, V.T. was present on more occasions, or for longer periods, than Behunin was in Labrum III. As we explain in this opinion, it is the quality of one's actions, not their quantity, that might make one an accomplice. No amount of passive presence will render one an accomplice.
[6] This approach to accomplice liability is consistent with that taken in other jurisdictions. See, e.g., United States v. Pedroza, 78 F.3d 179, 183-84 (5th Cir.1996); United States v. Luciano-Mosquera, 63 F.3d 1142, 1149-50 (1st Cir.1995), cert. denied sub nom. Pagan-San-Miguel v. United States, 517 U.S. 1234, 116 S.Ct. 1879, 135 L.Ed.2d 174 (1996); People v. Taylor, 219 Ill. App.3d 47, 161 111.Dec. 835, 579 N.E.2d 383, 385 ("[C]riminal responsibility may not be imposed simply through guilt by association, nor by the Defendant's mere presence at the scene, nor even by the Defendant's knowledge that the offense is being committed."), appeal denied, 142 Ill.2d 663, 164 Ill.Dec. 926, 584 N.E.2d 138 (1991); State v. Roberts, 80 Wash.App. 342, 908 P.2d 892, 899-900 (1996).
[7] We would, of course, conclude otherwise had the evidence shown, for example, that V.T. had suggested to his two friends that they go rob the apartment, that he had pointed out where the camcorder was kept, that he had helped carry the stolen goods out, or that he helped select the pawn shop at which to sell the camcorder.
[8] We recognize that in some circumstances a finding of accomplice liability can be properly based on circumstantial evidence. See State v. Beltran-Felix, 922 P.2d 30, 36 (Utah Ct.App. 1996) (discussing evidence from which fact finder could infer criminal intent to support accomplice liability). There might well be a case where the fact finder could infer, from the objective facts, that the only plausible conclusion is the existence of an accomplice who aided the other defendant(s) in the commission of a crime.
For example, what if the item stolen from the apartment had not been a small camcorder but instead was a 500 pound television console? If the State had produced evidence that it would take at least two people to carry off such an item while a third held the spring-equipped door beyond its normal resistance point, the juvenile court could have reasonably inferred from the evidence that V.T. was not only present when the television was stolen, but that he must have helped in either a carrying or door-holding capacity and was therefore an accomplice to the crime.
[9] The court noted that the videotape showed that V.T. "was present a second time, he was shown on the camcorder when the camcorder was being handled at a time when he could've distanced himself from the activity." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611756/ | 15 Cal. 2d 492 (1940)
THE PEOPLE, Respondent,
v.
JACK RYAN, Appellant.
Crim. No. 4236.
Supreme Court of California. In Bank.
May 1, 1940.
S.W. Thompson for Appellant.
Earl Warren, Attorney-General, and Alberta Belford, Deputy Attorney- General, for Respondent.
PULLEN, J., pro tem.
Appellant, with others, was jointly charged with violating subdivision 2 of section 337a of the *493 Penal Code. Ryan was found guilty. From an order denying a motion for a new trial, an appeal was taken to the District Court of Appeal. The transcript of the proceedings of the trial court as presented to the appellate court clearly showed that at the time of pronouncing judgment the court found appellant guilty of a violation of subdivision 3, section 337a, of the Penal Code. The appellate court, in reviewing the record, held the judgment defective because the defendant had been adjudged guilty of an offense not alleged in the information, and thereupon reversed the trial court.
[1] Thereafter, the People filed a petition for a hearing before this court, which petition was granted. Following the granting of the petition for a hearing, the attorney-general, upon behalf of the state, presented a motion for diminution of the record based upon an affidavit of the official court reporter who reported all the proceedings had at the trial of Ryan in the superior court, and affiant declared that the transcript wherever it purported to say that the trial court found the defendant then guilty of a violation of subdivision 3 of section 337a of the Penal Code, was a mistake in transcription, and that the court stated, and the transcript should have read "Subdivision 2" of said section.
Upon the hearing of the motion this court granted the same and issued an order correcting the record upon which the District Court acted, so that the only point considered and acted upon by that court is not now in the record, nor is the point now before us. We are satisfied that if the amended and corrected record had been presented to the District Court, that tribunal would have reached the same conclusion that we now find to be decisive of the appeal.
The point here presented is that the evidence is insufficient to support the verdict and that the same is contrary to the evidence.
The evidence submitted to the trial court, sitting without a jury, was, briefly, that two officers went to a certain dwelling house in Los Angeles, and upon looking through a window, saw the defendant Ryan seated at a table in a rear room, upon which table were telephones, an amplifier, papers and other paraphernalia; the officers observed Ryan answering a telephone and making certain notations on a paper lying on a table before him. Upon demanding admission, Ryan, and *494 the other men who were in the room, left that room and went into another part of the house. Upon examining the room in question the officers found certain papers known among racing men as betting markers or betting records, four telephones and an amplifier, an adding machine, and a rack in which were filed a number of betting records. They placed Ryan under arrest, and he then told the arresting officers that that was his home and that he would take the "rap". He also stated he had been operating for several months, although not continuously--that sometimes his play was not heavy enough to justify remaining open.
Defendant was charged with a violation of subdivision 2 of section 337a of the Penal Code, which provides that every person "who ... keeps or occupies ... any room ... with ... book, ... papers, apparatus, device or paraphernalia for the purpose of recording or registering ... bets ... or wagers ... upon the result ... of any trial, ..., or contest ... of skill, speed or power of endurance of man or beast ... is punishable ...".
For the purpose of this appeal appellant admits the evidence before the court showed that in a house which defendant Ryan occupied the officers found certain paraphernalia that is usually kept and found in places where the wagering on horse racing is carried on, but contended that proof alone of the occupancy of a place "with books and paraphernalia" which might have been used for the purposes prohibited by section 337a of the Penal Code is not sufficient, but that the proof must further show that the place was occupied for the purpose of recording or registering bets or selling pools upon the result of the prohibited contests. In other words, does the prepositional phrase "for the purpose of recording or registering any bet" modify "occupies" or does it modify the phrase "with a book ... paper ... apparatus ... or paraphernalia?" If the latter construction is correct then it is the paraphernalia and apparatus which must be for the purpose of recording a bet, and not the occupying, for the purpose of recording or registering the bets.
Support for the contention of appellant is found in People v. Tuttle, 27 Cal. App. 2d 647 [81 PaCal.2d 571], wherein the court said: "Although it was incumbent upon the prosecution to prove that the room was kept for the purpose set *495 forth in the Code provision it was not necessary to make the proof by direct evidence."
[2] In view of the abundance of the evidence that the room was kept by defendant for the acts prescribed by the statute we need not approve nor disapprove the construction of the language placed thereon by the court in that case, for here the circumstantial evidence is sufficient to support the finding that the room was kept for the purpose of accepting wagers on a horse race. The usual equipment was found therein; a horse race was being announced over the loud speaker when the officers gained admission to the room; defendant was seated at a desk, pencil in hand, talking over the telephone; he attempted to run out of the room but was interrupted by the officers; and his admission tended to connect him directly with the establishment and the activities there being carried on.
The evidence is ample to support the verdict. The judgment is affirmed.
Shenk, J., Curtis, J., Houser, J., Edmonds, J., and Waste, C.J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611764/ | 38 Cal. App. 2d 637 (1940)
JOHN RUSH McCOY, Respondent,
v.
AILEEN McCOY, Appellant.
Civ. No. 6335.
California Court of Appeals. Third Appellate District.
April 29, 1940.
George M. Breslin and Henry G. Bodkin for Appellant.
Anderson & Anderson for Respondent.
Tuttle, J.
This action was brought for declaratory relief in respect to a contract between the parties, relating to the custody of their minor children. The court upheld the contention of plaintiff, and findings and judgment were entered in his favor. Defendant appeals from said judgment.
On October 12, 1934, appellant and respondent, who were then married, entered into an agreement, which, among other provisions, covered the custody of their three children, consisting of a son, thirteen years of age, a daughter ten years old, and another son seven years old. Shortly thereafter, the parties were divorced, and the agreement was made a part of the decree. The portion of said contract with which we are here concerned, reads as follows:
"(a) Both father and mother are to have joint custody of the children;"
"(b) The mother will maintain an adequate and proper home for the children until they reach their majority;"
"(c) The father shall have the right and privilege of having the children during summer vacation, that is, between closing and opening of school;"
"(d) During the school year, the father shall have the privilege, upon request made to the mother, to have the children, or any of them, with him for a reasonable period of *639 time, providing it does not interfere with their schooling. (Italics ours.)"
"(e) The father may have the children during any weekend, that is, Saturday and Sunday."
"(f) The father shall have the right to have the children, or any of them, with him, during Christmas and Easter holidays, 'provided that the same shall meet with the approval and consent of the party of the second part.'"
"(g) With the exceptions hereinbefore expressly set forth, the wife shall have the children with her."
The complaint states the nature of the controversy as follows: "There is a complete dispute, difference and disagreement between the plaintiff and the defendant as to the meaning of the said clause of said agreement last hereinabove quoted, the plaintiff insisting that, under and pursuant thereto, he has a right to have the custody of at least one or more of such children during any given school term, and the defendant insisting that plaintiff has no right to the custody of any of said children during any school term for a period in excess of two or three weeks."
The court found:
"That under the provisions in controversy of said contract of the parties hereto, as alleged in Paragraph VIII of the complaint in this action, and under the evidence in this case, and under certain concessions made by the plaintiff restricting the breadth of said provision of said contract, the following is found to be the best educational interests of the three children of said parties, and to be within the purview of such disputed provision of said contract, and to be the right of the plaintiff with regard to school-term custody of said children under said provision of said contract, viz.:"
"First: That the plaintiff shall have the care, custody and control of, and have living with him, one of said three children of the marriage of plaintiff and defendant, in rotation, for every third school term, as hereinafter defined, during such period as all three of such children are in the joint custody and control as provided in said contract of the parties hereto; that is to say, while all three of said children are living with one of the other of said parties hereto."
There are other findings relating to the joint custody and control of the children, but the foregoing paragraph (First), is the one around which this dispute is centered. *640
The case of plaintiff came from four witnesses, including himself. The latter testified that he was interested in the education of his children; that they were normal, and in good health; that he had remarried; and wished to have the custody of the children in rotation, with the exception of his daughter. He gave no testimony relating to the intention of the parties at the time the contract was executed. No ambiguity or uncertainty was called to his attention. Witness Bacon was a psychologist from the University of Southern California. He testified that changing schools for the boys twice a year would not be detrimental. Witness Roubenheimer was also a psychologist from the same institution. His testimony was the same. Witness Hazel Schmidt was a school teacher. Her testimony was to the same effect. It is thus apparent that there was no evidence which related to a construction of the contract, or any of its terms. The hearing was similar to that which would be had upon an application to modify a decree of divorce in respect to the custody of minor children. This view is confirmed by the finding of the trial court, that it would be for the best "educational interests" of the children to rotate their schooling. The effect of the decision was to permit respondent to take one child at a time, out of the mother's home, for a semester, place him in a different school, and the following semester return such child to its mother, in turn, to go back to his old school, while a brother or sister was then taken away from his mother, and his association with his brother and sister, to undergo the same course of treatment. This was to be repeated during the children's minority, making a constant change in the home, the school, and the surroundings of each child every 18 months.
[1] It is contended by appellant that the trial court did not construe the contract, but in fact modified the same, and that the findings have no evidentiary support. We are in accord with that view. Section 1060 of the Code of Civil Procedure, which governs this action, provides:
"Any person interested under a deed, will or other written instrument, or under a contract, or who desires a declaration of his rights or duties with respect to another, or in respect to in, over, or upon property, or with respect to the location of the natural channel of a watercourse may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an action in the Superior Court for a *641 declaration of his rights and duties in the premises, including a determination of any question of construction or validity arising under such instrument or contract. He may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of such rights or duties, whether or not further relief is, or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment. Such declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought."
In 8 California Jurisprudence Supplement, page 117, section 14, it is said:
"Unless other relief is sought by the complaint, the judgment should merely declare the rights of the parties under the instrument under consideration."
Here the judgment is not predicated upon a construction of the agreement, but is based and founded upon evidence relating solely to the question of the welfare of the minors. That question has already been adjudicated by the decree of divorce which embodied the contract, and it could not be relitigated under the guise of declaratory relief.
[2] We are further of the opinion that the trial court improperly construed the clause in dispute,--(sec. [d], supra). If it was intended that plaintiff should have the custody of the minors one-half of each school year, it would not have provided that he might have them during any weekend, Christmas and Easter, as one or more of those days would come within the period which he now seeks their custody. There is nothing uncertain or ambiguous in the use of the expression "a reasonable period". That is a very common designation, and necessarily depends upon surrounding facts and circumstances. It cannot be stretched or distorted to mean an entire school term, particularly in the absence of any evidence which would tend to support that construction. We find no such evidence in the record.
The evidence fails to support the findings, and the judgment must be reversed. It is so ordered.
Pullen, P. J., and Thompson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984536/ | March 11, 2014
JUDGMENT
The Fourteenth Court of Appeals
RAMESH KAPUR D/B/A AIC MANAGEMENT COMPANY, Appellant
NO. 14-13-01065-CV V.
HARRIS COUNTY, LINEBARGER GOGGAN BLAIR & SAMPSON LLP AND
CITY OF HOUSTON, Appellees
________________________________
Today the Court heard its own motion to dismiss the appeal from the
judgment signed by the court below on August 30, 2013. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellant, Ramesh Kapur d/b/a AIC Management Company.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2987373/ | Order filed, March 26, 2013.
In The
Fourteenth Court of Appeals
____________
NO. 14-13-00074-CV
____________
JAMES NEZAT, Appellant
V.
TUCKER ENERGY SERVICES, INC., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2009-44349
ORDER
The reporter’s record in this case was due March 4, 2013. See Tex. R. App.
P. 35.1. The court has not received a request to extend time for filing the record.
The record has not been filed with the court. Because the reporter’s record has not
been filed timely, we issue the following order.
We order Judith Kulhanek, the substitute court reporter, to file the record
in this appeal within 30 days of the date of this order.
PER CURIAM | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2611742/ | 50 Wash. 2d 250 (1957)
310 P.2d 1069
JOHN H. KROGH, Appellant,
v.
OTTIS PEMBLE et al., Respondents.[1]
No. 33693.
The Supreme Court of Washington, Department Two.
May 9, 1957.
Critchlow & Williams and Sanford Skidmore, for appellant.
Hugh B. Horton, for respondents.
FOSTER, J.
While crossing a street intersection in Kennewick, appellant was struck by respondent's automobile and *251 sued to recover his damage for the resulting injuries. All issues of respondent's negligence were withdrawn, and the jury was instructed that appellant's contributory negligence barred recovery unless respondent had the last clear chance to avoid the accident. Upon the verdict for respondent the action was dismissed, from which this appeal is taken.
The issue raised by five of the six assignments of error is whether the appellant was a jaywalker or was in the crosswalk; the answer to which depends upon the existence or nonexistence of a statutory crosswalk.
Avenue C, which extends east and west, has six marked lanes; that is, two each for east and west-bound traffic, and a parking lane on each side of the street. It is intersected at a right angle by Cedar street from the south, forming a "T." On the west side of Cedar street at the intersection with avenue C, a crosswalk is marked in the statutory manner.[2]
The crosswalk on the east side of the intersection was marked in 1948, and the boundaries painted; but since 1952, such markings have not been renewed so that at the time of the accident, while perceptible, were scarcely visible to those in passing vehicles. Nevertheless, appellant contends it is still a crosswalk, the statutory definition of which is set out in the margin.[3] In 1952, the west crosswalk was marked and an overhead sign suspended bearing the legend "MARKED CROSSWALK." Parking was then authorized up to the former marked boundaries of the east crosswalk, except for diagonal sections at each end thereof in which the words "NO PARKING" were painted.
Shortly after one o'clock p.m. on the day in question, appellant started to cross the east, or old, crosswalk from the north to the south side of avenue C, but stopped when *252 one-half way through the inside of the west-bound traffic lane, at which point he observed three cars approaching from his left, the first of which was respondent's. Appellant then turned his attention to traffic approaching from the west, and while so standing, waiting for east-bound vehicular traffic to pass, was struck by the respondent's car.
No claim is made the respondent sounded her horn, although aware of appellant's position of peril when four or five car lengths away.
The court instructed the jury that the appellant was not in a proper crosswalk nor did he exercise ordinary care for his own safety, and was, therefore, guilty of contributory negligence, barring recovery unless the jury found respondent had the last clear chance to avoid the accident.
Error is assigned on the refusal to instruct respecting the duty of a motor vehicle operator toward a pedestrian in a crosswalk, or to define "crosswalk," and "intersection," or that respondent was under any duty to sound the horn. It is undisputed that the city of Kennewick, by ordinance, adopted the state statutes regulating traffic.
The respondent's argument is: That the existence of the plainly marked and designated crosswalk on the west side, a distance of sixty feet, and the fading of the markings on the original east crosswalk, and the new markings sanctioning parking on that side as recognized traffic devices, preclude the existence of a crosswalk on the east side.
[1] The evidence leaves little room for doubt the original markings were so dimmed by time that it was not a marked crosswalk within the statutory definition of that term,[2] or at least it may be so assumed for present purposes. The statute declares[3] a crosswalk to be the portion of the roadway between the intersection area[4] and a prolongation or connection of the farthest sidewalk line, or in the absence *253 of sidewalks, between the intersection area and a line ten feet therefrom. It is unnecessary to determine when the east crosswalk ceased to be a marked one. Certain it is, however, under the statute, it was an unmarked crosswalk whenever it ceased to be a marked one, but in that event, included only the area designated by statute and not the extended or modified area of the formerly marked crosswalk. Unless this is so, every pedestrian is in peril in using any crosswalk in which the markings are faded or covered by snow or ice.
[2] Respondent urges upon us the argument that the establishment of a marked crosswalk on the west side of the intersection in question, precludes the existence of a statutory crosswalk on the opposite side of the street; but we find nothing in the statute to sanction this view. While the statute invests local authorities[5] with a very wide discretion in establishing and locating marked crosswalks, there is no other exception to the definition of "crosswalk." The California motor vehicle code, on the other hand,[6] grants local authorities the right to place signs prohibiting pedestrian crossings, in which event a statutory crosswalk does not exist.
[3] Cedar street did not extend beyond the northern boundary of avenue C but formed a "T" intersection at that point. There were no paved sidewalks on the south side of avenue C, although the curbs are in place, but the covering of sidewalks with cement is not necessary to the existence of a statutory or unmarked crosswalk,[7] nor *254 does the fact that this was a "T" intersection affect the existence of a crosswalk.[8] In fact, when crossroads intersect at right angles, there is no difficulty in determining the existence of statutory or unmarked crosswalks.[9]
Appellant insists a statutory crosswalk cannot exist here because RCW 46.48.270[10] prohibits parking within twenty feet of a crosswalk, whereas markings permitted parking up to the former crosswalk, and the diagonal markings at each end of the formerly marked crosswalk were traffic devices. [RCW 46.04.610][11]
[4] We find no merit in this argument. The actions of the local traffic authorities establishing the marked crosswalk on the west side of the intersection involved, and the parking and no parking zones, have no place in determining whether the original marked crosswalk on the east side of the intersection was a statutory crosswalk or not. The two streets intersected at right angles, and while the sidewalks had not been covered with concrete, the curbs were in place, in consequence of which McKinney v. Preston Mill Co., 39 Wn. (2d) 681, 237 P. (2d) 788, is singularly applicable.
*255 Under Oregon's motor vehicle code, an unmarked crosswalk could not exist unless there are sidewalks;[12] but the statutes of this state contain no such limitation so both a marked and an unmarked crosswalk may parallel each other in the same intersection.
Section 85 (a) of the California motor vehicle code, set out in the margin,[13] provides for unmarked crosswalks, and in Kashevaroff v. Webb, 73 Cal. App. (2d) 177, 166 P. (2d) 306, the marked crosswalk paralleled the unmarked crosswalk approximately one hundred seventy-five feet to the west.
[5, 6] There remains for consideration the assignment respecting respondent's failure to sound the horn. Because the court is not required to rewrite a requested instruction to eliminate inapplicable portions, we find no error in the refusal to give requested instruction No. 7. The inclusion of the words "or at such times and under such conditions as required by law" allowed the jury to speculate and rendered the instruction objectionable. Knight v. Pang, 32 Wn. (2d) 217, 201 P. (2d) 198.
Because the court erred in withdrawing the issue of the respondent's negligence and in rejecting the requested instructions on crosswalks, the judgment is reversed and a new trial is granted.
HILL, C.J., and DONWORTH, J., concur.
SCHWELLENBACH and ROSELLINI, JJ., concur in the result.
June 24, 1957. Petition for rehearing denied.
NOTES
[1] Reported in 310 P. (2d) 1069.
[2] "`Marked Crosswalk.' Any portion of a roadway distinctly indicated for pedestrian crossing by lines or other markings on the surface thereof." Laws of 1937, chapter 189, § 1 (aa), p. 835 (RCW 46.04.290).
[3] "`Crosswalk.' The portion of the roadway between the intersection area and a prolongation or connection of the farthest sidewalk line or in the event there are no sidewalks then between the intersection area and a line ten (10) feet therefrom, except as modified by a marked crosswalk." Laws of 1937, chapter 189, § 1 (o), p. 835 (RCW 46.04.160).
[4] "`Intersection Area.' The area embraced within the prolongation of the lateral curb lines, or, if there be no curbs, then the lateral roadway boundary lines, of two or more public highways which join one another at an angle, whether or not such highways cross one another." Laws of 1937, chapter 189, § 1 (u), p. 835 (RCW 46.04.220).
[5] "`Local Authorities.' Every county, municipal, or other local public board or body having authority to adopt local police regulations under the constitution and laws of this state." Laws of 1937, chapter 189, § 1 (z), p. 835 (RCW 46.04.280).
[6] "Notwithstanding the foregoing provisions of this section, there shall not be a crosswalk where local authorities have placed signs indicating no crossing." California Vehicle Code § 85 (c).
[7] "Section 85 defines an unmarked crosswalk as that portion of a roadway ordinarily included within the prolongation of the boundary lines of sidewalks at intersections of streets which meet at approximately right angles. We think the latter section, in referring to sidewalks, was intended to refer to the space between the property line and the curb and not merely that portion thereof which happens to be covered with cement or other material making an improved walk." Colburn v. Schilling, 41 Cal. App. (2d) 541, 545, 107 P. (2d) 279.
[8] Ellis v. Glenn, 269 S.W. (2d) (Ky. App.) 234 (1954); Brown v. Bendix Radio Division of Bendix Aviation Corp., 187 Md. 613, 51 A. (2d) 292.
[9] "No trouble is encountered in the case of crossroads at right angles with each other. It is when the roads are at an acute angle with each other, or where there is a flare of one road where it enters another, or where one road enters the other on a curve, that the most serious problems are presented." McKinney v. Preston Mill Co., 39 Wn. (2d) 681, 237 P. (2d) 788.
[10] "... Within twenty feet of a crosswalk at an intersection; ..." RCW 46.48.270 (6).
[11] "`Traffic Devices.' All signs, signals, markings and devices not inconsistent with this act placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic." Laws of 1937, chapter 189, § 1 (ggg), p. 835 (RCW 46.04.610).
[12] Leap v. Royce, 203 Ore. 566, 279 P. (2d) 887.
[13] "That portion of a roadway ordinarily included within the prolongation or connection of the boundary lines of sidewalks at intersections where the intersecting roadways meet at approximately right angles, except the prolongation of any such lines from an alley across a street." California Vehicle Code § 85 (a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1708694/ | 513 So.2d 927 (1987)
PIONEER LIFE INSURANCE COMPANY OF ILLINOIS
v.
Shirley F. MOSS.
No. 56629.
Supreme Court of Mississippi.
September 30, 1987.
Arthur F. Jernigan, Gerald, Brand, Watters, Cox & Hemleben, Jackson, for appellant.
Rex Gordon, Sr., David C. Frazier, Gordon, Myers & Frazier, Pascagoula, Gerald Dickerson, Lucedale, for appellee.
Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.
*928 WALKER, Chief Justice, for the Court:
This case is before the Court on appeal from the Circuit Court of George County, Mississippi where, on November 9, 1984 a jury returned a verdict in favor of Shirley Moss and against Pioneer Life Insurance Company in the amount of $100.00 actual damages and $50,000.00 punitive damages. From this adverse decision, Pioneer Life Insurance Company appeals.
FACTS
On March 20, 1981, Pioneer Life Insurance Company of Illinois (hereinafter "Pioneer Life") issued a medical insurance policy to Shirley F. Moss (hereinafter "Mrs. Moss"). On February 7, 1982, while the policy was in effect, Mrs. Moss was admitted to Singing River Hospital suffering from chest pains. Mrs. Moss was confined at Singing River Hospital from February 7th through February 10th while diagnostic tests were performed. The discharge summary of Singing River Hospital recorded the results of the testing, including an echocardiogram, disclosing that Mrs. Moss was diagnosed as having a prolapsing mitral valve. On March 26, 1982, Mrs. Moss filed her claim form with Pioneer Life, but because the hospital chart was incomplete, Pioneer Life was unable to complete its processing until June 1, 1982. The medical expenses submitted by Mrs. Moss are set forth in tabular form below:
MEDICAL PROVIDER DATE OF TREATMENT EXPENSES SUBMITTED
Singing River Hosp. 2/7 - 2/10 $1,114.62
Dr. Samuel Simmons 2/2 - 2/12 212.00
Mobile Infirmary 2/10 170.00
On June 14, 1982, a claims adjuster for Pioneer Life, after reviewing the medical records calculated the maximum benefits available to Mrs. Moss under her medical insurance policy. The medical expenses submitted and the benefits paid in June 1982 are set forth in tabular form below:
MEDICAL PROVIDER BENEFITS PAID EXPENSES SUBMITTED
Singing River Hosp. $821.64 $1,114.62
Dr. Samuel Simmons 30.00 212.00
Mobile Infirmary - - 170.00
_______ _________
TOTAL $851.64 $1,496.62
The adjuster did not calculate any benefits toward the Mobile Infirmary bill of $170.00 for an echocardiagram test on February 10, (which, as shall be seen subsequently is the focal point of this action), in that, based upon her review of the records and claim forms, she believed the $170.00 bill was for professional component charges to analyze the results of an echocardiagram test performed on an in-patient basis at Singing River Hospital on February 10th, and therefore was not a covered benefit under the policy. This belief stemmed from the fact that both the date of discharge from Singing River Hospital and the date the bill from Mobile Infirmary were February 10, 1982. Additionally, the discharge summary from Singing River Hospital included as a component the echocardiagram test. Unbeknownst to Pioneer Life, what had actually transpired was that Mrs. Moss was discharged from Singing River Hospital on February 10th, whereupon she went directly to the Mobile Infirmary in Mobile, Alabama. On that same date, Mobile Infirmary performed the echocardiagram on an out-patient basis, (which Pioneer Life now admits, and at the trial below admitted, to be a covered expense under the policy provisions up to $100.00).
Due to Pioneer Life's failure to make payment on the Mobile Infirmary bill, Mrs. Moss began to receive letters and phone calls demanding payment, first from Mobile Infirmary and subsequently from bill collectors. *929 In an effort to resolve the situation, Mrs. Moss contacted Pioneer Life on several occasions through letters and by telephone inquiring as to the status of the claim. Pioneer Life's response was that the maximum benefits available under the policy had already been paid. Thereafter, Mrs. Moss retained counsel to assist her in procuring payment of her outstanding debts. Said counsel sent three (3) letters to Pioneer Life regarding Mrs. Moss, and Pioneer Life received said letters on December 7, 1982, January 4, 1983, and January 12, 1983. The first and second letters, simply put, requested that Pioneer Life advise Mrs. Moss of the status of the claim. The third letter informed Pioneer Life that their insured was being harassed for payment by a collection agency, and asked directly, "All I want to know from you is whether you are going to pay these long past due claims or not." Pioneer Life responded to each letter on December 23, 1982, January 24, 1983, and February 16, 1983. The three (3) response letters, in essence, stated the figures that can be found in the second table previously set out in this discussion, and that such amounted to the maximum benefit allowed. Said letters contained a standard closing clause that, "We sincerely hope this letter answers your questions in regard to this; however, if you should have further questions or comments regarding this claim, please contact us."
On July 22, 1983, Mrs. Moss filed her complaint against Pioneer Life seeking contract damages in the amount of $248.00, (including an element of the Singing River bill not an element of this appeal), and punitive damages in the amount of $150,000.00. It was at this time that Pioneer Life first learned of the fact that Mrs. Moss had been discharged from Singing River Hospital on February 10, 1982, and taken directly to Mobile Infirmary, where the echocardiagram was performed on an out-patient basis. Pioneer Life immediately offered to pay the entire balance of any outstanding medical bills, plus expenses and reasonable attorneys' fees up to that point. The offer was refused. Pioneer Life then filed an answer admitting it owed $100.00 and tendered such to the clerk of the court.
On November 9, 1984, a trial on the merits was heard before a jury in the Circuit Court of George County, Mississippi, for which a judgment was rendered against Pioneer Life in the sum of $100.00 actual damages for the amount owed under the policy for the out-patient treatment at Mobile Infirmary, and $50,000.00 as punitive damages. From this adverse decision, Pioneer appeals, making six (6) assignments of error, of which only one (1) merits discussion.
I. DID THE LOWER COURT ERR IN SUBMITTING TO THE JURY THE ISSUE OF PUNITIVE DAMAGES?
This Court has grappled with the problem of the submission of the issue of punitive damages to the jury ever since Standard Life Insurance Company of Indiana v. Veal, 354 So.2d 239 (Miss. 1977) was handed down. In Veal, this Court stated, in regard to the imposition of punitive damages in a bad faith context that:
If an insurance company has a legitimate reason or an arguable reason for failing to pay a claim, punitive damages will not lie.
Veal, at 248. But, the question of the proper manner in which to submit to the jury the punitive damages issue went unanswered.
Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss. 1983) answered the question, to some extent, by holding that the trial court must first determine as a matter of law whether the issue of punitive damages should be submitted to the jury. In McGee, the Court held, in pertinent part, that:
At the conclusion of the evidence, the trial court at the request of the defendant, should determine whether or not, as a question of law, the insurer had a legitimate or arguable reason to deny payment of the claim... . If the trial court finds that such a legitimate or arguable claim existed, as shown by the evidence, then the trial court should refuse to grant a punitive damages instruction even though it submits to the jury *930 the question of whether or not the insurer owed the compensatory claim for which proofs of loss were filed.
McGee, at 809. Therefore, the issue of punitive damages should not reach the jury unless reasonable minds could differ as to the insurance company having a legitimate or arguable reason for denying the claim. Blue Cross & Blue Shield of Mississippi, Inc. v. Campbell, 466 So.2d 833 (Miss. 1984).
Still, even with the guidance of the above cited authorities, there remains to this day much confusion and misunderstanding in the lower courts as to when the punitive damage issue is to be presented to the jury based upon the "legitimate or arguable reason" standard. In trying to remedy this situation, we find guidance and authority in State Farm Fire and Casualty Co. v. Simpson, 477 So.2d 242 (Miss. 1985), where we stated, in addressing this standard that:
We are of the opinion the term "legitimate or arguable reason," although spawning much comment in our cases and in briefs and arguments of counsel, is nothing more than an expression indicating the act or acts of the alleged tortfeasor do not rise to the heightened level of an independent tort. Additionally, the very term expresses the holding of this Court establishing a distinction between ordinary torts, the product of forgetfulness, oversight, or the like; and heightened torts which are the product of gross, callous or wanton conduct, or, if intentional are accompanied by fraud or deceit. (citation omitted) (emphasis added)
Simpson at 250.
As previously mentioned, Standard Life v. Veal, supra, provides that if an insurance company has a legitimate or arguable reason for denying a claim, then such will utterly preclude the submission of the issue of punitive damages to the jury But, the contrary of this statement is not true. The fact that an insurance company lacks a legitimate or arguable reason for denying a claim does not automatically lead to the conclusion that the issue of punitive damages should be submitted to the jury. Simpson at 250. In the absence of an arguable reason for denying a claim, the trial court still must determine whether there is a jury issue as to the insurer's having committed a willful or malicious wrong, or acted with gross or reckless disregard for the insured's rights. If not, the question of punitive damages should not go to the jury.
Returning to the case presently at bar, we observe that Pioneer Life, at the close of all evidence, tendered to the lower court as its first instruction a peremptory instruction that the jury find for Pioneer Life.[1] The trial court refused the instruction, and determined that the issue of punitive damages should be presented to the jury. The facts relevant to this determination have been previously stated, but to recapitulate, the adjuster testified that she failed to realize that the echocardiogram was actually performed at Mobile Infirmary as an out-patient on February 10, 1982 due to the fact that the hospital chart showed that Mrs. Moss was still confined at Singing River Hospital on that date. Additionally, Pioneer Life lists several additional factors which would amount to a "legitimate or arguable reason" for believing the echocardiogram was performed at Singing River Hospital and only analyzed at Mobile Infirmary: 1) The claim form signed by Mrs. Moss on March 24, 1982 did not list Mobile Infirmary as a place of treatment; 2) The Singing River Hospital bill confirms that Mrs. Moss was hospitalized there on February 10, 1982 the same day the echocardiogram was performed; 3) The Singing River Hospital bill shows an in-patient charge of $269.60, leading Pioneer Life to believe that such charge was for performing the echocardiogram; 4) The Mobile Infirmary bill lists eleven (11) x-ray department radiologists and five (5) clinical pathologists, causing Pioneer Life to believe such was for professional component charges; 5) The discharge summary of Singing River Hospital lists the echocardiogram, *931 states the results, but not the location of its taking, and bases the discharge diagnosis on the test (Pioneer Life claims this factor to be the most conclusive).
It is upon a consideration of the above factors that Pioneer Life argues its failure to pay the claim of Mrs. Moss was a mere clerical error and an honest mistake not warranting the imposition of punitive damages. Consolidated American Life Insurance Company v. Touche, 410 So.2d 1303, 1306 (Miss. 1982). As to the denial of Mrs. Moss's claim during January 1983, when counsel for Mrs. Moss wrote three (3) letters to Pioneer Life inquiring as to the nonpayment of the claim, it must be remembered that each of these letters was answered fully by Pioneer Life to the effect that the maximum benefits available had been paid, (for a more complete discussion of the contents of these letters, can be found in the FACTS, supra, portion of this opinion). Pioneer Life continued to deny coverage until it learned, with the initiation of this action, that Mrs. Moss had in fact been an out-patient at Mobile Infirmary in Mobile, Alabama.
Under the above facts, there was no evidence of gross, callous, or wanton conduct on the part of Pioneer Life toward its insured that would present a jury question on punitive damages and the lower court erred in submitting that issue to the jury.
AWARD OF PUNITIVE DAMAGES IS REVERSED AND RENDERED; AWARD OF ACTUAL DAMAGES IS AFFIRMED.
ROY NOBLE LEE and HAWKINS, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.
SULLIVAN, J., specially concurring with written opinion joined by DAN M. LEE, PRATHER and ROBERTSON, JJ.
ROBERTSON, J., specially concurring with written opinion joined by PRATHER and ANDERSON, JJ.
ROBERTSON, Justice, concurring:
I concur in the result and join what has been written by Justice Sullivan, concurring specially with one exception.
There is not one word in our law that precludes a plaintiff in a bad faith refusal case recovering ordinary tort damages assuming, of course, proper proof. Such a remedy is implicitly recognized in Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829, 836 (Miss. 1979) and Bellefonte Insurance Co. v. Griffin, 358 So.2d 387 (Miss. 1978). See Peel v. American Fidelity Assurance Co., 680 F.2d 374, 376 (5th Cir.1982).
Bad faith refusal is a tort. Employers Mutual Casualty Co. v. Tompkins, 490 So.2d 897, 902, 906 (Miss. 1986); Aetna Casualty and Surety Co. v. Day, 487 So.2d 830, 832 (Miss. 1986); Weems v. American Security Insurance Co., 486 So.2d 1222, 1226 (Miss. 1986). Whoever heard of a tort where the plaintiff was not entitled to recover such damages as he may prove caused by defendant's tortious conduct? Such damages ought include economic loss (including attorney fees and legal expenses reasonably and necessarily incurred) and emotional distress. See Curtis, Damage Measurements For Bad Faith Breach of Contract: An Economic Analysis, 39 Stanford L.Rev. 161 (1986); Blue Cross & Blue Shield of Mississippi v. Campbell, 466 So.2d 833, 850 (Miss. 1984) (Robertson, J., concurring); see also Bankers Life & Casualty Co. v. Crenshaw, 483 So.2d 254, 298-99 (Miss. 1984) (Robertson, J., dissenting).
Because Plaintiff Moss did not plead or prove extra-contractual actual damages, I concur in the judgment announced by the majority.
PRATHER and ANDERSON, JJ., join this opinion.
SULLIVAN, Justice, specially concurring:
I concur with the majority in the result reached but write separately because it is my view that as between the plaintiff and the adjuster for the defendant, the burden *932 was upon the adjuster and not the defendant to investigate the question of the Mobile Infirmary claim much more thoroughly than the company did in this case.
When Mrs. Moss contacted the company on several occasions by letter and by telephone inquiring as to the status of the claim the company should have been placed on notice that further investigation by their adjuster was called for. Even if this were not the case when the company received three letters from counsel for Mrs. Moss, surely they should have known that further investigation was called for and it would have expended no great cost in finances or time for the adjuster to have checked with Mobile Infirmary rather than to maintain the arbitrary position that nothing further was due under the policy.
In my view in order to satisfy Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239 (Miss. 1977), in order to claim a legitimate or arguable reason for failing to pay the claim the company must do substantially more than was done here, to verify a claim made against it by one of its own policyholders. The duty of the company toward its policyholder requires more from the company than the facts of this record show.
Because of the "boiler plate" response of Pioneer Life to the claim of Mrs. Moss, Mrs. Moss was forced to endure phone calls first from Mobile Infirmary and subsequently from bill collectors demanding payment of a claim covered by her insurance. Furthermore, Mrs. Moss was required to continuously contact Pioneer Life asking them to pay a claim which they legitimately owed and not only refused to pay but refused to thoroughly investigate. Mrs. Moss was put to the further expense of employing counsel who also sought to get Pioneer Life to do that which the company had already contracted to do. Such cavalier treatment of a policyholder with a claim against a company cannot be said to be good faith dealing and certainly cannot give rise to a legitimate or arguable reason for failing to pay a claim.
I concur with the majority that this is not an appropriate case for punitive damages not because of Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss. 1983); Standard Life Insurance Co. of Indiana v. Veal, supra; or State Farm Fire and Casualty Co. v. Simpson, 477 So.2d 242 (Miss. 1985). I concur because when Pioneer Life finally learned what it should have learned when the claim was initially filed, that Mrs. Moss had been discharged from Singing River Hospital on February 10 and taken directly to Mobile Infirmary the company immediately offered to pay the entire balance of any outstanding medical bills plus expenses and attorneys fees up to that point.
In my view this case illustrates the need for a tier of damages that lies between contract damages and punitive damages. This concept has been discussed by this Court previously in other opinions[1] but it is not, though perhaps it should be, the law in this State. I consider this case a classic one for the awarding of damages less than punitive but more than actual. Because I recognize that such is not the law in this jurisdiction and for the reasons set forth hereinabove, I therefore concur in the result reached by the majority.
DAN M. LEE, PRATHER and ROBERTSON, JJ., join this opinion.
NOTES
[1] The comments to Miss.R.Civ.P. 50 provide that the former peremptory instruction practice has been superseded by the motion for a directed verdict.
[1] See Blue Cross & Blue Shield of Miss., Inc. v. Campbell, 466 So.2d 833, 847 (Miss. 1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1786074/ | 412 S.W.2d 29 (1967)
Anna Goldlustova FRANCIS, Petitioner,
v.
Garnet P. FRANCIS, Jr., Respondent.
No. A-11768.
Supreme Court of Texas.
March 1, 1967.
Rehearing Denied March 29, 1967.
*30 Gerald B. Shifrin, El Paso, for petitioner.
Doyle H. Gaither, El Paso, for respondent.
CALVERT, Chief Justice.
Respondent and petitioner were formerly husband and wife. Their marriage was dissolved by a judgment of a district court of El Paso County, entered on May 5, 1959, which granted a divorce to petitioner on her cross-action. The judgment also approved a property settlement agreement entered into by the parties.
The property settlement agreement was executed by respondent and petitioner on April 29, 1959. It dealt with several matters. Only one provision is of concern to us in this case. By that provision petitioner agreed to relinquish all right, title and interest in and to the property of respondent in consideration of his agreement to pay her the sum of $15,000, the obligation to be evidenced by a non-interest bearing promissory note. The $15,000 obligation was payable in monthly installments of $50 each for the first eight months and $100 each thereafter until it was fully paid. The first $7,500 of the obligation was to be paid regardless of petitioner's marital status, but the remaining $7,500 was to be paid only if petitioner remained unmarried. The 1959 judgment found the property settlement agreement to be fair, just and reasonable and ordered it "approved and filed herewith."
This suit for a declaratory judgment was filed by respondent. He had paid $7,500 on the obligation before he filed the suit. He alleged that the provision in the settlement agreement for payment of the remaining $7,500 "is nothing more than an agreement to pay alimony and is contrary to the law of the State of Texas, contravenes public policy of the State of Texas, and is void." He prayed that the court declare "that the conditional $7,500 * * * is unenforceable and void and that the note * * * be declared void." The trial court denied respondent the relief he sought, and by its judgment the court declared the property *31 settlement agreement, the note, and the 1959 judgment approving the agreement to be valid. At the request of respondent, the trial judge filed findings of fact and conclusions of law. Among other things, the trial judge found and concluded that at the time of the divorce respondent received all of the community property of the parties, including $2,500 in cash; that neither the agreement of respondent to pay $15,000, the note for that sum, nor the judgment approving the agreement imposed an obligation to pay alimony; that petitioner had never remarried, and that respondent was estopped to assert invalidity of the instruments. The court of civil appeals reversed the judgment of the trial court. In so doing, however, it did not decide whether the agreement and the note were valid or invalid; it declared only that the portion of the 1959 judgment which approved the provision for payment of $15,000 required the payment of alimony and was void. Tex. Civ.App., 407 S.W.2d 295.
The declaratory judgment rendered by the court of civil appeals does not fully dispose of the questions in the case. For, assuming for the moment that the portion of the 1959 judgment which approved the provision in the settlement agreement obligating respondent to pay $15,000 was, in effect, an order to pay alimony and therefore void, the question still remains whether the contractual obligation is an obligation to pay alimony and equally void. Before a correct answer to this question can be formulated, we must answer a preliminary question: What is "alimony"?
Courts have ascribed to the word "alimony" different legal meanings, the meaning given usually being attuned to the particular fact situation with which the particular court was dealing. See cases cited in 3 Words and Phrases p. 178, et seq. (Perm.Ed.1953). The meaning which we deem to be correct and which is most comprehensive is found in the following excerpt from 24 Am.Jur.2d 641, Divorce and Separation § 514:
"In the English law the term `alimony' was originally used to signify the allowance judicially granted to a wife for support during a divorce a mensa et thoro [divorce from bed and board] or during separation, but it has come generally, in legal parlance, to include also the provision or allowance, whether periodical or in gross, judicially made to a wife upon an absolute divorce * * *. Consequently, every provision in a judgment of divorce or separation made solely for this purpose [food, clothing, habitation and other necessaries for support] is to be regarded as alimony, whether expressly designated as such or not, and irrespective of whether it requires payment of money at intervals or in a gross sum * * *."[1]
The central idea to be drawn from the excerpt is that to be alimony the allowance to or provision for the wife's support, whether during pendency of the suit, during a divorce from bed and board (divorce a mensa et thoro), or after an absolute divorce (divorce a vinculo matrimonii), must have been made by a judgment or decree of a court. That this is so finds support in a host of decided cases. Examples: "Generally the term `alimony' is used to designate payments which the husband makes to the wife under a court order for her support pending a divorce action or after a divorce has been granted." Miller v. Miller, 88 Idaho 57, 396 P.2d 476, 479 (1964). "Alimony is an allowance in a decree of divorce, carved out of the estate of the husband for the support of the wife." Adler v. Adler, 373 Ill. 361, 26 N.E.2d 504, 508 (1940). "Alimony, as that term is used in the law, is an allowance made for the support of the wife out of the estate of the husband by order of court in an appropriate proceeding, and is either temporary or permanent." Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240, 242 (1964). "Alimony is but the judicial admeasurement of the husband's *32 obligation to maintain his former wife periodically out of his income." Madden v. Madden, 136 N.J.Eq. 132, 40 A.2d 611, 614 (1945). "Alimony is an allowance which, by order of the court, the husband is compelled to pay the wife from the date he has been legally separated or divorced, for her support and maintenance." Henderson v. Henderson, 37 Or. 141, 60 P. 597, 599, 61 P. 136, 48 L.R.A. 766 (1900). "Comprehensively considered, that term [alimony] is generally used and understood by the courts and elsewhere as meaning an allowance to be paid by the husband to the wife for her support and maintenance, and often their dependent children, pursuant to an order or decree by the court in a divorce proceeding." Van Dommelen v. Van Dommelen, 218 Mich. 149, 187 N.W. 324, 325 (1922).
The foregoing authorities exclude the idea that a mere contractual obligation of a husband to make future periodic or lump sum payments for the support and maintenance of his wife is a provision for alimony. As a matter of fact, courts of other jurisdictions which recognize and authorize alimony after a divorce is absolute, as the law of this State does not, make a distinction between alimony and contractual obligations. Solomon v. Solomon, 149 Fla. 174, 5 So. 2d 265 (1942); Mesler v. Jackson Circuit Judge, 188 Mich. 195, 154 N.W. 63 (1915); Miller v. Miller, 88 Idaho 57, 396 P.2d 476 (1964); Hayes v. Hayes, 191 Ga. 237, 11 S.E.2d 764 (1940); Dickey v. Dickey, 154 Md. 675, 141 A. 387, 58 A.L.R. 634 (1928); Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964). The question has usually arisen in contempt proceedings against a husband based on his failure to make alimony payments as directed in a prior divorce decree. In Solomon a separation agreement between husband and wife obligated the husband to make monthly support payments. The divorce decree contained a recital that the agreement "is hereby approved and ratified in all respects and incorporated by reference into this Decree and made a part hereof." The Supreme Court of Florida held that the decree so fully incorporated the agreement that the payments constituted alimony and were enforceable by contempt proceedings. The same holding was made by the Supreme Court of Michigan in Mesler in which the divorce decree specifically ordered payment of an agreed sum for support of the wife. In Miller, on the other hand, the Supreme Court of Idaho upheld the right of a divorced wife to recover monthly sums which the husband had obligated himself in a separation agreement to pay "as alimony" against a contention that the obligation was neither alimony nor valid since it had not been included in the divorce decree. In Bunn the Supreme Court of North Carolina had occasion to distinguish between consent judgments for the payment of subsistence to the wife in which the divorce decree merely approves the agreement and those in which the divorce decree adopts the agreement as the court's judgment and orders the payments made. The court said judgments of the first type were enforceable only as ordinary contracts whereas the latter type were enforceable by contempt proceedings.
The statutes and public policy of this State do not sanction alimony for the wife after a judgment of divorce has been entered. See McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 747 (1961); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 75 A.L.R. 1305 (1931); Art. 2328b-1, Sec. 2(6); Art. 2328b-3, Sec. 7.[2] In this State as in other states, alimony is an allowance for support and sustenance of the wife, periodic or in gross, which a court orders a husband to pay; but in this State, unlike in other states, such support payments may be ordered only "until a final decree shall be made in the case." Art. 4637; Cunningham v. Cunningham, supra. Support payments ordered to be made after divorce from the income from the husband's *33 property, although considered alimony in many jurisdictions, is not considered alimony in this State. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Keton v. Clark, 67 S.W.2d 437 (Tex.Civ. App.Waco 1933, writ refused). When its true meaning is distilled from the statutes and the court decisions of this State, alimony which contravenes the public policy of the State is only those payments imposed by a court order or decree on the husband as a personal obligation for support and sustenance of the wife after a final decree of divorce.
From what has been said, it follows that obligations assumed by the husband in separation agreements or contracts to make payments for the support of the wife after a divorce decree becomes final, are not obligations to pay alimony and do not violate the public policy of this State. The contractual obligation of respondent to pay to petitioner the remaining $7,500 of his $15,000 obligation and his promissory note evidencing his obligation are, therefore, not void as being in violation of the public policy of this State. Obligations of this type may be void or unenforceable for other reasons but none are urged here for so declaring.
There remains the question of the validity of the provision of the judgment of May 5, 1959, which approved the agreement of the parties. The provision reads:
"It further appearing to the Court that the parties hereto have arrived at a community property settlement agreement which the Court has examined and finds to be fair and reasonable and just, the Court hereby ORDERS it APPROVED and filed herewith."
On the face of it, the provision did not purport to order respondent to pay the sum of $15,000 to petitioner in installments after the judgment became final; it merely approved a property settlement agreement which the parties themselves had made. While Art. 4638 directs courts granting divorces to "order a division of the estate of the parties in such a way as the court shall deem just and right," it is not the purpose of the statute to proscribe amicable division and settlement by the parties. And if as a part of their settlement the parties agree that the husband will make support payments to the wife after a divorce is granted, approval of the agreement by the court should not be held to invalidate it as alimony. Amicable settlement by the parties of their property rights should be encouraged, not discouraged. The agreement will then have whatever legal force the law of contracts will give to it. See Ex Parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962).
A number of decisions of courts of civil appeals beginning with McBride v. McBride, 256 S.W.2d 250 (Tex.Civ.App.Austin 1953, no writ) have held that contracts made in contemplation of divorce which impose a personal obligation on a husband to make payments for support of his wife after divorce are void as against the public policy of this State. They need not be cited. In so far as they conflict with what we have said here, they are disapproved. In McBride the trial court ordered the divorced husband to pay certain monthly sums for the support of the wife after divorce. Only the validity of that part of the judgment, not the validity of the agreement between the parties, was in issue. The opinion indicates that the court thought the agreement of the husband to pay was also alimony and void. From what we have said in this opinion, it is obvious that we do not agree with that conclusion.
The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.
NOTES
[1] Emphasis ours throughout.
[2] All references to articles are to Vernon's Ann.Texas Civil Statutes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1111879/ | 512 So. 2d 839 (1987)
Lewis BLOXOM, et ux.
v.
Lonnie BLOXOM, et al.
No. 86-C-2108.
Supreme Court of Louisiana.
September 9, 1987.
*840 Francis Gowen, Jr., Shreveport, for applicant.
*841 Charles Salley, Brian Smith, Lunn, Irion, Johnson, Salley & Carlisle, Shreveport, for respondent.
DENNIS, Justice.
In this products liability case the catalytic converter-exhaust system of a 1980 Pontiac Trans Am Firebird parked in a barn ignited hay under the vehicle causing a fire and the destruction of plaintiffs' barn and other property. We are called upon to decide whether the car was in "normal use", whether the owner's manual gave "adequate warning" of the catalytic converter-exhaust system's incendiary propensity, and whether there was a causal connection between any deficiency in the warnings and the plaintiffs' damages. After a bench trial the district court found that the fire in fact had been caused by the car's converter-exhaust system and awarded the plaintiffs damages. The court of appeal reversed, holding that the vehicle was not in normal use when it ignited the hay over which it was parked. We affirm. "Normal use" of a product encompasses all reasonably foreseeable uses and misuses of the product. Whether a particular warning was "adequate" depends on all relevant considerations including the severity of the danger, the likelihood of successful communication of the warning to foreseeable consumers, the intensity and form of the warning, and the cost of improving the strength or mode of the warning. Although the plaintiffs proved that the car was in "normal use" and that the manufacturer failed to give an "adequate warning", plaintiffs' case failed because the manufacturer rebutted the presumption of a causal connection between the lack of an adequate warning and the damages by showing that an adequate warning in the owner's manual would have been futile because the owner never read the manual before parking the car over hay.
Facts
On June 24, 1982, Lonnie Bloxom parked his 1980 Trans Am Firebird in his parents' hay barn on their dairy farm in Frierson, Louisiana. Lonnie, who was 22 years old and had completed the 9th grade in formal education, worked for his parents on the farm. Lonnie had just driven his car from his home in Keithville at a maximum speed of 60 mph for approximately 20 minutes. The t-top on the car had been removed and rain was threatening, so Lonnie decided to move the car into the barn rather than put the t-top back into place. When Lonnie got out of the car, he noticed that the hay reached the bottom of the door on the driver's side. Hay bales were stored on the sides of the barn and hay was scattered over the dirt floor in varying depths. Lonnie's girlfriend, who was visiting, noticed some time later that the barn was on fire. The fire department was called, but the barn, the hay stored in the barn, attached calf pens, and the car were destroyed.
An investigator from the State Fire Marshall's Office, Daniel Snow, was sent out on June 25, to determine the cause of the fire. Snow ruled out arson and determined that the fire was caused by the car's catalytic converter or some other part of the exhaust system.
Lonnie's parents, Mr. and Mrs. Lewis Bloxom, the owners of the barn, hay and calf pens, filed suit on December 22, 1982 against their son; his insurer, Allstate Insurance Company; and Pontiac, a division of General Motors Corporation (GM). The Bloxoms' asked for damages caused by the negligent actions of Lonnie Bloxom and by the unreasonably dangerous condition of the Pontiac Firebird's catalytic converter or some other part of the car. A third party demand was filed against Lonnie Bloxom and his insurer by GM which alleged that the damage was caused by the negligence of Lonnie Bloxom and prayed for full indemnity or contribution of a virile share of any judgment rendered against GM.
Lonnie and Allstate settled with the Bloxoms' before trial for the policy limit of $5,000.00. The claims against Lonnie and Allstate by the Bloxoms' were then dismissed by the court. A motion for summary judgment on the third party demand against GM was filed by Lonnie and Allstate and granted by the trial court on April 25, 1983.
*842 At the trial, Mr. Snow testified that he had systematically ruled out other possible causes and that the most probable cause of the fire was the catalytic converter or some other part of the hot exhaust system. Gonzales, a district sales manager for GM, testified that he was sent to inspect the site of the fire one and one-half years after the incident. Gonzales, by observing the exterior of the catalytic converter on the burned out car, determined that the converter was not malfunctioning or defective. He also took a sample of the hay from the scene for later analysis. Zimmerman, a senior staff analyst for GM, was called as defendant's expert witness. Zimmerman reviewed test research conducted by GM on catalytic converters and other components of the exhaust system. He testified that, in his opinion, the catalytic converter did not get hot enough to ignite hay and therefore could not have caused the fire. Zimmerman postulated other possible causes for the fire, but also admitted that parts of the exhaust system could have caused the fire if they had come in contact with combustible material. The catalytic converter and the tailpipe on the Firebird were six and one-half inches from the ground, with the exhaust manifold being located somewhat higher. Both Gonzales and Zimmerman testified that GM placed a notice in the owner's manual warning owners about the dangers of a hot exhaust system, even though the danger of the hot system was well known and had existed since 1895. Zimmerman also testified that in 1976 and 1977 California required that warnings be placed in the car's sun visor while the state investigated the possible role of the catalytic converter in the increase of forest fires, but the practice was discontinued when California repealed the visor placement requirement. In Zimmerman's opinion, other warning or safety devices to alert the driver to overheated exhaust systems were either not feasible or did not work.
Lonnie testified that he was aware that exhaust systems get hot, but he did not know that the catalytic converter or other parts of the system could get hot enough to cause a fire. He also testified that he had not read the owner's manual and only referred to owner's manuals when something went wrong with the product.
After the trial on the merits, the trial court found that it was more probable than not that: (1) the fire was started by the catalytic converter or some other part of the exhaust system coming in contact with the hay, (2) the exhaust system was unreasonably dangerous to normal use, (3) the plaintiffs' damages were caused by the reason of that defect, and (4) Lonnie Bloxom was negligent in parking the car over hay and in failing to read the owner's manual. Therefore, GM and Lonnie were each found to be responsible for 50% of the fault and consequent damages. Damages were established at $18,900.00, less 50% attributable to Lonnie Bloxom's fault, plus witness fees totaling $750.00.
GM appealed. The court of appeal reversed. Bloxom v. Bloxom, 494 So. 2d 1297 (La.App. 2d Cir.1986). The appellate court agreed with the trial court that the catalytic converter or some other part of the exhaust system had caused the fire, but did not find that the car was unreasonably dangerous, holding: (1) the car was not unreasonably dangerous per se because the utility of the car far outweighed the risk, especially with the warning contained in the owner's manual, (2) the car was not defective in design because: (a) the danger in fact did not outweigh the utility of the product, and (b) alternative designs or products were not feasible, (3) the car was not unreasonably dangerous because of a failure to warn adequately because the manufacturer is only required to warn of dangers inherent in normal use and the parking of the car over deep hay was not normal or foreseeable use, but rather a misuse. Because the court of appeal decided that the vehicle was not in normal use, it was not necessary that the court consider whether the warnings were adequate or whether any deficiency therein caused plaintiffs' damages.
We granted certiorari to review the court of appeal's decision. 497 So. 2d 1006. After considering the briefs and arguments of parties we determine that the court of appeal reached correct results in deciding *843 that the Firebird was not unreasonably dangerous per se or unreasonably dangerous in design. Consequently, our written discussion will consider only whether the Firebird was in normal use, whether the manufacturer gave an adequate warning, and whether there was a causal connection between the failure to give an adequate warning and the damages.
The trial court found that the exhaust system in Lonnie Bloxom's car as manufactured, and particularly as it related to the catalytic converter, was unreasonably dangerous to normal use. However, we are unable to give this finding the usual deference attributed to the decisions of triers of fact at the trial level. The trial court's reasons do not articulate the theory or the evidentiary facts upon which its conclusion is based. Nor can we infer from the trial court's reasons and the record the theory under which the trial court found the product to be unreasonably dangerous to normal use. Although we may accord deference to a decision of less than ideal clarity if the trial court's path may reasonably be discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record, we will not supply a finding from the evidence or a reasoned basis for the trial court's decision that it has not found or that is not implied. Cf. Save Ourselves v. La. Environ. Cont. Com., 452 So. 2d 1152 (La.1984); Giallanza v. LPSC, 412 So. 2d 1369 (La. 1982); Baton Rouge Water Works v. Louisiana Public Service Com'n., 342 So. 2d 609 (La.1977); cf. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S. Ct. 438, 42 L. Ed. 2d 477 (1974); 3 K. Davis, Administrative Law Treatise § 14:29 (1980) at 130.
Normal Use
In order to recover from a manufacturer, the plaintiff must prove, among other essentials, that his damage resulted from a condition of the product that made it unreasonably dangerous to normal use. Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La.1986); Hunt v. City Stores, 387 So. 2d 585 (La.1980); Chappuis v. Sears, Roebuck & Co., 358 So. 2d 926 (La.1978); Weber v. Fidelity & Casualty Ins. Co. of N.Y., 259 La. 599, 250 So. 2d 754 (1971). "Normal use" is a term of art that includes all intended uses, as well as all foreseeable uses and misuses of the product. Rey v. Cuccia, 298 So. 2d 840 (La. 1974); Branch v. Chevron Oil Co., Inc., 681 F.2d 426 (5th Cir.1982); LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir.1980).
A manufacturer is required to provide an adequate warning of any danger inherent in the normal use of its product which is not within the knowledge of or obvious to the ordinary user. Halphen, supra, at 115. In the context of the manufacturer's duty to warn of the dangers in the use of a product, the manufacturer is obligated to anticipate the environment in which the product will be used and to give notice of the potential risks arising from foreseeable use in the foreseeable environment. See Conder v. Hull Lift Truck, Inc., 405 N.E.2d 538 (Ind.Ct.App.1980). Although a manufacturer markets a product for an intended use, in considering various instructions and warnings, a manufacturer may not simply close his eyes to hazards associated with foreseeable misuse of the product. When product misuse and its attendant risks are reasonably foreseeable, the manufacturer is in the best position to avoid product related injuries by giving an adequate warning. Id. at 546. See also Sales, The Duty to Warn and Instruct for Safe Use In Strict Tort Liability, 13 St. Mary's L.J. 521, 533-38 (1981).
Applying these precepts to the facts here, we conclude that the Firebird was being put to a foreseeable use or misuse at the time of the conflagration. Certainly GM should have expected that its automobile would be used in rural environments near livestock and haybarns by farmers and dairyworkers. The car also was designed and marketed with an intended and recognized appeal to youthful drivers, a class whose high jinks might well include parking in barns for less prudent reasons than sheltering an expensive motor vehicle. Furthermore, from our review of the record it appears that the barn was open on *844 three sides, to some extent resembling a carport designed for the protection of automobiles. The manufacturer must also concede that it was foreseeable that the automobile would be driven, idled and parked over dead grass, leaves and other combustible material. Otherwise, the company would not have twice placed a safety instruction concerning this use or misuse in its owner's manual. That such uses were to be anticipated is borne out by the court of appeal's observation that "thousands of cars [are] parked daily in yards, grassy areas beside filled parking lots, and on the sides of roads near the sites of outdoor recreational areas such as fishing, camping or hunting sites." 494 So.2d at 1304. See also, Dalton v. Toyota Motor Sales, Inc., 703 F.2d 137 (5th Cir.1983) (grassy highway neutral ground ignited by Toyota converter). Moreover, we do not think that such reasonably foreseeable uses or misuses, if indeed they are misuses, abruptly become unforeseeable when the grass or hay reaches six inches in height. Given the lack of any reference to the height of grass in the owner's manual and the general ignorance of the hot converter-exhaust danger on the part of the driving public, we conclude that driving, idling or parking over six inch grass or hay is equally as foreseeable as motoring on shorter herbage.
Adequacy of Warning
Whether a particular warning was adequate is a question for the trier of fact. Stapleton v. Kawasaki Heavy Industries, Ltd., 608 F.2d 571, 573 (5th Cir. 1979); Brownlee v. Louisville Varnish Co., 641 F.2d 397, 400 (5th Cir.1981); Dougherty v. Hooker Chem. Corp., 540 F.2d 174, 179 (3d Cir.1976); LeBouef v. Goodyear Tire & Rubber Co., 451 F. Supp. 253, 257 (W.D.La.1978); Berry v. Coleman Systems Co., 23 Wash.App. 622, 596 P.2d 1365, 1369 (1979). The determination of whether a warning is adequate depends upon a balancing of considerations including, among other factors, the severity of the danger, Marshall v. Beno Truck Equipment, Inc., 481 So.2d 1022,1032, (La. App. 1st Cir.1985) writ den., 482 So. 2d 620 (1986); the likelihood that the warning will catch the attention of those who will foreseeably use the product and convey the nature of the danger to them, Andries v. General Motors, 444 So. 2d 1180, 1183 (La. 1983); Bituminous Casualty v. Black & Decker, 518 S.W.2d 868, 872-73 (Tex.Civ. App.Ct.1974); Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 87 (4th Cir.1962); Wolfe v. Ford Motor Co., 6 Mass.App. 346, 376 N.E.2d 143, 147 (1978); Seley v. G.D. Searle, Inc., 67 Ohio St. 2d 192, 423 N.E.2d 831, 837 (1981); the intensity and form of the warning, Shell Oil v. Gutierrez, 119 Ariz. 426, 581 P.2d 271, 280-81 (App.Ct. 1978); Broussard v. Continental Oil Co., 433 So. 2d 354 (La.App. 3rd Cir.) writ den., 440 So. 2d 726 (1983); and the cost of improving the strength or mode of the warning. Dougherty v. Hooker Chem Corp., 540 F.2d 174, 179 (3rd Cir.1976); Broussard, supra at 358. See also cases touching on several of these factors: Chappuis, supra; Walker v. Maybelline, 477 So. 2d 1136 (La.App. 1st Cir.) writ den., 481 So. 2d 1333 (La.1986); Quattlebaum v. Hy-Reach Equipment, Inc., 453 So. 2d 578 (La.App. 1st Cir.) writ den., 458 So. 2d 474 (1984). See Sales, Duty to Warn and Instruct For Use In Strict Tort Liability 13 St. Mary's L.J., 521, 551-56 (1981); Restatement of Torts 2d § 402A, comment K.
In the present case neither the trial court nor the court of appeal reached the question of whether the warnings were adequate. We must decide the issue as a trier of fact from the record established by the evidence adduced at trial. Consequently, it is important to distinguish our discussion in this regard from statements of law, because it is possible that another reasonable trier of fact could reach a different conclusion, just as it is possible that we might reach a different result as a trier of fact in a catalytic converter-warning case presenting a dissimilar trial record.
The manufacturer's expert, an engineer employed full time by the company, testified that the severity of danger created by the risk of a fire caused by the Firebird's catalytic converter was not great. He testified that if the automobile's engine were *845 functioning properly, as Lonnie Bloxom's was, it was highly unlikely that the converter would generate enough heat to ignite hay or similar combustibles. He acknowledged that the operator's manual contained two warnings stating: "Do not drive through, idle, or park your car over combustible materials, such as grass or leaves. They could touch the hot exhaust system and ignite." However, he said that these warnings originally were included in the manual when a California law requiring warnings on sun visors was passed in response to reports that catalytic converters had caused forest fires. He testified that the law was later repealed and the sun visor warnings were discontinued; however, the company retained the manual warnings as a precaution against whatever risk might be caused by the converter. The plaintiffs did not call an expert witness on the subject of the characteristics and propensities of the catalytic converter-exhaust system.
Based on the record in this case, we conclude that the possibility of fire caused by driving, idling or parking the Firebird over combustible materials was not so great, when balanced with other pertinent factors, as to require a warning on the sun visor or elsewhere on the product itself. However, based upon the trial court's finding as to the cause of the fire and the testimony by the defendant's expert, we find that, although the possibility of such a fire is small, the potential consequences are quite serious, and that a warning commensurate with this danger should at least be set forth in the operator's manual.
Our examination of the operator's manual convinces us that it does not present warnings of sufficient clarity and intensity to adequately communicate the nature of the danger and the means of avoidance to those who will foreseeably use the automobile. The owner's manual consists of a booklet containing 106 pages divided into multitudinous sections of fine print. The manual's cover indicates that it contains "important operating safety and maintenance instructions." However, the safety instructions are not separated or designated as such in the manual. The sections containing the warnings at issue are reproduced as follows:
*846 STARTING AND OPERATING 2-5
Air Cleaner
Your car receives its power from a mixture of gasoline and air. The air enters the engine through the air cleaner. A dirty air cleaner element lessens engine performance and can waste fuel. So, its important to replace the air cleaner element (filter) at required intervals. (See the Maintenance Schedule folder.)
Air Conditioner
If your car has an optional air conditioner, use the "Economy" ("Vent" or "Heater") positions whenever possible. The air conditioner compressor is not on in these positions and the reduced engine load can improve fuel economy.
Engine Maintenance
An engine that is properly maintained will provide better fuel economy than one that is not. One misfiring spark plug will cut fuel economy quite a bit, and will make a difference in the amount of pollution emitted from your car.
Excess Weight
Fuel economy is related to the work the engine must do. The heavier the load, the more fuel it takes to run your car. Keep weight to a minimum by taking out any luggage or cargo when it is not needed.
Tire Inflation
Underinflation not only causes needless wear of the tires, but can also waste fuel. It's a good idea to check tire pressures often and, for the best fuel economy, keep your tires inflated to the highest pressures shown on the Tire Placard on the left door of your car.
Wheel Alignment
Improper toe alignment will cause the tires to roll at an angle, which will result in faster tire wear. It takes power to overcome this improper alignment which, in turn, wastes fuel.
STEERING COLUMN CONTROLS
ANTI-THEFT STEERING COLUMN LOCK
The anti-theft lock (ignition) on the right side of the steering column has five positions:
Accessory - You can use some electrical accessories when the engine is not running. To engage this position, push in the square-head key and turn the top of the key toward you.
Lock - Normal parking position. It locks the ignition and prevents normal use of the steering wheel and shift controls. The ignition key cannot be turned to "Lock" and removed until the shift lever is moved to "P" (Park) on automatic transmission models ("Reverse" on manual transmission models).
*847
Off - You can turn off the engine without locking the steering wheel and shift controls.
Run - Normal operating position.
Start - Cranks the engine.
If you have trouble turning the key to unlock the ignition, first be sure the key is pushed in all the way. Then, try to turn the steering wheel as hard as you can in the direction the wheels are turned. At the same time, turn the ignition key with as much effort as you can apply with your hand. Do not try to use a tool of any kind to apply more force on the lock knob, as this could break the knob.
NOTICE: Do not drive through, idle, or park your car over combustible materials, such as grass or leaves. They could touch the hot exhaust system and ignite.
PARKING
When leaving your car unattended:
Firmly apply the parking brake. Do not use the transmission as a substitute for the parking brake.
*848 SERVICE AND MAINTENANCE 5 1
CAUTION: As with any machine, take care when making any check, doing any maintenance, or making any repair, to avoid being injured. Note that some of the materials in this vehicle may be hazardous if used, serviced, or handled improperly. Improper or incomplete service could also lead to the car itself not working properly which may result in personal injury, or damage to the car or its equipment. If you have any question about carrying out some service, have the service done by a skilled mechanic.
REPLACEMENT FASTENERS
During car maintenance, any fasteners used to replace older ones must have the same measurements and strength as those removed, whether metric or customary. (The numbers on the heads of metric bolts and on the surfaces of metric nuts show their strength. Customary bolts use radial lines to show this, while most customary nuts do not have strength markings.) Fasteners taken from the car should be saved for re-use in the same spot when possible. Where a fastener cannot be used again, take care to choose a replacement that matches the old one. For information and help, see your Pontiac dealer.
CAUTION: This car has some parts dimensioned in the metric system as well as in the customary system. Some fasteners are metric and are very close in dimension to well-known customary fasteners in the inch system. Mismatched or incorrect fasteners can result in damage to the car or possibly personal injury.
MAINTENANCE SCHEDULE
For owner convenience, a separate folder has been provided with your car which contains a complete maintenance schedule. It also briefly describes the safety, emission control, lubrication, and general service that your car requires.
The Maintenance Schedule folder is supplemented by this section of the Owner's Manual, as well as a Warranty Information folder also furnished with your car. Read all three publications for a full understanding of your car's maintenance needs.
To obtain a replacement Maintenance Schedule folder, see the order form in the back of this manual.
CATALYTIC CONVERTER
The catalytic converter is an emission control device added to the exhaust system to reduce exhaust gas pollutants. The converter contains a ceramic material coated with noble metal catalysts. To prevent contamination of the catalysts, unleaded gasoline must be used. Unleaded gasoline also reduces combustion chamber deposits and exhaust system corrosion.
The catalytic converter requires the use of unleaded gasoline. Use of leaded gasoline will cause the converter to lose its effectiveness for emission control.
*849 SERVICE AND MAINTENANCE 5-2
To help prevent damage:
1. Keep your engine properly maintained. Engine malfunctions involving the electrical, carburetion, or ignition systems may result in unusually high converter and exhaust system temperatures. Do not keep driving your car if you detect engine misfire, noticeable loss of performance, or other unusual operating conditions. Instead, have it serviced promptly. A properly maintained engine will help avoid malfunctions that could damage the converter. It will also help provide good emission control and gasoline economy. See the Maintenance Schedule folder for information on inspecting and maintaining the engine, exhaust system, and other components.
2. Do not drive through, idle, or park your car over combustible materials, such as grass or leaves. They could touch the hot exhaust system and ignite.
3. Do not push or tow this car to start it. This could damage the converter.
Disregarding this information could damage the catalytic converter, the vehicle, or nearby property.
C-4 (COMPUTER CONTROLLED CATALYTIC CONVERTER) SYSTEM
Your car may have a special emission control system, called the "C-4 (Computer Controlled Catalytic Converter) System." All new cars purchased in California have this system. Some cars purchased elsewhere may have this system if the car has a 3.8 Liter V-6 engine. (To find out if your car has this system, turn the ignition key to "Run" but do not start the engine. If a "Check Engine" light on the instrument panel comes on, your car does have the C-4 System.)
The C-4 System monitors the exhaust stream with an oxygen sensor. Based on sensor signals, the electronic control module adjusts the carburetor air-fuel ratio as needed.
An oxygen sensor maintenance reminder is included in the instrument panel on models without a 5.0 Liter (Engine Code H) V-8 engine. The word "EMISSIONS" will appear in a window in the speedometer face at the intervals outlined in Section C of the Maintenance Schedule folder. The "EMISSIONS" indicator serves as a reminder that the oxygen sensor must be replaced with a new sensor. Such replacement is necessary in order to maintain the correct operation of the emission control system. The indicator must be reset as part of this service.
A "CHECK ENGINE" light on the instrument panel will come on during engine starting to let you know the bulb is working. (The light will stay on a short time after the engine starts.) If the light comes on while driving, service to the C-4 System may be required. Contact your Pontiac dealer as soon as possible for an inspection of the system.
Continued driving without having the C-4 System serviced could eventually cause damage to the emission control system.
*850 The safety instruction on page 847 is labeled "notice" and is included in a section entitled "STEERING COLUMN CONTROLS" and subtitled "Anti-theft Steering Column Lock". The safety instruction appears at the end of the section which is otherwise devoted to instruction on operation of the ignition switch and steering column lock. Therefore, a reader could easily overlook the "notice" or fail to construe it as a warning of a serious danger related to a hot catalytic converter.
Although the safety instruction on page 849 pertains to the exhaust system as well as the catalytic converter, it is placed in the midst of detailed instructions on operation of the catalytic converter. In fact, it follows a long section describing how malfunction of the engine or other parts may cause unusually high converter and exhaust system temperature. Thus, this section as a whole could easily lead the reader to believe that a car with a properly operating engine presents no risk of fire caused by a hot converter-exhaust system.
The safety instructions fail as adequate warnings because they are easily confused with operating or maintenance instructions. They do not make clear whether the danger exists with respect to properly operating engines. They are not separated, labeled or prominently displayed as warnings in a way commensurate to their importance to a user's safety. More important, the message they contain does not communicate with clarity that the hazard warned of is a danger to the user's life and limb, not just to the vehicle, and the warning lacks the directness and intensity commensurate with such a danger.
Causal Relationship
An essential element of the plaintiff's cause of action for failure to adequately warn of a product's danger is that there be some reasonable connection between the omission of the manufacturer and the damage which the plaintiff has suffered. Halphen, supra; Hebert v. Brazzel, 403 So. 2d 1242, 1244 (La.1981); Weber, supra; see, generally, Prosser & Keeton on Torts § 41; Twerski, Seizing the Middle Ground, 57 N.Y.U.L.Rev. 521, 562 (1982). Once a plaintiff proves that the lack of an adequate warning or instruction rendered the product unreasonably dangerous, his cause in fact burden is assisted by a presumption: when a manufacturer fails to give adequate warnings or instructions, a presumption arises that the user would have read and heeded such admonitions. Benoit v. Ryan Chevrolet, 428 So. 2d 489, 493 (La.App. 2d Cir.1982); Technical Chemical Co. v. Jacobs, 480 S.W.2d 602, 606 (Tex.1972); Wolfe v. Ford Motor Co., 6 Mass.App. 346, 376 N.E.2d 143 (1978); Nissen Trampoline Co. v. Terre Haute First National Bank, 332 N.E.2d 820, 826-27 (Ind.App.Ct.1975); Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1281-82 (5th Cir. 1974); Jackson v. Johns-Mansville Sales Corp., 727 F.2d 506, 523 (5th Cir. 1984). The presumption, may, however, be rebutted if the manufacturer produces contrary evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances. Cf. Magro v. Ragsdale Bros., Inc., 721 S.W.2d 832 (Tex.1986); See Note, Products Liability, 50 Tex.L.Rev. 577 (1972); McCormick on Evidence, 3d ed. § 343 (1984).
Assuming the role of the trier of facts once again, we conclude that because the plaintiffs proved that the manufacturer failed to give adequate warnings as to the Firebird's incendiary propensities, a presumption arose that the user, Lonnie Bloxom, would read and heed such a warning had it been given. However, when we examine the evidence, we find that the manufacturer has fulfilled not only its burden of producing contrary evidence but also its burden of persuading us that even an adequate warning in the owner's manual would have been futile in this case. Lonnie Bloxom testified on both direct and cross examination that he had not read any part of his owner's manual prior to the fire. He stated that it was not his practice to refer to an automobile operator's manual unless there was something wrong with the car. Accordingly, even if an adequate warning of the particular danger in this case had been given by a proper provision *851 in the manual, such a warning would have been futile because Lonnie Bloxom did not read the manual before parking his car over combustible materials.
For the reasons assigned, we conclude that while the plaintiffs proved most of the elements of their case, they failed to prove that the lack of an adequate warning was a cause in fact of the damages they sustained, and the court of appeal therefore reached the correct result. Accordingly, the court of appeal judgment is affirmed.
AFFIRMED.
LEMMON, J., concurs and assigns reasons.
MARCUS, J., concurs in the result.
DIXON, C.J., and WATSON, J., dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2445725/ | 349 S.W.2d 733 (1961)
J. C. RAINEY, Individually and as Next Friend of Minor, Susan D. Rainey, Appellant,
v.
Gilbert H. ISENBERG, Appellee.
No. 13902.
Court of Civil Appeals of Texas, San Antonio.
August 29, 1961.
*734 Guy Allison, Corpus Christi, for appellant.
Lyman & Sudduth, Corpus Christi, for appellee.
MURRAY, Chief Justice.
It appears from the transcript herein that summary judgment for the defendant was rendered on April 7, 1961. Plaintiff's motion for a new trial was filed prior to April 7, 1961, which was premature, but will be considered under the Provisions of Rule 306c, as having been filed on the same day, but after the judgment was rendered.
Under the provisions of Rule 329b, appellant had twenty days after the filing of the motion for a new trial within which to file an amended motion for a new trial. This he did not do, but on May 19, 1961, filed an amended motion for a new trial which was a nullity, because not filed within the time prescribed by Rule 329b.
Appellee's original motion for a new trial was overruled by operation of law, forty-five days after April 7, 1961, which was on May 22, 1961.
Under the provisions of Rule 386, plaintiff below who is appellant here, would have had sixty days from May 22, 1961, within which to tender the record to this Court. Thus his last day for filing the record in this court was July 21, 1961. It was tendered here on July 25, 1961, and was filed through inadvertence, but such filing was not authorized by law.
Appellant did not timely file a motion for enlargement of time within which to file the record here under the provisions of Rule 386, Texas Rules of Civil Procedure.
Under the holding of the Supreme Court in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587, this court has no jurisdiction of this cause other than to dismiss it because the record was not timely filed.
The motion of appellee to dismiss is granted and the cause dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1903949/ | 29 N.J. 511 (1959)
150 A.2d 520
ARTHUR C. SCHULTZE, PLAINTIFF-PETITIONER,
v.
ROBERT WILSON, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
April 27, 1959.
Messrs. Durand, Ivins & Carton for the petitioner.
Messrs. Wilentz, Goldman, Spitzer & Sills for the respondent.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3100648/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00068-CV
Ismael ALDABA,
Appellant
v.
Claudia Patricia OYERVIDES,
Appellee
From the County Court at Law, Val Verde County, Texas
Trial Court No. 3143CCL
Honorable Sergio J. Gonzalez, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE ANGELINI, AND JUSTICE MARION
In accordance with this court’s opinion of this date, the agreed motion to dismiss appeal is
GRANTED, and this appeal is DISMISSED. Costs of the appeal are taxed against appellant.
SIGNED June 11, 2014.
_________________________________
Catherine Stone, Chief Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1915457/ | 510 So. 2d 377 (1987)
Charles BAILEY
v.
PACIFIC MARINE INSURANCE CO., et al.
No. 87-C-1052.
Supreme Court of Louisiana.
June 5, 1987.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4153054/ | Matter of Sanchez (2017 NY Slip Op 01869)
Matter of Sanchez
2017 NY Slip Op 01869
Decided on March 15, 2017
Appellate Division, Second Department
Per Curiam.
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
RANDALL T. ENG, P.J.
REINALDO E. RIVERA
MARK C. DILLON
RUTH C. BALKIN
JEFFREY A. COHEN, JJ.
[*1]In the Matter of Joseph R. Sanchez, admitted as Joseph Raymond Sanchez, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Joseph R. Sanchez, respondent.
(Attorney Registration No. 3050341)
APPLICATION by the petitioner, Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, pursuant to former 22 NYCRR 691.3, to impose discipline on the respondent based upon disciplinary action taken against him by the Supreme Court of Oregon. The respondent was admitted to the Bar in the State of New York at a term of the Appellate Division of the Supreme Court in the First Judicial Department on May 1, 2000, under the name Joseph Raymond Sanchez.
Diana Maxfield Kearse, Brooklyn, NY (Sasha N. Holguin of counsel), for petitioner.
PER CURIAM.
OPINION & ORDER
By opinion and order dated January 27, 2015, the Supreme Court of Oregon suspended the respondent from the practice of law for a period of one year for violations of Oregon Rules of Professional Conduct (hereinafter RPC) rules 8.1(a)(1) (knowingly making a false statement of material fact) and 8.4(a)(3)(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
The respondent was admitted to the Oregon Bar in 2003 and the Maine Bar in 2004.
The underlying facts, as set forth in the Oregon Supreme Court's opinion and order, briefly summarized, are as follows: The respondent was required to complete 45 hours of continuing legal education (hereinafter CLE) courses, a mandatory requirement, for the 2009 to 2011 reporting period. On April 11, 2012, at approximately 10:51 a.m. PST, the respondent purchased a set of CLE courses ("Specialty Oregon Bundle") from Lawline, Inc. On April 13, 2012, at approximately 11:14 a.m. PST, the respondent submitted to the Oregon Bar an MCLE compliance report, in which he certified that he had completed his MCLE requirements. The compliance report listed all the courses the respondent purchased, and indicated that he completed them on the same date, April 12, 2012. On April 13, 2012, at 3:54 p.m. PST, the MCLE administrator for the Oregon Bar contacted the respondent and inquired how he watched/listened to 48 hours of CLE courses in one day, as indicated in his compliance report, asking him, "How did you do that?" The respondent responded to the inquiry by providing copies of his CLE completion certificates. As these certificates were printed within a 7-hour period, the administrator asked the respondent how he completed 48 hours of CLE courses in fewer than 7 hours. The respondent replied that he actually started viewing/listening on April 11, 2012.
The matter was referred to Chris Mullmann, the Assistant General Counsel of the Oregon Bar, who contacted the respondent and asked for an account of what occurred. The respondent responded that he actually began the courses on April 11, 2012, and finished them on [*2]April 12, 2012. Unsatisfied with the respondent's response, Martha Hicks, Assistant Disciplinary Counsel, wrote to the respondent and advised him that the compliance report he submitted raised concerns about his conduct and potentially implicated provisions of Oregon RPC 8.4(a)(3). The respondent was asked to provide additional information to corroborate his account. In an affidavit submitted to Hicks, the respondent stated that he completed the entire bundle of courses "either late on April 12, 2012 or at some point early on April 13, 2012." During a telephonic deposition, the respondent stated, "I did finish on the 12th, and I turned [the compliance report] in on the 13th. So that for sure is true." Subsequently during his deposition, the respondent backtracked and stated that he may have completed some courses on April 13, 2012.
A trial was held on January 22, 2015. The respondent testified that he took the courses on April 11, 2012, and April 12, 2012, although later in his testimony he stated, for the first time, that he may have begun taking the courses as early as April 10, 2012. When questioned why none of his prior statements mentioned that he began taking the courses on April 10, 2012, the respondent provided answers which the trial panel found to be "evasive, incomplete and/or untruthful."
The trial panel found the respondent's overall testimony lacking in credibility:
"His testimony was inconsistent with his prior writings, including an affidavit he prepared and signed under oath in 2012. The testimony he provided at the hearing was inconsistent with the testimony he previously provided at his deposition in this matter on September 3, 2014, which was also provided under oath. The [respondent] presented facts during his testimony that he had never presented before, notwithstanding having had multiple opportunities to have done so during the course of the [Oregon] Bar's investigation. Put simply, the panel finds that the [respondent's] testimony was untruthful. Lastly, the panel finds that the [respondent] made his misrepresentations knowingly and intentionally. The [respondent] was provided multiple opportunities to explain how he could have possibly fit 48 hours of work into a shorter (and potentially significantly shorter) period of time and each time he failed to do so. It is clear he changed the facts over time, [and] added explanations' when prior ones were not accepted, with each subsequent explanation less plausible than the prior."
The trial panel concluded that the respondent violated his duty to the public and to the legal profession when he intentionally and knowingly misrepresented to both Lawline and the Oregon Bar the fact that he had attended and successfully completed the CLE courses he had purchased.
In determining the sanction to be imposed, the trial panel noted the following aggravating factors: the respondent acted with a selfish motive, never acknowledged the wrongful nature of his conduct, was not candid during the proceedings, and repeatedly made misrepresentations to both Lawline and to the Oregon Bar. While noting that this was the respondent's first disciplinary offense, and the matter involved only misrepresentations about satisfying his CLE obligations, the trial panel found that there were no mitigating factors. Due to the respondent's "repeated pattern of dishonesty, raising extreme concern that the [respondent] would engage in similar conduct in the future," the trial panel imposed a one-year suspension from the practice of law.
The respondent has no prior disciplinary history in New York.
The Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts served the respondent with a notice pursuant to former 22 NYCRR 691.3 informing him of his right to, within 20 days, file a verified statement setting forth any of the defenses to the imposition of discipline enumerated in former 22 NYCRR 691.3(c). Although duly served by the Grievance Committee on May 13, 2016, the respondent neither filed a verified statement asserting any of the enumerated defenses nor requested additional time in which to do so. Accordingly, there is no impediment to the imposition of reciprocal discipline.
Based on the findings of the Supreme Court of Oregon, reciprocal discipline is imposed and the respondent is suspended from the practice of law for a period of one year.
ENG, P.J., RIVERA, DILLON, BALKIN and COHEN, JJ., concur.
ORDERED that the petitioner's application to impose reciprocal discipline is granted; and it is further,
ORDERED that pursuant to 22 NYCRR 1240.13(c), as now in effect, the respondent, Joseph R. Sanchez, admitted as Joseph Raymond Sanchez, is suspended from the practice of law for a period of one year, commencing April 14, 2017, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than January 12, 2018. In such application, the respondent shall furnish satisfactory proof that during the period of suspension he (1) refrained from practicing or attempting to practice law, (2) fully complied with this order and with the terms and provisions of the written rules governing the conduct of disbarred and suspended attorneys (see 22 NYCRR 1240.15), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(a), and (4) otherwise properly conducted himself; and it is further,
ORDERED that the respondent, Joseph R. Sanchez, admitted as Joseph Raymond Sanchez, shall promptly comply with the rules governing the conduct of disbarred and suspended attorneys (see 22 NYCRR 1240.15); and it is further,
ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until further order of the Court, the respondent, Joseph R. Sanchez, admitted as Joseph Raymond Sanchez, shall desist and refrain from (l) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that if the respondent, Joseph R. Sanchez, admitted as Joseph Raymond Sanchez, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 1240.15(f).
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 03-15-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2611749/ | 39 Cal. App. 2d 232 (1940)
DONG FAY KWON, Appellant,
v.
MAE KWON, Respondent.
Civ. No. 2381.
California Court of Appeals. Fourth Appellate District.
May 22, 1940.
F. H. Nottbusch and Frank H. Nottbusch, Jr., for Appellant. *233
Noon & Noon for Respondent.
Marks, J.
This is an appeal from an order vacating and setting aside a decree annulling the marriage of the parties.
Plaintiff and defendant are Chinese. They were married on May 22, 1938. In August, 1938, plaintiff took defendant to a physician who gave her a physical examination. To quote from the affidavit of the physician, he reported his conclusions in part as follows: "That both Mr. and Mrs. Kwon were informed that I did not believe her to be pregnant at that time and that pregnancy was extremely unlikely without surgical procedure and the chances for that being beneficial were so remote that it was not recommended."
The complaint for annulment of the marriage was filed on September 2, 1938. The sole ground for annulment alleged was that "Defendant was physically incapable of entering into the marriage state in that the Defendant is not able to bear children and that said incapacity continues and appears to be incurable."
On the same day the following "Appearance and Stipulation" as filed:
"Comes now MAE KWON, the above-named Defendant, and states that she has received a true copy of the Complaint filed herein, and makes her appearance in the above-entitled action and hereby stipulates that the said action may be heard forthwith as a default matter at any time that may be convenient to the Court and without any further notice to the Defendant."
"I hereby waive any notice of trial and notices of any and all further proceedings in the above-entitled matter. I further authorize my appearance to be entered in the above-entitled matter by the filing of this stipulation or otherwise."
"Mae Kwon"
"Defendant in proper person."
It is admitted that plaintiff, the husband, took his wife, the defendant, to the office of his attorney who prepared and took her acknowledgment to the appearance and stipulation. Defendant did not have any independent advice in the matter. The law condemns such a transaction. (12 Cal.Jur. 713 et seq.; 13 Cal.Jur. 860 et seq.) The decree annulling the marriage was rendered on September 8, 1938, with the *234 foregoing appearance and waiver of notice by defendant taken in lieu of service of process.
On or about November 5, 1938, defendant discovered she was pregnant. On February 7, 1939, she filed her notice of motion, supported by affidavits, to vacate the decree of annulment on the ground of fraud. Plaintiff filed counter-affidavits and testimony was taken. The trial judge permitted defendant to file a supplemental motion to set aside the decree on the ground of mistake. The motion was granted by the trial court on March 15, 1939, and the decree annulling the marriage was vacated.
During the argument before this court it was admitted that, pending this appeal, defendant had given birth to a child and that plaintiff is the father of that child.
[1] It is impossible for us to consider the appeal because plaintiff has failed to present any record that we can consider here. The only certificate attached to the record is that of the county clerk who certifies that the copies in the record are true and correct copies of the originals in his office. There is no certificate by the trial judge which is necessary in a proceeding of this nature. (Stern & Goodman Inv. Co. v. Danziger, 206 Cal. 456 [274 P. 748]; Clark v. McCain, 107 Cal. App. 668 [290 P. 901]; Guyot v. Cassab, 118 Cal. App. 742 [5 PaCal.2d 912]; Salinas v. Riverside Finance Co., 126 Cal. App. 675 [14 PaCal.2d 1025]; Mason v. Coalinga Union H. S. Dist., 31 Cal. App. 2d 317 [87 PaCal.2d 921].)
The appeal is dismissed.
Barnard, P. J., and Griffin, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611758/ | 39 Cal. App. 2d 189 (1940)
ED. L. CORDI, Respondent,
v.
ROSA GARCIA et al., Appellants.
Civ. No. 6289.
California Court of Appeals. Third Appellate District.
May 21, 1940.
Butler, Van Dyke & Harris and Hoge, Pelton & Gunther for Appellants.
L. C. Smith and Alfred E. Frazier for Respondent.
Thompson, J.
A verdict was returned for plaintiff in the sum of $8,000 as damages for injuries sustained by him as the result of being struck by an automobile while he was crossing a street in Redding. He was then engaged in performing his duties as a government letter carrier. Judgment was rendered in accordance with the verdict. For the purpose of appeal it was conceded there is substantial evidence to show that the driver of the machine was guilty of negligence and that the plaintiff was free from contributory negligence. It is insisted the plaintiff was only slightly injured; that the judgment is excessive; that the court erred in its *191 rulings in the course of the trial and that plaintiff's attorney was guilty of prejudicial misconduct requiring a reversal of the judgment.
June 24, 1937, Manuel Garcia, a minor, was driving a Buick automobile owned by his mother along a public street in Redding. He was on the wrong side of the street and was paying slight attention to his driving. The plaintiff, a United States letter carrier, 52 years of age, who had served the government in that capacity for seventeen years, was crossing the street in the middle of a block when he was struck by the bumper of defendants' machine. He was knocked down by the force of the blow. The contents of his mail bag were scattered on the pavement. He received injuries to his right shin and to his left shoulder. He was considerably shocked by the fall and was dazed and dizzy for a short period of time thereafter. An interval of about two hours elapsed before he resumed his duties and he was never thereafter incapacitated from the regular performance of his work. The entire case turns on the questions as to the seriousness of plaintiff's injuries and upon the effect of the alleged errors of the court and the misconduct of plaintiff's attorney. Eighteen months passed from the time of the accident to the trial of the case.
[1] Several medical expert witnesses testified regarding the effect of the injuries sustained to plaintiff's right leg and left shoulder. Their evidence is conflicting. There is substantial proof that the small bone of the right leg has thickened considerably as a result of the injury, and that the plaintiff suffered recurrent pain on that account. There is evidence that he suffers from pain in his feet which may be accounted for by the necessity of constant use of them in the performance of his duties. The chief controversy relates to the injury of his left shoulder. There is no doubt plaintiff has sustained a partial loss of the functioning power of his left arm. He suffers pain when he attempts to raise that arm vertically. He said he had no such loss of power or pain prior to the accident. Two physicians testified positively that his loss of functioning power and pain in that shoulder were attributable to the injury received. Other physicians just as emphatically asserted a chronic condition of arthritis in that shoulder caused the loss of functioning power and that it is not due to the injury received. As this court said under similar circumstances *192 in the case of Reuter v. Hill, 136 Cal. App. 67, at p. 79 [28 PaCal.2d 390]:
"In view of the conflict in evidence, it became a problem for the jury to determine whether the plaintiff was suffering from a broken ankle and a wrenched spine, or whether he was afflicted with arthritis only."
Since there is a conflict of evidence in that regard, this court is bound by the implied finding of the jury that the loss of power in the arm is due to the injury received.
[2] There is no error in the ruling of the court on the cross-examination of Mrs. Rosa Garcia, the mother of the boy who drove the automobile which was involved in the accident. She was asked by plaintiff's attorney if she had not previously had trouble on account of her boy "getting into other automobiles". Counsel for the defendants assigned that question as prejudicial. Of course it was improper, but it was harmless. On the court's own motion the judge ruled that it was improper cross-examination, and the question was not answered.
The cause was tried with unusual vigor on both sides. There were frequent verbal conflicts between counsel which tended to disturb the regular progress of the trial. The charges and countercharges of counsel occasionally became acrimonious. In spite of that fact the trial judge appears to have retained his judicial temper remarkably well. He seems to have fairly and impartially determined the issues which were presented to him. Some of his remarks to counsel which have been challenged as prejudicial, in our opinion, have been misconstrued. We find nothing prejudicial in the conduct of the trial judge.
[3] Two incidents occurred in the course of the trial which, on account of the amount of the verdict as applied to the extent of the injuries received by the plaintiff, seem to require a reversal of the judgment.
At the close of plaintiff's evidence, he moved the court in the presence of the jury to amend his complaint by increasing his demand for judgment from $10,000 to $17,400 to conform to the evidence. The theory which was argued by the plaintiff was that if he became totally disabled on account of his injuries from performing his duties as a government mail carrier he would forfeit his right to $100 per month as federal civil service retirement pension, aggregating the additional sum of $13,200 as damages to which he would be entitled. *193 That prospective loss was calculated on plaintiff's expectancy of life based on accepted mortality tables. It is true that the complaint alleges that plaintiff "in a very short time" would be required to cease working and that he would then "forfeit said fifteen years' seniority with the United States postoffice and the value thereof" on account of his injuries. In his argument to the jury plaintiff's attorney urged the jury to consider, in fixing the amount of their verdict, the plaintiff's forfeiture of his pension when he was forced to retire. He said, "I ... only asked for ten thousand dollars. I didn't know that that leg was going to grow progressively worse. ... The only thing that will have any tendency or possibility of relieving that condition ... is for him to stay off his feet, ... which means he must give up his pension, his seventeen long years of service."
To that statement the defendant's attorney objected. He asserted that it was not true that the plaintiff would forfeit his pension. He assigned the statement as prejudicial misconduct. The court merely replied, "It will be up to the jury."
Plaintiff's attorney further argued along that line:
"The records show the man is now suffering from an injury he received when he was struck by this automobile, and he will continue to suffer from it the rest of his natural life. ... Let's not be picayunish about it. Let's be reasonable. If counsel thought Mr. Cordi wasn't hurt, and hurt badly, why did he make such an ado when I wanted to amend my complaint and ask for more money?"
Continuing his argument the attorney further said:
"At the age of sixty-five had he (Mr. Cordi) not received that injury he would have had a pension coming to him of One Hundred Dollars a month, ... we could count on ... at the end of a thirty year grind ... At the age of sixty-five ... Mr. Cordi has the right to expect that he will have a normal span of life remaining of eleven years; ... that he would have the right to expect the sum of approximately twelve hundred dollars a year, one hundred dollars a month. ... Eleven years at twelve hundred dollars a year is thirteen thousand two hundred dollars that he would normally expect to get from the United States government from the time he reached his age of sixty-five, and through the pension to the *194 time of death there is a potential thirteen thousand two hundred dollars that he has been damaged."
To this latter statement counsel for the defendants again objected, assigning it as prejudicial misconduct, and asked the court to declare a mistrial on account of adverse counsel's conduct. The court denied the motion to declare a mistrial, and said he thought the former denial to amend the complaint should not be touched upon in the argument, but explained that he only denied the motion to amend the complaint because it was applied for too late, and not because the loss of pension might not be a proper element of damages. The court failed to instruct the jury to disregard that argument. Continuing his argument plaintiff's attorney then said:
"Did you ever see a wounded bird that didn't flutter? In other words, let's put it this way, when I am interrupted it must hurt; the shoe must fit. They usually never holler unless they are hurt."
We are of the opinion the foregoing reference to the loss of retirement pension constitutes prejudicial error for two reasons; the asserted necessity of plaintiff's retiring on account of his injuries seems to be remote and speculative, and because that claim is contrary to the provisions of the Federal Retirement of Civil Service Employees Act. (5-6 U.S.C.A., chap. 14, p. 285, secs. 691-710.) Section 691 of that act provides that city and rural letter carriers shall be eligible to retire at the age of sixty-five years. Section 699 authorizes the payment of 60 per cent of an employee's annual average basic salary after 30 years' service. Section 710 provides that when such employee shall have served fifteen years before reaching the age of retirement and then becomes totally disabled for useful and efficient service by reason of disease or injury not due to his own bad habits, intemperance or wilful misconduct, he shall be entitled to retire on the same annual annuity provided for in sections 698 to 706 therein. From these provisions of the act it appears that since the plaintiff in this case had actually served as a letter carrier for more than seventeen years, if he was thereafter compelled to retire because of injuries sustained on account of the accident in question, he would not forfeit his pension as claimed by his attorney, and as argued to the jury, but he would be entitled to the same pro rata compensation as though he had served the entire thirty years. It was therefore erroneous to permit *195 counsel to argue, over the objection of the defendants that plaintiff sustained damages by forfeiting his retirement pension on account of possible disability growing out of the accident. Since the jury was urged to consider as an element of damages the forfeiture of that pension we are unable to determine what proportion of the $8,000 verdict was erroneously allowed on account of loss of retirement compensation. That argument was therefore prejudicial. It constitutes reversible error.
[4] It appears that after the accident occurred and before the time of trial the plaintiff consulted his physician, Doctor Gerrard, at Redding. Doctor Gerrard sent him to a noted specialist at San Francisco by the name of Doctor Brown, who thoroughly examined him, and then sent him to another specialist in that vicinity by the name of Doctor Linde, who also carefully examined him. It appears from depositions of these last-mentioned medical experts, which were received in evidence, that the plaintiff was suffering from "no objective changes in any of his central or peripheral nervous system". That physician said he found only "slight numbness over the right aspect of the left upper shoulder. ... It is a condition which gradually disappears over a period of months."
Doctor Linde, who examined the patient five months after the accident occurred, said in his deposition, regarding the condition of the plaintiff's left shoulder, "I was of the impression that his shoulder condition was due to arthritis." In effect he concluded it was not due to the result of his injury.
These medical gentlemen sent to Doctor Gerrard the reports of their examinations in the forms of letters. On cross-examination of Doctor Gerrard at the trial, defendants' counsel, for impeachment purpose, asked him if the San Francisco physicians had not reported to him the result of their examinations, and if they had not told him the condition of plaintiff's left arm was due to arthritis and not to the injury which he previously received. Doctor Gerrard's reply was that he did not recall. Other questions regarding the purport of those reports were also asked for impeachment purpose. A controversy arose between counsel regarding the use of those reports for the purpose of cross-examination. While Doctor Gerrard was on the witness stand, the defendants demanded the production of those reports to be used for the *196 purpose of cross-examination. The attorney for plaintiff refused to permit the production or use of those documents for cross-examination. The court said it was powerless to compel their production under the circumstances. The examination of Doctor Gerrard was completed without the use of the reports. At the following session of court, in the absence of Doctor Gerrard, the attorney for plaintiff announced that he had the reports of the San Francisco physicians, and since their contents had been challenged he would offer them in evidence. Defendants' counsel consented to the offer. The court then suggested that if they were received in evidence at the request of plaintiff, he would be bound by that evidence. Plaintiffs attorney declared that he was not willing to be bound by the statements of those documents, and he thereupon withdrew his offer to admit them. Defendants' attorney then demanded the right to see and read them, saying that he might then offer them himself. Plaintiff's counsel refused to permit defendants' attorney to read them. The letters were not introduced in evidence or read to the jury.
During his argument to the jury plaintiff's attorney referred to those challenged reports as follows:
"He (defendants' attorney) accused me of withholding ... two letters that Dr. Gerrard received from Dr. Brown and Dr. Linde. Did I withhold them when I offered--when I stood up here and offered that they be read to you? Oh, no. Mr. Harris wasn't good enough sport to say 'All right, let's read them.' (He said) 'Let me see them first.'"
Defendants' counsel assigned that statement as untrue. He correctly said that plaintiff's attorney withdrew his offer to admit the letters when he was told that he would be bound by their contents, and that plaintiff's counsel then replaced them in his pocket and refused to permit inspection of the letters. The court stated that the jury would remember what transpired in that regard. It is not contended the court erred in refusing to require plaintiff's attorney to permit an inspection of the letters. It is true that, under proper circumstances, a party to an action, who has in his possession in court documents which would be competent evidence against him, may be entitled to an order permitting the inspection and use of them. (Morehouse v. Morehouse, 136 Cal. 332, 337 [68 P. 976]; 10 Cal.Jur. 880, sec. 156.) The right of defendants' attorney in this case to inspect and use the let *197 in question for impeachment purpose might have been properly granted. But standing alone, we are of the opinion that ruling was not reversible error. Upon the state of the record it may not have been error at all. [5] However, in his subsequent argument to the jury the plaintiff's attorney referred to that incident regarding the letters and accused defendants' counsel with unfairly trying to entrap him and inferred that the contents of those letters would not be unfavorable to his client. This reference to the letters was assigned as prejudicial misconduct.
It was prejudicial error for plaintiff's attorney to refer in his argument to the jury to the contents of reports or letters affecting the injuries received by the plaintiff, the inspection and use of which documents were refused and which instruments were not received in evidence. The jury may have secured the impression from the argument that they were much more favorable to the plaintiff than the facts would warrant. Under somewhat similar circumstances it was held in the case of Baroni v. Rosenberg, 209 Cal. 4 [284 P. 1111], to be prejudicial misconduct to refer in argument to the contents of a document providing for certain payments by the Continental Casualty Company, which was not received in evidence, even though the court instructed the jury to disregard the statements. The court said in that regard:
"Moreover, the entire discussion as to compensation was extraneous to the issues. Although the court admonished the jury to disregard it, the harm, if any, was already done and it had no power to wipe away the false concept of the situation imprinted upon their minds. The remark was properly assigned as misconduct and, despite the admonition, was, in our opinion, prejudicial."
In the case last cited the Supreme Court affirmed an order of the trial court granting a new trial.
For the reasons heretofore stated, we are impelled to reverse the judgment. It is so ordered.
Pullen, P. J., and Tuttle, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877103/ | 88 S.W.3d 327 (2002)
In the Matter of M.A.V.
No. 04-01-00533-CV.
Court of Appeals of Texas, San Antonio.
July 24, 2002.
*329 Jose L. Arce, Juan Ramon Flores, Laredo, for Appellant.
Homero Ramirez, Webb County Atty., Enrique Pellegrin, Asst. County Atty., Laradeo, for Appellee.
Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice.
Opinion by: CATHERINE STONE, Justice.
This case concerns the State's fourth attempt to certify M.A.V. to stand trial as an adult for crimes he allegedly committed when he was sixteen.[1] M.A.V. is charged with seven counts of capital murder, three counts of murder, eleven counts of burglary, and one count of theft. In three issues, M.A.V. challenges the juvenile court's latest certification and transfer order, claiming: (1) transfer to criminal district court is improper because the juvenile court has already adjudicated him guilty of the alleged offenses; (2) there is legally and factually insufficient evidence to support several of the juvenile court's probable cause findings; and (3) the juvenile court failed to waive its jurisdiction over this matter. We affirm in part, and reverse and render in part.
A. Double Jeopardy
In his first issue, M.A.V. claims the juvenile court is precluded from transferring him to criminal district court because jeopardy has already attached regarding the alleged offenses. See Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). M.A.V. contends jeopardy has attached because the court's transfer order states: "the court finds ... [M.A.V.] did violate a penal law .... (the order then cites each penal provision M.A.V. purportedly violated)." We disagree.
In Breed v. Jones, the State of California filed a petition in juvenile court alleging Breed had committed robbery. Id. at 521, 95 S. Ct. 1779. An adjudicatory hearing was held, and the court determined Breed had committed the offense. Id. at 521-22, 95 S. Ct. 1779. Shortly thereafter, the court declared Breed "unfit for treatment as a juvenile" and transferred Breed to adult court. Id. at 524, 95 S. Ct. 1779. Breed was tried as an adult and, once again, found guilty of robbery. Id. at 525, 95 S. Ct. 1779. Breed filed a petition for a writ of habeas corpus in federal district court, alleging his prosecution in adult court subjected him to double jeopardy. Id. at 525-26, 95 S. Ct. 1779. The Supreme Court agreed with Breed, holding jeopardy attaches:
at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.
Id. at 529, 95 S. Ct. 1779. The Court determined jeopardy attaches at the point in a juvenile proceeding where the juvenile is "put to trial before the trier of facts." Id. at 531, 95 S. Ct. 1779. The court recognized its holding will require that a decision to transfer a juvenile be made prior to *330 an adjudicatory hearing. Id. at 535-36, 95 S. Ct. 1779. However, the Court specifically noted:
nothing decided today forecloses States from requiring as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding.
Id. at 538 n. 18, 95 S. Ct. 1779.
Breed is distinguishable from the case at bar. Unlike Breed, we are not confronted with a situation where the child was adjudicated prior to his transfer. Texas courts have consistently held that a certification and transfer hearing is not an adjudicatory trial because the child's guilt or innocence is not the subject of inquiry. In re L.R.L.C., 693 S.W.2d 552, 553 (Tex. App.-San Antonio 1985, no writ). Rather, the subject of inquiry at such hearing is whether:
there is probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.
See TEX. FAM.CODE ANN. § 54.02(a)(3) (Vernon 1996).
It is clear from the record that Judge Mireles knew the difference between transfer and adjudication, and conducted the proceeding as a transfer hearing. Throughout the proceeding, Judge Mireles repeatedly reminded M.A.V. "this is not your trial" and stressed that "this proceeding was not for determining guilt or innocence." Moreover, Judge Mireles's order specifically states:
(1) After having been duly appointed... the Honorable Andy Mireles ... considered whether there is probable cause to believe ... [M.A.V.] committed the offenses listed below.
(2) No adjudication hearing has been conducted to this point concerning the offenses set forth above.
(3) A full investigation and hearing of the child, his circumstances and the circumstances of the offense were conducted by this Court and this Court finds that there is probable cause to believe M.A.V. committed the offenses as charged.
(4) And further, there is probable cause to believe that [M.A.V.] ... engaged in delinquent conduct and that further proceedings in the case in the Adult Court are in the best interest of [M.A.V.] and the general public.
(5) No adjudication concerning the alleged offenses has been made and no adjudication hearing concerning the offenses has been conducted.
(6) This Court determines that there is probable cause to believe [M.A.V.] ... committed the offenses alleged.
Because Judge Mireles recognized that the only issue to be decided at this hearing was whether he should transfer M.A.V. to criminal district court, we hold M.A.V.'s double jeopardy rights were not violated. M.A.V.'s first issue is therefore overruled.
B. Erroneous Probable Cause Findings
In his second issue, M.A.V. claims there is legally and factually insufficient evidence to support several of the juvenile court's probable cause findings. Specifically, M.A.V. contends there is insufficient evidence to support the court's findings regarding: (1) burglary by entering a habitation and attempting to commit and committing a theft of Daniel Dueñez, Jr.; (2) burglary by entering a habitation and attempting to commit and committing a theft of Ruben Martinez, Jr.; (3) burglary by entering a habitation and attempting *331 to commit and committing a robbery of Daniel Dueñez, Jr.; and (4) burglary by entering a habitation and attempting to commit and committing a robbery of Ruben Martinez, Jr. We agree.
When the legal sufficiency of the evidence supporting a certification and transfer order is challenged, we view the evidence in the light most favorable to the court's findings and determine whether there is any evidence to support such findings. In re J.J., 916 S.W.2d 532, 535 (Tex.App.-Dallas 1995, no writ). By contrast, when the factual sufficiency of a certification and transfer order is challenged, we consider all of the evidence to determine if the court's finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.[2]C.M. v. State, 884 S.W.2d 562, 563 (Tex.App.-San Antonio 1994, no writ). Absent an abuse of discretion, we will not disturb a juvenile court's findings. Id.
Under section 54.02 of the Texas Family Code, the juvenile court must determine whether probable cause exists to believe the child committed the alleged offense before certifying the child as an adult. See TEX. FAM.CODE ANN. § 54.02(a)(3) (Vernon 1996). Probable cause is shown by facts and circumstances sufficient to warrant a prudent person to believe the child committed the alleged offense. In re A.A., 929 S.W.2d 649, 653 (Tex.App.-San Antonio 1996, no writ). "The probable cause standard of proof embraces a practical, common sense approach rather than the more technical standards applied in the burdens of proof of either beyond a reasonable doubt or a preponderance of the evidence." Id.
As alleged by the State, a person is criminally responsible for burglary when, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony or theft. Tex. Penal Code Ann. § 30.02(a)(3) (Vernon Supp.2002). A person commits "theft" when he unlawfully appropriates property with the intent to deprive the owner of it. Tex. Penal Code Ann. § 31.03(a) (Vernon 1994). A person commits "robbery" when in the course of committing theft and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, *332 or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(1), (2) (Vernon 1994). A person commits a "criminal attempt" if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Tex. Penal Code Ann. § 15.01(a) (Vernon 1994).
Of the eleven counts of burglary with which M.A.V. was charged, three charges were based on the commission of murder, a felony; two charges were based on felony conduct directed toward James Smiley; and two charges were based on felony conduct of theft and robbery, but with no victim identified. M.A.V. does not present evidentiary challenges to any of these seven charges. The remaining four charges contested by M.A.V. charge that he entered a habitation without the effective consent of the owner and "did attempt to commit and committed" theft of Dueñez (Paragraph IXc); theft of Martinez (Paragraph IXd); robbery of Dueñez (Paragraph Xc); and robbery of Martinez (Paragraph Xd). See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon Supp.2002) (burglary includes entering a building or habitation and committing or attempting to commit a felony, theft, or an assault). Since the State alleged the specific conduct of theft and robbery directed toward two specific individuals, it had the burden to produce evidence of theft and robbery directed toward the two individual victims identified in the petition. Cf., Roberts v. State, 513 S.W.2d 870, 871 (Tex.Crim.App.1974) (recognizing all essential averments in an indictment must be proved as alleged).
In this case, there is nothing in the record to indicate that M.A.V. committed or attempted to commit a theft or robbery of either Dueñez or Martinez. At the certification hearing, Officer Jesus Torres, Abdon Ibarra, Ramon Rodriguez, and Officer Norberto Cardenas testified regarding the items allegedly taken by M.A.V. Officer Torres testified he was in charge of M.A.V.'s investigation. According to Torres, his investigation led him to the conclusion that the only items taken on the night in question were a television, watch, and automobile.[3] Torres further testified all of these items belonged to James Smiley.
Abdon Ibarra testified he purchased a television from M.A.V. and was with M.A.V. when M.A.V. abandoned an automobile in Mexico. Ibarra further testified M.A.V. had confessed to murdering the owner of the vehicle, although M.A.V. never specifically stated who the owner was. Ramon Rodriguez testified M.A.V. had confessed to murdering three people for their car. Rodriguez also testified M.A.V. had a television with him when the boys went driving in the stolen vehicle. Lastly, Officer Norberto Cardenas testified the car keys recovered from M.A.V.'s home were the keys to the automobile he abandoned in Mexico.
From this testimony it is evident that the only items taken on the night in question (a watch, television, and automobile) belonged to James Smiley. No items were taken from Dueñez or Martinez. Further, nothing in the record suggests that M.A.V. formed a specific intent to steal a particular article of property from either of these individuals after he entered the residence. See Flores v. State, 902 S.W.2d 618, 620 (Tex.App.-Austin 1995, pet. ref'd) (holding *333 evidence was legally insufficient to prove attempted theft where record did not contain any evidence that appellant, after his burglarious entry, formed a specific intent to steal a particular article of property). Because there is legally insufficient evidence to support the juvenile court's probable cause findings regarding the above-referenced offenses, we hold that the juvenile court abused its discretion by not dismissing these causes of action.[4] Therefore, we sustain M.A.V.'s second issue.
C. Waiver of Jurisdiction
In his final issue, M.A.V. complains that the juvenile court failed to waive its jurisdiction over this matter because it failed to make a probable cause finding for all of the offenses alleged in the State's amended petition. We disagree.
We remanded this cause to the juvenile court for a hearing to determine whether the court's written order properly reflected its oral pronouncement at the certification hearing.[5] As with judgments, clerical errors in orders may be corrected. Wood v. Griffin & Brand of McAllen, 671 S.W.2d 125, 128 (Tex.App.-Corpus Christi 1984, no writ); Tex. Emp Ins Ass'n v. Pillow, 268 S.W.2d 716, 718 (Tex.Civ.App.-Fort Worth 1954, writ ref'd n.r.e.). A court can enter a judgment nunc pro tunc to correct a clerical error at any time, even after it has lost jurisdiction over the case. Tex.R. Civ. P. 316; Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986). An error is considered clerical when it is not the result of judicial reasoning. Wood, 671 S.W.2d at 128. The determination as to whether an error is clerical in nature is a question of law, and the trial court's finding in this regard is not binding on an appellate court. Id.
After thoroughly reviewing the record, we believe there is evidence to support the juvenile court's finding that its written order contained a clerical error. The court's order appears to duplicate pages three through thirteen of the State's amended petition in their entirety. Page eight of the State's petition contains the final sentences of Paragraph VIIc (capital murder), Paragraph VIIIa (burglary) in its entirety, and the first several sentences of Paragraph VIIIb (burglary). Paragraph 1j of the court's written order appears to combine the beginning of Paragraph VIIc, which appears on page seven of the State's petition, with the remainder of Paragraph VIIIb, which begins on page nine of the State's petition. The order omits any reference to Paragraph VIIIa of the petition and fails to incorporate the parts of Paragraph VIIc and VIIb appearing on page eight of the State's petition. Moreover, at the nunc pro tunc hearing, Judge Mireles stated that he: (1) intended to transfer all of the offenses alleged in the State's petition to criminal district court; and (2) had inadvertently omitted from his order the charges found on pages eight and nine of the State's petition. Accordingly, we hold that the juvenile court's omission was the result of a clerical error. M.A.V.'s third issue is overruled.
Conclusion
Because we hold the evidence is legally insufficient to demonstrate probable cause, *334 we reverse the juvenile court's order transferring the following offenses and render judgment dismissing these offenses:
(1) burglary by entering a habitation and attempting to commit and committing a theft from Daniel Dueñez, Jr.; (2) burglary by entering a habitation and attempting to commit and committing a theft from Ruben Martinez, Jr.; (3) burglary by entering a habitation and attempting to commit and committing a robbery from Daniel Dueñez, Jr.; and (4) burglary by entering a habitation and attempting to commit and committing a robbery from Ruben Martinez, Jr.
We affirm the remainder of the court's order in all other respects.
NOTES
[1] Three prior certification and transfer orders were reversed and remanded by this Court. See In re M.A.V., 40 S.W.3d 581 (Tex.App.-San Antonio 2001, no pet.).
[2] Prior to 1995, section 56.01(c)(1)(A) of the Family Code governed a juvenile's right to appeal a juvenile court's order transferring the juvenile to criminal district court. See Act of May 23, 1991, 72nd Leg., R.S., ch. 680, § 1, 1991 Tex. Gen. Laws 2466, 2466. Under section 56.01(c)(1)(A), any appeal of a transfer order was to be taken to the court of appeals with possible further review by the supreme court. See id. The requirement governing an appeal of the transfer order was "as in civil cases generally." Tex. Fam.Code Ann. § 56.01(b) (Vernon 1996). Accordingly, legal and factual sufficiency review was performed under the standards applicable to civil cases generally. See e.g. A.T.S. v. State, 694 S.W.2d 252, 253-54 (Tex.App.-Fort Worth 1985, writ dism'd).
We recognize that the Legislature amended the Family Code and Code of Criminal Procedure in 1995 to permit an appeal of a transfer order only in conjunction with an appeal of the conviction of the offense for which a juvenile was transferred. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 48, 1995 Tex. Gen. Laws 2517, 2584. The 1995 legislative change in the law applies to conduct occurring on or after January 1, 1996. See Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 106(a), 1995 Tex. Gen. Laws 2517, 2591. Under the new amendments, an appeal of a transfer order is a criminal matter, governed by the Code of Criminal Procedure and the Rules of Appellate Procedure applicable to criminal cases. See Tex.Code Crim. Proc. Ann. art. 44.47(c) (Vernon Supp.2002).
Because this case concerns conduct occurring before January 1, 1996, we conducted our review under the standards applicable to civil cases. Nevertheless, were we to apply the standards of review applicable to criminal cases in this instance, our holding would not change.
[3] Investigators found Smiley's watch and car keys at M.A.V.'s residence. Smiley's abandoned automobile was found in Nuevo Laredo, Mexico. His television was found at the residence of Abdon Ibarra.
[4] See In re J.J., 916 S.W.2d at 535. In light of the evidence before us, a closer question would be presented had the charge been burglary with intent to commit theft under section 30.02(a)(1) of the Penal Code; however, M.A.V. was not charged under that section of the statute. See Tex. Penal Code Ann. § 30.02(a)(1) (Vernon Supp.2002).
[5] See In re M.A.V., No. 04-01-00533-CV (Tex. App.-San Antonio Apr. 24, 2002, no pet. h.) (not designated for publication), 2002 WL 662246. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2576951/ | 188 F. Supp. 2d 373 (2002)
Robert STROUGO, Plaintiff,
v.
BEA ASSOCIATES, Defendant, and
The Brazilian Equity Fund, Inc., Nominal Defendant.
No. 98 CIV 3725 RWS.
United States District Court, S.D. New York.
February 21, 2002.
*374 Wechsler Harwood Halebian & Feffer, New York City (Joel C. Feffer, Daniella Quitt, of Counsel), Rubin & Rubin, Chartered, Rockville, MD (Ronald B. Rubin, of Counsel), for Plaintiff.
Willkie Farr & Gallagher, New York City (Lawrence O. Kamin, of Counsel), for Defendant Bea Associates.
OPINION
SWEET, District Judge.
Defendant Credit Suisse Asset Management LLC ("CSAM"), formerly known as BEA Associates, the investment adviser for the Brazilian Equity Fund, Inc. (the "Fund"), has moved under Rule 56, Fed. R.Civ.P., to dismiss the Second Amended *375 Complaint (the "Complaint") of plaintiff Robert Strougo ("Strougo"), a shareholder in the Fund, which alleged violations of Section 36(a) and 36(b) of the Investment Company Act of 1940 ("ICA"), as amended, 15 U.S.C. § 80a-35(a), (b). For the reasons set forth below, the motion is granted.
Strougo has been a determined litigant, attacking various practices of the Fund and related entities in an effort to remedy what he perceives as the "abysmal" performance of the Fund and its continued existence despite a market value consistently below its net asset value ("NAV"), sometimes referred to as its discount. These efforts have included, in addition to the instant action, a shareholder derivative claim against BEA Associates and the Fund's directors for alleged violations of the ICA in the Fund's 1996 rights offering, see Strougo v. Bassini, 112 F. Supp. 2d 355 (S.D.N.Y.2000), and a similar action challenging a 1995 rights offering by the Brazil Fund, a separate closed-end fund, see Strougo v. Padegs, 27 F. Supp. 2d 442 (S.D.N.Y.1998).
Despite a preliminary success in the Padegs action, see Strougo v. Padegs, 964 F. Supp. 783 (S.D.N.Y.1997) (denying motion to dismiss fiduciary duty and ICA "control person" claims, except with regard to certain defendants), the decisions have not been favorable to the investor against whom the authorities are currently stacked. While the current revelations concerning the Enron Corporation challenge the validity of many of the precepts of corporate governance, the precedents remain in favor of the board of directors and the adviser.
Prior Proceedings
The original complaint was filed on May 21, 1998. It alleged violation of ICA Section 36(b) based upon the non-employee directors' lack of independence. The complaint was dismissed with leave to replead. Strougo v. BEA Assoc., No. 98 Civ. 3725(RWS), 1999 WL 147737, at *2 (S.D.N.Y. Mar.18, 1999).
On April 2, 1999, Strougo filed his first amended complaint. This complaint restated the sole claim in the original complaint, i.e., that the agreement between the Fund and CSAM is void because the Fund failed to maintain the requisite number of independent directors, but pursuant to ICA Section 36(a), rather than ICA Section 36(b). Strougo's claim was based on the lack of independence of the directors as a result of their multiple directorships, their substantial compensation, and their conduct in seeking to prevent the Fund's shareholders from voting to remove CSAM as the Fund's investment adviser. The first amended complaint contained allegations describing: (i) the duties borne by independent directors of a registered investment company; (ii) industry and professional literature cautioning against multiple directorships; (iii) the resulting practical inability of directors serving on multiple boards to fulfill their roles as "watchdogs"; (iv) structural reasons why the "independent" directors serve at the pleasure of the defendant, rather than the Fund's shareholders; and (v) specific examples of these directors' docility in the face of CSAM's overreaching. It added a second claim under ICA Section 36(b), alleging "excessive or inappropriate compensation."
Following CSAM's second motion to dismiss, this Court sustained the first amended complaint, subject to Strougo adding the Fund as a nominal defendant. Strougo v. BEA Assoc., No. 98 Civ. 3725(RWS), 2000 WL 45714 (S.D.N.Y. Jan.19, 2000), and the Second Amended Complaint was filed on February 3, 2000, which added the Fund as a nominal defendant.
*376 Discovery commenced and certain disputes were resolved. Strougo v. BEA Assoc., 199 F.R.D. 515 (S.D.N.Y.2001). The instant motion for summary judgment was heard on November 7, 2001, and marked fully submitted at that time.
The Facts
The facts are taken from CSAM's Statement of Undisputed Facts pursuant to Rule 56.1 of the Local Rules, Strougo's Statement of Disputed Issues, and the affidavits, depositions, and exhibits submitted by the parties. These facts are undisputed except as noted.
CSAM, then known as BEA Associates, established the Fund as a non-diversified, closed-end investment company, organized under the laws of the State of Maryland. It is a registered investment company under the Investment Company Act of 1940 ("ICA"), 15 U.S.C. §§ 80a-1 et seq., with an investment objective of long-term capital appreciation, and its investment mandate requires it to invest primarily in Brazilian securities. The Fund's shares trade on the New York Stock Exchange.
Although the Fund is "non-diversified," it is subject to Brazilian regulations limiting investments in any single issuer, and the Internal Revenue Code, which prohibits the Fund from investing, with respect to fifty percent of its assets, any more than five percent in any one issuer. Brazilian regulations require that the Fund retain a local administrator, and impose certain taxes on the Fund.
The Fund's performance has largely moved with the Brazilian stock market. During 1998, the main Brazilian exchange, the Sao Paulo Exchange, had its worst performance in over twenty-five years, with a loss of 33.5 percent. For the six months ending September 30, 1998, the Morgan Stanley Capital International Brazil Index fell 44.3 percent.
CSAM serves as the Fund's investment adviser under a contract between the Fund and CSAM known as the Investment Advisory Agreement (the "Agreement"). CSAM manages assets of over $300 billion and serves as adviser to fifty-four openend and eight closed-end funds, including the Fund. Pursuant to the Agreement, CSAM, among other things, manages the Fund's assets in accordance with the Fund's investment mandate and all applicable laws and regulations, provides research, makes investment decisions, and exercises voting rights with respect to securities held by the Fund.
Previously, CSAM and Garantia Adminisdracao de Recursos ("Garantia"), the Fund's subadviser, were paid a fee equivalent to 1.35 percent of the first $100 million of the Fund's net assets. Garantia resigned as the Fund's subadviser in 1994, and CSAM assumed Garantia's responsibilities but declined to charge the portion of the fees that would have been otherwise payable to Garantia. The fee of one percent of the first one hundred million of Fund assets, which CSAM continued to receive under that structure, is within the median of fees received by managers of world equity funds.
As of 2000, under a new fee structure, CSAM's fee is based on the lesser of the Fund's average net assets or the market value of the Fund's shares. CSAM charges lower fees to institutional clients. These fees are negotiated at arm's length.
For the fiscal years ending March 31, 1997, 1998, 1999, 2000, and 2001, CSAM earned $914,200, $1,020,507, $420,08, $364,721, and $341,921, respectively, in fees. CSAM's profit margin for the years 1996, 1997, 1998, 1999 and 2000 was 18 percent, 57 percent, 11 percent, negative 102 percent, and negative 24 percent, respectively.
*377 The Fund's operating expenses include expenses associated with investments in Brazil. The Fund's expense ratio is affected by the small size of the Fund and certain expenses associated with its closed-end structure, such as exchange listing fees and fees associated with the annual proxy solicitation, and the significant fees associated with the present litigation, as well as expenses related to Brazilian investment including higher custodian, accounting, and audit fees, the mandatory retention of a Brazilian administrator, and a Brazilian transaction fee of up to .38 percent. For the Fund's fiscal years 1996, 1997, 1998, 1999, 2000 and 2001, its expense ratios were 1.76%, 1.76%, 2.07%, 5.17%, 3.80% and 2.38%. Strougo's litigation has attributed 0.09%, 2.34%, 0.87% and 0.28% respectively to those amounts. CSAM also provides, at cost, administrative services to the Fund under an Administrative Services Agreement, including internal executive and administrative services, responds to shareholder inquiries, a closed-end fund website, and corporate secretarial services.
During the relevant time period, the Fund's board of directors was composed of eight directors. The six outside directors have been Dr. Enrique Arzac ("Arzac"), James J. Cattano ("Cattano"), George W. Landau ("Landau"), Robert J. McGuire ("McGuire"), Martin M. Torino ("Torino") and Miklos A. Vasarhelyi ("Vasarhelyi"). None of the outside directors are disqualified from being a non-interested director under Section 2(a)(9)(b) of the ICA by virtue of family relationship, having an interest in any security issued by CSAM, acting as legal counsel to CSAM, or having been determined by the SEC to be an interested person.
Arzac is a professor of finance and economics at the Graduate School of Business of Columbia University. Landau is a senior adviser to the President of the Latin American Group of the Coca-Cola Corporation, and a former U.S. Ambassador to Venezuela, Chili and Paraguay. Torino is the chairman of the board of directors of Ingenio y Refineria San Martin Del Tabacal S.A., an Argentine sugar refinery, and an executive director of TAU S.A., an Argentine commodities trading firm. Cattano is the president of Primary Resources Inc., a trading firm that specializes in Latin American agricultural commodities. Cattano and Torino were formerly colleagues at Marc Rich & Co., along with Michael Pignataro, Chief Financial Officer and Secretary of the Fund, and Bassini, a former member of the board and current Chief Executive Officer of the Fund.
The Fund utilizes a staggered board divided into three classes, each class having a term of no more than three years. Except for the addition of McGuire and Vasarhelyi, who constituted the Litigation Committee, the membership has been constant.
Arzac, Landau, Cattano, and Torino currently serve as directors of eight, five, four, and three CSAM-affiliated funds, respectively. The board meetings as a rule take two to three hours and are held jointly with the other CSAM affiliated funds. There are over 100 agenda items, many of a routine nature.
The Fund's board of directors sets the compensation paid to directors for service on the Fund's board and the directors on the Fund's board receive $5,000 per year of service on the board, and $500 for each meeting attended by the director. Pursuant to a decision made by the Fund's board, as of May 8, 2000, the directors will receive 50 percent of their fees in the form of Fund shares. In the fiscal year ending March 31, 2001, the four outside directors who serve on other boards of fund companies *378 advised by CSAM earned the following compensation for their services on all CSAM-advised fund boards: Arzac, $107,250, Cattano, $48,500, Landau, $55,000, and Torino, $40,500. According to Arzac, these fees amount to approximately 15% of his income and a de minimus percentage of his net worth. The other directors have made statements similar in import.
In 1998, a shareholder proposal to terminate the Agreement was submitted to the Fund's shareholders over an initial board opposition. The shareholders rejected that proposal. Also in 1998, the outside directors approved a share repurchase program and the Fund repurchased approximately $2 million worth of shares as of February 2000. In 2000, the outside directors, in their capacity as directors of other funds advised by CSAM, voted to merge the Latin American Investment Fund, Inc. into the Latin American Equity Fund, Inc. and the Emerging Markets Infrastructure Fund, Inc. into the Emerging Markets Telecommunications Fund, Inc. The mergers reduced the total compensation paid the directors by the Fund advised by CSAM.
In November of each year, the Fund's board meets to decide whether to renew the Agreement with CSAM. Within a week of each of these meetings, the directors receive a package of materials from CSAM. In particular, they receive information regarding, among other things, (i) a description of CSAM; (ii) an analysis of the profitability to CSAM for advising the Fund and the other closed-end funds that it advises; (iii) financial information relating to the Fund, including total return and market price data for the Fund's shares; (iv) data regarding fees paid by other CSAM clients; (v) a comparison of the advisory fee and expense ratio for the Fund with other similar funds prepared by Lipper, Inc., and (vi) a comparison of the performance of the Fund with that of other CSAM-managed funds and other registered and unregistered investment companies and the closest appropriate index. In every year since 1992, the board has renewed the Agreement with CSAM, and CSAM has continued as the Fund's adviser.
The outside directors have retained PaineWebber to make recommendations regarding the methods the Fund could implement to reduce its discount rate.
Discussion
I. Applicable Law
A. The Standard for Summary Judgment
On a motion for summary judgment, the movant has the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A party seeking to fend off a summary judgment motion must respond by setting forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary judgment should be granted where the moving party demonstrates that there is no genuine issue of material fact regarding the claims at issue and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
B. The Investment Company Act
The ICA is a statute enacted by Congress in response to concerns that existing securities laws did not protect mutual fund shareholders from potential abuse by fund advisers, whose relationships with the funds they manage are "`fraught with potential *379 conflicts of interest.'" Burks v. Lasker, 441 U.S. 471, 481, 99 S. Ct. 1831, 60 L. Ed. 2d 404 (1979) (internal quotations omitted). With this in mind, Congress incorporated fiduciary duties into the ICA through Section 36(a), which allows actions against persons who have engaged in, or who are about to engage in "any act or practice constituting a breach of fiduciary duty involving personal misconduct in respect of any registered investment company ...." 15 U.S.C. § 80a-35(a).
Certain provisions of the ICA are relevant to the Section 36(a) claim brought in this action. Section 10(a) of the ICA, 15 U.S.C. § 80a-10(a), requires that at least 40% of the members of the board of directors of a mutual fund not be "interested persons." Section 15(c), 15 U.S.C. § 80a-15(c), requires that a majority of the disinterested directors approve agreements between a fund and a fund's investment adviser.
The ICA lays out several tests to determine whether a person is considered to be an "interested person" of an investment adviser. Under the first of these tests, the most applicable to the instant motion, an "interested person" is "any affiliated person" of an investment adviser or principal underwriter. 15 U.S.C. § 80a-2(a)(19)(B). An "affiliated person" is defined as "any person directly or indirectly controlling, controlled by, or under common control with such other person." Id. § 80a-2(a)(3)-(c). "Control," in turn, is defined as "the power to exercise a controlling influence over the management or policies of a company." Id. § 80a-2(a)(9). To defeat summary judgment on the Section 36(a) claim, Strougo must establish that CSAM is "control ling" the independent directors or raise a factual issue with respect to such control.
Section 36(b), a narrower provision of the ICA, imposes a fiduciary duty on the investment adviser not to charge excessive fees and creates a private right of action by a shareholder against the adviser for a breach of this duty. In pertinent part, Section 36(b) states:
[T]he investment adviser of a registered investment company shall be deemed to have a fiduciary duty with respect to the receipt of compensation for services ... An action may be brought under this subsection by the Commission, or by a security holder of such registered investment company on behalf of such company, against such investment adviser ... for breach of fiduciary duty in respect of such compensation or payments paid by such registered investment company ....
15 U.S.C. § 80a-35(b).
As this Court has held, Strougo must ultimately demonstrate that CSAM's fee "is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining." Strougo v. BEA Assocs., No. 98 Civ. 3725(RWS), 1999 WL 147737, at *7-8 (S.D.N.Y. March 18, 1999) (quoting Gartenberg v. Merrill Lynch Asset Mgmt., Inc., 694 F.2d 923, 928 (2d Cir.1982)).
II. Summary Judgment is Appropriate
A. Summary Judgment is Not Defeated on the Basis of Discovery Improprieties
As a preliminary matter, Strougo has urged that summary judgment is not appropriate because of CSAM's discovery abuses, ranging from failure to identify the experts who submitted affidavits in support of its summary judgment motion to failure to produce documents. However, there is no requirement that a party disclose its experts prior to filing a motion for *380 summary judgment. Fed.R.Civ.P. Rule 26 states that the disclosure of a party's expert witness shall be made:
at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial ....
Fed.R.Civ.P. 26(a)(2)(C).
Moreover, Strougo has not shown that CSAM's failure to disclose the identity of its experts was made in bad faith or that it resulted in such prejudice that the drastic remedy of exclusion would be warranted. See Fed.R.Civ.P. 37(c)(1) (exclusion should not apply if the failure was "harmless"); Hinton v. Patnaude, 162 F.R.D. 435, 439 (N.D.N.Y.1995) (no exclusion if harmless and conduct was not in flagrant bad faith). Strougo did not request depositions of CSAM's experts although he had nearly three months after CSAM filed its motion for summary judgment to do so. Any prejudice caused by untimely disclosure was remedied by the availability of those months during which plaintiff could depose the expert. Finally, Strougo could have retained and designated his own rebuttal experts.
Strougo has noted that Cattano, a nonparty witness, failed to bring materials regarding the November 2000 board meeting to his deposition on November 27, 2000. With respect to that November 2000 meeting, Strougo was given a copy of all board materials within weeks of the meeting date by CSAM itself. Were there any discovery problems, it was incumbent upon Strougo to notify CSAM, and to follow the Court's procedures for resolving disclosure issues. See Local Rules of the United States District Court for the Southern and Eastern Districts of New York, Rule 37.2 (outlining procedure to bring discovery dispute). Summary judgment cannot be defeated on the basis of discovery improprieties.
If there are no material facts in dispute, under these principles, summary judgment is appropriate.
B. Under the Controlling Authority the Directors Are Not Interested
In his Section 36(a) claim, Strougo asserts that CSAM has breached its fiduciary duty to the Fund because it accepted compensation under an invalid advisory agreement. He argues that the Agreement is invalid because the outside directors on the Fund's board are not independent of CSAM, thus running afoul of the ICA's requirement that advisory agreements be approved by independent directors. The circumstances that he alleges contribute to a lack of independence include: (i) service on Multiple CSAM-advised boards; (ii) failure to terminate CSAM, oppose CSAM, or lower CSAM's fees; (iii) insufficient attention to duty as a result of other, full-time occupations; (iv) insufficient information to monitor CSAM; and (v) dependency on CSAM for board positions as a result of staggered terms and re-election procedures. As mentioned before, to defeat summary judgment on his Section 36(a) claim, Strougo must establish that CSAM is "controlling" the independent directors or raise a factual issue with respect to such control.
The ICA specifically provides that "[a] natural person shall be presumed not to be a controlled person." Id. § 80a-2(a)(9). Courts have held that the burden to overcome this presumption is a heavy one. See, e.g., Olesh v. Dreyfus Corp., 1995 WL 500491, at *16 (E.D.N.Y. Aug.18, 1995); Rome v. Archer, 197 A.2d 49, 54 (Del. 1964). See also In re Fundamental Investors Inc., ICA Release No. 3596 [1961-64 Transfer Binder] Fed. Sec. L. Rep. (CCH) *381 ¶ 76,887, 81,272 (Dec. 27, 1962) ("The burden of overturning the presumption against control of a natural person is not one that will be lightly assumed or easily carried to success.").
Nevertheless, there is some support for the position that the terms "control" and "controlling influence," as used in § 80a-2(a)(9) of the ICA, might extend beyond "actual" control.[1] The history behind the ICA indicates that the SEC has in the past found that controlling influence encompasses "influence" that is "less than absolute and complete domination," In re M.A. Hanna Co., ICA Rel. No. 265, 1941 WL 37412, at *5 (Nov. 26, 1941). The agency indicated that Section 2(a)(9) included "the latent power to exercise a controlling influence as well as the active exercise of such power." In re Transit Inv. Corp. & Broad St. Trust Co., ICA Rel. No. 927, 1946 WL 24141, at *8 (July 30, 1946). Accord The First Australia Fund, Inc., SEC No-Action Letter, [1987-1988 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 78,551, at 77,795 n. 11 (Oct. 8, 1987); Moses v. Black, No. 78 Civ.1913, [1981 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 97,866, at 90,366 (S.D.N.Y. Feb. 3, 1981).
The SEC's report to Congress that served as the basis for the ICA emphasized that "control" or "influence" can assume many different forms, and often can be proven only by circumstantial evidence. See In re Chicago Corp., ICA Rel. No. 1203, 1948 WL 29459, at *3-4 n. 7 (Aug. 24, 1948) (citing H. Doc. 246, 77th Cong., S.E.C. Reports on Investment Trusts and Investment Companies, Part Four, at 2). The SEC concluded that, in light of the legislative history and overall purposes of the ICA, "the statutory concept of control embraces within it those pressures and influences, at times admittedly delicate, by which an investment company can exercise a dominating persuasiveness in the affairs of the portfolio company." Chicago Corp., 1948 WL 29459, at *4.
More recently, in Verkouteren v. Blackrock Fin. Management, Inc., 37 F. Supp. 2d 256 (S.D.N.Y.1999) ("Verkouteren I"), the Honorable Whitman Knapp, faced at the pleading stage the same issue presented to this Court, namely the degree of control, and the adequacy of mere "influence," sufficient to overcome the presumption of independence possessed by a natural person. He reiterated the factors set forth by the SEC in the First Australian Fund, Inc., Sec No-Action Letter, 1987 WL 108483 (1987-1988 Transfer Binder], Fed. Sec. L. Rep. (CCH) ¶ 78,551 (Oct. 8, 1987), as follows:
(1) selection or nomination of the director by the controlling party; (2) existence of family ties; (3) social relations; (4) former business associations between the director and the controlling person; (5) the amount of time spent by directors at meetings; (6) respective ages; (7) participation in recommending, evaluating, and terminating policies; (8) independent knowledge of corporate affairs; (9) interlocking directors and officers, together with share ownerships; and (10) actual domination and operation.
Verkouteren I, 37 F.Supp.2d at 261.
Certain of these factors appear to be implicated by the facts established above. At the outset, it is presumed that CSAM initially selected the directors who have remained in office, triggering factor (1). Factor (4) also appears to be implicated as there have been a number former *382 business relationships among the leaders of CSAM and the Fund. Factor (5) appears to be triggered by the fact that board meetings consisting of agenda items from all of the various CSAM funds are routinely brief. There is evidence supporting doubt as to director participation and independent knowledge, factors (7) and (8), and the interlocking directorships, factor (9), have been discussed at length.
However, in Verkouteren I, Judge Knapp concluded that factors (1) and (5) were not dispositive, particularly in view of the importance he placed on factor (10), actual domination. After repleading, Judge Knapp again dismissed the amended complaint although additional indicia were set forth, some of which have been presented here. He concluded:
Unfortunately, those indicia could just as easily be rooted in other causes, such as ineffective performance by the directors of their duties or in attentiveness on the part of the shareholders of the funds in supervising the directors. Similarly, the alleged malignancies in the corporate by-laws clearly suggest that defendant could impose pressure on the outside directors to acquiesce to its wishes; they do not, however, suggest that defendant did impose that pressure.
Verkouteren v. Blackrock Fin. Management, Inc., 1999 WL 511411 (S.D.N.Y. 1999) ("Verkouteren II"). This reasoning, emphasizing actual domination, was affirmed by the Court of Appeals in an unpublished opinion, 208 F.3d 204, 2000 WL 298255 (2d Cir.2000), and has been used by other courts. See, e.g., Olesh, 1995 WL 500491, at *16 (Proof of control "`demands a presentation of evidence establishing actual domination and operation. Mere influence would fall short of this level of proof.'") (quoting Acampora v. Birkland, 220 F. Supp. 527, 543 (D.Colo. 1963)).
Applying this reasoning to the instant action, the specific circumstances presented by Strougo are insufficient to establish "control." As the above authorities establish, service on multiple boards alone does not constitute control. With respect to the termination of CSAM and the continuation of its fees, Strougo has criticized the directors for contacting the SEC with respect to a proposed vote to terminate CSAM's advisory contract, but CSAM has advanced several good faith explanations for the board's actions. No additional information has been specified to demonstrate the directors' alleged ignorance, and no authority has held that full-time occupations and two-hour meetings sufficiently state a claim of inattention to duty. In view of their outside employment, the fees paid fail to overcome the presumption of independence. In the case of Arzac, who received the largest amount of fees, it cannot be said that a triable issue has been created. The remaining fees are within the range for directors' fees that have been acceptable under the applicable law. See, e.g., Migdal v. Rowe Price-Fleming Int'l Inc., No. 00 Civ. 1420, 2001 WL 460752, at *5-6 (4th Cir. May 1, 2001) (dismissing claim alleging control where disinterested directors served on the boards of between twenty-two and thirty-eight other related funds and received $65,000 or $81,000 for their services); Krantz v. Prudential Inv. Fund Management LLC, 77 F. Supp. 2d 559, 563 (D.N.J. 1999) (dismissing claim that overlapping service on multiple boards of funds advised by the same adviser with an aggregate compensation of up to $135,000 rendered outside directors interested under the ICA); Olesh, 1995 WL 500491, at *21 (compensation of over $50,000 did not render directors interested).
Strougo cites the director approval of the 1996 rights offering, in which the resulting *383 dilution exceeded that originally forecast, as further evidence of control. However, this issue has been litigated and dismissed. See Strougo v. Bassini, 112 F. Supp. 2d 355 (S.D.N.Y.2000). Strougo did not mention these allegations in the Complaint, and the Court has found that the Fund's directors had a reasonable basis for their actions. See id. Strougo also cites a by-law change to give the board exclusive power to amend the by-laws, and an increase in the number of shares required to request a special shareholders' meeting as evidence of control by CSAM. CSAM has explained that these are issues of corporate governance resulting, in part, from changes in the Maryland law.
In the present climate surrounding corporate governance, some of the statements cited by Strougo may well reflect the realities of the marketplace. According to Warren Buffett, the legendary investor and chairman of the Berkshire Hathaway Group:
I think independent directors have been anything but independent. The Investment Company Act, in 1940, made these provisions for independent directors on the theory that they would be the watchdogs for all these people pooling their money. The behavior of independent directors in aggregate since 1940 has been to rubber stamp every deal that's come along from management whether management was good, bad, or indifferent. Not negotiate for fee reductions and so on. A long time ago, an attorney said that in selecting directors, the management companies were looking for Cocker Spaniels and not Dobermans. I'd say they found a lot of Cocker Spaniels out there.
Haywood Kelly, A Quick Q & A with Warren Buffett, Morningstar (May 6, 1998).
A realistic and common sense appraisal of the duties and performance of these directors might well raise a triable issue of influence approaching control, but given the alternative basis for the directors' act advanced by CSAM and set forth in the facts found above under Verkouteren I and Verkouteren II, summary judgment seems required.
C. Excessive Fees Have Not Been Established
The parties agree that the standard for determining fee excessiveness is set forth in Gartenberg v. Merrill Lynch Asset Management, 694 F.2d 923 (2d Cir. 1982). As this Court has stated, Gartenberg requires a plaintiff alleging a Section 36(b) violation to demonstrate that an adviser's fee "is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's length bargaining." Strougo v. BEA Assocs., No. 98 Civ. 3725(RWS), 1999 WL 147737, at *7-8 (S.D.N.Y. March 18, 1999) (quoting Gartenberg, 694 F.2d at 928). Under this standard, the courts weigh the following factors: (1) the nature and quality of services, (2) profitability to the adviser, (3) fall-out benefits, (4) economies of scale, (5) comparative fee structures, and (6) the conscientiousness and care of the directors in approving the fee. Krinsk v. Fund Asset Management, 875 F.2d 404, 409 (2d Cir.1989) (citing Gartenberg, 694 F.2d at 929-30).
Without a direct attack on CSAM's services, Strougo reiterates the discount and the Fund's poor performance in 1997 and 1998. However, performance of the Fund, like the rest of the Gartenberg factors, must be viewed "in the light of all of the surrounding circumstances." Gartenberg, 694 F.2d at 928. The Fund's performance has been negatively impacted by investment restrictions imposed on the Fund and the overall performance of the *384 Brazilian market in which the Fund is required to invest. Given these circumstances, this factor does not support Strougo's claim.
Strougo has not submitted evidence to dispute CSAM's showing that the Fund's fees and expenses are within the range of fees and expenses for similar funds. Without raising additional Gartenberg factors, Strougo raises claims of excessiveness under Section 36(b) based on that fact that the fees were not negotiated at arm's length, are higher than those charged to institutional clients, and the Fund should be closed altogether.
However, it has long been established that there is no requirement to actually negotiate fees at arm's length. See Gartenberg, 694 F.2d at 928; see also S.Rep. No. 91-784 (1970), reprinted in 1970 U.S.C.C.A.N. 4897 (arm's length bargaining not practicable in mutual fund industry). Rather, the standard is "whether the fee schedule represents a charge within the range of what would have been negotiated at arm's length in light of all the surrounding circumstances." Gartenberg, 694 F.2d at 928 (emphasis added).
Strougo has presented evidence that CSAM has a different fee structure for its institutional clients. It has been held that relevant comparison must be to other mutual funds, not to non-mutual fund institutional clients. Schuyt v. Rowe Price Prime Reserve Fund, Inc., 663 F. Supp. 962 (S.D.N.Y.1987), aff'd, 835 F.2d 45 (2d Cir.1987).
Strougo has claimed that CSAM has kept the Fund in existence to "advance CSAM litigation strategy." However, whether the Fund is separate or its assets are part of a merged fund, its fees would be identical.
Although Strougo has maintained that the directors did not have all the information necessary to come to an informed decision regarding the renewal of the Agreement, no relevant information the directors should have received and did not, or any material submitted to the directors by CSAM that was misleading, has been identified.
While the issue of the lower charge made by CSAM to institutional clients might in a first instance produce a triable issue, it no longer does in view of Gartenberg and Schuyt. Under the authorities and despite misgiving, summary judgment is appropriate to dismiss the excessive fee claim.
Conclusion
For the foregoing reasons, the defendant's motion to dismiss the Second Amended Complaint is granted.
It is so ordered.
NOTES
[1] Both the courts and the SEC share concurrent jurisdiction to determine whether the presumption has been rebutted. See SEC v. S & P Nat'l Corp., 360 F.2d 741, 748-49 (2d Cir.1966); Willheim v. Murchison, 342 F.2d 33, 42 n. 6 (2d Cir.1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1592404/ | 922 F. Supp. 299 (1996)
SUMMIT TECHNOLOGY, INC., Plaintiff,
v.
HIGH-LINE MEDICAL INSTRUMENTS COMPANY, INC., et al., Defendants.
No. CV95-6491 ABC (SHx).
United States District Court, C.D. California.
February 28, 1996.
*300 *301 Blanc Williams Johnston & Kronstadt, John A. Kronstadt, John C. Rawls, Cynthia S. Arato, Mona D. Miller, Los Angeles, CA, for plaintiff.
Foley Lardner Weissburg & Aronson, James R. Kalyvas, Shana T. Torem, Los Angeles, CA, for Hi-Line Medical.
Blecher & Collins, Maxwell Blecher, Alicia Rosenberg, William C. Hsu, Los Angeles, for Kenneth York/York Lago Eye Center.
Alioto & Alioto, John Alioto, Linda Alioto, San Francisco, CA, for William Ellis/Eye Center of No. Calif.
ORDER RE: DEFENDANTS' MOTIONS TO DISMISS
COLLINS, District Judge.
Defendants' motions to dismiss came on regularly for hearing before this Court on February 5, 1996. After reviewing the materials submitted by the parties, argument of counsel, and the case file, it is hereby ORDERED that Defendants' motions are GRANTED.
I. Background
This case concerns a dispute over the use and distribution of "excimer" laser devices used by opthamologists in laser eye surgery. Plaintiff SUMMIT TECHNOLOGY, INC. ("Summit") is a Massachusetts corporation that develops, manufactures, sells, and services laser systems for opthamologists. These laser systems can be used to correct a variety of vision disorders such as myopia, astigmatism, farsightedness, or cataracts. Summit holds a registered trademark in the name "Summit Technology." (Trademark No. 1785393).
On September 28, 1995, Summit filed a Complaint against Defendants HIGH-LINE MEDICAL INSTRUMENTS COMPANY, INC., d/b/a HI-LINE MEDICAL ("Hi-Line"), KENNETH K. YORK and YORK LASER EYE CENTER ("York" Defendants), WILLIAM ELLIS and EYE CENTER OF NORTHERN CALIFORNIA, INC. ("Ellis" Defendants), and PARIS E. ROYO, PARIS E. ROYO, INC. and ROYO EYE CENTER MEDICAL GROUP ("Royo" Defendants). Essentially, Summit asserts that Defendants have unlawfully imported, advertised, promoted, used, or serviced Summit Excimer Laser Systems which have not been approved by the United States Food and Drug Administration ("FDA"). The Complaint asserts causes of action for false and misleading advertising under § 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) (against all Defendants), importation of goods bearing infringing marks or names (15 U.S.C. § 1124) (against Hi-Line), infringement of a registered trademark (15 U.S.C. § 1114) (against Hi-Line and York), copyright infringement (against Hi-Line), a second count of copyright infringement (against York, Ellis, and Royo), unfair competition in violation of Cal.Bus. & Prof.Code § 17200 (against all Defendants), common law unfair competition (against all Defendants), false and misleading statements in violation of Cal.Bus. & Prof.Code § 17500 (against all Defendants), and violation of the Sherman Food, Drug, and Cosmetic Law (Cal.Health & Safety Code §§ 26000-26851. The substance of these allegations will be addressed in further detail below.
On November 20, 1995, Defendant Hi-Line and the York Defendants filed separate motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On the same date, the Royo Defendants filed a motion to dismiss, or in the alternative, a motion for summary judgment. The Ellis Defendants filed another motion to dismiss on November 21, 1995. On December 22, 1995, Summit filed a Consolidated Opposition to these motions to dismiss. This Opposition was filed under seal, subject to a protective order. On January 22, 1996, the York Defendants and Hi-Line filed separate Reply briefs. Neither the Ellis Defendants nor the Royo Defendants have filed Reply briefs. On Friday, February 2, 1996, the Court received word that Plaintiff and the Royo Defendants had reached a tentative settlement. Because of *302 this, the Court will not address the Royo motion.
II. Plaintiff's Allegations
As stated above, Summit is a Massachusetts corporation that develops, manufactures, sells, and services opthamological laser systems for treatment of a variety of eye disorders. Compl. ¶¶ 14 & 24. Summit holds a registered trademark in the name "Summit Technology." Compl. ¶ 26. In the past decade, Summit has manufactured and sold a variety of optic laser systems for use abroad and in the United States. The Summit Excimer Laser System's[1] multiple parts, housed in a single unit, include laser systems and motors that control the precise movements of the laser. In addition, the laser systems include copyrighted software which controls the operation of the laser. Compl. ¶ 25.
Until very recently, the Summit Excimer Laser System had not been approved by the Food and Drug Administration ("FDA") for use or distribution in the United States. The FDA has been considering commercial approval of the system for various surgical procedures for many years. During this period, the FDA has, however, permitted investigational use of the device at U.S. universities to facilitate data collection about the safety and effectiveness of the Excimer Laser System. Compl. ¶ 4. Pending FDA approval, Summit has successfully marketed earlier versions of the Summit Excimer Laser System (at issue in this case) in approximately 45 foreign countries, including Canada, Mexico, and several European nations. In many of these countries, the Summit Excimer Laser System is legally used to perform both photorefractive keratectomy ("PRK") and phototherapeutic keratectomy ("PTK"). Compl. ¶¶ 7 & 37.
On March 10, 1995, the FDA approved the Summit Excimer Laser System to perform commercial PTK in the United States. PTK is a therapeutic procedure for treating certain corneal pathologies, such as corneal opacities, growths or scars. Compl. ¶ 5. On September 18, 1995, Summit received formal notice that the FDA had approved the Summit Excimer Laser System to treat myopia with PRK. However, the FDA has not yet given final authorization for commercial use of the Summit Excimer Laser for PRK in the United States. Compl. ¶ 6.
According to the Complaint, the Summit systems sold in foreign countries differ significantly from the Summit system currently marketed in the United States (after FDA approval). For example, many of the foreign models are incapable of performing PRK with the six millimeter optical zone procedure required by the FDA. However, both the foreign and domestic models bear the same trademark, "Summit Technology." Compl. ¶ 40.
Defendant Hi-Line is a California corporation engaged in the business of buying and selling used medical equipment. Hi-Line has acquired legally exported Summit Excimer Laser Systems used in foreign countries and then re-imported or facilitated the re-importation of these systems for distribution in the United States. Hi-Line may also have acted as a broker, arranging or facilitating the sale of foreign Summit Excimer Laser Systems to domestic purchasers in exchange for monetary compensation. Compl. ¶ 41. Hi-Line has also advertised in the United States the availability of used Summit Excimer Laser Systems for purchase in this country. These advertisements (one of which is attached as Exhibit C to the Complaint) feature allegedly unauthorized photographs of Summit Excimer Laser Systems. Compl. ¶ 42.
In some of its advertisements, Hi-Line includes a reprint of a trade press article, which features the banner headline: "FDA APPROVES SUMMIT EXCIMER FOR PTK" and states that the used Summit Excimer Laser Systems offered by Hi-Line are "perfectly reliable." The trade press article also refers to the expected future approval of the Summit Excimer Laser System for commercial PRK. Compl. ¶ 43. Plaintiff contends that Hi-Line's advertisements are false and misleading because they fail to disclose that the Summit systems sold by Hi-Line are not approved by the FDA for sale or use in the United States, and that the FDA *303 disapproves of the domestic use of re-imported Summit Excimer Laser Systems. In addition, Plaintiff asserts that Hi-Line's advertisements fail to disclose that the Summit systems sold by Hi-Line are materially different from Summit systems that have been approved for use in the United States. Finally, Plaintiff alleges that Hi-Line's advertisements are false and misleading because they do not disclose that Summit has not serviced or maintained the used Summit machines offered by Hi-Line. Summit contends that Hi-Line's false advertising has created (and is likely to create) consumer confusion, has eroded Summit's goodwill, and constitutes a danger to the public.
On April 28, 1995, the FDA sent a warning letter to Hi-Line concerning its re-importation and distribution of used Summit systems (attached as Exhibit D to the Complaint). The FDA warned Hi-Line that a re-imported Summit Excimer Laser System could not lawfully be offered for sale in the United States and that Hi-Line should not import any additional systems for commercial distribution. Compl. ¶ 45.
Defendant Kenneth K. York is a California physician who is apparently the principal of Defendant York Laser Eye Center (collectively "York"). Compl. ¶¶ 16-17. York acquired a used Summit system which Summit originally sold to a person or entity outside the United States. Compl. ¶ 48. York has promoted and advertised this fact by writing letters to other physicians advising them that he has purchased a Summit system and would like to make the system available to other qualified opthamologists, in exchange for a "user fee." (a copy of such a letter is attached to the Complaint as Exhibit E). Compl. ¶ 49. The Complaint alleges that the statements in York's letters are false and misleading in the same way that the Hi-Line statements are false and misleading. Compl. ¶ 50.
In addition, York has advertised the availability of PRK in magazines and newspapers and on billboards (copies of such advertisements are attached to the Complaint as Exhibit F). These advertisements are directed primarily at prospective patients and state that the York Laser Eye Center is "the only fully operational, non-investigational laser center on the West Coast." The advertisements state that PRK is now available at the York Laser Eye Center. The advertisements further state that York is using "custom laser instrumentation" to perform PRK. Compl. ¶ 51. Summit alleges that York's advertisements are false and misleading and are therefore likely to cause consumer confusion, erode Summit's goodwill, and present a danger to the public.[2]
Defendant William Ellis is a licensed California physician who owns Defendant Eye Center of Northern California (collectively "Ellis"). Compl. ¶ 19. Ellis acquired a used Summit Excimer Laser System which Summit originally sold to a person or entity outside the United States. Compl. ¶ 55. Ellis has promoted and advertised his used Summit system by placing a radio advertisement (the transcript of the radio advertisement is attached to the Complaint as Exhibit G) stating that he is "the first in the Bay Area to have the Excimer Laser," and that he offers "Laser PTK." The advertisement also states that the FDA "has now approved the Excimer Laser for therapeutic use[.]" Compl. ¶ 56. On August 11, 1995, the FDA sent a letter to Ellis, warning him that his re-imported Summit system was not approved for commercial use in the United States. The letter is attached to the Complaint as Exhibit H. Compl. ¶ 57. Summit alleges that Ellis' advertisements are false and misleading, and therefore harmful in all the ways discussed above. Compl. ¶¶ 58 & 60.
Summit contends that all Defendants have made false statements that are likely to cause confusion, cause mistake or deceive as to the affiliation, connection or association of Defendants with Summit, or as to the origin, sponsorship or approval by Summit of Defendants' goods, services, or commercial activities, in violation of § 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) and Cal.Bus. & Prof.Code § 17500. Compl. ¶ 67. In addition, *304 Plaintiff alleges that Hi-Line has re-imported foreign versions of Summit's system, without Summit's authorization, that differ in material respects from the version sold by Summit in the United States. According to Plaintiff, Hi-Line's actions violate § 42 of the Lanham Act by causing the public to believe that the re-imported Summit systems sold by Hi-Line are the same as the Summit systems lawfully distributed in the United States. Compl. ¶¶ 72-73. Plaintiff also contends that Hi-Line and York have infringed Summit's registered trademark, in violation of § 32(1)(a) of the Lanham Act (15 U.S.C. § 1114(1)(a)), by importing, advertising, distributing, and using goods bearing the Summit mark. Compl. ¶ 78-79.
Further, Summit owns copyrights in the Summit software. On September 26, 1995, Summit filed an Application for registered copyrights in its computer programs, all of which had originally been published in 1989 and 1990. (Copyright registration applications are attached to Plaintiff's Complaint as Exhibit J). Compl. ¶¶ 84-85. Summit argues that Hi-Line has infringed Plaintiff's copyrights by importing copies of Summit software obtained in foreign countries into the United States without Summit's authorization, and then by selling or distributing the copies domestically. Compl. ¶ 86. York and Ellis also allegedly infringe Summit's copyrights by simply using the Summit laser system. Every time they turn on their Summit systems, the software is copied onto their Random Access Memory ("RAM") chips. Because York and Ellis are not so authorized, Plaintiff contends that this conduct violates Summit's copyrights. Compl. ¶¶ 91-94.
Finally, Summit alleges several claims based on state law, including causes of action for unfair competition and false advertising under Cal.Bus. & Prof.Code §§ 17200 & 17500 and common law. Compl. ¶¶ 98-101 & 107-09. In addition, Plaintiff contends that all the Defendants have violated the California Sherman Food, Drug, and Cosmetic Law (Health & Safety Code § 26000-26851). Compl. ¶¶ 119-21. Plaintiff seeks injunctive relief, damages, treble damages, recovery of profits, attorney's fees, and injunctive relief.
III. Discussion
A. Standard for Motion to Dismiss for Failure to State a Claim
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988).
A court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); see also Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir.1980) (finding that the complaint must be read in the light most favorable to the plaintiff). However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S. Ct. 567, 70 L. Ed. 2d 474 (1981); Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S. Ct. 2096, 23 L. Ed. 2d 748 (1969).
Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (e.g., facts presented in briefs, affidavits, or discovery materials). Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir.1991), overruled on other grounds by Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., et al., ___ U.S. ___, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994). A court may, however, consider exhibits submitted with the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 *305 (9th Cir.1989); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir.1986), abrogated on other grounds by Astoria Federal Savings and Loan Ass'n v. Solimino, 501 U.S. 104, 111 S. Ct. 2166, 115 L. Ed. 2d 96 (1991).
Lastly, a Rule 12(b)(6) motion "will not be granted merely because [a] plaintiff requests a remedy to which he or she is not entitled." Schwarzer, et al., Civil Procedure Before Trial § 9:230. "It need not appear that plaintiff can obtain the specific relief demanded as long as the court can ascertain from the face of the complaint that some relief can be granted." Doe v. United States Dept. of Justice, 753 F.2d 1092, 1104 (D.C.Cir.1985); see also Doss v. South Central Bell Telephone Co., 834 F.2d 421, 425 (5th Cir.1987) (demand for improper remedy not fatal if claim shows plaintiff entitled to different form of relief).
B. Analysis
Before the Court are three separate motions to dismiss pursuant to Federal Rule 12(b)(6). However, because the motions overlap in many of their arguments, the Court will not address each motion separately. Rather, the Court will address each motion's arguments in the context of each cause of action.
1. Plaintiff's First Cause of Action Against All Defendants for False and Misleading Statements (15 U.S.C. § 1125(a))
Defendants have submitted several arguments as to why Plaintiff's first cause of action must be dismissed. First, all three Defendants contend that Plaintiff's first cause of action fails because it impermissibly attempts to redress alleged violations of the Federal Food, Drug, and Cosmetics Act ("FDCA") (21 U.S.C. § 301 et seq.), a function exclusively within the jurisdiction of the FDA. Second, Hi-Line asserts that its advertisements are, as a matter of law, not false and misleading under the Lanham Act. Third, Ellis contends that the first cause of action must fail because of the so-called "First Sale" doctrine. Because the Court finds that Plaintiff's § 43(a) claim is essentially a claim under the FDCA, the Court need not reach the other arguments.
Under 21 U.S.C. § 337(a), the FDCA provides that "all such proceedings for the enforcement, or to restrain violations, of [the Act] shall be by and in the name of the United States."[3] Courts have generally interpreted this provision to mean that no private right of action exists to redress alleged violations of the FDCA. See Gile v. Optical Radiation Corp., 22 F.3d 540, 544 (3d Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 429, 130 L. Ed. 2d 342 (1994) (citing Pacific Trading Co. v. Wilson & Co., Inc., 547 F.2d 367, 370 (7th Cir.1976) ("violations of the FDCA do not create private rights of action"); Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1139 (4th Cir.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1307, 127 L. Ed. 2d 658 (1994) (citing the same principle); Ginochio v. Surgikos, Inc., 864 F. Supp. 948, 956 (N.D.Cal. 1994) (citing various courts that have held that "there is no private cause of action for violation of the Food, Drug, and Cosmetic Act."). Rather, courts have found that the right to enforce the provisions of the FDCA lies exclusively within the federal government's domain, by way of either the FDA or the Department of Justice. See Fender v. Medtronic, Inc., 887 F. Supp. 1326, 1329 (E.D.Cal.1995) (the FDCA "gives the FDA comprehensive regulatory authority over medical devices.").
In its Complaint, Plaintiff alleges that by failing to disclose that their re-imported used and/or modified Summit Excimer Laser Systems are not approved by the FDA, all Defendants have engaged in false advertising under § 43(a) of the Lanham Act. In addition, Plaintiff alleges that Defendants have unlawfully failed to disclose (1) that the used or modified systems are materially different from the FDA-approved systems; (2) that Summit has not serviced the machines and cannot do so under FDA regulations; (3) that proper maintenance and training is of *306 critical importance; and (4) that the Defendants cannot provide the required Summit service or training. Plaintiff's allegations all turn on whether Defendants have failed to disclose the allegedly illegal status of their re-imported systems, or whether Defendants have failed to disclose that, under FDA regulations, Summit has not been able to maintain the machines or train users.
After carefully reviewing the Complaint, the Court agrees with Defendants that Plaintiff's false and misleading advertising allegations circumvent 21 U.S.C. § 337(a)'s denial of a private right of action to enforce violations of the FDCA. Although there is no Ninth Circuit authority on point, the Court finds the Fourth Circuit's recent ruling in Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1139 (4th Cir.1993) extremely persuasive. In Mylan, the Fourth Circuit found that, absent an affirmative misrepresentation that a drug had been officially approved by the FDA, a Lanham Act claim alleging that the defendant had failed to disclose FDA non-approval could not stand. The court found that "permitting [plaintiff] to proceed on the theory that the defendants violated § 43(a) merely by placing their drugs on the market would, in effect permit [plaintiff] to use the Lanham Act as a vehicle by which to enforce the Food, Drug, and Cosmetic Act ("FDCA") and the regulations promulgated thereunder." Mylan, 7 F.3d at 1139. To state a claim under § 43(a), the plaintiff was required to point to "some claim or representation that is reasonably clear from the face of the defendants' advertising[.]" Id. at 1139. Absent this, the Lanham Act claim strayed too close to the exclusive enforcement domain of the FDA.
The rationale of the Mylan rule applies forcefully in this case. In short, the FDA has not yet determined whether or not the re-imported Summit devices need further approval at all. It is evident from the Complaint (and the accompanying exhibits) that the FDA is continuing to investigate whether Defendants have actually violated FDA regulations by marketing the use of the re-imported machines. And, regardless of any warning letters that the FDA may have sent to Defendants, it is clear that the FDA has not completed this investigation. See Dietary Supplemental Coalition, Inc. v. Sullivan, 978 F.2d 560, 563 (9th Cir.1992), cert. denied, 508 U.S. 906, 113 S. Ct. 2333, 124 L. Ed. 2d 245 (1993) (citing Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1377 (9th Cir.1983) (holding that FDA regulatory letters do not constitute final agency action). Indeed, after further review, the FDA could ultimately decide that the re-imported systems are so similar to the approved domestic systems that further approval procedures are unnecessary. Plaintiff's Lanham Act cause of action would thus "usurp[] the FDA's discretionary role in the application and interpretation of its regulations." Fender, 887 F.Supp. at 1332. It would force this Court to rule on the legality of Defendants' conduct before the FDA has had a chance to do so.
As such, this would use the Lanham Act as a vehicle for enforcing the requirements of the FDCA. As stated by the Third Circuit in Sandoz Pharmaceuticals v. Richardson-Vicks, Inc., 902 F.2d 222 (3d Cir. 1990), "what the FD & C Act ... [does] not create directly, the Lanham Act does not create indirectly[.]" Id. at 231. A Lanham Act cause of action cannot stand if it alleges that a defendant has failed to disclose the fact of FDA non-approval, when the FDA has not yet determined whether or not the product in question has been approved. Simply put, the Lanham Act does not allow a federal court to "determine preemptively how a federal agency will interpret and enforce its own regulations." Id.[4]
*307 The one case cited by Plaintiff, Grove Fresh Distributors, Inc. v. The Flavor Fresh Foods, Inc., 720 F. Supp. 714, 715 (N.D.Ill. 1989), does not assist Plaintiff's position. In fact, Grove Fresh only reinforces this Court's interpretation and adoption of the Mylan/Sandoz rule. In Grove Fresh, the defendants sold orange juice labelled as "100% Orange Juice from Concentrate[.]" Plaintiff sued under § 43(a) of the Lanham Act, asserting that because defendants' product was not 100% orange juice, its labelling was false and misleading. The defendants argued that the Lanham Act claim restated an FDCA claim because FDA regulations provided the definition of 100% pure orange juice. Nevertheless, the district court found that the claim was not an FDCA cause of action because, even without the FDA's orange juice definition, plaintiff could still establish a violation of § 43(a) indeed, the commercial definition of pure orange juice could be determined without any reference to FDA regulations.
Furthermore, Grove Fresh involved the affirmative misrepresentation of a fact the actual ingredients of the juice. Clearly, under both Mylan and Grove Fresh, a plaintiff may bring a Lanham Act cause of action for affirmatively misrepresenting facts, even if the truth of those facts may be governed by FDA regulations. See also Pfizer, Inc. v. Miles, Inc., 868 F. Supp. 437, 449 (D.Conn. 1994) (literally false statements concerning areas of the FDA's purview can be actionable under the Lanham Act). By contrast, this case involves the failure to disclose a "fact," the truth of which is currently being reviewed and determined by the FDA.
Therefore, because Plaintiff's Lanham Act action would essentially act as a private vehicle for enforcing FDCA and FDA regulations, it must be dismissed as to all Defendants.[5]
2. Plaintiff's Second and Third Causes of Action Against Hi-Line Under 15 U.S.C. §§ 1114 & 1124
In its second and third causes of action, Plaintiff asserts that Hi-Line has violated Summit's trademark rights by importing goods bearing infringing marks or names, thus infringing Summit's registered trademark. Because the second and third causes of action both turn on whether the allegedly infringing goods are "genuine" and whether the "first sale" doctrine applies, the Court will address both claims together.
An action for trademark infringement under § 32 of the Lanham Act (15 U.S.C. § 1114) arises when "[a]ny person ... without the consent of the registrant ... use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods ... in connection with such use [which] is likely to cause confusion." § 1114(1)(a). The "touchstone" of liability under § 32 is, of course, the "likelihood of confusion as to the source of the goods." John Paul Mitchell Systems v. Pete-N-Larry's Inc., 862 F. Supp. 1020, 1023 (W.D.N.Y. 1994). Accordingly, "[a]n action will not arise where the goods being sold are genuine goods bearing a true mark." Polymer Technology Corp. v. Mimran, 37 F.3d 74, 78 (2d Cir.1994). Additionally, "[t]rademark law generally does not reach the sale of genuine goods bearing a true mark even though such sale is without the mark owner's consent." NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506, 1509 (9th Cir.), cert. denied, 484 U.S. 851, 108 S. Ct. 152, 98 L. Ed. 2d 108 (1987). "Once a trademark owner sells his product, the buyer ordinarily may resell the product under the original mark without incurring any trademark liability." Id. at 1509; Sebastian Int'l, Inc. v. Longs Drug Stores Corp., 53 F.3d 1073, 1074 (9th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct. 302, 133 L. Ed. 2d 207 (1995) ("Resale by the first purchaser of the original article under the producer's trademark is neither trademark infringement nor unfair competition."); Matrix Essentials v. Emporium Drug Mart, 988 F.2d 587, 590 (5th Cir.1993) (stating the same principle).
*308 Section 42 of the Lanham Act (15 U.S.C. § 1124) bars the import into the United States of merchandise that
... cop[ies] or simulate[s] the name of ... any domestic manufacture, or manufacturer ... or which shall copy or simulate a trademark registered ... or shall bear a name or mark calculated to induce the public to believe that the article is manufactured in the United States, or that it is manufactured in any foreign country or locality other than the country or locality in which it is in fact manufactured[.]
§ 1124. This section "undeniably bespeak[s] an intention to protect domestic trademark holders from foreign competitors who seek a free ride on the goodwill of domestic trademarks." Lever Bros. Co. v. United States, 877 F.2d 101, 105 (D.C.Cir.1989). However, "the importation of a ... good identical to a good authorized for sale in the domestic market does not violate section 42," so long as the identical good is sold under the identical mark. Societe Des Produits Nestle v. Casa Helvetia, 982 F.2d 633, 639 (1st Cir.1992). Accordingly, under both sections 32 and 42, the analysis turns on whether the allegedly infringing goods are genuine or "differ materially" from the plaintiff's goods. Id. at 638-39.
In this case, Summit alleges that, over the last decade, it has developed its Excimer Laser Systems and sold them in foreign countries. Summit further alleges that Hi-Line has acquired used Summit systems in foreign countries and then re-imported them into the United States for sale. Summit does not allege that Hi-Line has altered the systems in any way. Indeed, Summit does not assert that the re-imported systems are not "Summit" products.
Regardless, Summit alleges that the re-imported used systems are not genuine Summit products because they "differ materially" from Excimer Laser Systems intended for domestic use. Nestle, 982 F.2d 633 at 638. Summit asserts that unlike the Excimer Laser Systems authorized for domestic distribution, the re-imported used systems are not approved by the FDA, are materially different in other respects, and are not subject to the same Summit quality controls as the domestic systems. In addition, Summit asserts that consumers will be misled into believing that Summit authorizes the sale and use of these re-imported goods in the United States. Hi-Line responds that because Summit actually manufactured and initially sold the re-imported used systems, they are indeed "genuine" Summit products. Hi-Line further argues that because the used systems are genuine, and Summit did not restrict the rights of the foreign buyers, the section 32 and 42 claims are barred by the so-called "first sale" doctrine, as stated in NEC and Sebastian.
At first glance, this appears to be a rather simple issue. Indeed, if the facts alleged all occurred within the United States, this would be an extremely easy case. Under the "first sale" doctrine, Summit simply could not prevent its used products (distributed subsequent to Summit's "first sale") from competing with its new products. What makes this issue more complex, however, is that Summit products intended, approved, and sold for foreign use have been injected into the domestic market and are now in competition with new Summit laser systems. Summit asserts that because the used foreign Summit products are "materially different" from the Summit products approved by the FDA and authorized by Summit for domestic distribution, the "first sale" rule cannot apply. Therefore, any importation of such products or their subsequent distribution in the United States constitutes trademark infringement.
The Court does not agree. The essential fact remains that, based on the allegations in the Complaint, the re-imported laser systems are Summit products, manufactured and sold by Summit itself. Compl. ¶ 24; Plaintiff's Opposition at 3 & 6. Thus, consumers will not be confused as to whether the re-imported laser systems are "Summit" systems they are. There is no "likelihood of confusion as to the source of the goods," which, based on Plaintiff's allegations, is Summit. John Paul Mitchell, 862 F.Supp. at 1023. Therefore, regardless of the international dimension of this case, the Ninth Circuit's rulings in NEC and Sebastian apply to bar Plaintiff's claims. As stated by the Ninth *309 Circuit, "the right of a producer to control distribution of its trademarked product does not extend beyond the first sale of the product." Sebastian, 53 F.3d at 1074. Under Sebastian, Summit simply cannot use trademark law to control the downstream distribution of products that Summit itself manufactured and sold. The mere fact that Summit sold its goods abroad rather than domestically does not create an exception to the "first sale" doctrine.
Moreover, the fact that Summit sold different goods in different markets for different prices does not render the "first sale" rule inapplicable. As discussed by the Ninth Circuit in NEC, if Summit chooses to price its goods differently, or manufacture different goods for different countries, it cannot look to the Lanham Act to protect its domestic market. NEC, 810 F.2d at 1511. Simply put, if Summit manufactures laser systems which differ from those designed for use in the United States, and sells them in foreign markets, Summit does so at its own risk. If Summit desires to protect its U.S. systems from competition from used Summit models originally intended for foreign use, Summit must look to other sources of protection, such as exclusive licensing or restrictive distribution agreements. Under the "first sale" doctrine, Summit clearly cannot look to trademark law for support.
Summit's reliance on Nestle, Original Appalachian Artworks v. Granada Electronics, 816 F.2d 68 (2d Cir.), cert. denied, 484 U.S. 847, 108 S. Ct. 143, 98 L. Ed. 2d 99 (1987) and other "gray market" goods cases is misplaced. As discussed by the Third Circuit, "[t]he term `gray-market goods' refers to foreign manufactured goods, for which a valid United States trademark has been registered, that are legally purchased abroad and imported into the United States without the consent of the American trademark holder." Weil Ceramics & Glass, Inc. v. Dash, 878 F.2d 659, 662 n. 1 (3d Cir.), cert. denied, 493 U.S. 853, 110 S. Ct. 156, 107 L. Ed. 2d 114 (1989).[6] For example, Nestle involved chocolates distributed under the American trademark "Perugina" (owned by Nestle), manufactured by a Nestle licensee in Venezuela, and then imported into the United States. See also Lever, 877 F.2d 101 (U.S. manufacturer sues to force Customs Service to exclude goods made by related U.K. manufacturer under the same trademark); Original Appalachian, 816 F.2d 68 (U.S. trademark owner sued for injunction against distribution of foreign manufactured "Cabbage Patch" dolls).
Often, the problem in a "gray market" situation is that "goods bearing identical trademarks are sold at different prices in two different geographical regions. Because of the price difference, there are incentives for an arbitrageur to buy goods in the market with the lower price and resell those goods in other markets at higher prices." Shubba Ghosh, An Economic Analysis of the Common Control Exception to Gray Market Exclusion," 15 U.Pa.J.Int'l Bus.L. 373 (1994) (Westlaw page reference *2). In addition, although the "gray market" imports bear the same mark, they may be of lesser quality than the domestic products. Accordingly, they may disappoint consumers who are deceived into believing that the "gray market" products are the domestic articles, adversely affecting the U.S. trademark holder's goodwill. Therefore, because trademark law protects both the "producer's investment in goodwill and product quality and the consumer's interest in reducing search costs and being assured of product quality," (see Ghosh, *49) courts have generally held that "gray market" goods infringe trademark rights if they "differ materially" from similar domestic goods sold under the same mark. See also J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 29.19[4] ("if there are material differences between the gray market imports and the authorized imports, then the gray market imports are not `genuine' imports and can create a likelihood of confusion."). Thus, in Nestle, the First Circuit found infringement because the Venezuelan manufactured chocolates *310 differed materially from the "Perugina" chocolates manufactured in Italy and authorized for the U.S. market. Similarly, in Original Appalachian, the Second Circuit found infringement when Spanish made "Cabbage Patch" dolls were imported into the United States and differed materially from their U.S. made counterparts.
But this is not a "gray market" goods case. Unlike the typical "gray market" situation, all the "Summit" products at issue are manufactured and distributed by Summit itself. The new and used Summit products are thus not "parallel" products they are all "genuine" Summit-made products. Accordingly, there is no danger that consumers are likely to be confused as to the source of the Summit laser systems the main concern of trademark law. On the face of the Complaint, Summit admits that all of the laser systems in question are manufactured and distributed by Summit itself, not by any foreign manufacturer. Although the various laser systems may have "material" differences, they are all genuine Summit manufactured products none are "gray market" goods.
Accordingly, the "gray market" analysis applied in Nestle, Original Appalachian, and Lever does not apply in this case. Nor should it. Underlying the "gray market" cases is the concern that consumers will be deceived by lesser quality goods manufactured by foreign licensees of the U.S. trademark holder. In most of these cases, the U.S. trademark holder does not have direct control over the manufacture or initial distribution of the goods in question. Rather, the U.S. trademark holder is subjected to competition from imported goods made and initially distributed by a foreign affiliated corporation with a foreign trademark (as in Lever), or initially made and distributed in a foreign market by a foreign licensee (as in Nestle). The U.S. trademark holder has no direct control over the manufacture, quality, or initial distribution of the products.
By contrast, in this case, Summit has direct control over the quality, contents, manufacture, and initial distribution of all of the laser systems at issue. The U.S. trademark holder, Summit, has chosen to sell systems abroad that may differ from those designed for the U.S. market. However, these "foreign" models are "genuine" Summit goods, manufactured and initially distributed under Summit quality control standards.[7] The fact that used Summit systems are now in competition with new systems intended for U.S. use is not a matter of trademark law concern. Certainly, Summit might have dealt with this problem by drafting restrictive licensing *311 agreements or barring foreign purchasers from re-importing the Summit machines into the United States. Summit apparently failed to do this. It cannot now turn to trademark law to remedy this failure.
Thus, for all the reasons discussed above, Summit's second and third causes of action for trademark law violations must be dismissed. It is quite clear that "[r]esale by the first purchaser of the original article under the producer's trademark is neither trademark infringement nor unfair competition." Sebastian, 53 F.3d at 1074. Under this "first sale" doctrine, Summit simply cannot control the downstream distribution of products it originally sold in foreign markets. Because Summit's trademark claims against Hi-Line attempt to do this, they must be dismissed.[8]
3. Summit's Third Cause of Action Under 15 U.S.C. § 1114 Against York
The parties do not indicate how the "first sale" analysis would be different as to York, and the Court does not perceive a difference. Therefore, Plaintiff's third cause of action for trademark infringement against York must also be dismissed.
4. Summit's Fourth Cause of Action for Copyright Infringement Against Hi-Line
In its fourth cause of action, Plaintiff alleges that Hi-Line has infringed Summit's copyright by re-importing the computer software accompanying the laser systems for distribution in the United States. Hi-Line asserts that this claim also must be dismissed under the "first sale" rule.
This issue is complicated by several seemingly contradictory provisions of the Copyright Act. Under 17 U.S.C. § 106(3), a copyright owner has the exclusive right to "distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending[.]" However, the distribution right is not absolute. It must give way "where the copyright owner first consents to the sale or other distribution of copies or phonorecords of his work." Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.12[A]. Accordingly, under 17 U.S.C. § 109(a), "the owner of a particular copy or phonorecord lawfully made ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." Section 109(a) is the copyright law's expression of the "first sale" doctrine. In essence, "a sale of a `lawfully made' copy terminates the copyright holder's authority to interfere with subsequent sales or distribution of that particular copy." Parfums Givenchy, Inc. v. Drug Emporium, Inc., 38 F.3d 477, 480 (9th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1315, 131 L. Ed. 2d 197 (1995). "[A]t that point, the policy favoring a copyright monopoly for authors gives way to policies disfavoring restraints of trade and limitations on the alienation of personal property[.]" Parfums Givenchy, Inc. v. C & C Beauty Sales, Inc., 832 F. Supp. 1378, 1388 (C.D.Cal.1993); see also Sebastian Int'l, Inc. v. Consumer Contacts (PTY) Ltd., 847 F.2d 1093, 1096 (3d Cir.1988) (the first sale rule "finds its origins in the common law aversion to limiting the alienation of personal property.").
Co-existing with §§ 106(3) & 109(a) is 17 U.S.C. § 602(a). Under § 602(a), "[i]mportation into the United States, without the authority of the owner of copyright ... of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106." This section was enacted as part of the 1976 Copyright Act "in response to concerns *312 expressed by representatives of the printing and recording industries that ... unauthorized importation infringed the rights of United States copyright owners." C & C Beauty Sales, 832 F.Supp. at 1390. Section 602(a) addressed these concerns by making "the mere act of importation regardless of sale an infringement of Section 106(3)'s distribution right, and prohibits unauthorized importation, not only of pirated copies, but also of copies that were lawfully made." Id. (citing H.R.Rep. No. 1476, at 169-70, reprinted in 1976 U.S.C.C.A.N. 5659, 5785-86). Essentially, the section "ensures that a U.S. copyright owner will gain the full value of each copy sold in the United States, by preventing the unauthorized importation of copies sold abroad from being used as a means of circumventing the copyright owner's distribution rights in the United States." Parfums, 38 F.3d at 481.
Harmonizing § 109(a) with § 602(a) has proven to be quite challenging. As stated in a recent law review comment, "[i]t is unclear whether § 602(a) is limited by the first sale doctrine or if it is exempt from the doctrine's limitations when goods are legitimately first sold abroad and then imported into the United States. If the doctrine does not affect a sale of goods abroad, unauthorized importations can be restricted. However, if § 109(a) remains in effect, such importations cannot be prevented." Donna K. Hintz, Comment, Battling Gray Market Goods With Copyright Law, 57 Albany L.Rev. 1187, 1208 (1994); see also Nimmer & Nimmer, Nimmer on Copyright § 8.12[B][6] (recognizing the possible conflict between §§ 109(a) and 602(a)); Doris R. Perl, Comment, The Use of Copyright Law to Block the Importation of Gray-Market Goods: The Black and White of It All, 23 Loy.L.A.L.Rev. 645, 651 (1990) ("sections 602(a) and 109(a) appear to conflict when copyrighted goods sought to be imported have undergone a first sale.").
Reviewing the case law, the courts appear to be in agreement in one respect: "sales abroad of foreign manufactured United States copyrighted materials do not terminate the United States copyright holder's exclusive distribution rights in the United States under §§ 106 and 602(a)." Parfums Givenchy, 38 F.3d at 482 n. 8. See also T.B. Harms Co. v. Jem Records, Inc., 655 F. Supp. 1575, 1583 (D.N.J.1987) (§ 602(a) applied in case where goods were manufactured and initially sold abroad); Hearst Corp. v. Stark, 639 F. Supp. 970, 977 (N.D.Cal.1986) ("section 109 does not limit the application of section 602 where defendants make wholesale importations into the United States of copyrighted materials manufactured outside the country."); Columbia Broadcasting System, Inc. v. Scorpio Music Distributors, Inc., 569 F. Supp. 47 (E.D.Pa.1983), aff'd, 738 F.2d 421 (3d Cir.1984) (coming to the same conclusion). In other words, under § 602(a), if a U.S. copyright holder licenses other entities to manufacture and sell copies of its works outside the United States, that copyright owner can prevent these foreign manufactured and purchased works from being sold and competing in the domestic market.[9] Section 602(a), therefore, clearly provides protection to domestic copyright owners in the classic "gray market" goods situation: where the domestic copyright owner's copies (which are intended for domestic sale) are placed in competition with identical copies manufactured and sold abroad.[10]See also Nimmer & Nimmer, Nimmer on Copyright § 8.12[B][6] n. 104 ("it is accurate to state that the Copyright Act bars the importation of gray market goods[.]").
However, as discussed above, this is not a classic "gray market" goods case. In this *313 case, Summit's laser systems were manufactured in the United States by Summit, sold by Summit abroad when sales in the U.S. had not been approved by the FDA, and then re-imported by subsequent owners into the United States. Therefore, none of the cases cited above directly control this case. Indeed, in both BMG Music v. Perez, 952 F.2d 318 (9th Cir.1991), cert. denied, 505 U.S. 1206, 112 S. Ct. 2997, 120 L. Ed. 2d 873 (1992) and Parfums Givenchy, the Ninth Circuit expressly declined to rule on a factual scenario similar to the instant case. See Parfums Givenchy, 38 F.3d at 482 n. 7; BMG, 952 F.2d at 319 n. 3. Only a handful of cases have addressed the situation presented in this case where the goods are manufactured in the United States by the copyright holder, sold abroad, and then re-imported into the United States. In the Third Circuit's Sebastian case, the plaintiff was a California corporation which manufactured beauty supplies in the United States. It held copyrights in the text and artistic content contained on the product's labels. The plaintiff sold the supplies to the defendant, who agreed to distribute the products exclusively in South Africa. After sending some of the products to South Africa, the defendant then re-shipped the products back into the United States for distribution domestically. The plaintiff sued and obtained a preliminary injunction. The district court had held that under § 602(a), the "copyright holder has a right to control importation of copies, regardless of where they were made and despite the occurrence of a `first sale.'" Sebastian, 847 F.2d at 1095 (citing Sebastian Int'l, Inc. v. Consumer Contact (PTY) Ltd., 664 F. Supp. 909, 920 (D.N.J.1987)).
The Third Circuit reversed. The court recognized that "[a]t first glance, section 602(a) the importation clause appears to clash with the first sale doctrine." Sebastian, 847 F.2d at 1097. However, the court concluded that "the two provisions were intended to function interdependently and may be read in harmony with each other." Id. The court interpreted § 602(a) as stating that unauthorized importation was "an infringement of `the exclusive [section 106(3)] right to distribute copies.'" Id. at 1099. Section 602(a) "does not purport to create a right in addition to those conferred by section 106(3)[.]" Id. "Because that exclusive right is specifically limited by the first sale provisions of § 109(a), it necessarily follows that once transfer of ownership has cancelled the distribution right to copy, the right does not survive so as to be infringed by importation." Id. In other words, once the distribution right terminates, so does the importation right.
Thus, because the plaintiff itself had produced and sold the exact same products that it later sought to control, and therefore had received a "reward" for its work, the "first sale" rule of § 109(a) applied. The court distinguished other § 602(a) cases in which the U.S. copyright holder had not actually produced the works in question; rather, in those cases, the imported copies had been produced and initially sold by foreign affiliates or licensees. Accordingly, the copyright owner had never actually "owned" the tangible copies that were "first sold." Therefore, sales by the manufacturer-licensee did not transfer "ownership" from the copyright owner, and thus terminate its distribution or importation right. But in Sebastian, the plaintiff had received a "reward," because it had actually manufactured the product and made the first sale. Accordingly, the Third Circuit held that regardless of the place of sale, "a first sale by the copyright owner extinguishes any right later to control importation of those copies." Id. (emphasis added).[11]
*314 In the recent unpublished case of L'Anza Research Int'l v. Quality King, et al., CV 94-0841 JSL, another court in the Central District of California reached the contrary conclusion.[12] Disagreeing with the Sebastian decision, the L'Anza court focused on the place of first sale, stating that "[t]he initial placement of the copy in a certain market should determine where the product is `sold' or `acquired' for purposes of § 602(a)." L'Anza at p. 7.[13] Thus, if a U.S. copyright holder manufactures a product, and then itself sells the product abroad, § 109(a)'s "first sale" rule will not provide a defense to a subsequent importer. Stated another way, under L'Anza, § 109(a) applies to terminate the importation right only as to goods sold initially in the United States, and not abroad.[14]
In light of the competing policies involved, as well as the language of the statutory provisions, the Court finds the Third Circuit's reasoning in Sebastian persuasive. The Court agrees with the Third Circuit that the place of sale cannot be "the critical factor in determining whether section 602(a) governs." Sebastian, 847 F.2d at 1099. Indeed, if the place of sale were the "critical" factor, this would entirely eviscerate § 109(a) with regard to goods first purchased outside the United States. Simply put, the "first sale" doctrine would have no application if the "first sale" of a particular copy occurred abroad. In such a situation, a copyright owner could bar the importation of lawfully obtained particular copies into the United States indefinitely, even if the copyright owner made the first sale itself. Such a rule would unwarrantedly limit the scope of § 109(a), and would undercut the basic policy reasons behind the "first sale" doctrine allowing greater competition and a more fluid economy. Furthermore, such an interpretation of § 602(a) would encourage copyright owners to create pricing systems that discriminate against U.S. consumers.
As the court noted in Sebastian,
... [n]othing in the wording of section 109(a), its history or philosophy, suggests that the owner of copies who sells them abroad does not receive a "reward for his work." Nor does the language of section 602(a) intimate that a copyright owner who elects to sell copies abroad should receive "a more adequate award" than those who sell domestically. That result would occur if the holder were to receive not only the purchase price, but a right to limit importation as well.
Sebastian, 847 F.2d at 1099. Interpreting § 602(a) to trump § 109(a) when the "first sale" occurs abroad would do just that. It would allow the copyright owner to control the distribution of a particular copy, even after selling it and "relinquish[ing] all further rights `to sell or otherwise dispose of possession of that copy.'" Sebastian, 847 F.2d at 1098-99 (quoting § 109(a)). This result would nullify much of the intended scope of § 109(a).
Such a conclusion is not compelled by the plain language of § 602(a). Again, as stated in Sebastian,
... [s]ection 602(a) does not purport to create a right in addition to those conferred by section 106(3), but states that unauthorized importation is an infringement of "the exclusive [section 106(3)] right to distribute copies." Because that exclusive right is specifically limited by the first sale provisions of § 109(a), it necessarily follows that once transfer of ownership has cancelled the distribution right to *315 a copy, the right does not survive so as to be infringed by importation.
Sebastian, 847 F.2d at 1099. By selling its software abroad, Summit transferred ownership of its copies of the software, and thus "cancelled [its] distribution right" to those copies. Id. By the plain language of the statute, § 602(a) does not operate to resurrect distribution rights that have already been terminated by a first sale. This is simply not what the statute says. Rather, the statute states that a copyright owner's rights under § 602(a) are part and parcel of the owner's "exclusive right to distribute copies[.]" § 602(a). Accordingly, it follows that once the copyright owner's distribution right terminates, the copyright owner's right under § 602(a) must also terminate as well.
As stated above, Summit manufactured its software, owned the individual copies of the software, and then sold the copies abroad itself.[15] Summit made the "first sale," and therefore received its "reward" for its work.[16] As a result of this "first sale," Summit "cancelled [its] distribution right" under § 109(a). Sebastian, 847 F.2d at 1099. In other words, under § 109(a), Summit's foreign sales of software copies "extinguishe[d] any right later to control importation of those copies" under § 602(a). Id. Accordingly, Summit's cause of action against Hi-Line for copyright infringement must be dismissed.
5. Summit's Fifth Cause of Action for Copyright Infringement Against York and Ellis
In its fifth cause of action, Plaintiff asserts that Defendants York and Ellis infringe Summit's copyright because every time York and Ellis turn on their excimer laser systems, a copy of Summit's compilation of default values (the "Compilation") is created and loaded onto the Random Access Memory ("RAM") chip located in their laser systems.
Under 17 U.S.C. § 117, "it is not an infringement [of section 106's distribution right] for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided ... that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine[.]" Summit apparently concedes that § 117 would permit rightful owners of the Summit software to make "essential" copies on their RAM chips. However, Summit contends that because York and Ellis are not rightful owners of their software, they cannot make copies under § 117. Complaint ¶ 92.
The Complaint does not explicitly state why Ellis and York are not the "rightful" owners of their software. Presumably, Summit asserts that York and Ellis are not "rightful" owners because they purchased laser systems that had originally been sold abroad, and had then been imported into the United States. However, in light of the Court's resolution of the § 602(a) importation issue (see above), this argument clearly cannot stand. Under § 109(a), Summit cannot use § 602(a) to control the downstream distribution or use of tangible copies that Summit itself sold abroad. Because York and Ellis are subsequent purchasers of Summit software which Summit legally sold abroad, York and Ellis are "owners" within the meaning of § 117. Therefore, York and Ellis may copy their software, so long as it is an "essential step in the utilization of the computer program[.]" § 117. Because Plaintiff's *316 Complaint admits that copying software onto a RAM chip is such an "essential step," Plaintiff's fifth cause of action against York and Ellis must be dismissed.
6. Summit's State Law Claims
a. Summit's Sixth, Seventh, and Eight Causes of Action for Unfair Competition and False or Misleading Statements
Plaintiff also brings several related state law causes of action. The sixth cause of action is for unfair competition in violation of Cal.Bus. & Prof.Code § 17200. The "unfair" acts include violations of Cal.Health & Safety Code §§ 26000-26851 (an analogue of the federal FDCA), Cal.Bus. & Prof.Code § 2234 (mandating the Division of Medical Quality to take action against unprofessional medical conduct), the federal Lanham Act, and the federal Copyright Act. In addition, Summit asserts that Defendants have "defrauded customers by failing to make full and honest disclosures concerning the Summit products they possess and are promoting." Complaint ¶ 99. Summit also asserts that Defendants have made false and misleading statements in violation of Cal.Bus. & Prof.Code § 17500. The seventh cause of action is a common law restatement of the sixth cause of action. The eighth cause of action is a direct claim under § 17500 for false and misleading statements.
Under Cal.Bus. & Prof.Code § 17200, "[u]nfair competition is defined to include `unlawful, unfair, or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.'" People v. McKale, 25 Cal. 3d 626, 631-32, 159 Cal. Rptr. 811, 602 P.2d 731 (1979). "Unfair competition" is "broadly" defined to include "anything that can properly be called a business practice and that at the same time is forbidden by law." McKale, 25 Cal.3d at 632, 159 Cal. Rptr. 811, 602 P.2d 731 (quoting Barquis v. Merchants Collection Assn. of Oakland, Inc., 7 Cal. 3d 94, 113, 101 Cal. Rptr. 745, 496 P.2d 817 (1972)). In light of the Court's discussion above, none of the theories of "unfair competition" asserted by Plaintiff are "forbidden by law." First, the Court has dismissed Plaintiff's copyright and Lanham Act causes of action. Therefore, any California unfair competition cause of action expressly founded on violations of the Lanham or Copyright Acts cannot stand. Second, the false and misleading advertising allegation is identical to the false and misleading advertising claim dismissed above as an attempt to state a private cause of action under the federal FDCA.[17] Plaintiff has not pled any additional theories of false advertising. Lastly, to the extent that the "unfair" conduct constitutes violations of the California Food, Drug, and Cosmetic Act or Cal.Bus. & Prof.Code § 2234, the unfair competition claim must be dismissed as an attempt to assert a private right of action where none exists.[18] Aside from those theories, Plaintiff has not alleged any further unlawful conduct on the part of Defendants. Therefore, Plaintiff's sixth cause of action under Cal.Bus. & Prof.Code § 17200 must be dismissed.[19]
The Court does not see how Plaintiff's seventh and eighth causes of action are different in substance from the sixth cause of action. In Plaintiff's seventh cause of action, Plaintiff does not assert any other acts of unfair competition not covered by the sixth cause of action. Therefore, it must be dismissed.[20] Similarly, Plaintiff's eighth cause of action does not allege any false and misleading representations in addition to those discussed (and dismissed) above. Therefore, *317 Plaintiff's eighth cause of action must be dismissed.[21]
b. Summit's Ninth Cause of Action for Violation of the California Food, Drug, & Cosmetic Act ("FDCA")
Plaintiff's last cause of action is a claim under the California FDCA (Cal.Health & Safety Code §§ 26000-26851). The California FDCA is "analogous" to the federal FDCA. See Committee on Children's Television, Inc. v. General Foods Corp., 35 Cal. 3d 197, 210 & n. 9, 197 Cal. Rptr. 783, 673 P.2d 660 (1983). Like its federal counterpart, the California FDCA "does not expressly provide for private enforcement." Id. at 210, 197 Cal. Rptr. 783, 673 P.2d 660. Rather, in another parallel to the federal FDCA, the state Department of Health is empowered to "administer and enforce the provisions" of the California FDCA. Cal.Health & Safety Code § 26200.
No California case has directly interpreted § 26200 or specifically addressed the issue of whether a private right of action exists to enforce the California FDCA.[22] As a general rule, when a statute does not explicitly provide a private right of action, the California courts will imply such a right only in rare circumstances. Ultimately, the issue is one of divining legislative intent: whether the legislature actually intended to create such a private right of action to enforce a statute. See Moradi-Shalal v. Fireman's Fund Ins., 46 Cal. 3d 287, 250 Cal. Rptr. 116, 758 P.2d 58 (1988) (inquiring into the language of the statute, the legislative history, and the existence of a comprehensive administrative scheme to determine whether the legislature intended a private right of action to exist to enforce Cal.Ins.Code § 790.03); Arriaga v. Loma Linda University, 10 Cal. App. 4th 1556, 13 Cal. Rptr. 2d 619 (1992) (performing the same analysis with regard to Cal.Govt.Code § 11135).
In this case, the statute itself provides only that the Department of Health shall "administer and enforce" the provisions of the California FDCA. Cal.Health & Safety Code § 26200. The statute does not explicitly provide for a private right of action. In addition, no private right of action exists to enforce the "analogous" federal FDCA. See Committee on Children's Television, 35 Cal.3d at 210 n. 9, 197 Cal. Rptr. 783, 673 P.2d 660 ("Federal courts ... have refused to permit a private action under the federal Food, Drug, and Cosmetic Act ... the analogous federal statute."). Both the federal and California FDCA statutes are comprehensive public health schemes administered by expert agencies. The Court finds no expressed legislative intent to allow private litigants to enforce the California FDCA concurrently with the Department of Health. Accordingly, the Court concludes that no private right of action exists to enforce the California FDCA. Therefore, Plaintiff's ninth cause of action must be dismissed.
IV. Conclusion
For all of these reasons, the Court hereby ORDERS that Defendants' motions to dismiss are GRANTED.
SO ORDERED.
NOTES
[1] The Summit Excimer Laser Systems are the machines at issue in this case.
[2] However, because York is allegedly offering the services of a "custom" device, the allegations against York are somewhat distinct.
[3] The only exception to this provision is that a state may "bring in its own name and within its jurisdiction proceedings for the civil enforcement, or to restrain violations ... if the food that is the subject of the proceeding is located in the State." 21 U.S.C. § 337(b)(1).
[4] While this reasoning is strong as to all Defendants, it is strongest with regard to Plaintiff's allegations against York. Plaintiff asserts that York has failed to disclose that he is offering the services of a "custom" modified Summit system. The actual term "custom" is a term-of-art, defined by 21 U.S.C. § 360j(b) and 21 C.F.R. §§ 812.2 & 812.3. Clearly, it is within the FDA's domain to determine whether York's system is a "custom" device. For this Court to determine whether York has failed to disclose that he offers the services of a "custom" device, this Court would be forced to determine whether York is offering a "custom" device. Because the FDA has the statutory responsibility for interpreting the FDCA (in the first instance), the Court simply will not tread into this area.
[5] This dismissal is without prejudice, however, to Plaintiff's ability to amend by adding § 43(a) allegations which do not operate as a vehicle for enforcing the FDCA.
[6] As discussed by the Supreme Court in K mart Corp. v. Cartier, Inc., 486 U.S. 281, 286, 108 S. Ct. 1811, 1815, 100 L. Ed. 2d 313 (1988), such a "gray market" situation can occur in a variety of contexts. However, in each case, the allegedly infringing goods are manufactured abroad, sold under the mark of the U.S. trademark holder, and then imported into United States.
[7] This fact alone distinguishes this case from Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104 (4th Cir.1991), El Greco Leather Products Co., Inc. v. Shoe World, 806 F.2d 392 (2d Cir.1986), cert. denied, 484 U.S. 817, 108 S. Ct. 71, 98 L. Ed. 2d 34 (1987), and Adolph Coors Co. v. A. Genderson & Sons, Inc., 486 F. Supp. 131 (D.Colo.1980). In these cases, the plaintiffs sued distributors or licensees who purported to sell new goods, but had failed to maintain them to the trademark holder's quality standards, so that they were no longer "genuine" goods of the trademark holder. In Shell, the defendant was a wholesale seller of bulk Shell oil to retailers. Because the defendant did not employ Shell quality control standards, the Fourth Circuit found that the oil distributed by defendant was not "genuine" Shell oil. In El Greco, the plaintiff trademark holder had terminated the licensed manufacturer of its line of shoes. After this termination, the manufacturer sold its excess shoes (which had not been inspected by the plaintiff pursuant to the contract) to defendant, who then sold the shoes to consumers. Because these goods had not been inspected pursuant to the trademark holder's standards, the court found the defendant's shoes not to be genuine. Finally, in Coors, the defendant distributor failed to maintain or refrigerate the "Coors" beer before selling it to consumers. As in Shell, this failure to meet the trademark holder's quality standards rendered the products not genuine.
By contrast, in this case, Summit controls the entire manufacturing, quality, and initial distribution process. When Summit's systems first enter the marketplace, Summit is assured that the machines are manufactured under Summit quality control standards. However, after the first sale, Summit cannot claim that subsequent sales without sufficient quality controls render the systems non-genuine. In its Complaint, Summit admits that all the systems at issue are used products. None of the defendants represent them to be new. Absent contractual agreement, Summit cannot mandate that subsequent consumers and owners of the laser systems meet Summit quality control standards. Therefore, Shell, El Greco, and Coors are inapposite to this case. See also Matrix, 988 F.2d at 591 (distinguishing Shell, El Greco, and Coors because in those cases the quality control defect affected the quality of the product itself, before it reached unwary consumers).
[8] Summit also argues that the used re-imported lasers are not genuine because they have not been subsequently maintained or serviced by trained Summit personnel. This argument stretches the Lanham Act far beyond its intended bounds. Taking the argument to its logical conclusion, this would mean that any person who sells a used unmaintained product could be liable for trademark infringement. Certainly, sales of used unserviced goods can dilute the goodwill of the original trademark holder, at least in the eyes of undiscerning consumers. But as stated in Sebastian, the countervailing concern is the desire to "preserve[] an area for competition" in the marketplace. Sebastian, 53 F.3d at 1075. This is the intent of the "first sale" doctrine. Accordingly, Plaintiff's argument is meritless.
[9] Of course, as pointed out in Parfums Givenchy, if the copyright owner consents to the importation of these goods, and then sells them in the United States, § 602(a) would not apply. See Parfums Givenchy, 38 F.3d at 482 n. 8.
[10] In Parfums Givenchy, the Ninth Circuit held that this rule applies even in the situation where the U.S. copyright holder is the wholly-owned subsidiary of the foreign manufacturer. Compare K mart, 486 U.S. at 294, 108 S.Ct. at 1819 (wholly owned subsidiary of foreign manufacturer cannot invoke § 526 of the Tariff Act to prevent third parties from competing in the domestic market by buying the foreign parent company's trademarked goods abroad and importing them into the United States); NEC, 810 F.2d at 1509 (wholly owned subsidiary of foreign manufacturer cannot invoke Lanham Act to prevent third party from importing parent company's product).
[11] Two other cases have addressed this issue in the context of goods manufactured in the United States by the copyright owner: Neutrogena Corp. v. U.S. Secretary of the Treasury, 1988 WL 166236 (D.S.C. April 5, 1988) and Cosmair, Inc. v. Dynamite Enterprises, Inc., 1985 WL 2209 (S.D.Fla. April 5, 1985). In both cases, the courts found that the first sale doctrine applied, and that § 602(a) was inapplicable. However, both of these cases focused on the place of manufacture and sale, rather than on the question of whether the copyright owner actually cancelled its distribution right by selling a tangible copy that it, in fact, owned. As pointed out in Sebastian, such an interpretation of § 109(a) and § 602(a) is tenuous because nothing in the language of these provisions focuses on the place of manufacture. See Sebastian, 847 F.2d at 1098 n. 1.
[12] A copy of the L'Anza opinion was submitted to the Court as Plaintiff's Exhibit 11. In citing the opinion, the Court will refer to the L'Anza court's pagination.
[13] Section 602(a) states that "[i]mportation into the United States ... of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106[.]" (emphasis added). Thus, the L'Anza court also disagreed with Sebastian's characterization of § 602(a) as merely part of § 106(3)'s distribution right (as limited by § 109(a)). In other words, the L'Anza court interpreted § 602(a) as a right existing independent of the § 106(3) distribution right.
[14] L'Anza is factually distinguishable from this case because L'Anza and its foreign distributors had a distribution agreement barring the importation of L'Anza's products into the United States.
[15] This fact distinguishes this case from both BMG and Parfums Givenchy. In those cases, the U.S. copyright owner did not make the "first sale." Accordingly, while the plaintiffs in those cases had sold their intellectual property (in exchange for a license fee), the plaintiffs had never actually owned the copies that were first sold abroad. See Sebastian, 847 F.2d at 1099 n. 3 (noting that when a licensee manufactures a copy, the copyright owner does not own that tangible copy). Accordingly, the plaintiffs in BMG and Parfums Givenchy never transferred any ownership interest in those particular copies. Because the plaintiffs in BMG and Parfums Givenchy never transferred any ownership interest in the particular copies, they never "cancelled" their distribution rights under §§ 106(3) & 109(a). Therefore, the plaintiffs in BMG and Parfums Givenchy could still use § 602(a) to bar imports.
[16] Indeed, because the FDA had not yet approved the excimer laser systems for domestic use, Summit's sale of the software abroad provided it with the only "reward" available at the time.
[17] Indeed, in the state causes of action, Plaintiff repleads the same allegations made in the federal causes of action. Complaint ¶¶ 98, 107, & 112.
[18] Cal.Bus. & Prof.Code § 2234 empowers the Division of Medical Quality to "take action" against medical professionals who engage in unprofessional conduct. It does not provide a private right of action. The existence of a right of action under the California FDCA will be discussed in further detail below.
[19] Of course, to the extent that Plaintiff can assert other theories of unfair competition not addressed by this Order, this dismissal is without prejudice.
[20] To the extent that Plaintiff can assert other theories of unfair competition, this dismissal is without prejudice.
[21] Again, to the extent that further false and misleading statements can be alleged, this dismissal is without prejudice.
[22] A federal court interpreting state law is bound by the decisions of the highest state court. Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir.1991), cert. denied, 502 U.S. 1073, 112 S. Ct. 969, 117 L. Ed. 2d 134 (1992). When the state supreme court has not spoken on an issue presented to a federal court, the federal court must determine what result the state supreme court would reach based on state appellate court decisions, statutes, and treatises. Vernon v. City of Los Angeles, 27 F.3d 1385, 1391 (9th Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 510, 130 L. Ed. 2d 417 (1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611790/ | 38 Cal. App. 2d 748 (1940)
HOME OWNERS' LOAN CORPORATION (a Corporation), Respondent,
v.
AXEL HANSEN et al., Defendants; STATE OF CALIFORNIA, Appellant.
Civ. No. 6388.
California Court of Appeals. Third Appellate District.
May 6, 1940.
Earl Warren, Attorney-General, and James S. Howie, Deputy Attorney-General, for Appellant.
J. V. McDermott and Ewell D. Moore for Respondent.
Thompson, J.
This appeal raises the question as to the right of priority of lien in the State of California for unpaid sales taxes due and owing.
Respondent corporation filed an action in Los Angeles County for the foreclosure of a mortgage on real property situated therein. The State of California was made a party defendant because of the fact that the state had a judgment for $74.32 against Axel Hansen, the owner and mortgagor of the property, subject to the foreclosure suit. The judgment of foreclosure decreed that the real property therein described be sold and the proceeds of the sale applied to payment of the commissioner's fee, costs of suit and principal and interest in satisfaction of the mortgage debt. The foreclosure decree failed to recognize any lien or interest in behalf of the State of California in respect to the real property involved therein. *750
The note and mortgage to respondent corporation was executed on August 2, 1934, and the mortgage was recorded on October 5, 1934. A license or permit to engage in the sale of tangible personal property at retail was issued to the defendant, Axel Hansen, the mortgagor, by the board of equalization of the State of California for the period from July 1, 1934, to September 15, 1935. During this period there accrued and became due to the State of California a retail sales tax in the sum of $13.58. This sum, together with interest and a penalty which was imposed, amounts to $16.28. Other retail sales taxes due from Axel Hansen to the state accrued on retail sales made by him after September 15, 1935, and as to these latter taxes the state makes no claim of priority to respondent's lien of the mortgage. The Retail Sales Tax Act of 1933 (Stats. 1933, p. 2599; Deering's Supp. 1933, p. 2359, Act 8493) was amended in 1935 and the amendments became effective on September 15, 1935. Section 26 1/2 was added to the act by the legislature in 1935. This section provides that the state does not have a preference over any recorded lien which attached prior to the date when the tax became a lien.
[1] Appellant claims priority of lien as to said sum of $16.28, which accrued on sales made prior to September 15, 1935. It is contended that the state has a superior or prior lien against the property of the retailer, on the theory that any tax lien in California is ex proprio vigore superior to a private prior contract or mortgage lien. The 1935 amendments to the Retail Sales Tax Act of 1933 preclude the possibility of the application of the doctrine ex proprio vigore to property subject to a lien for taxes accruing on retail sales made after September 15, 1935. The act of 1933 is silent on the right of priority of lien. It is the silence of the statute in this regard which leads to the claim that the doctrine of ex proprio vigore applies as to tax liens. Consequently, appellant is claiming priority of lien against the property of the retailer for taxes accruing on retail sales of tangible personal property made only before the effective date of the 1935 amendments. We are concerned alone with the Retail Sales Tax Act of 1933, and this act becomes important in determining the question of priority of lien in the absence of a finding that California follows the rule that any tax lien is ex proprio vigore superior to a prior private contract or mortgage lien. *751
Considerable confusion has existed through various jurisdictions in determining the dignity to be granted to tax obligations. As early as 1800 the Supreme Court of South Carolina, in the case of Butler v. Baily, 2 Bay, 244, 249, held that a tax imposed upon persons was a lien on all the property of the person assessed, and superior to an earlier judgment lien, even though there was no statute purporting to create such lien, or any lien. Other jurisdictions adopted this rule of the Butler case, and held that taxes are ex proprio vigore a lien on all the property of the taxpayer. The importance of proper maintenance of the government and the necessity of expediting its functions were among the reasons given for the superiority granted to tax liens.
The case of Dougherty v. Henarie, 47 Cal. 9, decided in 1873, was perhaps the first authority in this state which might be deemed to state the rule of law that tax liens are ex proprio vigore superior to all other liens. The question was raised as to the superiority of a title acquired under a tax deed issued upon a sale for state and county taxes. The court held that the tax deed conveyed the title, discharged of the plaintiff's lien. At page 14 the court stated as follows:
"The general rule is that a sale and conveyance in due form, for taxes, extinguishes all prior liens, whether for taxes or otherwise. The necessity of collecting revenue for the support of the government imperatively requires that the lien for taxes shall take precedence over all other liens; and that a tax sale, followed by a proper conveyance, shall transfer the title discharged of prior tax liens."
The court was aided, however, in reaching its conclusion as to title under the tax deed by the presence of a section of the revenue law which provided that the tax deed conveyed to the grantee the absolute title to the lands described in the deed. In determining the effect of this section of the revenue law, the court said at page 15:
"More explicit and comprehensive language could not well have been employed to define the nature of the title which passes by the tax deed. ... This language is so explicit as to require no interpretation and to leave no room for construction."
In California Loan Co. v. Weis, 118 Cal. 489 [50 P. 697], the question arose as to whether the lien of personal property *752 taxes was superior to the lien of a pre-existing mortgage which had attached to the land. The court held that the title of the purchaser under a sale of the land for delinquent personal property taxes was paramount to the lien of the mortgage. The decision in this instance was, however, based solely on the construction of the Political Code and it cannot be said that this case stands for the proposition that tax liens are ex proprio vigore superior to prior mortgage liens. The court said at page 493:
"It still remains to be considered, before leaving this branch of the case, whether the legislature of this State has, in the exercise of an unquestioned power, made the lien of its taxes paramount. As this matter, the power being conceded, depends for its determination entirely upon statutory enactment, adjudications in sister states will be of little value unless based upon identical laws." (Italics ours.)
In every case in which the question of the superiority of the tax lien has been in issue it will be noted that a construction of a statute has been involved. It is also true that the decisions, with the exception of the holding in the case of O'Dea v. Mitchell, 144 Cal. 374, 375, 381 [77 P. 1020], has, in the final analysis, depended upon the language used in the statutes applicable. It appears in a number of the decisions that language used with reference to the superiority of tax liens is nothing more nor less than a recognition of power in the legislature to make such tax liens paramount by the use of appropriate language to that effect. This conclusion is supported by an examination of those cases which disclose a discussion of the statutes immediately following the use of terms which might be deemed to indicate that California follows the rule that tax liens are ex proprio vigore superior to private liens. With the possible exception of the holding in the O'Dea case, supra, we conclude that the authorities cited by appellant do not uphold the proposition that tax liens are ex proprio vigore superior to private liens.
In concluding that California does not follow the rule announced by some decisions that tax liens are by their own force superior to private contract or mortgage liens, we quote from the opinion in Guinn v. McReynolds, 177 Cal. 230 [170 P. 421], and Bolton v. Terra Bella Irr. Dist., 106 Cal. App. 313 [289 P. 678, 679]. In the Guinn case, decided in 1918, the court said at page 232: *753
"In dealing with tax or assessment liens, as with others, our decisions have recognized that the question of priority is one of legislative intent. Where, accordingly, the tax or assessment lien is preferred to an earlier contract lien, the basis of priority is found in the statute."
The Bolton case, decided in 1930, presented the question as to whether a tax deed taken under a sale for delinquent county taxes, passes title free from any lien for delinquent irrigation district taxes or assessments levied on the same land. The court stated that an assessment is not in all respects the same as a tax, but that it has many of the same qualities, and that as used in the Political Code, the word "taxes" includes assessments of irrigation districts, as well as general taxes. The court held that the purchaser of the land at the general tax sale did not take title free from the lien of the irrigation district assessments which had theretofore been levied against the land. In reaching this conclusion the court declared that priority of lien for unpaid taxes depended upon statutory enactment, and was a question of legislative intent. At page 319 the court quoted from the decision in the Guinn case, as follows:
"A lien for unpaid taxes or assessments is generally held to be superior to all contract liens, whether prior or subsequent in time. But the authorities declare, virtually without dissent, that even a tax lien is not entitled to rank ahead of a preexisting mortgage or other contract lien, unless the legislative enactment creating the tax lien has given it priority."
The decisions in both the Guinn and Bolton cases dispel any doubt as to whether California follows the rule of law that tax liens are ex proprio vigore superior to a pre-existing mortgage or other contract liens. These cases definitely hold that a paramount lien for unpaid taxes depends solely upon legislative enactment. We are of the opinion that these last-mentioned cases correctly state the law and that legislative intent is necessary for tax liens to take precedence over pre-existing mortgage or other contract liens. In San Mateo County Bank v. Dupret, 124 Cal. App. 395 [12 PaCal.2d 669], decided in 1932, the court made the statement that tax liens were paramount to the rights created by mortgages and deeds of trust. However, in support of this proposition the court cited 18 California Jurisprudence, 132, sections 435, 436. Section 435 merely states the rule of law as decided by the *754 Guinn case, to the effect that it is within the power of the legislature to make the lien of taxes paramount to a mortgage or other contractual lien. The preceding language of the Dupret case, upon which the appellant in this action relies, was unnecessary to the determination of the issues therein, and it is not in accordance with the weight of authority.
[2] Legislative intent being a prerequisite to the creation of priority of tax liens, it is our opinion the lien of appellant for unpaid sales taxes takes precedence over the lien of respondent's mortgage only if such priority is found to exist in the Retail Sales Tax Act of 1933. It is not denied that the legislature has power to make the lien of taxes paramount to mortgages or other contract liens. The superiority of the tax lien need not be declared in express terms. It is sufficient if the priority of such lien may be inferred from the provisions of the act.
[3] The Retail Sales Tax Act of 1933 does not by express terms provide that the state shall have a prior or paramount lien for retail sales taxes due and owing as against the property of the retailer, and in our opinion the act of 1933 fails to disclose a legislative intent to create a priority in favor of such a tax lien. There is no language present in the act of 1933 which may be deemed to indicate an intention to create a preference in favor of the state. Section 26 of the act provides the procedure for the collection of delinquent sales taxes, but it is notably silent regarding the effect of the state's lien with relation to those of third parties who may have prior private liens on the property of the retailer. Section 26, paragraph 6, pursuant to the sale of the retailer's property by the board, fails to indicate that an absolute title is passed to the purchaser, but simply provides that: "... such bill of sale or deed shall vest the interest or title of the retailer in the purchaser." This language implies that vested interests of third parties may intervene.
The act of 1933 not only fails to disclose a legislative intent to create a prior lien in favor of the state, but prescribes the procedure under section 26 which must necessarily be followed in order to create a lien in any event. It is true that the first paragraph of section 26 provides that the board may file a notice of lien as against the retailer. It is asserted that the use of the word "may" precludes the necessity of filing such notice in order to obtain a lien. However, the use of the language following the provision for the filing of *755 such notice would appear to indicate the necessity of such action on the part of the board. The use of the word "may" is, in effect, mandatory, if the lien is to be created. This language provides as follows:
"From the time of filing any such notice the amount of the tax specified in such notice shall have the force and effect of the lien of a judgment against the retailer named in said notice of lien for the amount specified in such notice."
The language used clearly indicates that the lien of a judgment is not effective as against the retailer unless there has been a filing of notice of lien by the board.
Section 26, paragraph 4, provides for the sale by the board of property belonging to the retailer. This paragraph permits sale of the retailer's property in satisfaction of the delinquent taxes any time within two years of the delinquency. There is no particular restriction as to what property of the retailer may be seized by the board. Both personal and real property are subject to seizure. It is provided that only the property so seized shall be subject to the lien of the tax. The first paragraph of section 26 provides for the manner and means of obtaining the lien. The notice of lien may be filed in any county and thereby becomes as effective as a lien of a judgment in the particular county in which it is filed. The language used in the fourth paragraph of section 26 should be construed in connection with the first paragraph of that section.
A reasonable construction of section 26 leads to the conclusion that the legislature intended that the state should have a lien upon the property of a retailer only after filing notice of lien as provided for in paragraph 1 of that section. Consequently, although the notice of lien may be filed any time within two years of the delinquency of payment, the board is precluded from seizing or selling any property of the retailer until such notice has been filed in the county where the property is situated.
We conclude that California does not follow the rule of law that tax liens are by their own force superior to private contract or mortgage liens and that the Retail Sales Tax Act of 1933 fails to disclose a legislative intent to make retail sales tax liens paramount to existing contract or mortgage liens. It appears that the appellant failed to secure its lien against the property of the respondent in the manner provided by the *756 act since there was no notice of lien filed under paragraph 1 of section 26 of the act of 1933. The lien established by the procuring of a judgment for the delinquent sales taxes does not automatically give it preference over other prior contract or mortgage liens. The appellant's judgment for delinquent sales taxes is therefore subject to respondent's mortgage lien.
The judgment is affirmed.
Pullen, P. J., and Tuttle, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611792/ | 39 Cal. App. 2d 180 (1940)
C. D. PAULIN, Appellant,
v.
GRACE H. PAULIN et al., Respondents.
Civ. No. 6401.
California Court of Appeals. Third Appellate District.
May 20, 1940.
Boyd C. Barrington and Hugh Y. Gibson for Appellant.
Dell A. Schweitzer and Harold W. Schweitzer for Respondents.
Lemmon, J., pro tem.
This action is one in declaratory relief, in which the plaintiff sought to have determined the rights of the parties to an agreement entered into between himself and his former wife during the existence of the marriage relation. From a judgment adverse to him this appeal was taken.
The plaintiff and the defendant, Grace H. Paulin, entered into an agreement on March 5, 1915. The agreement recites that Mrs. Paulin inherited in 1907 approximately $18,000 from her parents, which, during the marriage relation, came under the control and disposition of the plaintiff, and "the said second party (plaintiff) is desirous of repaying to first *183 party (defendant Grace H. Paulin) the said sum of $18,000.00, and also in lieu of interest, $100.00 per month commencing March 1, 1915, until the said $18,000.00 is paid in full; or, in case of the remarriage of the party of the first part, then, and upon the said marriage the said $100.00 shall be reduced to an amount equal to seven per cent per annum on the unpaid portion of the principal of $14,450.00". This latter figure of $14,450 is arrived at by crediting upon the sum of $18,000 property received by Mrs. Paulin under the terms of the agreement at the agreed value of $3,550. Further recital is contained therein that plaintiff is an heir at law under the will of William Henry Paulin, deceased, under which will the defendant, Security First National Bank of Los Angeles, is now acting as a trustee in the administration of a trust created by the will. Provision is found in the agreement under which Mr. Paulin assigned to Mrs. Paulin "a sufficient amount of said property to meet all obligations under and by virtue of this agreement in favor of first party, including premiums on insurance, court costs, or any further charges necessary for the complete carrying out of this agreement". The agreement then provides that Mr. Paulin will procure life insurance upon his life in the sum of $14,450 in favor of the trustee as additional security for the payment of the obligations due and to become due to Mrs. Paulin thereunder. Authorization is given the trustee to disburse from such amounts as may accrue to Mr. Paulin under the will or trust such sums as may be necessary to discharge the following: the expenses of trustee; the premiums on the policy; to Mrs. Paulin "of the said sum of $100 per month"; the balance to Mrs. Paulin "to apply on the amount due her" from Mr. Paulin.
The complaint alleges that a controversy exists between the parties to the agreement and the defendant trustee relating to the construction of the agreement; that the agreement requires the payment by the trustee to Mrs. Paulin of the sum of $14,450 at a minimum rate of $100 per month, and that the full sum of $14,450 has been paid by the trustee to her. The defendant trustee in its answer alleged, and the court made a finding based upon substantial evidence, that the sum of $13,933.16 had been paid by the trustee to Mrs. Paulin up to the date of the trial of the action and that the trustee had expended $2,954.97 out of the trust funds to *184 defray the cost of the insurance upon the life of plaintiff. Mrs. Paulin alleges by answer that by the terms of the agreement the $14,450 is to be paid out of the funds of the estate which would otherwise go to the plaintiff, and in addition thereto, and in lieu of any interest upon the indebtedness, and for maintenance and support of her, and the minor child of herself and plaintiff, the sum of $100 per month commencing on March 1, 1915, and continuing at said rate of $100 per month until the said $14,450 had also been paid to her. The court found in accordance with her contention that the sum of $27,200 had accrued upon the obligation to pay the sum of $100 per month; that the sum of $13,933.16 was to be credited thereon and that there remained owing and unpaid the sum of $13,266.84 plus the said principal sum of $14,450 or the total amount of $27,716.84; that the sum of $100 per month should continue to accrue in favor of Mrs. Paulin until the $14,450 had been paid.
[1] That an ambiguity existed in the agreement as to the obligation of plaintiff thereunder is readily apparent. The language thereof is fairly susceptible to either one of the two interpretations contended for by the parties thereto. For the purpose of determining what the parties intended by the language used, it was competent to show the circumstances under which the contract was made and the matter to which it relates.
[2] Claim is made that the trial court erred in reading the deposition of Mrs. Paulin to himself, and later forbidding portions thereof to be read into the record. As we understand appellant, his position is that this amounted to a reception of evidence by the court which does not appear in the record. This hardly justifies comment. The trial judge had been forewarned that objections would be made to parts of the deposition. No doubt, to expedite the trial, he read the deposition so that he would be readily familiar with the contents when ruling upon objections. We must presume that he performed his duty as required by law and based his decision upon that which was received in evidence to the exclusion of that which was offered but refused. There is nothing in the record remotely negating this conclusion.
[3] Complaint is made that the trial court erroneously refused to receive in evidence parts of the deposition. In the rulings complained of, the trial judge referred to the excluded *185 testimony as being certain designated parts of the deposition as found between certain lines and on certain pages thereof. The deposition is not included in the record. There is nothing otherwise in the record disclosing the testimony which was refused admission. This court cannot consider matters outside the record.
[4] Mrs. Paulin was called to the stand at the trial as an adverse witness. Objection was sustained to a question put to her as to whether she would have considered the payment of $14,450 to her the next day after the signing of the agreement as full settlement of the plaintiff's obligations. Under either interpretation of the ambiguity such payment would have extinguished the obligations. An answer from the witness would not have thrown any light upon what was intended. [5] She was also not permitted to answer questions as to whether at the time of the signing she considered the agreement to be a final property settlement, and what she meant by a statement she made, namely, "I always thought I would get a crack at him when it came to settling up his estate". The obvious purpose of these questions was to show that she had a secret, undisclosed intention to claim what she now asserts. The rule permitting proof of surrounding circumstances in aid of interpretation requires that the circumstances have some probative bearing upon the intention of the parties in relation to the agreement entered into. What was intended as the agreement is material but what a party thereto had in his mind as to his future conduct in reference to carrying out or repudiating that intention is not relevant to the issue.
[6] Appellant contends that the evidence proves an understanding that a divorce would be obtained by one of the parties was a consideration for the contract and that this renders the agreement contra bonos mores and unenforceable. The court made no finding upon this because it was outside the issues formed by the pleadings. The complaint is not an attack upon the agreement but is predicated upon the premise that the agreement is valid and enforceable. The sole issue presented by the pleadings involved the interpretation of the agreement. Neither can it be said that the case was tried with the theory that this issue was involved. It is raised for the first time upon this appeal. [7] A judgment will not be disturbed because of a failure of the trial court to give *186 relief not embraced in the pleadings and not asked for. (Miller v. Bay Cities Water Co., 157 Cal. 256 [107 P. 115, 27 L.R.A. (N. S.) 772]; Green v. Carotta, 72 Cal. 267 [13 P. 685].)
There remains the question as to whether the construction of the contract claimed by Mrs. Paulin and adopted by the court can be sustained.
[8] The instrument in question contains the statement that "the said payments as herein provided shall be taken by first party in lieu of claims against second party for the maintenance and support of said first party and the minor child of the parties hereto until such child shall have reached the age of fourteen years, or until, according to the terms of this agreement, the said $100.00 payments shall have terminated". The minor child reached the age of fourteen December 16, 1926. Appellant contends that in any event the $100 payments should cease on that date. When read together the various provisions may be interpreted to mean that the 100 monthly payments were to be considered both as interest upon the $14,450 obligation until that indebtedness was paid, and in full of the obligation to support the wife and child until the child reached the age of fourteen, at which time the requirements for his education and support might necessitate the payment of some additional amount.
This agreement was intended, at the time of execution, to settle the property rights of the parties and to determine the financial responsibility of appellant for the support of his wife and child. The child was then of the age of two years. We see nothing oppressive or unreasonable in the contract under which appellant agrees to repay to his former wife the value of property, which he admitted had come under his control and which originally came to her as her personal inheritance, and, in addition thereto, the sum of $100 per month until such time as there was returned to her the equivalent of her inheritance. His interest in his father's estate, recited in the instrument to approximate $30,000, forces the conclusion that under the circumstances disclosed, $100 per month for wife and child support, and also as interest upon the agreed indebtedness until the principal sum is repaid, was not unreasonable, and that the interpretation placed upon the contract does not "shock the conscience and common sense of men" as appellant contends. *187
[9] There was very little extrinsic evidence before the court to aid in the interpretation. Mrs. Paulin was the only witness called. She remembered of no conversation had with appellant about the agreement or its provisions prior to the execution. The court in determining the intent of the parties was obliged to depend upon the document, and the relations between the parties herein detailed. We must conclude that the interpretation reached finds support. [10] Where a writing is so uncertain that either of two constructions urged might be sustained, it is not within the functions of a court of review to declare that the interpretation given by the trial court should be supplanted by the other construction of which the instrument is susceptible. (Slama Tire Protector Co. v. Richie, 31 Cal. App. 555 [161 P. 25]; Kautz v. Zurich etc. Ins. Co., 212 Cal. 576 [300 P. 34]; Teater v. Good Hope Development Corp., 14 Cal. 2d 196 [93 PaCal.2d 112]; Lewis v. Lewis, 34 Cal. App. 2d 422 [93 PaCal.2d 850].)
[11] The agreement in question was prepared by Mrs. Paulin's counsel. Appellant concludes that, since Mrs. Paulin is responsible for the uncertainty which exists in the contract, section 1654 of the Civil Code requires that the uncertainty be construed most strongly against her. That section, by its terms, is to be invoked when the uncertainty is not removed by the rules set forth in the preceding sections of that code. Section 1647 provides that a contract may be explained by reference to the circumstances under which the contract was made, and the matter to which it relates. It was proper for the court to take into consideration the situation of the parties and the relations between them as well as the objects sought to be accomplished by the agreement. The uncertainty is removed, within the meaning of section 1647, if there is evidence of circumstances under which the contract was made, warranting a conclusion as to the intent of the parties. What has been heretofore recited in that regard justifies the interpretation made by the trial court.
The judgment is affirmed.
Tuttle, J., and Thompson, Acting P. J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2343643/ | 912 A.2d 88 (2006)
189 N.J. 1
Jaliyah MUHAMMAD, on her own behalf and all others similarly situated, Plaintiff-Appellant,
v.
COUNTY BANK OF REHOBOTH BEACH, DELAWARE and Main Street Service Corporation, Defendants-Respondents, and
Easycash, Telecash, John Doe and John Roe, Defendants.
Supreme Court of New Jersey.
Argued February 14, 2006.
Decided August 9, 2006.
*90 Michael J. Quirk, a member of the New York and District of Columbia bars, argued the cause for appellant (Trujillo, Rodriguez & Richards and Williams, Cuker & Berezofsky, attorneys; Mr. Quirk, Donna Siegel Moffa and Mark R. Cuker, on the briefs).
Marc J. Zucker and Claudia T. Callaway, a member of the District of Columbia bar, argued the cause for respondents (Weir & Partners, attorneys for County Bank of Rehoboth Beach, Delaware and Sweeney & Sheehan, attorneys for Main Street Service Corporation; Mr. Zucker, Ms. Callaway, Susan M. Verbonitz, John Michael Kunsch, on the briefs).
David G. McMillin argued the cause for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney; Mr. McMillin, Mr. Miller and Christopher Hill, on the brief).
Jeffrey C. Burstein, Assistant Attorney General, argued the cause for amici curiae Attorney General of New Jersey and The New Jersey Division of Consumer Affairs (Zulima V. Farber, Attorney General, attorney; Mr. Burstein and Carol G. Jacobson, Deputy Attorney General, on the brief).
David M. Gossett, a member of the Illinois and District of Columbia bars, argued the cause for amicus curiae Chamber of Commerce of the United States of America (Drinker Biddle & Reath, attorneys; Mr. Gossett, Evan M. Tager, a member of the New York and District of Columbia bars, Robin S. Conrad, a member of the District of Columbia bar, Amar D. Sarwal, a member of the District of Columbia bar, of counsel; Andrew B. Joseph, on the brief).
William J. Pinilis submitted a brief on behalf of amici curiae AARP, Consumers League of New Jersey and National Association of Consumer Advocates.
Marvin J. Brauth and Jeffrey J. Brookner submitted a brief on behalf of amicus curiae New Jersey Business and Industry Association (Wilentz, Goldman & Spitzer, attorneys; Mr. Brauth, of counsel; Mr. Brauth and Mr. Brookner, on the brief).
Justice LaVECCHIA delivered the opinion of the Court.
In this appeal we must determine whether a provision in an arbitration agreement that is part of a consumer contract of adhesion is unconscionable and *91 therefore unenforceable because it forbids class-wide arbitration. Plaintiff entered into a short-term loan agreement, the terms of which she claims violate the State's consumer-fraud statutes. Her complaint includes allegations that the State's civil usury limits are being evaded in loan transactions such as hers by means of a conspiracy involving complex financial dealings among out-of-state financial entities. The damages allegedly caused by such transactions are small on an individual-by-individual basis, but are substantial when aggregated into a class claim. Plaintiff seeks, therefore, to pursue a class action and is willing to pursue her class-wide claim in the arbitral forum but for the arbitration agreement's class-arbitration bar. Both the trial court and the Appellate Division found the class-arbitration bar enforceable.
Applying the controlling test for determining unconscionability for contracts of adhesion set forth in Rudbart v. North Jersey District Water Supply Commission, 127 N.J. 344, 605 A.2d 681, cert. denied, 506 U.S. 871, 113 S.Ct. 203, 121 L.Ed.2d 145 (1992), we hold that the class-arbitration waiver in this consumer contract is unenforceable. Such a waiver would be unconscionable whether applied in a lawsuit or in arbitration. We further conclude that the appropriate remedy in these circumstances is to sever the unconscionable provision and enforce the otherwise valid arbitration agreement.
I.
Defendant County Bank of Rehoboth Beach, Delaware (County Bank) is a federally-insured depository institution chartered under Delaware law. Defendant Main Street Service Corp. (Main Street) is a loan servicer for County Bank. Main Street operates a telephone service center in Pennsylvania. Defendants Easy Cash and Telecash are registered trade names of County Bank.
On May 23, 2003, plaintiff Jaliyah Muhammad, a part-time student at Berkeley College in Paramus, received a short-term, single advance, unsecured loan of $200 from County Bank. According to the terms of the LOAN NOTE AND DISCLOSURE form that Muhammad signed, the principal, along with a finance charge of sixty dollars, was due on June 13, 2003. The annual percentage rate listed on the loan note was 608.33%. According to Muhammad, she twice extended the loan (with a sixty dollar finance charge each time) because she could not repay it, resulting in a total of $180 in finance charges. Those facts are unchallenged by defendants. Muhammad also obtained two similar loans from County Bank, dated April 28, 2003 and June 6, 2003.
Muhammad had to complete and return three pages of standard form contracts in order to receive a loan. The first two pages, entitled "LOAN APPLICATION," were signed by Muhammad on April 28, 2003. Muhammad did not have to complete that form again in connection with the loans made on May 23, 2003 and June 6, 2003. The first page of the LOAN APPLICATION requested general personal information. The second page contained the relevant provisions concerning arbitration:
AGREEMENT TO ARBITRATE ALL DISPUTES: By signing below and to induce us, County Bank of Rehoboth Beach, Delaware, to process your application for a loan, you and we agree that any and all claims, disputes or controversies that we or our servicers or agents have against you or that you have against us, our servicers, agents, directors, officers and employees, that arise out of your application for a loan, the Loan Note or Agreement that you *92 must sign to obtain the loan, this agreement to arbitrate all disputes, collection of the loan, or alleging fraud or misrepresentation, whether under the common law or pursuant to federal or state statute or regulation, including the matters subject to arbitration, or otherwise, shall be resolved by binding individual (and not class) arbitration by and under the Code of Procedures of the National Arbitration Forum ("NAF") in effect at the time the claim is filed. This agreement to arbitrate all disputes shall apply no matter by whom or against whom the claim is filed. . . .
NOTICE: YOU AND WE WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND HAVE A JUDGE OR JURY DECIDE THE DISPUTES BUT HAVE AGREED INSTEAD TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION.
AGREEMENT NOT TO BRING, JOIN OR PARTICIPATE IN CLASS ACTIONS: To the extent permitted by law, by signing below you agree that you will not bring, join or participate in any class action as to any claim, dispute or controversy you may have against us or our agents, servicers, directors, officers and employees. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the costs we incur, including our court costs and attorney's fees, in seeking such relief. This agreement is not a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This agreement not to bring or participate in class action suits is an independent agreement and shall survive the closing and repayment of the loan for which you are applying.
[(Emphasis added).]
Above the signature line, the LOAN APPLICATION also stated that "[b]y signing below you also agree to the Agreement to Arbitrate All Disputes and the Agreement Not To Bring, Join or Participate In Class Actions. . . ."
In respect of the May 23, 2003 loan, Muhammad also executed a LOAN NOTE AND DISCLOSURE form that included the following language.
AGREEMENT TO ARBITRATE ALL DISPUTES: You and we agree that any and all claims, disputes or controversies between you and us and/or the Company, any claim by either of us against the other or the Company (or the employees, officers, directors, agents or assigns of the other or the Company) and any claim arising from or relating to your application for this loan or any other loan you previously, now or may later obtain from us, this Loan Note, this agreement to arbitrate all disputes, your agreement not to bring, join or participate in class actions, regarding collection of the loan, alleging fraud or misrepresentation, whether under the common law or pursuant to federal, state or local statutes, regulation or ordinance, including disputes as to the matters subject to arbitration, or otherwise, shall be resolved by binding individual (and not joint) arbitration by and under the Code of Procedure of the National Arbitration Forum ("NAF") in effect at the time the claim is filed. This agreement to arbitrate all disputes shall apply no matter by whom or against whom the claim is filed. . . . This arbitration agreement is made pursuant to a transaction involving interstate commerce. It shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16. . . .
*93 NOTICE: YOU AND WE WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND HAVE A JUDGE OR JURY DECIDE THE DISPUTES BUT HAVE AGREED INSTEAD TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION.
AGREEMENT NOT TO BRING, JOIN OR PARTICIPATE IN CLASS ACTIONS: To the extent permitted by law, you agree that you will not bring, join or participate in any class action as to any claim, dispute or controversy you may have against us, our employees, officers, directors, servicers and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney's fees and court costs we incur in seeking such relief. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above.
[(Emphasis added).]
If that were not clear enough, directly above the signature line, the LOAN NOTE AND DISCLOSURE form also stated, that "BY SIGNING BELOW, YOU AGREE TO ALL OF THE TERMS OF THIS NOTE, INCLUDING THE AGREEMENT TO ARBITRATE ALL DISPUTES AND THE AGREEMENT NOT TO BRING, JOIN OR PARTICIPATE IN CLASS ACTIONS."
Thus, the contracts signed by Muhammad contain two types of class-action prohibitions. The first, referred to herein as the "class-arbitration waivers," are found within the text of the arbitration clauses and highlighted above. They specifically bar class claims in arbitration. The second, referred to herein as the "broad class-action waivers," are separate from the arbitration clauses and prohibit Muhammad from bringing or participating in class-action suits brought in court as well as class claims brought in arbitration.
In February 2004, Muhammad filed a putative class-action suit in New Jersey Superior Court against County Bank, Easy Cash, Telecash, Main Street, John Doe, and John Roe. The complaint alleged that Easy Cash, Telecash, and Main Street violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-2, the civil usury statute, N.J.S.A. 31:1-1, and the New Jersey RICO statute, N.J.S.A. 2C:41-1, by charging, and conspiring to charge, illegal rates of interest. The complaint further alleged that County Bank aided and abetted the unlawful conduct of the other defendants by renting out its name and status without actually funding or meaningfully participating in the loans. Muhammad requested injunctive relief, restitution, damages, penalties, and costs.
Defendants removed the action to federal district court, but because Muhammad's claims were determined by that court not to be preempted by the Depository Institutions Deregulation and Monetary Control Act of 1980, 12 U.S.C. § 1831d, the case was remanded to state court. Defendants thereupon filed a motion to compel arbitration and to stay the action pending arbitration. They also filed a motion requesting a protective order in respect of discovery. Muhammad opposed defendants' motions and filed a cross-motion concerning discovery. Muhammad argued that the arbitration agreement was unconscionable based on the class-action waiver, discovery limitations in NAF's rules, the costs of the arbitration, and the bias inherent in NAF as an arbitration forum.[1] In *94 response, defendants offered to arbitrate Muhammad's claims in the American Arbitration Association rather than the NAF an offer that Muhammad rejected.
The trial court granted defendants' motion to compel arbitration pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 4, and stayed the case pending arbitration. Muhammad filed a motion for leave to appeal, which was granted. In a published decision, the Appellate Division affirmed the trial court. Muhammad v. County Bank of Rehoboth Beach, 379 N.J.Super. 222, 877 A.2d 340 (App.Div. 2005). Applying Rudbart, supra, 127 N.J. at 353, 605 A.2d 681, the panel concluded that the arbitration agreement was not unconscionable. Muhammad, supra, 379 N.J.Super. at 237-48, 877 A.2d 340. In upholding the class-arbitration bar specifically, the Appellate Division relied on its earlier decision in Gras v. Associates First Capital Corp., 346 N.J.Super. 42, 786 A.2d 886 (2001), certif. denied, 171 N.J. 445, 794 A.2d 184 (2002), which, the panel believed, "directly address[ed]" the class-action waiver issue. Muhammad, supra, 379 N.J.Super. at 244-48, 877 A.2d 340. Judge Kestin filed a separate concurring opinion. Id. at 249, 877 A.2d 340.
Plaintiff filed a motion for leave to appeal, which we granted. 185 N.J. 254, 883 A.2d 1054 (2005). Legal Services of New Jersey filed a brief as amicus curiae in support of Muhammad. AARP, the Consumers League of New Jersey, and the National Association of Consumer Advocates filed a joint brief in support of Muhammad. Also, the Attorney General on behalf of the New Jersey Division of Consumer Affairs filed a brief in Muhammad's support. The Chamber of Commerce of the United States of America and the New Jersey Business and Industry Association filed amicus briefs in support of defendants.
II.
A.
Congress enacted the FAA, 9 U.S.C. §§ 1-16, "to abrogate the then-existing common law rule disfavoring arbitration agreements `and to place arbitration agreements upon the same footing as other contracts.'" Martindale v. Sandvik, Inc., 173 N.J. 76, 84, 800 A.2d 872 (2002) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26, 36 (1991)). Section 2 of the FAA provides that arbitration agreements covered by the Act "shall be valid, irrevocable, and enforceable save upon grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "In enacting section 2 of the FAA, `Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.'" Martindale, supra, 173 N.J. at 84, 800 A.2d 872 (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 12 (1984)). The FAA, however, does not preclude an examination into whether the arbitration agreement at issue is unconscionable under state law. Id. at 85-86, 800 A.2d 872.
"[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2." Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 1656, *95 134 L.Ed.2d 902, 909 (1996) (emphasis added); see also Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100, 1112-13 (2005) (stating that "the FAA does not federalize the law of unconscionability or related contract defenses except to the extent that it forbids the use of such defenses to discriminate against arbitration clauses."). Furthermore, "whether the parties have a valid arbitration agreement at all" is a "gateway" question that requires judicial resolution. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, 2407, 156 L.Ed.2d 414, 422 (2003) (plurality opinion).
It is clear that under Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 1806, 18 L. Ed. 2d 1270, 1277 (1967), "a court must decide whether [an] agreement to arbitrate is valid." Barker v. Golf U.S.A., Inc., 154 F.3d 788, 791 (8th Cir. 1998), cert. denied, 525 U.S. 1068, 119 S.Ct. 796, 142 L.Ed.2d 659 (1999). That said, were this contract silent or ambiguous about the availability of class-wide arbitration, an arbitrator would have to resolve the question of contract interpretation. See Bazzle, supra, 539 U.S. at 451, 123 S.Ct. at 2407, 156 L.Ed.2d at 422 (holding that when arbitration agreement is silent on subject, arbitrator is to decide "whether the agreement forbids class arbitration"). The instant agreement is not silent, however, or even ambiguous as to the availability of class arbitration. Not only does the LOAN NOTE AND DISCLOSURE FORM state that all disputes "shall be resolved by binding individual (and not joint) arbitration," but the April 28, 2003 LOAN APPLICATION also states all disputes "shall be resolved by binding individual (and not class) arbitration." Both documents also reference the NAF rules of procedure, which bar class-wide arbitrations unless all parties consent. See NAF Rule 19(a). Furthermore, in addition to the class-arbitration waivers found in the arbitration agreements themselves, the broad class-action waivers found elsewhere in the contracts also contain clear and unmistakable language prohibiting Muhammad's use of a class mechanism.
Other courts similarly have distinguished Bazzle. For example, in Gipson v. Cross Country Bank, 354 F.Supp.2d 1278, 1286 (M.D.Ala.2005), the court, in the course of upholding a particular class-arbitration waiver, stated that
[t]he contract before this court now is distinguishable from the one in Bazzle, because here the clause prohibiting class arbitration is clear, that is, there is no issue of contract interpretation as there was in Bazzle. Put another way, the Court plurality in Bazzle felt that the answer as to whether the contracts allowed or prohibited class arbitration was "not completely obvious," hence contract interpretation, which is the realm of the arbitrator, would be necessary. Here, however, an arbitrator need not interpret the contract's class action waiver clause, because the contract expressly prohibits class arbitration, thereby concerning "the validity of the arbitration clause," which the Bazzle plurality indicated could fall under the narrow exception concerning matters "contracting parties would likely have expected a court" to decide. There is no need for anyone to decide "whether the contract[] forbid[s] class arbitration." It expressly and unequivocally does. The only issue is whether such a clear prohibition is valid and enforceable. . . .
[(Citations omitted).]
For completeness we note defendants' argument that Muhammad's claims must fail because her challenge to the class-action waiver should be viewed as a challenge to the contract as a whole, and *96 not as a specific challenge to the arbitration agreement. Prima Paint, supra, 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270, and Buckeye Check Cashing, Inc. v. Cardegna, ___ U.S. ___, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), hold that because arbitration agreements are, as a matter of federal arbitration law, severable from the remainder of a contract, a challenge to a contract as a whole is for an arbitrator to decide. In this matter, however, there are two types of class-action waivers in the contracts Muhammad signed: the class-arbitration waivers and the broad class-action waivers. The broad class-action waivers could be considered distinct from the arbitration agreement in the contracts, and thus could be considered part of the "contract as a whole." In that circumstance, under Prima Paint and Buckeye, an arbitrator would address the unconscionability of the broad class-action waivers. That situation is not before us, however, because there are distinct class-arbitration waivers within the arbitration clauses of both the LOAN NOTE AND DISCLOSURE form and the APPLICATION. Those class-arbitration waivers, based on their location and subject matter, are part of the arbitration agreements, and not part of the contracts as a whole. As such, we are empowered to address this challenge.
Because federal arbitration law does not prevent us from examining the validity of the class-arbitration waiver, we turn then to our own state law requirements in respect of contract unconscionability.[2]
B.
It is well settled that courts "may refuse to enforce contracts that are unconscionable." Saxon Constr. & Management Corp. v. Masterclean of N.C., Inc., 273 N.J.Super. 231, 236, 641 A.2d 1056 (), certif. denied, 137 N.J. 314, 645 A.2d 142 (1994); see also N.J.S.A. 12A:2-302 (adopting Uniform Commercial Code provision recognizing unconscionability as basis for voiding contract or clause therein). The seminal case of Rudbart, supra, set out factors for courts to consider when determining whether a specific term in a contract of adhesion is unconscionable and unenforceable. 127 N.J. at 356, 605 A.2d 681. In Rudbart, supra, this Court recognized that adhesion agreements necessarily involve indicia of procedural unconscionability. Ibid.; see generally Sitogum Holdings, Inc. v. Ropes, 352 N.J.Super. 555, 564-66, 800 A.2d 915 (Ch.Div.2002) (observing that unconscionability traditionally entails discussion of two factors: procedural unconscionability, which "can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process," and substantive unconscionability, which generally involves harsh or unfair one-sided terms). Rudbart, supra, notes that "the essential nature of a contract of adhesion is that it is presented on a takeit-or-leave-it basis, commonly in a standardized printed form, without opportunity for the `adhering' party to negotiate except perhaps on a few particulars." 127 N.J. at 353, 605 A.2d 681.
The determination that a contract is one of adhesion, however, "is the *97 beginning, not the end, of the inquiry" into whether a contract, or any specific term therein, should be deemed unenforceable based on policy considerations. Id. at 354, 605 A.2d 681. A sharpened inquiry concerning unconscionability is necessary when a contract of adhesion is involved.
[I]n determining whether to enforce the terms of a contract of adhesion, courts have looked not only to the take-it-or-leave-it nature or the standardized form of the document but also to [(1)] the subject matter of the contract, [(2)] the parties' relative bargaining positions, [(3)] the degree of economic compulsion motivating the "adhering" party, and [(4)] the public interests affected by the contract.
[Id. at 356, 605 A.2d 681.]
Because adhesion contracts invariably evidence some characteristics of procedural unconscionability, the Court required a careful fact-sensitive examination into substantive unconscionability.[3]Ibid. Rudbart's multi-factor analysis generally conforms to the case-by-case approach widely used for evaluating claims of unconscionability. See Cheshire Mortg. Serv. v. Montes, 223 Conn. 80, 612 A.2d 1130, 1135 (1992) (stating that, under the UCC, "[t]he determination of unconscionability is to be made on a case-by-case basis, taking into account all of the relevant facts and circumstances.").
C.
The unconscionability issue in this matter centers on access to a class-wide proceeding in the arbitral setting. Although class arbitration specifically has never before been examined by this Court, the merits of the class-action procedure have been acknowledged many times in the context of court litigation. "By permitting claimants to band together, class actions equalize adversaries and provide a procedure to remedy a wrong that might other-wise go unredressed." In re Cadillac V8-6-4 Class Action, 93 N.J. 412, 424, 461 A.2d 736 (1983). "If each victim were remitted to an individual suit, the remedy could be illusory, for the individual loss may be too small to warrant a suit. . . . Thus the wrongs would go without redress, and there would be no deterrence to further aggressions." Riley v. New Rapids Carpet Ctr., 61 N.J. 218, 225, 294 A.2d 7 (1972). Other courts have referred to such small damage cases as "negative value" suits recognizing that they "would be uneconomical to litigate individually." In re Monumental Life Ins. Co., 365 F.3d 408, 411 n. 1 (5th Cir.2004).
The class-action vehicle remedies the incentive problem facing litigants who seek only a small recovery. "[A] class action can produce a substantial fund to compensate . . . [the class members'] attorney for his services." In re Cadillac, supra, 93 N.J. at 424, 461 A.2d 736. A "substantial fund" not only covers the attorney's actual fees, but also provides incentive in the form of possible contingency fees for attorneys to risk the prospect of receiving no recovery for their efforts. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 2246, 138 L.Ed.2d 689, *98 709 (1997) (stating that "[a] class action solves [the incentive problem created by small damages] by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor."); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 161, 94 S.Ct. 2140, 2144, 40 L.Ed.2d 732, 739 (1974) (stating that "[n]o competent attorney would undertake this complex antitrust action to recover so inconsequential an amount [as $70]."). The class-action mechanism also overcomes the problem that small individual recoveries may fail to provide an adequate incentive for a litigant to investigate a claim or bring suit even if the litigant could secure representation. See Varacallo v. Mass. Mutual Life Ins. Co., 226 F.R.D. 207, 234 (D.N.J.2005) (stating that "[a]bsent class certification, very few individuals would have the incentive . . . to bring individual claims"). And, not least of all, there is the additional justification that a class-action proceeding "can aid the efficient administration of justice by avoiding the expense, in both time and money, of relitigating similar claims." In re Cadillac, supra, 93 N.J. at 435, 461 A.2d 736.
In sum, the class-action mechanism is recognized to be valuable to litigants, to the courts, and to the public interest. Class actions fulfill the policies of this State even when only a small amount of damages is at stake. Not surprisingly, in light of the importance of its role generally, and specifically in recognition of its usefulness in connection with small-damages actions such as are often the case in consumer suits, this Court has instructed that "the class action rule should be construed liberally in a case involving allegations of consumer fraud." Ibid.; see also Strawn v. Canuso, 140 N.J. 43, 68, 657 A.2d 420 (1995) (stating that "a class action is the superior method for adjudication of consumer-fraud claims"); Riley, supra, 61 N.J. at 228, 294 A.2d 7 (stating that "a court should be slow to hold that a suit [under the CFA] may not proceed as a class action."). With those justifications for the class-action vehicle in mind we turn to consider the unconscionability of the contractual waiver of class-wide arbitration before us.
III.
A.
The arbitration agreement signed by Muhammad is clearly a contract of adhesion. We, therefore, must apply Rudbart's four factors, as did the Appellate Division, in order to determine whether New Jersey contract law principles permit enforcement of the class-arbitration prohibitions found in the instant arbitration agreements.
The first three factors of the Rudbart analysis require only brief attention. In respect of subject matter, the circumstantial backdrop to our Rudbart inquiry is the payday loan agreement executed between the parties. The focus of our analysis, however, is on the agreement's mandatory arbitration provision that contains limits on discovery and bars class-wide arbitration. In respect of Rudbart's second factor, the gross disparity in the relative bargaining positions of the parties is self-evident from the nature of the payday loan contract between a consumer and a financial entity.[4] We add only that the *99 contract Muhammad entered into is, in its most general sense, a consumer contract. Although those facts, in addition to our finding that the contract is one of adhesion, indicate a degree of procedural unconscionability in Muhammad's contract, they are insufficient to render the contract unenforceable. That said, adhesive consumer contracts, which are ordinarily enforceable, nonetheless may rise to the level of unconscionability when substantive contractual terms and conditions impact "public interests" adversely.
Rudbart's fourth factor, the most important to the present analysis, considers "the public interests affected by the contract." That factor requires us to determine whether the effect of the class-arbitration bar is to prevent plaintiff from pursuing her statutory consumer protection rights and thus to shield defendants from compliance with the laws of this State. Those "public interest" considerations ultimately determine whether we can permit enforcement of the provision in plaintiff's contract that allegedly precludes any realistic challenge to the substance of her loan-contract's terms.
In New Jersey, exculpatory waivers that seek a release from a statutorily imposed duty are void as against public policy. McCarthy v. NASCAR, Inc., 48 N.J. 539, 542, 226 A.2d 713 (1967). Muhammad's claims are statutory; however, the class-arbitration waiver at issue, and class-action waivers in general, are not, in the strictest sense of the term, exculpatory clauses. See Discover Bank, supra, 30 Cal.Rptr.3d 76, 113 P.3d at 1108. The class-arbitration waiver does not preclude Muhammad from filing an individual claim in arbitration. The difficulty lies in the fact that her individual consumer-fraud case involves a small amount of damages, rendering individual enforcement of her rights, and the rights of her fellow consumers, difficult if not impossible. In such circumstances a class-action waiver can act effectively as an exculpatory clause.
To permit the defendants to contest liability with each claimant in a single, separate suit, would, in many cases give defendants an advantage which would be almost equivalent to closing the door of justice to all small claimants. This is what we think the class suit practice was to prevent.
[Delgozzo v. Kenny, 266 N.J.Super. 169, 193, 628 A.2d 1080 (App.Div.1993) (quoting Hohmann v. Packard Instrument Co., 399 F.2d 711, 715 (7th Cir.1968)).]
Such waivers are problematic "when the waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages," as the California Supreme Court also recognized. Discover Bank, supra, 30 Cal. Rptr.3d 76, 113 P.3d at 1110 (emphasis added).
In most cases that involve a small amount of damages, "rational" consumers may decline to pursue individual consumer-fraud lawsuits because it may not be worth the time spent prosecuting the suit, even if competent counsel was willing to take the case. See Kinkel v. Cingular Wireless, L.L.C., 357 Ill.App.3d 556, 564, 293 Ill.Dec. 502, 510, 828 N.E.2d 812, 820 (2005) (observing that in context of individually pursued small damage claims, any potential recovery would be offset "by any costs incurred in presenting the claim and any lost wages for taking time from work to do so."), appeal granted, 216 Ill.2d 690, 298 Ill.Dec. 378, 839 N.E.2d 1025 (2005); see also Carnegie v. Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir.2004) (commenting *100 that "only a lunatic or a fanatic sues for $ 30."). Moreover, without the availability of a class-action mechanism, many consumer-fraud victims may never realize that they may have been wronged. As commentators have noted,
often consumers do not know that a potential defendant's conduct is illegal. When they are being charged an excessive interest rate or a penalty for check bouncing, for example, few know or even sense that their rights are being violated. Nor, given the relatively small amounts at stake, would most consumers find it worthwhile to seek legal advice to determine whether this is the case.
[Jean R. Sternlight and Elizabeth J. Jensen, Mandatory Arbitration: Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse, 67 Law & Contemp. Prob. 75, 88 (2004).]
In addition to their impact on individual litigants, class-action waivers can functionally exculpate wrongful conduct by reducing the possibility of attracting competent counsel to advance the cause of action. Class-action waivers prevent an aggregate recovery that can serve as a source of contingency fees for potential attorneys. Although defendants have no obligation to provide counsel to plaintiff, they cannot take action that impedes ordinary citizens' access to representation to vindicate their rights. Defendants emphasize the availability of attorney's fees under the CFA; however, that fact is not dispositive in the instant case because the damages sought by Muhammad and those she seeks to represent are small. The availability of attorney's fees is illusory if it is unlikely that counsel would be willing to undertake the representation. The finance charge for the loan in this matter was $60. The class of people whom plaintiff seeks to represent may have similar claims about that size. In fact, plaintiff had to roll-over her loan two times, bringing her compensatory claims to $180 that, with the possibility of treble damages available under CFA, may add up to a maximum of less than $600. One may be hard-pressed to find an attorney willing to work on a consumer-fraud complaint involving complex arrangements between financial institutions of other jurisdictions when the recovery is so small.[5] It cannot be that class-action waivers are less objectionable when a plaintiff is suing under a statute that fails to provide for attorney's fees (and damages multipliers). Such a perverse result would encourage under-enforcement of the very statutes that the Legislature has signaled as warranting strenuous enforcement.
We hold, therefore, that the presence of the class-arbitration waiver in Muhammad's consumer arbitration agreement renders that agreement unconscionable. As a matter of generally applicable state *101 contract law, it was unconscionable for defendants to deprive Muhammad of the mechanism of a class-wide action, whether in arbitration or in court litigation. The public interest at stake in her ability and the ability of her fellow consumers effectively to pursue their statutory rights under this State's consumer protection laws overrides the defendants' right to seek enforcement of the class-arbitration bar in their agreement.
We do not view our holding today to be at odds with the decision in Gras v. Associates First Capital Co., 346 N.J.Super. 42, 786 A.2d 886 (2001), certif. denied, 171 N.J. 445, 794 A.2d 184 (2002), in which the Appellate Division considered the issue before it to be whether class-action waivers were per se unenforceable. The court in Gras, supra, found that there was no "inherent conflict . . . between arbitration and the underlying purpose of [the CFA]," 346 N.J.Super. at 52, 786 A.2d 886, and we agree. Gras, however, did not present the precise issue before the Court in this matter: whether the small amount of damages being pursued in this action involving complicated financial arrangements and multiple out-of-state entities effectively prevents plaintiff from being able to vindicate the public interests protected by the CFA.
In our view, New Jersey's public policy favoring arbitration is not determinative of whether a specific class-arbitration waiver is unenforceable. Nothing in the arbitration process requires that claims be brought only by individuals. Moreover, unlike the limited discovery often found in arbitration agreements, class-arbitration waivers do not make arbitration a more streamlined and efficient forum for adjudicating disputes. One could speculate that class-arbitration waivers are viewed as more efficient because of the likelihood that fewer individual consumers would seek redress than those who would be included as part of a class. Cf. Ting v. AT & T, 182 F.Supp.2d 902, 931 n. 16 (N.D.Cal.2002) (stating that "the notion that it is to the public's advantage that companies be relieved of legal liability for their wrongdoing so that they can lower their cost of doing business is contrary to a century of consumer protection laws."), aff'd in part, rev'd in part on other grounds, 319 F.3d 1126 (9th Cir.2003). The purpose of arbitration, however, is not to discourage consumers from seeking vindication of their rights.
To be sure, many commentators have criticized, for various reasons, the class-action mechanism as it is applied in courts. See Sternlight and Jensen, supra, 67 Law & Contemp. Prob. at 102 (noting that "[a]cademics as well as corporate interests have pointed to ethical and efficiency issues and have argued that class actions be limited or reformed, if not eliminated."). Commentators have also suggested that class arbitration may in fact be no different or no more efficient than class actions litigated in court. Jean R. Sternlight, As Mandatory Arbitration Meets the Class Action, Will the Class Action Survive?, 42 Wm. and Mary L.Rev. 1, 44-53 (2000); Jack Wilson, No-Class-Action Arbitration Clauses, State Law Unconscionability, and the Federal Arbitration Act: A Case for Federal Judicial Restraint and Congressional Action, 23 Quinnipiac L.Rev. 737, 773-80 (2004). In respect of court actions, the United States Congress and/or our State Legislature may amend class-action procedures should they perceive deficiencies in the current process. And, in the context of class arbitration, contracting parties and the various arbitration forums can fashion procedural rules specific to class arbitration. Class arbitration is in its infancy and may provide a fertile ground for establishing flexible class-action procedures. See Discover Bank, supra, 30 *102 Cal.Rptr.3d 76, 113 P.3d at 1116 (discussing California's approach to class arbitration). The drafters of arbitration agreements and forum rules, as well as the arbitrators themselves, may allow for the development of innovative class-arbitration procedures that address some of the perceived inadequacies with the current system.[6] That said, in order for a specific procedure to be considered "class arbitration," we presume that the essential elements of modern class actions would be present.
B.
Our decision today is rooted in the fact-sensitive public interest assessment of the Rudbart analysis and is not based on a determination that the arbitral forum, per se, cannot accomplish vindication of a consumer-fraud litigant's rights. In Gilmer, supra, the United States Supreme Court stated that arbitration is allowed in actions authorized by federal statutes "[s]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum." 500 U.S. at 28, 111 S.Ct. at 1653, 114 L.Ed.2d at 38 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 3359, 87 L.Ed.2d 444, 462 (1985)). That analysis was used again by the Court in Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 521, 148 L.Ed.2d 373, 383 (2000). Defendants argue that those holdings prevent the conclusion that we reach today in respect of Muhammad's arbitration agreement. We reject that argument.
Our analysis does not focus solely on the ability of Muhammad to individually vindicate her statutory rights. Our consideration of "the public interests affected by the contract" under Rudbart compels a broader inquiry into how class-action waivers affect the various interests protected under the CFA. Moreover, the analysis undertaken in Gilmer and Randolph reconciled various remedial federal statutes with the FAA. In Randolph, supra, the Court noted as part of its inquiry that it must "ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." 531 U.S. at 90, 121 S.Ct. at 521, 148 L.Ed.2d at 383. That is a uniquely federal question, distinct from an analysis of state contract law under Rudbart. The California Supreme Court observed similarly in Discover Bank, supra, when examining federal cases that have applied Gilmer and Randolph. 30 Cal. Rptr.3d 76, 113 P.3d at 1114 n. 6. Noting *103 the difference between the federal "vindication of statutory rights" test and an unconscionability analysis under state law, the California Supreme Court stated that the decisions following the former approach "address whether a federal statute impliedly limits arbitration, [and] are obviously not binding on this court when it decides whether class arbitration waivers are unconscionable under state law principles." Ibid.; see also Kristian v. Comcast Corp., 446 F.3d 25, 60 n. 22 (1st Cir.2006) (concluding similarly that state unconscionability analysis, which is "based on the particulars of state contract law, may include considerations not present in the vindication of statutory rights analysis. . . . which is not dependent on state law."); In re Universal Fund Telephone Billing Practices Litigation, 300 F.Supp.2d 1107, 1136-38 (D.Kan.2003) (treating procedural unconscionability and availability of "[an] effective forum to vindicate statutory rights" as distinct inquiries).
C.
Finally, although we find that the class-arbitration waivers in Muhammad's arbitration agreements are unconscionable and unenforceable, we find that the waivers are severable. Once the waivers are removed, the remainder of the arbitration agreement is enforceable. As the Eleventh Circuit has explained,
[i]f all the provisions of the arbitration clause are enforceable, then the court must compel arbitration according to the terms of the agreement. If, however, some or all of its provisions are not enforceable, then the court must determine whether the unenforceable provisions are severable. Severability is decided as a matter of state law. If the offensive terms are severable, then the court must compel arbitration according to the remaining, valid terms of the parties' agreement. The court should deny the motion to compel arbitration only where the invalid terms of the arbitration clause render the entire clause void as a matter of state law.
[Terminix Int'l Co. LP v. Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1331 (11th Cir.2005) (citation omitted).]
Similarly, our courts have recognized that "[i]f a contract contains an illegal provision and such provision is severable, courts will enforce the remainder of the contract after excising the illegal portion, so long as the prohibited and valid provisions are severable." Schuran, Inc. v. Walnut Hill Assocs., 256 N.J.Super. 228, 233, 606 A.2d 885 (Law Div.1991); see also Naseef v. Cord, Inc., 90 N.J.Super. 135, 143, 216 A.2d 413 (App.Div.) (stating "[i]t is true that if a contract contains an illegal provision, if such provision is severable the courts will enforce the remainder of the contract after excising the illegal portion."), aff'd, 48 N.J. 317, 225 A.2d 343 (1966). The instant contracts embrace that proposition in that the broad class-action waivers in both contracts use the language "[t]o the extent permitted by law." Thus, the contracts reflect an intention that the arbitration agreement would be implemented whether and to whatever extent class-wide arbitration might be barred. Because we hold that the class-arbitration bar is not enforceable, we need not address plaintiff's additional argument about the impact of the discovery limitations on an individual arbitration claim.
IV.
The judgment of the Appellate Division is reversed and the matter is remanded to the Law Division for further proceedings consistent with this opinion.
*104 Justice RIVERA-SOTO, concurring in part and dissenting in part.
To the extent the majority holds that the arbitration agreements in this case are enforceable, ante, 189 N.J. at 26, 912 A.2d at 103 (2006), I concur. However, to the extent the majority holds that the class-arbitration waivers in plaintiff's arbitration agreements are unconscionable, ante, 189 N.J. at 22, 912 A.2d at 100 (2006), I respectfully dissent for the reasons thoughtfully and exhaustively set forth by both the Appellate Division, Muhammad v. County Bank of Rehoboth Beach, Del., 379 N.J.Super. 222, 877 A.2d 340 (App.Div.2005), and the trial court.
For reversal and remandmentChief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI and WALLACE5.
For concurrence in part; dissent in partJustice RIVERA-SOTO1.
NOTES
[1] If the parties fail to agree on discovery matters, NAF Rule 29C allows mandatory discovery where the "cost [of discovery] is commensurate with the amount of the Claim." Muhammad contends that because her damages are only $180, limiting discovery to that amount, in the context of a complex claim, precludes her from obtaining relief.
[2] The Appellate Division concluded that defendants had waived any argument that Delaware law should be applied (based on a choice of law clause in the contract). The panel found the issue to have been waived because it was not raised before the trial court and was raised only in a footnote in defendants' Appellate Division brief. Muhammad, supra, 379 N.J.Super. at 234 n. 3, 877 A.2d 340. Defendants did not seek review of the Appellate Division's determination of that issue.
[3] This is not to say that when a contract of adhesion involves overwhelming procedural unconscionability, that those procedural factors are not included and weighed in the overall analysis for unconscionability. See, e.g., Discover Bank, supra, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (finding gross unfairness in contract formation when bill stuffer contained adhesion contract's terms). In that circumstance a "sliding scale" analysis may be appropriate. See Sitogum Holdings Inc., supra, 352 N.J.Super. at 565-66, 800 A.2d 915 (noting that courts have employed a "sliding scale" analysis when considering, in tandem, the two factors of procedural and substantive unconscionability).
[4] The third Rudbart factor addresses the degree of economic compulsion motivating the "adhering" party. In respect of that factor we note only that payday loans may be necessities for persons who need access to cash and who may have credit difficulty, compelling their acquiescence to loans bearing exorbitant interest rates. Muhammad seeks to represent a class of people who, like herself, are under an allegedly high degree of economic compulsion to enter into such loan contracts.
[5] In many respects, this is a fact-sensitive analysis and close cases may require the development of some proofs by a putative class plaintiff and fact-finding on the court's part. See Sternlight and Jensen, supra, 67 Law & Contemp. Prob. at 87 (stating that "[t]estimony from parties, local attorneys, or experts can establish which claims plaintiffs and their attorneys deem worth bringing. Such testimony needs to be specific as to what kinds of damages and attorney's fees would be available for individual claims [and] why these are insufficient"). At some point, an amount of damages will be high enough to attract counsel if attorney's fees are available, even though no counsel would take the same case if no attorney's fees were available. When "substantial damages" are at stake, the court should consider whether the availability of attorney's fees (including possible fee enhancement, Rendine v. Pantzer, 141 N.J. 292, 661 A.2d 1202 (1995)) in conjunction with a substantial potential damages award (including potential statutory multipliers) would allow a "substantial number" of consumers to obtain counsel and seek relief.
[6] One objection lodged against class actions is that because the stakes are so high, defendants are pressured into settling arguably frivolous claims. The amicus Chamber of Commerce advances that concern, noting the "hydraulic pressure to settle that class certification creates." See also In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1299-1300 (7th Cir.) (noting that class certification can force defendants to stake "their companies on the outcome of a single jury trial," whereas numerous individual trials would "reflect a consensus, or at least a pooling of judgment, of many different tribunals.") (Posner, J.), cert. denied, 516 U.S. 867, 116 S.Ct. 184, 133 L.Ed.2d 122 (1995); Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L.Rev. 373, 374 (2005) (noting criticism that class certification gives "outsized leverage" to "even the most baseless of class claims."); Wilson, supra, 23 Quinnipiac L.Rev. at 778 (stating in respect of class arbitration that "companies must fear that a `renegade arbitrator' will enter an enormous judgment, which almost certainly would be subject to only the traditional, limited judicial review of arbitral awards."). Those concerns could be addressed through class-arbitration rules drafted to establish methods that spread the risks associated with a single decision-maker while still preserving many of the efficiencies of the modern class-action procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326560/ | Kern, Leila R., J.
The Commonwealth has moved in limine to admit three (3) minutes of a recording of a 911 call made to the Wakefield Police Department on June 19, 2010. The defendants, Philip Carter, Peter Carter and William Seaburg, have moved to have the recording excluded. For the following reasons the Commonwealth’s Motion in Limine to Admit 911 Recording is ALLOWED and Defendants’ Motions in Li-mine to Exclude 911 Call are DENIED.
BACKGROUND
On June 19, 2010, Jill Fernald called the Wakefield Police Department to report “I just saw a crime” at a neighbor’s house. She rapidly reported that she had seen two individuals, “teenagers,” at the house. She then saw one of them enter the house and heard 16 “gunshots” from the house. Ms. Fernald said, in quick succession, that she had seen one of them enter the house, using his t-shirt to enter. They were calling “Jake.” “The teenager is climbing out the window wearing rubber gloves.” The dispatcher asked for the address of the house and Ms. Fernald gave him the location as she did not know the number. She also described the house and gave her own name and address in response to questions from the dispatcher.
Throughout the dispatcher’s questioning, Ms. Fernald kept telling the dispatcher the direction the two individuals were running in as she could see them while on the phone. In answer to the dispatcher’s questions she described the clothing each was wearing. She kept interrupting and saying that one of the individuals “has a gun under his shirt.” Ms. Fernald kept repeating what she believed she had seen or was in the process of observing.
DISCUSSION
Ms. Fernald has moved out of Massachusetts and is not expected to testify at trial. The issue then for this court to consider is whether the statements on the recording are admissible with a foundation laid by the dispatcher as to the recording’s authenticify. This court must first determine if Ms. Fernald’s statements on the recording fall within an exception to the hearsay rule and then, if the statements do, are they nonetheless inadmissible because of the confrontation clause of the Sixth Amendment to the Constitution of the United States and Article 12 of the Declaration of Rights. Crawford v.Washington, 541 U.S. 36, 59 (2004). Testimonial statements of a witness who is not present at trial and subject to cross-examination are not admissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. There is no question that Ms. Fernald will be unavailable at trial and was not subject to cross-examination at any time prior to trial. Therefore the determination as to testimonial v. non-testimonial must be considered if this court determines that the statements would be admissible as an exception to the hearsay rule.
Spontaneous Utterance Exception to Hearsay Rule
There is agreement that a statement is only admissible into evidence under the spontaneous utterance exception “if (1) there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer,’ and (2) if the declarant’s statement was ‘a spontaneous reaction to the occurrence or event and not the result of reflective thought.’ ” Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting 2 McCormick, Evidence §272, at 204 (5th ed. 1999). In Santiago, the Supreme Judicial Court indicated that the key inquiry *582was whether the declarant was still under the sway of the exciting event when she made the statement. Id. at 625.
Defendant Peter Carter argues that the type of event Ms. Fernald reported here does not qualify as one that would “render inoperative the declarant’s normal thought processes.”1 He goes on to contrast this case with ones in which the declarant is a victim of an attack. (Commonwealth v. Simon, 456 Mass. 280 (2010); Commonwealth v. Nesbitt, 452 Mass. 236 (2008)). A bystander’s spontaneous utterance may, however, be admissible where declarant testifies from personal knowledge. Commonwealth v. Harbin, 435 Mass. 654, 657 (2002) (citing Commonwealth v. McLaughlin, 364 Mass. 211, 223-24 (1973)). Here, there is no suggestion that Ms. Fernald’s statements were not made from personal knowledge. Also, there is clear evidence that she experienced the sound of what she reported as “16 gunshots” emanating from her neighbor’s house. This is an example of a startling and frightening event that would “render inoperative [her] normal thought processes” so she might reflect upon the events and dissemble about them.
Peter Carter then goes on to argue that the first few statements made by the caller, which described events, contained few limited descriptions of the individuals. It was only in response to questions from the dispatcher that the caller added to those descriptions. In and of itself, that is not determinative. See Simon, supra, at 296 where, as here, there was a level of spontaneity. Ms. Fernald was interrupted in her rapid recounting of events, some of which she was still observing, by questions about the number of individuals, what they were wearing, etc. She kept repeating, they have a gun under their shirt. Her tone of voice and rate of speech indicated spontaneity and excitement of the level necessary to meet the requirements of the exception. Ms. Femald’s belief that she had heard “gunshots” from her neighbor’s house and her continuing concern that one of the individuals had a gun, reinforces this court’s view. Based on the foregoing, the statements made by the caller, Jill Fernald, during the first three minutes of the 911 recording fall within the spontaneous utterance exception to the hearsay rule.
Testimonial v. Nontestimonial
As indicated supra, the determination that the statements fall within an exception to the hearsay rule is not the end of the analysis. The next necessary determination is whether they are testimonial for purposes of the confrontation clause. For the analysis, this court must first look at the context in which the statements were made. The Supreme Court in Davis v. Washington, 126 S.Ct. 2266, 2273-74 (2006), provided some guidelines (“Statements are nontestimon-ial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency . . .”). With respect to statements made during a 911 call, the Supreme Court set out indicia, among them: (1) whether the 911 caller was speaking about “events as they were actually happening" rather than describing] past events"; (2) whether any reasonable listener would recognize that the caller was facing an “ongoing emergency”; (3) whether what was asked and answered was, viewed objectively, “necessary to be able to resolve the present emergency, rather than simply to learn ... what had happened in the past,” including whether it was necessary for the dispatcher to know the identity of the alleged perpetrator; and (4) the level of formality of the interview. Id. at 2276-77 (emphasis in the original). See Commonwealth v. Galicia, 447 Mass. 737, 743-44 (2006).
Here, the emergency was the caller’s perception, repeated more than once, that one of the individuals had a gun tucked under his t-shirt. The first statement to the dispatcher described a “past event” in the sense that the caller reported she had seen a crime, a break-in at a neighbor’s house. She then reported she had heard 16 gunshots from inside the house and one of the individuals “used his t-shirt to enter the house.” After that everything she said was about events as they unfolded. The caller stated “the teenager’s climbing out of the window wearing rubber gloves.” She had begun by saying she heard gun shots from the house and continued to repeat that, as well as, “they have a gun,” throughout the interruptions from the dispatcher asking her to describe the neighbor’s house, its location, and so forth. At one point, the caller states, “they’re hiding the gun underneath their shirt.” She continues to refer to the weapon throughout the interruptions.
The emergency was the presence of an individual with a gun in a residential neighborhood. When Ms. Fernald was reporting “the teenager’s climbing out of the window wearing rubber gloves” and the direction in which the individuals were heading after they left her neighbor’s house, she was reporting events as they unfolded. The description of the clothing worn by two individuals was in response to questions as the caller watched them leave the scene and head toward the Common. She kept saying “I can see them.”
Statements made in response to questioning by law enforcement agents, including a police dispatcher, are “testimonial per se” unless they are made to secure a volatile situation. Commonwealth v. Nesbitt, 452 Mass. 236, 243 (2008). “Nontestimonial out-of-court statements do not give rise to a right of confrontation and may be admitted ‘if the admission is consistent with Massachusetts evidence law.’ ” Commonwealth v. Figueroa, 79 Mass.App.Ct. 389, 398 (2011) (citing Nesbitt at 244). The caller’s statements in the first three minutes of the 911 call2 meet all four indicia *583cited above from Davis at 2276-77 and referenced in Galicia, at 743-44. (1) After the first sentence, the caller was “speaking about events as they were actually happening”; (2) a reasonable listener would recognize the caller was facing an ongoing emergency;3 (3) what was asked and answered was necessary to resolve the present emergency including the dispatcher’s need for a description of the alleged perpetrators;4 and, (4) there was no formality in the questioning by the dispatcher.
ORDER
The Commonwealth’s Motion in Limine to Admit the 911 Recording is ALLOWED and the Defendants’ Motions in Limine to Exclude the 911 Call are DENIED.
This court has focused on the arguments made in Peter Carter’s Motion in Limine as these are laid out in detail. The other two defendants rely on the basic principles that the statements are hearsay and there is a confrontation clause issue to be considered.
Which this court has listened to.
Her evident concern about an individual in her neighborhood with a gun.
Apprehension of the individual the caller reported as having a gun. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/988199/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-7429
FREDRICK LYNWOOD FOLEY,
Plaintiff - Appellant,
versus
LIEUTENANT COOK,
Defendant - Appellee.
No. 95-7460
FREDRICK LYNWOOD FOLEY,
Plaintiff - Appellant,
versus
LARRY HUFFMAN; L. M. SAUNDERS,
Defendants - Appellees.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, District Judge.
(CA-95-984-R, CA-95-1013-R)
Submitted: December 14, 1995 Decided: January 17, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Fredrick Lynwood Foley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's orders denying
relief on his 42 U.S.C. § 1983 (1988) complaints. We have reviewed
the records and the district court's opinions and find no rever-
sible error. Accordingly, we affirm on the reasoning of the dis-
trict court. Foley v. Cook, No. CA-95-984-R; Foley v. Huffman, No.
CA-95-1013-R (W.D. Va. Sept. 5, 1995; Sept. 13, 1995). 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 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591438/ | 15 N.Y.2d 324 (1965)
Tibbetts Contracting Corporation, Respondent-Appellant,
v.
O & E Contracting Company, Inc., Respondent-Appellant, and Vioe Realty Corp., Appellant-Respondent, et al., Defendants.
Court of Appeals of the State of New York.
Argued February 9, 1965.
Decided March 18, 1965.
Max Freund and Fred Greene for appellant-respondent.
Emory Gardiner and Michael W. La Penna for O & E Contracting Company, Inc., respondent-appellant.
Francis J. Duffy and Hyman A. Hochman for Tibbetts Contracting Corporation, respondent-appellant.
Chief Judge DESMOND and Judges DYE, FULD, BURKE, SCILEPPI and BERGAN concur.
*330VAN VOORHIS, J.
Under a contract with defendant Vioe, defendant O & E agreed to do excavation, grading and drainage work on property which Vioe was developing for lease to S. Klein Department Stores, Inc. Plaintiff subcontracted to lay certain drainage pipes. In March, 1959 O & E removed its equipment from the job site and on the basis of that and other alleged breaches of the contract Vioe declared O & E in default. Plaintiff completed the drainage work, to the knowledge of Vioe, after Vioe had declared the principal contract broken by O & E. O & E did not pay plaintiff and plaintiff filed a notice of mechanic's lien for the amount owed to it by O & E. This action was commenced to foreclose the mechanic's lien. Another action by Vioe against O & E for breach of contract commenced in New York County was consolidated with this action for trial. Defendant O & E alleged counterclaims *331 against Vioe for amounts alleged to be due to it for work done under the contract. The counterclaims, comprising the substance of Vioe's complaint in the consolidated action, were treated as cross complaints in the action to foreclose the mechanic's lien.
The trial court found that O & E did not abandon or breach the contract, that O & E was entitled to recover from Vioe the balance due for work, labor and services and materials furnished, plus loss of profits because of breach of contract by Vioe, that plaintiff was entitled to judgment against O & E for the amount due it and to establishment of its mechanic's lien on the land.[*]
The Appellate Division found that Vioe was justified in terminating the contract with O & E for O & E's refusal to comply with demands to resume performance of the contract, O & E's removal of its equipment from the job site and its refusal to furnish a performance and payment bond; that a determination that Vioe owed O & E nothing at the time plaintiff filed its notice of lien would have been justified, and, therefore, no fund was in existence to which the lien attached and the lien was unenforcible at least through the subcontract with O & E; that, in order to prevent unjust enrichment of Vioe, plaintiff was entitled to relief (on a cause of action which was added pursuant to permission by the Appellate Division) in the form of a money judgment against Vioe on quasi-contract or constructive trust (implied in law) for work done and materials supplied by plaintiff, Vioe having permitted plaintiff to continue to perform under its subcontract and having fostered and promoted such performance by plaintiff.
Defendant Vioe argues, inter alia, in support of its appeal that the court below erred in holding that plaintiff is entitled to any judgment against Vioe; that it was error to grant the plaintiff's motion to amend its complaint to allege a new cause of action against Vioe, because it was deprived of an opportunity to meet the issues raised by the new cause of *332 action and because plaintiff did not appeal to the Appellate Division on account of the trial court's adverse ruling in denying its motion to amend by adding the cause of action on which recovery was allowed.
Defendant O & E argues on its appeal that the Appellate Division erred, both in law and fact, in holding that "a damage award in favor of Vioe against O & E would have been justified"; that Vioe's notice of contract termination was ineffective, unwarranted and improper under the provisions of the contract, and, in any event, was cancelled or waived by Vioe's later conduct; that, at the time of the filing of plaintiff's mechanic's lien, a fund existed sufficient to pay the lien which was subject to appropriate action to foreclose.
The plaintiff, also appealing, argues, inter alia, that O & E did not abandon the contract; that the permitting and acceptance of performance of plaintiff's subcontract constituted a waiver in law of the termination of the contract, thus making Vioe liable under its contract with O & E and to plaintiff.
Since the Appellate Division modified on the law and the facts, it is incumbent on us to decide which version of the facts more nearly accords with the evidence. Our conclusion is that the trial court's findings are nearer to what is disclosed by the record than those of the Appellate Division, i.e., that Vioe rather than O & E broke the principal contract. We conclude that Vioe owes money to O & E, out of which Tibbetts (plaintiff) is entitled to be paid. In that posture of the case, it becomes immaterial whether Tibbetts could recover against Vioe on some quasi-contract theory of unjust enrichment.
The contract between Vioe and O & E was entire; it provided a flat price of $127,750 for the performance of "all excavating, filling, drainage, grading and related work required by the Drawings and/or as described in this Specification, generally as follows" (cf. contract Exhibit A, p. 582) after which the work is more particularly described. Unit prices applied only to "additions and/or deductions", resulting from modification of the contract as the work progressed. The subcontract between O & E and Tibbetts, as has been stated, was for drainage. O & E happened to deal with Tibbetts in this manner: it came about that in preparing this site for an S. Klein Department Stores, Inc., shopping development in Yonkers, *333 Vioe had made a contract with Tibbetts January 30, 1959 for the laying of an 84-inch storm water drain which was not included in the drawings and specifications covering the drains to be installed by O & E under its contract with Vioe. O & E was, however, required under its contract to backfill and grade after the drainpipes had been installed under this contract between Vioe and Tibbetts. The drains were laid under that contract by March 18, 1959, although the manholes were not installed until a later date and the contract was not finally completed until June 14 or 15, 1959. It may be assumed that, weather permitting, these trenches could have been refilled before the manholes were installed, although there may be doubt that the grading could have been finished before then. While the work was in progress under the contract mentioned between Vioe and Tibbetts for the installation of the 84-inch drain, O & E sublet to Tibbetts, which was already on the job site, the completion of the drainage work covered by the contract between O & E and Vioe. Oral arrangements were made to that effect on March 3, 1959 for a stated price of $28,550 which, plus extras, amounted without dispute to the principal sum of $30,217. This work to be performed by O & E was commenced by Tibbetts under the subcontract on March 16 and completed June 15, 1959. No party to the litigation questions that the work by Tibbetts was satisfactorily completed. Tibbetts was paid by Vioe $91,500 August 27, 1959 for laying the 84-inch drain under its contract with Vioe. It has never been paid for the similar work subcontracted to it by O & E. Instead of billing Vioe it billed O & E under its subcontract.
On March 18, 1959 Vioe notified O & E that it had abandoned its contract unless alleged defaults in performance were rectified under the terms of the contract within three days, and on March 27 notification was given that the defaults had not been rectified, that the contract had been terminated and that O & E would be charged with excess costs of completion. The O & E contract work (except what had been subcontracted to Tibbetts) was completed by a concern known as County Asphalt Corporation to which Vioe relet the balance of the work at a charge of $87,229.49 in excess of the figure of $127,750 for which O & E had contracted to do the entire job including the amount payable under the subcontract to Tibbetts. Having *334 subcontracted to do its part of the work under O & E, and having billed O & E (not Vioe) upon its completion, Tibbetts cannot look to Vioe for payment except through O & E. But by permitting Tibbetts to continue with the performance of its subcontract at the same time insisting that Tibbetts could look only to O & E for remuneration, Vioe waived its notice of termination of the principal contract with O & E. There is nothing in the record about any agreement having been made between Vioe and O & E, after notice of termination of the principal contract, that O & E would finish Tibbetts' part of its work in mitigation of damages. Tibbetts was to that extent the alter ego of O & E insofar as Vioe was concerned. Regardless of whether Tibbetts knew that Vioe had supplanted O & E by County Asphalt, or that Vioe had given O & E notice of termination of the principal contract, Vioe could not accept performance by Tibbetts of the drainage work covered by the main contract with O & E, at the same time disclaiming obligation to Tibbetts on the ground that Tibbetts was working for O & E and could look solely to O & E for payment, unless Vioe recognized that O & E through Tibbetts was continuing the performance of O & E's contract. That was inconsistent with a contention that Vioe had no further relationship with O & E, and that the O & E contract had been ended. Nobody contends that there was any express contract between Vioe and Tibbetts. No contract between them could be implied in fact, inasmuch as Vioe has disclaimed any such relationship throughout and Tibbetts acquiesced in that interpretation by billing Vioe only for the drains which it laid under contract with Vioe, and billing O & E under the subcontract after the work was completed. That was not done by mistake, either of fact or of law. Tibbetts knew of the alleged termination of the principal contract with O & E inasmuch as County Asphalt commenced its operations on the ground March 24, 1959 taking over the work from O & E which was no longer on the scene. If O & E were able to pay, this question could not have arisen. Tibbetts would have been paid by O & E for work satisfactorily performed under the subcontract. O & E's agreement with Tibbetts was never repudiated, terminated or modified by any agreement. Tibbetts has the undoubted right to look to O & E for recompense, it entered upon and completed the work in *335 reliance exclusively on its rights under O & E, and the circumstances did not create a contract relationship implied in law but nonexistent in fact, whereby Vioe became liable personally to Tibbetts jointly with O & E regardless of whether there is any fund arising from a liability by Vioe to O & E (cf. Miller v. Schloss, 218 N.Y. 400, 406-408).
Under the judgment of the trial court Vioe broke the contract, and the amount owing by O & E to Tibbetts is part of the damages which O & E was held to be entitled to recover from Vioe. Tibbetts was awarded a lien on the proceeds to satisfy its debt from O & E (Lien Law §§ 4, 70, 71; Dempsey v. Mount Sinai Hosp., 186 App. Div. 334, affd. 227 N.Y. 661; Soll v. Camardella, 277 App. Div. 1004; W. E. Blume, Inc., v. Postal Tel. Cable Co., 265 App. Div. 1062). This, we think, was correct. The contract with O & E was nearly completed, and would have been later if Vioe had not made performance impossible on March 18, 1959 by throwing O & E off the job and substituting County Asphalt. A month and two weeks before that (February 5, 1959) O & E submitted invoice No. 1005 for $95,812.50 based on an estimated 75% level of job completion. Vioe checked and revised the requisition and authorized payment to the extent of $88,000 which is approximately 70% of the total job cost. This did not even include the $30,217 which later represented the satisfactory performance of the Tibbetts' subcontract. All of its work, including that of Tibbetts under its subcontract, O & E had contracted to perform for the flat price of $127,750. Although paragraph 34 of the contract (Exhibit A, p. 582) provides that no payment shall be conclusive evidence of performance, it may be inferred that Vioe would not have countenanced payment to O & E on the basis of performance of 70% of the work unless substantially that proportion of it had been completed. Add to that circumstance the fact that $30,217 or thereabouts in value was later done by Tibbetts by subcontract on behalf of O & E, and it becomes apparent that a larger proportion of the work which O & E contracted to do was performed for Vioe than the testimony and correspondence of its officers would tend to indicate. The O & E contract contained no specified time of completion, although, to be sure, the contract said that work was to proceed expeditiously and sequentially as determined by the builder Vioe (Exhibit A, 10th page). It *336 made provision for delays caused by weather. Vioe seems to have been under pressure to complete this site for Klein's Department Store by April, 1959, which date was later postponed until June, 1959. It is apparent that Vioe wanted more equipment and men on the job than O & E had been using or had been obligated by the contract to employ on this job, in order to hasten its completion for Klein and save money due to the nonuse of the land pending completion. County Asphalt went in with more men and earth-moving machinery, and Vioe paid $143,313.95 to it and others to finish the work all of which O & E had contracted to do (including what was done by Tibbetts under subcontract) for $127,750 plus $2,650 for extras, or the total of $130,400.
The testimony differs, as testimony does, but money talks, and if Vioe paid O & E for 70% of the work purporting to be covered by its contract, and, in addition, received the benefit of what was done for O & E by Tibbetts, we are inclined to credit the version given by Tibbetts and by O & E.
The ground was frozen on March 17, 1959, when O & E moved its bulldozers and pans to the nearby job at Idlewild. O & E claims to have done so with the consent of Vioe, which disputes that its consent was given. However that may be, O & E asserts that it would take but a short time to move its machinery back to the Klein job. There is no question that it was more costly to refill and grade in frozen ground. It is no answer to say that the frozen ground did not prevent Tibbetts from digging trenches and laying drainage pipes. Doing that is different from backfilling and grading. These operations could not be commenced, regardless of frozen ground, until after the laying of drainpipes had been completed by Tibbetts, on both the job that Tibbetts did directly for Vioe and on the one for which it subcontracted from O & E. Even the expensive job done by County Asphalt, working on a cost plus basis through the Winter regardless of frost, was evidently not finished in all its details until September 12, 1959. At least the dates of its invoices ranged from March 24 to September 12.
It is evident that O & E did not intend to abandon the job on March 17, 1959, and expected to return when the progress of Tibbetts' work and the weather conditions made it easier. Vioe *337 insists upon the letter of its contract. It quotes the Draconian clauses found in such agreements to the effect that Vioe "shall decide all questions which may arise as to the performance, quantity, quality, acceptability, fitness and rate of progress of the work or materials furnished under this contract", that if the contractor "delays the speedy progress of the work as in this Article or in any other Article provided, so as to cause loss or damage to the Builder or to the other Contractors, then it shall reimburse the Builder and such other Contractors for such loss"; and that "Work shall start immediately and proceed in accordance with schedules determined by Builder * * * [and] in sequence and direction as required to meet the Builder's schedule"; and that the work was to "be prosecuted and completed with all possible diligence and speed or as otherwise directed by the Builder" (§ 24).
In spite of all this, the contract contains no specified date for completion. Delays caused by the weather or other contractors have provision made for them. At a time when the briefs and subsequent correspondence would indicate Vioe was disgusted with O & E's performance, Vioe offered the 84-inch pipe storm sewer job to O & E in preference to Tibbetts, which got the contract after O & E's refusal for which Tibbetts was paid $91,500.
Language in contracts placing one party at the mercy of the other is not favored by the courts, and, while such clauses have some effect, the literal absolutism with which Vioe's counsel insists upon language construed to mean that O & E had to resort to any means whatever to expedite a contract entered into without completion date, at the categorical dictation of the other party, is not supported by the decisions (Sanford v. Brown Bros. Co., 208 N.Y. 90; Gillet v. Bank of America, 160 N.Y. 549; Wilson & English Constr. Co. v. New York Cent. R. R. Co., 240 App. Div. 479).
In this view of the case, the effect of the general release given by Tibbetts to Vioe at the time of payment of the $91,500 for the separate job contracted directly with Vioe becomes immaterial. It has been contended that this discharged Vioe not only from its obligation to pay Tibbetts for that job but also for any other job on account of which on any theory Vioe might be held liable. Since Tibbetts' recovery is against O & E, the liability of Vioe *338 to Tibbetts is derivative. Tibbetts claims through subrogation to the right of O & E (Szemko v. Weiner, 176 App. Div. 620) which could not be barred by a release from Tibbetts.
Our conclusion is that the failure of O & E to resume performance within three days on demand, and taking its equipment temporarily to the neighboring job at Idlewild, at a time when continuance or resumption of the work would have been futile or inordinately costly in view of the frozen condition of the ground (preventing backfilling and grading operations) and the lack of completion of the trench and drainage operations, did not constitute a breach of the contract. The belated demand for a performance bond, as well as any other defects which may have existed in performance, was waived in any event through the acquiescence of Vioe and its acceptance of the work done by Tibbetts under subcontract from O & E. The O & E contract was entire, as has been stated, nor is that circumstance altered by the language of the agreement purporting to permit Vioe, under certain circumstances, to "employ others to complete all or part of the remaining portion of your contract". It is apparent that these words could not make severable a contract which by its structure is entire, so as to continue it partly in existence when once it has been repudiated.
As was well stated by the trial court (p. 645): "The contract being for the lump sum of $127,500 for both the excavation and drainage work is a single, entire and undivisible contract (New Era Homes Corp. v. Forster, 299 N.Y. 303; Portfolio v. Rubin, 233 N.Y. 439). The assertion of a repudiation of the contract is nullified by a subsequent acceptance of benefits growing out of the contract (Brennan v. National Equitable Investment Co., 247 N.Y. 486). Thus, O & E should have been permitted to complete the excavation portion of the contract also, and being prevented from doing so by the actions of Vioe, is entitled to recover from Vioe, the balance due for work, labor and services rendered and materials furnished, plus loss of profits because of the breach of contract by Vioe."
The order of the Appellate Division should be reversed, as well as its new findings, and the findings and judgment of the trial court reinstated, with costs in this court and in the Appellate Division to plaintiff-respondent-appellant and to defendant-respondent-appellant.
Order of Appellate Division reversed and judgment of the Special Term reinstated, with costs in this court and in the Appellate Division to plaintiff and defendant O & E Contracting Company, Inc., against defendant Vioe Realty Corp.
NOTES
[*] The amount of the recovery allowed to O & E by the trial court was computed by awarding in excess of the $74,000 already paid, as damages, the $30,217 owing to Tibbetts on the subcontract, $14,000 represented by the retained percentage, plus the sum of $4,783 representing extras and loss of profits, making in all the sum of $49,000 out of which Tibbetts would be paid. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3351643/ | This is an action of scire facias based on a judgment obtained by Glen Brown against Moran *Page 17
Construction Company, in which the defendant Nasin was garnished. At the time of service of the writ, and at the time that the execution on the judgment was placed with the constable for service and demand made upon him, the defendant made no disclosure.
The defendant Nasin was the prime contractor for the construction of a school, for which he furnished a payment bond. The amended complaint alleges that Moran, doing business as Moran Construction Company, furnished services and materials to Constructor's Inc., a subcontractor on the school construction job, for which Moran has not been paid and for which reasons he claims a right of action against the defendant, the general contractor, on his payment bond, under § 7215 of the General Statutes.
The defendant has demurred to the amended complaint "because it fails to set forth a cause of action in that the `debt' alleged in Paragraph 7 of the Amended Complaint is not a `debt' `then due' within the meaning of the General Statutes (1949 Rev.) governing process of foreign attachment and scire facias." The demurrer places in issue the question whether there was a "debt due" the subcontractor Moran from Nasin at the time of service of the writ.
The defenses to a scire facias are limited and if the court pronouncing the original judgment had jurisdiction, no defense can be made that might have been made in the original action. The only question to be determined in a proceeding by scire facias to revive a judgment is whether the plaintiff has a right, as against the defendant, to have the judgment executed. 47 Am. Jur. 470, § 11.
The rule has been firmly established that for purposes of foreign attachment, a debt is "due" when it is owed, though not yet payable because not yet liquidated in amount. Parker, Peebles Knox v. *Page 18 El Saieh, 107 Conn. 545, 554; Finch v. Great AmericanIns. Co., 101 Conn. 332, 335. It is also well established that a debt is due where there is an existing obligation to pay, either at the present time or in the future and though the amount has not been definitely ascertained. Molloy v. Prudential Ins. Co.,129 Conn. 251, 253. The plaintiff in his brief concedes that the claim of Moran against Nasin for labor and materials may not be strictly "payable" at the present time, and it may not be liquidated (at the present time), but claims that it is "owing" and therefore unpaid.
Section 7215 of the General Statutes provides: "Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 7214 and who has not been paid in full therefor before the expiration of a period of sixty days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute such action to final execution and judgment for the sum or sums justly due him. . . ."
It is clear § 7215 does not create a debt from Nasin, the contractor, to Moran, the subcontractor for supplying labor and materials, but the statute specifically provides for a right of action, giving Moran the right to sue on Nasin's bond. Until Moran exercises this right to bring suit, there is no debt due from the defendant subject to disclosure.
The demurrer is sustained for the reason stated therein. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1638803/ | 675 F. Supp. 1354 (1987)
SERAMPORE INDUSTRIES PVT. LTD., and The Engineering Export Promotion Council of India, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF COMMERCE, INTERNATIONAL TRADE ADMINISTRATION, Defendant,
Alhambra Foundry Co., et al., Defendant-Intervenors.
Court No. 86-06-00743.
United States Court of International Trade.
November 25, 1987.
*1355 *1356 Kaplan, Russin & Vecchi, Dennis James, Jr., Washington, D.C., for plaintiffs.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Dept. of Justice, Commercial Litigation Branch, and A. David Lafer, Washington, D.C., for defendant.
Collier, Shannon, Rill & Scott, Paul C. Rosenthal and Carol Mitchell, Washington, D.C., for defendant-intervenors.
DiCARLO, Judge:
Serampore Industries Private Ltd. and the Engineering Export Promotion Council of India (plaintiffs) challenge the final determination of the International Trade Administration of the United States Department of Commerce (Commerce) that certain iron construction castings from India are being or are likely to be sold in the United States at less than fair value (LTFV). Certain Iron Construction Castings From India; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9486 (Mar. 19, 1986). This Court has jurisdiction over the action pursuant to 19 U.S.C. § 1516a(a)(2) (Supp. III 1985) and 28 U.S.C. § 1581(c) 1982. Plaintiffs move under Rule 56.1 of the Rules of this Court for judgment on the agency record and ask the Court to remand to Commerce for certain recalculations. Commerce concedes it erred in making some of the challenged calculations and asks the Court to remand. The Court affirms in part and remands in part.
Background
The Municipal Castings Fair Trade Council, a trade association which represents domestic producers of iron construction castings, and fifteen named members of the association filed a petition with Commerce alleging that iron construction castings from India were being sold in the United States at LTFV. Certain Iron Construction Castings From India; Initiation of Antidumping Duty Investigation, 50 Fed.Reg. 24,014 (June 7, 1985).
Commerce presented questionnaires to Serampore and three other Indian companies under investigation. Serampore claimed an adjustment for indirect taxes paid on items physically incorporated into the final products but refunded upon export by means of a cash compensatory support lump sum payment. Serampore also claimed an adjustment for drawback upon export of excise duty paid on the raw materials used to produce the finished castings. Serampore further claimed an upward adjustment of its United States price (USP) for the deposit of estimated countervailing duties on heavy iron castings entered during the period of investigation.
In its preliminary determination of LTFV sales, Commerce made upward adjustments to Serampore's USP for the cash compensatory support payment, the excise duty drawback, and the deposits of estimated countervailing duties. Iron Construction Castings From India; Preliminary Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 43,595 (Oct. 28, 1985).
Commerce verified Serampore's initial and supplemental questionnaire responses and found that Serampore received a 5% cash compensatory support payment for refund of indirect taxes upon export of heavy castings and a 10% cash compensatory support payment for certain light castings. Commerce also verified that Serampore received a drawback of excise duty on iron castings exported to the United States. Commerce determined that the prices Serampore paid for pig iron included excise duty, octroi (border tax) and sales taxes. Citing Serampore's recordkeeping, Commerce did not isolate taxes on paint and packing materials.
In its final determination of sales at LTFV, Commerce found the following weighted-average dumping margins:
------------------------------------------------------------------
| Weighted-average
Manufacturers/sellers/exporters | margin
| percentage
------------------------------------------------|-----------------
RSI (excluded) ................................ | 0
Kejriwal (de minimis) (excluded) .............. | 0.39
Serampore ..................................... | 0.90
Kajaria (de minimis) (excluded) ............... | 0.03
All others .................................... | 0.90
------------------------------------------------------------------
*1357 51 Fed.Reg. at 9490.
In calculating Serampore's dumping margin, Commerce did not add the cash compensatory support payment to USP. Commerce deducted from foreign market value some of the indirect taxes refunded upon export, but made no adjustments for refunds of the central sales tax. Commerce also added duty drawback to Serampore's USP, although Commerce had verified that the drawback was of excise duty and not import duty.
Although Commerce had added deposits of estimated countervailing duties to Serampore's USP in its preliminary determination, Commerce did not add deposits of estimated countervailing duties to USP in its final determination.
With respect to Serampore's weighted average dumping margin, Commerce refused to use Serampore's sales at fair value to offset its sales at LTFV.
With respect to the weighted average margin for "all other" companies, Commerce disregarded margins of the other companies investigated that were found not to be dumping or dumping only at de minimis rates, and applied the margin found for Serampore alone to the "all other" rate.
Commerce has moved to strike two paragraphs of plaintiffs' reply brief and an affidavit of plaintiffs' counsel attached to that brief. The Court reserves ruling on the motion because the subject challenged in plaintiffs' reply brief is remanded.
Discussion
In reviewing final Commerce determinations in antidumping duty investigations, the Court is directed by Congress to hold unlawful those determinations found "to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B) (1982). Under the substantial evidence standard for review of agency determinations, the Court will affirm the agency's findings if they are supported in the record by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Federal Trade Comm'n v. Indiana Fed'n of Dentists, 476 U.S. 447, 106 S. Ct. 2009, 2014, 90 L. Ed. 2d 445 (1986); Atlantic Sugar, Ltd. v. United States, 2 Fed.Cir. (T) 130, 136, 744 F.2d 1556, 1562 (1984). The Court "must accord substantial weight to an agency's interpretation of a statute it administers." American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.1986) (citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450-51, 98 S. Ct. 2441, 2445, 57 L. Ed. 2d 337 (1978); Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 13 L. Ed. 2d 616 (1964)). However, "[t]he traditional deference courts pay to agency interpretation is not to be applied to alter the clearly expressed intent of Congress." Board of Governors of the Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 106 S. Ct. 681, 686, 88 L. Ed. 2d 691 (1986).
1. Excise Duty Drawback
Plaintiffs claim that Commerce erred in adding excise duty drawback to Serampore's USP. In its final determination, Commerce declared that it was adding "duty drawback" to USP pursuant to 19 U.S.C. § 1677a(d)(1)(B) (1982), which provides for an upward adjustment to USP for customs duties that are rebated or uncollected by reason of exportation. Subsequent to the determination and upon review of plaintiffs' arguments and the administrative record, the defendant concluded that: (1) the excise duty on pig iron is a tax and not an import customs duty; (2) the excise duty drawback was in fact deducted from Serampore's foreign market value and inadvertently added to its USP, thereby negating the adjustment made to Serampore's foreign market value; and (3) as a rebate of indirect taxes, the excise duty drawback should only have been deducted from Serampore's constructed value calculations pursuant to 19 U.S.C. § 1677b(e)(1)(A) (1982), not added to the USP. Commerce thus concedes that the addition of excise duty drawback to Serampore's USP was incorrect. This part of the action is remanded.
2. Central Sales Tax
Plaintiffs claim that Commerce erred with respect to indirect taxes by excluding *1358 from Serampore's constructed value less than the full amount of indirect taxes refunded by way of cash compensatory support. Commerce verified that the prices Serampore paid for pig iron included excise duty, octroi, and sales taxes. Although Commerce made adjustments for refunds of excise duty, octroi, and West Bengal State sales tax, Commerce made no adjustments for the Indian central sales tax.
Defendant asserted at oral argument that Commerce did not err in failing to account for the central sales tax. The Court ordered further briefing on the central sales tax issue.
In response to the Court's order, defendant moved pursuant to Rule 1 of the Rules of this Court for a remand in order to allow it to ascertain whether the iron construction castings Serampore produced incurred the central sales tax. If the answer is affirmative, Commerce will determine the amount of this indirect tax Serampore incurred during the period of investigation and make all appropriate adjustments. This part of the action is remanded.
3. Estimated Countervailing Duties
Plaintiffs claim that Commerce's final determination should have included an upward adjustment to USP for deposits of estimated countervailing duties paid on iron castings entered during the period of investigation. The antidumping statute and regulations mandate an upward adjustment to USP by the amount of any countervailing duty "imposed" on the merchandise to offset an export subsidy. 19 U.S.C. § 1677a(d)(1)(D) (1982); 19 C.F.R. § 353.10(d)(1)(iv) (1985). In 1984 Commerce instructed the United States Customs Service to collect a cash deposit of estimate duties of 2.19% of the entered value of future imports of iron castings from India. Certain Iron-Metal Castings From India; Final Results of Administrative Review of Countervailing Duty Order, 49 Fed.Reg. 40,943 (Oct. 18, 1984). This order to collect estimated countervailing duties was in effect during Commerce's period of investigation, which covered sales of iron construction castings made to the United States from December 1, 1984 through May 31, 1985. In Commerce's preliminary determination, it increased USP for deposits of the estimated countervailing duties:
In accordance with section 772(d)(1)(D) of the Act, [19 U.S.C. § 1677a], where appropriate, we added the amount of countervailing duty imposed in India on certain heavy iron metal castings to offset export subsidies.
50 Fed.Reg. at 43,596 (emphasis added).
In its final determination, however, Commerce did not adjust USP to account for the deposits of estimated countervailing duties, stating that 19 U.S.C. § 1677a(d)(1)(D) does not specifically prescribe an adjustment to USP "until the countervailing duty is acutally assessed on the subject merchandise...." 51 Fed.Reg. at 9487.
The starting point for interpreting a statute is the language of the statute itself, which must ordinarily be regarded as conclusive absent a clearly expressed legislative intention to the contrary. Consumer Product Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108, 100 S. Ct. 2051, 2056, 64 L. Ed. 2d 766 (1980); Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S. Ct. 2361, 2366, 60 L. Ed. 2d 980 (1979); Gilmore Steel Corp. v. United States, 11 CIT ___, Slip Op. 87-112 at 9 (Oct. 6, 1987). Going behind a statute's plain language to search for a possibly contrary congressional intent is a step the court must take cautiously, even under the best circumstances. United States v. Locke, 471 U.S. 84, 95-96, 105 S. Ct. 1785, 1792-93, 85 L. Ed. 2d 64 (1985).
The statute provides for USP to be increased by
the amount of any countervailing duty imposed on the merchandise under part I of this subtitle or section 1303 of this title to offset an export subsidy.
19 U.S.C. § 1677a(d)(1)(D) (1982). The language of the statute does not disclose the scope of the meaning Congress intended to accord the word "imposed."
*1359 Commerce interprets the word "imposed" as used in 19 U.S.C. § 1677a(d)(1)(D) and 19 C.F.R. § 353.10(d)(1)(iv) to include countervailing duties only when they are "actually imposed" or "assessed." Commerce and the defendant-intervenors state that this interpretation, which excludes deposits of estimated countervailing duties, is of consistent and longstanding practice. See, e.g., Antidumping; Circular Welded Carbon Steel Pipes and Tubes From Thailand; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 3384, 3387 (Jan. 27, 1986); Low-Fuming Brazing Copper Rod and Wire From New Zealand; Final Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 42580, 42581 (Oct. 21, 1985); Oil Country Tubular Goods From Spain; Final Determination of Sales at Less Than Fair Value, 50 Fed.Reg. 12599, 12601 (Mar. 29, 1985).
Commerce and the defendant-intervenors cite to legislative history of the Trade Agreements Act of 1979, which repealed the Antidumping Act of 1921 and reenacted its provisions as part of the Tariff Act of 1930. In the relevant portion of the Senate Finance Committee Report that accompanied the Trade Agreements Act of 1979, the Committee used the word "assessed" rather than "imposed" when referring to the adjustments for USP:
The purpose of the amendment regarding additions to purchase price and exporter's sale price with respect to countervailing duties also being assessed because of an export subsidy is designed to clarify that such adjustment is made only to the extent that the exported merchandise, and not the other production of the foreign manufacturer ..., benefits from a particularl [sic] subsidy.
S.Rep. No. 249, 96th Cong. 1st Sess. 94, reprinted in 1979 U.S. Code Cong. & Ad. News 381, 480 (emphasis added). The provision is further explained in the relevant portion of the Statements of Administrative Action:
A new adjustment to "purchase price" and "exporter's sales price" is intended to reflect provisions of Article VI of the General Agreement on Tariffs and Trade, by mandating the addition to "purchase price" or "exporter's sales price" of any countervailing duty actually imposed to offset an export subsidy paid on the same merchandise. (statute) The GATT prohibits the assessment of both antidumping and countervailing duties to compensate for the same cause of unfairly low priced imports, whether by dumping or as a result of an export subsidy.
H.R.Doc. No. 153, 96th Cong., 1st Sess. 412, reprinted in 1979 U.S. Code Cong. & Ad. News 683 (emphasis added). Nowhere in the legislative history of this provision is there any indication that Congress intended that Commerce adjust USP upwards for countervailing duty cash deposits, rather than countervailing duties actually imposed or assessed.
Plaintiffs argue that the word "imposed" has been used loosely in other contexts, and cite Lewyt Corp. v. Commissioner of Internal Revenue, 349 U.S. 237, 240, 75 S. Ct. 736, 739, 99 L. Ed. 1029 (1955); Zenith Electronics Corp. v. United States, 10 CIT ___, ___ n. 14, 633 F. Supp. 1382, 1388 n. 14 (1986); American Manufacturers of Castor Oil Products v. United States, 8 CIT 255, 258 (1984) [Available on WESTLAW, 1984 WL 6067]; Diversified Products Corp. v. United States, 6 CIT 155, 163, 572 F. Supp. 883, 890 (1983).
Plaintiffs citation of cases using the word "imposed" in other contexts does not compel a conclusion that Commerce's interpretation of the word "imposed" as used in 19 U.S.C. § 1677a(d)(1)(D) and 19 C.F.R. § 353.10(d)(1)(iv) is either unreasonable or unlawful.
If, as in this case, an agency's interpretation of a statute does not contravene "clearly discernible legislative intent," the Court must uphold such interpretation as long as it is "sufficiently reasonable." Kelley v. Secretary, United States Dep't of Labor, 812 F.2d 1378, 1380 (Fed.Cir. 1987); American Lamb Co. v. United States, 785 F.2d 994, 1001 (Fed.Cir.1986).
This issue concerns adjustments to USP for deposits of estimated countervailing *1360 duties in an antidumping duty determination. This Court has recently considered adjustments to USP for deposits of estimated antidumping duties in an antidumping duty determination. PQ Corp. v. United States, 11 CIT ___, 652 F. Supp. 724 (1987), presented the issue of whether Commerce erred in not deducting the deposit of antidumping duties from USP, where the exporter's subsidiary paid the deposit without passing it onto the United States buyer, and where no antidumping duty was ever actually assessed. The court noted that estimated deposits may be refunded if they later prove unnecessary:
Under the Tariff Act of 1930, deposits of estimated antidumping duties must be posted for merchandise that is subject to an antidumping duty order. The amounts of these deposits are based upon past determinations of dumping margins involving previous entries. The amount of the actual antidumping duty that is eventually assessed on an entry of merchandise may vary significantly from the amount of estimated antidumping duties initially deposited on that entry. The difference between the deposit of estimated antidumping duties, and the actual assessed antidumping duties is either collected, or refunded with interest.
PQ Corp., 11 CIT at ___, 652 F.Supp. at 737. The court held that it was reasonable for Commerce not to make any adjustments under 19 C.F.R. § 353.55 or 19 U.S. C. § 1677a(d)(2)(A) for deposits of estimated antidumping duties.
As with the estimated and assessed antidumping duties discussed in PQ Corp., the law likewise distinguishes between the collection of cash deposits for estimated countervailing duties, 19 U.S.C. § 1671e(a)(4) (Supp. III 1985); 19 C.F.R. § 355.28(d)(2) (1985), and the subsequent assessment of countervailing duties, 19 U.S.C. § 1671e(a)(1) (1982); 19 C.F.R. §§ 355.36(a), 355.37 (1985).
Commerce's interpretation of the word "imposed" to mean "actually imposed" or "assessed" is supported by the legislative history and is sufficiently reasonable. Commerce thus properly refused to adjust USP for the deposits of estimated duties.
4. Serampore's Weighted Average Margin
While Serampore sold some merchandise at LTFV, it also sold some merchandise at or above its foreign market value. Commerce disregarded Serampore's fair value sales and considered only the sales at LTFV to determine Serampore's weighted average dumping margin. Plaintiffs contend that Commerce's practice improperly creates sales at LTFV where none would otherwise exist, because Serampore's fair value sales would "offset" its sales at LTFV.
The antidumping law provides in part that if Commerce
determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value ... then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise.
19 U.S.C. § 1673 (1982).
A plain reading of the statute discloses no provision for Commerce to offset sales made at LTFV with sales made at fair value.
The Court grants substantial deference to Commerce in both its interpretation of its statutory mandate and the methods it employs in administering the antidumping law. See Consumer Products Div., SCM Corp. v. Silver Reed America, Inc., 3 Fed. Cir. (T) 83, 90, 753 F.2d 1033, 1039-40 (1985).
Commerce may treat sales to the United States market made at or above the prices charged in the exporter's home market as having a zero percent dumping margin. The practice of considering negative margins as zero ensures that sales made at less than fair value on a portion of a company's product line to the United States market are not negated by more profitable sales. Certain Welded Carbon Steel Standard Pipe and Tube From India; Final Determination of Sales at Less Than Fair Value, 51 Fed.Reg. 9089, 9092 (Mar. 17, 1986). See also Final Determination *1361 of Sales At Not Less Than Fair Value; Potassium Chloride From Israel, 50 Fed. Reg. 4560, 4562 (Jan 31, 1985) (95 percent of U.S. sales found to be at or above foreign market value; Commerce nonetheless found no reason to average fair value sales with the remaining percentage of sales at LTFV); Knoll, United States Antidumping Law: The Case for Reconsideration, 22 Tex. Int'l L.J. 265, 278 (1987); Sandler, Primer on United States Trade Remedies, 19 Int'l L. 761, 765 (1985).
Commerce has interpreted the statute in such a way as to prevent a foreign producer from masking its dumping with more profitable sales. Commerce's interpretation is reasonable and is in accordance with law.
5. The "All Other" Weighted Average Margin
In its preliminary determination, Commerce calculated the rate for those companies which were not asked to respond to antidumping questionnaires by weight averaging the preliminary margins found for the four companies that were investigated. Margins were found for all four companies investigated and the weighted average "all other" rate was set at 3.10%. 50 Fed.Reg. at 43,596.
In the final determination, three of the four companies investigated were found to have zero or de minimis margins. 51 Fed. Reg. 9490. To calculate the "all other" rate for the final determination, Commerce disregarded the three companies with de minimis margins and based the "all other" rate on Serampore's rate alone.
Plaintiffs argue that Commerce's methodology is inconsistent, because in at least one other determination, Certain Welded Carbon Steel Pipe and Tube Products From Turkey; Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 13044 (Apr. 17, 1986), Commerce did not ignore de minimis margins in setting the "all other" rate. Plaintiffs argue further that the practice of excluding de minimis margins in calculating the "all other" weighted average margin violates the GATT Antidumping Code, Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, June 30, 1967, 19 U.S.T. 4348, 4356, T.I.A.S. No. 6431.
The Court does not reach the plaintiffs' GATT arguments because the defendant has neither distinguished nor explained Certain Welded Carbon Steel Pipe and Tube Products From Turkey, where Commerce included de minimis margins in calculating the "all other" rate. The Court is thus without an explanation from the concerned agency as to the reasoning behind its apparently inconsistent methodologies.
Defendant-Intervenors attempt to explain Certain Welded Carbon Steel Pipe and Tube Products From Turkey, as an example that Commerce "generally" will not consider company specific margins based on the use of best information available in calculating a weighted-average margin for "all others." Defendant-Intervenors' Memorandum at 30. However, as the court noted in Badger-Powhatan v. United States, 10 CIT ___, 633 F. Supp. 1364, 1371-72, appeal dismissed for lack of jurisdiction, 808 F.2d 823 (Fed.Cir. 1986), "[a]lthough intervenor's explanation is intriguing, there is no statement from the concerned agency that this is its reasoning."
Intervenors also observe that in earlier antidumping determinations Commerce set the "all other" rates at the highest dumping margin found for any firm investigated. See, e.g., Preliminary Determination of Sales at Less Than Fair Value; Certain Steel Pipes and Tubes From Japan, 47 Fed.Reg. 37263, 37266 (Aug. 24, 1982); Preliminary Determination of Sales at Less Than Fair Value; Certain Steel Products From the Federal Republic of Germany, 47 Fed.Reg. 35650, 35656 (Aug. 16, 1982); Preliminary Determinations of Sales at Less Than Fair Value; Certain Steel Products From France, 47 Fed.Reg. 35656, 35660 (Aug. 16, 1982). Intervenors opine that the practice of disregarding all margins lower than the highest deposit rate "apparently has been abandoned." Defendant-Intervenor's Memorandum at 30 n. 8. Commerce has also failed to explain its shift from this earlier practice.
"[I]f there is an agency practice to be given weight in this case, the court is simply *1362 at a loss as to what that practice is." Badger-Powhatan, 10 CIT at ___, 633 F.Supp. at 1372. Neither has Commerce promulgated any rule in accordance with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553 (1982). See Carlisle Tire & Rubber Co. v. United States, 10 CIT ___, 634 F. Supp. 419 (1986). The Court is unable to sustain an apparently inconsistent methodology used to calculate the "all other" rate. Commerce is ordered, as part of the remand proceedings, to explain the basis for its apparently inconsistent methodology.
Conclusion
This action is remanded to Commerce to make its determination within 120 days. The plaintiffs will thereafter have 10 days in which to file a brief on the remand results with the Court. Defendant-intervenors and Commerce will thereafter have 10 days after receipt of the plaintiffs' brief in which to file a reply.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375123/ | 82 Cal. App. 2d 183 (1947)
BLANCHE TROUTMAN, Appellant,
v.
LOS ANGELES TRANSIT LINES, INC. (a Corporation), Respondent.
Civ. No. 15720.
California Court of Appeals. Second Dist., Div. Three.
Oct. 31, 1947.
Marcus C. Clark for Appellant.
Gibson, Dunn & Crutcher, Philip C. Sterry and James D. Derby, Jr., for Respondent.
KINCAID, J. pro tem.
Plaintiff appeals from a judgment in favor of the defendant in an action for damages for personal injuries alleged to have been sustained as a result of the negligence of defendant and urges as grounds for a reversal thereof that the evidence is insufficient to support the verdict of the jury and that the trial court erred in its refusal to give an instruction requested by the plaintiff.
By her complaint plaintiff alleged that she was a paid passenger upon a streetcar belonging to and operated by defendant corporation on Seventh Street near Hill Street, in the city of Los Angeles. Such pleading further alleged: "That then and there, and at said time and place aforesaid, the said defendant corporation, by and through its said agent, servant and employee, John Doe, negligently, carelessly, wrongfully and unlawfully permitted and allowed passengers to deposit their baggage in and along the passenger aisle of said street car rendering the said aisle dangerous to other passengers moving upon and along said aisle and did negligently and carelessly so manage, maintain and operate said street car as to cause the said street car to start with a sudden, violent and unusual jerk, whereby and because whereof plaintiff was thrown backward and stumbled and fell over said baggage and sustained personal injuries as hereinafter set forth." The italics are added by us for later reference.
The answer of defendant specifically denied the negligence as alleged, and further alleged acts of contributory negligence proximately causing the injuries sustained by plaintiff. With reference to plaintiff's contention that the evidence is insufficient to support the verdict of the jury, evidence was adduced in behalf of defendant by a disinterested passenger witness to the effect that at the time of the incident in question she was seated on a front seat of the streetcar; that when the car reached Seventh and Hill Streets she was watching passengers come aboard when she heard someone say, "are you hurt?" She turned and saw plaintiff seated on a handbag in the aisle; that during all the times in question, including the period she *185 observed plaintiff sitting on the bag, the streetcar was standing perfectly still.
The motorman of the involved streetcar testified his attention was called to the accident when he heard a commotion at his right side, and upon looking around saw plaintiff sitting on a handbag; that he turned in his seat, placed both hands under plaintiff's elbows and raised her to her feet; that the streetcar was standing still at all times during the events in question. The evidence further shows that the bag occupied the same position in the aisle during the period the car had traveled some 25 blocks, and that many passengers had walked past it while entering and leaving the car in this interval. Plaintiff testified that the car started up with a violent jerk which caused her to fall over the bag, thus causing her injuries. She located the position of the bag as being on the left-hand side of the car and opposite the second seat to the rear of the motorman. The latter and two passenger witnesses testified that the bag was placed as far forward in the streetcar as the structure thereof would permit, was adjacent and parallel to the platform on which the motorman's chair was based, and that there was room between the entrance and the bag in which to pass into the aisle.
Plaintiff argues that the foregoing evidence shows the motorman had knowledge of the fact that the bag was placed in the aisle of the car in such a position as to cause a person to fall over it; that because the law requires a carrier of persons for reward to use the utmost care and diligence for their safe carriage, to provide everything necessary for that purpose, and to exercise to that end a reasonable degree of skill, such evidence shows negligence on the part of defendant as a matter of law.
[1] A street railway company is not an insurer of the safety of those it undertakes to transport, although it is required to use the utmost precaution and diligence for their safety. [2] It is not negligence as a matter of law for the motorman of a streetcar of ordinary type to suffer the bag or satchel of a passenger to remain on the floor of the car in the aisle where it is not so placed as to obstruct free passage out of or into the car. (Selman v. City of Detroit, 283 Mich. 413 [278 N.W. 112, 115]; Pitcher v. Old Colony St. Ry. Co., 196 Mass. 69 [81 N.E. 876, 124 Am. St. Rep. 513, 12 Ann.Cas. 886, 13 L.R.A.N.S. 481]. To the same effect see Holda v. Public etc. Transport, 11 N.J.Misc. 879 [168 A. 753]; Bragg v. Houston Electric Co. (Tex.Civ.App.), 264 S.W. 245; Burns *186 v. Pennsylvania Ry. Co., 233 Pa. 304 [82 A. 246, Ann.Cas. 1913B 811], Jackson v. Boston Elevated Ry. Co., 217 Mass. 515 [105 N.E. 379, 51 L.R.A.N.S. 1152].)
[3] Under the circumstances here shown, the location of the bag in the car, both prior to and at the time of the accident, and as to whether, by its position, it obstructed free ingress or egress of passengers, were questions of fact for the determination of the jury. It was likewise a factual matter as to whether the act of the motorman in knowingly permitting it to remain in its location constituted a breach of that degree of care which defendant owed plaintiff. The evidence presented in defendant's behalf is substantial in character and from it the jury was entitled to believe not only that the streetcar was at a standstill at the time of plaintiff's fall, but that the position of the bag was such as not to obstruct free passage in the aisle. It further supports the implied finding that her act in falling was a result of her own contributory negligence. Such being the case, the evidence, although directly conflicting in many particulars, is amply sufficient to sustain the verdict.
[4] Plaintiff also complains of prejudicial error in the refusal of the trial court to give the following instruction to the jury: "The plaintiff in her complaint alleges in substance that the operator of the street car started the same with a sudden violent and unusual jerk and that the said operator permitted and allowed a piece of baggage in and along the passenger aisle of said street car, rendering the said aisle dangerous to other passengers, whereby and because whereof plaintiff was thrown backward and stumbled and fell over said baggage and sustained certain personal injuries."
"Even though you should find that the plaintiff has proved both of these allegations of negligence, it is not necessary that she prove both if the evidence establishes proof of one of these allegations, which, in fact, was the proximate cause of the accident, and injuries, if any, sustained by the plaintiff."
"The defendant owed a duty to the plaintiff to exercise the highest degree of care in the management and operation of the said street car, and if you should find from the evidence that the motorman of said street car did start the said street car with a violent and unusual jerk, causing the plaintiff to be thrown against some object in said street car whereby she was injured and that the plaintiff herself was not guilty of any contributory negligence, then your verdict must be for the plaintiff and against the defendant. *187"
"If you should find from the evidence that the said street car was not put in motion with a violent and unusual jerk, but that the plaintiff, without any contributory negligence on her part, stumbled over the baggage in the aisle of said street car and thereby injured herself; and if you find further that the motorman of said street car knew, or in the exercise of ordinary care should have known of the presence of said piece of baggage in said aisleway; and if you find further that the presence of said piece of baggage constituted a danger to passengers, including the plaintiff herein, using the said aisleway, then your verdict must be in favor of the plaintiff and against the defendant, if you should further find that the plaintiff herself was not guilty of any contributory negligence as that term has been or will be defined in these instructions."
The subject matter of the first and third paragraphs of the instruction in question was fully covered by other instructions given to the jury. The trial judge was justified in refusing to deliver the second and fourth paragraphs of such instruction as the substance thereof was directed to facts entirely outside the issues as framed by the pleadings. (Cooper v. Los Angeles Ry. Co., 137 Cal. 229, 231 [70 P. 11]; Carbaugh v. White Bus Line, 51 Cal. App. 1, 5 [195 P. 1066].)
[5] Plaintiff did not allege general negligence upon the part of the defendant. Reference to the allegations of her complaint above quoted shows that she specifically alleged two distinct acts of negligence in the conjunctive. It is her position as shown by such pleading that the defendant was negligent in permitting a passenger to deposit his handbag in the aisle of the street car and in so operating the car as to cause it to start with a jerk, thus causing plaintiff to fall over the bag. This is conceded by the first paragraph of the instruction in question. The second and fourth paragraphs thereof had the effect of charging the jury with a duty to find for plaintiff if they found that either a sudden jerk in starting the car or the position of the bag in the aisle was the proximate cause of her fall and injury. Plaintiff, on the contrary, had the burden of proof, under the limited issues thus specifically raised by her complaint, to establish both the claimed factors of negligence by a preponderance of the evidence.
The judgment is affirmed.
Shinn, Acting P. J., and Wood, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2337642/ | 383 F. Supp. 2d 1374 (2005)
UNITED STATES of America
v.
Eddie Milton GAREY, Jr., Defendant
No. 503CR83CDL.
United States District Court, M.D. Georgia, Macon Division.
August 10, 2005.
*1375 Eddie Milton Garey, Jr., Cordele, GA, pro se.
Scott C. Huggins, Macon, GA, for Defendant.
Harry J. Fox, Jr., US Attorney's Office, Tracia M. King, Macon, GA, for Plaintiff.
ORDER
LAND, District Judge.
The sentencing hearing for Defendant was held on August 10, 2005. At that *1376 hearing, the Court made certain rulings on Defendant's objections to the Presentence Report ("PSR") prepared by the U.S. Probation Office. After consultation of the now advisory United States Sentencing Guidelines and in light of the Court's rulings on Defendant's objections, the Court sentenced Defendant to 360 months in prison. This Order memorializes the Court's oral rulings made at the hearing that may have had an impact on Defendant's sentence and the rationale expressed at the hearing in support of the Court's sentence. This Order does not include the oral rulings made at the hearing on other objections made by Defendant which the Court found had no impact on the advisory guidelines range and which the Court finds warrant no further explanation beyond what was stated at the hearing.
Defendant's Convictions
Defendant was convicted after a jury trial of twenty-seven counts, arising from telephone threats to blow up Macon City Hall, a Macon shopping mall, and a Macon news organization. During the search of Defendant's home, law enforcement discovered counterfeit materials and ammunition, and thus Defendant was also convicted on counterfeit charges and possession of ammunition by a convicted felon. Specifically, the counts of conviction were as follows:
Counts 1-11: Obstruction of Commerce, 18
U.S.C § 1951.
Counts 12-16: Threatening to Use a Weapon
of Mass Destruction, 18 U.S.C.
§ 2332a(2).
Counts 17-21: Making a Threat which Affects
Interstate Commerce, 18
U.S.C. § 844(e).
Counts 22-26: Making Counterfeit Securities,
18 U.S.C. § 513.
Count 27: Possession of Ammunition by a
Convicted Felon, 18 U.S.C.
§ 922(g)(1).
The Presentence Report
The PSR, pursuant to the Guidelines, groups the related counts and calculates the offense levels for each group as follows:
Offense
Count Group Number Counts Level
IA (Macon City Hall) 1,12,17 42
IB (Colonial Mall) 1,12,17 42
II (Norfolk Southern) 3,13,18 42
III (Bank of America) 4,14,19 42
IV (Interstate Highway) 6,15,20 42
V (Macon Telegraph) 10,16,21 44
VI (Monetary Demands) 2,7,8,11 23
VII (WGXA-TV) 5 20
VIII (Bank Businesses) 9 20
IX (Counterfeiting) 22,23,24,25,26 16
X (Ammunition) 27 26
Based upon these groupings, the PSR calculated six total grouped units to be used in determining the adjustment to the highest adjusted offense level to reach the combined adjusted offense level. The guidelines advise that with six units the offense level should be increased five levels. Increasing the highest offense level (Group V) of 44 by five levels yields a combined adjusted offense level of 49. Since Defendant received no credit for acceptance of responsibility, the PSR calculated his total offense level to be 49.
The PSR calculated the Defendant's criminal history points to be six which would typically yield a criminal history category III. However, the PSR also found that Defendant's conduct met the Guidelines definition of "federal crime of terrorism," which advises that the criminal history category should be increased to category VI.
With an offense level 49 and criminal history category VI, Defendant's advisory guideline range is life.
Defendant's Objections
Defendant filed numerous objections to the presentence report. The Court addressed each of those objections in the hearing, and the Court's rulings may be found in the hearing transcript. The Court will not reiterate all of those rulings in this Order. However, the Court does find it advisable to set forth in writing its *1377 explanation regarding several of the objections.
1. Booker Objections
Defendant makes various objections that the PSR in its calculation of Defendant's advisory guideline range bases its calculations on evidence that has not been admitted by the Defendant or proved to a jury beyond a reasonable doubt. Therefore, Defendant argues that using this evidence as a factor in his sentencing violates his rights as described in United States v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Defendant, however, ignores the remedial majority opinion in Booker which remedies these constitutional infirmities by holding that the guidelines are now advisory and not mandatory. Since the Court applies the guidelines in an advisory manner, it may base its sentence on factors that were not admitted to by Defendant or proven to a jury beyond a reasonable doubt. Accordingly, Defendant's Booker objections are overruled.
2. Obstruction of Justice Adjustment
The PSR increased Defendant's offense level by two levels pursuant to U.S.S.G. § 3C1.1 because Defendant wrote letters with implied threats to the U.S. District Judge originally assigned to this case and to a victim in this case. Defendant objected to this adjustment contending that the letters did not contain any express or implied threats, nor did they otherwise constitute obstruction of justice. The Court sustained this objection. The letter to the Judge included razor blades. However, Defendant indicates in the letter that he is enclosing the razor blades not as a threat to the Judge but as evidence of the dangerousness of his prison conditions. He maintains that such objects can be readily obtained and place prisoners in danger. The Court, while not condoning the enclosure of the razor blades and not commenting on whether their enclosure could subject Defendant to some other type of criminal or disciplinary action, finds that the letter and the enclosures do not constitute obstruction of justice for purposes of the guideline adjustment. The Court further finds that the letter to the victim informing her that the Government had inadvertently disclosed certain personal identifying information about her to him likewise does not amount to obstruction of justice for purposes of the guideline adjustment. Based upon the sustaining of this objection, Defendant's advisory combined adjusted offense level would be 47.[1]
3. Terrorism Adjustment
The PSR increases Defendant's offense level by twelve levels and his criminal history category from III to VI, pursuant to U.S.S.G. § 3A1.4, based upon the probation officer's conclusion that Defendant was convicted of a felony that "involved or was intended to promote a `federal crime of terrorism.'" The twelve level adjustment was applied to Count Group numbers I-V, all of which included the count of conviction for threatening to use a weapon of mass destruction, 18 U.S.C. § 2332a(2). Defendant objected to the twelve level adjustment and the increase in his criminal history category, contending that a "federal crime of terrorism" for purposes of this guideline adjustment must include conduct that transcends national boundaries. Since Defendant's conduct was purely domestic in nature, he argues that the adjustment should not be applied.
This issue appears to be one of first impression in this Circuit. The Eleventh *1378 Circuit has recently held that an "upward departure" based upon this guideline is appropriate even for conduct that does not transcend national boundaries. United States v. Jordi, 418 F.3d 1212 (11th Cir.2005). However, the Court expressly declined to decide whether the guidelines authorize a twelve level "adjustment" based upon conduct that does not transcend national boundaries. Id.
Resolution of this issue depends upon the meaning of "federal crime of terrorism" as used in the Guidelines. The guideline application notes expressly provide that it shall have the meaning set forth in 18 U.S.C. § 2332b(g)(5). That code section defines "Federal crime of terrorism" to include "an offense that (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of ... [section] 2332a (relating to use of weapons of mass destruction)...."
Defendant was convicted of a violation of 18 U.S.C. § 2332a (relating to use of weapons of mass destruction), and the evidence presented at trial supports a finding that Defendant intended to influence or affect the conduct of government by intimidation or coercion. Therefore, applying the plain language of the statutory definition, it appears clear that Defendant's conduct authorizes a finding that he was involved in or intended to promote a "federal crime of terrorism."
The Court's concern centers upon the fact that this definition of federal crime of terrorism is included in the code section that is limited to terrorism that transcends national boundaries. 18 U.S.C. § 2332b. Violation of § 2332b, in which this definition appears, requires a finding that the offense conduct "transcends national boundaries"; therefore, Defendant could not be convicted under § 2332b, since his conduct did not "transcend national boundaries." The question therefore arises as to whether the interpretation of this definition should be read in the context of the entire code section and should thus be read to mean that federal crime of terrorism is an offense, transcending national boundaries, "that (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of ... [section] 2332a."
The guidelines make no reference as to whether the adjustment is limited to terrorism that transcends national boundaries. They simply refer to the specific statutory definition. The Court therefore must interpret the intent of the guidelines, not the intent of Congress in placing the definition in the code section. Since the language is plain and there is no contrary intent expressed in the Guidelines (although one could argue there is a contrary intent in the code section), the Court finds that the guidelines do not require that the offense conduct transcends national boundaries. Although the Eleventh Circuit in Jordi did not address the issue presently before the Court, it would be inexplicable to allow for an "upward departure" under this guideline when the conduct does not transcend national boundaries (as held in Jordi), and yet not allow for an "adjustment" because the conduct does not transcend national boundaries. Consequently, the PSR correctly made the twelve level adjustment, and Defendant's objection is overruled.
Based on the foregoing and the Court's other rulings at the sentencing hearing, the Court concluded that the appropriate offense level for this case is 47 with a criminal history category VI. The advisory guideline range is therefore life. The Court finds no basis for making a downward departure under the guidelines. However, the Court finds that considering *1379 the factors set forth in 18 U.S.C. § 3553(a), life is not an appropriate sentence in this case. Consequently, the Court finds that a variance from the advisory guideline range is warranted.
Variance[2]
Having consulted the advisory guideline range of life, the Court determined that a variance was appropriate. This variance is based on the following factors. The Court is guided by the overarching principle that its sentence should be based upon the "nature and circumstances of the offense and characteristics of the defendant." 18 U.S.C. at § 3553(a)(1). Moreover, the Court should impose a sentence "sufficient, but not greater than necessary, to ... reflect the seriousness of the offense, to promote respect for the law, to provide just punishment... to afford adequate deterrence ... and to protect the public...." 18 U.S.C. § 3553(a)(2)(A)-(C). The Court is also mindful that its sentence should seek to "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6).
In this case, the guidelines increase Defendant's offense level by twelve levels for conduct of which he was not convicted by a jury. In fact, the code section relating to a criminal violation for international terrorism, 18 U.S.C. § 2332b, wherein the definition of "federal crime of terrorism" is found, would not even apply to Defendant because that violation requires conduct that transcends national boundaries. Nevertheless, under the guidelines, Defendant is arguably being held criminally responsible for conduct for which he was not indicted and for which he never could have been convicted. Moreover, the Court observes that a violation for "threatening" to commit an offense of international terrorism under § 2332b has a maximum sentence of ten years. 18 U.S.C. § 2332b(c)(G). Yet, this Defendant, who "threatened" to bomb various public facilities, faces life imprisonment in large part because of a Guidelines enhancement of approximately twenty years when he would have faced no more than ten years for a violation of the international terrorism statute. It is also troubling that another defendant who carried out a threat to bomb public facilities, injuring and maiming (but not killing) thousands of people, would face the same sentence as this Defendant who did not cause physical injury to a single person. Therefore, in considering the "nature and circumstances of the offenses" the Court finds that the twelve level increase does not accomplish the purposes set forth in 18 U.S.C. § 3553.
The guideline finding that Defendant was involved in a federal crime of terrorism also increased his criminal history category from a category III (based on six criminal history points arising from two convictions) to the maximum category of VI. The Court finds that this three category increase under the circumstances of this case ignores the individual "history and characteristics" of the Defendant, and instead places too much weight on a questionable interpretation of what constitutes a federal crime of terrorism under the Guidelines. The Court finds that this increase in the Defendant's criminal history category does not accomplish the purposes of § 3553.
Based on the foregoing, the Court finds that a variance from the advisory guideline range of life is warranted in this case. In determining what that variance sentence should be, the Court finds it helpful to *1380 refer in part to the guidelines. The Court does see the wisdom in the policy underlying the Sentencing Guidelines provision that increases a defendant's sentence when the defendant's offense is intended to affect the conduct of government by intimidation or coercion. In fact, aside from the terrorism adjustment, an upward departure may have been authorized in this case pursuant to U.S.S.G. § 5K2.7, which authorizes a departure when the defendant's conduct results in a significant disruption of government functions. The Court therefore finds it appropriate to consider the effect of Defendant's conduct on government functions when crafting its sentence in this case. However, the Court finds that a twelve level increase, which represents approximately twenty-five percent of the total offense level, to be excessive. The application of this guidelines adjustment in this case results in the offense conduct for which the Defendant was indicted and convicted to become subsumed by the twelve level adjustment which is based upon conduct for which the Defendant was neither indicted nor convicted. The Court finds that a more reasonable adjustment would be six levels which is comparable to the greatest adjustment permitted when the victim of an offense is an "official victim." U.S.S.G. § 3A1.2.[3] The Court further finds that Defendant's criminal history category of III adequately reflects his criminal history.
Based on the foregoing, the Court imposed a variance sentence in this case based upon a variance offense level of 41[4] and a criminal history category of III, which yielded a variance sentencing range of 360 months to life. Accordingly, the Court sentenced Defendant to 360 months in prison.
NOTES
[1] This objection alone does not affect Defendant's advisory guideline range. The advisory guideline range for any offense level of 43 or greater is life.
[2] "Variance" means a sentence that is outside the advisory guideline range after the guidelines (including the provisions related to departures) have been applied and consulted by the Court.
[3] The Court is not of the opinion that the "official victim" guideline applies in this case. However, having decided that a variance is appropriate, the Court finds that reference to the Guidelines is helpful in crafting a reasonable sentence. Moreover, the Court observes that a six level adjustment more closely corresponds with the ten year statutory maximum sentence for a defendant who is convicted for threats in violation of the international terrorism statute. Finally, the Court finds that expressing its "variance sentence" in the same terminology as used in the Guidelines, with offense level and criminal history category, provides a reasonable and understandable analytical framework.
[4] This offense level also takes into consideration the sustained objection previously described in this Order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4274116/ | Matter of Ledoux (2018 NY Slip Op 03435)
Matter of Ledoux
2018 NY Slip Op 03435
Decided on May 10, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 10, 2018
Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.
6508 3324/79A
[*1] In re the Proceeding of the Construction of the Will of Jean L. Ledoux, Deceased.
Fiduciary Trust Company International, Trustee, Petitioner,
vEstate of Jeanne Nicole Ledoux, Respondent-Respondent, Estate of Joan Ledoux, Respondent, Renee Sands Tobin, etc., Respondent-Appellant.
Genova Burns LLC, New York (Lawrence Bluestone of counsel), for appellant.
Greenfield Stein & Senior, LLP, New York (Gary B. Freidman of counsel), for respondent.
Order, Surrogate's Court, New York County (Rita Mella, S.), entered March 10, 2017, which directed petitioner trustee of the Article Tenth Trust created in decedent's will to pay the remainder to the estate of Jeanne Nicole Ledoux, unanimously affirmed, without costs.
The court correctly concluded that neither the donative language in the will of decedent's son, Louis, nor decedent's will, provided a condition that the remainderman, Jeanne (Louis's daughter), survive the life estates of her parents, either expressly or by implication. Respondent Tobin, who is decedent's great granddaughter, argues that the decedent's will reflected an intention to limit bequests to survivors in that numerous bequests were conditioned upon survival. However, as the court noted, a limitation on bequests in one section of the will and the failure to include that limitation in others demonstrated decedent's ability to make a limited gift when she had that donative intent (see Matter of Ashner , 24 AD2d 595, 596 [2d Dept 1965]). Moreover, the condition of survival in the other sections of the will only referred to surviving decedent.
The direction of decedent's will that Louis appoint a class of persons to receive the remainder also did not imply a condition of survival. Rather, decedent may have wanted to permit Louis to include any future children in the bequest (see Matter of Sweazey , 2 AD2d 292, 296 [3d Dept 1956]).
Tobin's argument that decedent would not have wanted her remainder estate to pass to beneficiaries of the will of her daughter-in-law, rather than to her blood relative (Tobin), is unpersuasive. The presumption favoring blood relatives over strangers is not properly invoked unless there is some ambiguity or lack of clarity which requires resolving a doubt introduced by the terms of the will, rather than speculation as to what
decedent might have wanted (see Ashner , 24 AD2d at 596]). Here, there was no ambiguity in the will.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 10, 2018
CLERK | 01-03-2023 | 05-10-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1915459/ | 961 A.2d 553 (2008)
406 Md. 579
ROBERT LEE McFARLIN
v.
STATE.
Pet. Docket No. 379.
Court of Appeals of Maryland.
Granted December 10, 2008.
Petition for writ of certiorari granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2901161/ | COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
CAMERON O. BAILEY, )
)
No. 08-02-00422-CR
Appellant, )
) Appeal from the
v. )
)
283rd District Court
THE STATE OF TEXAS, )
)
of Dallas County, Texas
Appellee. )
)
(TC# F-0200019-T)
)
O
P I N I O N
Cameron Bailey
appeals from his convictions under the Texas Securities Act on three separate
indictments for: (1) selling
unregistered securities; (2) selling securities without being a registered
securities salesperson; and (3) engaging in fraud in the sale of securities.[1] A jury found Bailey guilty of all three
securities fraud charges.[2] The court sentenced Appellant to 5 years= in jail and a $1,000 fine on two of
the charges, and 8 years=
in jail and a $5,000 fine on the other.
The court also ordered Appellant to pay restitution of more than half a
million dollars to seven different investors.
We reverse and remand for a new trial.
In late 1998,
Appellant began working as a sales person for Cornerstone Financial and sold
purported ACertificates
of Deposit@ (also
referred to as ACDs@) on behalf of Cambridge International
Bank of Grenada. A number of his clients
testified they bought the Cambridge CDs after seeing newspaper advertisements
offering federally-insured CDs with a 12 percent
fixed-rate of return. In February 1999, the Texas Securities Board
began investigating Appellant for alleged illegal sales of viatical contracts.[3] An investigator for the State, Joseph Oman,
sent Appellant a letter warning him that viaticals are securities, and he was
not registered to sell securities in Texas.
The State also knew Appellant was also offering the certificates of
deposit, but it never sent him a letter or written document telling him that
those instruments were considered to be securities.
Appellant complied
with the demand by the State Board and stopped selling the viaticals. In September of 1999, the agency executed a
search warrant on Appellant=s
office, where agents seized files and a computer. By June or July of 2000, Cornerstone
Financial shut down. In March 2001,
eighteen months after seizing Appellant=s
files, the agency issued a Acease
and desist@ letter
concerning the certificates of deposit of the Cambridge Bank. In February of 2002, the State charged
Appellant with knowingly and intentionally offering for sale unregistered
securities in the form of certificates of deposit. Appellant was never charged in relation to
sales of the viaticals.
Appellant=s single issue on appeal is that Athe trial Court erred in finding as a
matter of law that a certificate of deposit is a security within the meaning of
the [Texas] Securities Act.@ Appellant argues that certificates of deposit
are not securities as a matter of law.
The State argues the opposite; that they are securities as a matter of
law. We conclude that whether a nominal
certificate of deposit is or is not a security under the Texas Security Act
depends on the facts and the determination of that issue must be left to a jury
under instructions defining Asecurities@ under the Texas Security Act[4]
and Certificate of deposits under the Texas Business and Commerce Code.[5] See Gamez v. State, 737 S.W.2d 315,
322 (Tex.Crim.App. 1987). Accordingly,
we re-frame Appellant=s
complaint to be that the trial court erred in charging the jury that the
certificates of deposit in this case were securities. See Tex.R.App.P.
'' 38.1, 38.9.
Standard of Review
Appellate review
of error in a jury charge involves a two‑step process. Abdnor v. State, 871 S.W.2d 726,
731-32 (Tex.Crim.App. 1994). We first
determine whether error occurred. If so,
we must then evaluate whether sufficient harm resulted from the error to require
reversal. Id. at 731‑32. Preserved error in the charge requires
reversal if the error caused some harm to the accused from the error. Tex.Code
Crim.Proc.Ann. art. 36.19 (Vernon 1981); see also Abdnor, 871
S.W.2d at 731‑32; Almanza v. State, 686 S.W.2d 157, 171
(Tex.Crim.App. 1985)(Opin. on reh=g).
The essential
issue in this case is whether the certificates of deposit that Appellant sold
were securities under Texas securities law.
The State presented two key expert witnesses to establish that they
were. First, William Kerr, a federal
banking examiner with the Officer of the Comptroller of Currency, testified
that the Cambridge International Bank was an offshore bank that was not
approved to do banking in the United States and that there was no deposit
insurance or other security to protect that bank=s
deposits. This testimony laid the
predicate for the testimony of David Grauer, director of the Enforcement
Division of the Texas Securities Board. Mr. Grauer gave his opinion that the
instruments sold by Appellant were securities because they were Ainvestment contracts@ and Aevidence
of indebtedness.@ He also testified more boldly, on
cross-examination, that in his opinion all certificates of deposit were
securities except that FDIC insured deposits were Aexempt
securities.@
The trial court
obviously believed that the issue was his to decide as a question of law
because most of Mr. Grauer=s
testimony, and certainly all that was essential to the issue, was presented
outside the presence of the jury. At the
conclusion of the State=s
case, the trial court denied the defendant=s
Motion for Directed Verdict ruling that the certificates of deposits were
securities. Then, after both sides
closed, the trial court instructed the jury that Athe
certificates of deposit issued by Cambridge International Bank & Trust.
Ltd., are securities.@
We begin with the
common, ordinary everyday meaning of a nominal certificate of deposit as a
financial instrument. The Texas Business
and Commerce Code provides us this definition:
>Certificate of deposit= means an instrument containing an
acknowledgment by a bank that a sum of money has been received by the bank and
a promise by the bank to repay the sum of money. A certificate of deposit is a note of the
bank.
Tex.Bus.&Com.Code
Ann. '
3.104(j).
In banking, a
certificate of deposit and savings accounts are classified as a time deposits,
as opposed to checking accounts which are classified as demand deposits, with a
bank or thrift institution. A
certificate of deposit is purchased from a bank for a fixed sum of money for a
fixed period of time and, in exchange, when the certificate of deposit matures,
the issuing bank pays the original money plus the accrued interest. The United States and most advanced
industrial countries include the total amount of bank deposits in short-term
savings accounts and certificates of deposit in the money stock or money supply
of the country. Securities are not
included in the money supply. Campbell
R. McConnell & Stanley L. Brue, Macroeconomics,
p. 256 (13th ed. 1990).
The Texas State
Securities Act defines securities as:
The term >security=
or >securities=
shall include any limited partner interest in a limited partnership, share,
stock, treasury stock, stock certificate under a voting trust agreement,
collateral trust certificate, equipment trust certificate, preorganization
certificate or receipt, subscription or reorganization certificate, note, bond,
debenture, mortgage certificate or other evidence of indebtedness, any
form of commercial paper, certificate in or under a profit sharing or
participation agreement, certificate or any instrument representing any
interest in or under an oil, gas or mining lease, fee or title, or any
certificate or instrument representing or secured by an interest in any or all
of the capital, property, assets, profits or earnings of any company,
investment contract, or any other instrument commonly known as a security,
whether similar to those herein referred to or not. The term applies regardless of whether the >security=
or >securities=
are evidenced by a written instrument.
Provided, however, that this definition shall not apply to any insurance
policy, endowment policy, annuity contract, optional annuity contract, or any
contract or agreement in relation to and in consequence of any such policy or
contract, issued by an insurance company subject to the supervision or control
of the Texas Department of Insurance when the form of such policy or contract
has been duly filed with the Department as now or hereafter required by law. [Emphasis added].
Tex.Civ.Stat.Ann.
art. 581-4(A)(Vernon Supp. 2004-05).
Obviously, the
Texas statutory definition does not contain the term certificate of deposit.
Despite this omission, the State seeks to persuade us that three Federal civil
cases provide a test that support the trial court=s
finding that these nominal certificates of deposit are securities. See Securities Exchange and
Commission v. Howey, 328 U.S. 293, 66 S. Ct. 1100, 90 L. Ed. 1244 (1946); Marine
Bank v. Weaver, 455 U.S. 551, 102 S. Ct. 1220, 71 L. Ed. 2d 409 (1982); Reves
v. Ernst & Young, 494 U.S. 56, 110 S. Ct. 945, 108 L. Ed. 2d 47
(1990).
In Howey,
the Supreme Court found that a land sales and service investment contract was a
security when it was, Aa
contract, transaction or scheme whereby a person invests his money in a common
enterprise and is led to expect profits solely from the efforts of the promoter
or a third party . . . .@ Howey, 328 U.S. at 298-99, 66 S. Ct. at
1103. This case provides what is called
the Howey or the Ainvestment
contract@
test. This test may well have
application but its application is dependent not upon a legal construction but
rather the facts of a given case.
In Marine Bank,
the Supreme Court held that a certificate of deposit issued by an American bank
was not a security within the meaning of the Securities Exchange Act, because
Congress did not intend the securities act to provide a broad remedy for all
frauds. Marine Bank, 455 U.S. at
556, 59, 102 S. Ct. at 1223-24, 1225. The
Marine Bank Court based its conclusion on the fact that federal banking
regulations were broad enough and deposit insurance was sufficient to protect
purchasers of certificates of deposit at least up to $100,000. Id. at 552-53 n.1, 102 S. Ct. at 1222
n.1. The State contends that the Court=s dicta that A[i]t
is unnecessary to subject issuers of bank certificates of deposit to liability
under the antifraud provisions of the federal securities laws since the holders
of bank certificates of deposit are abundantly protected under the federal
banking laws@ supports
a conclusion that a bank certificate of deposit that is not protected under
banking laws must be a security. Marine
Bank, 455 U.S. 559, 102 S.Ct. at 1225.
There is a logical
fallacy in that conclusion; it assumes the very thing it seeks to prove.
In fact, the Court noted in Marine
Bank, 455 U.S. at 551, 102 S. Ct. at 1220, in that case that the Securities
and Exchange Commission joined by the Federal Deposit Insurance Corporation,
the Border of Governors of the Federal Reserve System and the Office of the
Comptroller of the Currency filed an amicus curie that argued that the
certificate of deposit in that case was not a security.
In Reves,
the Court found that by applying a Afamily
resemblance@ test,
uncollateralized and uninsured promissory notes with a constantly revised
interest rate payable on demand were securities, even though they bear little
resemblance to one of the enumerated categories of instruments that are
securities. Reves, 494 U.S. at
67, 110 S. Ct. at 952. Just like the Howey
test, such a test could have application but again all determinations
depend more on fact than legal construction.
Finally, the State
points to civil cases in which courts have said, Ain
searching for the meaning and scope of the word >security= in the Act, form should be disregarded
for substance and the emphasis should be on economic reality.@
Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S. Ct. 548, 553, 19
L. Ed. 2d 564 (1967), citing Howey, 328 U.S. at 298, 66 S. Ct. at
1102. We find a stark contrast, however,
in a leading Texas criminal case, Bruner v. State, 463 S.W.2d 205
(Tex.Crim.App. 1970) where the Court held that because of the highly penal
nature of the Securities Act, any doubt as to whether an offense has been
committed should be resolved in favor of the accused. Bruner, 463 S.W.2d at 215.
Moreover, we find Tcherepnin
distinguishable not only because of its civil nature, but also because of the
types of instruments sold. In Tcherepnin,
purchasers received dividends based on the association=s
profits, not a fixed rate of interest, as in the present case. Tcherepnin, 389 U.S. at 337, 88 S. Ct.
at 553-54.
In Bruner,
clients were encouraged to invest money into a cleaning products marketing
company that would guarantee dividend and profit payments. Id. at 207. In addition, investors would receive a
portion of profits from sales made to guests whom investors would bring to
dinner parties given by the company. Id. A state securities regulator testified that
it was his opinion that the investment contracts offered by the company were,
in fact, securities. Id. at 210.
There, as here, the court was unconvinced.
The Bruner Court said the State=s
logic was flawed because the profits did not rely solely on the efforts of
others, as required by the Howey test.
Id. at 214.
We do not say that
something called a certificate of deposit is not a security. We simply say that whether a certificate of
deposit or some other labeled instrument is a security can not be determined in
the abstract but must be determined after a careful consideration of the
context. It is, in other words, a fact
question that should have been put to the jury with appropriate
instructions. But because the jury did
not hear the key witness who provided the necessary context, substance, and
reality surrounding the sale, even if they had been properly instructed, they
would not have had sufficient facts to make such a determination. We must therefore
sustain the sole issue presented
and remand the case for a new trial.
August
31, 2004
DAVID WELLINGTON
CHEW, Justice
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
(Publish)
[1]
This opinion is one of three essentially identical opinions. Appellant was charged in cause numbers
F-0200019-T, F-0200037-T, and F-0200035-T of the offense of selling
unregistered securities under the Texas Securities Act.
[2]
As the record suggests and Bailey=s
counsel confirmed during oral argument, the three indictments here were among
thirty-four indictments against Bailey.
The other indictments were made under the Penal Code and have been
adjudicated.
[3]
A viatical contract or settlement is defined as an agreement that is solicited,
negotiated, offered, entered into, delivered, or issued for delivery in this
state under which a person pays anything of value that is: (A) less than the expected death benefit of a
policy insuring the life of an individual who has a catastrophic or
life-threatening illness or condition; and (B) paid in return for the policy
owner=s or
certificate holder=s
assignment, transfer, bequest, devise, or sale of the death benefit under or
ownership of the policy. Tex.Ins.Code Ann. ' 1111.001(3) (Vernon Supp. 2003).
[4]
Tex.Civ.Stat.Ann. art. 581-4
(Vernon Supp 2004-05).
[5]
Tex.Bus.&Com.Code Ann. ' 3.104(j)(Vernon 2002). | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8326561/ | Leibensperger, Edward P., J.
Plaintiff asserts in her complaint that she was the victim of sexual advances, assault and harassment. She names defendant Leite as the “biggest offender” and claims that as a result of the hostile workplace she was constructively discharged by her employer, Gold Medal Bakeiy. Her complaint is in two counts: Count I against both defendants for violation of the Massachusetts anti-discrimination law, G.L.c. 151B, and Count II against defendant Leite for “aiding and abetting” the violation of c. 151B. Defendant Leite now moves for summary judgment on the basis that plaintiff failed to name him as a respondent in her action filed with the Massachusetts Commission Against Discrimination (“MCAD”) and, as a result, her claims against him in this court must be dismissed. For the reasons stated below, Leite’s motion must be ALLOWED.
BACKGROUND
The essential facts for deciding this motion are undisputed.
Plaintiff worked for Gold Medal Bakeiy in the quality control department. Leite, whose title was “working foreman,” was her immediate supervisor. On September 9, 2009, plaintiff sent a demand letter to Gold Medal Bakeiy alleging sexual harassment and assault by Leite. She also alleged sexual harassment by others at Gold Medal Bakeiy and indicated she could no longer work at the company as of September 11,2009.
On October 14, 2009, plaintiff filed a Charge of Discrimination with the MCAD. In the portion of the form document labeled “NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, STATE/LOCAL GOVERNMENT AGENCY AND/OR INDIVIDUALS WHO DISCRIMINATED AGAINST ME” plaintiff named Gold Medal Bakery, only. In the attached statement of PARTICULARS of the charge, plaintiff stated that “Mr. Leite and some of my male co-workers took it [horseplay and immature behavior] to the extreme and made incredibly hurtful and offensive comments.” Further, “Mr. Leite constantly sexually harassed me, and on one occasion in March 2009, he sexually assaulted me.” Plaintiff went on to describe a particular text message from Leite that was offensive and constituted part of the harassment.
On Februaiy 1, 2010, plaintiff, through her attorney, requested to withdraw her complaint before the MCAD because she intended to pursue the matter in court. On March 15, 2010, the MCAD dismissed the complaint on the ground that “Complainant wishes to file a civil action on the same matter in court.” The record is devoid of any information as to what occurred, if anything, in connection with the MCAD complaint during its pendency. Plaintiff admits, however, that she “did not name Leite as a party respondent on the MCAD complaint.” On Februaiy 4, 2010, plaintiff filed this action.
The last day of Leite’s employment at Gold Medal Bakeiy was September 4, 2009, the week before plaintiffs departure. Leite was terminated from employment because he allegedly lied to his employer. By letter to Gold Medal Bakeiy dated September 30,2009, Leite, through counsel, asserted a claim of wrongful termination against the company. Counsel for Gold Medal Bakeiy, on October 12, 2009, forwarded to Leite’s counsel a copy of plaintiffs September 9, 2009 *584demand letter and requested Leite’s responses to the allegations. On November 19, 2009, counsel for Gold Medal Bakery forwarded to Leite’s counsel a copy of the MCAD complaint filed by plaintiff.
DISCUSSION I. Standard of Review
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence negating an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute. Pederson, 404 Mass. at 17. An adverse party cannot defeat a motion for summary judgment merely by resting on its pleadings and assertions of disputed facts, rather it must set forth specific facts with affidavits, deposition testimony, answers to interrogatories, or admissions on file showing that there is a genuine issue for trial. Mass.RCiv.P. 56(c). When deciding a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility, or find facts. Attorney Gen. v. Bailey, 386 Mass. 367, 370-71 (1982).
II. Leite’s Motion for Summary Judgment
“The failure to name a party in the complaint filed with the MCAD has been ruled to bar a plaintiff from later maintaining a G.L.c. 15 IB claim in court against the party.” King v. First, 46 Mass.App.Ct. 372, 373-74 (1999), citing Powers v. H.B. Smith Co., 42 Mass.App.Ct. 657, 667 (1997). Plaintiff argues, however, that she should be relieved of the consequences of that legal principle because she named Leite in the Particulars section of her MCAD complaint and because Leite received notice of the MCAD proceeding from counsel for Gold Medal Bakery. She relies upon federal precedent where suits against an individual not named in the administrative complaint have been allowed to proceed against the individual in certain circumstances. See, Chapin v. University of Massachusetts at Lowell 977 F.Sup. 72, 76-77 (D.Mass. 1997), and Chatman v. Gentle Dental Center, 973 F.Sup. 228, 236 (D.Mass. 1997). See also, Hayes v. Henri Bendel, Inc., 945 F.Sup. 374, 378 (D.Mass. 1996). In general, Massachusetts courts will “apply Federal case law construing the Federal anti-discrimination statutes in interpreting G.L.c. 15 IB.” Wheatley v. American Tel. & Tel Co., 418 Mass. 394, 397 (1994).
In addition, both parties have cited several decisions from justices of the Superior Court on the question. Some of those decisions have allowed the plaintiff to proceed in court on a c. 15IB claim against an individual where the individual was not named as a respondent in the MCAD complaint. Several of those decisions, on the other hand, grant summary judgment in favor of the individual defendant not named as a respondent in the MCAD complaint.
A review of the federal and state cases provides the following framework for analysis. The purpose of the MCAD process is to provide notice of a potential legal proceeding, whether administrative or in court, that could result in an adverse judgment. Further, the purpose of the process is to give a party the opportunity to avoid a lawsuit by taking advantage of the conciliation process at MCAD. Finally, the purpose includes the possibility of using the MCAD as the forum to decide the matter in a way that is binding on all parties. Thus, the factors to consider when evaluating whether an individual not named as a respondent may be subsequently sued in court are whether (1) his conduct was put at issue in the MCAD complaint, (2) he- received notice of the charge, (3) he had an opportunity to, or did in fact, participate in the administrative proceedings, (4) his interests were closely aligned with the named respondent such that the named respondent would protect his interests, and (5) he would be unfairly prejudiced by the failure to name him as a respondent.
Applying those factors to the present case results in summary judgment in favor of Leite. While plaintiffs MCAD complaint identified Leite in the Particulars section, thereby putting his conduct at issue, the complaint did not put him on notice that she would be seeking damages or other relief from him. The fact that plaintiff, herself, did not serve Leite with notice of the MCAD complaint adds to the inference, reasonably taken, that he was not at risk of any legal consequence of the MCAD proceeding. Therefore, Leite had no reason to seek a conciliation of the charge. If, for example, the MCAD case had proceeded to a final decision, Leite would not have been bound. In addition, Leite, a relatively low-level ex-employee of Gold Medal Bakery, was not closely aligned with the company. In fact, he had been fired and he had written a demand letter alleging wrongful termination. There is no basis to conclude that Gold Medal Bakery would protect his interests. Accordingly, suing Leite in this action does not fall within the narrow exception to the general rule that a party may not be sued for a c. 151B violation, or aiding and abetting such a violation, if he has not previously been a party to a MCAD proceeding.
CONCLUSION
For the reasons stated, Leite’s motion for summary judgment is ALLOWED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2758691/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00218-CV
TERI ANGLIM APPELLANT
V.
CHESAPEAKE OPERATING, INC. APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 2011-008256-1
------------
MEMORANDUM OPINION1 AND JUDGMENT
------------
We have considered the parties’ “Joint Motion To Set Aside Judgment Of
The Trial Court And Remand For Dismissal Pursuant To Settlement Agreement,”
which we construe as a voluntary dismissal by agreement under Texas Rule of
Appellate Procedure 42.1(a)(2). See Tex. R. App. P. 42.1(a)(2). It is the court’s
opinion that the motion should be granted; therefore, we set aside the trial court’s
1
See Tex. R. App. P. 47.4.
judgment without regard to the merits and remand this case to the trial court to
render judgment in accordance with the parties’ settlement agreement. See Tex.
R. App. P. 42.1(a)(2)(B), 43.2(d).
Costs of the appeal shall be paid by appellant, for which let execution
issue. See Tex. R. App. P. 42.1(d).
PER CURIAM
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: December 4, 2014
2 | 01-03-2023 | 12-09-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1877196/ | 188 So.2d 317 (1966)
HANDSHOE
v.
RUSSELL AND AXON CONSULTING ENGINEERS.
No. 34702.
Supreme Court of Florida.
March 1966.
Certiorari denied without opinion. 176 So.2d 909. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1913979/ | 981 A.2d 945 (2009)
KALUP
v.
MERCY HEALTH SYSTEM.
No. 2515 EDA 2008.
Superior Court of Pennsylvania.
July 9, 2009.
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900405/ | COURT OF APPEALS
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
GEORGE MOLINAR,
Appellant,
v.
THE STATE OF
TEXAS,
Appellee.
'
'
'
'
'
'
No. 08-00-00399-CR
Appeal from the
County Court at Law No. 1
of El Paso County, Texas
(TC# 980C11913)
O P I N I O N
George Molinar was charged, by
information and complaint, with assault.
A jury found Molinar guilty of the assault and sentenced him to one day
of confinement and assessed a $4,000 fine against him. Judgment was entered by the trial court judge
on September 14, 2000.
On September 19, 2000, a motion for
new trial was filed. The following day,
notice of appeal was filed.
Molinar was represented at trial by
the Public Defender. A hearing on
indigency was ordered for October 4. On
October 10, the Public Defender filed a motion to withdraw as attorney on
appeal. Appellant filed an objection to
the motion. We ordered a hearing to
determine whether Molinar wished to pursue the appeal, whether he had retained
counsel, or whether he was indigent and entitled to appointment of
counsel. After the hearing, the trial
court found that Molinar wished to pursue the appeal. Moreover, it determined that appellant was not
indigent or entitled to appointment of counsel.
Any reporter=s record was due January 12,
2001. On January 24, the court reporter
notified this Court that no designation or satisfactory arrangement had been
made for the preparation of the record.
Additionally, Molinar appeared to be without counsel. We ordered another hearing on Molinar=s status. Pursuant to that hearing, the trial court
found that Molinar wished to pursue the appeal, that he was not then
represented by counsel, that he was not indigent, that he was able to make
partial payments toward the cost of the reporter=s record, and that he could make
partial payments within forty-five days.
The reporter=s record was next due May 23. On May 7, the court reporter notified this
Court that no arrangements had been made regarding the record. We ordered that the trial court conduct
another hearing to determine whether Molinar wished to continue his appeal and
whether he had retained counsel.
At the hearing, Molinar asserted his
desire to pursue the appeal and requested that he be permitted to represent
himself. He was questioned about his
reasons for continuing pro se. Then he
was advised about dangers of representing himself. He was also admonished that this Court might
consider and rule on his appeal without a reporter=s record. The court then found that Molinar was
competent to represent himself on appeal.
Another status hearing was held on
October 22, 2001. The court found that
appellant wished to pursue his appeal.
The court recommended that appellant be permitted to secure counsel no
later than December 31, 2001 and that appellant be permitted to file the
reporter=s record.
In a letter dated November 29, the
Clerk of this Court informed appellant that pursuant to the trial court
findings, it appeared to this Court that appellant would be retaining new
counsel. The letter also stated that if
payment for the reporter=s record were made, the Court should be advised of them. Neither of the events has occurred. In a letter dated January 29, 2002, the Clerk
informed appellant that because he had not retained new counsel or made
arrangements for preparation of the reporter=s record, his appeal would be
submitted on the clerk=s record only.
We believe that appellant has had
notice and reasonable opportunity to cure his defects. We may therefore consider only those points
that do not require the reporter=s record. See Tex.
R. App. P. 37.3(c). And although
appellant has not filed a brief, we may consider the appeal without a
brief. See Tex. R. App. P. 38.8(b)(4); Lott v.
State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994).
No issue has been presented for
consideration. We review appellant=s case only for fundamental error,
and we find none.
Conclusion
We affirm the judgment of the trial
court.
SUSAN
LARSEN, Justice
June 27, 2002
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/1976932/ | 551 A.2d 1318 (1988)
Sherman DURANT, Appellant,
v.
UNITED STATES, Appellee.
No. 85-1592.
District of Columbia Court of Appeals.
Argued April 6, 1988.
Decided December 16, 1988.
*1319 Syrie Davis, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.
Dennis R. Carluzzo, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, and Michael W. Farrell, Elizabeth Trosman, and John P. Dominguez, Asst. U.S. Attys., were on the brief, for appellee.
Before ROGERS, Chief Judge,[*] and NEWMAN and BELSON, Associate Judges.
*1320 ROGERS, Chief Judge:
On appeal from his conviction by a jury of assault with intent to rob, D.C.Code § 22-501 (1981), appellant Sherman Durant contends that the trial judge abused his discretion in admitting for impeachment medical records showing the use of phencyclidine (PCP) without expert medical testimony. At trial, Durant denied being under the influence of PCP on the day of the alleged offense and the only evidence contradicting this claim was a urine test that detected an unspecified quantity of PCP the day after the offense. Defense counsel made an unrebutted proffer that trace amounts of PCP can be detected in urine long after the effect of the drug has dissipated. We hold that the trial court erred in admitting a medical diagnosis of PCP intoxication as a business record within the exception to the hearsay rule. We further hold that, while other medical records were admissible within that hearsay exception, the trial judge abused his discretion in ruling that the government's proffer of the medical records provided a sufficient evidentiary foundation to be used as extrinsic evidence for impeachment purposes since the records did not link the presence of PCP in Durant's urine the day after the alleged offense to his behavior and his ability to recall events surrounding the offense. Because the admission of the record substantially prejudiced Durant, we reverse.
I
The charge against Durant arose out of an incident involving Earl Richards, a taxi cab driver. On February 14, 1984, Richards was driving his cab when he observed Durant walking in the middle of the street and waving his arm in the air. According to Richards, when he pulled his cab over to the curb to avoid hitting Durant, Durant opened the front passenger door and ordered Richards out of the cab, telling him that he was from the FBI and that he was carrying a bomb. As Durant slid across the front seat, Richards turned off the engine and attempted to take his keys from the ignition, but claimed Durant grabbed his hand and the keys fell to the floor. In an effort to protect his cab, Richards said he got out of the vehicle, opened the hood, and attempted to disconnect the ignition wires. Durant, according to Richards, then rushed out of the cab, slammed the hood down, and got back into the driver's seat. As Durant started the engine, Richards said he jumped into the passenger seat and grabbed the gear shift and steering wheel to stop Durant from driving away. Durant resisted, Richards claimed, and as he and Richards struggled, the cab accelerated onto the curb and stopped.
As the two men were struggling, Officer Ronald Williams arrived. Richards told Williams that Durant claimed to have a bomb and was trying to steal his cab. Richards testified that Durant tried to walk away after Officer Williams arrived, but was impeached with his grand jury testimony that the police pulled Durant from the cab after hearing of his attempt to steal it. Officer Williams initially testified that Durant tried to run away, but admitted on cross-examination that Durant did not get out of the cab until Williams approached him. Richards also testified that Durant's eyes looked "real poppy" and that he appeared "real jittery, like he was jumping. . . like he was not himself." Officer Williams said that he recalled nothing unusual about Durant's eyes or posture while transporting him to the station.
Durant testified that on February 14, 1984, he was on his way to the Veteran's Administration hospital to check in for treatment of a continuing illness. He was carrying the belongings that he might need for his hospital stay, including a black bag.[1] Durant hailed Richards' cab, and when Richards pulled over, Durant told him his destination and Richards nodded his assent. Durant put his luggage in the back seat and then got in the front seat. *1321 Richards started to drive, but after going a short distance announced that he had to pick up his girlfriend. Durant asked to be taken directly to the hospital because he was beginning to feel sick. Richards stopped the cab and ordered Durant to get out. When Durant refused, Richards shoved him and Durant shoved him back. After exchanging words, Richards got out of the cab and then reached back in for his keys. Durant struck Richards' hand believing that Richards was reaching for something with which to hit him. After the police arrived, Durant waited a few minutes while Richards spoke to the police and then pulled his belongings from the back seat and walked over to the police and Richards: Durant denied taking the keys from the ignition and said they remained in the ignition even while Richards spoke to the police.
After Durant's direct examination was completed, the prosecutor requested permission from the trial judge to cross-examine Durant about whether he was under the influence of PCP on February 14 and whether he had told a doctor on February 20 that he was unable to recall the facts surrounding the offense and his arrest. The prosecutor also sought permission, in the event of Durant's denial, to complete the impeachment by introducing in rebuttal, through a medical records custodian, appellant's redacted medical records to show (1) a doctor's entry that Durant was suffering from PCP intoxication on February 15, the day after the offense, (2) a lab report indicating the detection of an unspecified amount of PCP in Durant's urine on the day after the offense and the accompanying diagnosis of PCP intoxication, (3) a nursing entry about Durant's bizarre behavior on the day after his arrest, and (4) an excerpt of a conversation with a doctor on February 20 in which Durant stated that he could not remember what he was doing at the time of the offense. The prosecutor proffered this evidence to explain Durant's behavior during the offense and to challenge his ability to remember the incident.
Defense counsel objected to the admission of this evidence on several grounds. Although agreeing that cross-examination of Durant as to whether he was under the influence of PCP at the time of the offense was proper and relevant to his ability to perceive and remember, counsel argued that it would be improper for the government to link evidence of PCP use to Durant's behavior on February 14. Defense counsel noted that the urinalysis test relied upon by the government was only a qualitative, not a quantitative test, that it was merely a preliminary screening requiring confirmation, which apparently was not done, and that a contemporaneous blood test had failed to detect any PCP in Durant's body. Defense counsel proffered that researchers have determined that traces of PCP can be retained in the body for many days after ingestion, and argued, therefore, that in the absence of explanatory medical testimony based on Durant's medical records, the probative value of the evidence of PCP use was clearly outweighed by its prejudicial impact. He also argued, citing New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1944), that those portions of the medical records which contained psychiatric opinions were inadmissible hearsay in the absence of live testimony subject to cross-examination. As to Durant's statement to a doctor regarding his lack of recollection, defense counsel maintained that the statement was explainable based on counsel's previous instruction to Durant not to discuss the case with medical personnel.
The trial judge ruled that the government would be allowed to cross-examine Durant on his use of PCP for the purpose of testing his ability to remember the events surrounding the charged offense. If Durant denied such usage, then the government would be permitted to use the medical records as extrinsic evidence to impeach him. The judge further ruled that the government would not be allowed to link Durant's behavior on the date of the offense to PCP intoxication.
Durant then resumed the witness stand for cross-examination. After testifying that Richards' cab was never on the sidewalk while he was on the scene, and denying that he had claimed to be an FBI agent *1322 or said he had a bomb, Durant was asked whether he remembered "passing out" in the squad car on the way to the police station. Durant replied that he did not pass out but was knocked unconscious. The prosecutor asked Durant whether Richards' testimony about Durant's "eyes bugging out and fidgeting and trembling" was an accurate description of his behavior. Durant denied acting in such a manner. Durant was then asked whether he had an accurate memory of the events of February 14, and he replied that "As long as I was not unconscious, I recall." The cross-examination continued:
Q. Were you unconscious when Officer Williams, or a police officer, put you in the police car?
A. I was knocked unconscious from the outside of the car.
* * * * * *
Q. [O]n February the 20th, do you recall ever relating to a doctor at D.C. General Hospital, that you were unable to remember the events that happened that caused your arrest?
* * * * * *
A. No, sir, I did not tell no doctor that, under no circumstances.
* * * * * *
Q. Mr. Durant, were you under the influence of PCP on February 14th, 1984 at about five o'clock in the evening?
A. No, sir, I was not under the influence of no type of drug whatsoever.
Q. Mr. Durant, did you know that at the D.C. General Hospital, they performed tests on you that found PCP
[objection overruled]
* * * * * *
A. I was aware that Doctor Mark Moseley informed me that they have they did find PCP within my system. . . . I deny using it.
Q. [D]o you deny that you were under the influence of PCP on February the 14th, 1984?
A. I deny I was underI definitely deny I was under the influence of PCP at any time.
Q. Do you recall thatat the hospital, that you were in such an agitated state from the ingestion of PCP that you had to be physically restrained in the hospital bed with three leather straps [Emphasis added]
Defense counsel objected and moved for a mistrial on the ground that the prosecutor's line of inquiry violated the judge's ruling that the government would not be allowed to link the PCP evidence to Durant's behavior and that the question exceeded the scope of direct examination. The trial judge overruled the objection, explaining that because Durant had given unanticipated testimony that he was knocked unconscious by police officers, the government was entitled to "show what his condition was on [February 14, 1984]."[2] The prosecutor then asked Durant whether he remembered being in such a mentally agitated state that he had to be tied to a bed with leather straps at the hospital, to which Durant replied "I remember being tied down on a bed in the emergency room in D.C. General Hospital."
On redirect examination, defense counsel attempted to rehabilitate Durant by eliciting that Durant had been instructed by counsel on February 17 or 18 not to discuss the facts of the case with anyone and that his conversation with a doctor on February 20 occurred after receiving that advice. Defense counsel also asked him whether the police or medical staff had handcuffed him while he was at the hospital, to which he responded that the police had placed him in handcuffs.
In rebuttal, the government called the Registrar Technician in the Medical Records Division of D.C. General Hospital, who read into evidence five discrete portions *1323 of the records.[3] Specifically, he told the jury that (1) on February 15, 1984, the day after Durant was admitted to the hospital, Durant's urine tested positive for PCP, (2) a nursing entry on the admission notes made that same morning stated Durant "was admitted to . . . [the] Medical Intensive Care Unit, by stretcher, from [the] emergency room, accompanied by a nurse and doctor and sergeant and Metropolitan Department police officer. He was crying out and screaming, and he was . . . combative, and [he] was placed in a three-pronged leather restraint, and handcuff[ed] on the left ankle. Also, IV in the left arm. He was given medication and placed on the cardiac monitor and he was biting on the cables[,]" (3) a final laboratory report dated February 16, 1984, stated "PCP intoxication," (4) a consultation record by Dr. Yoshida on February 20, 1984, stated "[Durant] didn't remember what had happened," and (5) a discharge summary and referral dated February 24, 1984, stated "[t]he patient has been discharged back to the custody of the police with the following diagnosis . . . PCP intoxication." The trial judge immediately instructed the jury that Durant's prior inconsistent statement to Dr. Yoshida could be used only to assess Durant's credibility. Regarding the PCP use, the judge instructed the jury that if it found Durant "used or was under the influence of PCP on [the date of the offense], that evidence may only be considered by you in determining whether Mr. Durant's ability to accurately recall the events of that day were [sic] impaired . . . as it may relate to his credibility and his ability to remember the events." On cross-examination, defense counsel elicited that a blood serum analysis conducted at the same time as the urine test showed that no PCP was detected in Durant's blood. A notation made on the test results read "This is a screening test only. Recommend confirmation on all positive results."
II
Durant contends that the trial judge abused his discretion in admitting for impeachment, after Durant denied on cross-examination that he was under the influence of PCP on the day he was arrested, four discrete portions of Durant's medical records showing that Durant was under the influence of PCP for several days after the events precipitating his arrest.
A.
1. The diagnosis. Durant maintains that the trial judge erroneously admitted the discharge summary stating a medical opinion that Durant was diagnosed as suffering from PCP intoxication under the business records exception to the hearsay rule. Super.Ct.Civ.R. 43-I(a)[4] provides in relevant part:
Any writing or record . . . made as a memorandum or record of any act . . . or event, shall be admissible as evidence of such act . . . or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act . . . or event. . . .
Under New York Life Ins. Co. v. Taylor, supra, 79 U.S.App.D.C. 66, 147 F.2d 297 (interpreting a statutory precursor of Super.Ct.Civ.R. 43-I) and its progeny, certain hospital records are admissible under the business records exception to the hearsay rule because they reflect "medical facts and routinely performed procedures" and are therefore inherently trustworthy. Adkins v. Morton, 494 A.2d 652, 662 (D.C. 1985) ("The test for admissibility is whether the records are composed solely of `regularly recorded facts as to the patient's condition or treatment on which the observations of competent physicians would not differ.'") (citation omitted); see Rotan v. Egan, 537 A.2d 563, 566-67 (D.C.1988).
The court in New York Life drew a distinction between diagnosis based purely on objective observations and diagnoses involving *1324 subjective judgment or conjecture. 79 U.S.App.D.C. at 75, 147 F.2d at 306. In determining a particular psychiatric diagnosis to be inadmissible, the court observed:
The diagnosis of a psychoneurotic state involves conjecture and opinion. . . . It is no reflection upon the profession of psychiatry to say that it necessarily deals in a field of conjecture. . . . It is difficult to conceive of records in which the right of cross-examination is more important than the conjectures of a psychiatrist on a psychoneurotic condition.
Id. at 73-74, 147 F.2d at 304-05; see Lyles v. United States, 103 U.S.App.D.C. 22, 28, 254 F.2d 725, 731 (1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958) (psychiatric opinion inadmissible). In the instant case, the discharge summary diagnosis for Durant was redacted so that the jury was only informed of the diagnosis of PCP intoxication. The summary also indicates that based on the same symptomatology, Durant was additionally diagnosed as suffering from histrionic personality disorder with hysterical paraparesis. Whether Durant was suffering from PCP intoxication on February 14 was a key issue at the trial. See Adkins v. Morton, supra, 494 A.2d at 662. Cross-examination was vital to explore the basis of that diagnosis, particularly since it was intertwined with a second diagnosis that Durant suffered from an underlying mental disorder. Therefore, on the facts of this case, we conclude that the diagnosis of PCP intoxication is the type of psychological diagnosis for which New York Life requires the availability of live testimony subject to cross-examination.
The government's reliance on Sullivan v. United States, 404 A.2d 153 (D.C.1979), is misplaced. There the court stated:
[I]t is obvious that medical entries as to complainant's conditionhis appearance, physical signs such as pulse, respiration, etc., and the resulting diagnosisconstitute a record admissible under Rule 43-I(a). Such entries are routinely made in the "regular course" of admitting patients, and a hospital fits firmly within the rubric of "business, profession, occupation and calling of every kind," by which Rule 43-I(a) defines a business.
Id. at 158 (emphasis added; footnote omitted). In Sullivan, the complainant was taken to a hospital to treat injuries sustained in a fight with the defendant. Although the Sullivan court did not indicate the complainant's precise diagnosis, it is readily apparent that the complainant had received the type of physical injuries one might expect from a fistfight. Thus, the resulting diagnosis of physical injuries determined to be admissible under the business records exception in Sullivan was entirely consistent with the type of objective, nonconjectural diagnosis contemplated in New York Life. As the court in New York Life stated:
The test [for admissibility of hospital records] should be whether [they] are . . . of a readily observable condition of the patient or his treatment. There is no magic in the word diagnosis which makes everything which can be included in that term admissible. Some diagnoses are a matter of observation, others are a matter of judgment, still others a matter of pure conjecture. The admissibility of records of such diagnoses must depend upon their character.
New York Life Ins. Co. v. Taylor, supra, 79 U.S.App.D.C. at 75, 147 F.2d at 306 (emphasis added).
Nor are we persuaded by the government's argument, which the trial judge adopted, that for the purpose of admissibility under the business records exception, a diagnosis of PCP intoxication is equivalent to a diagnosis of alcohol intoxication. In discussing the types of readily observable conditions which are admissible under the exception, the New York Life court stated that "an observation that the patient was well under the influence of alcohol [is admissible]." Id. at 72-73, 147 F.2d at 303-04 (footnote omitted). Whether a patient is "well under the influence of alcohol" is not a matter about which competent physicians are likely to differ. Indeed, because alcohol intoxication is considered to be a matter of common knowledge, lay witnesses may render opinion testimony regarding alcohol intoxication. Woolard v. District of Columbia, *1325 62 A.2d 640, 640-41 (D.C.Mun. App.1948); State v. Welch, 120 N.H. 687, 687, 421 A.2d 142, 142 (1980); State v. Damoorgian, 53 N.J.Super. 108, 113, 146 A.2d 550, 553 (1958). Thus, a diagnosis of alcohol intoxication is admissible under the business records exception because it is reliable and a jury's understanding of the basis and significance of such a diagnosis would not be significantly aided by cross-examination of the physician who rendered the opinion.[5]
By contrast, the record in the instant case suggests that whether a patient should be diagnosed as suffering from PCP intoxication is not inevitably a matter about which competent physicians would agree in the absence of any quantitative analysis, particularly if the patient is diagnosed as contemporaneously suffering from a mental illness with the same symptomatology.[6] Nothing in the medical records provides assurance that the use of any quantity of PCP is equivalent to PCP intoxication. Nor can it be presumed that the relationship between a diagnosis of PCP intoxication and impairment of the user's ability to perceive and recall events several days after the drug is ingested is "within the realm of common knowledge and everyday experience." Adams v. United States, 502 A.2d 1011, 1021 (D.C.1986) (citations omitted).
Accordingly, we hold that a diagnosis of PCP intoxication in conjunction with a diagnosis of histrionic personality disorder is a medical opinion which is not admissible under the business records exception, and that the trial judge erred in admitting the diagnosis without "the safeguard of cross-examination of the physician who makes it," New York Life, supra, 79 U.S. App.D.C. at 73, 147 F.2d at 304, or another medical expert. Ibn-Tamas v. United States, 407 A.2d 626, 637 (D.C.1979), appeal after remand, 455 A.2d 893 (1983); see Jones v. Prudential Ins. Co., 388 A.2d 476, 483 (D.C.1978) (usage of drugs documentable from lab reports distinguished from diagnosis of psychiatric illness); Group Hospitalization, Inc. v. Westley, 350 A.2d 745, 747 (D.C.1976) (opinion in the nature of a diagnosis excluded).
2. Nursing Entry and Lab Reports. Durant also contends that a nursing entry describing his behavior on the morning of his admission and two lab reports stating that PCP had been detected in his urine are inadmissible under the business records exception to the hearsay rule. We disagree. The nursing entry is the type of medical record which is admissible under New York Life because it is "a product of routine procedure . . . whose accuracy is substantially guaranteed by the fact that the record is an automatic reflection of observations." Id., 79 U.S.App.D.C. at 72, 147 F.2d at 303; see Christensen v. Gammons, 197 A.2d 450, 452 (D.C.1964) (physical facts plain to the trained eye); Washington Coca-Cola Bottling Works v. Tawney, 98 U.S.App.D.C. 151, 152, 233 F.2d 353, 354 (1956) (glass fragments). Similarly, the lab reports were admissible as reflecting the results of standard testing procedures in the absence of any objection[7] as *1326 to the reliability of the procedures employed. See Jones v. Prudential Ins. Co., supra, 388 A.2d at 483 (heroin use may be documented medically through lab tests); Smith v. United States, 337 A.2d 219, 223 (D.C.1975) (lab tests documenting presence of sperm admissible); see also Brown v. United States, 384 A.2d 647, 650 (D.C. 1978) (test must be "sufficiently reliable and accepted within the scientific community").
B.
The question remains whether the medical evidence, which is admissible under the business records exception to the hearsay rule, provided a sufficient evidentiary foundation to permit its admission as extrinsic evidence for impeachment purposes.
Durant contends that the trial judge abused his discretion in allowing the prosecutor to impeach Durant with extrinsic evidence of his use of PCP and his bizarre behavior the day after the offense. He acknowledges that the "use of narcotics is a proper subject of inquiry going to the credibility of the witness in his recollection of the events in question." Jackson v. United States, 377 A.2d 1151, 1154 (D.C. 1977); accord Wilson v. United States, 232 U.S. 563, 569, 34 S.Ct. 347, 349, 58 L.Ed. 728 (1914); United States v. Sampol, 204 U.S.App.D.C. 349, 395, 636 F.2d 621, 667 (1980); United States v. Kearney, 136 U.S. App.D.C. 328, 331, 420 F.2d 170, 173 (1969). But he maintains that since he denied being under the influence of PCP on the day of the offense and the only contradictory evidence was a urine test showing an unspecified quantity of PCP one day later, and since there was an unrebutted defense proffer that PCP remains in the urine long after it has any influence on perception and memory, expert testimony was required to establish a proper foundation for using the test results as extrinsic evidence to impeach him.
The general rule is that a party may not present extrinsic evidence to impeach a witness on collateral issues. Washington v. United States, 499 A.2d 95, 101 (D.C.1985); Sherer v. United States, 470 A.2d 732, 738 & n. 5 (D.C.1983), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984); McClain v. United States, 460 A.2d 562, 569 (D.C.1983). However, a witness' use of drugs is not considered a collateral issue when "an evidentiary foundation can be established that the witness was using drugs at the time of the incident." Rogers v. United States, 419 A.2d 977, 981 (D.C.1980); see E. Cleary, McCORMICK ON EVIDENCE § 45, at 105 (3d ed. 1984). Thus, a party offering extrinsic evidence to impeach a witness' denial of being under the influence of drugs at the time of the incident must first establish a sufficient evidentiary foundation that the witness in fact was under the influence of drugs at the relevant time. Cases in this jurisdiction permitting impeachment on the basis of drug use have yet to address the sufficiency of the evidentiary foundation needed to impeach with extrinsic evidence in the context of a defense proffer that trace amounts of PCP can be detected in a person's urine long after the effect of the drug has dissipated. We hold that the government's proffer of lab reports indicating an unspecified quantity of PCP in Durant's urine and no PCP in his bloodstream was inadequate, in view of Durant's unrebutted proffer and his denial of use on the date of the offense, to establish that Durant was under the influence of PCP at the time of the offense. See United States v. Leonard, 161 U.S.App.D.C. 36, 52, 494 F.2d 955, 971 (1974). Hence, the evidence of his PCP use at some undetermined time prior to the events in question was not probative of impaired perception and memory and did not provide a sufficient evidentiary foundation for use as extrinsic impeachment evidence.[8]
*1327 The evidence of Durant's drug use and bizarre behavior the day after the offense was introduced for the limited purpose of impeaching Durant's credibility as a witness. Credibility is not a simple concept, however. Where drug use is the basis for attacking a witness' credibility, a distinction must be drawn between the witness' veracity and the witness' ability to recall events. The term "credibility" is often used broadly to cover both aspects. See, e.g., Jackson, supra, 377 A.2d at 1154. But, as Judge Leventhal pointed out in Kearney, supra, impeachment of a witness' veracity is not the same as impeachment based on the witness' impaired "competency and capacity to observe, remember and recall." 136 U.S.App.D.C. at 331-32, 420 F.2d at 175-76. Thus, when Durant denied that he was under the influence of PCP at any time on February 14, the presence of PCP in his urine one day later might have provided, consistent with the unrebutted defense proffer, a basis for expert testimony from which a jury reasonably could have found Durant's denial was not truthful. This type of impeachment of credibility is clearly distinct from that which would support a finding by a jury that PCP adversely affected Durant's ability to perceive and recall what had happened on February 14 and therefore his testimony about the events of that day was not worthy of belief.
In our prior decisions holding that drug use is relevant to credibility, the factual circumstances have not required that the court address the distinction between veracity and ability to perceive and recall events. In Jackson, supra, 377 A.2d 1151, we affirmed the trial court's finding of no substantial prejudice where the prosecutor improperly attempted to impeach the defendant's denial that he used heroin at the time of the crimes with a court order requiring him to get heroin treatment, but the defendant admitted use of cocaine and marijuana. In Durant v. United States, 292 A.2d 157, 160-61 (D.C.1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 946, 35 L.Ed. 2d 259 (1973), the only authority cited in Jackson, the issue was whether a prior conviction for possession of narcotics was an impeachable offense under D.C.Code § 14-305(b)(1) (1972 Supp. V.). In the leading case of Wilson v. United States, supra, 232 U.S. 563, 34 S.Ct. 347, the witness admitted using morphine before taking the witness stand and the Court held such evidence could properly be used to assess her reliability as a witness. Id. at 568, 34 S.Ct. at 349. In Jackson and Wilson the necessary evidentiary foundation was established by the witnesses' admissions of drug use. Cf. Sampol, supra, 204 U.S.App.D.C. at 395, 636 F.2d at 667 ("before the court will permit a witness to be questioned before the jury about his use of narcotics, counsel must establish a foundation showing either that the witness was using drugs at the time he observed the events in dispute. . . or that he was under the influence of narcotics while testifying") (citations omitted). Unlike these cases, Durant denied being under the influence of PCP on February 14, 1984, and the issue is whether its presence in trace quantities[9] in his urine a day later provided a sufficient evidentiary foundation to conclude that his ability to perceive and recall events was adversely affected.
The trial judge permitted the prosecutor to impeach Durant's testimony on the basis that the presence of an unspecified amount of PCP in his urine on February 15 and his bizarre behavior at the hospital provided a sufficient evidentiary foundation on which the jury could find not only that Durant was under the influence of PCP on February 14, but that his behavior and his ability to perceive and recall events on February 14 were adversely affected as a result, and he was therefore not a credible witness. We disagree, and hold that the trial judge *1328 abused his discretion[10] in permitting that evidence to be used either for the purpose of establishing that Durant was under the influence of PCP on February 14 or for the purpose of calling into question his ability to perceive and recall the event of that date. Given the questions raised by defense counsel concerning the significance of trace amounts of PCP in the urine the day after the events being considered, we are persuaded that the evidence adduced by the government provided too slim a reed to support a conclusion that Durant was under the influence of PCP at the time of those events, or had consumed PCP at such time as it would have been reasonable for the jury to infer that the PCP was affecting Durant's behavior or ability to perceive and recall events. While we are not holding that expert testimony is necessary to establish the link between drug usage and ability to perceive and recall events, cf. Kearney, supra, 136 U.S.App.D.C. at 331-32, 420 F.2d at 173-74, we observe that under the circumstances present here, expert testimony might have imparted probative value to the medical evidence in order to establish a proper foundation for its use as extrinsic impeachment evidence.[11]See Leonard, supra, 161 U.S.App.D.C. at 53, 494 F.2d at 972 ("we recognize the desirability of increasing judicial appreciation of the general effects of drug use on perception, memory, and credibility and the knowledge that expert testimony may bring to this troublesome issue"); Curry v. United States, 520 A.2d 255, 268 (D.C. 1987) (evidence is relevant if it has some logical tendency to prove or disprove a disputed material issue); Reavis v. United States, 395 A.2d 75, 78 (D.C.1978) (discussing relevancy and defining probative evidence (quoting Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977)); see also FED.R.EVID. 401.[12]
C.
The question remains whether Durant's impeachment with his drug use was harmless error. Kotteakos v. United States, 328 U.S. 750, 756, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946). We conclude that it was not.
The trial judge admitted the diagnosis of PCP intoxication to show Durant's condition on the date of the charged offense because he had testified unexpectedly that *1329 he had been beaten by the police. However, once the prosecutor asked Durant whether he remembered passing out in the squad car on the way to the police station, it was inevitable that Durant would mention the alleged attack by the police. See Jones v. United States, 385 A.2d 750, 753 n. 2 (D.C.1978). The medical records introduced in the government's rebuttal case went beyond controverting Durant's denials that he was under the influence of PCP on February 14 and that he had told a doctor on February 20 that he could not remember what had happened on February 14. To the extent the prosecutor was permitted to link Durant's diagnosis of PCP intoxication to his behavior and his ability to perceive and recall events, Durant's entire testimony about the events of February 14 was impeached.
Furthermore, the prosecutor asked the jury in his rebuttal closing argument "Is it believable that a witness whose brains are blown out on PCP is going to remember what's going on?" Defense counsel objected and the trial judge instructed the jury to disregard the words "brains blown out." The prosecutor then proceeded to connect Durant's drug use with his bizarre behavior at the hospital and his behavior on February 14 by arguing to the jury that Durant's version of the facts was not credible, thus effectively undermining the cautionary instruction. In addition, when defense counsel argued in his closing argument that if the jury found Durant was suffering from PCP intoxication on February 14 and his abilities to perceive and recall were impaired, then he did not have the specific intent required for a conviction of assault with intent to rob, the trial judge sustained the prosecutor's objection and erroneously instructed the jury that it could not consider Durant's PCP intoxication as bearing on his specific intent to commit the assault. Carter v. United States, 531 A.2d 956, 960, 964 n. 20 (D.C.1987) (voluntary intoxication is a defense to specific intent crimes) (citing Parker v. United States, 123 U.S.App.D.C. 343, 345-47 & n. 5, 359 F.2d 1009, 1011-13 & n. 5 (1966)); Harris v. United States, 375 A.2d 505, 508 (D.C. 1977) (voluntary intoxication is not an excuse but may negate defendant's specific intent).
This case involved a classic credibility contest between Richards and Durant. Richards' testimony was impeached in several respects and Officer Williams' testimony contradicted Richards' assertions about Durant's "poppy" eyes and "jittery" posture. The prosecutor was permitted to impeach Durant's testimony through the use of "highly inflammatory" drug evidence, Rogers, supra, 419 A.2d at 981, to cast doubt on Durant's version of what had happened in Richards' cab. The judge's instructions to the jury that it could only use the drug evidence in evaluating his ability to recall events and his credibility as a witness and could not use the evidence to determine his guilt of assault with intent to rob exacerbated the prejudice. See Jones v. United States, supra, 385 A.2d at 753; Kearney, supra, 136 U.S.App.D.C. at 332, 420 F.2d at 174.
Accordingly, because Durant was substantially prejudiced by the admission of the medical evidence of PCP use and intoxication, the error was not harmless and the judgment must be reversed.[13]
NEWMAN, Associate Judge, concurring:
Much has happened since 1945, when New York Life Insurance Co. v. Taylor, 147 F.2d 297 (D.C.Cir.1945), was decided. That case applied the so-called "federal *1330 shopbook rule", 28 U.S.C. § 1732(a). Section 1732 was repealed on July 1, 1975, and was replaced by FEDERAL RULES OF EVIDENCE 803(6). However, on June 30, 1975, local rule 43-I became effective in the Superior Court. Super.Ct.Civ.R. 43-I. That rule is substantially identical to the former federal shopbook rule.
Rule 803(6) of the FEDERAL RULES OF EVIDENCE is substantially broader in the admissibility of diagnoses and opinions that was the federal shopbook rule. "Rule 803(6) in accord with the trend of state decisions and the conclusion of leading authorities rejects any attempt to exclude a particular class of hospital records. Diagnoses and opinions, without regard to routine vis-a-vis conjectural, or physical as against psychiatric, are included as proper subjects of admissible entries in addition to acts, events and conditions." WEINSTEIN'S EVIDENCE, ¶ 803(6) [06], at 803-200 (1988) (footnotes omitted).[1] According to the Advisory Committee Note to 803(6), Rule 803(6) was intended to overturn such decisions as New York Life, supra, and Lyles v. United States, 254 F.2d 725 (D.C.Cir. 1957), cert. denied,, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958). See Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 309 (1973).
An analysis of what was at issue under the federal shopbook rule in New York Life Insurance Co. v. Taylor, supra, is instructive in understanding that decision. The insured decedent died while a patient at Walter Reed General Hospital by falling down a stairwell. There were no a witnesses. The circumstances of the fall indicated the possibility of suicide. Taylor sued New York Life seeking to recover the double indemnity payable upon accidental death. New York Life sought to introduce records of the hospital relating to the cause of death of the insured, seeking to show that the decedent committed suicide. These records consisted of the (1) patient's history given upon admission, including an account of his illness and his mental state; (2) diagnosis upon admission; (3) reports of three operations performed in the hospital; (4) recordation of insured's statements indicating he was contemplating suicide; (5) report of psychiatrist's consultation resulting from contemplated suicide; (6) psychiatric diagnosis; and (7) the transcript of Walter Reed Hospital's Board of Officers' proceedings, including findings with respect to cause of death. The trial court sustained Taylor's objection to the admission of these records; New York Life appealed an adverse jury verdict.
The United States Court of Appeals for the District of Columbia Circuit affirmed. New York Life, supra, 147 F.2d at 299. It held that the Supreme Court, in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), "limited the admission of records under the federal shopbook rule statute to those which are trustworthy because they represent routine reflections of day-to-day operations." New York Life, supra, 147 F.2d at 300. Since these records were "not offered to prove routine facts such as the date of admission to the hospital, the names of attending physicians, etc.," they were not admissible. Id. In his dissent, Judge Edgerton argued that all of the proffered medical records (except for the transcript of the Board of Officers' proceedings) should have been admitted under the federal shopbook statute. To support his view, he pointed to the medical records cases cited with approval in the congressional committee reports as the type of records to be admitted under the federal shopbook statute Congress was then considering (and later adopted). He noted that both the Second and Third Circuits had adopted this position. He pointed out that the federal statute was virtually identical to the Model Act and that courts in states which had adopted the Model Act had applied it repeatedly to medical records, including diagnosis (including in at least New York, a diagnosis of manic depressive insanity). He noted further that *1331 even before the adoption of the federal shopbook act, the District of Columbia Circuit had held that diagnoses and opinions as well as observations of medical officers contained in medical records were admissible (citing United States v. Balance, 59 F.2d 1040, 1042 (D.C.Cir.1932)). That hospitals rely on these diagnoses and opinions of medical officers in matters of life and death provided the necessary indicia of trustworthiness in Judge Edgerton's view to render them admissible. He found Palmer v. Hoffman, supra, easily distinguishable given the issue presented in that casethe admissibility when offered by the railroad defendant of the statement that the engineer of the train made to his supervisor about the cause of the accident in which Hoffman and his wife suffered injury. Judge Edgerton noted correctly that the Supreme Court found the records were not admissible since the business of railroads is railroading, not investigating accidents in which its trains were involved. In essence, Judge Edgerton argued that the records in Palmer v. Hoffman were rejected because they lacked the necessary indicia of trustworthiness, noting that "the primary utility [of such reports] is in litigating, not railroading." New York Life, supra, 147 F.2d at 301 (Edgerton, J., dissenting) (citing Palmer, supra, 318 U.S. at 114, 63 S.Ct. at 480).
Subsequent to New York Life, the Second,[2] Third,[3] Fourth,[4] Seventh,[5] Eighth,[6] and Ninth[7] Circuits held medical records, including diagnoses and opinions admissible under the federal shopbook statute.
We have cited New York Life v. Taylor, supra, in construing Super.Ct.Civ.R. 43-I; see, e.g., Rotan v. Egan, 537 A.2d 563, 566 (D.C.1988); Adkins v. Morton, 494 A.2d 652, 662 (D.C.1985); Christensen v. Gammons, 197 A.2d 450, 452-53 (D.C.1964), although we were not required to follow New York Life, since it addressed the applicability of the federal rule, not our local rule. M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971); see West v. United States, 346 A.2d 504, 506 (D.C.1975) (rejecting proposition that D.C. Court of Appeals "is bound by the interpretation given to similar procedural rules by the District of Columbia Circuit Court"). See also Joyner v. United States, 540 A.2d 457, 459 n. 1 (D.C.1988) (stating that "federal appellate court construction of comparable federal rules is persuasive authority in interpreting local rules"); Tupling v. Britton, 411 A.2d 349, 351 (D.C. 1980) (same); Bazata v. National Insurance Co., 400 A.2d 313, 314 n. 1 (D.C.1979) (stating that D.C. Court of Appeals is not bound in its interpretation of Superior Court Rules by federal courts interpretations of analogous federal rules, although such interpretation may be persuasive).
Our reliance on New York Life has caused us to state the admissibility test to be whether the diagnosis or opinion is one "upon which competent physicians would not disagree." Rotan v. Egan, supra, 537 A.2d at 566 (citing Washington Coca-Cola Bottling Works v. Tawney, 98 U.S.App.D. C. 151, 152, 233 F.2d 353, 354 (1956). Such a test not only deprives the rule of its utility where medical issues are in real dispute, but also places on the trial court, and ultimately on us, trained in law, not medicine, the task of determining whether a diagnosis or opinion is one about which physicians would be in agreement. See, e.g., Jones v. Prudential Insurance Company *1332 of America, 388 A.2d 476 (D.C.1978) heroin usage); Smith v. United States, 337 A.2d 219 (D.C.1975) (vaginal pap smears); Christensen v. Gammons, supra (cerebral thrombosis and hypertension). We are ill-suited to such a task.
The approach taken by FED.R.EVID. 803(6) is far preferable. This rule focuses on trustworthiness which is what the law of evidence should focus on. In my view, it has greater predictability, while retaining the trial court's right, subject to appellate review, to exclude that which is untrust-worthy.
Whatever may be the validity of New York Life where psychiatric opinion is offered by an insurance company to prove that its insured died by suicide rather than by accident (i.e. on the issue of factual causation), its application more generally is, in my view, suspect. Indeed, I find Judge Edgerton's dissent to be insightful and persuasive. It's long past time for us to reexamine this area of the law. We should adopt the approach of FED.R.EVID. 806(6) as have a multitude of states. See for a compilation of state adoptions, WEINSTEIN'S EVIDENCE, supra, ¶ 803(6) [8] at XXX-XXX-XX.
This is not a proper case in which to embark on this task, for I share the view expressed in Chief Judge Rogers' opinion that, on the facts of this case, given the evidence of mental illness, the diagnosis of PCP intoxication lacked sufficient indicia of trustworthiness to be admissible, and that other portions of the records lack relevance without expert testimony.
NOTES
[*] Judge Rogers was an Associate Judge of the court at the time this case was argued. Her status changed to Chief Judge on November 1, 1988.
[1] The black bag did not contain a bomb but did contain three photo albums, several language books, a pair of gloves, an umbrella, a pencil and paper, a comb, a toothbrush and other personal items. In addition, Durant was carrying two pairs of pants, a jumpsuit, a sportcoat, an overcoat and an attache case.
[2] In requesting permission to cross-examine Durant about his use of PCP, the prosecutor said he wanted to avoid getting into a collateral discussion of Durant's claim that police brutality had resulted in his being in a wheelchair, a subject that was not raised by the defense but was discussed in the medical records.
[3] Only the portions of the medical records which were read by the technician were admitted into evidence. Durant's complete medical records are part of the record on appeal.
[4] Super.Ct.Civ.R. 43-I(a) is made applicable to criminal cases by Super.Ct.Crim.R. 57(a).
[5] This is distinct from whether expert testimony would be required regarding the effect of alcohol intoxication on the ability to perceive and recall. See, e.g., Doepel v. United States, 434 A.2d 449, 453-54 (D.C.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981). See also discussion of "credibility" in Part II B, infra.
[6] The government contends that the medical records reflect no disagreement among the doctors treating Durant as to the propriety of the diagnosis of PCP intoxication. But even in the absence of disagreement, the relevant inquiry under New York Life is whether the particular medical condition is, by its very character, one about which competent physicians could reach different medical conclusions, the circuit court contrasting statements of identification and statements of medical opinion. 79 U.S.App.D.C. at 73 n. 8, 147 F.2d at 304 n. 8.
[7] Defense counsel did not oppose the admission of the "final lab report which indicates [a] positive [finding of PCP] in the urine." Since there were two different lab reports, it is unclear whether defense counsel acceded to the admission of both reports or only the "final lab report"; it is clear, however, that defense counsel did not object to the admission of either lab report. Thus, the propriety of their admission must be reviewed under the plain error standard. Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc).
[8] Durant contends further that, even if the government had called an expert witness, a purely qualitative urine test would not provide a sufficient evidentiary basis for an expert opinion on Durant's perceptual state. Cf. United States v. Roy, 114 Daily Wash.L.Rptr. 2481, 2488-89 (D.C.Super.Ct. Dec. 1, 1986) (in the absence of expert testimony to a reasonable degree of medical certainty on time within which PCP remains in body at levels detectable in urine, government failed to meet its burden of proof beyond a reasonable doubt that defendant violated court order to refrain from drug use). We need not address this argument for purposes of this appeal.
[9] Although the urine test was a qualitative, not quantitative test, it can be inferred that Durant's urine contained only trace amounts of PCP since the blood test failed to detect the presence of any PCP at all. The government offered no medical evidence to support a contrary inference.
[10] See Hinnant v. United States, 520 A.2d 292, 293 (D.C.1987) (trial judge has broad discretion to admit or exclude expert testimony); Gant v. United States, 518 A.2d 103, 110 & n. 16 (D.C. 1986) (criteria for admitting expert testimony on ultimate issue); Sherrod v. United States, 478 A.2d 644, 652 (D.C.1984) (trial judge has broad discretion to control the scope of cross-examination); Quarles v. United States, 308 A.2d 773, 775 (D.C.1973) (jury may draw reasonable inferences from the evidence).
[11] Although Durant's dual diagnosis of PCP intoxication and histrionic personality disorder based upon the same symptomatology might have provided an alternative basis for the need for expert testimony, the parties agreed to keep the issue of mental illness from the jury, so we do not reach this issue.
[12] Judge Weinstein reports that a minority of jurisdictions admit evidence of drug use without requiring proof that the witness' testimonial capacities were impaired, usually on the theory that the user is a liar, which, Weinstein suggests, appears to address character rather than impairment. J. WEINSTEIN & M. BERGER, 3 WEINSTEIN'S EVIDENCE ¶ 607[04], at 607-59 (1987). In his view, the sounder position, taken by many state courts, is that such evidence is not admitted "unless it can also be proved that the use of narcotics has impaired the sensory, retentive or communicative facilities of the witness." Id. (citation omitted). See, e.g., State v. Rifkin, 140 Vt. 472, 438 A.2d 1122 (1981) and Smithhart v. State, 503 S.W.2d 283 (Tex.Crim.App.1973), holding that criminal convictions for driving under the influence of drugs cannot stand absent expert testimony linking the defendant's symptoms of incapacitation to the use of drugs. He explains his criticism of jurisdictions that admit evidence of drug usage on the theory that the jury is capable of determining whether the usage adversely affected the witness' testimonial capacity as follows:
Whether [the conclusion that juries understand the effects of drug use on testimonial capacity] is warranted in the absence of expert evidence is questionable since studies suggest that the effect of narcotics on credibility cannot be assessed without knowledge of the type of drug involved, the type of reaction it causes, the amount of the drug the witness was using at the time he observed the event in issue, and the mental characteristics of the individual who is testifying, a task which seems to require information beyond that ordinarily attributable to the average juror.
WEINSTEIN'S EVIDENCE, supra, ¶ 607[04], at 607-61.
[13] We find no merit to Durant's contention that the trial judge abused his discretion in allowing the prosecutor to impeach Durant with a prior inconsistent statement. The prosecutor's question was clarified upon defense objection, Durant initially responded that he did not recall events during the time he was unconscious, and then denied telling a doctor on February 20 that he could not recall the events leading to his arrest. Martin v. United States, 452 A.2d 360, 363 (D.C.1982); Crews v. United States, 514 A.2d 432, 437 (D.C.1986). Even if, as Durant contends, the prosecutor did not have a basis for asking the question, at least not insofar as he was relying on the medical records, any error was harmless in view of Durant's responses, particularly after defense counsel's objection for imprecision was sustained. Kotteakos, supra, 328 U.S. at 756, 66 S.Ct. at 1243.
[1] FED.R.EVID. 803(6) explicitly gives the trial court discretion to exclude records where "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." See also FED.R.EVID. 403 (trial court may exclude otherwise relevant evidence if its probative value is "substantially outweighed by the danger of unfair prejudice . . .").
[2] See, e.g., White v. Zutell, 263 F.2d 613 (2d Cir.1959); Terrasi v. South Atlantic Lines, 226 F.2d 823 (2d Cir.1955), cert. denied, 350 U.S. 988, 76 S.Ct. 475, 100 L.Ed. 855 (1956).
[3] See, e.g., Bartkoski v. Pittsburgh & Lake Erie R.R. Co., 172 F.2d 1007 (3d Cir.1949). See also Norwood v. Great American Indem. Co., 146 F.2d 797 (3d Cir.1944), a case decided prior to New York Life.
[4] See, e.g., Thomas v. Hogan, 308 F.2d 355 (4th Cir.1962) (en banc); Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958).
[5] See, e.g., United States v. Ware, 247 F.2d 698 (7th Cir.1957).
[6] See, e.g., Glawe v. Rulon, 284 F.2d 495 (8th Cir.1960); Missouri-Kansas-Texas R.R. Co. v. Ridgway, 191 F.2d 363 (8th Cir.1951).
[7] See, e.g., Lew Moon Cheung v. Rogers, 272 F.2d 354 (9th Cir.1959); Medina v. Erickson, 226 F.2d 475 (9th Cir.1955), cert. denied, 351 U.S. 912, 76 S.Ct. 702, 100 L.Ed. 1446 (1956). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/95092/ | 174 U.S. 674 (1899)
LOUISVILLE TRUST COMPANY
v.
LOUISVILLE, NEW ALBANY AND CHICAGO RAILWAY COMPANY.
No. 263.
Supreme Court of United States.
Argued April 24, 1899.
Decided May 22, 1899.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
*681 Mr. Swagar Sherley and Mr. St. John Boyle for the Louisville Trust Company.
Mr. Adrian H. Joline for the Louisville, New Albany and Chicago Railway Company. Mr. Herbert B. Turner, Mr. George W. Kretzinger and Mr. E.C. Field were on his brief.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The questions in this case are novel and important. They *682 arise on the foreclosure of certain railroad mortgages, and suggest to what extent the same rules and considerations obtain in them as in the foreclosures of ordinary mortgages upon real estate. It goes without saying that the proceeding in the foreclosure of an ordinary mortgage on real estate is simple and speedy. No one need be considered except the mortgagor and mortgagee, and if they concur in the disposition of the foreclosure it is sufficient, and the court may properly enter a decree in accordance therewith. Other parties, although claiming rights in antagonism to both or either mortgagor and mortgagee, may be considered outside the scope of the foreclosure, and whatever rights they may have may properly be relegated to independent suits.
But this court long since recognized the fact that in the present condition of things (and all judicial proceedings must be adjusted to facts as they are) other inquiries arise in railroad foreclosure proceedings accompanied by a receivership than the mere matter of the amount of the debt of the mortgagor to the mortgagee. We have held in a series of cases that the peculiar character and conditions of railroad property not only justify but compel a court entertaining foreclosure proceedings to give to certain limited unsecured claims a priority over the debts secured by the mortgage. It is needless to refer to the many cases in which this doctrine has been affirmed. It may be, and has often been said, that this ruling implies somewhat of a departure from the apparent priority of right secured by a contract obligation duly made and duly recorded, and yet this court, recognizing that a railroad is not simply private property, but also an instrument of public service, has ruled that the character of its business, and the public obligations which it assumes, justify a limited displacement of contract and recorded liens in behalf of temporary and unsecured creditors. These conclusions, while they to a certain extent ignored the positive promises of contract and recorded obligations, were enforced in obedience to equitable and public considerations. We refer to these matters not for the sake of reviewing those decisions, but to note the fact that foreclosure proceedings of mortgages covering extensive *683 railroad properties are not necessarily conducted with the limitations that attend the foreclosures of ordinary real estate mortgages.
We notice, again, that railroad mortgages, or trust deeds, are ordinarily so large in amount that on foreclosure thereof only the mortgagees, or their representatives, can be considered as probable purchasers. While exceptional cases may occur, yet this is the rule, as shown by the actual facts of foreclosure proceedings, as well as one which might be expected from the value of the property and the amount of the mortgage.
We may not shut our eyes to any facts of common knowledge. We may not rightfully say that the contract of mortgage created certain rights, and that when those rights are established they must be sustained in the courts, and no inquiry can be had beyond those technical rights. We must, therefore, recognize the fact, for it is a fact of common knowledge, that, whatever the legal rights of the parties may be, ordinarily foreclosures of railroad mortgages mean not the destruction of all interest of the mortgagor and a transfer to the mortgagee alone of the full title, but that such proceedings are carried on in the interests of all parties who have any rights in the mortgaged property, whether as mortgagee, creditor or mortgagor. We do not stop to inquire, because the question is not presented by this record, whether a court is justified in permitting a foreclosure and sale which leaves any interest in the mortgagor, to wit, the railroad company and its stockholders, and ought not always to require an extinction of all the mortgagor's interest and a full transfer to the mortgagee, representing the bondholders. Assuming that foreclosure proceedings may be carried on to some extent at least in the interests and for the benefit of both mortgagee and mortgagor, (that is, bondholder and stockholder,) we observe that no such proceedings can be rightfully carried to consummation which recognize and preserve any interest in the stockholders without also recognizing and preserving the interests, not merely of the mortgagee, but of every creditor of the corporation. In other words, if the bondholder wishes to foreclose and exclude inferior lienholders or general unsecured creditors *684 and stockholders he may do so, but a foreclosure which attempts to preserve any interest or right of the mortgagor in the property after the sale must necessarily secure and preserve the prior rights of general creditors thereof. This is based upon the familiar rule that the stockholder's interest in the property is subordinate to the rights of creditors; first of secured and then of unsecured creditors. And any arrangement of the parties by which the subordinate rights and interests of the stockholders are attempted to be secured at the expense of the prior rights of either class of creditors comes within judicial denunciation.
Now, the intervening petition of the petitioner, duly verified, directly charged that the foreclosure proceedings were for the benefit alone of bondholder and stockholder and under an agreement between the two for a sale and purchase for both, and with a view of thereby excluding from any interest in the property all unsecured creditors; that this agreement was entered into after and in consequence of the decree of the United States Court of Appeals adjudging the New Albany Company liable on its guarantee. If that fact be true would it not be, and we quote the language of the Court of Appeals, "a travesty upon equity proceedings"? Can it be that when in a court of law the right of an unsecured creditor is judicially determined and that judicial determination carries with it a right superior to that of the mortgagor, the mortgagor and mortgagee can enter into an agreement by which through the form of equitable proceedings all the right of this unsecured creditor may be wiped out, and the interest of both mortgagor and mortgagee in the property preserved and continued? The question carries its own answer. Nothing of the kind can be tolerated.
Beyond the positive and verified statement of the petition of the Louisville Trust Company are many facts appearing in the record which strongly support this allegation. That a corporation whose stock consists of $16,000,000, $7,000,000 of which is preferred stock, all of which must be expected to be wiped out if a mortgage interest of $13,800,000 is fully asserted, hastens into court and confesses judgment on an alleged unsecured *685 liability; on the same day responds to an application for a receiver and assents thereto; makes no effort during the receivership to prevent default in interest obligations; tacitly, at least, consents to an order made on application of the receiver for the issue of $200,000 worth of receiver's certificates, in aid of betterments on the road, when the same sum might have paid the interest and delayed the foreclosure; when foreclosure bills are filed not only makes no denial, but admits all the averments of mortgage obligation and default in other words, seems a debtor most willing to have all its property destroyed, and this because of one short wheat crop; these matters suggest, at least, that there is probable truth in the sworn averment of the petitioner that all was done by virtue of an agreement between mortgagee and mortgagor (bondholder and stockholder) to preserve the relative interests of both, and simply extinguish unsecured indebtedness. When, in addition to this fact, it appears that these proceedings are initiated within a few days after a decree of the Circuit Court of Appeals a decree final unless brought to this court for review in its discretion by certiorari; that a large amount of unsecured indebtedness was by that decree cast upon the mortgagor, we cannot doubt that such a condition of things was presented to the trial court that it ought, in discharge of its obligations to all parties interested in the property, to have made inquiry and ascertained that no such purpose as was alleged in the intervening petition was to be consummated by the foreclosure proceedings.
It is said by the appellee that the Louisville Trust Company was dilatory, and that by reason thereof it was not entitled to consideration in a court of equity. There is some foundation for this contention, and yet there was not such delay as justified the court in refusing to enter upon an inquiry. Indeed, it does not appear that either the Circuit Court or the Circuit Court of Appeals considered the petitioner dilatory or denied its application on the ground of delay. It must be borne in mind that the bill of complaint filed on August 24 by one who had that day become, by consent of the defendant, a judgment creditor, was affirmatively "for the purpose of enforcing the *686 rights of complainant and all other creditors of said insolvent corporation according to their due equities and priorities," and to "decree the rights, liens and equities of each and all of the creditors of the said Louisville, New Albany and Chicago Railway Company as the same may be finally ascertained and decreed by the court upon the respective claims and interventions of several of such creditors or lienors in and to not only the said line of railroad appurtenances and equipment or any part of them, but also to and upon each and every portion of the assets and property of the said insolvent corporation."
Although this bill was filed in the avowed interest of himself and all other creditors, no action was taken to notify any creditors or to bring them into court to present their several claims. Any creditor might well have waited, even with knowledge of what had taken place, and after an examination of the bill thus filed, until publication or other notice. Whether this petitioner was, in fact, aware of these proceedings is not disclosed. Even if it were, its waiting a reasonable time for what in the ordinary course of procedure all creditors had a right to expect, is not a neglect which destroys its equities. It, and all other creditors, might justly assume that this proceeding was initiated in good faith to subject the property of the common debtor to the payment of all its debts; primarily it may be its secured debts, but also generally all its debts, secured or unsecured, and that whenever it was necessary due notice would be given and all creditors called upon to present their claims. It would not have been justified in treating this proceeding as solely in the interest of the mortgagee and mortgagor, the bondholder and stockholder, and for the purpose of destroying all claims of unsecured creditors.
It is true that the filing of the bills of foreclosure was notice of an intent to subject the property belonging to the mortgagor to the satisfaction of the mortgage. And for the purposes of the present inquiry it may be conceded that the intervening petition disclosed no legal defence to the claims of the mortgagees to foreclosure. In other words, for the inquiry we desire to pursue we shall assume without question that the matters referred to in the petition in respect to the property *687 in Illinois, the decision of the Supreme Court of that State and the effect of the attempted consolidation, and all other matters stated or suggested, separately or together, constitute no valid defence to the foreclosure bills. But this foreclosure proceeding did not either directly or by suggestion disclose any purpose to protect the mortgagor, the stockholder, at the expense of unsecured creditors. And, as heretofore stated, this unsecured creditor was not bound to presume that there was any such purpose in the minds of the two parties to the foreclosure. So that its failure to intervene at the first instant cannot be fatal delay or neglect.
It is also true that no evidence was offered by the petitioner in support of the allegations of its petition, but it is not true that in revising and reversing the final action of the Circuit Court we are acting on mere suspicion, or disturbing either settled rules or admitted rights. The allegations of this intervening petition as to the wrong intended and being consummated were specific and verified. The delay, under the circumstances, was not such as to deprive the petitioner of a right to be heard. The facts apparent on the face of the record were such as justified inquiry, and upon those facts, supported by the positive and verified allegations of the petitioner, it was the duty of the trial court to have stayed proceedings, and given time to produce evidence in support of the charges. Taking them as a whole, they are very suggestive, independent of positive allegation; so suggestive, at least, that, when a distinct and verified charge of wrong was made, the court should have investigated it.
We cannot shut our eyes to the fact that one claiming to be a general creditor for nearly half a million of dollars commences proceedings to establish his right, which, by the consent of the debtor, result on the very day in a judgment, execution and return thereof unsatisfied, a bill for a receivership and the appointment of a receiver; and yet notwithstanding this was initiated in support of this large claim, as well as for the protection of other unsecured creditors, shortly thereafter foreclosure proceedings are instituted and carried on to completion, which absolutely ignore the rights of this alleged *688 unsecured creditor, and leave as the result of the sale himself, the actor who has brought on the possibility of foreclosure, stripped of all rights in and to the mortgaged property. Was he a real creditor, and did that real creditor make a generous donation of this large claim? Were arrangements made with him and the stockholders to protect both, and by virtue of such arrangements was this foreclosure hastened to its close? Questions like these which lie on the surface of these proceedings cannot be put one side on the suggestion that they present only matter of suspicion.
It is no answer to these objections to say that a bondholder may foreclose in his own separate interest, and, after acquiring title to the mortgaged property, may give what interest he pleases to any one, whether stockholder or not, and so these several mortgagees foreclosing their mortgages, if proceeding in their own interest, if acquiring title for themselves alone, may donate what interest in the property acquired by foreclosure they desire. But human nature is something whose action can never be ignored in the courts, and parties who have acquired full and absolute title to property are not as a rule donating any interest therein to strangers. It is one thing for a bondholder who has acquired absolute title by foreclosure to mortgaged property to thereafter give of his interest to others, and an entirely different thing whether such bondholder, to destroy the interest of all unsecured creditors, to secure a waiver of all objections on the part of the stockholder and consummate speedily the foreclosure, may proffer to him an interest in the property after the foreclosure. The former may be beyond the power of the courts to inquire into or condemn. The latter is something which on the face of it deserves the condemnation of every court, and should never be aided by any decree or order thereof. It involves an offer, a temptation, to the mortgagor, the purchase price thereof to be paid, not by the mortgagee, but in fact by the unsecured creditor.
We may observe that a court, assuming in foreclosure proceedings the charge of railroad property by a receiver, can never rightfully become the mere silent registrar of the agreements *689 of mortgagee and mortgagor. It cannot say that a foreclosure is a purely technical matter between the mortgagee and mortgagor, and so enter any order or decree to which the two parties assent without further inquiry. No such receivership can be initiated and carried on unless absolutely subject to the independent judgment of the court appointing the receiver; and that court in the administration of such receivership is not limited simply to inquiry as to the rights of mortgagee and mortgagor, bondholder and stockholder, but considering the public interests in the property, the peculiar circumstances which attend large railroad mortgages, must see to it that all equitable rights in or connected with the property are secured.
While not intending any displacement of the ordinary rules or rights of mortgagor and mortgagee in a foreclosure, we believe that under the circumstances as presented by this record there was error; that the charge alleged positively, and supported by many circumstances, of collusion between the bondholder and the stockholder, to prevent any beneficial result inuring by virtue of the decree of the Circuit Court of Appeals for the Sixth Circuit in reference to the guarantee obligations of the New Albany Company, was one compelling investigation, and the order will, therefore, be that the decrees of the Circuit Court and of the Circuit Court of Appeals be reversed and the case be remanded to the Circuit Court, with instructions to set aside the confirmation of sale; to inquire whether it is true as alleged that the foreclosure proceedings were made in pursuance of an agreement between the bondholder and stockholder to preserve the rights of both and destroy the interests of unsecured creditors; and that if it shall appear that such was the agreement between these parties, to refuse to permit the confirmation of sale until the interests of unsecured creditors have been preserved, and to take such other and further proceedings as shall be in conformity to law.
Decree accordingly.
MR. JUSTICE PECKHAM dissented. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1000975/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT I. REAMER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CA-
98-2626-CCB)
Submitted: February 24, 2000 Decided: March 1, 2000
Before MOTZ and KING, Circuit Judges, and BUTZNER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Robert I. Reamer, Appellant Pro Se. William Sears Estabrook, III,
Marion Elizabeth Erickson, Teresa Thomas Milton, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Reamer appeals from the district court’s order granting
the government’s motion for summary judgment and reducing to judg-
ment the assessed tax liability against Reamer for the tax years
1981, 1982, and 1983. We have reviewed the record1 and the dis-
trict court’s opinion and find no reversible error. Accordingly,
we affirm on the reasoning of the district court. See United
States v. Reamer, No. CA-98-2626-CCB (D. Md. July 1, 1999).2 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
1
In this court, Reamer seeks to present additional evidence
and arguments that were not presented to the district court. This
court cannot consider materials outside the record, see First Nat’l
Bank v. Fockler, 649 F.2d 213, 215-16 (4th Cir. 1981), and
ordinarily does not consider issues raised for the first time on
appeal. See Grossman v. Commissioner, 182 F.3d 275, 281 (4th Cir.
1999). Therefore, we decline to consider the extraneous evidence
and issues.
2
Although the district court’s order is marked as “filed” on
June 30, 1999, the district court’s records show that it was
entered on the docket sheet on July 1, 1999. Pursuant to Rules 58
and 79(a) of the Federal Rules of Civil Procedure, it is the date
the order was entered on the docket sheet that we take as the
effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2241411/ | 329 Mass. 625 (1953)
110 N.E.2d 115
GREGORY B. KHACHADOORIAN'S CASE.
Supreme Judicial Court of Massachusetts, Suffolk.
October 8, 1952.
January 6, 1953.
Present: QUA, C.J., RONAN, WILKINS, SPALDING, & COUNIHAN, JJ.
David H. Fulton, (Robert Fulton with him,) for the insurer.
S. Jason Ginsburg, (William E. Ginsburg with him,) for the claimant.
SPALDING, J.
On August 22, 1942, the employee received an injury which rendered him industrially blind, for which in prior proceedings the insurer was ordered to pay compensation. That order has been complied with and is not before us. The present controversy arises out of a claim for total and permanent disability compensation. G.L. (Ter. Ed.) c. 152, § 34A, as appearing in St. 1945, c. 717, as amended. The single member decided in favor of the employee, and his decision was affirmed by the reviewing board, one member dissenting. From a decree of the Superior Court ordering payments in accordance with the board's decision, the insurer appealed.
1. After the evidence was in at the hearing before the single member, counsel for the insurer requested an opportunity to argue the case on the evidence but the request was denied, subject to his exception. The exception was pressed before the reviewing board without success. There was no error. General Laws (Ter. Ed.) c. 152, § 5, provides *627 in part: "The department may make rules consistent with this chapter for carrying out its provisions. Process and procedure shall be as simple and summary as reasonably may be." It appears that the department's Rule IV-7, entitled "Proceedings at hearings before single member," provides: "The hearing member, at his discretion, may permit an argument on the facts following a hearing." In substance the insurer argues that without an opportunity to argue its case before the single member it did not have its day in court. We are not called upon to determine the validity of the rule just quoted, for we are convinced that the insurer was not prejudiced by the ruling of the single member. The insurer concedes that it was afforded an opportunity to argue its case before the reviewing board. If, as we do not decide, there was any infirmity in the proceedings before the single member by reason of his ruling, it was cured. "The findings, rulings and decision of the reviewing board entirely superseded the action taken by the single member, which thereafter became of no importance." Di Clavio's Case, 293 Mass. 259, 261. McLean's Case, 323 Mass. 35, 37. We are therefore not confronted with the question whether the provisions in the act for a hearing (§§ 7, 10) would be satisfied where a party was compelled to submit his case without argument both before the single member and the reviewing board. That would be a very different question. See Londoner v. Denver, 210 U.S. 373, 386; Morgan v. United States, 298 U.S. 468, 479-481; Shields v. Utah Idaho Central Railroad, 305 U.S. 177, 182; Harrison v. Commissioner of Internal Revenue, 107 Fed. (2d) 341, 342 (C.C.A. 6); L.B. Wilson, Inc. v. Federal Communications Commission, 170 Fed. (2d) 793, 805 (C.A.D. of C.); Colonial Trust Co. v. Austin, 133 Conn. 696, 699; Handlon v. Belleville, 4 N.J. 99, 105; Wisconsin Telephone Co. v. Public Service Commission, 232 Wis. 274, 294-296. As these decisions hold and rightly a judicial or quasi judicial hearing involves more than an opportunity to present evidence; there must also be an opportunity for argument.
*628 2. Before the reviewing board the insurer presented the following requests for rulings.[1] "1. In this hearing there is no presumption of total disability, upon the evidence presented. 2. The employee having voluntarily removed himself from the labor market and having made no attempt to earn wages cannot be heard to say that he is totally and permanently disabled from earning wages." The board ruled that the "requests have been amply disposed of by the findings and rulings herein made and ... [we] decline to pass specifically upon them. Belezarian's Case, 307 Mass. 557." In view of the fact that the board made extensive findings of fact we are of opinion that the second request falls within the rule of Belezarian's Case and that the board did not have to deal with it. The rule in Belezarian's Case is that the board may make rulings of law material to its decision but cannot be required to do so for the reason that the purpose of such rulings in most instances is served by the subsidiary findings that the board is required to make. After stating this rule the court went on to say, "What has just been said may not apply to requests for rulings that deal with the technic of finding the facts, such as the burden of proof. As in the case of masters in equity, it is not easy to see how a party could make sure of the correct application of the law governing the burden of proof except by requests for rulings" (page 561). See McLean's Case, 323 Mass. 35, 40-41.
The first request, we think, falls within this exception. Whether the board in deciding the case could make use of a presumption obviously was a matter involving "the technic of finding the facts." Thus it was required either to deal with this request or to make clear in its decision that it was applying the correct principle of law. Inasmuch as the board did not do the former the question narrows down to whether it did the latter.
The plaintiff's claim for compensation is based on § 34A. This section was inserted by St. 1935, c. 364, the pertinent *629 portions of which in 1942 when the accident occurred were: "In any hearing or investigation under this chapter, loss of ... both eyes ... shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts, and proof thereof shall be by weight of the evidence." In substance this created a presumption of permanent and total disability where the loss of both eyes was shown, which could be overcome only by "conclusive proof to the contrary." A new § 34A was substituted by St. 1945, c. 717, in which the quoted language was omitted, and, with an exception not material here, the section stood in this form at the time of the hearing before the board.
The effect of the 1945 statute was to eliminate the presumption and restore the normal requirements of proof (see Ginley's Case, 244 Mass. 346, 347) for all cases under § 34A. It is clear that this change was procedural only, and that the case had to be decided under the later statute without the aid of the presumption. G.L. (Ter. Ed.) c. 152, § 2A, inserted by St. 1946, c. 386, § 3. Goddu's Case, 323 Mass. 397. Lapinsky's Case, 325 Mass. 13, 15. We are satisfied that the board dealt with the case on that basis. It is apparent from its decision that it considered the 1945 statute as applicable, that the presumption was no longer in effect, and that the question whether the employee was permanently and totally incapacitated was "a matter of fact to be ... proven if contested." The insurer was not harmed, therefore, by the board's refusal to deal with its request. See McLean's Case, 323 Mass. 35, 40.
3. The final contention of the insurer in substance is that, having removed himself from the labor market and having made no attempt to earn wages, the employee cannot be heard to say that he is totally and permanently disabled from earning wages. We are of opinion that this contention cannot be sustained, and that the finding of total and permanent incapacity made by the board must stand. The facts pertinent to this aspect of the case are these. The *630 employee sustained an injury in August, 1942, which resulted in the loss of sight in both eyes. He was at that time fourteen years old and had been attending the public schools in Arlington, and expected to go on to high school in September. When injured he was employed as a helper in his uncle's garage. After the accident the employee received instruction at the Perkins Institute for the Blind and the Massachusetts School of the Blind. The courses he studied at these schools were generally of a college preparatory nature. He also studied Braille and typing and took required courses in weaving and shop work. After attending Arlington High School for the last year of his secondary education, he enrolled in the College of Business Administration of Boston University. At the time of the hearing before the board he was in his junior year there. He has not been gainfully employed at any time since the accident.
The insurer argues that the employee's present incapacity for work is due not to his blindness, which is undisputed, but rather to his deliberate choice to pursue a "classical" education in preference to the training in industrial skills which was available to him at the schools for the blind which he attended. Thus, it is said, his incapacity is due to a cause for which the insurer would not be liable. See Barry's Case, 235 Mass. 408; Strycharz's Case, 291 Mass. 212. The board could have found otherwise. "Complete physical or mental incapacity of the employee is not essential to proof of total and permanent disability within the meaning of the statute. It is sufficient if the evidence shows that the employee's disability is such that it prevents him from performing remunerative work of a substantial and not merely trifling character, and regard must be had to the age, experience, training and capabilities of the employee." Frennier's Case, 318 Mass. 635, 639. Considering these things, it becomes apparent that the employee, by attending school and attempting to fit himself for some gainful occupation, did not thereby render himself ineligible for permanent and total disability compensation. What was said recently in Paltsios's Case, ante, 526, 528, in discussing a similar situation is pertinent *631 here: "The employee doubtless has sustained a permanent injury which will certainly interfere with the performance of the daily functions of life, depending to a considerable degree upon the nature of the occupation in which he is engaged or the profession which he has adopted as the means of a livelihood. No one at this point can predict with any degree of certainty what his life work will be.... It is true that he has not performed any work since the injury, but that might well be ascribed to the fact that he was attending school. Of course, the insurer cannot complain of reasonable efforts made in good faith by the employee to better his future position in life." The employee in the present case was injured at a time when he had not yet acquired any skills which he could employ to support himself. It is obvious that even had there been no accident and no loss of vision the employee would have had to pursue some course of training in future years, and that the effect of the loss of vision was to limit greatly his freedom of choice in that respect. The findings of the board were warranted by the evidence and they are sufficient to sustain its conclusion, namely, that the employee's attendance at school in the circumstances did not relieve the insurer of liability.
In minor respects relating to form the decree must be modified, as set forth in the rescript, and as so modified, is affirmed. Costs under G.L. (Ter. Ed.) c. 152, § 11A, inserted by St. 1945, c. 444, as amended, shall be allowed by the single justice.
So ordered.
NOTES
[1] Similar requests had been presented to the single member. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032746/ | 34.810(1)(b)(2); NRS 34.810(2). Appellant's petition was procedurally
barred absent a demonstration of good cause and actual prejudice. See
NRS 34.726(1); NRS 34.810(1)(b); NRS 34.810(3).
First, appellant claimed that this court's decision in Nika v.
State, 124 Nev. 1272, 198 P.3d 839 (2008), provided good cause to raise his
claim that he received a flawed jury instruction on the elements of first-
degree murder because the jury was given the Kazalyn instruction on
premeditation. Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578, 583-84
(1992), receded from by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700,
713-14 (2000). Even assuming Nika provided good cause when that
decision was issued, appellant failed to excuse the entire delay because he
waited approximately four years from the Nika decision before he filed
this petition. See Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003). Further, appellant failed to demonstrate actual prejudice. This
court concluded on direct appeal that there was sufficient evidence for
appellant's murder conviction under the felony-murder rule. Garner, 116
Nev. at 782, 6 P.3d at 1021. Therefore, appellant cannot demonstrate
prejudice related to the premeditation instruction.
Second, appellant claimed that the prison's law library was
inadequate and the inadequacies caused the delay in raising his current
claims. Appellant asserted he has been actively litigating his case in
federal court and has previously litigated two post-conviction petitions for
a writ of habeas corpus in Nevada state court. Appellant's prior petitions
indicate adequate access to the prison library, and thus he failed to
demonstrate official interference caused him to be unable to comply with
the procedural bars. See Hathaway, 119 Nev. at 252, 71 P.3d at 506.
Moreover, appellant failed to demonstrate that inadequate law libraries or
SUPREME COURT
OF
NEVADA
2
(0) 1947A
inadequate assistance from legally trained persons caused a lack of
meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 828
(1977), limited by Lewis v. Casey, 518 U.S. 343 (1996). Therefore, the
district court did not err in concluding that appellant failed to overcome
the procedural bars.
Next, appellant claimed the procedural bars should not apply
because he is actually innocent. In order to demonstrate a fundamental
miscarriage of justice, a petitioner must make a colorable showing of
actual innocence—factual innocence, not legal innocence. Pellegrini v.
State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001); Calderon v. Thompson,
523 U.S. 538, 559 (1998). Appellant did not demonstrate actual innocence
as all of his claims involved legal innocence, and therefore, he failed to
show that "'it is more likely than not that no reasonable juror would have
convicted him in light of. . . new evidence." Calderon, 523 U.S. at 559
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini, 117
Nev. at 887, 34 P.3d at 537; Mazzan v. Warden, 112 Nev. 838, 842, 921
P.2d 920, 922 (1996). Therefore, the district court did not err in denying
the petition as procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
C. J.
J.
Saitta
3
cc: Hon. Michelle Leavitt, District Judge
Tyrone Lafayette Garner
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1228207/ | 508 F.3d 88 (2007)
Reza Abdul MUFIED, Petitioner,
v.
Michael B. MUKASEY, United States Attorney General,[*] Michael Chertoff, Secretary of the U.S. Department of Homeland Security, Julie Myers, Assistant Secretary of the U.S. Department of Homeland Security, John P. Torres, Acting Director of Detention and Removal Office, Immigration and Customs Enforcement, Michael Ficke, Special Agent-in-Charge of the New York Field Office of Immigration and Customs Enforcement, United States Department of Justice, U.S. Department of Homeland Security, Respondents.
*89 Docket No. 06-0396-ag.
United States Court of Appeals, Second Circuit.
Argued: August 29, 2007.
Decided: November 20, 2007.
Lawrence Spivak, New York, NY, for Defendant-Appellant.
John Battaglia, United States Department of Justice, Washington, DC (Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, Kaarina Salovaara and Craig A. Oswald, Assistant United States Attorneys, on the brief), for Appellee.
Before: JACOBS, Chief Judge, KATZMANN, and HALL, Circuit Judges.
KATZMANN, Circuit Judge.
Petitioner Reza Abdul Mufied petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Joanna Miller Bukszpan to deny his application for withholding of removal under the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3). See In re Mufied, No. A 96 423 965 (B.I.A. Dec. 28, 2005) ("BIA Decision"), aff`g No. A 96 423 965 (Immig. Ct. N.Y. City Aug. 26, 2004) ("IJ Decision"). Mufied based his application for relief, in part, on his claim that Christians in Indonesia faced a pattern or practice of persecution, but neither the IJ nor the BIA considered this claim. We remand to the BIA so that it may do so in the first instance. On remand, we encourage the BIA to elaborate upon the "systemic, pervasive, or organized" standard it has applied to analyzing such claims.
I.
Mufied is a native and citizen of Indonesia, having lived most recently on Sulawesi island. He is Christian, but unlike most of the Indonesian Christian asylum applicants who seek relief in our Court, he is not ethnically Chinese. His asylum application lists his ethnicity as "Manadois." Mufied was admitted to the United States in 2001 as a non-immigrant visitor with authorization to remain in the country for a period not to exceed six months. He remained longer than authorized and was placed in removal proceedings in 2003. Once in proceedings, Mufied *90 conceded removability and applied for asylum and withholding of removal under the Immigration and Nationality Act.[1]
The IJ granted the government's motion to pretermit Mufied's asylum claim and denied his other applications for relief. With respect to his application for withholding of removal, the IJ assumed that Mufied was a Christian but found that "he has not shown that the country conditions are such that it is more likely than not that he would be persecuted as a Christian in Indonesia." IJ Decision at 6. The IJ addressed both Mufied's testimony regarding his personal experience in Indonesia and the background materials regarding "difficulties between Muslims and Christians" and "terrorist attacks across the country from time to time." Id. Yet she appears to have considered each only for its value in predicting the likelihood that Mufied would be singled out for persecution if forced to return to his native country. Thus, she explained that "random terrorist violence does not lead to a finding that it is more likely than not that this particular person will be persecuted on account of his religion if he were forced to return to Indonesia." Id. And, focusing again on petitioner individually, she did not find that "the acts that did or did not happen to [Mufied] in the past rise to the level of any kind of assumption that he, rather than any other Christian, would have a problem in Indonesia." Id. at 7. Accordingly, the IJ concluded, Mufied had not met his burden of proof and his application for withholding of removal was denied.
Mufied appealed to the BIA. In his brief to the Board, he pressed two separate bases for withholding of removal. First, he claimed that the "threats and acts of violence suffered by the respondent on account of his Christian faith equate to persecution on account of religion" and that "such persecution can and will happen again to the respondent." Joint Appendix at 18. Second, he argued more broadly that he had "much to fear in the way of persecution on account of religion simply because he is a Christian from Indonesia." Id. at 19. This second ground was based not on any claim of individualized treatment, but rather "[t]he existence of a pattern and practice of persecution against Christians in Indonesia." Id. at 21.
The BIA adopted and affirmed the decision of the IJ in a per curiam order. The Board first agreed that Mufied's asylum application was untimely. Then, turning to his application for withholding of removal, the BIA further agreed that "the respondent did not meet his burden of proof and persuasion to establish past persecution or a clear probability of persecution or torture were he returned to Indonesia." BIA Decision at 1. The Board cited the State Department's 2003 Country Report on Human Rights Practices for Indonesia as "indicat[ing] that inter-religious tolerance and cooperation improved during the year following a drop in violence" and found that "[t]he respondent experienced few problems." Id. Accordingly, the BIA concluded that he had not "met the stringent standard of a clear probability of persecution." Id.
II.
When the BIA adopts the decision of the IJ and supplements the IJ's decision or emphasizes particular aspects of it, we review the IJ's decision as supplemented by the BIA as the final agency determination. *91 See Dong Gao v. BIA, 482 F.3d 122, 125-26 (2d Cir.2007). Administrative findings of fact in immigration cases are "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). Accordingly, a reviewing court "defer[s] to the factual findings of the BIA and the IJ if they are supported by substantial evidence." Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 333-34 (2d Cir.2006) (internal quotation marks omitted). Legal conclusions and the application of legal principles to undisputed facts are reviewed de novo. See Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007); Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir.2007).
To qualify for withholding of removal, an applicant must demonstrate that her "life or freedom would be threatened in [the] country [of removal]" on the basis of one of five statutory grounds, "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A); see also 8 C.F.R. § 208.16(b); Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 339 (2d Cir.2006). Where the applicant establishes that she has "suffered past persecution" on the basis of one such statutory ground, eligibility for withholding of removal is presumed, subject to rebuttal. 8 C.F.R. § 208.16(b)(1); Serafimovich v. Ashcroft, 456 F.3d 81, 85 (2d Cir.2006). If the applicant did not suffer past persecution, or if the fear of future threat to life or freedom is unrelated to the past persecution that she suffered, the applicant must establish "that it is more likely than not" that "she would be persecuted" in the future on account of a protected ground. 8 C.F.R. § 208.16(b)(2); Ivanishvili, 433 F.3d at 339. Such a showing does not require "evidence that [the applicant] would be singled out individually for such persecution" if
(i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or her life or freedom would be threatened upon return to that country.
8 C.F.R. § 208.16(b)(2).
Neither the IJ nor the BIA appears to have considered Mufied's claim that there is a pattern or practice of persecution of Christians in Indonesia.[2] The IJ clearly based her decision on Mufied's failure to establish that he would be singled out for persecution. While she did consider the country conditions as described in the background materials, she did so only to inquire whether they would "lead to a finding that it is more likely than not that this particular person will be persecuted." IJ Decision at 6 (emphasis added). We decline the government's invitation to assume that the IJ made findings on the existence of a pattern or practice sub silentio merely because she considered evidence relevant to that question for another purpose. Nor did the BIA supplement the IJ's decision in this regard. Indeed, it also appeared to base its denial of Mufied's appeal on its finding that he had personally "experienced few problems."
Ordinarily, when a disputed issue "requires determining the facts and deciding whether the facts as found fall within a statutory term," we apply what the Supreme Court has called the "ordinary remand *92 rule." Gonzales v. Thomas, 547 U.S. 183, 186-87, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (internal quotation marks omitted). "A court of appeals is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry." INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (internal quotation marks omitted). Accordingly, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Id. (internal quotation marks omitted). Such circumstances may be present when "the BIA [has] decided the scope of the statutory term in a fact context sufficiently analogous to [that] presented [in the petition for review] that we can rule . . . with assured confidence" on the issue. Ucelo-Gomez v. Gonzales, 464 F.3d 163, 170 (2d Cir.2006).
Arguably, the BIA's opinion in In re A-M-, 23 I. & N. Dec. 737 (B.I.A.2005), could provide us with a basis to resolve this petition. In that case, the BIA could "not find, . . . on the record before [it], that the threat of harm to Chinese Christians in Indonesia by the Government, or by forces that the Government is unable or unwilling to control, is so systemic or pervasive as to amount to a pattern or practice of persecution." Id. at 741. In unpublished orders, we have relied on this decision to deny petitions for review brought by other Chinese Christians from Indonesia. See, e.g., Harry v. Gonzales, No. 06-4850-ag, 2007 WL 2541434 (2d Cir. Sept.4, 2007).
In this case, however, we decline to address Mufied's pattern or practice claim in the first instance for several reasons. First, the factual issue considered by the BIA in In re A-M(i.e., whether Chinese Christians are persecuted) may be slightly different from that presented by this case (whether Christians of other ethnicities are persecuted), and Mufied relies on more recent reports and evidence. See In re A-M-, 23 I. & N. Dec. at 741 (discussing the analysis in a 2002 report by the State Department of "instances of discrimination and harassment against ethnic Chinese" (internal quotation marks omitted)). Because the BIA did not address Mufied's claim, we cannot know whether, even assuming Manadois Christians are treated similarly to Chinese Christians, it would view his evidence as sufficient to establish a relevant, material change in conditions in Indonesia. This task is especially difficult in light of our uncertainty regarding the parameters of the relevant standard.
Second the BIA's analysis in In re A-M- does not provide us sufficient guidance for how to evaluate a pattern or practice claim. The BIA rejected the claim in that case because it could not find that the alleged persecution was "so systemic or pervasive as to amount to a pattern or practice of persecution." Id. at 741. It then cited an opinion by the Court of Appeals for the Third Circuit for the proposition that "`pattern or practice' means persecution of a group that is `systemic, pervasive, or organized.'" Id. (quoting Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (internal quotation marks omitted)). We afford "substantial deference" to the BIA's interpretations of its own regulations, Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006), and this standard, which has been adopted by several other courts of appeals,[3] appears to be *93 a reasonable one. Yet while the BIA's bare articulation of the standard is "not unhelpful, . . . it is general and its application does not reliably control particular instances." See Ucelo-Gomez, 464 F.3d at 171 (explaining that when the BIA's interpretation of a certain statutory term, here "particular social group," is general, it can lead to a "wellspring of differing . . . interpretations by different courts of appeals"). Without further elaboration, we are unsure how systemic, pervasive, or organized persecution must be before the Board would recognize it as a pattern or practice. Cf. SEC v. Chenery Corp., 67 S.Ct. 1575, 332 U.S. 194, 196-97, 91 L.Ed. 1995 (1947) (noting that a court cannot "be expected to chisel that which must be precise from what the agency has left vague and indecisive"). Indeed, we are unsure even as to what indices the Board had in mind to guide us in assessing whether persecution is systemic, pervasive, or organized at all.
Third, the nature of the claim at issue makes this case "an especially attractive candidate for remand." Yuanliang Liu v. U.S. Dep't of Justice, 455 F.3d 106, 116 (2d Cir.2006). The potential costs of a wrong decision on a pattern or practice claim are considerable because "once the court finds that a group was subject to a pattern or practice of persecution, every member of the group is eligible for [relief]." Ahmed v. Gonzales, 467 F.3d 669, 675 (7th Cir. 2006). The granting of a single claim could bring on "an avalanche of asylum-seekers." Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir.2005). Yet the consequences of an erroneous denial of a pattern or practice claim are obviously grave as well; such a decision would foreclose the possibility of relief to anyone in a targeted group who is unable to produce proof that she would be singled out for mistreatment. As we have previously noted,
[w]here so much can be lost and especially in an area of law in which, even in the ordinary case, a lot is at stake it is imperative that claims be adjudicated in a fair and reasoned way. Standardless and ad hoc decisionmaking by federal courts or by individual immigration judges is especially to be avoided with respect to [such issues].
Yuanliang Liu, 455 F.3d at 117 (internal citation omitted).
For these reasons, we conclude that the better course is for us to remand this petition to the BIA rather than attempt to adjudicate Mufied's claim ourselves. See Ucelo-Gomez, 464 F.3d at 172 (explaining that a general definition of a statutory term "is a start, but insufficient to meet the purposes of appellate review"); see also Yuanliang Liu, 455 F.3d at 116 (concluding, "as a matter of discretion, that it is prudent and useful for us to remand the issue" at hand, regardless of whether such a remand would be "required by elementary principles of administrative law" (emphasis omitted)). We are hopeful that the Board will take this opportunity to elaborate upon the "systemic, pervasive, or organized" standard it has adopted and provide sufficient detail to guide both immigration judges and courts of appeals as they apply it to new factual contexts.
III.
For the foregoing reasons, we GRANT the petition for review, VACATE the BIA's order, *94 and REMAND to the BIA for proceedings consistent with this opinion.
NOTES
[*] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.
[1] Mufied also applied for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. The IJ denied this relief and Mufied failed to appeal this denial to the BIA. He concedes that we may not review this issue.
[2] The IJ assumed, arguendo, that Mufied was a Christian.
[3] In addition to the Third Circuit, this standard has been adopted by the Seventh Circuit, see Ahmed v. Gonzales, 467 F.3d 669, 675 (7th Cir.2006) ("[A petitioner] must show a systematic, pervasive, or organized effort to kill, imprison, or severely injure members of the protected group, and this effort must be perpetrated or tolerated by state actors." (internal quotation marks omitted)), the Eighth Circuit, see Wijono v. Gonzales, 439 F.3d 868, 874 (8th Cir.2006) ("To constitute a `pattern or practice,' the persecution of the group must be `systemic, pervasive, or organized.'") (quoting Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir.2004)), and the Tenth Circuit, see Woldemeskel v. INS, 257 F.3d 1185, 1191 (10th Cir.2001) (adopting a definition of "pattern or practice of persecution" as "`something on the order of systematic or pervasive persecution'") (quoting Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir.1995)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1145993/ | 52 Cal. 2d 154 (1959)
ROMEO A. RODRIGUEZ et al., Respondents,
v.
J. P. BARNETT, Appellant.
L. A. No. 25336.
Supreme Court of California. In Bank.
May 19, 1959.
Adelman & Schwartz and Milton M. Adelman for Appellant.
Wadsworth, Fraser & McClung and Charles E. McClung for Respondents.
SHENK, J.
The defendant [fn. 1] appeals from a judgment in favor of the plaintiffs for $1,500 and from an order denying his motion for new trial. This order is not appealable. The appeal was dismissed from the bench with an admonition from the Chief Justice to counsel and to members of the bar generally to cease appealing from such an obviously nonappealable order.
The $1,500 represents the deposit paid by the plaintiffs as purchasers pursuant to a written agreement and deposit receipt *157 executed by the parties covering the purchase of certain real property for subdivision purposes located in San Bernardino County. The plaintiffs contend that this agreement was rescinded and that the deposit should be returned to them. The defendant contends that the agreement provides that the $1,500 should be retained by him, in the event the plaintiffs did not complete the purchase, as consideration for the execution of the agreement; that the $1,500 was paid by the plaintiffs as consideration for the option given them in the agreement allowing them to withdraw if they could not obtain approval of a subdivision map which was agreeable to them, and that the notice of rescission does not comply with the requirements of section 1691 of the Civil Code. He alleges that if the amount of damages suffered by him as a result of the plaintiffs' withdrawal from the agreement was not limited to $1,500 by the express terms of the agreement, his actual damages would be $15,000.
The agreement was executed by the parties on March 16, 1956. It provides in pertinent part that the $1,500 was paid by the plaintiffs and received by the defendant "as deposit on the purchase" of the property therein described. It recites the bases upon which the total purchase price would be determined [fn. 2] and specifically states "It being understood that the ... final subdivision map as approved by the necessary governmental bodies, shall be subject to the approval of the purchasers herein. ..." The agreement required that the plaintiffs furnish for the defendant's approval documentary evidence of seven specific items, namely: 1, approval of the subdivision by the necessary government agencies; 2, construction loan commitments; 3, permanent financing; 4, Veterans' Administration and F.H.A. approval of site; 5, acceptable financing; 6, improvement bond; and 7, recordation of the approved subdivision map. It there states: "All above items subject to approval of buyers, this agreement is contingent upon their approval." The next succeeding paragraph reads: "It is further understood that the purchasers herein shall have six months from date to comply with the above demand of the seller to furnish said items listed in the preceding paragraph, otherwise, at the option of the seller, the monies deposited herewith shall be forfeited and retained by the seller *158 as consideration for executing this agreement." At the conclusion of the agreement it was provided as follows:
"Should purchasers herein fail to pay the balance of said purchase price or complete said purchase as herein provided, the sum paid hereon may, at the option of the seller, be retained as consideration for the execution of this agreement."
"It is understood and agreed that this agreement contains the entire understanding between purchasers and seller, that all representations not set out herein are expressly waived by the purchasers."
"We agree to purchase the above described property on the terms and conditions herein stated."
On July 13, 1956, the plaintiffs served on the defendant the following notice of rescission:
"You are hereby notified that R. A. Rodriguez and Fred J. LaVigne hereby rescind the agreement of March 16, 1956, executed by the undersigned as Purchasers and yourself as Seller, on the following grounds:"
"1. That the subdivision map as proposed by the City of Riverside, California, is unsatisfactory to the undersigned and the undersigned despite diligent efforts have been unable to obtain approval by proper governmental authorities of a subdivision map which is workable and economically feasible."
"2. That the agreement of March 16, 1956, is too indefinite and uncertain to admit of enforcement or to constitute a binding contract."
"3. That, in any event, you have failed to comply with the provisions of the agreement of March 16, 1956, and have abandoned the same."
"4. That the agreement is impossible to perform because of the failure of the City of Riverside, California, to approve the subdivision map."
"You are further notified that the condition and contingency upon which the agreement of March 16, 1956, is based, to wit, the approval by the undersigned of the subdivision map for the real property which is the subject of the agreement, has failed to occur. By reason of the foregoing, demand is hereby made upon you for the return of the sum of $1,500.00 deposited with you on March 16, 1956, by the undersigned."
Upon the refusal of the defendant to return the $1,500 the plaintiffs filed a complaint in the municipal court, framing the complaint on the common count, for money had and received. The defendant cross-complained, alleging that the plaintiffs had refused to comply with all of the terms of the agreement, *159 and sought to recover damages in the sum of $15,000. The action was thereupon transferred to the superior court. The answer to the cross-complaint incorporated by reference the agreement and deposit receipt. It set up various defenses, including impossibility of performance, failure of a condition precedent, and lack of mutuality, and alleged that notice of rescission had been served within a reasonable time after the ascertainment of the facts. The parties stipulated that the agreement and notice of rescission could be received in evidence, that the agreement had been executed and that the notice of rescission had been served.
The trial court found (finding XII) that it is true that the defendant was indebted to the plaintiffs in the sum of $1,500 for money had and received and that no part of this sum had been paid. It also construed the agreement, without regard to any of the parol evidence introduced at the trial, and specifically found that the agreement provided the obligation of the purchasers to complete the purchase was conditional upon their approval of the final subdivision map as approved by the City of Riverside; that their refusal to approve the subdivision map proposed by the city was reasonable; that upon the failure to approve by the city the plaintiffs were under no duty to proceed with the purchase according to the provisions of the written agreement; that within a reasonable time after the ascertainment of these facts the plaintiffs served a notice of rescission upon the defendant and a notice that they had not been able to secure the approval of the city of the subdivision map and a demand for the return of the $1,500; that it is not true that the plaintiffs had failed or refused to perform any of the terms of the written agreement. Judgment was entered for the plaintiffs in the sum of $1,500 plus interest and costs, and that the defendant should take nothing by reason of his cross-complaint. The appeal is on the judgment roll.
The defendant urges that the trial court construed the agreement in direct contravention to its plain meaning when it found and concluded that by the terms of the agreement the plaintiffs are entitled to a return of their deposit. He specifically relies on the provisions of the agreement which read: "Should purchasers herein fail to pay the balance of said purchase price or complete said purchase as herein provided, the sum paid hereon may, at the option of the seller, be retained as consideration for the execution of this agreement." and "It is further understood that the purchasers herein shall *160 have six months from date to comply with the above demand of the seller to furnish said items listed ... otherwise, at the option of the seller, the monies deposited herewith shall be forfeited and retained by the seller as consideration for executing this agreement."
[1] It is well-settled law that in construing a contract the meaning of the words used is to be determined from a reading of the entire contract. (Sunset Securities Co. v. Coward McCann, Inc., 47 Cal. 2d 907 [306 P.2d 777].) [2] If a contract is capable of two constructions courts are bound to give such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if that can be done without violating the intention of the parties. (Civ. Code, 1643, 3541; Robbins v. Pacific Eastern Corp., 8 Cal. 2d 241 [65 P.2d 42].)
[3] From an examination of this instrument as a whole, it clearly appears that the plaintiffs were given the right to withdraw from further performance if they found themselves dissatisfied with the subdivision map proposed by the governmental authorities. They were not given a right to withdraw at their own unrestricted pleasure. There is nothing in the retention provisions which indicates that the right to retain the deposit was given to the defendant as consideration for allowing the condition of disapproval on plaintiffs' performance or as a payment for an option to withdraw. This agreement was clearly a bilateral one, the consideration for which was the mutual promises of the parties. The $1,500 constituted a part performance of the plaintiffs' obligation under the agreement. The mere recitation that the right of the seller to retain this deposit was in consideration for executing this agreement, is insufficient to establish meaningful separate consideration.
[4] The agreement was neither illusory nor lacking in mutuality of obligation merely because the parties thereto inserted a provision making the purchasers' performance dependent on their satisfaction with the subdivision map to be obtained by them. [5] Contracts making the duty of performance of one of the parties conditional upon his "satisfaction" are upheld on the theory that the expression of dissatisfaction must be genuine and not arbitrary, and that an objective criterion,--good faith--controls the exercise of the right to determine satisfaction. (Mattei v. Hooper, 51 Cal. 2d 119 [330 P.2d 625]; see Williston, Contracts (3d ed.), 44, 105, 675a.) "A promise conditional upon the promisor's satisfaction *161 is not illusory since it means more than that the validity of the performance is to depend on the arbitrary choice of the promisor. His expression of dissatisfaction is not conclusive. That may show only that he has become dissatisfied with the contract; he must be dissatisfied with the performance, as a performance of the contract, and his dissatisfaction must be genuine." (Rest., Contracts (1932), 265, comment a.) The finding and conclusion of law that the plaintiffs' refusal to approve the subdivision map was reasonable support the determination that the objective criterion of good faith was present.
[6] The court found that the plaintiffs had not refused or failed to perform any of the terms of the written agreement. The finding is supported by the record. The plaintiffs' withdrawal was made pursuant to the express provisions of the agreement. It was therefore definitely implied in the agreement that the defendant consented in advance to such withdrawal. [7] Rescission extinguishes a contract (Civ. Code, 1688) and requires each party to return whatever he has received as consideration thereunder (Civ. Code, 1691). As a matter of law the defendant would therefore be required to return the $1,500 deposit to the plaintiffs upon rescission.
The defendant urges that the notice of rescission was not given within a reasonable time as required by section 1691 of the Civil Code. [fn. 3] There was an express finding that the plaintiffs served on the defendant a notice of rescission within a reasonable time after the ascertainment of the facts. [8] This appeal is on the judgment roll. No question therefore arises as to the sufficiency of the evidence to support this finding.
[9] The defendant argues that it was reversible error for the court not to make findings on his cross-complaint. The cross-complaint pleaded the terms of the contract and asked for damages for breach. The findings construing the contract obviously relate directly to the issues raised by the cross-complaint and the answer thereto, and are sufficient to support the conclusion of law that the defendant take nothing by his cross- complaint.
The court found that it was not true that the plaintiffs *162 failed or refused to perform any of the terms of the agreement. As there was no breach of contract it is not necessary to discuss the further contentions of the defendant with reference to the right of set-off or as to the effect of the retention provisions as liquidated damages.
The judgment is affirmed.
Gibson, C.J., Traynor, J., Schauer, J., Spence, J., McComb, J., and Peters, J., concurred.
"1. He must rescind promptly, upon discovering the facts which entitled him to rescind. ..."
NOTES
[fn. 1] 1. The parties will be referred to as plaintiffs and defendant.
[fn. 2] 2. $3,000 per usable net acre, plus an additional $400 per lot after subdivision; lots to be a minimum of 6,000 sq. ft. per lot or maximum of 9,000 sq. ft. per lot.
[fn. 3] 3. Civ. Code, 1691: "Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1587701/ | 752 F. Supp. 937 (1990)
Manuel CASTILLO-GRADIS, Petitioner,
v.
James TURNAGE, District Director, Immigration and Naturalization Service, Respondent.
Civ. No. 90-1423-K.
United States District Court, S.D. California.
December 19, 1990.
*938 David Rabin and Kristin White, El Centro Asylum Project, El Centro, Cal., for petitioner.
Samuel Bettwy, Sp. Asst. U.S. Atty., San Diego, Cal., for respondent.
MEMORANDUM DECISION
KEEP, District Judge.
FACTUAL BACKGROUND
Petitioner is a citizen of Nicaragua who entered the United States without inspection sometime in 1980. He came to the attention of the Immigration and Naturalization Service (INS) through the California Department of Corrections while serving a sentence for sale of cocaine. On April 2, 1990, after completing his sentence for the cocaine conviction, he was transferred to INS custody. Following a hearing before an immigration judge on April 6, 1990, he was ordered deported from the United States. Castillo chose not to appeal this order. Petitioner was then transferred to the INS detention facility at El Centro, California to await the execution of his deportation. He remains at this facility.
The processing of petitioner's deportation did not begin until approximately a month after the order of deportation was entered. On May 9, 1990, the INS office in San Diego requested authorization from INS Headquarters in Washington to execute the deportation order pursuant to the procedures of the Nicaraguan Review Program. Under this program, the Attorney General reviews all cases of Nicaraguans ordered deported to ensure that they do not qualify as refugees under the Refugee Act of 1980. Before a Nicaraguan is deported, the INS district holding the Nicaraguan must receive authorization from the Deputy Attorney General in Washington.
While the Deputy Attorney General reviewed petitioner's case, the INS office in San Diego made other preparations for petitioner's departure. It was not until October 5, 1990, however, that the INS district director in San Diego received telephonic notification from the Deputy Attorney General in Washington that it should proceed with petitioner's deportation. On October 9, the INS district director made reservations for petitioner to return to Nicaragua by commercial airline on Wednesday, October 24, 1990.
On October 10, 1990, the INS district director sent by facsimile to INS headquarters the details of petitioner's departure. Per an agreement with the Nicaraguan consulate, such information must be relayed to them 15 days prior to the actual date of departure.
Petitioner filed the instant Petition for Writ of Habeas Corpus with this court on October 16, 1990. Because of the prima *939 facie case made out by petitioner for relief, this court ordered an expedited briefing schedule and hearing on this matter.
DISCUSSION
This court has jurisdiction to review the terms of detention under which an alien is held following a deportation order pursuant to 8 U.S.C. § 1105a(a)(9) or 28 U.S.C. § 2241. See, e.g., Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1390 (10th Cir. 1981).
Petitioner brings this writ of habeas corpus on the grounds that his current detention is in violation of 8 U.S.C. § 1252(c). This statutory provision reads in pertinent part:
When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States.... If deportation has not been practicable, advisable or possible, or departure of the alien from the United States under the order of deportation has not been effected, within such six month period, the alien shall become subject to such further supervision and detention pending eventual deportation as is authorized in this section.[1]
A deportation order was entered against petitioner on April 6, 1990. Petitioner waived his right to appeal at that time; thus the order became final as of April 6. See 8 C.F.R. § 3.37. On October 6, 1990, the six month period within which petitioner's deportation was to be effected by the Attorney General under 1252(c) expired. Consequently, petitioner contends that he should now be released from custody until his deportation is to be executed.
The question presented by this case is whether and under what conditions the government may detain an alien beyond the six-month period allowed under 1252(c) pending the execution of his deportation.
The government first contends that its further detention of petitioner is justified under the statute because of the extenuating circumstances caused by the Nicaraguan Review Program. It suggests that the requirements of this program made petitioner's deportation "impracticable" or "impossible" within the six-month period.
While it is laudable that the government has chosen to review the cases of deportable Nicaraguans to screen for refugees, the court finds that this is not the sort of circumstance that the statutory exceptions to the six month period should encompass. The Attorney General should not be allowed to use the grounds of "impracticability" for programs and procedures that are fully within his control. If such were the case, the Attorney General could regularly hold deportable aliens beyond the six month period by creating procedures that complicate the review and execution of these deportations. This would undercut the very purpose of the six month time limit established by 1252(c). For "impractibility," "inadvisability" or "impossibility" to be used as a basis for holding an alien beyond the six month period, it must derive from a factor or circumstance outside the Attorney General's control.
Second, the government argues that the language of 1252(c) implies that Congress contemplated the possibility of detention beyond the six month period for reasons other than those explicitly mentioned in the subsection. In particular, it points to *940 the language that makes the alien "subject to such further supervision and detention pending eventual deportation as is authorized in this section" once the six-month period has expired. However, the details of such further detention are not discussed elsewhere in 8 U.S.C. § 1252.
On the basis of case law, the government argues that such further detention is justified when "unusual circumstances" are present. In Senter v. Colarelli, 145 F. Supp. 569 (E.D.Mo.1956), a district court held that 1252(c) "does not authorize detention of a deportable alien for more than six months after the order of deportation becomes final, except perhaps under unusual circumstances." Id. at 575. However, the only unusual circumstance referred to in that case, or ever relied on by other courts, is when the actions of the deportable alien are solely responsible for the delay. See, e.g., Dor v. District Director, 891 F.2d 997, 1002 (2d Cir.1989), United States ex rel. Cefalu v. Shaughnessy, 117 F. Supp. 473, 474 (S.D.N.Y.1954), aff'd, 209 F.2d 959 (2d Cir.1955). Thus, the "unusual circumstances" exception recognized by these cases is more appropriately construed as the "delay-caused-by-the-alien" exception. Since petitioner has had nothing to do with the delay of his deportation in the instant matter, such an exception does not apply here.
Assuming, without holding, that a different sort of unusual circumstance may justify further detention, such an exception should apply to the rare case, not an entire class of aliens. Accepting the argument that the administrative burdens of ensuring that Nicaraguans do not qualify as refugees would allow the INS to detain all deportable Nicaraguans for longer than six months. Such an interpretation would severely undercut the plain language of the statute.
Third, relying on Shrode v. Rowoldt, 213 F.2d 810 (8th Cir.1954), the government argues that detention beyond the six month period may be permitted if provided for in the regulations promulgated under the authority of 8 U.S.C. § 1252. Id. at 813. In particular, the government points to 8 C.F.R. § 242.2(d), which provides in pertinent part:
After a deportation order becomes administratively final, or if recourse to the Immigration Judge is no longer available ..., the respondent may appeal directly to the Board from a [custody status or bond] determination by [the INS District Director] except that no appeal shall be allowed when the Service notifies the alien that it is ready to execute the order of deportation and takes him into custody for that purpose.
The government argues that the latter portion of this provision implies that when the INS is on the verge of executing a deportation, it may retain custody of the deportee even though the six-month period under 1252(c) has expired.
This is an implausible reading of this regulation since its clear purpose is to specify the constraints on appealing a custody or bond determination, not to identify the bases on which detention may be continued beyond the six-month period established by 1252(c).[2] Moreover, even if this regulation could be construed to apply to 1252(c), it is clear that retaining perpetual custody of the alien is not necessary to effect a deportation. The INS does not need custody over an alien until it is truly "ready" to execute such deportation.
Fourth, the government asserts that it has been the longstanding, unchallenged practice of the INS to continue detention of an alien beyond the six month period so long as "the alien is completely ready for deportation and scheduled deportation is imminent." See INS Deportation Officer's Handbook, 44. In support of this position, the government relies on United States ex rel. Lam Tuk Man v. Esperdy, 280 F. Supp. 303 (S.D.N.Y.1967). In that case, the district court denied an alien's challenge to his *941 detention under 1252(c) but granted the petitioner's release on bail. Id. at 304. The court justified its grant of bail in part on the grounds that "[t]he final determination of the [petitioner]'s case does not appear to be imminent." Id. at 304-05.
The decision of Lam Tuk Man, however, is not applicable to the instant case. In that case, the court took into account the imminence of a final determination of the alien's case for the purpose of determining whether the alien should have been released on bail, not whether he should be granted relief under 1252(c). Id. The decision as to whether or not to release an alien on bail pending the adjudication of his case is discretionary. See 8 C.F.R. § 242.2(d). Here, the issue is not whether petitioner should be released on bail, but whether the government may hold someone beyond the statutorily designated six-month period. By the language of the statute itself, such a determination is clearly not a discretionary one.
Further, the fact that it has been the longstanding, unchallenged practice of the INS to detain people beyond the six month period so long as their deportation is imminent does not validate such a procedure. Procedures, particularly when they implicate a person's freedom, must be solidly grounded in law. The government has not shown that this one is.
Finally, the government contends that a plain reading of 8 U.S.C. section 1252(c) does not apply to deportations that are "imminent at an ascertainable date." In support of this interpretation, the government points to the term "eventual" used in the statute and contrasts this term with the term "imminent." It contends that an eventual deportation is one that will happen in the unspecified future; an imminent one is one that is ready to take place. The government's position is that use of the term "eventual" means that Congress intended to treat differently those aliens such as petitioner whose deportation is "imminent" from those aliens whose deportation is only "eventual."
The court rejects this argument. To infer that Congress would permit detention beyond the six-month period from its use of one word contradicts the central purpose of this statutory provision. Had Congress wished to make an exception to the six-month period for those aliens whose deportation is imminent, it could have done so plainly.
In sum, the court finds that the plain meaning of 8 U.S.C. § 1252(c) is that, absent a showing of impractibility, inadvisability, impossibility, or delay caused by the alien's own actions, the Attorney General has six months to detain an alien in order to execute his deportation. Once the six months has expired, the alien must be released and put under supervision until the INS is ready to execute his deportation. Such a holding is consistent with existing case law on this issue, see Shrode v. Rowoldt, 213 F.2d 810, 813-14 (8th Cir.1954), United States ex rel. Blankenstein v. Shaughnessy, 117 F. Supp. 699, 704 (S.D.N. Y.1953), and United States ex rel. Lee Ah Youw et al. v. Shaughnessy, 102 F. Supp. 799, 801-02 (S.D.N.Y.1952), as well as faithful to the congressional intent behind this statutory subsection. See H.R.Rep. No. 1365, 98th Cong., reprinted in 1952 U.S.Code Cong. & Admin.News 1653, 1713 ("[A]fter entry of a final order of deportation, the Attorney General shall have a period of 6 months from the date of such order within which to effect the deportation of the alien, during which period the alien may be detained.... If deportation has not been practicable within such period, the alien becomes subject to further supervision under such regulations as may be prescribed by the Attorney General.") Moreover, the Ninth Circuit has recently expressed a similar view, albeit in dicta. Flores v. Meese, 906 F.2d 396, 398 (9th Cir.1990) ("After six months has elapsed, the Attorney General must release the deportable alien but may thereafter supervise him.")
The reasoning behind this strict interpretation of the six-month period was originally put forth in the case of Lee Ah Youw, 102 F.Supp. at 800. As the court explained, the six-month statutory limit was intended to supplant the previous regime in *942 which the Attorney General had the discretionary power to hold an alien indefinitely pending the "final disposal of the case." Id. To construe the language of the new statute to permit detention beyond the six month period, the court reasoned, would nullify its very purpose. Id. at 802.
Therefore, on the basis of a plain reading of 8 U.S.C. § 1252(c) and its accompanying subsections, the court orders that petitioner be released and placed under supervision until the execution of his deportation.
IT IS SO ORDERED.
NOTES
[1] The nature of the supervision that may be exercised over an alien once the six month period has expired is specified in 8 U.S.C. § 1252(d). The INS may require the alien
"(1) to appear from time to time before an immigration officer for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such reasonable restrictions on his conduct or his activities as are prescribed by the Attorney General in his case."
See 8 U.S.C. § 1252(d).
[2] In fact, 8 C.F.R. § 242.2(f) appears to be more directly on point and suggests just the opposite of what the government argues. It reads:
(f) supervision. Until an alien against whom a final order of deportation has been outstanding for more than six months is deported, he shall be subject to supervision.... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1625212/ | 522 So. 2d 219 (1988)
Linda GRANTHAM
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al.
No. 57500.
Supreme Court of Mississippi.
March 2, 1988.
*220 Alvin M. Binder and Lisa B. Milner, Binder, Milner & Milner, Jackson, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Robert L. Gibbs, Asst. Atty. Gen., Jackson, for appellees.
Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.
ROBERTSON, Justice, for the Court:
I.
Today's appeal arises from a tragedy that touches the heart and sears the soul of our parole system, yet we confront the reality that the system may not be sued. We know that possibility of parole is an indispensable part of a correctional policy with any hope of doing more good than harm. To the prisoner possibility of parole is hope itself. As well, we know the painful lesson of recidivism: that among those paroled it is a statistical certainty that some will strike again, if only we could know which ones.
Our state corrections and parole officials function within the tension of these polar realities. Their jobs in part are guided by statutes. Our law has long afforded substantial immunities to these officials in the face of plaintiffs' pleadings, and with good reason. Only where they act with gross disregard for the safety of society or in clear violation of statutory directive may they be charged to answer at the bar of civil justice.
II.
Clem V. Jimpson served twelve years and three months of a life sentence for murdering a convenience store clerk. On January 9, 1985, he was paroled. Approximately five weeks later, on February 12, 1985, Linda Grantham was returning from lunch to her job as Assistant Vice President of Deposit Guaranty National Bank in Jackson. Jimpson approached Grantham in the parking lot of the Raymond-Terry Road Branch Bank and attacked, assaulted and attempted to kidnap Grantham. When Grantham screamed for help, Jimpson shot her. Grantham is now permanently paralyzed from the neck down.
*221 Grantham has an action in tort against Jimpson but one of little worth as he no doubt is impecunious.
On March 25, 1985, Grantham commenced the present civil action by filing her complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi. That complaint, which has since been amended, names as Defendants the Mississippi Department of Corrections; the Mississippi Parole Board; and, in their individual and official capacities, the members of the Parole Board, B.C. Ruth, Ollie Sykes, Joann Kaelin, James R. Figgs, and Paul Carter; and Morris Thigpen, individually and in his former official capacity as Commissioner of the Mississippi Department of Corrections. Grantham charges that by paroling and releasing Jimpson the Defendants acted arbitrarily, negligently and with reckless disregard for the safety of society in general, and herself in particular.
Each Defendant filed a motion to dismiss, urging that the complaint fails to state a claim upon which relief may be granted, Rule 12(b)(6), Miss.R.Civ.P., and asserting a variety of immunities to suit. Discovery has been held in abeyance.
On July 31, 1985, the Circuit Court filed an opinion and entered an order dismissing the complaint on immunity grounds. Grantham was allowed to amend her complaint. On June 13, 1986, the Circuit Court finally dismissed the amended complaint, again on immunity grounds.
Grantham presents the instant appeal.
III.
Our procedural posture is important. All Defendants have been held immune to suit. Grantham's amended complaint has been finally dismissed without benefit of trial or even pretrial discovery.
When a complaint is tested via a motion to dismiss for failure to state a claim, its sufficiency in substantial part is determined by reference to Rules 8(a) and (e), Miss.R.Civ.P. Rule 8(a)(1) by and large pretermits any notion of fact pleading and requires only that in her complaint a plaintiff provide "a short and plain statement of the claim showing that the pleader is entitled to relief, ... ."
Rule 8(e) then provides
(1) each averment of a plea shall be simple, concise and direct. No technical forms of pleading or motions are required.
We have by reason of these rules held repeatedly that a motion to dismiss made under Rule 12(b)(6) should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Lester Engineering Co., Inc. v. Richland Water & Sewer District, 504 So. 2d 1185, 1187 (Miss. 1987); Canton Farm Equipment, Inc. v. Richardson, 501 So. 2d 1098, 1103 (Miss. 1987); Bias v. Bias, 493 So. 2d 342, 343-44 (Miss. 1986); Busching v. Griffin, 465 So. 2d 1037, 1039 (Miss. 1985); and Stanton & Associates, Inc. v. Bryant Construction Co., 464 So. 2d 499, 505 (Miss. 1985).
Our ground rules well in mind, we turn to Grantham's Amended Complaint where we find that she has alleged that:
(1) Defendants arbitrarily, negligently, and with reckless disregard for the safety of society in general, and Grantham in particular, paroled and released Jimpson;
(2) Jimpson and seventy-two other inmates were approved for parole and release on the same day;
(3) Defendants approved Jimpson's release without reviewing all pertinent information as required by Miss. Code Ann. § 47-7-17 (1972), a statute Grantham believes mandates that the Parole Board secure and consider all pertinent information regarding each offender being considered for parole "including the circumstances of his offense, his previous social history and criminal record, his conduct, employment and attitude while in the custody of the Department, and the reports of such physical and mental examinations as have been made";
(4) The Parole Board and its members had a ministerial duty to consider the information set forth in Section 47-7-17 and to *222 make arrangements for Jimpson's proper employment or for his maintenance and care, and that they failed to perform these duties;
(5) The Parole Board and its members were grossly negligent in that they devoted less than five minutes to consideration of Jimpson's parole;
(6) The Parole Board and its members' decision to parole Jimpson was entirely outside the scope of their authority as they neglected or intentionally failed to follow the statute;
(7) Defendant Morris L. Thigpen and the Mississippi Department of Corrections negligently or intentionally failed to provide the Parole Board with information, which by statute, it should have considered before releasing Jimpson;
(8) The Parole Board and its members intentionally or negligently failed to ask for the same;
(9) All Defendants, collectively, acted negligently, in excess of their legal authority, and in complete disregard for the safety of society in general, and Plaintiff in particular, by releasing Jimpson.
Considering separately Grantham's claim against each Defendant (or group of Defendants), can it be said with reasonable certainty that there is no set of facts consistent with her allegations upon which she would be entitled to any relief against any Defendant?
IV.
The Parole Board and the Department of Corrections
We consider first Grantham's claims against the Parole Board and the Department of Corrections as legal creatures and entities of the state of Mississippi. The Circuit Court dismissed these claims on sovereign immunity grounds.
The judicially created doctrine of sovereign immunity was abolished by this Court in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982). The Court set July 1, 1984, as the effective date for recognition of state tort liability. In 1984, the legislature enacted a statute waiving the sovereign immunity of the state and its political subdivisions. See Laws, 1984, ch. 495, §§ 1, et seq., pp. 640-66. However, the act also provided that it would:
apply only to claims that accrue on or after July 1, 1985, as to the state, and on or after October 1, 1985, as to political subdivisions. Claims that accrue prior to July 1, 1985, as to the state or, prior to October 1, 1985, as to political subdivisions, shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So. 2d 1046, and by the statutory law governing sovereign immunity existing prior to July 1, 1985.
Laws, 1984, ch. 495, § 4, p. 642. This act is codified at Miss. Code Ann. § 11-46-1, et seq.[1] Jimpson was paroled January 9, 1985. The shooting, upon which the claims in this case are based, occurred on February 12, 1985. Therefore, the sovereign immunity assertions of the Parole Board and the Mississippi Department of Corrections are controlled by pre-Pruett case law and statutory law in effect prior to July 1, 1985.
Pre-Pruett case law immunized the state and its subdivisions and agencies from suit unless otherwise directed by statute, and where such a statute exists it is the measure of the power to sue such board or agency. Jagnandan v. Mississippi State University, 373 So. 2d 252, 253 (Miss. 1979); Horne v. State Building Comm'n., 233 Miss. 810, 103 So. 2d 373, 380 (1958); Smith v. Doehler Metal Furniture, 195 Miss. 538, 15 So. 2d 421 (1943); and Mississippi Centennial Exposition Co. v. Luderbach, 123 Miss. 828, 86 So. 517, 519 (1920). The Parole Board and the Department of Corrections are state agencies. They are creatures of law charged to perform state functions. *223 As such, each is immune from suit for a January/February 1985 tort arising from performance of governmental functions such as those here charged, except as may be allowed by statute.
The statutes creating and governing the Parole Board and probation and parole decisions are found at Miss. Code Ann. § 47-7-1, et seq. Provisions concerning immunity or waiver of that immunity are not, nor were they prior to July 1, 1985, contained anywhere in those statutes. The Parole Board is, therefore, immune from this suit.[2]
The statutes creating and governing the Mississippi Department of Corrections are found at Miss. Code Ann. § 47-5-1, et seq. Section 47-5-75 presently provides, and prior to July 1, 1985, did provide, that if the Board of Corrections, in its discretion, chooses to procure liability insurance, the Board, the Commissioner and regular employees of the correctional system may be sued up to the insurance limits. Grantham did not allege in her Amended Complaint or at any time raise the possibility that the Board had, in fact, acquired any such liability insurance.
The Department of Corrections is under the policy direction of the Board of Corrections (Miss. Code Ann. § 47-5-8(1) [Supp. 1987]). Quite arguably, the insurance provisions and concomitant partial waiver of immunity found in Section 47-5-75 apply to the Department of Corrections. All of this is irrelevant, however, unless the Department of Corrections had some duty to the public and to Grantham, concerning Jimpson's parole, which it failed to perform.
Grantham's Amended Complaint alleges generally that in regard to Jimpson's parole and release, all defendants acted arbitrarily, negligently and with reckless disregard for the safety of society in general, and of Grantham in particular. Grantham charges that the Department of Corrections, specifically, negligently or intentionally failed to provide the Parole Board with information which, she says, the Parole Board should have considered before releasing Jimpson.
Section 47-5-10 sets out the general powers and duties of the Department of Corrections. No duty to provide the Parole Board with information may be found. Furthermore, Section 47-7-5 vests in the Parole Board exclusive authority and responsibility for the granting of paroles and for revocation of the same. The Department of Corrections could have no duty in the premises because the Department has no control over parole decisions and is not statutorily required to provide information to the Board.
The judgment of the Circuit Court dismissing the complaint against the Parole Board and the Department of Corrections is affirmed.
V.
Commissioner Thigpen and Members of the Parole Board
Law, like man's other inventions intended to make our society better, is infected with contradiction and ambiguity, as all judges are painfully aware. Legitimate interests cry for vindication such that none could deny except that equally worthy interests are trampled in the process. The last thing our poorly paid and heavily burdened correctional and parole officials need is more lawsuits. Yet the system they administer will inevitably produce great injury.
Judge Learned Hand once agonized over the tensions inherent in judicial resolution of such contradictory forces.
It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he *224 may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.
Gregorie v. Biddle, 177 F.2d 579, 581 (2d Cir.1949).
The last two decades have seen considerable litigation regarding our prison officials' immunity vel non when faced with civil actions and claims of damage caused by acts or omissions within the performance of their official responsibilities. Bogard v. Cook, 586 F.2d 399, 412-15 (5th Cir.1978) correctly saw that Mississippi law afforded such officials a qualified immunity to suit.
We addressed the subject in Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982), wherein this Court stated:
... It is our opinion that abolishment of sovereign immunity does not apply to legislative, judicial and executive acts by individuals acting in their official capacity, or to similar situations of individuals acting in similar capacities in local governments, either county or municipal.
Pruett, 421 So.2d at 1052. Pruett, therefore, left intact the immunity granted to the legislature, judiciary and executive office and to "those public officers who are vested with discretionary authority." Pruett, 421 So.2d at 1052.
The matter of qualified official immunity was before the Court in Poyner v. Gilmore, 171 Miss. 859, 158 So. 922 (1935). In distinguishing between ministerial duties, which the officer neglects at his peril, and qualifiedly protected discretionary public functions, the Poyner Court stated:
"`The most important criterion, perhaps, is that (if) the duty is one which has been positively imposed by law and its performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer's judgment or discretion,' the act and discharge thereof is ministerial."
Poyner, 171 Miss. at 865, 158 So. at 923. See also Hudson v. Rausa, 462 So. 2d 689, 694 (Miss. 1984).
Davis v. Little, 362 So. 2d 642 (Miss. 1978), was a tort action in which plaintiff charged a supervisor with negligence while driving a county owned pickup truck. Davis further explained the underlying rationale of qualified public official immunity.
The immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but rather to do so only collaterally, by protecting the public official in the performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction the official is immune only where that which he does in the performance of his lawful duties requires "personal *225 deliberation, decision and judgment." See Prosser, Law of Torts, § 132 (4th ed. 1971).
Davis, 362 So.2d at 643; see also Hudson, 462 So.2d at 694-95.
Hudson summed the matter up.
The public officials of this state, elected or appointed, enjoy a qualified immunity to a civil action for damages when acting in the performance of official functions discretionary in nature. They lose that immunity only when they substantially exceed their authority and commit wrongs under color of office. They have no immunity where they commit wilful wrongs or malicious acts. [citations omitted]
Hudson, 462 So.2d at 696.
Our law thus directs that a governmental official has no immunity to a civil action for damages if his breach of a legal duty causes injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort. Beyond that, a government official has no immunity when sued upon a tort that has nothing to do with his official position or decision-making function and has been committed outside the course and scope of his office.
A. Commissioner Thigpen
The Commissioner of Corrections is vested with substantial discretionary authority. Cf. Morgan v. Cook, 236 So. 2d 749, 750 (Miss. 1970) (referring to superintendent under former administration structure); Bogard v. Cook, 586 F.2d 399, 412-13 (Miss. 1978) (same). The Commissioner has no authority, however, to grant or deny parole, nor does our law impose upon him any duty to recommend for or against parole.
The only duty imposed on the Commissioner of Corrections, as Commissioner of Corrections, relative to parole matters is a general one found in Miss. Code Ann. § 47-5-28(d) (Supp. 1987). That section provides that the Commissioner has the duty, "upon request, [to] provide the Parole Board with adequate staff and support resources necessary to conducting Parole Board business under the guidance of the administrative assistant for parole matters." Readily we see that this has nothing to do with Grantham's complaint.
Grantham argues that Miss. Code Ann. § 47-7-19 (Supp. 1987) imposes a duty on the commissioner to furnish information to the Parole Board. Section 47-7-19 provides:
It shall be the duty of all correctional system officials ... to furnish to the board such reports as the board shall require concerning the conduct and character of any offender in the department of corrections' custody and any other facts deemed by the board pertinent in determining whether such offender shall be paroled.
If this be all, Grantham's complaint doesn't even come close to stating a claim against former Commissioner Thigpen. Her only allegation is that he failed to provide information, any duty to furnish which is negated by her subsequent allegation that the Parole Board never requested any information or report regarding Jimpson. The notion that there might be some legally sufficient causal connection between Commissioner Thigpen's failure, if any, to provide information and Grantham's injuries seems tenuous at best.
In the end, we do not regard Section 47-7-19 as imposing upon the Commissioner a discretion-free informational duty. The statute seems directory, not mandatory. Affording Grantham's complaint the elasticity required in the present procedural context, we find nothing to suggest that she might be able to prove that former Commissioner Thigpen committed any intentional tort or acted substantially at variance with his authority. The Circuit Court's judgment dismissing Grantham's claim against Thigpen is affirmed.
B. Parole Board Members Ruth, Sykes, Kaelin, Figgs and Carter
The complaint against the five parole board members sued personally in their individual and official capacities presents another matter, for these are the people who in law and in fact set Jimpson free.
*226 The decisions whether one in custody should be granted parole is attended with broad discretion, Miss. Code Ann. § 47-7-17 (1972), as parole is more a matter of grace than of right. Williams v. State, 445 So. 2d 798, 813 (Miss. 1984); Davis v. State, 429 So. 2d 262, 263 (Miss. 1983). Indeed, exercise of that discretionary authority is one of the toughest judgment calls any state official may be called upon to make. On the one hand, the offer and somewhat regular grant of parole is an essential ingredient of any rational correctional policy. On the other hand, experience teaches that not even the most careful screening may eliminate all recidivism. In the best run system there will be some parolees who will commit new offenses while on parole.
Our task today is narrow and procedural. Looking to the amended complaint we find that Grantham has charged that the members of the Parole Board paroled Jimpson "with reckless disregard" for her safety. She charges that, prior to their parole decision, these board members did not review "all pertinent information," "the circumstances of Jimpson's offense [murder in the course of a robbery]," nor "his previous social history and criminal record."
Continuing, Grantham's amended complaint charges that these Defendants failed to consider the
twenty-two (22) years Jimpson had spent in prison; the five (5) armed robbery charges and a murder dropped after his conviction in December of 1972; and his previous escape from the State Penitentiary at Parchman... . The Defendants failed to inquire about Jimpson's conduct, employment and attitude while in the custody of the Department, and they failed to ascertain whether or not any physical or mental examinations had been made.
These actions, Grantham charges, were substantial departures from the duties imposed upon the members of the Parole Board by Section 47-7-17.
There are other charges alluded to at the outset, but which need not be here detailed. What is said above is enough. Grantham has charged that Defendants Ruth, Sykes, Kaelin, Figgs and Carter have been guilty of gross neglect of their duties under Section 47-7-17. Though we reject the notion that those duties be classed ministerial, Grantham's amended complaint seems sufficient to pierce the shield of these officials' qualified immunity to suit as outlined above. We certainly may not say with confidence that she can, consistent with her allegations, prove no set of facts which would entitle her to relief.
The judgment of the Circuit Court dismissing Grantham's amended complaint against Defendants Ruth, Sykes, Kaelin, Figgs and Carter is reversed and this case is remanded to the Circuit Court for further proceedings consistent with this opinion, as though the motion to dismiss had been denied. Breland v. Smith-Johnson, Inc., 501 So. 2d 389, 393 (Miss. 1987); Whitten v. Commercial Dispatch Publishing Company, Inc., 487 So. 2d 843, 846 (Miss. 1986); McCain v. Northwestern National Insurance Co., 484 So. 2d 1001, 1002 (Miss. 1986).
We intend that not the slightest hint be perceived how this case ought ultimately be decided. Certainly, we in no way intimate that Grantham ought recover, or, for that matter that her claim ought survive summary judgment. Suffice to say that many obstacles loom large before her, not the least of which is causation. See Martinez v. California, 444 U.S. 277, 285, 100 S. Ct. 553, 559, 62 L. Ed. 2d 481, 489 (1980). What and all we hold this day is that Grantham's amended complaint has, as to these five Defendants, stated a claim upon which relief may be granted.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur.
DAN M. LEE, P.J., concurs in part and dissents in part.
NOTES
[1] The legislature has yearly reenacted the statute governing the claims to which the waiver would apply. See Miss. Code Ann. § 11-46-6 (Supp. 1987). Section 11-46-6 presently provides that the waiver shall apply only to claims arising after July 1, 1988, as to the state, and on or after October 1, 1988, as to political subdivisions.
[2] The Circuit Court erroneously decided the Parole Board's immunity on the basis of governmental entity immunity for discretionary functions provided for in Section 11-46-9(c). That statute, however, is effective only against claims arising after the time at which the claim in this case arose. Furthermore, the discretionary/ministerial dichotomy relates to suits against officials, not the agencies or departments they serve. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1628030/ | 25 So. 3d 380 (2009)
Kenyoung FAIR, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2008-KA-00767-COA.
Court of Appeals of Mississippi.
June 2, 2009.
Rehearing Denied November 10, 2009.
Certiorari Denied January 7, 2010.
*381 George T. Holmes, Jackson, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before MYERS, P.J., IRVING and ROBERTS, JJ.
MYERS, P.J., for the Court.
¶ 1. Kenyoung Fair was convicted of murder in the Choctaw County Circuit Court. He was sentenced to serve a term of life in the custody of the Mississippi *382 Department of Corrections (MDOC). Aggrieved by his conviction and sentence, Fair appeals citing three issues: (1) whether his murder conviction was supported by the evidence; (2) whether the trial court erred in refusing to grant a jury instruction; and (3) whether the trial court erred in preemptively denying a heat-of-passion manslaughter jury instruction. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On July 28, 2007, Fair, Samuel Dotson, and Darnell Moore went to Ackerman, Mississippi. All three were from Weir, Mississippi. Fair and Moore had been involved in a fight in Ackerman several weeks prior to that day. On July 28, 2007, word got back to several teenagers in Ackerman that some boys from Weir were coming to Ackerman to fight them. Several teenagers from Ackerman joined together and began walking around Ackerman. They stopped in front of the Friendship M.B. Church, as they routinely did. Several other groups of teenagers from Ackerman joined them there.
¶ 3. Shortly thereafter, Fair, Dotson, and Moore pulled up to the crowd in a car. Several of the Ackerman teenagers testified that a verbal exchange occurred between the occupants of the car from Weir and some of the Ackerman teenagers. One of the Ackerman teenagers testified that the exchange was initiated by one of the occupants of the car saying, "We heard y'all was [sic] looking for us." One of the Ackerman teenagers responded, "no, I heard y'all was [sic] looking for us." The Weir teenagers responded, "Well, what's up?" The Ackerman crew responded for them to "get out of the car." Suddenly, Fair, sitting in the passenger seat, grabbed a shotgun that was lying on the front seat of the car. One of the Ackerman teenagers saw this and yelled, "dude got a burner." The Ackerman teenagers testified that all of them either started to back away from the car or turned and started to run in the other direction. Fair fired three or four shots out of the driver's side window. One of these shots struck Gerrodd Edwards in the back. Edwards was initially taken to the hospital in Ackerman and later transported to a hospital in Memphis, Tennessee where he died on August 6, 2007.
¶ 4. Fair was arrested and charged with the murder of Edwards. A jury convicted Fair of murder after a two-day jury trial. He was sentenced to life imprisonment in the custody of the MDOC. Fair filed a post-trial motion for a new trial, which was denied by the trial court. Aggrieved, Fair appeals his conviction and sentence.
DISCUSSION
I. WHETHER THE VERDICT IS SUPPORTED BY THE EVIDENCE.
¶ 5. When presented with a claim that the evidence is insufficient to sustain a conviction, we review the record in "a light most favorable to the State." Robinson v. State, 940 So. 2d 235, 239-40(¶ 13) (Miss.2006) (citing McClain v. State, 625 So. 2d 774, 778 (Miss.1993)). This Court "must accept as true all evidence consistent with [the defendant's] guilt, together with all favorable inferences that may be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant." Id. at 240(¶ 13). If the evidence is "of such quality and weight that, `having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [persons] in the exercise of impartial judgment might reach different conclusions on every element of the offense,' the evidence will be deemed to have been sufficient." Bush v. State, 895 *383 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
¶ 6. Fair argues that he should have been convicted of manslaughter under an "imperfect self-defense" theory. Fair contends that he was in fear of death or great bodily harm because of the past altercation between the two groups, the number of teenagers with the Ackerman group, and some alleged gestures the Ackerman teenagers made during the verbal exchange. Fair, sitting in the passenger seat, claims that he fired the shotgun three or four times out of the driver's window "to get them to get back."
¶ 7. As the State correctly points out, Fair did not raise this defense in the trial court. Fair's defense was ordinary self-defense, not imperfect self-defense. All testimony, the jury instructions, and the opening and closing statements are void of any mention of imperfect self-defense. Additionally, Fair did not include imperfect self-defense as a basis in his motion for a new trial. "It is well established that `questions will not be decided upon appeal which were not presented to the trial court and that court given an opportunity to rule on them.'" Neese v. State, 993 So. 2d 837, 843(¶ 12) (Miss.Ct. App.2008) (citations omitted). Accordingly, this issue is procedurally barred from our consideration.
¶ 8. Procedural bar notwithstanding, we find the sufficiency of the evidence does not warrant a manslaughter conviction under an imperfect self-defense theory. The supreme court has described imperfect self-defense as a killing "done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm." Wade v. State, 748 So. 2d 771, 775(¶ 12) (Miss.1999). If this bona fide belief is found, the intentional killing may be considered manslaughter. Id.
¶ 9. In facts similar to the present case, the supreme court in Smiley v. State, 815 So. 2d 1140, 1146 (¶¶ 22-23) (Miss.2002) considered whether the defendant should be found guilty of manslaughter instead of murder under the imperfect self-defense theory. The supreme court found the facts did not warrant a reduction to manslaughter: the victim was shot in the back as he walked away from Smiley; witnesses heard Smiley say, "I got that bitch" and "I done told that mother f about fooling with me," just after the victim was shot; and although Smiley and the victim had disagreed on a prior occasion, there was no testimony presented regarding violence or threats of violence between the two men before the shooting occurred. Id. at (¶ 23). Upon viewing the evidence which supported the jury's verdict, the supreme court found in Smiley to be without merit. Id.
¶ 10. In the case at bar, the pathologist testified that Edwards was shot in his back, right arm, and buttock. He noted thirty-six pellet holes in these areas. The witnesses testified that when it was discovered that Fair had pulled a gun, everyone one in the Ackerman group either started backing away or turned and ran. The findings of the pathologist and the testimony of the witnesses confirm that Edwards had turned away from the car and was likely running in the other direction when he was shot. One of the persons who was in the car with Fair testified that Fair said, "I am tired of this," right before he started shooting. He then told Dotson, the driver of the car, to pull his seat back; he then fired three to four shots out of the window. Additionally, Moore, who was in the car with Fair, testified that none of the Ackerman teenager made an aggressive move toward the car and that there were *384 only words being exchanged. This was corroborated by several of the Ackerman teenagers. At most, there was a heated verbal exchange that does not support a manslaughter conviction under the imperfect self-defense theory. See Phillips v. State, 794 So. 2d 1034, 1038-39(¶ 19) (Miss. 2001). Finally, there was no evidence presented that any of the Ackerman teenagers were armed during this episode.
¶ 11. Viewing the evidence in the light most favorable to the State, we find more than sufficient evidence to support a murder conviction. Fair's argument that he was under a genuine (but unfounded) belief that his actions were necessary to prevent death or great bodily harm, necessitating a manslaughter conviction under an imperfect self-defense theory, is negated by the facts of the case and the witnesses' testimonies. Accordingly, this issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT FAIR'S JURY INSTRUCTION.
¶ 12. In reviewing the grant or denial of jury instructions, this Court considers the instructions as a whole and with no one instruction taken out of context. Strickland v. State, 980 So. 2d 908, 922(¶ 24) (Miss.2008) (quoting Chandler v. State, 946 So. 2d 355, 360 (¶ 21) (Miss.2006)). While "[a] defendant is entitled to have jury instructions given which present his theory of the case, ... the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id.
¶ 13. Fair argues the trial court erred in refusing to grant his requested instruction D-5, which stated:
The court instructs the jury that while malice aforethought is a necessary element of the crime of murder, it does not follow therefrom that the existence of actual malice at the time of the slaying would necessarily have the effect of rending a particular homicide case a murder. A person may be guilty only of [sic] manslaughter or justifiable homicide when slaying another even though the accused is mad [or] bearing ill will toward his adversary at the time of the killing, if the act is done while resisting an attempt of the latter to do any unlawful act, or after such attempt shall have failed, if such anger or ill will engendered by the particular circumstances of the unlawful act then being attempted, or the commission of which is thwarted, and is non-existent prior thereto. To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting his attempt to do an unlawful act.
The trial court refused to grant this instruction because it was covered in other instructions and, thus, cumulative. Fair argues that by refusing this instruction, the jury was not properly informed about the difference between deliberate-design murder and culpable-negligence manslaughter.
¶ 14. Our review of the jury instructions as a whole leads us to conclude that the jury was sufficiently informed about the differences between deliberate-design murder and culpable-negligence manslaughter. The trial court granted jury instruction S-2, which reads as follows:
The Court instructs the jury that deliberate design as mentioned in these instructions does not have to exist in the mind of the slayer for any given length of time; and if only moments before the act of violence, if any, the defendant, Kenyoung Fair, acted with deliberate design to take the life of Gerrodd Edwards, then it was truly malice and the *385 act was truly murder as if the deliberate design had existed in the mind of the defendant for minutes, hours, days, weeks, or even years.
The court also granted instruction S-1, a murder instruction, which states in part:
The Court instructs the jury that murder is the killing of a human being, not in necessary self-defense, and without authority of law, by any means or any manner, when done with the deliberate design to effect the death of the person killed OR when done in the commission of an act eminently dangerous to other[s] and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual. ...
The court went on to grant two culpable-negligence instructions, D-6 and D-7.[1] These instructions were given in addition to a self-defense instruction. Upon reading the instructions as a whole, we find that the jury was adequately informed with regard to deliberate-design murder and culpable-negligence manslaughter. Therefore, this issue is without merit.
III. WHETHER THE TRIAL COURT ERRED IN PREEMPTIVELY DENYING FAIR A HEAT-OF-PASSION MANSLAUGHTER INSTRUCTION.
¶ 15. In Mullins v. State, 493 So. 2d 971, 974 (Miss.1986), the supreme court stated that:
[Heat of passion] is a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
"When a deadly weapon is used, ... malice is implied." Turner v. State, 773 So. 2d 952, 954(¶ 7) (Miss.Ct.App.2000). "[I]n order to overcome that [malice implication], there must be some evidence in the record from which the jury could determine that *386 [the act] was not [the] result of malice, but a result of the heat of passion." Wilson v. State, 574 So. 2d 1324, 1336 (Miss.1990).
¶ 16. Fair does not provide any specific facts to support his assertion. He simply states that the facts and evidence entitled him to a heat-of-passion manslaughter instruction. The record indicates that, at most, Fair and the Ackerman teenagers were engaged in a verbal argument. However, the law is well settled that words alone are not enough to require a heat-of-passion manslaughter instruction. Myers v. State, 832 So. 2d 540, 542(¶ 10) (Miss.Ct.App.2002).
¶ 17. Furthermore, the record is silent on any evidence that Fair was in a state of violent or uncontrollable rage at the time of the shooting. It shows the antithesis, a deliberate shooting. Fair and his friends armed themselves with two weapons, drove directly to the area where the previous fight had occurred, found the people with whom they had previously fought, and fired three to four shots into the crowd one of which was a fatal shot to the back of Edwards. We find that these actions were calculated and show a deliberate-design murder.
¶ 18. We find that the evidence does not support a jury instruction for heat-of-passion manslaughter. Therefore, the trial court did not err by refusing to grant the instruction; thus, this issue is without merit.
¶ 19. THE JUDGMENT OF THE CHOCTAW COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
NOTES
[1] D-6 states:
The Court instructs the jury the killing of [a] human being by the culpable negligence of another, without authority of law, is manslaughter, and the Court further instructs the jury that culpable negligence is defined as negligence of a degree so gross as to be tantamount to a wanton disregard or, or utter indifference to, the safety of human life.
If you believe from the evidence beyond a reasonable doubt that the death of Gerrod Edwards was caused by the culpable negligence of Kenyoung Fair, then you shall find Kenyoung Fair guilty of the crime of manslaughter. D-7 states:
If you find the evidence in this case that the defendant, Kenyoung Fair, is not guilty of murder, then you should continue with your deliberation to consider the elements of the lesser crime of culpable[-]negligence manslaughter.
The Court instructs the jury the killing of [a] human being by the culpable negligence of another, without authority of law, is manslaughter, and the Court further instructs the jury that culpable negligence is defined as negligence of a degree so gross as to be tantamount to a wanton disregard or, or [sic] utter indifference to, the safety of human life.
If you find from the evidence in this case, beyond a reasonable doubt, that Kenyoung Fair, on July 28, 2007, in Choctaw County, Mississippi, that Gerrod Edwards was a human being, and that, Kenyoung Fair, without authority of law did kill Gerrod Edwards, with culpable negligence, by discharge of a fireman, and not in necessary self-defense, then you shall find Kenyoung Fair guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above-listed elements beyond a reasonable doubt, then you shall find Kenyoung Fair not guilty of manslaughter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1834438/ | 339 So.2d 570 (1976)
Carolyn BENSON
v.
John E. HALL.
No. 48998.
Supreme Court of Mississippi.
November 23, 1976.
*571 Scales & Scales, Clarence R. Scales, Jackson, for appellant.
William A. Allain, Jackson, for appellee.
Before GILLESPIE, C.J., and SUGG and BROOM, JJ.
GILLESPIE, Chief Justice, for the Court:
Carolyn Benson sued John E. Hall in the Circuit Court of the First Judicial District of Hinds County alleging that Hall had composed and published two libelous letters concerning the plaintiff. The circuit court sustained a demurrer and dismissed the suit. Plaintiff appealed.
The plaintiff charged in her declaration that the defendant composed and published two letters which were in every particular false, misleading, defamatory, libelous, and unprivileged, and which exposed her to hatred and contempt, and injured her in her good name, reputation, and business. She charged in general terms that the letters were printed, published, and circulated by the defendant "with expressed and implied malice." No facts concerning malice were alleged. She charged that she was employed at Jackson State University by John E. Hall, the head or chairman of the Department of Reading, and that one letter was addressed to Dr. John A. Peoples, Jr., President of Jackson State University, with a copy to Vice President Williams, and the other letter was addressed to Lee M. Williams, Vice President for administration of Jackson State University. Copies of both letters were sent to the plaintiff. The two letters are as follows:
May 11, 1974
Dr. John A. Peoples, Jr., President
Jackson State University
Jackson, Mississippi
Dear Dr. Peoples:
Shortly after sending Vice President Williams the rating forms on the secretarial help in this department, I sent him a letter requesting that Miss Carolyn Benson not be assigned to this office with the beginning of the new year on July 1, 1974. I explained that Miss Benson does not have the skills essential in secretarial work.
In addition to lack of necessary skills, she cannot or will not follow simple directions; she is most disrespectful when questioned about not carrying out directions or requested to correct mistakes she has made; and she makes no effort to improve her work.
I told her before Christmas that her work would have to improve drastically if she intended to keep the position. She has made no effort, or if she has, she has not improved. Instead of being of some help in carrying on the work of this office, she has been a liability. If it had not been that the secretary employed in Right To Read was willing to assume extra duties, I don't know what we would have done. We simply cannot use Miss Benson next year.
Yours truly,
/s/ John E. Hall, Head
Department of Reading
cc: Vice President Williams
Miss Carolyn Benson
P.S. In order for you to get the vacation time due you for the time worked in this office, your vacation will begin on June
*572 22. In other words, June 21 will be your last working day in this department. Please collect your personal items to take with you when you leave, and turn your keys in to me on June 21.
/s/ John E. Hall
* * * * * *
May 23, 1974
Mr. Lee E. Williams
Vice President for Administration
Jackson State University
Jackson, Mississippi
Dear Mr. Williams:
If you have looked at the evaluation forms I sent to you rating the secretarial employees in this department, you will see that Miss Carolyn Benson is not qualified for the work. I told her some months ago that we could not use her after June 30, and advised her to be looking for another position.
In addition to being unprepared for the work in so far as secretarial skills are concerned, she cannot relate in a pleasant manner to the teachers. She is most disrespectful when they ask her to correct mistakes she has made; she cannot follow simple directions unless they are written; and she often refuses to do what is asked of her.
Please do not assign her to this department for another year. In fact, unless there is some place where she can work where she has nothing to do but make copies of something already done, she will not be of any use in any office on the campus.
Yours truly,
John E. Hall, Head
Department of Reading
cc: Miss Benson
The Court is of the opinion that the trial judge correctly sustained the defendant's demurrer. The answers to the two questions next to be made are dispositive of the case.
I.
Were the letters written and mailed to the addressees on an occasion of qualified privilege?
This Court is committed to the rule that although the law guards jealously the enjoyment of a good reputation, public policy, good morals, the interests of society, and sound business principles demand that an employer, or his representative, should be permitted to discuss freely with an employee charges made against an employee affecting the latter's employment. On such occasions there is a qualified privilege, and statements made within the scope of the privilege, in good faith and without malice, are not actionable. Killebrew v. Jackson City Lines, Inc., 225 Miss. 84, 82 So.2d 648 (1955). In Killebrew the alleged slander occurred in conversation between the superintendent and the employee. The assistant superintendent was present. The Court held that the statement was not actionable because (1) the occasion was one of qualified privilege because the assistant superintendent and the employee (the only persons who heard the statement) were directly interested in the matter; (2) the truth or falsity of the communication was not involved absent bad faith or malice; (3) there was no proof of spite, ill will, malicious purpose, or a wanton or reckless disregard of whether the words were true or false. The Court also held that once the occasion is shown to be one of qualified privilege, there is a presumption of good faith.
The defendant in the instant case sent the letters in question to the President of the University and the Vice President for Administration. Copies were sent to the plaintiff. All of these people were directly interested in the subject matter of the letters for the same reasons stated in Killebrew.
II.
Did the defendant exceed the scope of the qualified privilege?
The declaration in the present case charges that the letters were composed and published by the defendant "with expressed and implied malice and with design and intent to injure the plaintiff," but no facts *573 were alleged, only conclusory statements. Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 93 So.2d 171 (1957), is authority for the proposition that a charge in a libel suit that the defendant published libelous material "falsely and maliciously or with reckless disregard of the truth" without alleging any facts were mere conclusions of the pleader and were not admitted on demurrer.
It is charged in the declaration that in addition to the addressees the letters were read by "numerous other people who saw the same."
The cases and the text writers have not always distinguished between the question of whether the privileged occasion was exceeded on the one hand and whether the slander or libel was published on the other. For instance, in Cartwright-Caps Co. v. Fishel & Kaufman, 113 Miss. 359, 74 So. 278 (1917), the Court stated that dictation to a stenographer of an allegedly libelous letter by a businessman addressed to another businessman was not a sufficient publication of the letter to support a suit for libel. In Walter v. Davidson, 214 Ga. 187, 104 S.E.2d 113 (1958), the Court held that there was insufficient publication where communication is made between faculty members concerning students. Both cases confuse the defenses of qualified privilege and nonpublication. In our opinion, both cases in substance turned not on the publication issue but on the qualified privilege question.
When qualified privilege is established, statements or written communications are not actionable as slanderous or libelous absent bad faith or malice if the communications are limited to those persons who have a legitimate and direct interest in the subject matter. The qualified privilege may be likened to a circle insofar as its area of protection is concerned. Depending upon the circumstances, the circle encloses those people who have a legitimate and direct interest in the subject matter of the communication, and publication to them is not actionable. If publication is made to persons outside the circle those not having a legitimate and direct interest in the subject matter of the communication the protection of the privilege may not be invoked.
There is no allegation that the letters were publicly exhibited nor that any particular persons other than the addressees who were within the protected circle read them. The conclusory statement in the declaration that the letters were read by "... numerous other people who saw the same" was a mere conclusion of the pleader and was not admitted on demurrer. Edmonds v. Delta Democrat Publishing Co. supra.
We hold that there was no charge that the letters were published beyond the scope of the qualified privilege.
AFFIRMED.
PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2224605/ | 193 Mich. App. 163 (1992)
483 N.W.2d 666
HASS
v.
CITY OF MENOMINEE
Docket No. 137861.
Michigan Court of Appeals.
Decided March 2, 1992, at 9:20 A.M.
Janis M. Burgess, for the defendant.
Before: GILLIS, P.J., and MICHAEL J. KELLY and GRIBBS, JJ.
MICHAEL J. KELLY, J.
Defendant appeals as of right from an order of the circuit court granting summary disposition in favor of defendant but granting partial relief in favor of plaintiff. We affirm.
Plaintiff filed this action in the circuit court, requesting that the court issue a writ of mandamus ordering defendant to enforce its zoning ordinance against a certain landowner. Plaintiff initially requested that defendant's zoning administrator enjoin the landowner from using his land in a manner beyond that authorized under an existent nonconforming use variance. The zoning administrator reviewed the landowner's use of his premises and concluded that the landowner was using his property in accordance with the variance. Apparently, defendant refused to take any further action regarding the matter. Plaintiff then filed this lawsuit, requesting that the trial court order defendant to enforce its zoning ordinance or, in the alternative, to order such other relief as is proper under the circumstances. The trial court held that the record was insufficient to serve as a basis for a decision on the merits and that the municipal zoning board of appeals was the proper forum in which to address the issue.
On appeal, defendant argues that zoning enforcement is discretionary and a zoning administrator's decision regarding such enforcement is not reviewable. We disagree. MCL 125.585(3); MSA 5.2935(3) provides, in part:
*165 The board of appeals shall hear and decide appeals from and review any order, requirements, decision, or determination made by an administrative official or body charged with the enforcement of an ordinance adopted under this act.
Therefore, plaintiff had the right to seek from the zoning board of appeals review of the zoning administrator's decision that the third-party landowner's use of his property did not violate the zoning variance. Given the circumstances of this case, the court did not err in ordering the municipality's zoning board of appeals to review the zoning administrator's decision.
Affirmed.
GRIBBS, J., concurred.
GILLIS, P.J. (concurring in part and dissenting in part).
I agree that a zoning administrator's decision regarding zoning enforcement is reviewable by the zoning board of appeals. MCL 125.585(3); MSA 5.2935(3). Further, I believe that the decision of the zoning administrator must first be reviewed by the zoning board of appeals before circuit court review is proper. MCL 125.585(11); MSA 5.2935(11). In this case, plaintiff did not seek review of the zoning administrator's decision with the zoning board of appeals, and, therefore, the circuit court was without authority to order defendant to hold a hearing on plaintiff's request that the third-party landowner be enjoined from using his land in a particular manner.
I would affirm the trial court's order granting defendant's motion for summary disposition. However, I would reverse that part of the trial court's order that instructs defendant to conduct a hearing on plaintiff's claims because the court was without authority to enter such an order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2984542/ | March 11, 2014
JUDGMENT
The Fourteenth Court of Appeals
DANIEL GLASS, Appellant
NO. 14-12-01039-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.
We further order appellant pay all costs expended in the appeal.
We further order this decision certified below for observance. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1904001/ | 29 N.J. 507 (1959)
150 A.2d 292
BOROUGH OF NORTH PLAINFIELD, PLAINTIFF-RESPONDENT,
v.
DOMINIC PERONE, DEFENDANT-PETITIONER.
The Supreme Court of New Jersey.
April 13, 1959.
Mr. William Noel Ogden for the petitioner.
Mr. Charles A. Reid, Jr., for the respondent.
Denied. The denial here of certification does not necessarily indicate approval of the grounds upon which the judgment of the trial court was affirmed. This is in harmony with the proposition that a denial of certification does not in any case necessarily evidence agreement with the result or the basis expressed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1000989/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2524
NSONSA KISALA,
Plaintiff - Appellant,
versus
NEXTEL COMMUNICATIONS,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Peter J. Messitte, District Judge. (CA-
97-3098-PJM)
Submitted: February 24, 2000 Decided: March 1, 2000
Before MOTZ and KING, Circuit Judges, and BUTZNER, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Nsonsa Kisala, Appellant Pro Se. Ralph Michael Smith, SHAWE &
ROSENTHAL, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nsonsa Kisala appeals the district court’s order granting the
Defendant’s motion for attorney’s fees. We have reviewed the rec-
ord and the district court’s opinion accepting the recommendation
of the magistrate judge and find no reversible error. Accordingly,
we affirm on the reasoning of the district court. See Kisala v.
Nextel Communications, No. CA-97-3098-PJM (D. Md. Oct. 22, 1999).*
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
*
Although the district court’s order is marked as “filed” on
October 21, 1999, the district court’s records show that it was
entered on the docket sheet on October 22, 1999. Pursuant to Rules
58 and 79(a) of the Federal Rules of Civil Procedure, it is the
date the order was entered on the docket sheet that we take as the
effective date of the district court’s decision. See Wilson v.
Murray, 806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2588959/ | 70 N.Y.2d 476 (1987)
The People of the State of New York, Appellant,
v.
Michael H. Moser, Respondent.
Court of Appeals of the State of New York.
Argued November 10, 1987.
Decided November 24, 1987.
John T. Ward, District Attorney (Daryl P. Brautigam of counsel), for appellant.
James P. Subjack for respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion.
*477Per Curiam.
The issue on this appeal is whether Vehicle and Traffic Law § 1194 (7) (a)[*] requires a physician to be actually present, observing the procedure, when a laboratory technician draws a blood sample from a suspect for the purposes of conducting a test to determine its alcoholic or drug content. We disagree with County Court's conclusion that the statute requires personal presence by the physician and conclude, instead, that the procedure employed here complied with the statute.
City Court found, after hearing the testimony of the physician in charge of the emergency room and the technician who drew the blood sample, that the physician directed and supervised all activities in the emergency room and that he authorized the taking of the sample. Accordingly, the court ruled that he personally supervised the procedure within the meaning of the statute, notwithstanding that he may have been busy with another patient and did not personally witness the *478 event. We agree that this evidence of personal supervision was sufficient to satisfy the statutory requirement.
County Court's reading of the statute to require that the physician stand by the technician's side during the procedure conflicts with the apparent purpose of the statute. The 1969 amendment to section 1194, which first allowed lab technicians to draw blood samples, enlarged the class of authorized persons with the obvious purposes of making blood alcohol and drug content tests easier to obtain and relieving the burden on those already entitled to perform the procedure (see, L 1969, ch 669, § 1). Although the personal supervision of a physician is an important safeguard for the health of the suspects to be tested, it would be anomalous in light of the purposes of the amendment to require the physician to put his other duties aside to watch the technician perform the procedure. If that were the requirement, there would be no reason to allow the technician to take the sample in the first place.
In our view, the concerns addressed by the supervision requirement are adequately served by the physician's authorization of the test, which presumably reflects his medical judgment that it will not put the patient at risk, and his presence to respond to inquiries and emergencies.
Accordingly, the order of the County Court should be reversed, the conviction reinstated, and the case remitted to Dunkirk City Court for further proceedings on the information.
Order reversed, etc.
NOTES
[*] At the time the blood sample was taken from defendant, the pertinent statute read: "No person except a physician, registered professional nurse, laboratory technician as classified by civil service or as registered by the American Society of Clinical Pathologists and under the personal supervision and direction of a physician, or registered physician's assistant, acting at the request of a police officer shall be entitled to withdraw blood for the purpose of determining the alcoholic or drug content therein. This limitation shall not apply to the taking of a urine, saliva or breath specimen." (Vehicle and Traffic Law § 1194 [7] [a] [emphasis added].) Although the statute has since been amended, the relevant language remains intact. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326562/ | Kern, Leila R., J.
INTRODUCTION
The defendant, Darnell Legette, has filed a motion to suppress the evidence that the police seized from his home and his vehicle on July 9, 2010. Based upon all the credible evidence and the reasonable inferences drawn therefrom, this court determines that Legette’s Motion to Suppress is DENIED.
BACKGROUND
The affidavit attached to the warrant details the following. Arthur Hardy is a Methuen Police Officer with eleven years of experience in law enforcement. Hardy is assigned to the Drug Enforcement Administration out of the Boston Division. He has received specialized training in Basic Narcotics Investigations and attended a training course on street-level narcotic investigations conducted by the Municipal Police Training Committee. He also has had training in the manufacturing, distributing, and packing of illegal narcotics. Over the course of his career, Hardy has assisted in making over 300 narcotics-related arrests.
In April 2010, Hardy met with a Methuen Police Department confidential source (“C.S.”). The C.S. reported to Hardy that Darnell Legette, the defendant, of 634 Haverhill Street in Lawrence, was selling Oxy-contin pills. The C.S. has purchased Oxycontin from Legette over the last several years.
On May 7, 2010, the C.S. telephoned Legette’s cell phone and asked to purchase some pills, meaning Oxycontin pills. Legette told the C.S. to call him back within a few hours to arrange for a meet location. State Trooper Richie Ridlon was conducting surveillance of the area of Legette’s residence and identified him operating a red Acura TL, with the Massachusetts registration number 14LC91. Ridlon followed Legette back to his residence at 634 Haverhill Street and observed him back the Acura into a garage. Around 11:20 a.m., Ridlon observed the same garage door open and Legette pulling out in the Acura. The C.S. than contacted Legette, who told the C.S. to meet in the BJ’s parking lot in Salem, New Hampshire. Hardy and Sergeant Chris Max met with the C.S. at the predetermined location, where they searched the C.S. and the C.S.’s vehicle for illegal contraband, monies, or weapons. The officers did not find anything. Max then handed the C.S. $1,100.
The police department set up surveillance of the BJ’s parking lot. Officers followed Legette drive directly from his residence to the predetermined location in Salem, New Hampshire. Legette walked over to where the C.S. was parked and engaged in conversation at the open driver’s window. After a short conversation, Legette leaned into the window and then stepped back. Legette then walked away from the C.S.’s vehicle and returned to his own vehicle for a moment before entering the BJ’s store.
After the transaction, the C.S. then met with Hardy and Max at a predetermined meet location, where the C.S. handed Hardy a small plastic pouch consisting of pills. Hardy opened the pouch and confirmed that twenty-five Oxycontin pills were inside. All evidence was sent to the Drug Enforcement Administration’s lab to be weighed, tested, and certified.
On June 9, 2010, at approximately 11:19 a.m., the C.S. sent Legette a text message and asked to purchase some pills. Legette responded with a meet spot at the Irving Gas Station located on Pelham Street, in Methuen at 2 p.m. At approximately 1 p.m., officers set up surveillance in the area of Legette’s residence. At approximately 1:08 p.m., officers observed Legette leave the residence in the red Acura.
Officers observed a Toyota Tacoma following Leg-ette. The vehicles pulled to the side of the road and Legette met with the operator of the Tacoma. Legette engaged in a five-to ten-second conversation with the operator of the Tacoma.
At approximately 1:35 p.m., Hardy and Officer Dzioba met with the C.S. at an undisclosed location. At this location, Dzioba gave the C.S. $3,440. The C.S. was searched for contraband and nothing was found.
Officers observed Legette park his car at 634 Ha-verhill Street, enter the residence for a few minutes, and then return to his vehicle. Legette then drove to the parking lot of the Irving Gas Station where he parked his vehicle. Officers observed the C.S. hand the defendant the $3,400. Legette then handed the C.S. a small clear plastic sandwich baggie with numerous pills. The C.S. then met with Dzioba and Hardy at a predetermined location. The C.S. turned over the clear plastic bag containing numerous pills. The C.S. told the officers that Legette had stated he just received a shipment of 1,000 80-mg Oxycontin pills from his supplier.
On July 1, 2010, at approximately 8:51 a.m., the C.S. contacted Legette via text message and asked to *586purchase some pills. The C.S. also called Legette’s cell phone. The defendant answered the call and set up a meet spot at the Irving Gas Station on Pelham Street in Methuen at approximately 11:30 a.m. Around 9:00 a.m., officers set up surveillance in the area of Legette’s residence. Officers observed Legette leave in the red Acura around 11:12 a.m. Officers observed Legette park on the side of a roadway and pick up an unknown male. The officers lost sight of the Legette’s vehicle soon after.
Hardy and Detective Connor of the Methuen Police Department met with the C.S., and searched the C.S. and the C.S.’s vehicle for illegal contraband. The officers did not find any illegal contraband. Connor handed the C.S. $4,300.
Officers later observed the Acura parked in front of the garage doors at Legette’s residence and observed him enter the house via a side door. After a minute or so, Trooper Smith observed the Legette enter the Acura and drive to the parking lot of the Irving Gas Station to the area where the C.S. was located. The C.S. exited his vehicle and walked over to the defendant’s vehicle. The two had a conversation and after a few minutes, the C.S. walked away from Legette’s vehicle.
Following the transaction, the C.S. met with Connor and Hardy at a predetermined location, where he turned over the clear plastic sandwich baggie containing numerous Oxycontin pills. The C.S. told the police that Legette said he was sitting on 500 80-mg Oxy-contin pills for the remainder of the weekend. Legette also stated he was ordering a large amount of pills from his source in the upcoming week.
Based on the facts and circumstances stated above, a magistrate issued a warrant for Legette’s arrest. Hardy notified other police personnel that a warrant had been issued for Legette’s arrest. On July 9, 2010, Detective Richard Pilz, while driving a marked vehicle, identified Legette driving his red vehicle and pulled him over. After obtaining his identification, Pilz arrested Legette and placed him in the marked cruiser. Other officers, including Hardy, arrived at the scene and. instructed Pilz to bring Legette to the Methuen Police Department. At this time, Hardy directed Legette’s car to be towed, as it was obstructing traffic. The vehicle was searched, towed and secured at the Methuen Police Department.
A magistrate also issued a search warrant for 634 Haverhill Street in Lawrence and for the Acura with the registration number 14LC91. Legette moves to suppress the evidence found at the residence and in the vehicle, alleging there was no probable cause to search either of these places.
RULINGS OF LAW A. Search of Legette’s Residence
The standard for issuing a search warrant is probable cause. Commonwealth v. Byfield, 413 Mass. 426, 428 (1992). To establish probable cause to search, the facts contained in an affidavit “must contain enough information for the issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues.” Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983). A court reviewing the sufficiency of a search warrant application “always begins and ends with the ‘four corners of the affidavit.’ ” Commonwealth v. O’Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995).
The connection between the items seized and the place to be searched does not need to be based on direct observation. Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). Rather, “in the absence of direct observation, [the court] look[s] to four factors from which a nexus between the place and items may be determined: (1) the type of crime, (2) the nature of the items sought, (3) the extent of the suspect’s opportunity to conceal the items at the location to be searched, and (4) reasonable inferences as to where a criminal would likely hide items of the sort sought.” Commonwealth v. Harmon, 63 Mass.App.Ct. 456, 461 (2005).
In Commonwealth v. Lathy, the police conducted two controlled buys of narcotics with the defendant. 69 Mass.App.Ct. 102, 104-05 (2007). In the first, they observed the defendant deliver drugs to a prearranged location and return to his residence. Id. at 104. In the second, they observed the defendant leave his residence, conduct the sale, and return to his residence. Id. 104-05. The Appeals Court held that the car used in both controlled buys was parked at the defendant’s residence both before and after the buys. Id. at 106-07. Therefore it was reasonable to conclude that the residence held concealed narcotics. Id. at 107. See also Commonwealth v. Hardy, 63 Mass.App.Ct. 210, 213-14 (2005) (magistrate could properly infer from facts and police observations that defendant stored drugs in his home). Commonwealth v. Alcantara, 53 Mass.App.Ct. 591, 593-94 (2002) (court concluded that it was reasonable to infer that the defendant kept drugs in his apartment as his method of operation was to deliver drugs to a specified location after receiving a telephone call).1
In the present case, the information in the affidavit provided probable cause to believe that the evidence of the controlled buys would be found at Legette’s residence, based on a nexus between the crime alleged and the place to be searched. A magistrate could reasonably infer from the controlled buys that Legette was involved in the crime of selling Oxycontin pills. Furthermore, based on observations that the red Acura used in all of the controlled buys was parked at Legette’s residence before and after the buys, it was reasonable to infer that the residence held narcotics. *587Therefore, after reviewing the information provided in “the four corners of the affidavit,” this court concludes that the search of Legette’s residence was proper, as there was probable cause to believe evidence of the controlled buys would be found there. See Cinelli, 389 Mass. at 213.
B. Search of Legette’s Vehicle
Legette also argues that the affidavit in support of the search warrant failed to establish probable cause that narcotics or other contraband would be present in his vehicle. Even if the warrant to search his vehicle was improper or flawed, the search of his vehicle was valid as a search incident to arrest and/or inventory search.
Search Incident to Arrest
Warrantless searches are “per se unreasonable,” unless “subject to a few . . . specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 247, 357 (1967). A search incident to a lawful arrest is one of these exceptions. Thorton v. United States, 541 U.S. 615, 617 (2004). “Once an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safely and to preserve evidence by searching the entire passenger compartment.” Id at 622-23. The Supreme Court has recently held that the circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of that offense might be found in the vehicle. Arizona v. Gant, 129 S.Ct. 1710, 1714 (2009).
Here, in an attempt to properly execute a valid arrest warrant, Pilz pulled Legette over while he was driving his motor vehicle. Pilz was aware that an arrest warrant had been issued for Legette and he also had a description of Legette’s known vehicle. “If police know of an outstanding warrant for an individual, he or she may be stopped to execute the warrant.” Commonwealth v. Owens, 414 Mass. 595, 597 (1993). During this motor vehicle stop, Legette was notified of his outstanding warrant and placed under arrest and in the marked police vehicle. Pilz was instructed to bring Legette to the police department while Hardy stayed on scene to inspect the vehicle. The court finds that the search of Legette’s vehicle was lawful as a search incident to arrest, as supported by constitutional case law, Article 14 and G.L.c. 276, §1.
Inventory Search
Given the location of Legette’s arrest, the police were authorized to impound his vehicle and conduct an inventory search of its contents. Inventory searches are permitted under both the Fourth Amendment and Article 14. Commonwealth v. Ford, 394 Mass. 421, 424-25 (1985). The legitimacy of a constitutional inventory search involves two related inquiries: “(1) whether the impoundment of the vehicle leading to the search meets constitutional strictures, and (2) whether the conduct and scope of the search itself meets those strictures.” Commonwealth v. Ellerbe, 430 Mass. 769, 773 (2000).
A lawful inventory search is first based on the propriety of the impoundment of the vehicle. Commonwealth v. Brinson, 440 Mass. 609, 612 (2003). Impoundment is justified if supported by public safety concerns. Commonwealth v. Daley, 423 Mass. 747, 750 (1996). Removal of a vehicle from a public highway and conducting an inventory search of the vehicle is also constitutional when there is no practical alternative available. Commonwealth v. Muckle, 61 Mass.App.Ct. 678, 682 (2004).
In this case, the arrest of the defendant resulted in a vehicle being present on a busy highway without an authorized, licensed driver who could lawfully remove it. The police were required to direct traffic based on the location of the vehicle. Thus, given the public safety concerns based on the vehicle’s location, the police lawfully impounded the vehicle.
The scope of a permissible inventory search is guided by the interests justifying the search as set forth in written procedures of the police department authorizing the search. Commonwealth v. Garcia, 409 Mass. 675, 682 (1991). If the written inventory policy permits police to search any closed, but unlocked containers, the police may do so. Commonwealth v. Caceres, 413 Mass. 749, 755 (1992).
Here, the police conducted the search pursuant to Methuen Police policy and procedures. The policy and procedures for motor vehicle inventory searches permit the police to search any open or closed, but unlocked containers. Therefore, the conduct and scope of the inventory search met constitutional strictures. Daley, 423 Mass. at 750.
CONCLUSION
Thus, based on the analysis of the facts discussed above, there was probable cause to search Legette’s residence, as there was sufficient information to link his criminal activity with his residence. Additionally, an arrest warrant was properly issued for Legette. Thus, the search of Legette’s vehicle was constitutional as a search incident to his arrest and/or as an inventory search given the circumstances of the stop. As a consequence, the defendant’s Motion to Suppress Evidence is denied.
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant’s Motion to Suppress evidence is denied.
The defendant relies heavily on Commonwealth v. Smith in his argument. 57 Mass.App.Ct. 907 (2003). However, the facts in this case are distinguishable from those in Smith. In Smith, the court held that witnessing the defendant on one occasion drive directly from his residence to a drug transaction does not, by Itself, establish probable cause to search his residence. Id. at 908. However, in this case, the police observed Legette on more than one occasion. The observations of the police are sufficient to establish a nexus between Legette’s drug-selling activities and his residence. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2590095/ | 78 N.Y.2d 220 (1991)
In the Matter of the Commissioner of Social Services, on Behalf of Christine Wandel, Appellant,
v.
Arnaldo Segarra, Respondent.
Court of Appeals of the State of New York.
Argued May 30, 1991.
Decided July 2, 1991.
Victor A. Kovner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for appellant.
Chief Judge WACHTLER and Judges SIMONS, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge KAYE taking no part.
*221ALEXANDER, J.
We consider on this appeal the question of whether in a child support proceeding commenced by the Commissioner of Social Services pursuant to Family Court Act § 415, the obligation of a father for the support of his child receiving public assistance is limited to the amount of the child's share of the monthly public assistance rather than being based on the child's actual needs and the father's means. The Appellate Division affirmed Family Court's determination that the father's obligation is so limited, concluding that as assignee of the support rights of the custodial mother who receives public assistance under the Aid to Families with Dependent Children (AFDC) program, the Commissioner may only seek reimbursement *222 for the amount of the AFDC grant, and that "applicable Federal and State statutes are likely to preclude the family's receipt of any such additional funds exceeding $50 per month." (165 AD2d 655.)
In a paternity proceeding commenced against respondent, Arnaldo Segarra, by the Commissioner of Social Services, a determination of paternity was made against respondent following his numerous defaults in appearance and a Family Court order of filiation was entered on January 7, 1981. In July 1988, the instant proceeding was commenced by the Commissioner on behalf of Christine Wandel and her child, who were recipients of public assistance pursuant to the AFDC program, seeking a support order retroactive to the child's birth.[1]
Neither respondent nor his attorney appeared at the scheduled hearing before the Hearing Examiner, but respondent's financial statement and recent pay stubs which had been previously submitted were available and indicated an annual income of approximately $46,000. The Hearing Examiner found that respondent's income was more than sufficient to meet the public assistance grant and awarded child support in the sum of $269.50 per month, representing the child's share of the monthly AFDC payment plus $50.
Family Court rejected the Commissioner's objection to the Hearing Examiner's findings, stating that the purpose of Family Court Act § 415 was to reimburse the government for moneys expended not to enrich it. As indicated the Appellate Division affirmed. This Court granted leave to appeal to the Commissioner and we now reverse for the reasons that follow.
Family Court Act § 415 renders a spouse or parent of a recipient of public assistance, of sufficient ability, responsible for the support of such person under 21 years of age.[2] We find *223 nothing in that statute limiting a parent's obligation to support his or her child to that child's portion of the public assistance grant. Indeed, the statute explicitly permits consideration of a noncustodial parent's means in determining the level of child support payments, and the Family Court is authorized in its discretion to require a spouse, parent or stepparent of a recipient of public assistance to contribute "a fair and reasonable sum for the support of such relative".[3]
The obligation of a parent to support its child arises under both common law and statute (see, Landes v Landes, 1 N.Y.2d 358, 365; Family Ct Act § 413). The financial resources of parents have always been a factor to be taken in account in determining the amount of a child support award under Family Court Act § 413. That statute obligates parents of a child under 21 years of age, to support such child and if they are possessed of or able to earn sufficient means, to pay a fair and reasonable sum for the child as the court may determine. (See, Family Ct Act § 413.)
In 1989, section 413 was amended to adopt guidelines setting minimum and meaningful standards of obligation. (See, L 1989, ch 567, § 8.) The amendment, referred to as the Child Support Standards Act, requires the court to determine the amount of the basic child support obligation by combining the income of both parents and multiplying that income, up to $80,000, by a child support percentage. The resulting figure is then ratably apportioned between the two parents.
The statute (Family Ct Act § 413) was amended further in 1990 (L 1990, ch 818) to provide: "notwithstanding any other provision of law, including but not limited to section four hundred fifteen of this act, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child" (Family Ct Act § 413 [1] [g]). The legislative memorandum indicates that this amendment was intended as a clarification, not a change of the law, and was aimed particularly at courts that have refused to order parents to *224 pay support that exceeds the child's share of the public assistance grant (Sponsor's Mem, Assembly 115505-C). Thus, with respect to a parent's child support obligation, Family Court Act § 415 merely supplements existing law by making it clear that a parent's duty to support is not abrogated by a child's receipt of public assistance; it does not limit that obligation to the amount of the public assistance grant.
The Commissioner contends that as the assignee of the custodial parent's right to compel support from the noncustodial parent he should be entitled to seek a child support award based on the child's reasonable needs and the parents' financial means. The Appellate Division concluded that Federal and State statutes and regulations limit the scope of the Commissioner's child support assignment to reimbursement for the amount of the AFDC grant. We disagree.
The Commissioner's right to seek support payments on behalf of an AFDC recipient is derived from Social Services Law §§ 111-b and 348 and Family Court Act § 571.[4] The Commissioner is authorized to act as assignee of a child's right to support with regard to all types of child support payments (Family Ct Act § 571) and an application for aid to dependent children automatically operates as an assignment to the State and the applicable social services district of any rights the applicant has to support from other persons (Social Services Law § 348 [2]). Social services officials are authorized generally, to bring proceedings to enforce assigned support rights pursuant to article 4 of the Family Court Act (Family Ct Act § 571) and Social Services Law § 111-b (2) gives the official bringing the proceeding to enforce such an assignment the same rights as if the proceeding were being brought to enforce section 415 of the Family Court Act. Although Social Services Law § 349-b provides that the amount of the payments due from the absent parent shall be the amount of a current court support order, we find nothing in the relevant statutes or regulations that limit the amount of support which a court may order to the amount of the public assistance grant.
*225New York has elected to participate in the AFDC program, thus Federal statutes and regulations with respect to that program are controlling to the extent they are applicable. (Matter of Lumpkin v Department of Social Servs., 45 N.Y.2d 351, 355.) The 1975 amendments to the Federal Aid to Families with Dependent Children Act included a scheme for the distribution of court-ordered support collected on behalf of AFDC recipients. The scheme provides for reimbursement to the States for past, as well as present, AFDC payments. This distribution scheme is adopted in the New York State regulations (see, 18 NYCRR 347.13) and contemplates that all assigned support payments be paid directly to the Commissioner (see, 45 CFR 302.32; 18 NYCRR 347.12 [a]). The Commissioner must then determine if the current support payment makes the family ineligible for AFDC (45 CFR 232.20, 302.32 [b]; 18 NYCRR 347.12 [b]) and if so, the Commissioner's assignment terminates, except to the extent of unpaid support obligations that have accrued under such assignment (45 CFR 302.51 [f]; 18 NYCRR 347.13 [f]).[5]
Both Federal and State regulations provide for the distribution of support collected on behalf of an AFDC recipient in excess of an AFDC grant. The regulations establish a tiered distribution scheme (see, 42 USC § 657 [b] [1]-[4]; 45 CFR 302.51 [b] [1]-[5]; 18 NYCRR 347.13 [b] [2]-[4]), pursuant to which the first $50 of monthly support collected pursuant to a court order is distributed to the family and is disregarded as income. If the amount collected exceeds $50, the State is entitled to retain, as reimbursement, an amount equal to that month's assistance payment. Any amount collected in excess of that month's assistance payment is paid to the family to the limit of the amount required by the court order, and if any amount is collected in excess of the amount required to be paid by court order, it is applied to reimburse the State for past assistance payments made to that recipient. Once the State is reimbursed for AFDC assistance payments, any excess remaining is paid to the subject family. This tiered distribution scheme assures that the State is reimbursed for AFDC assistance payments made by it on behalf of an AFDC recipient. *226 All the moneys collected in excess of the AFDC grant here would have gone to the family because no support arrears existed.
Thus, contrary to the views expressed by the courts below, a support order in excess of the AFDC grant is not precluded by statute or regulation. Limiting the Commissioner's right to collect support by the amount of an AFDC payment defeats the legislative intent embodied in Family Court Act §§ 413 and 415 that a parent provide for the support of a child commensurate with the child's needs and the parent's ability. Moreover, imposing such a limitation creates a disincentive for affluent noncustodial parents to make voluntary child support payments. We conclude therefore that a construction such as that articulated by both the Family Court and the Appellate Division is contrary to both Federal and State law providing for child support awards based upon the reasonable needs of the child as well as the means of the parents (see, 42 USC § 654; Family Ct Act §§ 413, 415).
The soundness of the result we reach is buttressed by the fact that requiring the courts to consider the financial means of a noncustodial parent of a child receiving public assistance not only benefits the child, but potentially results in greater support funds being available to the State for public assistance to others, by reducing or eliminating AFDC payments to those particular recipients. The noncustodial parent is not adversely affected because any support obligation imposed by court order is based upon the parent's means as well as the child's reasonable needs. We hold therefore that the Commissioner, as assignee of the rights of an AFDC dependent, is entitled to seek a child support award based upon the child's needs and the noncustodial parent's means and that the noncustodial parent's obligation is not limited to the child's share of the monthly public assistance grant.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Family Court, New York County, for further proceedings consistent with the opinion herein.
Order reversed, etc.
NOTES
[1] The Commissioner concedes that he did not raise the Hearing Examiner's failure to order retroactive support payments in his formal objection to Family Court nor was it orally raised at the hearing. That issue, thus, was waived and is unreviewable in this Court. (Family Ct Act § 439 [e]; see also, Matter of Werner v Werner, 130 AD2d 754.)
[2] Family Court Act § 415 provides as relevant: "Except as otherwise provided by law, the spouse or parent of a recipient of public assistance or care or of a person liable to become in need thereof * * * if of sufficient ability, is responsible for the support of such person * * * provided that a parent shall be responsible only for the support of his child or children who have not attained the age of twenty-one years. In its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative and may apportion the costs of such support among such persons as may be just and appropriate in view of the needs of the petitioner and the other circumstances of the case and their respective means".
[3] Social Services Law §§ 101, 102 impose a duty on a spouse or parent to indemnify the government for funds expended for the support of a child, stepchild, or spouse.
[4] These statutes were enacted in response to Federal legislation enacted in 1975 affecting all States participating in the Federal Aid to Families with Dependent Children program. In an effort to encourage aggressive implementation of existing child support enforcement laws, the legislation required that an applicant for AFDC benefits must "assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid" (42 USC § 602 [a] [26] [A]; 45 CFR 232.11 [a]).
[5] At the time the case was argued before the Appellate Division, Christine Wandel and her child no longer received public assistance. The Commissioner's assignment continued for the difference between what respondent should have paid in accordance with the child's needs and his means and what he was ordered to pay for the period when the mother and child were receiving AFDC benefits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2590112/ | 78 N.Y.2d 608 (1991)
In the Matter of Long Island Pine Barrens Society, Inc., et al., Appellants,
v.
Planning Board of the Town of Brookhaven et al., Respondents, and Anton Meadows, Inc., Intervenor-Respondent.
Court of Appeals of the State of New York.
Argued November 13, 1991.
Decided December 18, 1991.
Lawrence A. Ceriello for appellants.
David P. Fishbein, Town Attorney (Garrett W. Swenson, Jr., and Denise F. Molia of counsel), for Planning Board of the Town of Brookhaven, respondent.
Theodore D. Sklar for intervenor-respondent.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA concur.
*610HANCOCK, JR., J.
Town Law § 276 establishes a two-stage (preliminary and final) subdivision plat approval procedure. Town Law § 282 states that "[a]ny person * * * aggrieved by any decision of the planning board concerning such plat * * * may have the decision [judicially] reviewed * * * provided the proceeding is commenced within thirty days after the filing of the decision". The question in petitioners' appeal is whether the time for commencing a proceeding under section 282 begins to run upon the filing of the preliminary plat approval or the final approval decision when the challenge to the plat is solely on environmental grounds and the environmental review procedure is completed prior to the filing of the decision approving the preliminary plat. For reasons to be stated, we hold that under such circumstances, petitioners were required to commence their challenge within 30 days of the filing of the preliminary, not the final, plat approval decision. Accordingly, we affirm the order of the Appellate Division, which affirmed Supreme Court's dismissal of the petition as untimely.
*611I
Petitioners challenge the approval of a 202.9-acre subdivision project, known as Anton Meadows, Inc. (Meadows), located in the Town of Brookhaven, New York. In November 1986, intervenor-respondent Meadows filed an application with respondent Planning Board of the Town of Brookhaven (the Board) for preliminary approval of the residential subdivision. In January 1987, the Board, in its capacity as lead agency for the project under the New York State Environmental Quality Review Act (SEQRA) (ECL art 8), issued a positive declaration requiring the preparation of an environmental impact statement (EIS). Meadows filed the EIS and it was accepted by the Board. On May 15, 1989, the Board adopted a SEQRA statement of findings for Meadows certifying that SEQRA's requirements had been met the final step of SEQRA review (see, ECL 8-0109 [8]; 6 NYCRR 617.2 [r]; 617.9). The Board granted Meadows conditional preliminary approval on June 5, 1989 and filed its approval decision on June 7. Upon receiving preliminary approval, Meadows prepared a final plat, obligated itself to a $24,200,000 construction loan and entered into contracts of sale for homes in the new subdivision. The Board granted conditional final approval of the project on January 8, 1990, and filed its decision on January 10.
On February 7, 1990, petitioners commenced this CPLR article 78 proceeding more than 30 days after the Board's preliminary approval but within 30 days of the final approval challenging the Board's approval of several development projects including the Meadows. The petition challenged the approval of the Meadows project solely on the ground that it failed to comply with SEQRA. Supreme Court granted Meadows' motion to dismiss the petition as untimely. The Appellate Division affirmed, holding that when the Board granted preliminary approval it had completed its environmental review of the project; therefore, any proceeding challenging the environmental review should have been commenced within 30 days of the Board's filing of its decision giving preliminary approval. This Court granted petitioners leave to appeal.
II
The parties agree that the 30-day Statute of Limitations under Town Law § 282 applies. Petitioners argue that only upon final, not preliminary, plat approval is a planning board's decision-making process on a proposed subdivision *612 project completed. They emphasize that after granting preliminary approval, a planning board may still disapprove a final plat or conditionally approve it with modifications (Town Law § 276 [4]) and that Brookhaven Town Code § 85-399 (2) provides that "[a]pproval of the preliminary layout does not constitute an approval of the final plat". Thus, petitioners contend that a proceeding which challenges a decision of a planning board granting conditional final subdivision approval on SEQRA grounds is timely under Town Law § 282 if the proceeding is commenced within 30 days of the filing of that decision. As will be shown, petitioners' contentions are contrary to the applicable statutory language and, if adopted, would frustrate the purposes of the two-step subdivision approval process and SEQRA (see, ECL 8-0109 [4]).
In deciding whether the Board's preliminary plat approval, which completed the SEQRA review process, triggered the 30-day Statute of Limitations, we must analyze the pertinent provisions in section 282 in their context with other provisions of Town Law article 16, particularly section 276, establishing the plat approval statutory scheme (see, Ferres v City of New Rochelle, 68 N.Y.2d 446, 451). Approval of a subdivision project under section 276 involves a two-stage procedure in which a planning board must initially approve a preliminary (subd [3]) and then a final (subd [4]) subdivision plat. The preliminary plat approval finally determines important design features of a subdivision and is intended to fix the broad outlines of the proposed development so that both the developer and the town can know the state of the subdivision approval process before additional expenses are incurred incidental to the preparation and approval of detailed final plans (see, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 368, 372, affd 62 N.Y.2d 965).
Approval of the preliminary plat does not guarantee approval of the final version (Town Law § 276 [4]). But, "a planning board may not modify a preliminary plat and then disapprove of the layout of a final plat that conforms to the modifications prescribed by the board" and "absent new information, a subsequent modification or rejection of a preliminarily approved subdivision layout is an arbitrary and capricious act subject to invalidation" (Matter of Sun Beach, 98 AD2d, at 373, supra; see, 5 Ziegler, Rathkopf's The Law of Zoning and Planning § 66.02 [2] [4th ed]; 4 Anderson, American Law of Zoning § 25.13 [3d ed]). The provisions for judicial review of the subdivision approval process in Town Law § 282 state that *613 "[a]ny person * * * aggrieved by any decision of the planning board concerning such plat * * * may have the decision reviewed" in an article 78 proceeding "provided the proceeding is commenced within thirty days after the filing of the decision in the office of the board" (emphasis added). Section 282 further provides that commencement of the article 78 proceeding "shall stay proceedings upon the decision appealed from" and "shall have preference over all other civil actions and proceedings."
The question here is: when the sole challenge to the subdivision is based on noncompliance with SEQRA, did the Legislature intend to have section 282 cut off judicial review after 30 days from the filing of the Board's preliminary approval which both completed SEQRA review and established the general design features of the subdivision? In construing section 282, we examine the language of the 30-day limitation and its purpose as a part of the over-all subdivision approval process (see, Ferres v City of New Rochelle, 68 N.Y.2d 446, 451, supra). Section 282 refers to judicial review of "any decision of the planning board concerning such plat" (emphasis added). Nothing in the section limits judicial review to final plat approvals. Because section 276 requires both preliminary and final subdivision plat approval by the Board, we conclude that the Legislature intended to provide for judicial review of a Board's decision at the preliminary approval stage where the preliminary approval is final as to a particular issue and, thus, ripe for judicial review by an aggrieved party (see, 5 Ziegler, Rathkopf's The Law of Zoning and Planning § 66.06 [4th ed]; Matter of Walton v Town of Brookhaven, 41 Misc 2d 798, 800 [Sup Ct, Suffolk County]). Such a construction imports to the language of section 282 that "any decision of the planning board" (emphasis added) may be reviewed its natural meaning and gives effect to both the preliminary and final plat approval decisions as significant steps in the plat approval process.
Petitioners properly point out that under the approval process in Town Law §§ 276 and 282, the Board's review of certain aspects of the subdivision would not have been complete until it had issued its final approval. However, the final approval here in no way involved SEQRA review. The only Board decision involving SEQRA was the one giving preliminary plat approval, a decision which, with respect to SEQRA, was in all respects final and aggrieved petitioners who opposed the subdivision on SEQRA grounds. Thus, we conclude that *614 the Board's filing of the preliminary plat approval was a decision which triggered the 30-day Statute of Limitations of section 282 for challenging the subdivision proposal on SEQRA grounds (see, Matter of Casement v Town of Poughkeepsie Planning Bd., 162 AD2d 685, 687, lv dismissed 76 N.Y.2d 930; Matter of Monteiro v Town of Colonie, 158 AD2d 246, 249-250; Matter of Wing v Coyne, 129 AD2d 213, 217; see also, Matter of King v Chmielewski, 76 N.Y.2d 182, 186). That the Legislature intended that there should be judicial review proceedings under section 282 at intermediate stages in the approval process is evidenced by the legislative concern that such approval decisions receive expeditious review i.e., its provision that such proceedings be given "preference over all other civil actions and proceedings" (Town Law § 282).
Our construction furthers the evident legislative purpose of establishing a process for orderly and prompt determination of subdivision proposals. Town Law § 276 (2) (a) provides that a preliminary plat must show the layout of the proposed subdivision, including at least the road and lot layout with approximate dimensions, key plan, topography, drainage and all proposed facilities with detailed preliminary plans and profiles. The preliminary plat approval is intended to fix the basic components of the proposed development and, "absent new information, a subsequent modification or rejection of a preliminarily approved subdivision layout is an arbitrary and capricious act subject to invalidation" (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 372-373, affd 62 N.Y.2d 965, supra; see, 5 Ziegler, Rathkopf's The Law of Zoning and Planning § 66.02 [2] [4th ed]; 4 Anderson, American Law of Zoning § 25.13 [3d ed]). Here, the Board took the significant step of accepting the preliminary plat without placing any conditions upon approval of the environmental aspects of the project. Thus, the preliminary approval was final regarding SEQRA issues. To allow a SEQRA challenge to be postponed until final plat approval would leave the environmental status of the entire subdivision project undetermined. This would frustrate the statutory purpose of having an approval at the preliminary stage so that important design questions are finally settled and both the developer and the town are able to rely on there being final approval of significant aspects of the subdivision before the investment of additional time and money (see, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 368, 372, supra).
Moreover, a contrary interpretation i.e., making the entire *615 project subject to being vacated on SEQRA grounds after the Board's final plat approval could have a devastating financial impact when the developer has made a substantial investment and may already be under commitments for financing and other contractual obligations. The construction of section 282 we adopt avoids such unreasonable and potentially unjust consequences (see, Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 N.Y.2d 114, 124-125; McKinney's Cons Laws of NY, Book 1, Statutes §§ 141, 143, 146).
Our construction of section 282 as providing for review of SEQRA compliance within 30 days of the preliminary approval also promotes the policy considerations underlying SEQRA. ECL 8-0109 (4) provides that whether an EIS for a proposed action is required must be determined "[a]s early as possible" in the planning process. That section further states that the purpose of an EIS "is to relate environmental considerations to the inception of the planning process, [and] to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment" (ECL 8-0109 [4] [emphasis added]; see also, Matter of Save the Pine Bush v City of Albany, 70 N.Y.2d 193, 203). Consistent with these SEQRA policies, we have concluded that the environmental questions pertaining to the Meadows should have been reviewed as early as possible in the planning process in this case, the preliminary plat approval stage when it was still practical to modify the project, if necessary, to mitigate adverse environmental effects (see, ECL 8-0109 [4]; Matter of Save the Pine Bush v City of Albany, 70 N.Y.2d 193, 203, supra; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 372, affd 62 N.Y.2d 965, supra; Matter of Hickey v Planning Bd., 173 AD2d 1086, 1088).
In sum, when SEQRA review has been completed at the preliminary approval stage, Town Law § 282 and the statutory purposes of the subdivision approval process and SEQRA require that a challenge to the subdivision based on SEQRA grounds not be postponed until after final subdivision approval.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589374/ | 162 A.D.2d 659 (1990)
Hartford Accident & Indemnity Company, Respondent,
v.
Carson C. Peck Memorial Hospital et al., Respondents-Appellants, Transportation Insurance Company et al., Appellants-Respondents, et al., Defendant
Appellate Division of the Supreme Court of the State of New York, Second Department.
June 25, 1990
Bracken, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.
Ordered that the order dated September 29, 1988, is affirmed, with one bill of costs to the defendants Carson C. Peck Memorial Hospital, Carson C. Peck Memorial Division of Methodist Hospital of Brooklyn, Methodist Hospital of Brooklyn, and the plaintiff; and it is further,
Ordered that the order entered August 28, 1989, is affirmed, with one bill of costs to the defendants Transportation Insurance Company and American Casualty Company of Reading, Pennsylvania.
*660The defendants Carson C. Peck Memorial Hospital (hereinafter Peck) and Methodist Hospital of Brooklyn (hereinafter Methodist) were consolidated in 1969. Pursuant to the consolidation agreement, Methodist assumed all of Peck's insurance policies, liabilities, and obligations. These liabilities included two negligence causes of action, which arose from services rendered by Peck. The first of these actions, entitled Cullen v Methodist Hosp. (index No. 7326/83), now pending in the Supreme Court, Kings County, arose from services rendered by Peck during 1966. The second action entitled Silverman v Various Defendants (index No. 9163/84), also now pending in the Supreme Court, Kings County, arose from services rendered by Peck during 1963 and 1964. At the time the alleged negligence was committed, Peck was insured by the defendants Transportation Insurance Company (hereinafter Transportation) and American Casualty Company of Reading, Pennsylvania (hereinafter American). Hartford Accident and Indemnity Company (hereinafter Hartford), Methodist's insurer, assumed Methodist's defense in the Cullen and Silverman actions and, upon learning that Transportation and American insured Peck at the time the alleged negligence occurred, notified those insurers of their obligation to indemnify and defend Methodist in those actions. Hartford then brought this action for a judgment declaring the rights and liabilities of the concerned parties.
The court properly granted summary judgment declaring that Transportation and American are obligated to defend and indemnify Methodist. The alleged negligence underlying the Silverman and Cullen actions occurred at Peck during 1963 and 1964, and 1966, respectively. On the dates in question, Peck was insured by Transportation and American and not Hartford.
*661Transportation and American are incorrect in their assertion that Hartford is estopped from disclaiming its obligation to defend and indemnify Methodist because Hartford assumed Methodist's defense. "While an insurer may, by its conduct, waive the right to assert noncoverage as a defense, mere delay is insufficient, absent statutory provisions, to estop disclaimer (O'Dowd v American Sur. Co., 3 N.Y.2d 347). As a general rule, where an insurer defends an action on behalf of its insured with knowledge of a defense to the coverage, it is thereafter estopped from asserting that the policy does not cover the claim (Hartford Ins. Group v Mello, 81 AD2d 577)" (Corcoran v Abbott Sommers, Inc., 143 AD2d 874, 876). "Notice of a disclaimer must be timely in order to reserve the insurer's right, while defending the action, to claim the policy does not cover the situation at issue. * * * An estoppel will lie only if the insured has been prejudiced by the insurer's actions" (Hartford Ins. Group v Mello, supra, at 578). Upon learning that Peck was insured by Transportation and American at the time the alleged negligence occurred, Hartford contacted Methodist and informed the latter that it (Hartford) was not obligated to defend Peck on the underlying claims. This notice of noncoverage reserved Hartford's right to defend Methodist while maintaining its assertion that it was not obligated to do so (see, Hartford Ins. Group v Mello, supra, at 578). Additionally, the record does not indicate that the underlying actions were placed on the Trial Calendar at the time Hartford disclaimed its coverage. Thus, Hartford's actions did not prejudice Methodist and no estoppel lies against Hartford (Hartford Ins. Group v Mello, supra, at 578).
Methodist is not entitled to the reimbursement of counsel fees expended in this declaratory judgment action. "It is the rule in this State that the award of legal fees `may not be had in an affirmative action brought by an insured to settle its rights * * * but only when the insured has been cast in a defensive posture by the legal steps an insurer takes in an effort to free itself from its policy obligations' (Mighty Midgets v Centennial Ins. Co., 47 N.Y.2d 12, 21; see also, Johnson v General Mut. Ins. Co., 24 N.Y.2d 42)" (Blueprint Plumbing Corp. v Kreisler Borg Florman Constr. Co., 147 AD2d 518, 519; see also, Barry v Romanosky, 147 AD2d 605). Hartford instituted this declaratory judgment action against Peck, Methodist, Transportation and American. Peck and Methodist crossclaimed against Transportation and American. Transportation and American then cross-moved for summary judgment dismissing the claims asserted by Hartford, Peck, and Methodist. *662 Thus, Methodist was put in a defensive posture by Hartford and in turn sought affirmative relief from American and Transportation. Since Methodist, by seeking affirmative relief against American and Transportation, placed Transportation and American in a defensive posture, it cannot recover counsel fees (see, Mighty Midgets v Centennial Ins. Co., supra, at 21). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589384/ | 79 N.Y.2d 618 (1992)
The People of the State of New York ex rel. Michael A. Hardy, on Behalf of Gerald Miller, Appellant,
v.
Allyn R. Sielaff, as Commissioner of the Department of Correction of the City of New York, et al., Respondents.
Court of Appeals of the State of New York.
Argued April 29, 1992.
Decided June 4, 1992.
Michael A. Hardy and Harry Kresky for appellant.
Richard A. Brown, District Attorney (Robin A. Forshaw and Barbara D. Underwood of counsel), respondent pro se.
Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur.
*619Chief Judge WACHTLER.
At issue in this habeas corpus proceeding is the validity of the distinction drawn in CPL 500.10 (17) between personal property and real property for the purpose of securing a bail *620 bond. CPL 500.10 (17) (a) provides that nonexempt personal property may be used as security if its net value is equal to or greater than the total amount of the undertaking. CPL 500.10 (17) (b), on the other hand, requires that, for real property to be used as security, its net value must be at least twice the total amount of the undertaking.
In the underlying criminal proceeding, the defendant sought to post a bail bond secured by several parcels of real property, the aggregate value of which, he acknowledged, was insufficient to satisfy the double equity requirement of CPL 500.10 (17) (b). He contended, however, that the requirement was unconstitutional. After Supreme Court rejected his arguments, he commenced this habeas corpus proceeding in the Appellate Division, Second Department, renewing his constitutional arguments and seeking a reduction in bail. The Appellate Division dismissed the proceeding, without opinion.
Relator relies primarily upon People v Burton (150 Misc 2d 214), which held that the double equity requirement of CPL 500.10 (17) (b) was irrational and therefore unconstitutional. In Burton, the court first rejected the defendant's contention that, for purposes of equal protection analysis, the distinction between personal property and real property should be subjected to strict scrutiny, concluding that the distinction implicated neither a suspect classification nor a fundamental right (150 Misc 2d, at 221-222). After tracing the history of the double equity requirement, however, the court concluded that the evils which prompted its enactment the use of undesirable properties as security and abusive bondsmen who used the same property as security for bail several times are no longer significant problems and that the retention of the requirement in the face of these changed circumstances was irrational (id., at 225-226).
We conclude, however, that the double equity requirement is rationally based. The legislative history recounted by the court in People v Burton reveals that the requirement, as might be expected, was designed to ensure that the real property would provide adequate security for the obligation (id., at 219). While the concern may have been prompted by the abuses of certain commercial bondsmen, it does not follow that the Legislature's success in curtailing such abusive practices has negated the State's legitimate interest in ensuring that the collateral posted for a secured bond is adequate. For these purposes, treating personal property and real property differently is rational.
*621To a greater extent than personal property, real property is subject to title problems and other hidden defects that can affect value, but which cannot readily be ascertained without expensive and time-consuming procedures. A court, in the context of entertaining a bail application, cannot be expected to employ the careful appraisal and underwriting techniques of a commercial lender. The double equity requirement provides the court with the ability to accept real property as security without being overly concerned about such potential defects.
In addition, the costs and difficulties of a foreclosure justify granting real property less than full value as collateral. Even commercial lenders rarely accept real property as collateral for its full market value, though they have the advantage of dealing with customers of their own choosing who, according to established underwriting standards, pose an acceptably low risk of default. Furthermore, up to $10,000 in value of real property owned and occupied as a principal residence may be exempt from execution (see, CPLR 5206). Where, as here, several parcels with different owners are offered as security, the combined exemptions could seriously impair the value of the property as collateral. The double equity requirement of CPL 500.10 (17) (b) helps to ensure that the real property offered as security will have sufficient nonexempt value (cf., CPLR 5205 [exempting certain personal property from execution]; CPL 500.10 [17] [a] [precluding the use of exempt personal property as security for a bail bond]).
Given just these few factors and there are undoubtedly others the need is evident for real property to have a value greater than the amount that it is securing. In the bail bond context, at least, the double equity requirement is a reasonable means of ensuring that the value will be adequate.
We also reject relator's argument that strict equal protection scrutiny is applicable because minorities are disproportionately affected by the bail statutes. CPL 500.10 (17) contains, on its face, no suspect classification. The only distinction drawn in the statute is between real property and personal property. Relator has made no showing that the double equity requirement, which is applicable only to those who seek to use real property as security, has a disproportionate impact on racial or ethnic minorities or that the Legislature harbored any discriminatory intent (see, Washington v Davis, 426 US 229, 242).
*622Finally, relator's alternative argument that his bail should be reduced must also be rejected. Supreme Court's determination in fixing bail was "an exercise of discretion resting on a rational basis and thus beyond correction in habeas corpus" (People ex rel. Parker v Hasenauer, 62 N.Y.2d 777, 779).
Accordingly, the judgment of the Appellate Division should be affirmed, without costs.
Judgment affirmed, without costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3342134/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE
Plaintiff's motion is based on the fact that John Voloshin was not a party to this action at the time an answer was filed on his behalf.
The answer in question was filed on September 30, 1999 and was filed on behalf of John Voloshin. John Voloshin was not a party at that particular time yet the pleading indicated it was the answer of John Voloshin.
On January 18, 2000, a motion was granted to cite John Voloshin as a defendant. The court also granted permission to file an amended complaint setting forth the additional claims of the plaintiff as against John Voloshin.
On February 18, 2000, an appearance was filed on behalf of John Voloshin by Attorney Daniel Shepro.
On June 19, 2000, a request was filed with the court on behalf of the defendant Home Investment Corporation for permission to file an amendment to the answer it had previously filed on behalf of John Voloshin noting that the defendant Home Investment Corporation should have been the party named in its answer.
There appears to be no reason why this request should not be granted. This being so, the court finds the Motion to Strike moot.
The motion is therefore denied.
The Court
By _________ Curran, J. CT Page 9134 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2227970/ | 904 N.E.2d 1253 (2005)
359 Ill. App.3d 1224
VICHWEG
v.
KLUCKMAN DELIVERY.
No. 5-04-0292.
Appellate Court of Illinois, Fifth District.
August 3, 2005.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1915462/ | 961 A.2d 554 (2008)
406 Md. 580
JOHN C. EASTERWOOD
v.
STATE.
Pet. Docket No. 387.
Court of Appeals of Maryland.
Denied December 12, 2008.
Petition for writ of certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2592352/ | 40 N.Y.2d 707 (1976)
Nana R. Gozan, Formerly Known as Nana R. Krakower, Respondent,
v.
Mutual Life Insurance Company of New York, Appellant.
Court of Appeals of the State of New York.
Argued October 21, 1976.
Decided November 30, 1976.
Willard G. Eldred, Samuel C. Cantor, James P. Corcoran and Richard M. Storto, New York City, for appellant.
Samuel W. Sherman and Leon Wasserman, New York City, for respondent.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur.
*708COOKE, J.
On May 9, 1968, Arnold Krakower, an attorney, completed an application for a policy of term life insurance in the amount of $40,000 and submitted that application to the Mutual Life Insurance Company of New York (MONY). Mr. Krakower declared himself to be in good health, regularly performing the duties of his occupation in the usual manner. He further declared that during the five years previous he in no way curtailed his duties because of bad health and, to the best of his knowledge had no health impairment. In response to the question, "During the past 5 years have you consulted any physician or other practitioner, been hospitalized or had a surgical operation?" he replied in the affirmative and provided the following required detail "Ann[ual] checkups colds & virus complete recovery."
A requisite physical examination was given Mr. Krakower on June 27, 1968 at which time he was again confronted with *709 a series of printed questions pertaining to his health, questions designed to elicit information as to specific disorders, illnesses and injuries. Mr. Krakower admitted to surgery for a hernia and a tonsillectomy in childhood, an appendectomy in 1925, a stay in Mt. Sinai Hospital for a cholecystomy in 1952, a routine EKG in the early 1960's, nonrecurring low back pain in 1962, and a 1967 visit to his physician for a cold innoculation. To all other questions he gave negative responses, thus indicating that he had never had any known indication of, or received treatment for, the other enumerated or referred to conditions. He also denied being under medication during the previous year. At the top of the first page of the two-page medical report on which all these answers were recorded appeared the following printed heading: "Forming Part of Application To The MUTUAL Life Insurance Company OF NEW YORK". At the foot of that application and directly above Mr. Krakower's signature, was a representation that the statements and answers in this portion of the application, as well as in other parts, were true and complete.
In addition to seeking insurance on his own life, Mr. Krakower applied for $5,000 in term insurance on the life of his wife. The application for that coverage, completed on May 9, 1968, contained four questions of substance, all directed at obtaining information about the health of Mrs. Krakower. The responses given indicated that Mrs. Krakower had no health impairments and had consulted a physician during the previous five years for annual checkups, colds and viruses and had effected a complete recovery.
The policy sought was issued on June 27, 1968. Appended to that policy were the two applications relating to the life of Mr. Krakower as well as the single application for insurance on the life of his wife. Within the one-year contestability period of the policy, Arnold Krakower died from complications arising from polycythemia vera, a blood disease with which he had suffered for the past 20 years.
Investigations by the insurance company disclosed that in June of 1968, as well as on seven prior occasions, Mr. Krakower had been hospitalized for polycythemia and conditions relating thereto. Polycythemia vera is defined in the record as "A disease marked by a persistent increase of the red blood corpuscles due to excessive formation of erythroblasts by the bone marrow. It is accompanied by increased thickness of the blood, and enlargement of the spleen. The disease extends *710 over many years and gradually causes death by complications."
Contrary to the medical history given on the application of June 27, 1968, Mr. Krakower's hospital records revealed the onset of polycythemia in 1947 and reflected periods of intensive care and treatment for the condition including the period from 1960 through 1965. In 1965, the condition stabilized, but worsened again in March of 1968. It was during this time, the spring of 1968, that Mr. Krakower applied for the insurance coverage here in dispute. In fact, two weeks prior to the insurance physical of June 27, 1968, he had been hospitalized and treated for complications arising from the blood condition.
Mr. Krakower's widow filed a claim with MONY. The latter, after receiving the results of the investigation as noted above, refused payment. Instead MONY sent notice to Mrs. Krakower of its intention to rescind the policy because of the decedent's misrepresentation in his application and followed that notice with tender of a check in the amount of $644.66 which included return of payments made on the policy and interest thereon. The check was rejected and this action for $40,000 ensued.
Motions made at Special Term for summary judgment were denied. While the court acknowledged that the validity of the policy had been timely contested and that the facts concealed by the decedent had been material, it questioned the legibility and thus the admissibility under section 142 of the Insurance Law of the representations of decedent as they appeared on the copies of the application for insurance appended to decedent's copy of the policy. Viewing the question of legibility as one of fact for a jury, the summary judgment motions were denied and the case referred for trial on that single issue.
At trial the issue was narrowed even further, as plaintiff's counsel stipulated as to the legibility of the copies of the two applications pertaining to the life of Mr. Krakower, marked as plaintiff's exhibits "1B" and "1C". Thus, the only question presented to the jury was whether the copy of the application on the wife's life, marked as plaintiff's exhibit "1A", was legible. The jury found that it was not.
Although the trial court accepted this finding, it went further by correctly redefining the issue in the case as whether the illegibility of the copy of the application for insurance on the life of Mr. Krakower's widow should prevent the insurance company from demonstrating the falsity of Mr. *711 Krakower's application. And, once so defined, that court determined subdivision 1 of section 142 of the Insurance Law to be no bar and found defendant entitled to judgment dismissing the complaint. The Appellate Division reversed, holding that section 142 rendered inadmissible decedent's application. That reversal brought the case before this tribunal which now unanimously reverses that latter determination and orders the reinstatement of the order of the trial court.
Section 142 of the Insurance Law derives from former section 58 and, in subdivision 1, provides as follows: "1. Every policy of life, accident or health insurance, or contract of annuity, delivered or issued for delivery in this state shall contain the entire contract between the parties, and nothing shall be incorporated therein by reference to any constitution, by-laws, rules, application, or other writings, unless a copy thereof is endorsed upon or attached to the policy or contract when issued. No application for the issuance of any such policy or contract shall be admissible in evidence unless a true copy of such application was attached to such policy when issued."
It is clear that this section is directed toward the protection of the insured or his or her beneficiary by providing the insured with the opportunity to examine those writings, including applications, that may be relevant to the policy and, particularly in the case of applications, affording an opportunity to correct any incorrect statements therein (Cutler v Hartford Life Ins. Co., 22 N.Y.2d 245, 252; Helfaer v John Hancock Mut. Life Ins. Co., 51 Misc 2d 869, revd 30 AD2d 102, revd 26 N.Y.2d 699). In order for this opportunity to be meaningful, it is beyond question that the copies provided the insured be legible (1 Couch, Insurance 2d, § 4:18; see Arter v Northwestern Mut. Life Ins. Co., 130 F 768; New York Life Ins. Co. v Halpern, 57 F.2d 200, 204, affd 61 F.2d 1037; New York Life Ins. Co. v Miller, 73 F.2d 350, 355-356).
In this case the challenge is not made under the first sentence of subdivision 1 of section 142. Rather, it is the second sentence, the sentence governing the admissibility into evidence, on which the respondent relies. That sentence was not part of the former section 58, nor did it appear in section 142 as originally enacted (L 1939, ch 882). It was added in 1940 (L 1940, ch 94) and is a clear example of legislative repeal of court-made law. The case which triggered the legislative action was Abbott v Prudential Ins. Co. (281 N.Y. 375) *712 where this court, though acknowledging that no part of the application had been attached to the policy as required by former section 58, nevertheless held the application admissible to prove that the insured knew of the limitation of the agent's authority. Recognizing this result as antithetical to the intent of section 142, the Legislature added the second sentence, to assure that "[n]o application for the issuance of any such policy * * * shall be admissible in evidence unless a true copy of such application was attached to such policy when issued."
Here, the insurer has sought to introduce the applications for insurance on the life of Mr. Krakower, the copies of which were conceded to be true and legible copies, but would be barred by the Appellate Division because of the illegibility of the copy of the application for the coverage of his widow. Although attached to the same policy, under these circumstances and for this particular purpose, the applications which relate to different lives, separate coverage and distinct risks, must be viewed as they were by the trial court, as separate and distinct. Thus, in this situation, the second sentence of section 142 should not be applied to render inadmissible the husband's applications for insurance. On these facts, to hold otherwise would be a misapplication of the statute.
The order of the Appellate Division should be reversed and the order and the judgment of the Supreme Court, Trial Term, reinstated with costs in all courts.
Order reversed, etc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1869203/ | 157 B.R. 220 (1993)
In re WATERMAN STEAMSHIP CORPORATION, Debtor.
WATERMAN STEAMSHIP CORPORATION, Plaintiff-Appellant,
v.
Jose AGUIAR, et al., Defendants-Appellees.
No. 93 Civ. 4849.
United States District Court, S.D. New York.
August 16, 1993.
*221 Helen Feuer, White & Case, New York City, for plaintiff-appellant.
Alan Kellman, The Maritime Asbestosis Clinic, a division of the Jaques Admiralty Law Firm, Detroit, MI, for defendants-appellees.
OPINION AND ORDER
STANTON, District Judge.
This appeal from the decision of the Bankruptcy Court, 141 B.R. 552 (Bankr. S.D.N.Y.1992), involves the question of adequate notice to seamen, who had been exposed to asbestos on Waterman vessels, of their need to file claims in Waterman's bankruptcy proceedings. The factual and procedural background is set forth in the published opinion of the Bankruptcy Court.
DISCUSSION
Under § 1141 of the Bankruptcy Code, the confirmation of a chapter 11 plan of reorganization discharges the debtor from any debt that arose prior to confirmation, unless the debt is exempt under the Code, plan or order confirming the plan. In re Brooks Fashion Stores, Inc., 124 B.R. 436, 445 (Bankr.S.D.N.Y.1991). Due process requires the provision of reasonable notice to those parties whose claims are to be discharged: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Reasonable notice of a bankruptcy proceeding includes notice of the bar date for filing a proof of claim. See In re Spring Valley Farms, Inc., 863 F.2d 832, 834 (11th Cir. 1989) ("due process prevents Section 1141 from being read to extinguish their claims when no notice of the bar date for filing a proof of claim has been sent."); In re Turning Point Lounge, LTD., 111 B.R. 44, 47 (Bankr.W.D.N.Y.1990) ("The courts which have addressed this issue have uniformly held that the debt owed to a creditor who was not scheduled, did not receive notice of the bar date for filing a proof of claim and therefore, could not participate in the reorganization process is not bound by the plan and its claim is not discharged notwithstanding § 1141(c) and (d)(1)(A)(i)").
The proper inquiry in evaluating the adequacy of notice is whether a party "acted reasonably in selecting means likely to inform persons affected." Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir. 1988), cert. denied, 488 U.S. 1005, 109 S.Ct. 785, 102 L.Ed.2d 777 (1989). In providing notice, "a debtor must make reasonably diligent efforts to uncover the identities of those who have claims against the debtor, although the debtor is not required to search out each conceivable or possible creditor and urge the creditor to file a proof of claim." In re Thomson McKinnon Securities, Inc., 130 B.R. 717, 720 (Bankr.S.D.N.Y.1991). While creditors with reasonably ascertainable names and addresses are entitled to actual notice, publication notice has been held adequate for unknown creditors. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 490, 108 S.Ct. 1340, 1347, 99 L.Ed.2d 565 (1988) ("For creditors who are not `reasonably ascertainable,' publication notice can suffice.").
*222 In the circumstances here:
1. When notice of the bar date was sent out, all those former seamen who were known to be actual or potential claimants (i.e., all those who Waterman knew had manifested signs of illness) were entitled to actual personal notice. Notice by publication, or through a lawyer representing them in another proceeding, or in any fashion other than actual personal notice does not suffice. See Tulsa, 485 U.S. at 491, 108 S.Ct. at 1348 ("If appellant's identity was known or `reasonably ascertainable' then termination of appellant's claim without actual notice violated due process.").
2. Those actual or potential claimants who could not be personally identified with reasonable effort were not entitled to actual personal notice. They were entitled to notice which was "reasonably calculated, under all the circumstances, to apprise [them] of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 314, 70 S.Ct. at 657. Notice which is not personally addressed, including notice by publication, may suffice if it is reasonable under the circumstances. See Tulsa, 485 U.S. at 490, 108 S.Ct. at 1347. The sufficiency of notice through his or her counsel might be considered in this connection. Since the issue is one of notice, it is questionable whether the appointment of a representative for the claimants as a whole would be a satisfactory alternative. Cf. Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 176, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974) (there is "little to commend" the contention that adequate representation, rather than notice, is the touchstone of due process in a class action and therefore satisfies Fed.R.Civ.P. 23).
The Bankruptcy Court did not adequately analyze whether the notice given by Waterman sufficed to meet this standard with respect to those individually unidentifiable seamen who had manifested symptoms of the disease when notice of the bar date was given, and who were thus able to perceive the significance and implications of the information.
3. The Bankruptcy Court correctly held that the potential future claims of those who had not manifested any detectable signs of disease when notice of the bar date was given, were not discharged in the bankruptcy proceeding.
CONCLUSION
In applying those principles, it is necessary to discriminate among the various recipients of Waterman's notice. That may require factual determinations concerning such questions as when the seaman manifested disease symptoms, and the reasonableness of the notice to particular individuals or groups. The Bankruptcy Court, however, simply found in favor of what it called the "Asbestosis Claimants" as a whole.
Accordingly, the judgment is vacated, and the action is remanded to the Bankruptcy Court for further proceedings.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1025755/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1859
FELICIA G. WATKINS,
Plaintiff - Appellant,
v.
PETE GEREN, Secretary, Department of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:06-cv-02728-JFM)
Submitted: April 30, 2008 Decided: May 20, 2008
Before GREGORY and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jeffery C. Taylor, Michael J. Snider, Ari Taragin, SNIDER &
ASSOCIATES, LLC, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Ariana Wright Arnold, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Felicia G. Watkins appeals the district court’s orders
denying her Fed. R. Civ. P. 56(f) motion for additional discovery,
granting Defendant’s summary judgment motion on her race and gender
discrimination and retaliation claims, brought pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e
to 2000e-17 (2000), and denying her Fed. R. Civ. P. 59(e) motion
for reconsideration. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated by
the district court. See Watkins v. Geren, No. 1:06-cv-02728-JFM
(D. Md. June 19, 2007). 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/2611786/ | 38 Cal. App. 2d 719 (1940)
PHILENA TRAUB, Respondent,
v.
CONSTANCE EDWARDS, Appellant.
Civ. No. 11252.
California Court of Appeals. First Appellate District, Division Two.
May 6, 1940.
Rosenshine, Hoffman, Davis & Martin for Appellant.
John J. Taaffe for Respondent.
Spence, J.
Defendant appeals from a judgment entered in favor of plaintiff in this action for damages for the alleged alienation of the affections of plaintiff's husband.
Said action was filed in 1938 and the judgment was entered in 1939. The notice of appeal was filed on September 15, 1939, and certain code amendments thereafter took effect on September 19, 1939. This appeal is presented on the judgment roll alone and no question is discussed in the briefs other than that of the effect of said code amendments upon actions for alienation of affections pending on September 19, 1939.
Defendant contends that "plaintiff's cause of action was destroyed by the repeal of the statute on which her cause of action depended". Defendant quotes the language found in Krause v. Rarity, 210 Cal. 644 at page 652 as follows [293 P. 62, 77 A.L.R. 1327]: "By those cases the rule obtaining elsewhere has become thoroughly established in the law *721 of this state that when a right of action does not exist at common law, but depends solely upon a statute, the repeal of the statute destroys the right unless the right has been reduced to final judgment or unless the repealing statute contains a saving clause protecting the right in a pending litigation."
Defendant then argues: First, that the right of action for the alienation of the affections of a husband did not exist at common law but was created by subdivision 1 of section 49 of the Civil Code as it existed prior to September 19, 1939 (Humphrey v. Pope, 122 Cal. 253 [54 P. 847]; 13 Cal.Jur. 901); second, that plaintiff's right of action had not been reduced to final judgment and her action was still pending when the previously existing provisions of subdivision 1 of said section 49 relating to alienation of affections were repealed on September 19, 1939; and third, that there was no "saving clause in the repealing statute protecting plaintiff's right". It is upon these three points that defendant bases her contention that plaintiff's cause of action "was destroyed by the repeal of the statute" and that the judgment should therefore be reversed. Plaintiff apparently concedes the soundness of the first two points but contends that there was a saving clause and that there is therefore no foundation for defendant's contention. Before considering the code amendments which went into effect in 1939, we deem it appropriate to set forth certain general principles which we believe are applicable here.
[1] When it is the purpose of the legislature to repeal a statute and to save the rights of litigants in pending actions based upon such statute, such purpose may be accomplished by including an express saving clause in the repealing act. But such rights may likewise be saved by any act passed at the same session of the legislature showing that the legislature intended that the rights of litigants in pending actions should be saved. (Black on Interpretation of Laws, 2d ed., pp. 424 and 425.) It is not essential that there be an express saving clause (Gorley v. Sewell, 77 Ind. 316; Commonwealth v. Mortgage Trust Co., 227 Pa. 163 [76 P. 5]), or that the intention to save the rights of litigants in pending actions appear in the repealing act itself. (Baltimore & Ohio R. Co. v. Pittsburgh W. K. R. Co., 17 W. Va. 812.) These principles are clearly set forth in the text above cited where it is said *722 on page 424, "An express saving clause in a repealing statute is not required in order to prevent the destruction of rights existing under the former statute, if the intention to preserve and continue such rights is otherwise clearly apparent. Thus, if it can be gathered from any act on the same subject passed by the legislature at the same session that it was the legislative intent that pending proceedings should be saved, it will be sufficient to effect that purpose."
There is no conflict between the general principles above set forth and the decision in Krause v. Rarity, supra. The above-quoted language from the opinion in that case was used in a general discussion of the subject and not in relation to a situation such as is presented here. Language similar to that quoted above had been used in a previous opinion of the supreme court of appeals of West Virginia and was considered by that court in its later decision in Baltimore & Ohio R. Co. v. Pittsburgh W. K. R. Co., supra, where it said at page 879, "The language used by this court in Currans v. Owens [15 W. Va. 208], that the legislative intent in such cases must be gathered from the repealing act itself, must be understood as applying to the circumstances of that case. In that case there was no act passed at the session of the legislature referred to upon the subject, except the act containing the repealing section; and the legislative intent was in that case necessarily gathered from the repealing act itself."
[2] We now turn to the situation presented by the legislation enacted at the 1939 session of the legislature. Three chapters of the statutes of that year have a bearing upon the subject under discussion. By chapter 128, section 49, of the Civil Code was amended so as to eliminate therefrom the provisions relating to alienation of affections and a new section, being section 43.5 of the Civil Code, was added to provide in part, "No cause of action arises for: (a) Alienation of affection." By chapter 129, which was filed with the secretary of state on the same day, a new section, being section 341.5 of the Code of Civil Procedure, was added to provide that "An action upon any cause of action arising before the effective date of this section from ... alienation of affections ... must be commenced within sixty days after the effective date of this section, but this provision does not revive an action the time for the commencement of which has expired prior to the effective date hereof." More than *723 two months later, chapter 1103 was filed with the secretary of state. By this last-mentioned chapter, said section 49 of the Civil Code was amended and said section 341.5 of the Code of Civil Procedure was amended. The wording of said chapter 1103 was in all respects similar to the wording found in said chapters 128 and 129 in so far as it related to the subject of alienation of affections. Said three chapters went into effect on the same day, September 19, 1939.
It is apparent from what has been said that there was no express saving clause in any of said chapters, expressly saving to litigants any rights which had theretofore arisen under the repealed portions of section 49 of the Civil Code relating to alienation of affections. It is equally apparent, however, that it was the intention of the legislature to save such rights provided that actions to enforce such rights were commenced within sixty days from and after the effective date of said chapters. In the last analysis the question is one of the intention of the legislature and we believe that the intention to save such rights was clearly manifested by the portions of chapters 129 and 1103 dealing with section 341.5 of the Code of Civil Procedure. While it is true that these provisions related directly to new actions rather than to pending actions, the legislature could not have intended to preserve the rights of litigants whose actions had not then been filed and to destroy the rights of those whose actions had already been filed and were pending.
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/2227975/ | 904 N.E.2d 980 (2009)
231 Ill. 2d 667
IN RE BABY GIRL F.
No. 107924.
Supreme Court of Illinois.
March Term, 2009.
Disposition of petition for leave to appeal.[*] Denied.
NOTES
[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600711/ | 186 P.3d 347 (2007)
STATE
v.
VOS.
No. 20070653.
Supreme Court of Utah.
November 29, 2007.
Petition for certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611795/ | 39 Cal. App. 2d 109 (1940)
Mrs. H. P. SPENCER, Respondent,
v.
H. M. SCOTT et al., Defendants; MERLE B. PETERSON, Appellant.
Civ. No. 6410.
California Court of Appeals. Third Appellate District.
May 14, 1940.
H. K. Landram for Appellant.
C. Ray Robinson, W. Eugene Craven and Willard B. Treadwell for Respondent.
Thompson, Acting P. J.
Merle B. Peterson has appealed from a judgment of $5,473 and costs which was rendered against him in an automobile casualty case. The plaintiff was injured while riding with him as a guest. It is asserted the evidence fails to support the finding of the trial court that the accident occurred through the wilful misconduct of the appellant.
The appellant and Miss Laura Scott drove from Merced to Berkeley in a Dodge sedan automobile owned by her father. Just prior to leaving Merced the brakes of the machine were relined and adjusted at a garage. After those repairs were completed Miss Scott noticed that the brakes were still "a little loose". She returned to the garage the same afternoon for gasoline and told the mechanic that the brakes seemed to be too loose. She did not direct him to again adjust the brakes, but she assumed that he did so. The brakes were still too loosely adjusted. She testified in that regard: "They were a little tighter, but weren't tight enough when I started on the trip." The following day she drove the car to Berkeley. The appellant accompanied her. On the way to Los Banos she discovered that the brakes were still "a little bit loose". It was necessary to force the lever nearly down to the footboard to stop the machine. She informed Mr. Peterson of *111 that defect. The car also had an emergency brake which was in good mechanical condition. She said she did not notice that an application of the brakes caused the machine to pull away from a straight course toward either side.
At Berkeley the following day, Miss Scott picked up her sister and her friend, the plaintiff, Mrs. H. K. Spencer. They started about 12:30 P. M. to drive back to Merced by way of San Jose. It was raining and the pavements were wet. The appellant, Merle B. Peterson, was driving the car. Miss Scott sat by his side. The respondent occupied the rear seat. Mr. Peterson testified regarding the condition of the brakes:
"Q. And when you applied the brakes the first time, there was a tendency to pull to the left? A. Just a little. ... Q. But they were out of adjustment, is that the way you describe it? A. Well, slightly out of adjustment to the extent that one brake may have been a little tighter than the other."
It had ceased raining but the pavement was still wet. As the vehicle left San Jose on a three-lane highway, a passenger bus traveled ahead of it at the rate of 25 or 30 miles an hour. The appellant was driving at the rate of about 45 miles an hour. He may have reached a speed of 50 miles an hour. A truck and trailer was approaching from the south along its proper easterly lane. An automobile driven by Laura Griffith was following behind the truck and trailer in the easterly lane at a distance of about 200 feet or more. The center lane was then unoccupied. A couple of other vehicles passed, going north, along their proper side of the highway. There was then no other traffic in that vicinity. As the appellant's car reached a point about 250 feet behind the passenger bus, which was traveling comparatively slowly, Mr. Peterson, realizing he would soon overtake it, released his accelerator, and reduced the speed of his car. He made no attempt to pass the bus, nor to turn his machine into the center lane. There is no evidence that he applied the brakes forcibly as in an emergency. There is no evidence of an emergency until after the brakes were applied. The appellant merely slackened the speed of his machine as he approached the bus which preceded him. He released the accelerator when he reached a point about 250 feet behind the bus. He began to apply his brakes when he was about 80 *112 feet away. His machine never reached a point closer than 40 feet from the bus.
It appears that at the same time Mr. Peterson began to slacken the speed of his car as he approached the bus the driver of the northbound Griffith car was engaged in attempting to pass the truck and trailer which preceded it. For that purpose Laura Griffith was then operating her car along the center lane of the highway. As she passed the southbound bus on her left and the northbound truck and trailer on her right, the appellant's machine suddenly skidded into the center lane and crashed into the Griffith car. As a result of the collision the respondent sustained a broken leg. Regarding the accident, Mr. Peterson testified:
"Q. You saw the car ahead of you for about 250 feet? A. Approximately 250 feet. Q. What speed were you traveling when you saw the car? ... A. About 40. Q. And then what did you do? A. I released the accelerator completely. Q. And how fast was the car traveling in front of you at that time? A. Well, ... I would say 25 or 30, proceeding very slowly. ... I recall just beginning to slow down as the Chevrolet behind the truck was very close to the rear of the truck, beginning to pass [the truck]. ... Q. At that time had you started to go around the southbound car? A. No, I didn't make any attempt to go around it. Q. Then as you came up, how close was the closest point that you approached the southbound car? A. Probably, maybe 40 feet, 40 or 50 feet. Q. At that time you applied your brakes? A. Just before that time. Q. Just before that you applied your brakes? A. Yes. Q. And the car then skidded to the left, did it not? A. Well, the action was, the brake action was quite effective in that as I applied the brakes slightly the car seemed to skid, sort of a skidding effect to the extreme left, directly in the path of the Chevrolet. ... Q. I say, you skidded into the center lane? A. Yes, that is right. ... Q. How far into the center lane did you skid before the impact occurred? A. Well, to the point of connection with the other car, I would say maybe four or five feet inside of the line. ... Q. How far behind the car preceding you were you at the time you applied your brakes? A. My best judgment would be, I would say about maybe 80 feet."
Upon that evidence the court found that the accident was the result of appellant's driving his automobile at a reckless *113 and excessive rate of speed "while in heavy traffic" constituting wilful misconduct on his part. Judgment was accordingly rendered against him, as we have previously stated.
[1] Under the trend of authorities in California we are impelled to hold the findings and judgment are not supported by the evidence. We are convinced the evidence fails to show wilful misconduct on the part of Merle B. Peterson, the driver of the Scott car, and that the respondent, as a guest, may therefore not recover damages for the injuries which she sustained as a result of the accident on account of the prohibition of section 403 of the California Vehicle Code. (Porter v. Hofman, 12 Cal. 2d 445 [85 PaCal.2d 447]; Lennon v. Woodbury, 3 Cal. App. 2d 595 [40 PaCal.2d 292]; Turner v. Standard Oil Co., 134 Cal. App. 622 [25 PaCal.2d 988]; Howard v. Howard, 132 Cal. App. 124 [22 PaCal.2d 279]; Horning v. Gerlach, 139 Cal. App. 470 [34 PaCal.2d 504]; Rhoads v. Studley, 15 Cal. App. 2d 726 [59 PaCal.2d 1082].) In all of the preceding cases, except the last one cited, judgments in favor of guests were reversed on the ground that the facts failed to constitute wilful misconduct. In the Porter case, supra, the definition of wilful misconduct is quoted with approval from the case of Norton v. Puter, 138 Cal. App. 253 [32 PaCal.2d 172]. While it is true that each case must be determined on its particular facts, it is necessarily true that wilful misconduct requires proof of conduct much more reckless and flagrant than that which would constitute mere carelessness or negligence. (4 Blashfield's Cyc. of Automobile Law, p. 110, sec. 2322.) Otherwise there would be no occasion for the adoption of section 403 of the Vehicle Code. In the Porter case the driver of the automobile was operating her car in rain on a wet highway at the rate of forty-five miles an hour. She turned her head and body as the machine reached a curve in the roadway to reprimand children who were playing with toys in the rear seat. She lost control of the vehicle, which skidded from the paved surface and overturned. In the Lennon case, supra, the driver of the machine was operating her car at the rate of 40 to 50 miles an hour on a wet highway in the rain. The machine skidded from the roadway into a ditch, injuring the guest. In the Turner case, supra, in support of the judgment, the respondent relied on proof of alleged defective brakes. It was claimed that the driving of a truck on a mountain *114 highway under such circumstances constituted wilful negligence. In the Howard case, supra, the driver of the automobile was operating his car on a wet pavement in the rain. He suddenly turned his machine to avoid colliding with an approaching car, and his automobile skidded and overturned, injuring the guest. In the Horning case, supra, the guest fell from the machine and was injured when the left door of the car suddenly opened while the automobile was making a left-hand turn at a rapid rate of speed. The owner had previous knowledge of the defective door.
In the present case the owner of the automobile had taken the precaution to have the brakes of her car relined and adjusted immediately before setting out on the journey in which the accident occurred; she discovered after her departure that the brakes were still slightly defective; there was a mere tendency for the car to pull to the left when the brakes were applied; the machine was also equipped with an emergency brake in good condition; the car had not previously skidded on the wet pavement; the automobile was following a passenger bus on a straight, level, three-lane highway at the rate of only 40 or 45 miles an hour; there was no attempt to pass the bus nor to enter the middle lane of the highway; the accelerator was released at a distance of 250 feet behind the bus and the speed of the car was diminished; at a distance of 80 feet from the bus the brakes were applied; there was no apparent emergency; the skidding of the car could not reasonably be anticipated; when the machine reached a point about 40 feet from the bus, it skidded into the middle lane of the highway, colliding with an approaching automobile and the guest was injured. Under such circumstances it may not be said the driver of the Scott car was guilty of wilful misconduct.
The judgment is reversed.
Lemmon, J., pro tem., and Tuttle, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on June 13, 1940, and the following opinion was then rendered thereon:
The Court.
We have inadvertently referred to the automobile which preceded the defendant's car immediately *115 before the accident occurred, as a "passenger bus". It appears that it was not a commercial bus, but merely an ordinary passenger machine. That erroneous reference to the identity of the machine seems to be immaterial. The character of that vehicle adds no force to the appellant's contention that the accident was the result of wilful misconduct. We are unable to escape from the conclusion that the facts of this case do not constitute wilful misconduct on the part of the driver of defendant's machine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3355088/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] RULING ON MOTIONS TO DISMISS
These are consolidated administrative appeals. The first case is brought by Cox Cable Advisory Council ("Council") and the second case is brought by the Office of Consumer Counsel ("OCC") against the Department of Public Utility Control ("DPUC") and Cox Cable, Inc. ("Cox"). Cox has moved to dismiss both cases and the DPUC has moved to dismiss Cox CableAdvisory Council v. DPUC, Docket No. CV 00 0500103, on jurisdictional grounds.
On April 7, 1998, Cox filed an application with the DPUC to renew its cable television franchise for the Manchester and surrounding towns. The OCC and the Council became parties to this renewal proceeding. On December 22, 1999, after hearings and a draft decision, the DPUC issued its final decision approving renewal of the franchise. On February 4, 2000, both the Council and the OCC brought their administrative appeals from the final decision of the DPUC.
Cox and the DPUC move to dismiss the Council's appeal based upon a lack of subject matter jurisdiction because the Council is not aggrieved by the DPUC's decision.1 As indicated, the Council filed its complaint on February 4, 2000, with a return date of March 7, 2000. In its CT Page 14584 complaint the Council stated that it "was the duly appointed advisory council for said franchise representing approximately 64,000 subscribers residing in the towns comprising said franchise, and performed the functions customarily delegated to such councils by the statutes and regulations of the State of Connecticut."(Complaint, ¶ 3.) In paragraph 11 of its complaint, the Council alleged that "[t]he Plaintiff is aggrieved by said decision" and listed as the grounds for reversal of the DPUC decision each of the sub-headings of General Statutes §4-183(j). On April 5, 2000, the Council filed an "Amended Complaint." In paragraph 11 of this amended complaint, the Council sets forth a multitude of errors alleged to have been made by the DPUC in approving the franchise renewal.
To show aggrievement, the Council relies upon its amended complaint of April 5, 2000. The Council claims that General Statutes § 52-128
authorizes the amendment of a defect as of right within thirty days of the return date. The amended complaint cannot be considered by the court, however, as it was filed more than forty-five days beyond the mailing of the DPUC final decision. Cf. Walnut Street Service, Inc. v.Commissioner of Motor Vehicles, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. CV 96-0562083 (November 6, 1996, Maloney, J.) There the original action was jurisdictionally defective and the plaintiff filed an amended complaint as an administrative appeal within the forty-five day time period of § 4-183
(c). Judge Maloney found jurisdiction because the amended complaint was timely. Further under Simko v. Zoning Board of Appeals, 205 Conn. 413
(1987), modified 206 Conn. 374 (1988), General Statutes § 52-128
cannot be used to correct a complaint which is defective due to a lack of subject matter jurisdiction.
It is clear that under the February 4, 2000 complaint, the Council has not sufficiently alleged aggrievement. As the DPUC points out, under regulation and statute, the Council has the duty to advise the cable companies, file reports with the DPUC, intervene in DPUC contested cases and file petitions with the DPUC on behalf of customers being denied service. To be aggrieved, a plaintiff must meet a two-fold determination: "[F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision." New England CableTelevision Assn., Inc. v. Department of Public Utility Control,247 Conn. 95, 103 (1998). CT Page 14585
The February 4, 2000, complaint does not plead any facts in relationship to its powers and duties to establish aggrievement in this franchise-renewal appeal. "Pleading and proof of facts that constitute aggrievement are essential prerequisites to the trial court's subject matter jurisdiction over an administrative appeal." New EnglandRehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals Health Care, 226 Conn. 105, 121 (1993). Merely alleging that a section of the Uniform Administrative Procedure Act was not followed in its entirety is not sufficient to meet the pleading requirement.
Pleading and proof of aggrievement was, of course, a prerequisite to the trial court's jurisdiction over the subject matter of the plaintiffs appeal. The question of aggrievement is essentially one of standing; unless the plaintiff could establish that she was aggrieved by the decision of the state standards committee, she had no standing to appeal. The trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those factual allegations. The mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient.
Beckish v. Manafort, 175 Conn. 415, 419 (1978) (internal citations omitted). See also Connecticut Attorneys Title Insurance Company v.Connecticut Insurance Department, Superior Court, judicial district of New Britain, Docket No. CV 99 0496953 (March 6, 2000, Hartmere, J.): "The plaintiffs complaint, viewed even in a light most favorable to it, lacks any allegation as to the specific, personal and legal interest in the subject matter of the Department's decision nor does it allege how its specific personal legal interest has been specially and injuriously affected by the Department's decision."2 The court concludes that the Council's appeal must be dismissed in that the Council has not alleged facts showing aggrievement. The motions to dismiss filed by Cox and the DPUC are granted on this ground.
Cox also seeks to dismiss the action brought by the OCC. It first claims that the OCC is preempted from bringing its action by federal law. The Cable Communications Policy Act of 1984, P.L. 98-549, establishes a uniform procedure for renewal of cable franchises and for judicial review, should the cable franchise not be renewed. 47 U.S.C. § 546,555. The legislative history of the Cable Act3 provides at 75 that when the cable franchisee receives approval or renewal from the state or CT Page 14586 local regulator, no appeal is permitted by any other party. Cox stresses this language in arguing preclusion. The Cable Act, 47 U.S.C. § 556, however, provides that the Act does not preclude local regulation in existence at the time of the Act's adoption and not inconsistent with federal law. See also House Report at 94.
Amsat Cable v. Cablevision of Connecticut, 6 F.3d 867, 875 (2d Cir. 1993) adopts this rule as follows:
In Cable Television Ass'n of N.Y., Inc. v. Finneran, 954 F.2d 91 (2d Cir. 1992), we set forth the applicable preemption standard: "Where there are persuasive indicia that Congress intended exclusive federal regulation of the sphere in question, then the state act cannot stand. Absent such an intent, the state rule will only fall if it actually conflicts with the federal law."
Accord: Eastern Telecom Corp. v. Borough of East Conemaugh, 872 F.2d 30,34 (3rd Cir. 1989); Housatonic Cable Vision Co. v. Department of PublicUtility Control, 622 F. Sup. 798, 806 (D. Conn. 1985).
Here, the OCC was established as an independent agency in 1975, nine years before the federal Cable Communications Policy Act. As set forth in § 16-2a, the OCC has a clear place in the regulatory scheme for the approval and renewal of cable franchises. Its mission is to act as a specialized intervenor on behalf of consumers. The protection of the consumer is a major goal of the federal Communications Policy Cable Act. House Report at 19. The OCC is therefore not precluded from pursuing its appeal.
Cox also raises the issue of whether the OCC is aggrieved. OCC alleges in its complaint that the DPUC, in renewing Cox's franchise, has incorrectly interpreted two statutes relating to public access. Using the standards set forth above, the OCC meets the first test of aggrievement. Pursuant to General Statutes § 16-2a(a),4 it has by statute been given a specific, as opposed to a general, interest in the subject matter of the renewal decision. It also has demonstrated that its interest has been affected by a decision that could possibly lead to under-funding of public access providers in the service area. The OCC's charge from the legislature includes protecting consumers, and this encompasses those consumers who view public access programs through cable television. General Statutes § 16-331(d)(1); United Cable Television ServicesCorp. v. Department of Public Utility Control, 235 Conn. 334, 347
(1995). CT Page 14587
The court's conclusion here on OCC's aggrievement is no different from the Supreme Court's summary of trial court action in Office of ConsumerCounsel v. Department of Public Utility Control, 234 Conn. 624, 636-37
(1995): "The court determined that the OCC had met the first part of the test on the basis of General Statutes § 16-2a(a), and concluded that the second part was satisfied due to the . . . increases [in rates] that the DPUC had approved. . . ."
Finally, Cox contends that the OCC is collaterally estopped from contesting the methodology of the DPUC in its decision regarding public access. Cox relies on the DPUC dockets where the OCC participated and did not object to the DPUC's approach. However, Cox was not a party to the prior dockets. The DPUC approval here was based upon unique facts in this record. As the court in New England Rehabilitation Hospital of Hartford,Inc. v. Commission on Hospitals Health Care, supra, 226 Conn. 130, pointed out, collateral estoppel does not apply so as to bind one applicant to the findings of fact made in connection with another application. The same principle applies to negate Cox "s argument that the OCC should be bound by positions taken in prior dockets involving other cable franchisees.
For the reasons stated above, the motions to dismiss Cox Cable AdvisoryCouncil v. DPUC, Docket No. CV 00 0500103, filed by Cox and the DPUC are granted. Cox's motion to dismiss OCC v. DPUC, Docket No. CV 00 0500104, is denied.
Henry S Cohn, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2611808/ | 884 P.2d 305 (1994)
The PEOPLE of the State of Colorado, Complainant,
v.
D. Dean EASTEPP, Attorney-Respondent.
No. 94SA80.
Supreme Court of Colorado, En Banc.
November 7, 1994.
Linda Donnelly, Disciplinary Counsel, James C. Coyle, Assistant Disciplinary Counsel, Denver, for complainant.
Lee R. Wills, Colorado Springs, for attorney-respondent.
PER CURIAM.
A hearing panel of the Supreme Court Grievance Committee approved the findings of the majority of a hearing board that the respondent[1] had violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law); C.R.C.P. 241.6(3) (misconduct involving any act or omission violating the highest standards of honesty, justice or morality is grounds for discipline); and C.R.C.P. 241.6(5) (any act or omission violating the criminal laws of a state or of the United States constitutes ground for lawyer discipline). The panel also approved the board's recommendation that the respondent be suspended from the practice of law for three months and be assessed costs. The parties excepted to the panel's findings and recommendation of discipline. After examining the record as a whole, we determine that the panel's findings are supported by substantial evidence, and we accept them. People v. Tucker, 837 P.2d 1225, 1228 (Colo.1992). We also accept the panel's recommendation and order that the respondent be suspended for three months and pay costs.
I
The board heard testimony from the complainant's and respondent's witnesses and from the respondent. Based on the testimony and the exhibits introduced into evidence, the board found that the following facts had been established by clear and convincing evidence.
The respondent was the president of Colorado Concrete Manufacturing Company (CCMC) in Colorado Springs. He owned *306 twenty-six percent of the shares of CCMC, and the remaining shares were owned by Mr. and Mrs. Don Hogue of Topeka, Kansas, the parents of the respondent's former wife. The respondent had been previously involved in two other companies with the Hogues, and he sold his shares in those companies to the Hogues at book value.
In 1980, the respondent and the Hogues executed a buy and sell agreement, which allowed CCMC to purchase the stock of a deceased stockholder, and which was to be funded by the proceeds of life insurance policies that CCMC purchased for each stockholder. The Hogues also executed personal guarantees on loans made to CCMC. The hearing board found that, upon the Hogues' deaths, their interest in CCMC would be purchased by CCMC with the respondent as the remaining shareholder, but the Hogues' estates would remain liable for the indebtedness.
From 1980 through 1989, CCMC operations expanded three-fold, and the respondent earned a good business reputation. In 1989, however, CCMC experienced severe financial difficulties due to decreasing construction in the Colorado Springs area. The company remained solvent because the Hogues infused money into the business. The Hogues became concerned, however, about the increased indebtedness of the company for which they were liable. With the advice and active involvement of their lawyer, they asked the respondent to terminate the buy and sell agreement. The respondent steadfastly refused and the relationship between the respondent and the Hogues deteriorated.
The Hogues hired a consultant to review CCMC's finances, who recommended that the company sell assets, including three company vehicles. The Hogues and their lawyer instructed the respondent in May 1989 to sell the vehicles, one of which was a 1985 Lincoln Continental Town Car that the respondent was using as a company car. The blue book value of the Lincoln was approximately $9,000.
Instead of selling the vehicles as instructed, the respondent and a relative (another CCMC employee), took them to an automobile dealer in order to have titles created showing a transfer of the vehicles to the dealer. The respondent signed assignments of title showing transfers of the vehicles to an automobile auction company in May 1989. The respondent then engaged in a transaction designed to appear as if a third party purchased the Lincoln from the dealer for $500. The respondent sent a letter to the consultant, with copies to Mr. Hogue and his lawyer, indicating that he had disposed of the vehicles as instructed.
The respondent in fact retained possession of the Lincoln, and put about 500 miles on the car before he placed it on a consignment lot. The respondent's relative and another CCMC employee kept the other two vehicles, which had been their company cars. In August 1989, the respondent told his relative to modify certain documents and to have the three vehicles titled and recorded in the names of three other persons so that the respondent and the other CCMC employees would not appear as the vehicle owners in any public documents.
The relationship between the Hogues and the respondent did not improve, and the respondent's employment was terminated in early August 1989. The Hogues denied liability for unemployment benefits and refused to pay the respondent any pension benefits. The respondent was later awarded unemployment benefits, and a referee for the Division of Employment and Training concluded that the respondent was forced to quit because of the pressure exerted by the Hogues regarding the company's finances and the buy and sell agreement.
The respondent repeatedly informed the Hogues and their lawyer that he had sold the Lincoln to the automobile auction company. Because the purported purchase price was far less than the actual value of the vehicle, however, the Hogues hired a private investigator, who found the Lincoln for sale on the consignment lot for $10,000. The investigator also discovered that the Lincoln had been placed on the consignment lot by the respondent, although it was titled in the name of a third person. The Hogues' lawyer asked the district attorney in Colorado Springs to investigate the matter, and in about September *307 of 1989 the respondent admitted to the detective assigned to the case that he had never sold the vehicles. The respondent subsequently returned the Lincoln to CCMC, and it was later sold for $7,500. The district attorney elected not to file criminal charges against the respondent.
In addition, shortly after he left CCMC, the respondent gained access to the company offices after business hours and took some original financial statements. He had asked for copies of those statements before, but they had not been provided. About a week after he took them, the respondent returned the documents before the company discovered they were missing.
The respondent admitted, and the hearing board found, that the foregoing conduct violated DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the lawyer's fitness to practice law). The hearing board also determined that the respondent violated C.R.C.P. 241.6(3) (misconduct involving any act or omission violating the highest standards of honesty, justice or morality is grounds for discipline).
In addition, the hearing board concluded that the respondent's conduct violated C.R.C.P. 241.6(5). The fact that no criminal charges were filed against the respondent would not preclude a finding that he had violated C.R.C.P. 241.6(5) (any act or omission violating the criminal laws of a state or of the United States constitutes ground for lawyer discipline; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings, and provided further that acquittal in a criminal proceeding shall not necessarily bar disciplinary action); People v. Morley, 725 P.2d 510, 514 (Colo.1986) (conviction of criminal offense is not a condition precedent to attorney disciplinary proceedings involving the offense, nor is acquittal a bar). The majority of the board found that the respondent violated the felony theft and felony aggravated motor vehicle theft statutes.
The respondent excepted to the above findings on the ground that while the evidence may have demonstrated that the respondent deceived the Hogues, he did not possess the felonious intent necessary to violate the felony theft and felony aggravated motor vehicle theft statutes. The respondent's exceptions followed the findings of the one dissenting member of the hearing board.
The applicable theft statute was section 18-4-401, 8B C.R.S. (1986 & Supp.1990), which provided, in part:
(1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and:
(a) Intends to deprive the other person permanently of the use or benefit of the thing of value; or
(b) Knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit; or
(c) Uses, conceals, or abandons the thing of value intending that such use, concealment, or abandonment will deprive the other person permanently of its use and benefit; or
(d) Demands any consideration to which he is not legally entitled as a condition of restoring the thing of value to the other person.
(1.5) For the purposes of this section, a thing of value is that of "another" if anyone other than the defendant has a possessory or proprietary interest therein.
§ 18-4-401, 8B C.R.S. (1986 & Supp.1990) (emphasis). The aggravated motor vehicle theft statute provided in relevant part:
(2) A person commits aggravated motor vehicle theft in the first degree if he knowingly obtains or exercises control over the motor vehicle of another without authorization or by threat or deception and:
(a) Retains possession or control of the motor vehicle for more than twenty-four hours....
(3) Aggravated motor vehicle theft in the first degree is a:
*308 (a) Class 4 felony if the value of the motor vehicle or motor vehicles involved is fifteen thousand dollars or less....
§ 18-4-409, 8B C.R.S. (1986 & Supp.1990) (emphasis added).
Section 18-1-501(6), 8B C.R.S. (1986) defines "knowingly":
(6) "Knowingly" or "willfully". All offenses defined in this code in which the mental culpability requirement is expressed as "knowingly" or "willfully" are declared to be general intent crimes. A person acts "knowingly" or "willfully" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly" or "willfully", with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
The minimum culpable mental state required to violate the felony theft and aggravated motor vehicle theft statutes is "knowingly." After examining the record as a whole, we conclude that the board's findings that the respondent's conduct violated the foregoing criminal statutes are supported by substantial evidence, and we accept them. People v. Tucker, 837 P.2d 1225, 1228 (Colo.1992) (when approved by the hearing panel, the board's factual findings are binding on the supreme court unless, after considering the record as a whole, the findings are unsupported by substantial evidence).
II
The hearing panel accepted the recommendation of a majority of the hearing board that the respondent should be suspended for three months. The respondent has excepted to the recommendation, and asserts, as did the one dissenting member of the hearing board, that a public censure is appropriate. The assistant disciplinary counsel also excepted to the panel's recommendation, and maintains that a longer period of suspension is warranted.
Under the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) (ABA Standards), in the absence of mitigating factors, disbarment is appropriate when:
(a) a lawyer engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; ... or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.
ABA Standards 5.11. The assistant disciplinary counsel does not contend that the respondent should be disbarred, however, because of the existence of "considerable" mitigating factors.
In mitigation, the hearing board found that the respondent had no prior disciplinary record, id. at 9.32(a); that he was experiencing severe emotional stress at the time of the misconduct caused by the repeated unreasonable demands of the Hogues and their lawyer, id. at 9.32(c); that he showed a cooperative attitude toward the disciplinary proceedings, id. at 9.32(e); and that the respondent had a good character and reputation, id. at 9.32(g).
The respondent's ethical violations would ordinarily warrant a longer period of suspension. See, e.g. People v. Phelps, 837 P.2d 755 (Colo.1992) (attorney suspended for one year and one day for violating equity-skimming statute, a class 5 felony). The events here seem to be an aberration in the respondent's otherwise good conduct of his business responsibilities. Except for delay, little or no harm was caused to the company. Therefore, we conclude that the unique and substantial mitigating circumstances that are present in this case make a long period of suspension unnecessary to protect the public. Accordingly, we accept the hearing panel's recommendation.
III
It is hereby ordered that D. Dean Eastepp be suspended for three months, effective thirty days after the issuance of this opinion. See C.R.C.P. 241.21(a). It is further ordered *309 that Eastepp pay the costs of this proceeding in the amount of $2,651.90 within 90 days after the announcement of this opinion to the Supreme Court Grievance Committee, 600 Seventeenth Street, Suite 920-S, Denver, Colorado 80202.
NOTES
[1] The respondent was admitted to the bar of this court on May 17, 1976, is registered as an attorney upon this court's official records, and is subject to the jurisdiction of this court and its grievance committee in these proceedings. C.R.C.P. 241.1(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877292/ | 113 So. 2d 843 (1959)
Robert Frederick KINARD, Petitioner,
v.
H.G. COCHRAN, Jr., Director of Division of Corrections, Respondent.
Supreme Court of Florida.
August 5, 1959.
Robert Frederick Kinard, in pro. per., for petitioner.
Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
HOBSON, Justice.
Upon petition of Robert Frederick Kinard this court issued a writ of habeas corpus on July 7, 1959, to which the respondent filed his return on July 14, 1959.
After due consideration of the petition for writ of habeas corpus, respondent's return, and the petitioner's answer to respondent's return, we conclude that the petitioner is entitled to be discharged.
The record discloses that there was no compliance with § 932.38, F.S.A., which reads:
"When any minor, not married, may be charged with any offense and brought before any of the courts, including municipal courts, of this state, due notice of such charge prior to the trial thereof shall be given to the parents or guardian of such minor, provided the name and address of such parent or guardian may be known to the court, or to the executive officers thereof. In the event that the name of such parent or guardian is not known or made known to the court or executive officer or cannot be reasonably ascertained by him, then such notice shall be given to any other relative or friend whom such minor may designate."
The failure to comply with any of the alternatives in the statute is fatal herein *844 and, therefore, we must, of necessity, order the petitioner discharged from the custody of the respondent, without prejudice to further proceedings in accordance with due process of law.
It is so ordered.
THOMAS, C.J., and TERRELL, ROBERTS and DREW, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1843000/ | 608 So. 2d 324 (1992)
Robert G. NICHOLS, Trustee for Enertec Southern, Inc.
v.
TRI-STATE BRICK AND TILE COMPANY, INCORPORATED, and Pan-Brick, Incorporated.
No. 07-CA-59648.
Supreme Court of Mississippi.
October 29, 1992.
As Corrected November 12, 1992.
*325 Stephen L. Beach, III, Fred A. Ross, Jr., Beach Luckett & Ross, Jackson, for appellant.
John C. Henegan, A. Camille Henick, Butler Snow O'Mara Stevens & Cannada, Rhesa H. Barksdale, David W. Clark, Wise Carter Child & Caraway, Jackson, for appellees.
Before ROY NOBLE LEE, C.J., and PITTMAN and BANKS, JJ.
BANKS, Justice, for the Court:
We are once again confronted with a grant of summary judgment, wherein it is alleged that there are material facts in *326 dispute. Finding that, as to one defendant, the allegation is accurate, and further that defendants' alternate ground for affirmance based on a statute of limitations bar is not well taken, we reverse as to the defendant Tri-State Brick and Tile Company, Incorporated.
I.
In November of 1985, Enertec Southern, Incorporated (Enertec) sued Tri-State Brick and Tile Company (Tri-State) for breach of contract, fraud, and interference with contract. Tri-State moved for summary judgment and, as to the contract claim, the motion was granted. Enertec then filed an Amended Complaint in March of 1986 and Tri-State again sought summary disposition, this time requesting partial summary judgment.
Enertec then instituted bankruptcy proceedings in federal court against both Tri-State and Pan-Brick, Incorporated, (Pan-Brick) alleging antitrust and unfair competition violations. Enertec later amended its complaint and added malicious interference, conspiracy, and fraud; the antitrust and conspiracy claims against Tri-State were deleted with a second amendment. In final form, the complaint alleged malicious interference and fraud claims against Tri-State.
At the completion of discovery, summary judgment was granted in favor of Pan-Brick on the antitrust claims; the district court declined to rule on the merits of the remaining claims, holding that they would be best decided by this Court.
In May of 1988, Enertec filed its second amended complaint in the Hinds County Circuit Court. It joined Pan-Brick as a defendant, substituted contractual interference claims against Tri-State and Pan-Brick, and alleged fraud against Tri-State.
Both Tri-State and Pan-Brick moved for summary judgment which the court granted, without opinion, in September of 1988.
II.[1]
In the Spring of 1984, Enertec became interested in obtaining licenses to manufacture and sell pan-brick panels from the patent holder, Pan-Brick.[2] Enertec was also in need of a regular supplier of one of the components of the panels, brick slices, and a distributor for the finished panels. It approached Tri-State as a slices supplier. Although Tri-State did not manufacture slices, it found sources for them. Through this contact, Tri-State became interested in being the distributor of the finished panels. In addition, Enertec was in need of financing for its new enterprise and sought assistance from Tri-State. As a consequence of its relationship with Enertec, Tri-State became involved in the negotiations between Enertec and Pan-Brick.
During April and May of 1984 a number of agreements were negotiated between Tri-State, Enertec, and Pan-Brick. Pan-Brick and Enertec entered into a license agreement; Enertec and Tri-State, a distributorship agreement and a loan guarantee agreement between Enertec, Tri-State and Rankin County Bank, wherein Tri-State guaranteed one-half of a $300,000 loan to Enertec.
The licensing agreement, dated April 30, 1984, made Enertec the sole license holder in the United States. The agreement authorized Enertec to manufacture and sell panels in Mississippi, Alabama, Louisiana, Arkansas, and Shelby County, Tennessee.[3] The distributorship agreement was executed on or about May 21, 1984. Tri-State, pursuant to this contract, was not authorized to begin to purchase panels from Enertec until March of 1985.
Tri-State also entered into an agreement with Pan-Brick. This contract, which is the primary source of Enertec's contentions *327 in this litigation, is dated May 21, 1984. Tri-State claims that it entered into this agreement with the full knowledge of Enertec as additional security for its guarantee of the loan from Rankin County Bank to Enertec. Enertec denies any knowledge of the agreement prior to November 1985. This agreement essentially provided that should the Enertec license be terminated for any reason by either Pan-Brick or Enertec, Tri-State would have the option to cure any default and resume operations under the license without having to pay an additional license fee. At the time of trial, Tri-State had not exercised the option.
By September of 1984, Enertec was experiencing financial difficulty. At that time, it sought to delay royalty payments and requested further financial assistance from Tri-State, which refused. Enertec then sought funding from private investors, who conditioned funding upon Enertec acquiring licenses in other states. The parties paint slightly different scenarios as to what took place during the early stages of production and the months of subsequent production and financial difficulty, resulting in ultimate failure. Enertec emphasizes what it perceives as the failings of Tri-State with regard to supplying brick slices and marketing effort contending that these failings were a part of a deliberate plan to take over Enertec. Tri-State argues that Enertec's failing is attributable to its own poor management and decision-making and that Tri-State did nothing to interfere with Enertec's performance of its obligations.
Around mid-October of 1985, Enertec ceased operations. This litigation ensued.
III.
Enertec contends that the court erred in granting the defendants' motion for summary judgment. Specifically, it argues that its claims are not barred by the one-year statute of limitations applicable to intentional torts and its contentions of malicious interference with business relations and fraud against Tri-State and Pan-Brick withstand summary judgment on the merits.
Because this dispute arises in the context of a grant of a summary judgment motion, our analysis begins with the guidelines to which a trial court must adhere when presented with such a motion. Mississippi Rule of Civil Procedure 56 provides for summary disposition in cases where there is no genuine factual dispute between the parties. Allen v. Mayer, 587 So. 2d 255 (Miss. 1991). The lead case outlining the procedure to be followed by a trial court before granting or denying a summary judgment motion is Brown v. Credit Center, Inc., 444 So. 2d 358 (Miss. 1983). There, we held that a trial court, when presented with a motion to summarily dispose of a case, must carefully review all evidentiary matters. Id. at 362. If, after review, there is no genuine issue as to any material fact, then the moving party is entitled to judgment as a matter of law. Allen, 587 So.2d at 259 quoting Brown, 444 So. 2d 358, 362. Summary judgment should be granted only where the pleadings, discovery materials, and affidavits show that there is no genuine issue of material fact. Galloway v. Travelers Ins. Co., 515 So. 2d 678 (Miss. 1987).
These principles guide our examination of the trial court's actions. The record on appeal is quite voluminous, consisting of more than 500 pages in briefs and supplements, 355 exhibits, and 19 depositions. It is fraught with factual disputes and issues of credibility. We see no other recourse than to reverse the disposition rendered below.
IV.
Enertec argues in support of its claim of malicious interference that Tri-State intended to put Enertec out of business from the very beginning and acquire Enertec's license. It contends that the agreement between Tri-State and Pan-Brick was detrimental to its interests and made it more advantageous to Tri-State that Enertec be put out of business. Tri-State argues that no issues of materiality were in dispute. Enertec's evidence, Tri-State contends, is conclusory, self-serving, fraught with hearsay, and not based on personal knowledge.
*328 Enertec contends that Tri-State's bad faith and malicious purpose is evidenced clearly by the, allegedly secret, May 21 agreement executed between Pan-Brick and Tri-State which placed Tri-State in a position of competing with Enertec for its (Enertec's) license from Pan-Brick. By entering into its own agreement with Pan-Brick, it is asserted, Tri-State breached its duty to and is in direct competition and interference with Enertec.
Tri-State responds that Enertec's claim for malicious interference with contract is baseless because it did not cause Pan-Brick to breach its license with Enertec. It argues that Enertec can only claim breach of contract and that breach cannot be the basis for interference. Alternatively, Tri-State argues that its actions were privileged and Enertec has not established that it would have succeeded under the license but for the alleged interference. It also argues that Enertec knew of the agreement and there is no evidence that Tri-State took any action against Enertec as a result.
We have recognized malicious interference with the "right to pursue a lawful business, calling, trade or occupation" as a tort. Protective Service Ins. Co. v. Carter, 445 So. 2d 215, 216 (Miss. 1983). An action for interference with the contract ordinarily lies when "a party maliciously interferes with a valid and enforceable contract ... causing one party not to perform and resulting in injury to the other contracting party." Mid-Continent Telephone Corp. v. Home Telephone Co. 319 F. Supp. 1176, 1199 (N.D.Miss. 1970). In this situation, the tort only arises if there is interference with the contract between plaintiff and some third party.
We also recognize a cause of action for interfering with a prospective business advantage. Business Equipment Center, Ltd. v. DeJur-Amsco, 465 F. Supp. 775 (1978)[4]. Protective Service Ins. Co. v. Carter, 445 So. 2d 215, 216 (Miss. 1983). The elements of this tort are
(1) that the acts were intentional and willful; (2) that they were calculated to cause damage to the plaintiffs in their lawful business; (3) that they were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (which constitutes malice); and (4) that actual damage and loss resulted.
Galloway, 515 So.2d at 682, 683 quoting Carter, 445 So.2d at 217; Irby v. Citizens National Bank of Meridian, 239 Miss. 64, 121 So. 2d 118, 119 (1960).
Enertec claims that from the very beginning, Tri-State intended to put it out of business and take over its operations. It relies inter alia upon the affidavit of Don Agent, the former Tri-State employee.[5] Agent stated that he had frequent contacts with Tri-State personnel. He claimed that the Tri-State hierarchy made an affirmative determination and decision *329 to take over Enertec, at some point. Specifically, he stated,
The basic plan of Tri-State Brick & Tile Company, Inc. was to first allow Enertec Southern, Inc. enough time to get the production of "Pan-Brick" set up and running with all of the manufacturing startup "kinks" ironed out and when that occasion occurred, Tri-State Brick & Tile Company, Inc. had formulated a plan within which to put Enertec Southern, Inc. out of business against its will by withdrawing credit assistance with the Rankin County Bank and Tri-State Brick & Tile Company, Inc. and the deliberate withholding of the delivery of brick slices to Enertec Southern, Inc., thereby making it impossible for them to manufacture Pan-Brick.
[T]heir intent and purpose from the onset up until the later part of 1985 was to fraudulently acquire its assets with minimum exposure of liability.
One of the many things that I have personally witnessed and participated in was the telephoning of the brick slice suppliers in other states and instructing them to with-hold timely delivery of brick slices to Enertec Southern, Inc., thereby depriving Enertec Southern, Inc. of the ability to manufacture Pan-Brick panels, for which we were obligated to purchase under the Distributorship Agreement.
Agent's statements alone satisfy each requirement of the cause of action of tortious interference with business relations.
Tri-State contends that, even if the claim for interference is allowed, summary judgment is proper because Enertec must prove that it would have succeeded under the license, but for the interference, citing Bailey v. Richards, 236 Miss. 523, 533-537, 111 So. 2d 402, 406-07 (1959); Johnson v. Warnaco, Inc. 426 F. Supp. 44, (S.D.Miss. 1976); and Martin v. Texaco, 304 F. Supp. 498, 502 (S.D.Miss. 1969). It argues that Enertec was doomed by September of 1984 because its capital was spent, and also due to delays and cost overruns[6].
As an initial matter, Tri-State correctly states applicable legal principles. It is wrong, however, in its assertion that we can say with the certainty required for summary judgment that Enertec could not prove that it would have succeeded, absent Tri-State's interference. It should suffice to say that the question of the causation and quantum of damages in relation to tortious conduct is a jury issue seldom amenable to summary disposition. It is not amenable here.
V.
Enertec lists eight representations of fraud it claims Tri-State made:
(A) Beginning in approximately March of 1984 through March of 1985, Defendant [Tri-State] by and through its personnel and agents made representations to the Plaintiff that [Tri-State] desired to be a business partner of the plaintiff.
(B) [Tri-State], by and through its personnel and agents, would supply brick slices on a reasonable, timely basis to the plaintiff.
(C) [Tri-State], by and through its personnel and agents, would purchase the entire production capacity of the plaintiff.
(D) [Tri-State] would deal, at all times, with the plaintiff in good faith.
(E) [Tri-State] was not desirous of taking over or otherwise putting the plaintiff out of business.
(F) [Tri-State] would not use its dominant credit position as a tool to injure the plaintiff.
(G) On or about February 1985, [Tri-State] induced the current stockholders of the plaintiff to invest additional capital in the plaintiff with the promise that [Tri-State] likewise would make a capital investment.
(H) [Tri-State] would make a reasonable effort to market the products of the plaintiff.
Tri-State counters by stating that Enertec has not made an adequate showing for each element of this claim. Furthermore, *330 in contravention of Miss.R.Civ.P. 9(b), which requires that all averments of fraud and the surrounding circumstances be asserted with particularity, Tri-State claims that Enertec makes only a summary recitation of elements.
As with the tortious interference claim, Enertec prevails on this issue. The Court's most recent pronouncement concerning claims of fraud is found in Whittington v. Whittington, 535 So. 2d 573 (Miss. 1988). There we held:
The elements of fraud are well established: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on the truth; (8) his right to rely thereon; (9) his consequent and proximate injury. See, e.g. Martin v. Winfield, 455 So. 2d 762, 764 (Miss. 1984); Hamilton v. McGill, 352 So. 2d 825, 841 (Miss. 1977); Crawford v. Smith Brothers Lumber Co., 274 So. 2d 675, 678 (Miss. 1973). It is likewise well established that fraud is never presumed but must be proven by clear and convincing evidence. Martin v. Winfield, 455 So.2d at 764; Gulf National Bank v. Wallace, 394 So. 2d 864, 865 (Miss. 1981); Clement v. R.L. Burns Corp., 373 So. 2d 790, 795 (Miss. 1979); Hamilton v. McGill, 352 So.2d at 831; Crawford v. Smith Bros. Lumber Co., Inc., 274 So.2d at 677. Furthermore, "fraud is essentially a question of fact."
"This burden ... is a function of the degree of confidence we should have in the factual determination that one has perpetrated a fraud." Great Southern National Bank v. McCullough, 595 So. 2d 1282, 1289 (Miss. 1992) (emphasis added).
Application of the law to the evidence and viewing, as we must, the facts in the light most favorable to Enertec, leads to the conclusion that material issues of fact exist.
Enertec claims that Tri-State made all of the above listed representations, and to the extent that such representations were promises to act in the future they were made when there was a present intent not to perform, as evinced by the Agent affidavit; Tri-State disagrees. Certainly disposition of this issue requires a determination by a finder of fact.
Claims against Pan-Brick
As correctly asserted by Pan-Brick, the only claim Enertec made against it is the claim of interference with business relations. Enertec claims that by entering into the Pan-Brick/Tri-State agreement both defendants placed it in constant breach of the licensing agreement and intended to put it out of business. It asserts that neither Pan-Brick nor Tri-State had any right to do anything in the territories licensed to Enertec regarding manufacturing or selling the panels except through Enertec. It accuses both of preventing it from producing panels.
Enertec cannot overcome the hurdle of showing that Pan-Brick's actions of entering into the agreement was calculated to cause damage. Pan-Brick via the licensing agreement granted to Enertec a license to manufacture panels with its trademark. In consideration for the use of its trademark and technology, Pan-Brick was to receive royalties from the sales of the panels. Nothing in the May 21 agreement provides a motive for Pan-Brick to cause Enertec harm. As noted by Pan-Brick, it is nonsensical to contend that it would try or that it intended to destroy its license given to Enertec, Specifically, it states:
Why would Pan-Brick try to destroy its only license and only manufacturer in the United States? And even if Pan-Brick were so foolish as to try to undermine its only toe-hold in this vast new market area, why would it conspire or cooperate to replace Enertec with Tri-State, of whose proposed role it had been made aware, by Enertec, long before May 21, or May 24, 1984, and with whom it easily could have contracted instead of Enertec?
Pan-Brick calls our attention to Matsushita Electric Industrial Co., Ltd. v. Zenith *331 Radio Corporation, 475 U.S. 574, 596, 106 S. Ct. 1348, 89 L. Ed. 2d 538, 558 (1986). There, American manufacturers of consumer electronic products brought suit against Japanese competitors in Pennsylvania district court alleging that these competitors violated provisions of the Sherman Antitrust Act, the Robinson Patman Act, as well as other federal statutes. Particularly, it was claimed that Japanese companies had conspired since the 1950's to drive domestic firms from the American market, by maintaining artificially high prices in Japan and selling at a loss in the United States. The district court granted the Japanese companies' motion for summary judgment; the court of appeals reversed and remanded for further proceedings, determining that a reasonable fact-finder could find a conspiracy to depress prices. On appeal, the United States Supreme Court reversed and remanded the case for further proceedings. Specifically, the Court held that
the absence of any plausible motive to engage in conduct is highly relevant to whether a `genuine issue for trial' exists within the meaning of Rule 56(e). Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy.
Id. 475 U.S. at 596-97, 106 S.Ct. at 1361, 89 L.Ed.2d at 559. Here, Enertec's arguments against Pan-Brick for interference with business relations are just as implausible as that of the American companies in Matsushita. Thus, no genuine issue of material fact is presented and judgment summarily disposing of the claim against Pan-Brick should be affirmed. What is more, Enertec offers no evidentiary support, nor does the record reveal any for its claim that Pan-Brick intended not to honor the licensing agreement.
Enertec only sued Pan-Brick for malicious interference. On appeal, it lodges for the first time a claim for fraud against Pan-Brick[7], but offers no support. Additionally, all of its representations concern Enertec only, not Pan-Brick. Thus, Enertec cannot, as far as Pan-Brick is concerned, overcome the hurdle imposed by Miss.R.Civ.Pro. 9(b) concerning specificity of averments constituting or alleging fraud because it makes no such statements or averments. Further, as held in McMahon v. McMahon, 247 Miss. 822, 157 So. 2d 494 (1963), fraud cannot be inferred or presumed and cannot be charged in general terms. Specific facts which constitute fraud must be definitely averred.
Enertec's failure to comply with both the rule and well-settled case law is fatal to its claim against Pan-Brick for fraud.
Pan-Brick and Tri-State argue that Enertec's claim is barred by the one-year statute of limitations found in Miss. Code Ann. § 15-1-35 (Supp. 1991). They contend that although the statute clearly applies to the enumerated torts listed therein, the listing is not exclusive and the statute also applies to non-enumerated torts as well. Enertec argues that its action is governed by section 15-1-49. These statutes provide:
§ 15-1-35. Limitations applicable to actions for certain torts.
All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued, and not after.
§ 15-1-49. Limitations applicable to actions not otherwise specifically provided for.
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued and not after.
*332 (2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
(3) The provisions of subsection (2) of this section shall apply to all pending and subsequently filed actions.
In support, the defendants rely upon Dennis v. Traveler's Insurance Co., 234 So. 2d 624 (Miss. 1970), where the Court held that the statute applied to an action brought for a "willful, malicious, and irresponsible ... threat of criminal prosecution... to enforce a purported civil debt." The Court reasoned that:
It is clear that the Miss. Code Ann. § 732 (1956) [predecessor of § 15-1-35], which provides an inclusive listing of the recognized intentional torts is controlling in the case at bar. There can be no escape from the bar of the statute of limitations applicable to intentional torts by the mere refusal to style the cause brought in a recognized statutory category and thereby circumvent prohibition of the statute.
Id. at 626.
The Court held that the letter, which was the basis for the action at bar, fell within the purview of that statute under the category of "menace." The Court noted that the term "menace" meant the same thing as threat. Thus, since the letter written by Travelers was threatening, its actions fall within the category of menace.
We need not address the litany of federal cases cited by the parties, which, using Dennis as a springboard, extended the applicability of the one-year statute of limitations to other actions involving intentional torts. This Court has
consistently held in many cases ... that where a statute enumerates and specifies the subject of things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned or under a general clause, those not of like kind or classification as those enumerated.
Southwest Drug Company v. Howard Brothers Pharmacy of Jackson, Inc., 320 So. 2d 776, 779 (Miss. 1975).
Even a casual reading of the statute leads inescapably to the conclusion that it does not cover, and was not intended to cover, all intentional tortious conduct. Actions based on deceit and intentional damage to property are conspicuously absent. Surely such intentional wrongs were recognized intentional torts. The enumerated torts address damage to persons or their reputations exclusively. Miss Code Ann. § 15-1-35 (1972). None of them addresses actions causing damage to property, tangible or intangible. Id.[8]
Thus, in Brister v. Dunaway, 149 Miss. 5, 115 So. 36 (1928) this Court held the one-year statute inapplicable to an action for alienation of affections, a tort involving the intentional interference with marital relations. See, Stanton v. Cox, 162 Miss. 438, 139 So. 458 (1932). Similarly, in Dunn v. Dent, 169 Miss. 574, 153 So. 798 (1934) this Court noted without discussion that the six-year period of limitations in the predecessor to Miss. Code Ann. § 15-1-49 applied to an action brought for deceit by false representation as to the number of acres in a tract of land sold. In Bush v. City of Laurel, 234 Miss. 93, 105 So. 2d 562 (1958), we refused to apply the one-year statute to an action in trespass. More recently, in Southern Land & Resources Co., Inc. v. Dobbs, 467 So. 2d 652 (Miss. 1985), we applied the six-year rather than the one-year statute to an action for wrongful foreclosure.
*333 Clearly then, the fact that wrongful conduct is alleged to be intentional does not determine which statute controls. Dennis means no more than that the absence of a label is, similarly, not controlling. Where, as there, the conduct alleged may be fairly categorized as one of the enumerated torts, the one-year statute applies. Otherwise, it does not. We will not squeeze all intentional wrongs into the actions enumerated.
Here the claims are for malicious interference with business relations and fraud. No one seriously argues that actions for fraud are covered by § 15-1-35. Dunn v. Dent, 169 Miss. at 574, 153 So. at 798-99. Pan Brick and Tri-State do claim that the malicious interference claim is barred. That claim, however, simply does not fit with any of the enumerated torts in the statute. The closest fit is with slander of title. The gravamen of that cause of action, however, is a false statement concerning ownership of property. Walley v. Hunt, 212 Miss. at 304, 54 So. 2d 393. The conduct here alleged is not of the type reached by that cause of action.
In sum, Enertec's claims are not time barred by application of § 15-1-35 because its claims are not fairly embodied in any of the causes there enumerated.
The grant of summary judgment is reversed and the case remanded for further proceedings.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
ROY NOBLE LEE, C.J., HAWKINS and DAN LEE, P.JJ., and PRATHER, SULLIVAN, PITTMAN and McRAE, JJ., concur.
ROBERTS, J., not participating according to supreme court internal rules.
NOTES
[1] The facts are taken from the "Memorandum Opinion and Order" issued by the district court.
[2] Pan-Brick owns patents covering a system incorporating plywood or other forms of sheathing, insulation materials and brick slices or other facing material. The panels made from the process are used to provide exterior siding for residential and commercial buildings.
[3] Entertec later acquired a license to sell panels in Texas.
[4] Tri-State attempts to impose the additional requirement that conduct supporting a tortious interference claim must be directed at a third party, not the plaintiff. This is the basis for its argument that Entertec's claim is one for breach of contract and not interference. This argument is without merit. Although often acts that satisfy the causation requirement will be directed at the third person with whom the plaintiff had a business expectancy, here Pan-Brick's conduct interfering with the plaintiff may suffice. Restatement (Second) of Torts § 766B(b) (1979); American Business Interiors v. Haworth, Inc., 798 F.2d 1135, 1143-1144 n. 7 (8th Cir.1986).
[5] Agent was employed by Tri-State from the Spring of 1984 until July of 1985, as a marketing representative in the Pan-Brick Division.
Tri-State argues that Agent's testimony is privileged; it claims that the affidavit presents alleged communications between Tri-State and its attorneys. Thus, it is protected from disclosure pursuant to Miss.R.Evid. 502(a).
Entertec responds that the record does not reveal whether the alleged occurrence, actions and statements Agent states took place were confidential. It argues just because lawyers were present, does not mean that the communication is privileged.
Whether or not the affidavit contains privileged information is a question for a fact-finder. The record does not permit a determination whether these statements allegedly made by Tri-State officials were communications to which the privilege would attach. For purposes of this appeal, we must treat the statements as non-privileged.
[6] Entertec admits that although the cost overruns and delays were quite troubling, these overdrafts were caused by actions of Pan-Brick and Tri-State.
[7] On the authority of Methodist Hospitals of Memphis v. Marsh, 518 So. 2d 1227 (Miss. 1988), the issue of fraud is not properly before this Court, because it is now being raised for the first time on this appeal.
[8] One exception, arguably, is the action for "slander of title." The phrase, however, "is commonly employed to describe words or conduct which bring or tend to bring in question the right or title of another to particular property, as distinguished from the disparagement of the property itself." Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393 (1951). The action is closely related to defamation of the person and the same period of limitations is applied almost universally. Old Plantation Corp. v. Maule Industries, Inc., 68 So. 2d 180 (Fla. 1953). The damage suffered by the person results from a false perception regarding the state of title rather than some physical damage to the property in question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1861878/ | 281 N.W.2d 164 (1979)
NORTHWESTERN BANK OF COMMERCE, Respondent,
v.
EMPLOYERS' LIFE INSURANCE COMPANY OF AMERICA, Appellant.
No. 48756.
Supreme Court of Minnesota.
June 8, 1979.
Rehearing Denied July 16, 1979.
Hanft, Fride, O'Brien & Harries and John D. Kelly, Duluth, for appellant.
Fryberger, Buchanan, Smith, Sanford & Frederick and William D. Sommerness, Duluth, for respondent.
Heard before PETERSON, SCOTT, and KENNEDY, JJ., and considered and decided by the court en banc.
CHARLES W. KENNEDY, Justice.[*]
Plaintiff, Northwestern Bank of Commerce, loaned money to Lionel Birkeland, who assigned plaintiff a policy of life insurance issued by defendant, Employers' Life Insurance Company of America, as collateral. Defendant promised to notify plaintiff *165 in the event of premium default. The issue is whether defendant is liable for failure to inform plaintiff that Birkeland did not pay the premium due on June 10, 1972, as a result of which the policy lapsed.
The parties submitted the case to the trial court on a stipulation of facts and by cross motions for summary judgment. The court granted summary judgment for plaintiff on alternative theories of promissory estoppel and negligent misrepresentation. Defendant appeals from the judgment. Judgment on the basis of promissory estoppel is justified and we affirm.
In June 1966, Lionel Birkeland obtained a 10-year term life insurance policy from defendant. The annual premium of $1,292.81 was payable June 10. In December 1967, Birkeland assigned the policy to plaintiff as collateral for "any and all liabilities * * * either now existing or that may hereafter arise * * *." Defendant was then furnished a copy of the assignment and a "Life Insurance Assignment Questionnaire," which asked about the premium, and whether defendant would notify plaintiff in the event of premium default. Defendant answered that the premium had been paid to June 10, 1968, and that it would not notify plaintiff of premium default.
In September 1969, plaintiff sent defendant an identical questionnaire, which defendant answered as follows:
"1. Premium paid to 6-10-70. Annual $1292.81
"2. Premium payment branch or agency office name and address 110 Milk St., Boston, Mass. 02107
"3. In the event of premium default:
* * * * * *
(b) Will you notify assignee in ample time for assignee to protect its collateral? Yes."
In October 1972, plaintiff wrote defendant asking the status of the policy. Defendant wrote plaintiff that the policy was still assigned as collateral to plaintiff and had a face value of $109,381. In fact the policy had lapsed August 1, 1972, for default in the premium payment due June 10, 1972. Plaintiff did not learn of the default and lapse until Birkeland's death in September 1975, when plaintiff demanded payment from defendant of Birkeland's indebtedness of $15,791.36.
Neither party has contended that a new trial is necessary to resolve any fact issues. From the manner in which the dispute was submitted to the trial court, it is clear that the parties desired a decision based on the agreed facts and the exhibits. The stipulation recited that the parties "for the purpose of submitting the instant controversy for judicial determination stipulate and agree * * *." Defendant's brief on appeal states that the essential and material facts are not in dispute, but the trial court's conclusions are challenged.
The admitted facts, and the inferences which the trial court could reasonably draw therefrom, justify the conclusion that to avoid injustice, defendant's promise to notify plaintiff in the event of premium default should be enforced under the doctrine of promissory estoppel, as set forth in Restatement, Contracts, § 90:
"A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."
This court has recognized and applied promissory estoppel. See, e.g., United Elec. Corp. v. All Serv. Elec., Inc., 256 N.W.2d 92 (Minn.1977).
Defendant argues that its promise to notify did not extend beyond the June 10, 1970, premium, that it could not reasonably expect its promise to induce action or forbearance, and that the promise did not have that effect.
Nothing in the questionnaire or in the response purported to limit the promise to the one premium coming due June 10, 1970. The language, "[i]n the event of premium default," referred to any premium default. The purpose of the notice was to permit plaintiff to "protect its collateral" by paying *166 the premium, or arranging for its payment. The collateral would be necessary so long as there was indebtedness, and nothing in the questionnaire or the assignment indicated that the collateral would not be needed longer than the year following June 10, 1970. The assignment referred to liabilities "now existing or that may hereafter arise." The promise to notify was without qualification. After the June 10, 1970, premium was paid, defendant did not inform plaintiff that its promise to notify in the event of default was no longer in effect. Defendant could not have assumed that plaintiff would make inquiry about the premium each year, for then there would have been no purpose served by asking for notice.
Defendant should reasonably have expected that its promise to notify would induce plaintiff to depend on the promise as an accurate and prompt way of learning whether its collateral needed protection and would influence plaintiff in its lending transactions with Birkeland. The question, "Will you notify assignee in ample time for assignee to protect its collateral?" was plain evidence that plaintiff wanted to be informed of an important fact so that it could act to prevent lapse, either by paying the premium or requiring that Birkeland do so. Defendant could have declined to promise but when it answered that it would notify, it should have expected plaintiff to rely on the promise.
The stipulated facts and exhibits show that plaintiff did rely on the promise to its detriment. After receiving the 1969 promise, plaintiff continued to lend money to Birkeland, did not seek other or additional security, and did not send defendant inquiries other than the October 1972 letter, in response to which plaintiff was assured by defendant that the policy was still effective as collateral.
Defendant's failure to notify plaintiff of the premium default before August 1, 1972, deprived plaintiff of the opportunity to keep the policy in force. The insurance must therefore be considered as in effect at Birkeland's death to the extent of the debt Birkeland then owed to plaintiff.
It is not necessary to consider the alternate ground for recovery.
Affirmed.
TODD, J., took no part in the consideration or decision of this case.
NOTES
[*] Acting as Justice of the Supreme Court by appointment pursuant to Minn.Const. art. 6, § 2, and Minn.St. 2.724, subd. 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600298/ | 571 So. 2d 898 (1990)
Cheryl A. TENHAAF
v.
Frank QUENQUI a/k/a Frank Gueeren and the Parish of Jefferson.
No. 90-CA-486.
Court of Appeal of Louisiana, Fifth Circuit.
December 12, 1990.
Paul Brian Spurlock, New Orleans, for plaintiff-appellant.
Lawrence J. Centola, Jr., New Orleans, Louis Gruntz, Jr., Asst. Parish Atty., Grenta, for defendants-appellees.
Before CHEHARDY, GOTHARD and DUFRESNE, JJ.
DUFRESNE, Judge.
Plaintiff, Cheryl A. Tenhaaf (Tenhaaf) filed suit against Frank Quenque, owner of her apartment and the Parish of Jefferson (Jefferson) alleging bodily injuries sustained on August 18, 1987, when her apartment caught fire at 734 LaBarre Road, Metairie, Louisiana.
Tenhaaf alleges in her petition against Jefferson that it was responsible for the inspection of the premises and enforcement of ordinances and statutes requiring fire suppression and fire warning devices in response to an application for permits to undertake renovations to the premises. The petition further alleges that Jefferson was negligent in failing to properly inspect the premises and failing to enforce the appropriate Jefferson ordinances and State statutes.
Jefferson filed an exception of no cause of action arguing that Louisiana law (LSR.S. 9:2798.1) immunizes Jefferson against liability asserted in this lawsuit. The trial court agreed and granted Jefferson's motion dismissing Tenhaaf's lawsuit against Jefferson. From this decision Tenhaaf has appealed contending that the trial court erred in its interpretation and application of the law.
There is only one issue presented on appeal, namely does Tenhaaf have a cause of action against the Parish of Jefferson for its alleged failure to properly inspect and/or enforce the fire code.
Jefferson primarily based its exception of no cause of action upon the application *899 and interpretation of LSA-R.S. 9:2798.1, which states in pertinent part as follows:
B. "Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform discretionary acts when such acts when such acts are within the course and scope of their lawful powers and duties."
Jefferson contends that its failure to properly inspect Tenhaaf's apartment and failure to properly enforce its own ordinances and State statutes are "policy making" and "discretionary" acts for which there is no liability.
Jefferson argues that Louisiana law does not provide Tenhaaf a cause of action. Reviewing our law, the Louisiana Supreme Court defined the exception of no cause of action in Darville v. Texaco, Inc., 447 So. 2d 473 (La.1984), as follows:
"The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true. La.C.C.Pro. art. 927; Mayer v. Valentine Sugars, Inc., 444 So. 2d 618 (La.1984); Haskins v. Clary, 346 So. 2d 193 (La.1977). The general rule applicable to a trial of such exception is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Haskins, supra at 195; West v. Ray, 210 La. 25, 26 So. 2d 221 (1946)"
In Owens v. Martin, 449 So. 2d 448 (La. 1984), the Supreme Court has further instructed that "when a court can reasonably do so, it should maintain the petition so as to afford a litigant an opportunity to present his evidence." Therefore, does our law afford any relief to Tenhaaf under the facts presented in her petition?
We are not convinced by Jefferson's argument that it was not "compelled by law" to inspect Tenhaaf's premises. After reviewing the record and applicable law we find Jefferson had no discretion as to whether to enforce State statutes and Parish ordinances requiring fire suppression and fire warning devices at Tenhaaf's apartment. R.S. 9:2798.1 only eliminates liability for policy-making or discretionary acts, therefore, is inapplicable to this case because no discretionary or policy-making acts were involved. Sunlake Apt. Resid. v. Tonti Dev. Corp., 522 So. 2d 1298 (La. App. 5th Cir. 1988).
We find that LSA-R.S. 40:1563(C) makes it clear that Jefferson has the responsibility to regulate fire prevention and inspection. The statute provides, in pertinent part:
"... the local governing authority through its fire prevention bureau shall be responsible for conducting fire inspection and investigations ..."
We find nothing in this language which confers discretionary or policy making acts. We are guided by the general rule of law that a no cause of action exception must be denied unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based, in other words, unless the plaintiff has no cause of action under any evidence admissible in the pleadings.
The fire prevention and inspection statute cited above protects the safety of individuals and this regulation should be adhered to ensure these structures are safe for those who may inhabit them. Sunlake, supra.
Accordingly, the trial court's decision maintaining Jefferson's exception of no cause of action is reversed and the case remanded for further proceedings.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1630746/ | 451 S.W.2d 277 (1970)
Hedwig M. AMUNDSEN, joined pro forma by her husband, Ralph Amundsen, Appellants,
v.
GREAT CENTRAL INSURANCE COMPANY, a corporation, Appellee.
No. 6092.
Court of Civil Appeals of Texas, El Paso.
February 18, 1970.
Rehearing Denied March 11, 1970.
Yetter, Johnson & Allen, Richard Yetter, James T. Allen, El Paso, for appellants.
Stephen B. Tatem, Jr., El Paso, for appellee, Scott, Hulse, Marshall & Feuille, El Paso, of counsel.
OPINION
WARD, Justice.
Appellants appeal from a take-nothing summary judgment rendered in their suit to recover damages as a result of the failure of the appellee to defend the appellants in a prior suit pursuant to the provisions of an Owner's, Landlord's, and Tenant's liability insurance contract and which covered the appellants' bar and lounge. We affirm the judgment of the trial court.
The policy which was issued to appellants contained the following pertinent language:
"1. COVERAGE ABODILY INJURY LIABILITY COVERAGE BPROPERTY DAMAGE LIABILITY
"The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage *278 to which the insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, * * *"
The insurance contract also provided for the following exclusions to which the insurance in question did not apply:
"EXCLUSIONS
This insurance does not apply:
* * * * * *
"(f) to bodily injury or property damage for which the insured or his indemnitee may be held liable, as a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages or as an owner or lessor of premises used for such purposes, by reason of the selling, serving or giving of any alcholic beverage
(1) in violation of any statute, ordinance or regulation,
* * * * * *
(3) to a person under the influence of alcohol, or
(4) which causes or contributes to the intoxication of any person * * *"
While the policy was in effect, one Tom Dunnigan and a female companion were at the bar engaged in certain pleasantries which resulted in the female companion shooting Tom Dunnigan. Tom Dunnigan brought suit against the appellants alleging in his petition that his unfortunate injuries arose after Tom had been drinking with the female friend in the appellants' bar, and that they "became inebriated to such an extent that neither the Plaintiff nor the other customer with whom he was drinking could control themselves;" that the incident was caused by the appellants being in willful violation of the laws and regulations of the State of Texas, and that notwithstanding the laws in Texas, the appellants "continued to serve the female customer alcoholic beverages" and that this proximately caused the shooting. The insured appellants, in compliance with the policy provisions, requested the insurer to undertake the defense of this cause of action, and this the insurer refused to do because of the language contained within the exclusion provision of the policy.
The appellants readily agree that the pleadings in the suit which the insurer refused to defend did fall within the provision of the quoted exclusions, but contend that where there is a variance between the allegations of a petition and the known or ascertainable facts, the insurer cannot rely on the allegations in the petition, but rather must ascertain if the facts in reality fall within the exclusion before declining to defend; that even though a petition in a damage suit against the insured may have alleged facts that relieved the insurer of its duty to defend, the insurer is under a duty to ascertain facts of the cause of action before declining to defend. Such is not our law. Travelers Insurance Company v. Newsom, 352 S.W.2d 888 (Tex. Civ.App.1961, Amarillo, writ ref. n. r. e.); Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22 (Tex.Sup. 1965). While the policy provisions before us in the present case differ in some respects from the policies considered in the other Texas cases on the point, we think that, in substance, the present provisions mean the same as those in the other cases. Regardless of the policy provisions, however, in the present suit by the insured against the insurer there are no allegations in the petition alleging that the true facts of the former suit were not within the exclusion clause. From all the facts this court has before it, the true facts of the former case might well have followed the allegations of the former suit and have been within the exclusion.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3097592/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-13-00753-CV
Robert SCHRADE,
Appellant
v.
Stephen E. EARLE, M.D. and Stephen E. Earle, M.D., P.A.,
Appellees
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-03779
Honorable Laura Salinas, Judge Presiding
BEFORE CHIEF JUSTICE STONE, JUSTICE MARION, AND JUSTICE BARNARD
In accordance with this court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees, Stephen E. Earle, M.D. and Stephen E. Earle, M.D.,
P.A, recover their costs of this appeal from appellant, Robert Schrade.
SIGNED July 9, 2014.
_____________________________
Catherine Stone, Chief Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3097594/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00274-CR
Perry Ellis MAYFIELD,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th Judicial District Court, Brooks County, Texas
Trial Court No. 11-07-10728-CR
Honorable Richard C. Terrell, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 9, 2014
DISMISSED FOR WANT OF PROSECUTION
On June 12, 2014, we notified Appellant Perry Ellis Mayfield that the trial court clerk filed
a notification of late clerk’s record stating that the clerk’s record has not been filed because (1)
Appellant has failed to pay or make arrangements to pay the clerk’s fee for preparing the record,
and (2) Appellant is not entitled to appeal without paying the fee. We ordered Appellant to provide
written proof to this court on or before June 23, 2014, that either (1) the clerk’s fee has been paid
or arrangements have been made to pay the clerk’s fee; or (2) Appellant is entitled to appeal
04-14-00274-CR
without paying the clerk’s fee. We warned Appellant that if he failed to respond within the time
provided, this appeal would be dismissed for want of prosecution. See TEX. R. APP. P. 37.3(b).
To date, Appellant has not filed any response with this court. We, therefore, dismiss this
appeal for want of prosecution. See id. R. 37.3(b).
PER CURIAM
DO NOT PUBLISH
-2- | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2101740/ | 123 Pa. Commw. 570 (1989)
554 A.2d 625
Franklin L. Castle, Petitioner
v.
Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent.
No. 871 C.D. 1988.
Commonwealth Court of Pennsylvania.
Submitted on briefs November 9, 1988.
February 23, 1989.
Submitted on briefs November 9, 1988, to Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
*571 Franklin L. Castle, petitioner, for himself.
Robert A. Greevy, Chief Counsel, with him, Arthur R. Thomas, Assistant Chief Counsel, for respondent.
OPINION BY JUDGE PALLADINO, February 23, 1989:
Franklin L. Castle (Petitioner) has filed a petition for review and an application for summary relief in this court's original jurisdiction against the Pennsylvania Board of Probation and Parole (Board) seeking declaratory and injunctive relief. The Board has filed a preliminary objection in the nature of a demurrer. For the reasons set forth below, we sustain the Board's preliminary objection, deny Petitioner's application for summary relief, and dismiss Petitioner's petition for review.
Petitioner is currently serving a life sentence for second degree murder[1] at a state correctional institution, and has served approximately thirteen (13) years of this sentence. Petitioner has also served approximately eleven (11) years on a concurrent life sentence for assault, which he committed while incarcerated on the original conviction. On March 23, 1988, Petitioner submitted an inmate request slip to the correctional institution parole officer, requesting to be staffed for parole. On March 24, 1988, the parole officer informed Petitioner that he could not be listed for parole staffing because of his life sentence. Petitioner then sent a letter to the Board requesting *572 to be staffed for parole, which request the Board refused by letter dated April 6, 1988. This proceeding was thereafter filed in this court on April 14, 1988.
In this case of first impression, Petitioner contends that he is entitled to apply for parole and have his application considered by the Board by virtue of 42 Pa. C. S. §9756(c)(1-3). Petitioner asserts that this section creates a statutory right of parole eligibility for life prisoners convicted of any offense other than first degree murder and certain summary offenses. Further, Petitioner argues that in the absence of a statute establishing a minimum sentence for prisoners serving life sentences for offenses other than first degree murder, a minimum sentence of one (1) day should be implied. Finally, Petitioner contends that, assuming this court determines that he is eligible to apply for parole, the Board has violated his due process rights by refusing to consider him for parole.
The Board, in its preliminary objection in the nature of a demurrer, asserts that Petitioner has failed to state a claim upon which relief can be granted, alleging that because Petitioner is serving a life sentence, the Board cannot consider him for parole because it can only parole an individual after the expiration of a minimum term of imprisonment and Petitioner's minimum term is life. The Board also argues that Petitioner is essentially challenging the legality of his sentence and that he is not entitled to declaratory relief with respect to this challenge in an action against the Board.
Initially, we note that a preliminary objection in the nature of a demurrer will be sustained only where a complaint is clearly insufficient to establish any right to relief; any doubt must be resolved in favor of the pleader. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985). A demurrer admits as true all well-pleaded facts. Department of General Services *573 v. Celli-Flynn, 115 Pa. Commw. 494, 540 A.2d 1365 (1988).
In considering Petitioner's prayer for summary relief, we are mindful that summary relief may not be granted unless the moving party is entitled to judgment as a matter of law. See Aiken v. Radnor Township Board of Supervisors, 83 Pa. Commw. 190, 476 A.2d 1383 (1984). For summary relief to be granted, it must be clear that there are no issues of material fact and any doubt must be resolved in favor of the non-moving party. See Wolgemuth v. Kleinfelter, 63 Pa. Commw. 395, 437 A.2d 1329 (1981). With the above standards of review in mind, we now turn to Petitioner's application for summary relief and the Board's preliminary objection.
The Board contends that Petitioner has failed to state a claim upon which relief can be granted, alleging that Petitioner cannot be paroled until the expiration of the minimum term of his sentence.[2] The Board asserts that Petitioner's life sentence has a minimum term of life and, that, therefore he will never be eligible for parole. Petitioner contends that his life sentence is a flat maximum sentence and that, in the absence of a statute fixing a minimum term for second degree murder, a minimum of *574 one day should by implied.[3] In ruling upon the Board's preliminary objection, then, the first issue which we must address is whether Petitioner's life sentence for second degree murder constitutes a minimum sentence or a flat maximum with an implied minimum of one day.
The legislature has provided that a person convicted of second degree murder shall be sentenced to a term of life imprisonment. 18 Pa. C. S. §1102(b). Under principles of statutory construction, the word "shall" in a statute is generally regarded as mandatory, rather than directory. City of Pittsburgh v. Haffner, 80 Pa. Commw. 53, 471 A.2d 116 (1984). We also note that, in contrast, the legislature has provided that, in determining the sentence to be imposed, a court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the *575 following alternatives: probation, a determination of guilt without further penalty, partial confinement, total confinement, or a fine. 42 Pa. C. S. §9721(a). Section 9721 also states that, in selecting from the foregoing alternatives, the court shall balance the need to protect the public, the gravity of the offense as it relates to the impact on the life of the victim as well as the community, and the rehabilitative needs of the defendant. 42 Pa. C. S. §9721(b). Construing these two provisions together, we conclude that by enacting section 1102(b), the legislature intended to remove a trial court's discretion to impose a lesser sentence in the case of a defendant convicted of second degree murder.[4]
Petitioner asserts that section 1102(b) does not state a minimum term, contending that, unlike the mandatory minimum sentences for offenses committed with firearms, offenses committed on public transportation, and sentences for second and subsequent offenses, section 1102(b) fails to employ the words "not less than" or "at least." See 42 Pa. C. S. §§9712-9714.[5] However, a minimum sentence has been defined as the least severe sentence which may be imposed. Black's Law Dictionary 898 (5th ed. 1979). As noted above, section 1102(b) states that the sentence of life imprisonment shall be imposed for the offense of second degree murder. A sentencing *576 court may not sentence a second degree murderer to a lesser term. Accordingly, we conclude that the absence of the magic words "not less than" or "at least" does not render Petitioner's sentence something other than a mandatory minimum.
Petitioner contends that notwithstanding the mandate of section 1102(b), he is entitled to apply for parole by virtue of 42 Pa. C. S. §9756(c), alleging that this provision establishes parole eligibility for persons serving life sentences for all offenses other than first degree murder and certain summary offenses. Section 9756(c) provides in pertinent part:
Except in the case of murder of the first degree, the court may impose a sentence to imprisonment without the right to parole only when:
(1) a summary offense is charged;
(2) sentence is imposed for nonpayment of fines or costs, or both, in which case the sentence shall specify the number of days to be served; and
(3) the maximum term or terms of imprisonment imposed on one or more indictments to run consecutively or concurrently total less than 30 days.
42 Pa. C. S. §9756(c). As noted above, the Board refused to consider Petitioner for parole because he was serving a life sentence. Section 21 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §333.21, prohibits the Board from paroling life prisoners. Petitioner contends that 42 Pa. C. S. §9756(c) impliedly repeals that prohibition insofar as it relates to prisoners serving life sentences for offenses other than first degree murder because section 9756(c) was enacted after both 18 Pa. C. S. §1102(b) and section 21, 61 P.S. §333.21.[6] Petitioner asserts that *577 the prohibition against parole for the enumerated offenses creates a right to parole in all other cases not addressed by the above provision.
However, we note that section 9756 does not have as its stated purpose the creation of eligibility for parole nor does it refer to the power of the Board to parole, but states only what a trial court may or may not do when imposing a sentence in certain instances. Section 21, 61 P.S. §333.21, specifically prohibits the Board from paroling a prisoner condemned to death or life imprisonment. In addition, section 21 prohibits the Board from paroling any prisoner before the expiration of the minimum term of a sentence. There is a presumption against implied repeal; only if a later law is irreconcilable may it be held to effect a repeal by implication. Pittsburgh v. Public Utility Commission, 3 Pa. Commw. 546, 284 A.2d 808 (1971). Because the above statutes are not clearly irreconcilable, we conclude that 42 Pa. C. S. §9756(c) does not impliedly repeal section 21, 61 P.S. §333.21. We hold that section 9756(c) does not affirmatively create a right to apply for parole enforceable before the Board in this case. As a matter of law, therefore, Petitioner has not demonstrated entitlement to summary relief.
*578 Accordingly, we sustain the Board's preliminary objection, deny Petitioner's application for summary relief, and dismiss Petitioner's petition for review.
ORDER
AND NOW, February 23, 1989, the preliminary objection of the Pennsylvania Board of Probation and Parole in the above-captioned matter is sustained, Petitioner's application for summary relief is denied, and Petitioner's petition for review is dismissed.
NOTES
[1] Second degree murder is defined as a criminal homicide committed while the defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa. C. S. §2502(b). Section 1102(b) of the Crimes Code, 18 Pa. C. S. §1102(b) provides: "A person who has been convicted of murder of the second degree shall be sentenced to a term of life imprisonment."
[2] Section 21 of the Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §333.21, provides in pertinent part:
The board is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment, whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby. The power to parole herein granted to the Board of Parole may not be exercised in the board's discretion at any time before, but only after, the expiration of the minimum term of imprisonment fixed by the court in its sentence. . . .
[3] Under section 6 of the Act of June 19, 1911, P.L. as amended, formerly 19 P.S. §1057, repealed by section 2a of the Act of April 28, 1978, P.L. 202, a trial court was required to specify the maximum and minimum terms of a sentence. Case law interpreting this section provided that where the trial court failed to specify a minimum sentence, a minimum of one day was implied. See Commonwealth v. Ulbrick, 462 Pa. 257, 341 A.2d 68 (1975). However, in Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), the Pennsylvania Supreme Court addressed the conflict between former 19 P.S. §1057 and section 1102(b) of the Crimes Code, 18 Pa. C. S. §1102(b) (mandating a life sentence for second degree murder), and found section 1102(b) controlling as the later enacted statute. The current sentencing code requires a trial court, when imposing a sentence of total confinement, to specify the maximum period of the sentence as well as a minimum term, which is not to exceed one-half of the maximum sentence. 42 Pa. C. S. §9756(a-b). 42 Pa. C. S. §9756 was transferred to Title 42 from 18 Pa. C. S. §1356 by the Act of October 5, 1980, P.L. 693. 18 Pa. C. S. §1356 was enacted by the Act of December 30, 1974, P.L. 1052. While we recognize that 42 Pa. C. S. §9756(b) was enacted after 18 Pa. C. S. §1102(b), for the reasons discussed in the opinion, we conclude that a trial court is not required by section 9756(b) to state a minimum sentence less than a life sentence when sentence is imposed under section 1102(b).
[4] We recognize that 42 Pa. C. S. §9721 was enacted approximately nine months after the enactment of 18 Pa. C. S. §1102(b). However, our construction gives effect to the provisions of both statutes. See 1 Pa. C. S. §1932 (statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things; statutes in pari materia shall be construed together, if possible, as one statute).
[5] Section 9712 pertaining to offenses committed with firearms was enacted by the Act of December 30, 1974, P.L. 1052. Sections 9713 and 9714 pertaining to offenses committed on public transportation and second and subsequent offenses, respectively, were enacted by the Act of March 8, 1982, P.L. 169.
[6] Petitioner makes the alternative argument that section 21, 61 P.S. §333.21 is consistent with 42 Pa. C. S. §9756(c). Petitioner asserts that at the time section 21 was enacted, only first degree murder carried a possible penalty of death or life imprisonment. Prior to 1974, only two degrees of murder were recognized first degree murder and second degree murder, which encompassed all murders other than first degree. The present definition of second degree murder found in section 2502(b) of the Crimes Code, 18 Pa. C. S. §2502(b) was enacted by the Act of March 26, 1974, P.L. 213. This act both re-classified the crime of murder into three degrees and established the mandatory life sentence for second degree murder. Petitioner contends that in enacting 61 P.S. §333.21, the legislature did not intend to prohibit parole in cases of second degree murder as that crime is now defined. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611799/ | 38 Cal. App. 2d 741 (1940)
WILLIAM HUNSAKER BRILL, Respondent,
v.
NANCY PIERSON BROOKS MACY BRILL, Appellant.
Civ. No. 6394.
California Court of Appeals. Third Appellate District.
May 6, 1940.
S. S. Hahn and W. O. Graf for Appellant.
Daniel M. Hunsaker for Respondent.
Pullen, P. J.
This is an appeal from a judgment of annulment of marriage.
The purported marriage between the parties hereto was annulled upon the ground that at the time of such marriage appellant had a former husband living from whom she was not divorced. From that order this appeal is taken.
In 1928, appellant was a resident of New York. In 1928 she married George H. Macy, and both resided in New York. On June 4, 1934, appellant commenced an action against Macy in New York from which it appeared that in 1930 she had obtained a decree of separation from Macy wherein he was ordered to pay her $15 a week for support and maintenance; she also set forth that during all of the times therein referred to she had continuously resided in the city of New York, and that Macy had brought an action in Connecticut against her for divorce on the ground of desertion; and prayed for an injunction against Macy restraining him from prosecuting such action. An order to show cause was issued, and according to the records, is still pending.
On October 1, 1934, Macy and appellant entered into a contract wherein Macy agreed to pay her a lump sum in lieu of support and maintenance as prescribed in the decree.
We next find appellant in Reno, where she arrived October 5, 1934. She was met at the depot by an attorney, whom she had employed to obtain a divorce for her,--having telegraphed him before she left New York. She immediately *744 rented an apartment in Reno, and on November 21st, filed her action for divorce upon the ground of extreme cruelty.
Simultaneously with the filing of the complaint, defendant Macy filed his answer, through an attorney to whom he had, on November 7, 1934, some fourteen days prior to the commencement of the action for divorce in Nevada, given a power of attorney to represent him. On November 21, 1934, a decree was filed granting appellant a divorce upon the ground of cruelty from George Macy. Appellant remained in Reno until shortly before Christmas when she went to San Francisco and then to Hollywood, where she was New Year's eve. She remained in California until midsummer, returning to Reno over a week end, and later in the year spent about two weeks in Reno visiting friends. To various persons she stated her home was in New York and in her marriage license issued to herself and respondent in March, 1937, she gave her residence as Hollywood, although at the time of the trial of this action she claimed that she was then and at all times after October 5, 1934, had been a resident of Nevada. On January 28, 1937, appellant met respondent in Hollywood, and on March 29, 1937, they were married in Yuma, Arizona. This action for annulment was tried in the county of Ventura, California, the residence of respondent.
[1] The first point urged for reversal is that the evidence is insufficient to support a finding that at the time of the marriage of respondent to appellant, she was then the wife of Macy. No direct evidence was adduced at the trial that Macy was living on the 29th of March, 1937, but respondent, in the absence of such evidence, relies upon various presumptions to support that fact.
Section 61 of the Civil Code provides that "a subsequent marriage contracted ... during the life of a former husband or wife ... is illegal ... unless:"
"1. The former marriage has been annulled or dissolved, ..."
"2. Unless such former husband or wife is absent and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted. ..." *745
Macy was alive on November 21, 1934, at which time his answer was filed in the case of Macy v. Macy, some two years and four months before the marriage of appellant and respondent, and it would therefore be presumed under the second subdivision of the foregoing section that he was alive at the date of the marriage of appellant and respondent. (People v. Glab, 13 Cal. App. 2d 528 [57 PaCal.2d 588].)
[2] It is also claimed there is no showing that Macy had not obtained a valid divorce from appellant prior to her marriage to respondent. In this connection it will be recalled that at the time appellant left for Reno there was still pending in New York, an order to show cause directed to Macy why he should not be enjoined from prosecuting an action for divorce in any state, except upon the statutory ground permitted in the State of New York. As adultery is the only ground for absolute divorce recognized in New York, which is also a crime in New York, in the absence of any showing that appellant had committed adultery, the presumption of innocence was applicable. Such a presumption is applicable in civil as well as criminal cases. (Jones on Evidence, vol. 2, sec. 195; Guidera v. Lapiana, 52 Cal. App. 460 [199 P. 557].)
It is also to be presumed that Macy did not violate the order to show cause and attempt to divorce appellant upon any other ground in another state.
It would therefore appear there was sufficient evidence in the record in the absence of anything to the contrary, to justify the finding that Macy was living on March 29, 1937, and that he had not obtained a divorce against appellant prior to that date, and inasmuch as presumptions are evidence they may be the basis for findings of fact. (Sec. 1957, Code Civ. Proc.; Stafford v. Martinoni, 192 Cal. 724 [221 P. 919].)
[3] The next point urged is that the divorce granted by the courts of Nevada was null and void.
In order that Nevada acquire jurisdiction to grant a divorce it must appear that the person seeking such relief was an actual and bona fide resident of the State of Nevada for six weeks immediately preceding the commencement of an action. Appellant arrived in Reno, Nevada, on October 5, 1934. On October 1, 1934, she and her husband had in the State of New York, entered into an agreement whereby Macy *746 agreed to pay to appellant the sum of $2,500 in full satisfaction of all claims for alimony, maintenance or further support from him. On November 21, 1934, a decree of divorce was granted in Nevada, and shortly thereafter appellant left Nevada as hereinabove set forth.
The trial court, in the cause now before us, found that appellant went to Nevada for the sole purpose of obtaining a divorce from George H. Macy, and almost immediately after she had obtained such divorce, left Nevada and did not again reside there prior to her purported marriage to respondent. The court also found that appellant's purported residence in Nevada was solely for the purpose of obtaining a divorce from Macy, and that her residence in Nevada was merely a simulated or pretended residence, and that she never had been a bona fide resident of or domiciled in Nevada.
Section 9640 of the Nevada Compiled Laws requires that a plaintiff in an action for divorce shall have resided six weeks in that state before suit is brought, but the Nevada Supreme Court has held that residence in the state solely for the purpose of obtaining a divorce is not sufficient to confer jurisdiction, but that bona fide residence, with the intention of remaining must appear. (Walker v. Walker, 45 Nev. 105 [198 P. 433].) In De Bonchel v. Chandler, 296 Fed. 482, the factual situation was quite similar to the instant case. Plaintiff sued for breach of contract of marriage. The contract and breach were admitted but one of the defenses was that plaintiff was invalidly divorced from a former husband. The evidence showed a decree, regular upon its face, granted in Nevada upon substituted service, although with actual notice to defendant therein, the jurisdiction of the court resting upon plaintiff's residence in Nevada for the statutory period, the matrimonial domicile being in the State of Louisiana. To several, the plaintiff had declared Nevada to be her permanent home, while to others she stated she had gone to Reno merely to obtain a divorce. The Nevada divorce was held to be invalid, and the court in upholding that judgment, pointed out that while the Constitution of the United States required full faith and credit to judicial decrees of other states, and that principle was further supplied by the principle of comity, yet each state is given the right to regulate marriage and divorce within its borders. *747
The court there also pointed out that if a decree is void under the laws of the state where granted, it is void everywhere and subject to collateral attack. If, however, the divorce is granted by the state of the matrimonial domicile and that state has first and full jurisdiction over the question of divorce, and if rendered after regular service, the rights of the parties are fixed, and such decree must receive full faith and credit in all other states. But if one of the parties removes from the state of the matrimonial domicile, jurisdiction still remains to decree a divorce even through substitutional service and such decree is entitled to full faith and credit everywhere. If both leave the state of the matrimonial domicile, such domicile ends and the jurisdiction lapses, and such state has no further concern.
[4] If either spouse removes to another state and acquires a domicile, jurisdiction attaches in that state based on its interest in and right to fix the matrimonial status of its new member by virtue of which it may decree such status. After such length of service as it may prescribe or for such causes as it may allow, a decree may be granted, effective in that state; but if made on substitutional service, and perhaps on personal service, if in evasion of the laws of another state, it is not entitled to full faith and credit in other states, but will, by comity, be recognized if not detrimental to the other states' policy or interest.
[5] If the applicant for divorce is a mere sojourner in a state, in which the other party is not domiciled, that state has no jurisdiction to grant a decree on substituted service. (Kegley v. Kegley, 16 Cal. App. 2d 216, 220 [60 PaCal.2d 482]; Warren v. Warren, 127 Cal. App. 231 [15 PaCal.2d 556]; Latterner v. Latterner, 51 Nev. 285 [274 P. 194]; Presson v. Presson, 38 Nev. 203 [147 P. 1081]); and such decree, even though authorized by its own laws is not entitled to full faith or credit as a matter of right or comity, and the actual residence of one party or the other in the state in which the decree is granted, being thus essential to the jurisdiction to make it, whether such domicile in fact exists, may be collaterally inquired into where the decree is sought to be used in another state.
[6] In the instant case the facts show that Macy, the husband, appeared in the divorce action by an attorney, holding a power of attorney so to do. The fact this power of attorney *748 was executed some two weeks prior to the filing of the complaint, and that the defendant interposed no particular defense, as well as the circumstances appearing in the record, suggests at least an attempt to confer jurisdiction upon the courts of Nevada by consent. It is unnecessary to dwell upon the rule that jurisdiction cannot be conferred by consent. (Ryder v. Ryder, 2 Cal. App. 2d 426 [37 PaCal.2d 1069]; Andrews v. Andrews, 188 U.S. 14 [23 S. Ct. 237, 47 L. Ed. 366].)
[7] Appellant questions the jurisdiction of the courts of California to inquire into the matter, but inasmuch as at least one of the parties, Brill, was a bona fide resident of California, and perhaps both, as appears from the marriage license, the courts of California had jurisdiction to declare the marriage a nullity. (Anderson v. Anderson, 7 Cal. 2d 265 [60 PaCal.2d 290]; Sullivan v. Sullivan, 219 Cal. 734 [28 PaCal.2d 914].)
It would therefore appear that the judgment of the trial court was just and proper under the facts and circumstances as shown by the record, and should be affirmed. It is so ordered.
Thompson, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1915483/ | 961 A.2d 861 (2008)
WASTE MANAGEMENT OF PENNSYLVANIA, INC.
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION.
No. 449 MAL (2008).
Supreme Court of Pennsylvania.
November 25, 2008.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/330682/ | 524 F.2d 481
Rodrigo PARTIDA, Petitioner-Appellant,v.Claudio CASTANEDA, Sheriff, Respondent-Appellee.
No. 74-3966.
United States Court of Appeals,Fifth Circuit.
Dec. 11, 1975.
David G. Hall, San Juan, Tex., Melvin L. Wulf, New York City, for petitioner-appellant.
Thomas P. Beery, Oscar B. McInnis, Asst. Dist. Attys., Edinburg, Tex., Hidalgo County, for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GODBOLD, DYER and MORGAN, Circuit Judges.
DYER, Circuit Judge:
1
Partida seeks habeas corpus relief contending that he was denied due process and equal protection of law because the grand jury of Hidalgo County, Texas, which indicted him, was unconstitutionally underrepresented by Mexican-Americans. The district court held that Partida had established a prima facie case of discrimination against Mexican-Americans in the grand jury selection process, but that it had been rebutted. Finding that the county's1 evidence was insufficient to rebut the prima facie case, we reverse.
2
Partida was indicted on March 17, 1972, and was found guilty of the charge against him. On motion for a new trial, Partida presented his Mexican-American exclusion claim for the first time. His motion was denied and he appealed to the Texas Court of Criminal Appeals. Although his challenge to the grand jury was untimely2 and, therefore, apparently waived,3 the Texas court ignored that fact and proceeded to reject Partida's grand jury contention. Partida v. State of Texas, Tex.Cr.App., 1974, 506 S.W.2d 209. Thereafter, his petition for the writ was filed, dismissed, and this appeal taken.
3
Initially, respondent asks us to deny petitioner federal habeas corpus relief because he waived his challenge to the composition of the grand jury. However, the waiver argument was made to the Texas Court of Criminal Appeals which nevertheless chose to consider the merits of the claim. Under these circumstances, habeas relief may lie and the district court was correct in reaching the merits. Warden v. Hayden, 1967, 387 U.S. 294, 297, fn. 3, 87 S. Ct. 1642, 18 L. Ed. 2d 782; Irvin v. Dowd, 1959, 359 U.S. 394, 406, 79 S. Ct. 825, 3 L. Ed. 2d 900; Hale v. Henderson, 6 Cir. 1973, 485 F.2d 266, 269.
4
Every criminal defendant is entitled to be indicted and tried by grand and petit juries whose members have been selected in a non-discriminatory manner. Jury discrimination, however, is not an easy matter of proof. The " rule of exclusion" is usually utilized. According to this rule, a prima facie case of discrimination is established by showing a disparity between (1) the percentage which the ethnic or racial group constitutes of the persons from whom a jury list is drawn and (2) the percentage which that group constitutes of the jury list compiled. Once a defendant establishes his prima facie case, the burden shifts to the State to offer a satisfactory explanation why the disparity exists. Muniz v. Beto, 5 Cir. 1970, 434 F.2d 697, 700.
5
Partida relied on the rule of exclusion to establish his prima facie case. First, he demonstrated that Mexican-Americans constituted a separately identifiable ethnic group in Hidalgo County, Texas. Then, he introduced evidence that in 1970, the total population of Hidalgo County was 181,535 persons of which 143,611, or approximately 79.2%, were persons of Spanish language or Spanish surname.4 Next, petitioner presented evidence showing the composition of the grand jury lists5 over a period of ten years prior to and including the term of court in which the indictment against him was returned. Of the 870 persons selected for grand jury duty, only 39.0% were Mexican-Americans. In the two and one-half year period previous to the indictment, 45.5% of the panelists were persons of Mexican descent.
6
As these figures show, the disparity between Mexican-Americans in the population and those on the grand jury was significant: over the full ten year period, it was 40.2%; for the shorter two and one-half year period, it was 33.7%.6 This disparity clearly establishes a prima facie case. Black v. Curb, 5 Cir. 1972, 464 F.2d 165; Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075; Preston v. Mandeville, 5 Cir. 1970, 428 F.2d 1392; Muniz v. Beto, supra.
7
Respondent then had the burden to rebut petitioner's statistical presentation. It is at this juncture that we disagree with the district court.
8
Respondent's rebuttal evidence was limited to the testimony of State District Judge Alamia, who selected the grand jury commissioners, who selected the grand jury who indicted petitioner.7 Judge Alamia offered no explanation for the disparity. Indeed, he testified that he sought a balance of grand jury commissioners according to ethnic origin, race, sex and age, yet did not instruct the commissioners to do the same. In addition, he admitted that the grand jury selection process has not resulted in ethnically-representative grand jury panels.
9
In addition to Judge Alamia's testimony, the district court based its decision on the "governing majority" status of Mexican-Americans in Hidalgo County.8 He reasoned that Mexican-Americans in such a position would not purposefully and intentionally discriminate against themselves. Therefore, the discriminatory intent presumed by petitioner's prima facie case was overcome. We cannot agree. The fact of governing majority status may mollify the prima facie case, but it does not nullify it. This may be done only by proof to explain the disparity. Without it, petitioner must prevail.
10
While the Texas system of selecting grand jurors is constitutional, Smith v. Texas, 1940, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84; Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1, the unbridled discretion afforded the jury commissioners to prepare the grand jury list requires close scrutiny of the disparities and the proof offered to explain them. Here, the disparities are too great and the proof offered too paltry.
11
The district court's judgment is reversed and the case is remanded for further proceedings consistent with this opinion.9
12
Reversed and remanded.
1
The writ was directed to the Sheriff of Hildago County who was holding Partida
2
Vernon's Ann.C.Cr.P. art. 19.27, provides in pertinent part:
"Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard."
Art. 27.03 provides:
"(A) motion to set aside an indictment . . . may be based on the following: . . . That the grand jury was illegally impaneled; provided, however, in order to raise such question on motion to set aside the indictment, the defendant must show that he did not have an opportunity to challenge the array at the time the grand jury was impaneled." Cf. F.R.Crim.P. 12(b)(2) and (f).
3
Wilson v. Estelle, 5 Cir. 1974, 504 F.2d 562, 563; Tyson v. State, 1943, 146 Tex. Crim. 128, 171 S.W.2d 496, 497-498
4
The figures were obtained from the 1970 Census of Population conducted by the United States Census Bureau, Department of Commerce. Since there was no contrary showing, we accept petitioner's assertion that the terms "Spanish surname" and "Spanish language" as used in the census reports are synonymous with persons of Mexican descent in Hidalgo County
5
The grand jury "list" refers to the 15-20 persons selected by the jury commissioners from whom a grand jury panel of 12 is selected. See fn. 7
6
The grand jury list prepared in the term Partida was indicted was 50% Mexican-American while the panel itself was 40%. The disparities were 29.2% and 39.2% respectively
7
This bit of verbal gymnastics exemplifies the organization of the Texas grand jury system. A state district judge appoints not less than three nor more than five jury commissioners, who must be residents of different portions of the county and must not have served previously in the same year. Art. 19.01. They, in turn, select not less than 15 nor more than 20 persons "from the citizens of different portions of the county" as grand jurors, Art. 19.06, who, among other things, must be able to read and write and must be of sound mind and good moral character, Art. 19.08. The 15-20 persons are "tested," Art. 19.21, and they are "interrogated," Art. 19.22, by being asked prescribed questions, Art. 19.23. Then 12 of them are impaneled by the district judge as the grand jury. Art. 19.26
8
"Here, 80% of the population is Mexican-American, the majority of the voting population is Mexican-American, the majority of the elected officials are Mexican-American, the majority of the judges and jury commissioners are also Mexican-American, and Mexican-Americans in significant percentages have served on every grand jury in the last ten years." Memorandum Opinion of District Court, p. 18
9
We do not suggest that proportional representation or some percentage approximating it is required to survive constitutional attack. Cf. Swain v. Alabama, 1965, 380 U.S. 202, 208-09, 85 S. Ct. 824, 13 L. Ed. 2d 759. The unexplained disparities here are simply too great and too long existent for the county system to escape unrectified | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2611812/ | 180 Ariz. 384 (1994)
884 P.2d 270
STATE of Arizona, and J.C.S., a person under the age of 18 years, Petitioners,
v.
SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF NAVAJO; The Honorable Thomas L. Wing, a judge thereof, Respondent Judge.
No. 1 CA-SA 94-0198.
Court of Appeals of Arizona, Division 1, Department B.
November 8, 1994.
*385 Melvin R. Bowers, Jr., Navajo County Atty. by Stephen D. Alfrey, Deputy County Atty., Holbrook, for the State.
Myrna J. Parker, Navajo County Public Defender, Holbrook, for juvenile petitioner.
OPINION
TOCI, Judge.
This case presents a separation of powers issue: may the juvenile court prevent the county attorney from withdrawing a previously filed motion to transfer a juvenile for prosecution as an adult? In other words, once a transfer petition is filed, does the juvenile court have the power to compel the state to proceed with the transfer hearing?
This question is presented in a special action, brought by joint petition of the state and the juvenile, to challenge the juvenile court's denial of the state's motion to withdraw its transfer motion. We accepted jurisdiction, granted relief, and advised the parties that this opinion would follow.
We accepted jurisdiction of this special action for two reasons. First, the court's denial of the motion to withdraw the transfer motion was not a final order. See Ariz. Rev. Stat. Ann. § 8-236(A) (1989); Romley v. Superior Court, 174 Ariz. 126, 127, 847 P.2d 627, 628 (App. 1993). Second, the case presents an issue of statewide importance that turns on a matter of law. See Romley, 174 Ariz. at 127, 847 P.2d at 628.
We conclude that the prosecutor's power to make the initial decision to seek the prosecution of a juvenile as an adult includes the power to revoke that decision. Just as a trial court cannot prevent the prosecution from dismissing charges against a criminal defendant, a juvenile court cannot prevent the prosecution from withdrawing a motion to transfer for prosecution as an adult. It follows that a juvenile court cannot continue with the transfer hearing on its own after the prosecution has filed a motion to withdraw the transfer motion. Consequently, the juvenile court abused its discretion in denying the state permission to withdraw its transfer motion.
FACTUAL AND PROCEDURAL BACKGROUND
The state filed a delinquency petition against the fifteen-year old juvenile ("JCS") and another juvenile. They were charged with burglary, armed robbery, aggravated robbery, kidnapping, aggravated assault, theft, criminal damage, unlawful flight, and endangerment. The state requested that both juveniles be transferred for criminal prosecution.
Before JCS's transfer hearing, the county attorney and the attorney for JCS entered into an agreement concerning the pending charges. The state agreed to dismiss certain counts against JCS (burglary, aggravated robbery, kidnapping, and endangerment) and to withdraw the request for transfer. In consideration, JCS agreed that he would co-operate *386 with the prosecution by testifying in the cases filed against the other juvenile. The agreement also stated that the parties reached no agreement about the disposition and sentencing on JCS's remaining charges (armed robbery, aggravated assault, theft, criminal damage, and unlawful flight).
At the transfer hearing, the state, with the concurrence of JCS's attorney, moved to withdraw the transfer request. The prosecutor stated:
In discussions with Brad Brawley of the probation office, and Ms. Parker, the state in investigating the matter and discussions with law enforcement officers, we came to the conclusion that this juvenile is not probably should not be treated exactly the same as the other juvenile involved. Law enforcement officers shortly after the arrest came to me with the statement that essentially they believed that this juvenile was an accomplice to [the other juvenile] even though this juvenile is older, he was an accomplice to [the other juvenile], he was not the initiating participant although he did allegedly go along with him, and that the law enforcement community at least viewed [the other juvenile's] action much more seriously then they do [JCS's] and that was confirmed in my discussions with Ms. Parker and Mr. Brawley, not to minimize the participation but merely to set forth to the Court's understanding why the state came to the conclusion that it would be in the best interest of justice to withdraw the motion for transfer.
At the same hearing, the prosecutor advised the court of additional factors justifying withdrawal of the motion to transfer. The prosecutor informed the court that JCS's criminal background was not as egregious as that of the other juvenile. The prosecutor also observed that the state did not have sufficient evidence to establish burglary and criminal damage against either juvenile. The prosecutor was "confident" that if the motion to transfer were withdrawn, JCS would cooperate in proving the charges against the other juvenile and in solving other similar crimes in the area.
Nevertheless, the court denied the motion, finding that:
When a complaint is filed with the Court the state cannot dismiss that complaint without [the] approval of the Court and certainly the area of juvenile law which is only quasi-criminal, and quasi-civil, the Court is of the opinion that the motion for transfer cannot be dismissed without approval of the Court.
After additional briefing and argument, the court issued a decision affirming its earlier decision denying the state's motion to withdraw the transfer motion. The court stated that where a delinquency petition is pending, the parties cannot bind the court to their plea agreement to withdraw the motion to transfer and to "suspend criminal prosecution." The court concluded that under Ariz. Const. art. 6, § 15, "[t]he duty to determine whether `to suspend criminal prosecution' is placed on the court, not the parties."
DISCUSSION
The joint petitioners correctly argue, relying on Rule 12(a), Rules of Procedure For the Juvenile Court,[1] that the prosecutor is the official who determines whether to request that a juvenile be transferred for adult prosecution. The juvenile court did not dispute that proposition. Instead, relying on State ex rel. Romley v. Superior Court, 170 Ariz. 339, 342-43, 823 P.2d 1347, 1350-51 (App. 1991), the court concluded that once the prosecutor filed the motion to transfer, the prosecutor could not later withdraw that motion without juvenile court approval. We disagree with the latter proposition.
We begin our analysis of the juvenile court's reliance on State ex rel. Romley v. Superior Court with the general law governing juvenile matters. The Arizona Constitution provides:
*387 The superior court shall have exclusive original jurisdiction in all proceedings and matters affecting... children accused of a crime, under the age of eighteen years. The judges shall hold examinations in chambers for all such children concerning whom proceedings are brought, in advance of any criminal prosecution of such children, and may, in their discretion, suspend criminal prosecution of such children....
Ariz.Const. art. 6, § 15. This constitutional provision refers to the adult criminal liability of children. In re Appeal in Maricopa County, Juvenile Action No. JV-122733, 172 Ariz. 542, 544, 838 P.2d 1303, 1305 (App. 1992). Thus, "it is the suspension of `criminal prosecution,' that is, [the] prosecution of juveniles as if they were adults, which is left to the discretion of the superior court judge sitting as a juvenile judge." Id. In other words, the juvenile court can, through denial of a motion to transfer for adult prosecution, suspend "criminal prosecution." Id.
Furthermore, the juvenile court cannot be divested of jurisdiction to determine the transfer question. State ex rel. Romley v. Superior Court, 170 Ariz. at 341, 823 P.2d at 1349. In State ex rel. Romley, the state and the juvenile tried to circumvent the juvenile court by agreeing to waive the transfer hearing and allow the juvenile to plead as an adult in the superior court. Id. at 340, 823 P.2d at 1348. On appeal, we held that Rule 14, Rules of Procedure For the Juvenile Court, "mandates that `the [juvenile] court shall ... determine whether the public safety or interest would be best served by the transfer....'" Id. at 342, 823 P.2d at 1350 (quoting Rule 14).
Here, however, the parties were not attempting to deprive the juvenile court of jurisdiction to suspend a juvenile criminal prosecution. Instead, the state's withdrawal of the motion to transfer, if granted, itself would have effectively suspended JCS's prosecution as an adult. Thus, in this case, the parties were affirming, rather than circumventing, the jurisdiction of the juvenile court. Consequently, State ex rel. Romley does not provide authority for the court's refusal to allow the prosecution to withdraw the transfer motion.
The issue, then, is not whether the prosecutor interfered with the juvenile court's authority to suspend a juvenile's criminal prosecution; rather, the issue is whether the juvenile court has the authority to compel the prosecutor to proceed with a transfer hearing. We conclude that the prosecutor, rather than the juvenile court, is vested with the discretion to proceed or not to proceed with a motion to transfer a juvenile for adult prosecution.
We first recognize that the executive branch of government has considerable discretion in the area of criminal prosecutions. For instance, a prosecutor, as a member of the executive department, "is properly vested with both the power ... and the discretion to proceed to trial once a criminal action has been filed." State v. Ramsey, 171 Ariz. 409, 413, 831 P.2d 408, 412 (App. 1992). And, "the courts have no power to interfere with the discretion of the prosecutor unless he is acting illegally or in excess of his powers." State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976).
Our laws grant prosecutors considerable power over juvenile prosecutions as well. For example, the authority to file delinquency petitions resides exclusively within the jurisdiction of the prosecutor. In re Maricopa County, Juvenile Action No. J-81405-S, 122 Ariz. 252, 255, 594 P.2d 506, 509 (1979). Thus, the judicial branch cannot interfere with a prosecutor's decision to initiate delinquency proceedings in juvenile court. See Appeal in Maricopa County, Juvenile Action No. JV-122733, 172 Ariz. at 545, 838 P.2d at 1306. Similarly, in Rule 12(a), Rules of Procedure For the Juvenile Court, our supreme court has recognized that it is the executive branch that decides first whether to seek to treat a juvenile as an adult. That rule provides that the county attorney may file a motion to transfer if, in his opinion, "the child is not a proper person over whom the juvenile court should retain jurisdiction."
Further, under the Rules in effect at the time of the transfer hearing, a juvenile court could not make a transfer order that limited the prosecution's right to decide what *388 charges should be filed against a juvenile.[2]See Appeal in Maricopa County, Juvenile Action No. JV-122733, 172 Ariz. at 545, 838 P.2d at 1306. Once a juvenile court exercised its power to transfer, the state had complete discretion in determining what charges to initiate against the juvenile "based on the acts for which transfer was made." Id.
All these limitations on the judiciary's authority to control the prosecution of both adults and juveniles are based on the separation of powers doctrine. See id.; Ramsey, 171 Ariz. at 412-13, 831 P.2d at 411-12. Under the Arizona Constitution, each branch of government must "act with the powers and functions properly belonging to it and ... not encroach on the power and functions delegated to the other [branches]." Ramsey, 171 Ariz. at 412, 831 P.2d at 411. It is the duty of the courts to maintain "sharp separation of powers." Id. at 413, 831 P.2d at 412 (quoting State v. Jones, 142 Ariz. 302, 304, 689 P.2d 561, 563 (App. 1984)).
Here, the prosecutor, by withdrawing his transfer motion, in effect simply exercised his legitimate authority to initiate proceedings against JCS in juvenile court. Because the decision to initiate proceedings in juvenile court is within the discretion of the prosecutor, the trial court had no right to override the prosecutor's decision. Consequently, the juvenile court abused its discretion in denying the state's request to withdraw its transfer motion.
The order accepting jurisdiction and granting relief is reaffirmed.
McGREGOR and KLEINSCHMIDT, JJ., concur.
NOTES
[1] Rule 12(a) states in part:
If, within the time set forth in Rule 6.1(e)(1), in the opinion of the county attorney the child is not a proper person over whom the juvenile court should retain jurisdiction, the county attorney may file a motion with the clerk of the court requesting that the juvenile court waive jurisdiction and order the transfer of the child to the appropriate court for criminal prosecution....
[2] Rule 12 was amended, effective June 1, 1994, to read in part:
The complaint may be amended at any time before the transfer decision is made to conform to the evidence, but the juvenile shall not be transferred or held to answer for an offense different from that for which probable cause was found at the transfer hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611821/ | 884 P.2d 566 (1994)
131 Or. App. 213
Michael SLOGOWSKI, as Personal Representative of the Estates of Jason Steve Slogowski, Rachael Michelle Slogowski and Tanya Slogowski, Deceased, and as Guardian Ad Litem for April M. Slogowski, a Minor, Appellant,
v.
James N. LYNESS and County of Linn, Defendants, and
PacifiCorp, dba Pacific Power & Light Company, Respondent.
90C12373; CA A79627.
Court of Appeals of Oregon.
Argued and Submitted February 8, 1994.
Decided November 2, 1994.
J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Burt, Swanson, Lathen, Alexander & McCann.
Andrew Gardner, Portland, argued the cause for respondent. With him on the brief were Charles F. Adams and Stoel Rives Boley Jones & Grey.
Before WARREN, P.J., and EDMONDS and LANDAU, JJ.
*567 LANDAU, Judge.
Plaintiff appeals from a judgment on the pleadings, dismissing plaintiff's negligence claim against defendant PacifiCorp. We affirm.
When we review a judgment on the pleadings, we must accept the allegations of fact in the pleadings as true. Beason v. Harcleroad, 105 Or.App. 376, 379-80, 805 P.2d 700 (1991). The pleadings reveal the following facts.
Defendant James Lyness owns land adjacent to a roadway in Linn County. PacifiCorp holds an easement for right-of-way across that land. The easement grants
"the right to erect and maintain an electric power line, telephone or aerial cable line consisting of * * * poles [and] anchors for electric power line with the necessary wires and fixtures thereon, and to remove foliage, tree limbs or trees that may interfere with the construction, maintenance and operation of said electric power, telephone or cable line across that property * * *.
"* * * * *
"[PacifiCorp has] access to said right-of-way and the equipment thereon for the purpose of repairs, etc., provided always that said [PacifiCorp] * * * shall be held responsible for any damage which may be unnecessarily done to the property above described."
PacifiCorp maintained power lines on the easement.
According to plaintiff's complaint, for a period of at least five years,
"a large fir tree located on the property owned by the Defendant Lyness, * * * within the easement granted to Pacificorp, * * * had either broken or been cut off at its top, and had developed an adventitious growth, causing a forked structure at the top of the tree. The break or cutting also allowed the development of decay in the area of this adventitious growth. The conditions resulted in a weak branch stem union which was readily discoverable upon inspection. The condition of the tree, coupled with its position on the south side of the roadway, presented a significant foreseeable danger of tree failure and resulting collapse into the area of the roadway on which drivers and passengers of vehicles * * * would be travelling."
During a windstorm, a portion of the tree broke off and fell onto the highway, just as plaintiff was driving by. The tree branch hit plaintiff's car, killing three of his children and injuring another.
As personal representative for the deceased and injured children, plaintiff sued Lyness and PacifiCorp.[1] Plaintiff alleges that PacifiCorp was negligent in
"failing to properly inspect the trees or otherwise notice the dangerous condition of the tree * * * and take appropriate precautions to either trim or remove the tree to eliminate or lessen the hazard presented to travellers on the highway."
In its answer, PacifiCorp admitted that it was successor-in-interest to a power line easement and attached the terms of the easement to the answer. It denied all other allegations.
PacifiCorp moved for a judgment on the pleadings. The trial court granted the motion and entered judgment under ORCP 67 B. Plaintiff appeals, assigning error to the entry of judgment on the pleadings in favor of PacifiCorp.
Plaintiff argues that the trial court erred, because the allegations of his complaint raise at least a factual question as to PacifiCorp's liability. Relying on Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), plaintiff argues that, by failing to properly inspect the tree, notice its decayed condition and take appropriate precautions to prevent it from falling on the roadway, PacifiCorp unreasonably created a foreseeable risk of harm to a protected interest of plaintiff and his children. PacifiCorp argues that, as a matter of law, it cannot be held liable on the facts as alleged, because it *568 had no duty to protect individuals using a public highway from natural conditions existing on the private property of a third person.
We review the trial court's entry of judgment on the pleadings to determine whether "the pleadings, taken together, affirmatively show that plaintiff has no cause of action against the defendant * * *." Scott & Payne v. Patomac Ins. Co., 217 Or. 323, 330, 341 P.2d 1083 (1959); Thompson v. Telephone & Data Systems, Inc., 130 Or. App. 302, 309, 881 P.2d 819 (1994).
Analysis of the sufficiency of plaintiff's negligence allegations begins with the Supreme Court's decision in Fazzolari. In that case, the court held that
"unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff. The role of the court is what it ordinarily is in cases involving the evaluation of particular situations under broad and imprecise standards: to determine whether upon the facts alleged or the evidence presented no reasonable factfinder could decide one or more elements of liability for one or the other party." 303 Or. at 17, 734 P.2d 1326.
Plaintiff argues that PacifiCorp, as an owner or possessor of land, is subject to a special duty to use reasonable care to prevent natural conditions on its property from injuring passersby on a nearby roadway and that there remains a factual question as to PacifiCorp's liability under that special duty. In support of his argument, plaintiff relies on Taylor v. Olsen, 282 Or. 343, 348, 578 P.2d 779 (1978), in which the Supreme Court held that
"except for extreme situations, the question of the landowner's or possessor's attention to the condition of his roadside trees under a general standard of `reasonable care to prevent an unreasonable risk of harm' is to be decided as a question of fact upon the circumstances of the individual case." 282 Or. at 348, 578 P.2d 779. PacifiCorp argues that Taylor is inapposite, because, as a mere easement holder, PacifiCorp is not subject to the duties of an owner or possessor of land. Citing Willamette Quarries v. Wodtli, 308 Or. 406, 415 n. 5, 781 P.2d 1196 (1989), and Rogers v. Donovan, 261 Or. 124, 125 n. 1, 492 P.2d 768 (1972), PacifiCorp argues that easements are not possessory interests. According to PacifiCorp, it is subject to the general foreseeability analysis of Fazzolari and, under that analysis, it is not liable as a matter of law.
We need not decide whether, as a general proposition of tort law, an easement holder is a "possessor" of land, or whether PacifiCorp is subject to the special duty as opposed to the general duty to avoid conduct that creates an unreasonable risk of harm to a protected interest of plaintiff. Under both Taylor and Fazzolari, PacifiCorp is required to avoid conduct that unreasonably creates a risk of harm. Under the facts alleged in this case, PacifiCorp could not be found to have engaged in unreasonable conduct, as a matter of law.
Whether characterized as a possessory interest or given some other label, PacifiCorp's interest in the land on which the tree that caused the injury to plaintiff's children was located is defined by its easement with Lyness. That easement is limited in scope. It provides that PacifiCorp may run power lines across Lyness's land. It also provides that, although the tree located near the power lines is the property of Lyness, PacifiCorp has the right to inspect and "remove foliage, tree limbs or trees that may interfere with the construction, maintenance and operation of said power, telephone or cable line." (Emphasis supplied.) Under the terms of the easement, PacifiCorp had no right to remove foliage, tree limbs or trees for reasons other than the interference with its power lines. Indeed, had PacifiCorp removed foliage, tree limbs or trees for any other reason, it could have been liable to Lyness in trespass. See ORS 105.810; ORS 105.815; Hampton v. Portland Gen. Elec., 268 Or. 121, 519 P.2d 89 (1974); Brown v. Johnston, 258 Or. 284, 482 P.2d 712 (1971); Fisher v. Carlin et ux, 219 Or. 159, 346 P.2d 641 (1959).
*569 There is no allegation in this case that the condition of the tree in any way interfered with the construction, operation or maintenance of PacifiCorp's power lines. Therefore, the question is whether PacifiCorp may be held liable for failing to go beyond the scope of its easement, to inspect Lyness's trees for possible danger to passersby on the nearby roadway and to remove any foliage, tree branches or trees that presented a risk of harm to those passersby.
We are aware of no Oregon decisions imposing liability on those facts. That comes as no surprise, because finding liability would effectively require a defendant to commit the tort of trespass in order to avoid committing the tort of negligence. Although liability in a negligence case may not often be resolved by way of pretrial motion, in some cases a court "can decide that no reasonable factfinder could find the risk foreseeable or defendant's conduct to have fallen below acceptable standards." Donaca v. Curry Co., 303 Or. 30, 38-39, 734 P.2d 1339 (1987). This is such a case. Under either the special duty of a possessor of land, or the more general duty described in Fazzolari, it would be unreasonable to hold PacifiCorp liable as a matter of law. The trial court, therefore, did not err in entering judgment on the pleadings in PacifiCorp's favor.
Affirmed.
NOTES
[1] Plaintiff also sued Linn County. However, the claims against that defendant were later dismissed and are not at issue in this appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611853/ | 8 Cal. 4th 903 (1994)
884 P.2d 81
35 Cal. Rptr. 2d 624
THE PEOPLE, Plaintiff and Appellant,
v.
JOSE NAPOLEON SANTAMARIA, Defendant and Respondent.
Docket No. S035076.
Supreme Court of California.
November 28, 1994.
*908 COUNSEL
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver and Joan Killeen, Deputy Attorneys General, for Plaintiff and Appellant.
John J. Meehan, District Attorney (Alameda), William M. Baldwin, Assistant District Attorney, and Jeff H. Rubin, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Appellant.
Lawrence A. Gibbs, under appointment by the Supreme Court, for Defendant and Respondent.
OPINION
ARABIAN, J.
Do collateral estoppel principles mandate that after a judgment is reversed on appeal, the original jury's finding on a sentence enhancing allegation affects retrial of a murder charge, even though the same jury convicted defendant of that murder? This important question, implicating California's ability to effectively prosecute violent crime, has divided the Courts of Appeal.
Finding this case different from Ashe v. Swenson (1970) 397 U.S. 436 [25 L. Ed. 2d 469, 90 S. Ct. 1189], the landmark case engrafting collateral estoppel onto the double jeopardy clause, we conclude that the doctrine does not apply, and reverse the judgment of the Court of Appeal, which affirmed the dismissal of a murder charge.
I. FACTS AND PROCEDURAL HISTORY
On September 5, 1985, the body of Victor Guadron was discovered in Moss Beach. Evidence indicated the body had been stabbed, run over by a car, and strangled, and that cash and jewelry had been taken from the victim. Defendant was charged with Guadron's murder and robbery (Pen. Code, §§ 187, 211), and with a robbery-murder special circumstance (Pen. Code, § 190.2, subd. (a)(17)(i)). The information also contained a sentence enhancing allegation that defendant personally used a knife in the commission of the crime. (Pen. Code, § 12022, subd. (b).)
The case was tried before a jury. The main prosecution witness was Anthony Nubla, who had pleaded guilty to being an accessory to the murder *909 and agreed to cooperate with the prosecution. Nubla testified that in the morning of September 5, at defendant's request, he gave him and Guadron a ride. After running an errand, they drove to Dolores Park, where Nubla got out to buy marijuana. He heard someone yell "Help," turned around, and saw defendant hugging Guadron's neck and stabbing him.
Nubla returned to the car. Defendant told him to drive toward Pacifica. On the way, defendant took Guadron's jewelry and money. At Moss Beach, they stopped and pulled Guadron out of the car. Defendant then drove the car twice over Guadron's body. The two returned to defendant's house and cleaned the car.
Nubla's testimony and other evidence showed that about a week later Nubla and defendant pawned the stolen jewelry. In May 1987, two conversations between Nubla and defendant were recorded. Defendant did not explicitly admit his involvement in the murder, but did make incriminating statements.
The jury convicted defendant of murder and robbery, and found true the robbery-murder special circumstance, but found not true the allegation that defendant personally used a knife during the commission of the crime. On the first appeal, the Court of Appeal reversed the judgment, finding that an 11-day continuance during jury deliberations was prejudicial error. (People v. Santamaria (1991) 229 Cal. App. 3d 269 [280 Cal. Rptr. 43].)
On remand, the People filed a new information identical to the previous one except that it did not include the weapon enhancement allegation. Defendant promptly moved, "based on double jeopardy clause, to prohibit retrial of defendant for use of dangerous weapon, to limit evidence and preclude prosecution's reliance on theory adjudicated in defendant's favor at first trial." The trial court largely granted the motion. It ruled the prosecution could not retry the enhancement allegation (which the new information had not even alleged). In addition, and pertinent here, the court precluded the prosecution "from retrying the defendant on the theory that he personally used the knife during the killing. [¶] To this end, the jury is to be instructed at appropriate intervals throughout the case that the defendant did not personally use a knife during the killing of the victim." The defendant's motion regarding the introduction of evidence was "denied without prejudice to objections, particularly, as to relevance during the course of the trial." Among the evidence defendant had sought to exclude was Nubla's testimony that he saw defendant stab the victim.
The court stated its belief that there were "several alternate instrumentalities of death." The district attorney replied, "The cause of death in this case *910 was a knife wound. It was not manual strangulation." Defense counsel added, "My belief is that Dr. Benson testified that the cause of death was a stab wound to the hepatic artery complicated by the other factors...."
When the prosecution later stated that it was unable to proceed in light of the ruling, the court dismissed the case pursuant to Penal Code section 1385. The People appealed. (Pen. Code, § 1238, subd. (a)(8).)[1] The Court of Appeal affirmed, finding that "the negative enhancement finding precludes the People from retrying defendant on the theory he personally killed the victim with a knife."
We granted the Attorney General's petition for review.
II. DISCUSSION
The parties agree that the jury's "not true" finding on the knife-use enhancement allegation precludes retrial of that allegation. (People v. Superior Court (Marks) (1991) 1 Cal. 4th 56, 78, fn. 22 [2 Cal. Rptr. 2d 389, 820 P.2d 613]; see also People v. Saunders (1993) 5 Cal. 4th 580, 593 [20 Cal. Rptr. 2d 638, 853 P.2d 1093].) Defendant additionally argues that the finding limits the retrial of the murder charge of which the same jury had found him guilty. He claims that at retrial, the prosecution had to prove some basis for liability, such as that defendant aided and abetted the actual perpetrator, that did not involve personal knife use, and that the trial court correctly stated an intent to instruct the jury that he did not use the knife. When the prosecution admitted an inability to prove defendant guilty on a different basis than before, he argues, the charges were properly dismissed.
A. Background
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." (See also Cal. Const., art. I, § 15 ["Persons may not twice be put in jeopardy for the same offense ...."]; People v. Saunders, supra, 5 Cal.4th at p. 593.)
(1) "It has long been settled ... that the Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of *911 some error in the proceedings leading to conviction." (Lockhart v. Nelson (1988) 488 U.S. 33, 38 [102 L. Ed. 2d 265, 272, 109 S. Ct. 285]; see also United States v. Ball (1896) 163 U.S. 662 [41 L. Ed. 300, 16 S. Ct. 1192]; cf. Burks v. United States (1978) 437 U.S. 1 [57 L. Ed. 2d 1, 98 S. Ct. 2141] [recognizing an exception when the sole ground for the reversal is insufficiency of the evidence to sustain the verdict].) "[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect." (United States v. Scott (1978) 437 U.S. 82, 91 [57 L. Ed. 2d 65, 74, 98 S. Ct. 2187].)
(2) It is equally settled that an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is factually irreconcilable with a conviction on another, or if a not true finding of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect is given to both. (United States v. Powell (1984) 469 U.S. 57 [83 L. Ed. 2d 461, 105 S. Ct. 471]; People v. Pahl (1991) 226 Cal. App. 3d 1651, 1656-1657 [277 Cal. Rptr. 656]; see Pen. Code, § 954 ["An acquittal of one or more counts shall not be deemed an acquittal of any other count."]; see also People v. Nunez (1986) 183 Cal. App. 3d 214, 225-228 [228 Cal. Rptr. 64] [applying the rule to an enhancement finding].) When a jury renders inconsistent verdicts, "it is unclear whose ox has been gored." (United States v. Powell, supra, 469 U.S. at p. 65 [83 L.Ed.2d at p. 469].) The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding "through mistake, compromise, or lenity...." (Ibid.) Because the defendant is given the benefit of the acquittal, "it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted." (Id. at p. 69 [83 L.Ed.2d at p. 471].)
Thus, as a general matter, double jeopardy principles would not preclude defendant's retrial on the murder charge despite the earlier reversal, and the murder conviction would be allowed to stand even if inconsistent with the not true finding on the use enhancement.
(3a) Defendant does not quarrel with these principles but, relying on the doctrine of collateral estoppel,[2] he argues that the knife-use finding precludes retrial of the murder charge on the theory that he used a knife. For *912 support, he cites Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041 and People v. White (1986) 185 Cal. App. 3d 822 [231 Cal. Rptr. 569], which agreed with this contention under substantially similar facts. He contends that a contrary decision, People v. Pettaway (1988) 206 Cal. App. 3d 1312 [254 Cal. Rptr. 436], was wrongly decided.
(4) "`Collateral estoppel' is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Ashe v. Swenson, supra, 397 U.S. at p. 443 [25 L.Ed.2d at p. 475] (Ashe).) In Ashe, six men playing poker were robbed. The defendant was tried for robbing one of the six. The only disputed issue was defendant's identity as one of the robbers. A jury acquitted him. He was then tried for robbing a second poker player. This time, a different jury convicted. Although, under strict application of double jeopardy law, the robbery of one victim was a distinct offense from the robbery of another (see Brown v. Ohio (1977) 432 U.S. 161, 167, fn. 6 [53 L. Ed. 2d 187, 195, 97 S. Ct. 2221]), the high court found the successive trials violated the collateral estoppel rule, which it found "is embodied in the Fifth Amendment guarantee against double jeopardy." (Ashe, supra, 397 U.S. at p. 445 [25 L.Ed.2d at p. 476].)[3]
The high court stated that "the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to `examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' [Fn. omitted.] The inquiry `must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' Sealfon v. United States, 332 U.S. 575, 579 [92 L. Ed. 180, 184-185, 68 S. Ct. 237]." (Ashe, supra, 397 U.S. at p. 444 [25 L.Ed.2d at pp. 475-476].)
With this background, we consider, first, whether collateral estoppel applies to retrial in the same proceeding of a charge of which the jury had *913 convicted the defendant, and, second, whether, if so, the elements of collateral estoppel have been met in this case.
B. Applicability of Collateral Estoppel to Retrial of Charges of Which the Defendant Had Been Convicted
Ashe, supra, 397 U.S. 436, involved successive prosecutions. Defendant was charged only with the first robbery. When that prosecution failed, the second was charged. The Ashe court stated that the collateral estoppel doctrine prevented relitigation of an ultimate fact "between the same parties in any future lawsuit." (Id. at p. 443 [25 L.Ed.2d at p. 475], italics added.) Here, of course, we do not confront a future lawsuit, but retrial in the same one.
(5) The high court has never suggested the doctrine applies to the same proceeding. Indeed, it has consistently stated it applies to "successive prosecutions." (Brown v. Ohio, supra, 432 U.S. at p. 167, fn. 6 [53 L.Ed.2d at p. 195].) In Ohio v. Johnson (1984) 467 U.S. 493, 500, footnote 9 [81 L. Ed. 2d 425, 434, 104 S. Ct. 2536], the court specifically stated, "Moreover, in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable." In United States v. Dixon (1993) 509 U.S. ___ [125 L. Ed. 2d 556, 113 S. Ct. 2849], a case involving successive prosecutions, the high court, although expressly not deciding the collateral estoppel question in that case because the lower courts had not ruled on it (id. at p. ___, fn. 17 [125 L.Ed.2d at p. 578, 113 S.Ct. at p. 2864]), noted at page ___ [125 L.Ed.2d at pp. 572-573, 113 S.Ct. at p. 2860] that "[t]he collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436 [25 L. Ed. 2d 469, 90 S. Ct. 1189] (1970), may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts." (First italics in original, second italics added.) Most recently, the court has stated, "Where ... there is `no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended.' [Citation.] Thus, our cases establish that the primary evil to be guarded against is successive prosecutions: `[T]he prohibition against multiple trials is the controlling constitutional principle.' [Citation.]" (Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 56-57, 114 S.Ct. at p. 789].)
(3b) In the face of this, we question whether collateral estoppel applies to the same proceeding where the government won by securing a conviction of the substantive count. The policies behind the doctrine do not clearly support its application to a retrial of that count. In Ashe, supra, 397 U.S. at *914 page 446 [25 L.Ed.2d at pages 476-479], the court attached the doctrine to the double jeopardy clause because that clause "surely protects a man who has been acquitted from having to `run the gantlet' a second time. [Citation.]" Here, defendant was convicted, not acquitted, of the murder charge. Retrial after reversal is not the sort of "governmental oppression" protected by the double jeopardy clause. (United States v. Scott, supra, 437 U.S. at p. 91 [57 L.Ed.2d at p. 74].)
(6) In People v. Taylor (1974) 12 Cal. 3d 686, 695 [117 Cal. Rptr. 70, 527 P.2d 622], we stated "the purposes of an application of the doctrine to be: (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation." (Accord, People v. Howard, supra, 44 Cal.3d at p. 412.) (3c) None of these purposes apply here. This is the same action, not repetitive litigation; a murder conviction by the second jury would be consistent, not inconsistent, with the original verdict; and retrial following reversal is not "vexatious litigation."
Defendant relies on Bullington v. Missouri (1981) 451 U.S. 430 [68 L. Ed. 2d 270, 101 S. Ct. 1852] and Arizona v. Rumsey (1984) 467 U.S. 203 [81 L. Ed. 2d 164, 104 S. Ct. 2305], where the United States Supreme Court held that double jeopardy barred imposition of the death penalty at retrial after the state had failed to obtain the death penalty at the first trial. "Both Bullington and Rumsey were capital cases, and our reasoning in those cases was based largely on the unique circumstances of a capital sentencing proceeding." (Caspari v. Bohlen (1994) 510 U.S. ___, ___ [127 L. Ed. 2d 236, 247, 114 S. Ct. 948, 954.) Assuming the rationale of these cases applies to other sentencing decisions such as the enhancement finding here (an issue the high court expressly did not decide in Caspari v. Bohlen, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 250-251, 114 S.Ct. at p. 957]), at most that would preclude retrial of the enhancement allegation, which, as noted, the parties agree cannot occur here.[4] Nothing in those decisions suggests that sentencing decisions affect retrial of a substantive offense of which the jury had found the defendant guilty.
Defendant seems to agree that if the original split verdict had been inherently inconsistent, that is, if it were factually impossible for the jury to convict on one count and yet acquit on another or find an enhancement *915 allegation not true, then collateral estoppel would not apply. This necessarily flows from the acceptance in United States v. Powell, supra, 469 U.S. 57 of inconsistent verdicts. As the court in Powell noted, "The problem is that the same jury reached inconsistent results; once that is established principles of collateral estoppel which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict are no longer useful." (Id. at p. 68 [83 L.Ed.2d at p. 471]; see also Pettaway v. Plummer, supra, 943 F.2d at pp. 1045-1046.)
Defendant argues, however, that what applies to an inconsistent verdict does not apply to a verdict that might have a rational basis. This may be correct, but it would be odd if a conviction that is clearly inconsistent with an acquittal or not true finding may be retried without constraint after an appellate reversal, but a conviction that may, in theory at least, be reconciled with another verdict would, as here, be significantly affected by that verdict following a similar reversal.
The not true finding may be explained by "mistake, compromise, or lenity" (United States v. Powell, supra, 469 U.S. at p. 65 [83 L.Ed.2d at p. 468]) or "confusion or ennui." (People v. Pettaway, supra, 206 Cal. App.3d at p. 1325.) Moreover, in the first appeal, the Court of Appeal found an 11-day continuance during jury deliberations "undoubtedly had some significant effect on jurors' ability to remember complicated facts, as well as on their recall and understanding of instructions." (People v. Santamaria, supra, 229 Cal. App.3d at p. 282.) The continuance might have adversely affected the enhancement verdict as well as the murder conviction.
For these reasons, the high court might well not apply Ashe, supra, 397 U.S. 436, to a retrial of a count the jury had convicted the defendant of in the same action. But that court has not decided the issue in a case like this. In Schiro v. Farley, supra, 510 U.S. at page ___ [127 L.Ed.2d at p. 58, 114 S.Ct. at p. 790], the court did "not address whether collateral estoppel could bar use of the `intentional' murder aggravating circumstance, because Schiro has not met his burden of establishing the factual predicate for the application of the doctrine, if it were applicable, namely that an `issue of ultimate fact has once been determined' in his favor." (Italics added.) Some federal courts have found that Ashe does apply to a retrial. (E.g., U.S. v. Bailin (7th Cir.1992) 977 F.2d 270, 275-280; Pettaway v. Plummer, supra, 943 F.2d 1041.)[5] Under these circumstances, and because, as explained in the next part, *916 defendant's collateral estoppel claim can be rejected on the merits, "we do not reach the issue of whether the doctrine of collateral estoppel is limited, like its parent doctrine of double jeopardy, only to successive prosecutions." (U.S. v. Farmer (11th Cir.1991) 923 F.2d 1557, 1563, fn. 12.)
Instead, we will follow the lead of the high court in Schiro v. Farley, supra, 510 U.S. ___ [127 L. Ed. 2d 47, 114 S. Ct. 783], and proceed to examine whether, assuming the doctrine of collateral estoppel can apply to a retrial such as this, the necessary elements of the doctrine have been satisfied.
C. Whether the Elements of Collateral Estoppel Have Been Satisfied
(7) Different courts have articulated the requirements for collateral estoppel differently. The United States Supreme Court has made clear that the issue to be precluded must be "an issue of ultimate fact" that "has once been determined by a valid and final judgment" (Ashe, supra, 397 U.S. at p. 443 [25 L.Ed.2d at p. 475]; see also Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 58-59, 114 S.Ct. at p. 790]), and that the defendant has the burden of showing that the issue "was actually decided in the first proceeding." (Dowling v. United States (1990) 493 U.S. 342, 350 [107 L. Ed. 2d 708, 718-719, 110 S. Ct. 668], quoted in Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 58-59, 114 S.Ct. at p. 791].)
We have generally applied collateral estoppel "if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial." (People v. Taylor, supra, 12 Cal.3d at p. 691; see also Gikas v. Zolin, supra, 6 Cal.4th at p. 849.)
The United States Court of Appeals for the Ninth Circuit has stated, "Collateral estoppel analysis involves a three-step process: `(1) An identification of the issues in the two actions for the purpose of determining *917 whether the issues are sufficiently similar and sufficiently material in both actions to justify invoking the doctrine; (2) an examination of the record of the prior case to decide whether the issue was "litigated" in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.'" (Pettaway v. Plummer, supra, 943 F.2d at pp. 1043-1044, quoting United States v. Hernandez (9th Cir.1978) 572 F.2d 218, 220.)
(3d) We need not determine whether there are, or seek to reconcile, any substantive differences between these formulations, for defendant's argument fails under any of them.[6] Collateral estoppel does not apply for two reasons: (1) the issue sought to be precluded in the murder trial is not identical to any issue necessarily decided by the weapon enhancement verdict; and (2) whether defendant used a knife is not an "ultimate issue" of the murder charge.
1. Identical Issue
The issue sought to be precluded at retrial is not identical to any necessarily decided by the enhancement verdict. As defendant stresses, the jury returned an "express acquittal" of the enhancement allegation. (People v. Superior Court (Marks), supra, 1 Cal.4th at p. 78, fn. 22.) But it also returned an express conviction of the murder and robbery charges. The pertinent issue decided by each verdict was quite different.
To see why this is so, we turn to state law, the proper source for determining the meaning of the jury's verdicts and whether the issues are identical. (Delap v. Dugger (11th Cir.1989) 890 F.2d 285, 315.) Murder is *918 the substantive offense. The allegation of knife use was merely a sentence enhancing allegation attached to the murder charge. The requirements for murder and for the enhancing allegation are significantly different. (8) The weapon enhancement under Penal Code section 12022, subdivision (b), requires personal use, i.e., the jury must find beyond a reasonable doubt that defendant personally used the knife to find the enhancement true. (People v. Cole (1982) 31 Cal. 3d 568, 579 [183 Cal. Rptr. 350, 645 P.2d 1182].) (9) Murder, however, like any substantive offense, need not be personal; an aider and abettor of the actual killer is equally guilty. (People v. Montoya (1994) 7 Cal. 4th 1027, 1038-1039 [31 Cal. Rptr. 2d 128, 874 P.2d 903]; People v. Beeman (1984) 35 Cal. 3d 547, 554-555 [199 Cal. Rptr. 60, 674 P.2d 1318].)
(3e) This is unremarkable. Defendant fully understands this, as did the Ninth Circuit. (Pettaway v. Plummer, supra, 943 F.2d at p. 1044.) Both argue this proves that the jury's verdict was not necessarily inconsistent. The jury, defendant argues, and the Ninth Circuit agreed, may have found he was an aider and abettor; this would allow the jury to convict of murder but would require the not true verdict on the enhancement allegation. (Id. at p. 1046.) If one stops there, the argument has appeal: if the jury found defendant did not use a knife, it must have found he was an aider and abettor. But this merely begins the inquiry; it does not end it. Defendant wrings far more meaning from the verdict than is warranted under California law.
At trial, there was much evidence defendant was involved in the murder, including the evidence that he helped pawn the victim's jewelry. The only eyewitness to the killing was Nubla, an admitted accessory. His testimony minimized his own role. The jury may well have doubted that he was quite so innocent in the killing as he claimed. It might have suspected that he was involved in inflicting at least some of the injuries. It might, for example, have suspected that one person, either defendant or Nubla, strangled the victim, while the other stabbed him. This would lead to a reasonable doubt as to defendant's personal use of a knife, but would suffice for the verdict of guilty of murder.
We now look more closely at California law. (10a) It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. (People v. Pride (1992) 3 Cal. 4th 195, 249-250 [10 Cal. Rptr. 2d 636, 833 P.2d 643]; People v. Milan (1973) 9 Cal. 3d 185, 194-195 [107 Cal. Rptr. 68, 507 P.2d 956].) More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. (People v. Beardslee (1991) 53 *919 Cal.3d 68, 92 [279 Cal. Rptr. 276, 806 P.2d 1311]; People v. Forbes (1985) 175 Cal. App. 3d 807, 816-817 [221 Cal. Rptr. 275].) This rule of state law passes federal constitutional muster. (Schad v. Arizona (1991) 501 U.S. 624 [115 L. Ed. 2d 555, 111 S. Ct. 2491].)
(3f) Defendant is not particularly troubled by this. He argues that the jury did reach a unanimous verdict; it unanimously found the knife-use allegation not true. This is correct, but is of far less significance than defendant contends. It shows only that there was a reasonable doubt in the minds of the jurors that defendant specifically used a knife. It does not show the reverse, that the jury specifically found defendant was an aider and abettor. Indeed, under the facts of this case, such a finding is most unlikely. The jury may merely have believed, and most likely did believe, that defendant was guilty of murder as either a personal knife user or an aider and abettor but it may have been uncertain exactly which role defendant played. That, too, would fully explain, and necessitate, the split verdict.[7]
(10b) Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. (3g), (10c) Sometimes, as probably occurred here, the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other.
This is illustrated by People v. Garrison (1989) 47 Cal. 3d 746 [254 Cal. Rptr. 257, 765 P.2d 419]. There the jury found the defendant guilty of murder and other offenses, but failed to reach a verdict as to personal use allegations. (Id. at p. 766.) The defendant argued this proved the jury found he aided and abetted a prosecution witness, one Roelle. We disagreed, noting that although Roelle testified that defendant was the triggerman, "there was other evidence from which the trier of fact could reasonably have inferred that defendant and Roelle were jointly involved in the commission of the offenses." (Id. at p. 781.) We thus concluded that "it may be inferred that the jury determined that both Roelle and defendant were jointly involved in the *920 criminal activity but could not decide beyond a reasonable doubt which one had pulled the trigger." (Id. at p. 782.)[8]
Similarly, the jury here may not have been able to decide beyond a reasonable doubt whether defendant or Nubla actually wielded the knife, but was convinced beyond a reasonable doubt that, either way, defendant was guilty of Guadron's murder. To go further and conclude that the jury specifically found defendant did not use the knife would not apply the collateral estoppel rule with "realism and rationality." (Ashe, supra, 397 U.S. at p. 444 [25 L.Ed.2d at p. 475].)
This shows that the issue necessarily decided by the knife-use verdict and the issue sought to be precluded in the murder prosecution are not identical, but quite different. Although defendant claims he merely seeks to preclude the theory that he used the knife, he necessarily is claiming more; he seeks to preclude the theory, and evidence to support the theory, that he either used the knife or aided and abetted the one who did. This, however, is not the issue decided regarding the enhancement allegation. Whether defendant specifically used a knife is one question; we may assume the prosecution did not prove that beyond a reasonable doubt, which explains the not true enhancement verdict. Whether defendant committed murder by either using a knife or aiding and abetting the one who did is quite a different question; the prosecution did prove that to the jury's satisfaction.
It is theoretically possible the jury concluded defendant was specifically the aider and abettor, despite the paucity of supporting evidence. But that is not the test. Setting the inquiry "`in a practical frame'" and viewing it "`with an eye to all the circumstances of the proceedings'" (Ashe, supra, 397 U.S. at p. 444 [25 L.Ed.2d at p. 476]), we conclude the jury did not "`necessarily decide[]'" (Pettaway v. Plummer, supra, 943 F.2d at p. 1044; People v. Taylor, supra, 12 Cal.3d at p. 691) that defendant was the aider and abettor, only that it had doubts as to his exact role. Defendant has the burden of showing that the issue he seeks to foreclose was actually decided by the *921 jury. (Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 58-59, 114 S.Ct. at p. 791].) This he cannot do.[9]
2. Ultimate Fact
Another fallacy in defendant's argument is exposed by examining the requirement that the issue to be foreclosed be of "ultimate fact." (Ashe, supra, 397 U.S. at p. 443 [25 L.Ed.2d at p. 475].) Identity of the defendant in Ashe as one of the robbers was clearly an ultimate fact; it had to be proven beyond a reasonable doubt for him to be found guilty of that robbery no matter what the rest of the evidence showed. Knife use is just as clearly an ultimate fact as to the use enhancement. But it is not an ultimate fact of murder.
In Dowling v. United States, supra, 493 U.S. 342, during the trial for one crime, the prosecution presented evidence of another crime for which the defendant had previously been tried and acquitted. The defendant argued this violated the collateral estoppel rule of Ashe. The high court disagreed "because, unlike the situation in Ashe v. Swenson, the prior acquittal did not determine an ultimate issue in the present case." (Dowling v. United States, supra, 493 U.S. at p. 348 [107 L.Ed.2d at p. 717].) The court "assume[d] for the sake of argument that Dowling's acquittal established that there was a reasonable doubt as to whether Dowling was the [man who entered the house where the other crime was committed]." (Ibid.) But the court noted that the prosecution did not have to prove that fact beyond a reasonable doubt for the evidence to be admissible at the second trial; thus, "the collateral-estoppel component of the Double Jeopardy Clause is inapposite." (Id. at p. 349 [107 L.Ed.2d at p. 718].)
Dowling involved separate prosecutions, not a retrial. Two recent decisions that, like this case, did involve a retrial analyzed the relevance of *922 Dowling to this situation. They independently reached the same conclusion, a conclusion fatal to defendant's position.
The first decision, U.S. v. Seley (9th Cir.1992) 957 F.2d 717, 723, noted that "Dowling did not alter Ashe so much as it introduced a new perspective on the meaning of the `ultimate fact' decided in the first trial. (11) Instead of meaning that certain acts did not happen, an acquittal means that they were not proved beyond a reasonable doubt. If an act that could have been proved to a lesser degree than that required for conviction is for some reason probative in a subsequent trial, it need not be excluded because of the prior acquittal." (Italics added.) The second decision, U.S. v. Bailin, supra, 977 F.2d at page 280, stated, "Dowling thus establishes that issue preclusion in criminal cases only applies when the relevant issue is `ultimate' in the subsequent prosecution, i.e., when the issue must be proven beyond a reasonable doubt."
(3h) These cases confirm that the jury's not true finding on the enhancement allegation does not mean defendant did not use the knife, only that there was a reasonable doubt that he did. In Ashe, the verdict, viewed realistically, showed the jury had a reasonable doubt as to the defendant's identity as the robber. That doubt necessarily precluded conviction of the robbery charge. But the same doubt as to knife use did not preclude a murder conviction here, although it did mandate a not true enhancement finding.
Evidence that defendant personally used a knife was highly relevant to show that he was guilty of murder as that offense is defined by statute. That evidence, together with the evidence that if he did not use a knife, he was guilty as the aider and abettor, combined to permit the murder conviction. But the specific fact of personal use does not have to be proven beyond a reasonable doubt to find defendant guilty of murder. Hence, personal use is not an "ultimate fact" of murder.
We thus hold that collateral estoppel does not apply. We disapprove of the contrary conclusion of People v. White, supra, 185 Cal. App. 3d 822.[10]
*923 D. Pettaway v. Plummer
People v. Pettaway, supra, 206 Cal. App. 3d 1312, involved virtually the same issue and procedural posture as this case, except that there the weapon enhancement that the jury found not true was for use of a firearm, not a knife. The holding of the Court of Appeal was consistent with our decision today, i.e., a judgment dismissing a murder charge was reversed. The defendant, Pettaway, however, sought relief on habeas corpus from the federal courts, making the same argument defendant makes here. The court in Pettaway v. Plummer, supra, 943 F.2d 1041, agreed with the defendant, disagreed with the Court of Appeal decision, granted habeas corpus relief, and prohibited retrial.
(12) We thus have the situation that, although normally federal circuit court decisions are not binding on this court (Lockhart v. Fretwell (1993) 506 U.S. ___, ___ [122 L. Ed. 2d 180, 193-194, 113 S. Ct. 838, 846] (conc. opn. of Thomas, J.), and authority cited therein; Raven v. Deukmejian (1990) 52 Cal. 3d 336, 352 [276 Cal. Rptr. 326, 801 P.2d 1077]), here they have the power to effectively overrule our decision.
We believe the court in Pettaway v. Plummer, supra, 943 F.2d 1041, misunderstood the relevant state law. Noting that once the jury found the defendant guilty of murder, it was "required" to "reach the question of personal use of the handgun" in deciding the enhancement allegation (id. at p. 1045, italics by the court), the court disagreed with the federal district *924 court's analysis that the jury might have determined "`that [Pettaway] either personally shot [the victim] or aided and abetted in her killing without deciding between the two alternatives.'" (Id. at p. 1044.) But this misses the point. The pertinent question is not did the jury decide whether defendant personally used the weapon, but rather could it make such a determination beyond a reasonable doubt. The inability of the jury to make that determination, because of a doubt as to defendant's precise role in the crime, would require the jury to find the enhancing allegation not true. But a determination that defendant either used the weapon or aided and abetted the one who did sufficed to permit the murder verdict.
The court also stated that "the specific finding that [defendant] did not personally use a firearm was not inconsistent with the conviction; rather, it was as if the jury had issued a special verdict to that effect regarding the substantive offense." (Pettaway v. Plummer, supra, 943 F.2d at p. 1046, italics added.) However, as discussed above, the jury does not make any special verdict "regarding the substantive offense." A combination of theories is sufficient.
The court went on. "Pursuant to California law, Pettaway's use of the handgun was pleaded and tried to the jury. The jury necessarily decided that Pettaway did not fire the fatal shots." (Pettaway v. Plummer, supra, 943 F.2d at p. 1046.) The first sentence of the quoted language is correct, but the second is not. The jury merely found there was reasonable doubt on the question. (See Dowling v. United States, supra, 493 U.S. at p. 348 [107 L.Ed.2d at pp. 717-718]; U.S. v. Bailin, supra, 977 F.2d at p. 280; U.S. v. Seley, supra, 957 F.2d at p. 723, discussed above.)
The Pettaway court "barred reprosecution on a theory the prosecution had tried and failed to prove before." (Pettaway v. Plummer, supra, 943 F.2d at p. 1047.) However, as explained above, the prosecution need not prosecute the case on a particular theory; it need only prove defendant guilty on any sufficient theory, which it did successfully "prove before."
The court also said, "If the state is allowed to proceed on the theory that Pettaway pulled the trigger himself, it is possible that the second jury would convict Pettaway by reaching a conclusion directly contrary to that reached by the jury in the first trial." (Pettaway v. Plummer, supra, 943 F.2d at p. 1047.) This is also incorrect. The first jury convicted the defendant of murder, finding he was either the direct perpetrator or the aider and abettor. If the second jury does the same, the verdicts would be consistent, not inconsistent. The jury will never have to decide what defendant's precise role was. Thus, a second conviction of murder, should it occur, could never *925 be inconsistent with the first. The only danger of inconsistency would be if the second jury acquitted defendant of the crime the first found him guilty of committing.
The court argued "`that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense,'" and that "[a]llowing the state to reprosecute Pettaway for murder on the theory that he was the actual perpetrator of the murder permits the state to remedy the flaws it perceives as having been fatal to its case the first time, and to attempt to convince a second jury of that which it tried and failed to prove to the first jury." (Pettaway v. Plummer, supra, 943 F.2d at p. 1048, quoting Green v. United States (1957) 355 U.S. 184, 187 [2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 61 A.L.R. 2d 1119].) However, nothing was "fatal" to the murder case the first time. The jury found defendant guilty of that crime. The prosecution need not "remedy any flaws"; it only needs the opportunity to prove its case to the second jury just as it did to the first, an opportunity Pettaway v. Plummer, supra, 943 F.2d 1041, would deny.
Moreover, the court relied substantially on the decision of Grady v. Corbin (1990) 495 U.S. 508 [109 L. Ed. 2d 548, 110 S. Ct. 2084], stating that the two cases presented "essentially the same situation." (Pettaway v. Plummer, supra, 943 F.2d at p. 1047; see also id. at p. 1046.) The high court subsequently overruled the very portion of Grady v. Corbin that was relied upon. (United States v. Dixon, supra, 509 U.S. at p. ___ [125 L.Ed.2d at pp. 572-573, 577-578, 113 S.Ct. at pp. 2860, 2864]; compare the language quoted and overruled, id. at p. ___ [125 L.Ed.2d at pp. 572-573, 113 S.Ct. at p. 2860] with the language quoted in Pettaway v. Plummer, supra, 943 F.2d at p. 1047.)
The result of Pettaway v. Plummer, supra, 943 F.2d 1041, unduly hampers prosecution of crimes involving weapons. A jury convinced that the defendant is guilty, although uncertain as to the precise role he or she played, may validly convict of the crime and simultaneously find a weapon enhancement not true; but if for any reason the judgment is reversed on appeal, retrial might be rendered effectively impossible, or at least very difficult, under that decision. Thus, charging weapon enhancements becomes risky. Here, for example, the jury found defendant guilty of murder with special circumstances. Now, because of the relatively insignificant enhancement allegation and the intervening appellate reversal, the charges have been dismissed. Defendant will go free if that dismissal stands, despite the evidence that convinced the first jury that he was, in fact, guilty as either the actual killer or an aider and abettor.
Because of this, we urge the federal courts to reconsider that decision if and when the issue is again before them in light of our analysis of state law *926 and the subsequent decisions of Caspari v. Bohlen, supra, 510 U.S. ___ [127 L. Ed. 2d 236, 114 S. Ct. 948]; Schiro v. Farley, supra, 510 U.S. ___ [127 L. Ed. 2d 47, 114 S. Ct. 783]; United States v. Dixon, supra, 509 U.S. ___ [125 L. Ed. 2d 556, 113 S. Ct. 2849]; U.S. v. Bailin, supra, 977 F.2d 270; and U.S. v. Seley, supra, 957 F.2d 717.
E. Summary
(3i) The first jury, having heard and considered all the evidence, properly convicted defendant of murder even though it had a reasonable doubt who actually wielded the knife. The second jury should be allowed to do the same. A reasonable doubt that defendant used the knife precluded the use enhancement; it did not prevent conviction of murder at the first trial on the combined theory that he either used the knife or aided and abetted the one who did. It should not preclude conviction at retrial on the same basis. Transforming a conviction into an effective acquittal because of the fortuity of an intervening reversal, as happened here, violates the mandate of Ashe, supra, 397 U.S. at p. 444 [25 L.Ed.2d at pp. 475-476], that collateral estoppel be applied with "realism and rationality."
"The state is entitled to `one fair opportunity' to prosecute a defendant...." (Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at p. 58, 114 S.Ct. at p. 790], quoting Bullington v. Missouri, supra, 451 U.S. at p. 446 [68 L.Ed.2d at pp. 283-284].) In Ashe, supra, 397 U.S. 436, the prosecution was given one fair opportunity to prove the defendant was one of the robbers; it failed, and was not entitled to try again. Here, the prosecution did prove to the jury's satisfaction that defendant was guilty. It should be allowed to do so again following reversal on appeal. To require the prosecution to specifically prove defendant was the aider and abettor, and not the knife user which it did not have to prove to obtain the first conviction would deny it that fair opportunity to prosecute defendant.
For these reasons, the trial court erred in its ruling on defendant's collateral estoppel motion, and in dismissing the case when the prosecution announced an inability to proceed in light of that ruling. The matter should be remanded to the trial court with instructions to reinstate the charges and proceed in a manner consistent with the views expressed herein.
*927 III. DISPOSITION
The judgment of the Court of Appeal is reversed.
Lucas, C.J., Baxter, J., George, J., and Puglia, J.,[*] concurred.
MOSK, J., Concurring and Dissenting.
I concur in the judgment insofar as it would allow retrial. The "collateral estoppel" component of the double jeopardy clause of the Fifth Amendment to the United States Constitution does not immunize defendant from further proceedings. The majority are right to so hold.
But I dissent from the judgment insofar as it would allow retrial unaffected by collateral estoppel. The constitutional doctrine grants defendant protection. The majority are wrong to take it away. Or to try to take it away. They will not have the last word. The courts of the United States will speak when and not if defendant invokes their jurisdiction over state prisoners in habeas corpus. They "have the power," as the majority themselves recognize, "to effectively overrule our decision." (Maj. opn., ante, at p. 923.) That they are likely to do so seems apparent from Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041, which "involved virtually the same issue and procedural posture as this case" (maj. opn., ante, at p. 923), and granted relief to the petitioner.
I
In the superior court, the People charged that defendant murdered and robbed Victor Guadron. They alleged for purposes of enhancement of sentence that he personally used a knife in the murder. In addition, they alleged for purposes of death-eligibility that he committed the murder under the special circumstance of felony-murder robbery. (They also made other allegations not pertinent here.)
Later, the People moved to dismiss the action on the ground of insufficient evidence. The superior court so ordered.
The People then recharged defendant with murder and robbery. They realleged the personal use of a knife in the murder and also the felony-murder-robbery special circumstance.
At trial, the People attempted to prove, beyond a reasonable doubt, that defendant was guilty of the murder of Guadron (via willful, deliberate, and *928 premeditated murder and/or felony murder) as a principal therein, under the theory that he was a direct and active perpetrator or under the theory that he was an aider and abetter. They also attempted to prove, beyond a reasonable doubt, that he personally used a knife in the crime. Their main witness was Anthony Nubla. He gave testimony that demonstrated that both defendant and he participated in the events in question. In so testifying, he attempted to shift as much responsibility as he could from his own shoulders onto those of defendant. To this end, he identified defendant as the stabber. Other evidence, however, suggested otherwise. Expert testimony established that Nubla's automobile, which was involved in the incident, was stained with the blood of two persons: apparently, one was Nubla and the other was Guadron; neither could have been defendant.
In its charge to the jury, the superior court defined, inter alia, murder, including willful, deliberate, and premeditated murder and felony murder; robbery, both as a predicate of felony murder and as a separate and independent crime; and the felony-murder-robbery special circumstance. It also set out the requirements for liability as a principal, either as a direct and active perpetrator or as an aider and abetter. And it declared that the People bore the burden to prove the charges and allegations beyond a reasonable doubt.
The jury returned verdicts finding defendant guilty of murder and robbery. It found it true that he committed the murder under the special circumstance of felony-murder robbery. But it found it not true that he personally used a knife in the crime. That means, among other things, that it necessarily determined that he was guilty of murder under a theory of felony-murder robbery (see, e.g., People v. Berryman (1993) 6 Cal. 4th 1048, 1086 [25 Cal. Rptr. 2d 867, 864 P.2d 40]), but had at least a reasonable doubt that he was the stabber.
The superior court rendered judgment accordingly.
The Court of Appeal reversed. (People v. Santamaria (1991) 229 Cal. App. 3d 269 [280 Cal. Rptr. 43].) It concluded that the superior court committed prejudicial error by adjourning jury deliberations for 11 days without good cause. (Id. at pp. 274-283.)
After remand to the superior court, the People recharged defendant with murder and robbery. They realleged the felony-murder-robbery special circumstance. They did not reallege personal use of a knife in the murder.
Before the scheduled retrial, defendant made a collateral estoppel motion "to prohibit [his] retrial ... for use of" a knife, "to limit evidence" on his *929 employment of the weapon, and to "preclude [the] prosecution's reliance on" the related "theory," which had been "adjudicated in [his] favor" at the original trial. (Capitalization deleted.) The People opposed. After a hearing, the superior court: (1) granted the motion to the extent that it sought to "preclud[e]" "the prosecution ... from retrying the defendant on the enhancement... of personal use of a knife during the killing"; (2) granted the motion to the extent that it sought to "preclud[e]" "the prosecution" "from retrying the defendant on the theory that he personally used the knife during the killing" "[t]o this end," it added, "the jury is to be instructed at appropriate intervals throughout the case that the defendant did not personally use a knife during the killing of the victim"; and (3) denied the motion to the extent that it sought "to preclude the introduction of evidence," but did so "without prejudice to objections, particularly, as to relevance during the course of the trial."
Subsequently, the superior court dismissed the action on its own motion. It did so after the People had represented that they were "unable to proceed on the theory that is left to us as a result of ... [the] ruling on [the] collateral estoppel issue": "[T]he People find themselves in the situation where we have no other theory of prosecuting this murder; that is we have no evidence that the defendant was anything but the stabber...." Defendant had opposed, but unsuccessfully.
The Court of Appeal affirmed. In a unanimous opinion by Justice Werdegar, then a member of that court, it concluded that the superior court did not err in ruling as it did on collateral estoppel.[1]
On the People's petition, we granted review.
II
Whether to affirm or reverse the Court of Appeal's judgment depends, of course, on the soundness of the superior court's collateral estoppel ruling.
The applicable law may be summarized as follows.[2]
The double jeopardy clause of the Fifth Amendment to the United States Constitution declares that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb...." It is made enforceable against the states through the due process clause of the Fourteenth Amendment. *930 (Benton v. Maryland (1969) 395 U.S. 784, 794 [23 L. Ed. 2d 707, 715-716, 89 S. Ct. 2056].) It extends beyond guilt or innocence to punishment, so long as the latter is determined in a manner similar to the former. (See Arizona v. Rumsey (1984) 467 U.S. 203, 209-212 [81 L. Ed. 2d 164, 170-172, 104 S. Ct. 2305]; Bullington v. Missouri (1981) 451 U.S. 430, 446 [68 L. Ed. 2d 270, 283-284, 101 S. Ct. 1852].)
The double jeopardy clause "incorporates the doctrine of collateral estoppel in criminal proceedings." (Schiro v. Farley (1994) 510 U.S. ___, ___ [127 L. Ed. 2d 47, 58, 114 S. Ct. 783, 790]; accord, Ashe v. Swenson (1970) 397 U.S. 436, 445 [25 L. Ed. 2d 469, 476, 90 S. Ct. 1189]; Dowling v. United States (1990) 493 U.S. 342, 347 [107 L. Ed. 2d 708, 716-717, 110 S. Ct. 668].) Collateral estoppel, however, is not limited by double jeopardy strictly defined, but reaches beyond it into a separate and independent sphere. (See U.S. v. Bailin (7th Cir.1992) 977 F.2d 270, 275-276.) Stated most simply, it is "the principle that bars relitigation between the same parties of issues actually determined at a previous trial...." (Ashe v. Swenson, supra, 397 U.S. at p. 442 [25 L.Ed.2d at p. 474].) It "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Id. at p. 443 [25 L.Ed.2d at p. 475]; accord, Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 57-58, 114 S.Ct. at p. 790]; Dowling v. United States, supra, 493 U.S. at p. 347 [107 L.Ed.2d at pp. 716-717].) Among the evils that it is designed to prevent is the situation in which a trier of fact at an earlier trial reaches one conclusion and a trier of fact at a later trial "reache[s] a directly contrary conclusion." (Dowling v. United States, supra, 493 U.S. at p. 348 [107 L.Ed.2d at p. 717].)
Apparently, it is the criminal defendant who bears the burden to demonstrate that the doctrine of collateral estoppel is applicable on the facts of any given case. Certainly, it is he who bears "the burden ... to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding." (Dowling v. United States, supra, 493 U.S. at p. 350 [107 L.Ed.2d at p. 719]; accord, Schiro v. Farley, supra, 510 U.S. at p. ___ [127 L.Ed.2d at pp. 58-59, 114 S.Ct. at p. 791].)
At the original trial, as noted above, the People attempted to prove, beyond a reasonable doubt, that defendant was guilty of the murder of Guadron (via willful, deliberate, and premeditated murder and/or felony murder) as a principal therein, under the theory that he was a direct and active perpetrator or under the theory that he was an aider and abetter. They also attempted to prove, beyond a reasonable doubt, that he personally used a knife in the crime.
*931 At the original trial, as also noted above, the jury determined that defendant was indeed guilty of Guadron's murder. But it found that it was not true that he personally used a knife in the crime. That means that each and every juror, at the very least, had a reasonable doubt whether defendant personally used a knife therein.
It follows that no juror in fact determined that defendant was guilty of Guadron's murder on a theory dependent on his personal use of a knife in this crime, for example, on a theory that he was a principal as a direct and active perpetrator solely through his personal use of a knife.
Neither could any juror have properly so determined. The due process clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 U.S. 358, 364 [25 L. Ed. 2d 368, 375, 90 S. Ct. 1068].) That means not only every "elemen[t]" properly so called, but also every "fac[t] necessary to establish each of those elements...." (Sullivan v. Louisiana (1993) 508 U.S. ___, ___ [124 L. Ed. 2d 182, 188, 113 S. Ct. 2078, 2080].) It is true that personal use of a knife is not an element of the crime of murder. It is also true that, generally, it is not even a necessary fact for any of the elements. But it is indeed such a fact for the requisite unlawful act insofar as guilt is predicated on a theory dependent thereon in this case, on a theory that defendant was a principal as a direct and active perpetrator solely through his personal use of a knife. Similarly, intent to steal is not an element of the crime of murder. Neither, generally, is it a necessary fact for any of the elements. But it is indeed such a fact for the requisite unlawful mental state insofar as guilt is predicated on a theory dependent thereon, for example, felony-murder robbery. Obviously, no juror can determine that a defendant is guilty of a crime beyond a reasonable doubt on a theory dependent on a necessary fact as to which each and every juror has a reasonable doubt.
Returning to my theme, I believe that defendant has carried whatever burden he may have borne to demonstrate that the doctrine of collateral estoppel is applicable on the facts of this case.
"[R]elitigation between the same parties of [any] issu[e] actually determined at a previous trial" is "bar[red]." (Ashe v. Swenson, supra, 397 U.S. at p. 442 [25 L.Ed.2d at pp. 474-475].) The parties on retrial, of course, would be the same as those at the original trial: the People and defendant. The issue that defendant sought to foreclose on retrial was the same as one of those actually determined at the original trial: whether or not he personally used a knife in the murder of Guadron. At the original trial, it was found not true. *932 On retrial, it could not be found true. Otherwise, "directly contrary conclusion[s]" could be reached. (Dowling v. United States, supra, 493 U.S. at p. 348 [107 L.Ed.2d at p. 717].) It is immaterial that the issue in question was established at the original trial through a finding on an allegation of a sentence enhancement rather than a verdict on a charge of a substantive offense. That is because, under California law, the sentence enhancement here is determined in a manner similar to a substantive offense. (See Pen. Code, §§ 969c, 1170.1, subd. (f).)
"[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Ashe v. Swenson, supra, 397 U.S. at p. 443 [25 L.Ed.2d at p. 475]) Again, the issue that defendant sought to foreclose on retrial was the same as one of those actually determined at the original trial: whether or not he personally used a knife in the murder of Guadron. It is an issue of "ultimate fact." An "ultimate fact" is one that "must be proven beyond a reasonable doubt." (U.S. v. Bailin, supra, 977 F.2d at p. 280; see U.S. v. Seley (9th Cir.1992) 957 F.2d 717, 723 [to similar effect].) Such is the case here. As explained above, personal use of a knife is a necessary fact for the unlawful-act element of the crime of murder insofar as guilt is predicated on a theory dependent thereon in this case, on a theory that defendant was a principal as a direct and active perpetrator solely through his personal use of a knife. As such, it must be proved beyond a reasonable doubt under the command of the due process clause of the Fourteenth Amendment. (Sullivan v. Louisiana, supra, 508 U.S. at p. ___ [124 L.Ed.2d at pp. 187, 188, 113 S.Ct. at p. 2080].)
The result of the foregoing collateral estoppel analysis is as follows.
On retrial, the People would be allowed to attempt to prove, beyond a reasonable doubt, that defendant was guilty of the murder of Guadron (via willful, deliberate, and premeditated murder and/or felony murder) as a principal therein, under the theory that he was a direct and active perpetrator or under the theory that he was an aider and abetter with the sole exception that they would be prohibited from attempting to prove that he was guilty as a principal under the theory that he was a direct and active perpetrator solely by personally using a knife. In other words: The People could attempt to prove that defendant was guilty as a principal specifically as a direct and active perpetrator other than through his personal use of a knife. They could also attempt to prove that he was guilty as a principal specifically as an aider and abettor. In addition, they could attempt to prove that he was guilty, as it were, "unspecifically," that is, that although his precise role could not be determined, he was either a direct and active perpetrator or an aider and *933 abettor. They would be prohibited only from attempting to prove that he was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife. Otherwise, directly contrary conclusions might be reached by different triers of fact. The jury at the original trial concluded that there was at least a reasonable doubt that defendant personally used a knife. Without the indicated prohibition, a jury on retrial might conclude that there was not a reasonable doubt about the matter.
The result of the collateral estoppel analysis in this case is unremarkable.
It is undisputed (see maj. opn., ante, at p. 910) and indisputable (see People v. Superior Court (Marks) (1991) 1 Cal. 4th 56, 78, fn. 22 [2 Cal. Rptr. 2d 389, 820 P.2d 613]) that the doctrine of collateral estoppel prohibits reallegation that defendant personally used a knife in the murder of Guadron. It follows that the doctrine bars relitigation of the fact alleged. Were it not so, form would prevail over substance: the once rejected allegation could not be reconsidered, but the once rejected fact alleged could be.
To be sure, the result of the collateral estoppel analysis in this case yields little real benefit to defendant. But it is the primary benefit he sought before the superior court. In counsel's words: "We're not claiming that the People are precluded from retrying the defendant for murder. That's not our position. [¶] Our position is that they may not try the defendant on the theory that he used the knife because that was the theory that was decided adversely to them in the first proceeding." Defendant has not deviated a whit before this court. To quote his brief: What he "seeks" is "to foreclose on retrial" "the issue" "whether he used the knife" in the murder. What he is entitled to may not be much, but he is entitled to it nonetheless.
Defendant, of course, did indeed receive a substantial benefit: dismissal of the action. But that was given to him by the People. True, the People had represented that they were "unable to proceed on the theory that is left to us as a result of ... [the] ruling on [the] collateral estoppel issue." They were wrong. For the charge of murder, they had available the theory of felony-murder robbery under which the jury had found defendant guilty. The testimony of Nubla with or without the identification of defendant as the stabber would have been sufficient. There was a robbery. Defendant was a principal therein. There was also a killing. "There is no requirement of a strict `causal' [citation] or `temporal' [citation] relationship between the [robbery] and the [killing.] All that is demanded is that the two `are parts of one continuous transaction.'" (People v. Berryman, supra, 6 Cal.4th at p. 1085.) Such is the case here. For the allegation of the felony-murder-robbery *934 special circumstance, which then required intent to kill (see, e.g., People v. Duncan (1991) 53 Cal. 3d 955, 973 [281 Cal. Rptr. 273, 810 P.2d 131]), the People had available the facts themselves, which established such intent for defendant, whether or not he was the stabber. For Guadron had not only been stabbed, but also strangled and run over by Nubla's automobile.
In view of the foregoing, the superior court's collateral estoppel ruling was sound in general.
But not in its entirety.
Recall the superior court's "instruction." It directed that "the jury is to be instructed at appropriate intervals throughout the case that the defendant did not personally use a knife during the killing of the victim." It erred thereby. For the reasons stated above, it should have directed that the jury be instructed only that it could not find that defendant was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife.
III
At the outset, the majority approach, but ultimately draw back from, the conclusion that the double jeopardy clause, including its collateral estoppel component, does not apply to retrials or questions of penalty but only to new trials and matters of substantive offenses. To my mind, they do well to do so.[3]
But the majority do conclude that the doctrine of collateral estoppel is not applicable on the facts of this case. Their reasoning, however, is flawed. Moreover, their extensive criticism of Pettaway v. Plummer, supra, 943 F.2d 1041, fails to strike to that decision's core.[4] A fortiori, it is insufficient to provoke reconsideration.
In support of their conclusion against collateral estoppel, the majority assert that the issue that defendant sought to foreclose on retrial was not the same as any of those actually determined at the original trial. Not so. At the original trial, the jury actually determined that it was not true that defendant personally used a knife in the murder of Guadron. That and that alone is the issue that defendant sought to foreclose on retrial. His "position" was simply that the People could not try him again "on the theory that he used the knife *935 ...." The majority gratuitously assert that, "[a]lthough defendant claims he merely seeks to preclude the theory that he used the knife, he necessarily is claiming more; he seeks to preclude the theory, and evidence to support the theory, that he either used the knife or aided and abetted the one who did." (Maj. opn., ante, at p. 920, italics in original.) Defendant is doing no such thing, "necessarily" or otherwise. And even if he were, that would not matter. Surely, he does not forfeit his right to preclude a narrow issue merely by attempting to preclude a broader one and its supporting evidence.
The majority then assert that the issue that defendant sought to foreclose on retrial is not an issue of "ultimate fact." Again not so. As explained above, personal use of a knife is an "ultimate fact" because it must be proved beyond a reasonable doubt; it must be proved beyond a reasonable doubt because it is a necessary fact for the unlawful-act element of the crime of murder insofar as guilt is predicated on a theory dependent thereon in this case, on a theory that defendant was a principal as a direct and active perpetrator solely through his personal use of a knife.
Perhaps troubled by their conclusion against collateral estoppel, the majority may be understood to argue that any directly contrary conclusions that might be reached by different juries in violation of the doctrine, even if real, would at least not be apparent. That may be true. The jury at the original trial revealed its conclusion, through its not true finding on the personal-use-of-a-knife allegation. A jury on retrial would not do so, since it would have no allegation to determine in the first place. But ignorance of the fact that conclusions are directly contrary would not make them otherwise. Neither would it excuse the resulting violation.
IV
For the reasons stated above, I would reverse the judgment of the Court of Appeal with directions to that court to vacate the superior court's order dismissing the action with directions to that court to set aside its "instruction" and devise a new and different instruction, to the effect that the jury could not find that defendant was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife.
KENNARD, J., Concurring and Dissenting.
I concur in the result reached by the majority. But for the reasons given below, I do not join in part II.B. of the majority opinion.
In part II.B. of its opinion, the majority addresses a question that is not essential to the decision in this case: When a defendant's conviction is *936 reversed on appeal, can the doctrine of collateral estoppel ever be applied at the retrial of the crime of which the defendant was convicted? The majority does not seem to think so. (Maj. opn., ante, at p. 914.) I am, however, not persuaded by the majority's strong implication that the purposes underlying the doctrine of collateral estoppel are never implemented by its application on retrial. Because the doctrine of collateral estoppel may be asserted in a wide variety of fact patterns, I would not foreclose the possibility that in some cases, application of the doctrine on retrial may well be appropriate.
*937 APPENDIX
[To concurring and dissenting opinion of Mosk, J.]
".... .... .... .... .... .... ....
"Once a jury has convicted a defendant of murder but found he did not personally use a knife in the commission of the crime for purposes of a sentence enhancement ..., may the defendant, following his successful appeal, be retried for murder on the theory he personally stabbed the victim to death? [Fn. omitted.] The answer requires us to resolve whether the collateral estoppel component of the double jeopardy clause [of the Fifth Amendment] applies to jury determinations of facts alleged for the purpose of a sentence enhancement. The issue has been the subject of conflicting opinions; as we shall explain, we believe United States Supreme Court precedent compels the conclusion that a negative enhancement finding may have collateral estoppel effect upon retrial for the underlying offense. On the facts presented here, the negative enhancement finding precludes the People from retrying defendant on the theory he personally killed the victim with a knife.
".... .... .... .... .... .... ....
"`"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' (Ashe v. Swenson (1970) 397 U.S. 436, 443 [25 L. Ed. 2d 469, 475, 90 S. Ct. 1189]; see also People v. White (1986) 185 Cal. App. 3d 822, 827 [231 Cal. Rptr. 569].) The principle thus precludes relitigation of an ultimate fact issue `"if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. [Citations.]" [Citation.]' (People v. Howard (1988) 44 Cal. 3d 375, 411 [243 Cal. Rptr. 842, 749 P.2d 279].) In Ashe v. Swenson, supra, the United States Supreme Court held collateral estoppel is an element of the Fifth Amendment guarantee against double jeopardy. (397 U.S. at pp. 442, 445 [25 L.Ed.2d at pp. 474-475, 476].)
"As explained by our Supreme Court, the purposes underlying application of the collateral estoppel doctrine are `(1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which *938 undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. [Citation.]' (People v. Taylor (1974) 12 Cal. 3d 686, 695 [117 Cal. Rptr. 70, 527 P.2d 622].) Although courts on occasion describe the doctrine as an equitable concept whose application depends on principles of fairness relevant to a particular case (e.g., People v. Taylor, supra, at p. 695, citing Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal. 2d 601, 605 [25 Cal. Rptr. 559, 375 P.2d 439]; People v. Pettaway (1988) 206 Cal. App. 3d 1312, 1319 [254 Cal. Rptr. 436], citing People v. Taylor, supra; People v. Nunez (1986) 183 Cal. App. 3d 214, 222 [228 Cal. Rptr. 64], quoting Sandoval v. Superior Court (1983) 140 Cal. App. 3d 932, 941 [190 Cal. Rptr. 29]), in a criminal case when the same defendant is involved in both trials, the bar of collateral estoppel is constitutionally compelled (People v. Taylor, supra, 12 Cal.3d at p. 692, citing Ashe v. Swenson, supra, 397 U.S. at pp. 443-447 [25 L.Ed.2d at pp. 475-478]).
"In this case, the trial court relied on the opinion of our colleagues in Division Five in People v. White, supra, 185 Cal. App. 3d 822 and on the Ninth Circuit's opinion in Pettaway v. Plummer (9th Cir.1991) 943 F.2d 1041, certiorari denied (1992) ___ U.S. ___ [121 L. Ed. 2d 220, 113 S. Ct. 296], in ruling the jury finding defendant did not personally use a knife in the commission of the murder estopped the People from relitigating that point on retrial. Both decisions hold a jury's finding on an enhancement allegation may carry collateral estoppel effect upon retrial after appeal. The trial court declined to follow the conflicting majority decision of Division Two of this district in People v. Pettaway, supra, 206 Cal. App. 3d 1312.
"People v. White, supra, involved a fact situation indistinguishable from that before us. The defendant was charged with a double murder and a sentence enhancement for use of a firearm in the commission of the murders. He was found guilty of the murders, but the jury returned a not true finding on the firearm-use allegation. After the convictions were reversed on appeal, the trial court denied the defendant's motion to bar the prosecution from proceeding on the theory he was the actual killer. (185 Cal. App.3d at p. 826.) The defendant was again convicted on the murder counts. (Id. at p. 824.)
"The Court of Appeal reversed on grounds of double jeopardy and collateral estoppel: `Appellant's use of a gun was resolved adversely against the prosecution in the first trial, and should not have been relitigated in the second. The prosecution is not prevented from proceeding on the theory that appellant supplied the weapons or otherwise participated as a principal. (See Pen. Code, § 31.) What it cannot do is relitigate the fact of appellant's use of *939 a gun in these homicides, since that issue was decided against it in the first trial. Principles of double jeopardy and due process which incorporate the doctrine of collateral estoppel preclude such action.' (People v. White, supra, 185 Cal. App.3d at pp. 827-828, italics in original.)
"Two years later, a majority of Division Two of this district reached the opposite conclusion on similar facts, holding double jeopardy protection does not apply to jury findings on enhancement allegations. (People v. Pettaway, supra, 206 Cal. App. 3d 1312.) The majority's conclusion was based largely on the notion that a finding of not true on a sentence enhancement allegation is not equivalent to an acquittal of a substantive crime and therefore does not enjoy the protections of the double jeopardy clause or the preclusive effect of the collateral estoppel doctrine included within it. (Id. at pp. 1322-1327.)
"Facing the same issue on Pettaway's petition for habeas corpus, the Ninth Circuit disagreed. (Pettaway v. Plummer, supra, 943 F.2d 1041.) `[T]he fact that the personal use determination at issue in the present case was not formally necessary for a finding of guilt on the murder charge does not prevent the finding from having collateral estoppel effect in this case.' (Id. at p. 1044.) Because the proceeding on the enhancement, although not intrinsic to the question of guilt or innocence, had the `"hallmarks of a trial on guilt or innocence"' i.e., the state was required to prove the enhancement allegations beyond a reasonable doubt the personal-use issue was `"necessarily determined"' for purposes of collateral estoppel. (Id. at pp. 1044-1045, citing Bullington v. Missouri (1981) 451 U.S. 430, 438-439 [68 L. Ed. 2d 270, 278-279, 101 S. Ct. 1852] [state's failure to obtain death sentence at first trial barred second attempt].)
"The People now urge us to follow People v. Pettaway, supra, in holding collateral estoppel principles inapplicable. Having carefully considered the relevant authority as well as the policies underlying collateral estoppel and double jeopardy, we agree rather with the conclusion reached in People v. White, supra, and Pettaway v. Plummer, supra, that collateral estoppel may apply to jury findings on sentence enhancement allegations."
".... .... .... .... .... .... ....
"In Bullington v. Missouri, supra, 451 U.S. 430, the United States Supreme Court addressed whether double jeopardy barred the state from attempting to impose the death penalty at retrial after the defendant's original conviction on a murder charge was reversed, when the state had failed to obtain the death penalty in the sentencing phase of the first trial. *940 Under federal constitutional law, the imposition of a sentence generally does not have double jeopardy effect. (See United States v. DiFrancesco (1980) 449 U.S. 117, 132-138 [66 L. Ed. 2d 328, 342-347, 101 S. Ct. 426].) In Bullington, however, the court distinguished cases holding the double jeopardy clause inapplicable to sentencing decisions on the basis that, in those cases, the sentencing proceedings at issue were characterized by the sentencing court's broad discretion in choosing an appropriate punishment from a wide range of potential penalties and by a burden of proof lower than that of beyond a reasonable doubt. (451 U.S. at pp. 437-439 [68 L.Ed.2d at pp. 277-279].) Thus, they bore little resemblance to a trial on guilt or innocence.
"Under Missouri's capital sentencing procedures, in contrast, the sentencer is required to choose between two discrete sentencing options death or life without probation or parole for 50 years. (Bullington v. Missouri, supra, 451 U.S. at p. 432 [68 L.Ed.2d at pp. 274-275].) Moreover, to obtain the aggravated penalty the prosecution must prove certain facts beyond a reasonable doubt, in a proceeding that `resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence.' (Id. at pp. 438, 444 [68 L.Ed.2d at p. 282].) Thus, unlike with traditional sentencing decisions, under Missouri's capital sentencing scheme the state's failure to obtain the harsher sentence demonstrated it had failed to prove its case; that being so, principles of double jeopardy precluded the state from seeking the death penalty on retrial. (Id. at pp. 441-446 [68 L.Ed.2d at pp. 280-284], citing Burks v. United States (1978) 437 U.S. 1, 15-16 [57 L. Ed. 2d 1, 12-13, 98 S. Ct. 2141]; Green v. United States (1957) 355 U.S. 184, 187-188 [2 L. Ed. 2d 199, 204-205, 78 S. Ct. 221, 61 A.L.R. 2d 1119].)
"In Arizona v. Rumsey (1984) 467 U.S. 203 [81 L. Ed. 2d 164, 104 S. Ct. 2305], the United States Supreme Court reaffirmed the principle stated in Bullington in holding double jeopardy precluded the state from seeking the death penalty after reversal of the original sentencing decision: `The capital sentencing proceeding in Arizona shares the characteristics of the Missouri proceeding that make it resemble a trial for purposes of the Double Jeopardy Clause. The sentencer the trial judge in Arizona is required to choose between two options: death, and life imprisonment without possibility of parole for 25 years. The sentencer must make the decision guided by detailed statutory standards defining aggravating and mitigating circumstances; in particular, death may not be imposed unless at least one aggravating circumstance is found, whereas death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency. The sentencer must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument. *941 The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt. [Citations.] As the Supreme Court of Arizona held, these characteristics make the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri. [Citation.]' (Id. at pp. 209-210 [81 L.Ed.2d at pp. 170-171].)
"We are unable to discern any principled difference between the capital sentencing procedures at issue in Bullington and Rumsey and the procedures for trying the enhancement allegation in the instant case.[1] The personal-use enhancement had to be `pleaded and proven as provided by law' ([Pen. Code,] § 1170.1, subd. (f)); the jury was required to decide the enhancement allegation if it found defendant guilty on the underlying charge ([id.,] § 1158a); and the prosecution had the burden of proving the allegation to the jury beyond a reasonable doubt (cf. People v. Morton (1953) 41 Cal. 2d 536, 539 [261 P.2d 523]; People v. Allen (1985) 165 Cal. App. 3d 616, 626 [211 Cal. Rptr. 837]). Mindful of Bullington's focus, for double jeopardy purposes, on whether the proceeding at issue bears `the hallmarks of [a] trial on guilt or innocence' (Bullington v. Missouri, supra, 451 U.S. at p. 439 [68 L.Ed.2d at p. 279]), we find defendant's previous trial on the knife-use enhancement clearly meets that test; consequently, pursuant to the authorities previously discussed, the jury's negative finding on the enhancement would appear to bar the People from retrying defendant for murder on the theory he personally killed Guadron with a knife.
".... .... .... .... .... .... ....
"The People argue collateral estoppel does not apply because the negative finding on the sentence enhancement was not a `final judgment.' (See People v. Howard, supra, 44 Cal.3d at p. 411.) Echoing the reasoning of the majority in People v. Pettaway, supra, they contend this is so because the *942 enhancement has `no independent viability' apart from the underlying offense. (See 206 Cal. App.3d at pp. 1322-1325.)
"We disagree. For purposes of collateral estoppel, a `final judgment' is defined as one that is `free from direct attack.' (People v. Sims (1982) 32 Cal. 3d 468, 486 [186 Cal. Rptr. 77, 651 P.2d 321].) Stated differently, `To be "final" for purposes of collateral estoppel the decision need only be immune, as a practical matter, to reversal or amendment.' (Miller Brewing Co. v. Jos. Schlitz Brewing Co. (7th Cir.1979) 605 F.2d 990, 996, cert. den. 444 U.S. 1102 [62 L. Ed. 2d 787, 100 S. Ct. 1067], and cases cited therein.) Here, while a weapons enhancement is not, as the People observe, a criminal offense, and no final judgment has been entered on the charged murder offense, the jury's negative finding on the enhancement allegation is indisputably immune from appeal or direct attack, reversal or amendment. (See United States v. Scott (1978) 437 U.S. 82, 91 [57 L. Ed. 2d 65, 74, 98 S. Ct. 2187].)[[2]] Consequently, the ultimate fact that defendant did not personally use a knife in the killing has for collateral estoppel purposes been finally determined.
"That the jury's negative finding is final also disposes of the People's contention the policies underlying collateral estoppel and double jeopardy would not be served by applying the doctrine in this case. The People raised the same argument in Pettaway v. Plummer, supra, and the Ninth Circuit squarely rejected it. The Ninth Circuit correctly saw that because the issue of ultimate fact expressed in the jury's verdict had been finally determined, permitting the People to retry the defendant on the same factual theory would raise the specter of successive inconsistent verdicts: `If the state is allowed to proceed on the theory that Pettaway pulled the trigger himself, it is possible that the second jury would convict Pettaway by reaching a conclusion directly contrary to that reached by the jury in the first trial. This possibility is abhorrent to the principles underlying the Double Jeopardy Clause.' (943 F.2d at p. 1047, citing Dowling v. United States (1990) 493 U.S. 342, 347-349 [107 L. Ed. 2d 708, 716-718, 110 S. Ct. 668].)
"Moreover, as the United States Supreme Court explained in Green v. United States, supra, the idea underlying the prohibition against double jeopardy, `one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for *943 an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' (355 U.S. at pp. 187-188 [2 L.Ed.2d at pp. 204-205].) `Having received "one fair opportunity to offer whatever proof it could assemble," [citation], the State is not entitled to another.' (Bullington v. Missouri, supra, 451 U.S. at p. 446 [68 L.Ed.2d at pp. 476-477]; see also Pettaway v. Plummer, supra, 943 F.2d at p. 1048.)
"The same aims of judicial economy and of avoiding inconsistent judgments, vexatious litigation, and the risk of erroneous judgments that inform the prohibition against double jeopardy underlie the doctrine of collateral estoppel as well. (See People v. Taylor, supra, 12 Cal.3d at p. 695.) That defendant, having obtained a reversal on appeal, is in any event subject to retrial on the charged murder offense does not, as the People would have it, render these policy considerations wholly inapplicable. Although in cases of retrial the saving of judicial resources is reduced and the defendant denied complete repose, the other compelling reasons for application of collateral estoppel prevention of harassment and anxiety and of the risk of erroneous judgments and inconsistent verdicts still apply. (Cf. People v. Taylor, supra, 12 Cal.3d at pp. 695-696.) Because the first jury rejected the state's case that defendant personally stabbed Guadron to death, to permit the People to retry him for murder on the same theory would violate these fundamental considerations. As the court stated in Pettaway v. Plummer, supra, 943 F.2d at page 1048, `Allowing the state to reprosecute [defendant] for murder on the theory that he was the actual perpetrator of the murder permits the state to remedy the flaws it perceives as having been fatal to its case the first time, and to attempt to convince a second jury of that which it tried and failed to prove to the first jury.'[3]
*944 "The misconception that the negative use finding was not final also colors the People's related argument that the collateral estoppel component of double jeopardy applies only to new prosecutions, not to retrials. The issue preclusion concept of collateral estoppel, the People argue, is fundamentally at odds with the process of appeal, reversal and retrial of a criminal offense. Citing [Penal Code] section 1180, which provides that `a new trial places the parties in the same position as if no trial had been had,' they assert a defendant who succeeds in getting his conviction reversed on appeal must accept both the benefits and the consequences of his success; on reversal, he has a second opportunity to defend against the charge and the prosecution has a second opportunity to prove it, using all relevant evidence.
"The broad notion a defendant who obtains a reversal must accept both the `benefits and the consequences' of a successful appeal was expressly rejected by our Supreme Court in People v. Superior Court (Marks) (1991) 1 Cal. 4th 56, 72 [2 Cal. Rptr. 2d 389, 820 P.2d 613]. As the court there recognized, although criminal proceedings are subject to reinstatement after a defendant's successful appeal, `[t]he scope of any reprosecution may, nevertheless, be restricted.' In a footnote, the court explained: `"[A]ny error affecting the express verdict of guilty does not affect the conclusiveness of [an] implied verdict of acquittal. [Citations.]" [Citation.] ... In this situation, the defendant is not obligated to resolve the tension generated by invoking conflicting constitutional protections, but may preserve for himself whatever double jeopardy benefits accrued in his first trial notwithstanding some fatal defect in the proceedings. [Citations.] To conclude otherwise would unduly impair the defendant's right of appeal. [Citation.]' (Id. at p. 72, fn. 14; see People v. Asbury (1985) 173 Cal. App. 3d 362, 366 [218 Cal. Rptr. 902].)
"Further contrary to the People's argument are the numerous federal cases in which collateral estoppel analysis was applied upon retrial following mistrial or reversal. (See, e.g., U.S. v. Seley (9th Cir.1992) 957 F.2d 717 [retrial after jury hung]; U.S. v. Dray (1st Cir.1990) 901 F.2d 1132 [dictum; retrial after appeal]; Pugliese v. Perrin (1st Cir.1984) 731 F.2d 85 [retrial after appeal]; United States v. Mespoulede (2d Cir.1979) 597 F.2d 329 [retrial after jury hung]; cf. Durosko v. Lewis (9th Cir.1989) 882 F.2d 357, 359-361 [distinguishing Bullington because second proceeding had lower standard of proof]; Rice v. Marshall (6th Cir.1987) 816 F.2d 1126, 1130-1132 [failure to object to evidence rape defendant was carrying firearm constituted ineffective assistance of counsel where defendant was previously acquitted of firearm charge].) More importantly, Bullington v. Missouri, supra, 451 U.S. 430, and Arizona v. Rumsey, supra, 467 U.S. 203 make clear that double jeopardy applies where the trier of fact, in a penalty proceeding *945 sharing key characteristics of a trial on guilt or innocence, has previously found not true the alleged conduct of the defendant the state would seek to prove upon resentencing after retrial of the underlying offense. We perceive no reason why the collateral estoppel element of the double jeopardy clause would not likewise apply to facts underlying a sentence enhancement found not true in the guilt phase of trial, if the criteria for its application were otherwise met.[4]
".... .... .... .... .... .... ....
"The People make several other arguments in favor of reversal, none of which we find persuasive. First, that the jury was not required to isolate one theory as the basis for its guilty verdict on the murder charge, as the People correctly observe, is not to the point. True, the jury was not required to decide whether defendant was the perpetrator or an aider and abettor in order to find him guilty; rather, each juror need only have found him guilty of murder beyond a reasonable doubt. (See People v. Pride (1992) 3 Cal. 4th 195, 249 [10 Cal. Rptr. 2d 636, 833 P.2d 643].) Nonetheless, the prosecution having initially failed to prove defendant personally used the knife during the killing, as the negative finding on the enhancement demonstrates, the collateral estoppel component of double jeopardy now prevents it from a second try at proving the theory the jury rejected at the first trial. Here, as in the case of reversal for evidentiary insufficiency, `the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.' (Burks v. United States, supra, 437 U.S. at p. 16 [57 L.Ed.2d at pp. 12-13], fn. omitted.)
"Nor is the collateral estoppel problem cured by the rule that inconsistent verdicts may stand, as long as sufficient evidence supports the counts resulting in conviction. Observing that defendant could not have challenged *946 his murder conviction on appeal on the ground it was inconsistent with the negative use-enhancement finding (see United States v. Powell (1984) 469 U.S. 57, 64-65 [83 L. Ed. 2d 461, 467-468, 105 S. Ct. 471] [no constitutional prohibition against inconsistent verdicts]; [Pen. Code,] § 954 [`An acquittal of one or more counts shall not be deemed an acquittal of any other count.']; People v. York (1992) 11 Cal. App. 4th 1506, 1510 [15 Cal. Rptr. 2d 66] [(Pen. Code,) § 954 permits inconsistent verdicts]), the People argue defendant necessarily cannot use the finding to bar the state from subjecting him to a second trial for murder on the theory he killed Guadron with a knife.
"The People's argument ignores that double jeopardy considerations, inapposite at the original trial, come into play on retrial of `issues previously adjudicated to finality.' (People v. White, supra, 185 Cal. App.3d at p. 828; see United States v. Scott, supra, 437 U.S. at p. 91 [57 L.Ed.2d at p. 74].) For this reason, People v. Lopez (1982) 131 Cal. App. 3d 565 [182 Cal. Rptr. 563], relied on by the People to support their analogy to inconsistent verdicts, has no bearing on the prohibition against double jeopardy that governs this case. Lopez was concerned not with successive trials, as here, but rather with the legal effect on appeal of inconsistent verdicts and findings at trial. The jury had found the defendant guilty of six counts of assault with a deadly weapon, but that he did not personally use a firearm in commission of the offenses. At issue was whether, in light of the jury's negative use-enhancement finding, the appellate court's examination of the verdicts for sufficiency of the evidence had to be made on the basis the defendant was convicted as an aider and abettor, not as a principal. (Id. at p. 569.) Relying by analogy on [Penal Code] section 954, permitting inconsistent verdicts, the court held it did not; notwithstanding the inconsistency between the negative finding and the guilty verdicts, the only issue on appeal was whether the verdicts were supported by substantial evidence, and in making this determination, the court could consider evidence of the defendant's weapon use. (Id. at p. 571.)
"We observe, moreover, the guilty verdict and negative special finding in this case were not necessarily inconsistent. The jury was instructed on liability of an aider and abettor and on the felony-murder liability of all participants in a robbery leading to death. They were also instructed the robbery-murder special circumstance applied to a murder `committed while the defendant was engaged in or was an accomplice in the commission of a robbery.' On the day they reached their verdicts, the jury asked about what they perceived to be a conflict between the robbery-murder special-circumstance instruction and the special circumstance verdict form. The verdict form referred to the murder being committed `while the defendant was engaged in the commission of a robbery,' without any reference to defendant *947 being an accomplice in the robbery. In answer to the question, the court stated the language of the instruction controlled and referred the jury to CALJIC No. 3.00 (stating aiders and abettors are principals in the crime). As the prosecutor commented after the trial, the jury's question `implied reliance on aiding and abetting principles.'[5] The specific finding defendant did not personally use a knife is not inconsistent with a finding defendant aided and abetted Nubla in the robbery murder.
"Finally, the People argue that even if double jeopardy applies to bar reprosecution of the enhancement allegation, the doctrine may not be used to preclude introduction of evidence relevant to the murder charge upon retrial. Contrary, however, to the People's premise, the trial court's ruling related not to evidence per se, but to the theory of defendant's culpability; while the court barred the prosecution from retrying defendant on the theory he personally used the knife in the commission of the murder the theory the prosecution failed to prove at trial it did not prohibit the prosecution from retrying defendant on the theory he was the perpetrator (as well as an aider and abettor), nor did it preclude the introduction of all evidence relating to defendant's possible knife use, so long as that evidence was relevant to a permissible theory. In this, the court's order, we believe, was consistent with the United States Supreme Court decision in Dowling v. United States, supra, 493 U.S. 342. There, in the context of successive prosecutions for different offenses, the court held the presentation of specific evidence in one trial, resulting in the defendant's acquittal, does not preclude the introduction of that same evidence in a subsequent prosecution to prove an issue not necessarily decided in the earlier acquittal. (Id. at pp. 350-352 [107 L.Ed.2d at pp. 718-720].) Consistent with Dowling, nothing in the trial court's order here would seem to preclude the prosecution, had it elected to do so, from introducing otherwise admissible evidence relevant to a permissible theory. (See Dowling, supra, at pp. 347-352 [107 L.Ed.2d at pp. 716-720].)
".... .... .... .... .... .... ....
"As we observed above, collateral estoppel bars relitigation of an issue of ultimate fact where the issue necessarily decided at the previous trial is identical to the one the People seek to relitigate, the previous trial resulted in a final judgment on the merits, and the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial. *948 (People v. Howard, supra, 44 Cal.3d at p. 411.) Having concluded the jury's negative finding on the use enhancement constitutes a final judgment, the sole remaining controversy concerns whether the trial court erred in finding the issue of defendant's knife use in commission of the killing was `necessarily decided' at the first trial. We find no error.
"... Notwithstanding [the jury's] finding [of not true on the personal-use-of-a-knife allegation], the People argue the jury did not `necessarily decide' defendant did not personally use a knife in killing Guadron because evidence at trial suggested the murder weapon could have been a razor-type box opener, rather than a knife; thus, the jury verdict could simply reflect confusion over what type of weapon had been used.
"The record simply does not support the People's contention. [Fn. omitted.] A forensic pathologist testified the mortal wounds were made by a knife blade several inches long with one sharp edge and one blunt edge. Nubla testified to seeing defendant stab Guadron with a six-inch knife and contradicted the suggestion he had earlier told investigators that a `box knife' had been used. The transcript of that interrogation itself adds nothing to the People's argument. Nubla initially answered affirmatively to the officer's question, `What was Victor cut with? One of those razor blade things?' Moments later, however, Nubla corrected the officer, stating three times defendant stabbed Guadron with a steak knife, not a box opener. On this record, no reasonable jury would have been confused as to whether the murder weapon was or was not a knife.
"Nor does it matter that the jury was given no instruction on [the personal-use-of-a-knife allegation], as the People contend. Although the People protest the term[s] ... ha[ve] a technical meaning not apparent to a jury absent specific instructions (which, apparently, neither the People nor defendant requested), here the verdict form itself specified the precise factual issue the People now seek to relitigate: whether defendant murdered Guadron with a knife. Given the plain wording of the verdict form, we are satisfied that question has been resolved.
".... .... .... .... .... .... ...
"Pursuant to the foregoing, we hold the trial court correctly ruled the prosecution could not retry defendant on the theory he personally used a knife during the killing. In so doing, we emphasize this is not a case where the special finding was logically inconsistent with the guilty verdict, in the sense of eluding rational explanation. As in Pettaway v. Plummer, supra, 943 F.2d at page 1046, this, too, `is not a case in which there is a "truly *949 inconsistent verdict." To the contrary, there is a rational explanation that takes into account the whole of the jury's verdict.' Consequently, we have had no occasion to consider whether preclusive effect should be given to a negative special finding that cannot be rationally reconciled with the guilty verdict it accompanies."
NOTES
[1] Citing People v. Yarbrough (1991) 227 Cal. App. 3d 1650, 1653-1656 [278 Cal. Rptr. 703], the Court of Appeal held that the appeal from the dismissal "permits review of the underlying ruling." Defendant does not challenge that holding.
[2] The doctrine is sometimes called "issue preclusion." (E.g., Schiro v. Farley (1994) 510 U.S. ___, ___ [127 L. Ed. 2d 47, 58, 114 S. Ct. 783, 790].) We will refer to it as "collateral estoppel," as has been our practice. (Gikas v. Zolin (1993) 6 Cal. 4th 841, 848-849 [25 Cal. Rptr. 2d 500, 863 P.2d 745]; People v. Howard (1988) 44 Cal. 3d 375, 411 [243 Cal. Rptr. 842, 749 P.2d 279].)
[3] Collateral estoppel, which applies to relitigation of factual issues, is analytically distinct from double jeopardy, which applies to retrial of offenses. Thus, collateral estoppel is conceptually separate from double jeopardy, but, under Ashe, supra, 397 U.S. 436, when applicable, it is a component of the double jeopardy clause of the Fifth Amendment.
[4] One reason for this is the impropriety of penalizing a defendant for appealing, which would have a chilling effect on the exercise of that right. (People v. Pettaway, supra, 206 Cal. App.3d at pp. 1331-1332.) This reason does not apply to retrial of the substantive charges. Defendant was convicted of those charges, so cannot be worse off for having appealed.
[5] U.S. v. Bailin, supra, 977 F.2d 270, contains the most extensive discussion of the applicability of collateral estoppel to retrial, and concludes that it does apply. That case might be distinguishable because, unlike here, it did not concern a retrial of a conviction reversed on appeal, but rather retrial of counts the first jury could not agree upon, a factor that plays a substantial role in the court's analysis. Moreover, the Bailin court relied heavily on civil decisions in concluding that collateral estoppel, or, as it analyzed it, "`direct estoppel,'" applied. (Id. at p. 276.) But in a decision refusing to apply the civil doctrine of "nonmutual collateral estoppel" to a criminal case, the United States Supreme Court has made clear that civil rules do not necessarily apply to criminal cases. "This, however, is a criminal case, presenting considerations different from those in [the civil cases defendant relied upon]." (Standefer v. United States (1980) 447 U.S. 10, 22 [64 L. Ed. 2d 689, 699, 100 S. Ct. 1999].) Among the different considerations the high court cited are the inability of the prosecution to obtain a directed verdict, judgment notwithstanding the verdict, or a new trial no "matter how clear the evidence in support of guilt," or to appeal an adverse judgment, circumstances which permit juries "to acquit out of compassion or compromise" or lenity. (Ibid.)
We need not inquire further into the correctness of this portion of Bailin, however, in light of our conclusion in the next part, bolstered by the analysis of Bailin itself, that defendant has not shown that the elements of collateral estoppel have been met.
[6] The parties focus primarily on the federal constitutional standard, and not on whether the state standard is significantly different. In People v. Taylor, supra, 12 Cal. 3d 686, we afforded a defendant greater collateral estoppel protection than the high court later required under the United States Constitution. (See Standefer v. United States, supra, 447 U.S. 10.) Even if we assume that the state collateral estoppel elements are broader than required under the United States Constitution, that would not aid defendant. The state law doctrine of collateral estoppel has a public policy exception. (Lucido v. Superior Court (1990) 51 Cal. 3d 335, 342-343 [272 Cal. Rptr. 767, 795 P.2d 1223, 2 A.L.R. 5th 995].) That exception applies here.
The challenged theory of knife use and supporting evidence has already once validly helped produce a conviction of murder, and the murder charge is properly retriable following a reversal on appeal. To allow an ancillary sentencing determination in the prior trial to govern what theories and evidence are available in a guilt retrial would not advance "the public policies underlying collateral estoppel preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation...." (Lucido v. Superior Court, supra, 51 Cal.3d at p. 343; see also id. at p. 351.) Moreover, telling the jury defendant did not use the knife, despite the evidence that he did, would undermine confidence in the truth-seeking function of the judicial system, and discourage the legitimate charging of enhancements.
[7] The factual issue is actually more complicated than this. Three types of injury were inflicted: the victim was stabbed, he was strangled, he was run over by a car. Although the district attorney stated the cause of death was stabbing, the jury may have been less certain. It may have been convinced beyond a reasonable doubt defendant was the stabber, or strangler, or car driver, or an aider and abettor of the stabber, strangler or driver, or some combination thereof, but have been uncertain as to his precise personal role. This, too, would explain and justify the not true finding and guilty verdict. The parties, however, focus on the dichotomy between defendant as the knife user and defendant as an aider and abettor, so we will also. The analysis is the same under any of these scenarios.
[8] In analyzing the unanimity question in a robbery case, one Court of Appeal used this example. "`Assume a robbery with two masked participants in a store, one as the gunman and one as the lookout. If one witness makes a voice identification of the defendant as the gunman who demanded money, but other evidence, such as a fingerprint, suggests the defendant was actually holding the door open as lookout, the jury would be faced with the same theories presented in this case: find the defendant was the gunman and therefore a direct perpetrator, or find he was at the door and therefore an aider and abettor. Either way he would be guilty of robbery.' If 12 jurors must agree on the role played by the defendant, the defendant may go free, even if the jurors all agree defendant committed the crime. That result is absurd." (People v. Perez (1993) 21 Cal. App. 4th 214, 222 [26 Cal. Rptr. 2d 691].) Equally absurd would be to let the defendant go free because each individual juror had a reasonable doubt as to his exact role.
[9] Another hypothetical illustrates why the issue as to the enhancement and that as to the substantive charge should not be deemed identical for collateral estoppel purposes. Assume a convenience store holdup with two masked robbers and five eyewitnesses, and that all witnesses testified that robber A had a gun. Two witnesses also thought robber B had a gun, but the others did not see it. Assume the two defendants are tried together. Both left fingerprints, and both confessed to participation in the crime, but each denied possessing a gun, and claimed the other had the gun. The testimony of two witnesses that both robbers had a gun would justify charging a gun enhancement as to both. So both would be tried together for robbery and personal gun use. If the jury had a reasonable doubt that both used a gun, and did not know which was robber A and which robber B, it could reasonably find both guilty of robbery but would have to find the enhancement allegation not true as to both.
If the convictions were reversed on appeal for extraneous reasons, at retrial would the court have to instruct the jury that neither used a gun? Or that the jury could not convict on the basis that either used the gun? That would be absurd. The first jury would have found both guilty as either the gun user or on some other basis, but would have been uncertain as to exactly who did what. A second jury should be allowed to do the same.
[10] Justice Mosk agrees that the People "could attempt to prove that [defendant] was guilty, as it were, `unspecifically,' that is, that although his precise role could not be determined, he was either a direct and active perpetrator or an aider and abettor." (Conc. and dis. opn. of Mosk, J., post, at pp. 932-933, italics in original.) His only disagreement with the majority is his argument the trial court has to instruct that the jury "could not find that defendant was guilty as a principal as a direct and active perpetrator solely through his personal use of a knife." (Id. at p. 935, italics in original.) As Justice Mosk notes, his analysis "yields little real benefit to defendant." (Id. at p. 933.) Indeed, except for possibly confusing the jury, the proffered instruction would offer no real benefit to defendant. A jury that could find defendant was either a direct perpetrator or an aider and abettor would have no need to determine that he was solely guilty as a knife user. But contrary to Justice Mosk's view (id. at p. 933), defendant has both sought and obtained much more. In the trial court, he moved to exclude, among other things, Nubla's testimony that he saw "defendant stab the victim." The trial court ruled that it would periodically instruct the jury that defendant "did not personally use a knife during the killing of the victim." Thus, depending on the evidentiary rulings the court would make at trial, either the court would tell the jury the main prosecution witness was lying, or the jury would hear no mention of who stabbed the victim, a critical matter since it would also hear that the cause of death was a stab wound. Justice Mosk impliedly agrees the evidentiary contention was meritless, and expressly agrees the instructional ruling was error. (Id. at p. 934.) The ruling gave defendant a real benefit, and made conviction unrealistic, especially since the special circumstance allegation required a finding that defendant personally intended to kill. (See People v. Duncan (1991) 53 Cal. 3d 955, 973, fn. 4 [281 Cal. Rptr. 273, 810 P.2d 131].)
We disagree that the court had to give the jury any special instruction. The jury returns a verdict of guilt or innocence of the charge, not a verdict on any particular theory. Although knife use is an ultimate fact of one possible theory, that is not the test; knife use is not an ultimate fact of the charge of murder, the only question the jury has to decide. It would be absurd, and would only confuse the jury, to instruct that it could convict defendant if it thought him guilty on some valid theory, even if uncertain which, but could not convict him if it specifically believed he used the knife. For the reasons stated in the text, collateral estoppel simply does not apply here.
[*] Presiding Justice, Court of Appeal, Third Appellate District, assigned by the Acting Chairperson of the Judicial Council.
[1] Justice Werdegar's opinion, which I substantially adopt, is set out at length in the appendix.
[2] The law is presently fully in Justice Werdegar's opinion. (See appen., post, p. 937.)
[3] The majority's efforts in this regard are fully anticipated in, and soundly dispatched by, Justice Werdegar's opinion. (See appen., post, at p. 937.)
[4] Here too, the majority's efforts are fully anticipated in, and soundly dispatched by, Justice Werdegar's opinion. (See appen., post, at p. 937.)
[1] "Unlike the majority in People v. Pettaway, supra, 206 Cal. App.3d at pages 1328-1329, we do not find it a significant distinction that the procedures addressed in Bullington and Rumsey required a separate trial on the issue of punishment after the defendant was convicted of the crime charged, whereas here the prosecutor was required to prove guilt on the underlying offense and the truth of the enhancement allegations during the same proceeding. `Where the original proceedings have all the characteristics of a trial on guilt or innocence, it does not matter whether the fact at issue was originally determined in the guilt/innocence phase, the sentencing phase, or, as here, as an enhancement factor tried during the guilt/innocence phase. [Citation.]' (Pettaway v. Plummer, supra, 943 F.2d at p. 1045, fn. 2.) If anything, the procedure employed here for determining the truth of the enhancement allegations during the trial on the underlying charge is less distinguishable from a trial on guilt or innocence than were the separate, postconviction penalty proceedings at issue in Bullington and Rumsey."
[2] "The People's reliance on cases holding the collateral estoppel component of the double jeopardy clause does not bar retrial of a criminal charge following the defendant's successful appeal from a conviction on that offense are inapposite. Here, although defendant was originally convicted on the underlying murder charge, the jury effectively acquitted him of having used a knife in the commission of that crime." (Italics in original.)
[3] "The People point out that in the recent case of United States v. Dixon (1993) 509 U.S. ___ [125 L. Ed. 2d 556, 113 S. Ct. 2849], the United States Supreme Court overruled Grady v. Corbin (1990) 495 U.S. 508 [109 L. Ed. 2d 548, 110 S. Ct. 2084], a case relied on by the court in Pettaway v. Plummer, supra, 943 F.2d at pages 1046-1048. As the People acknowledge, however, the high court repeatedly observed that the issue of collateral estoppel was not before it in Dixon. Indeed, the court expressly recognized that `The collateral-estoppel effect attributed to the Double Jeopardy Clause, see Ashe v. Swenson, 397 U.S. 436 (1970) [25 L. Ed. 2d 469, 90 S. Ct. 1189], may bar a later prosecution for a separate offense where the Government has lost an earlier prosecution involving the same facts' (509 U.S. at p. ___ [125 L.Ed.2d at p. 573], italics omitted) and, further, that `Under Ashe v. Swenson [supra], an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one....' ([I]d. at p. [___] [125 L.Ed. at p. 577, fn. 15].)
"Nevertheless, based on the foregoing quotes, the People argue the clear implication is that collateral estoppel applies to subsequent prosecutions and serves to protect verdicts of acquittal, neither present here. We disagree these passing comments in Dixon add anything new to the controversy before us."
[4] "The statement in Ohio v. Johnson (1984) 467 U.S. 493, 500, footnote 9 [81 L. Ed. 2d 425, 434, 104 S. Ct. 2536], that double jeopardy and collateral estoppel do not apply `where the State has made no effort to prosecute the charges seriatim ...' is not to the contrary. The defendant there was charged in a single indictment with murder, involuntary manslaughter, aggravated robbery and grand theft. The trial court accepted his guilty plea to involuntary manslaughter and grand theft and then dismissed the murder and robbery charges on the theory prosecution for those remaining charges would subject the defendant to double jeopardy. The United States Supreme Court disagreed, observing `the taking of a guilty plea is not the same as an adjudication on the merits after full trial, such as took place in Ashe v. Swenson. Moreover, in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable.' (Id. at p. 500, fn. 9 [81 L.Ed.2d at p. 434], italics added.) Johnson, thus, did not involve successive trials, either on the same charge or on a different charge. In contrast, in this case the People propose to retry defendant on a theory a jury has previously rejected that defendant personally used a knife in the commission of the murder."
[5] "Although Nubla testified defendant was the perpetrator, his testimony was not the whole of the case against defendant. Apart from Nubla's testimony, which the jury may have discounted, independent evidence of defendant's motive and of his admission of involvement in the killing supported a rational finding he participated in the killing, even if he was not shown beyond a reasonable doubt to have personally stabbed Guadron." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3368004/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION
This case comes to this court as a hearings in damages. The parties appeared, evidence was presented, exhibits were entered into evidence, and the parties made argument. The court finds that the plaintiff has established by a fair preponderance of the evidence, damages to be paid by the defendant as follows:
1. Compensatory damages in the sum of $22,894.00.
2. Attorney's fees in the sum of $3,179.40 consisting of $2,619.40 for approximately 16.7 hours of time prior to the trial and $560.00 for the proceedings at trial and the preparation therefor.
3. Costs in the sum of $340.00.
4. The court finds a violation of the Connecticut Unfair Trade Practices Act.
CT Page 3395
In the defendant's own words he was "robbing Peter to pay Paul." The defendant stated that it was "stupid but that's what I did." I have been "trying to overcome my stupidity." The defendant was arrested, prosecuted and pleaded no contest to larceny in the third degree. Punitive damages based on the Unfair Trade Practice of using the plaintiff's money for other purposes than to pay the cruise line are awarded in the sum of $40,000.00.
Therefore, a total judgment in the sum of $66,413.40 is awarded.
KARAZIN, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2427897/ | 395 F. Supp. 2d 79 (2005)
UNITED STATES of America
v.
Ahmed Abdel SATTAR, a/k/a "Abu Omar," a/k/a "Dr. Ahmed," Lynne Stewart, and Mohammed Yousry, Defendants.
No. S1 02 CR. 395(JGK).
United States District Court, S.D. New York.
October 24, 2005.
*80 *81 Barry M. Fallick, Rochman Platzer Fallick & Rosmarin, Kenneth Alan Paul, Law Office of Kenneth A. Paul, Robin L. Baker, U.S. Attorney's Office, SDNY (St Andw's), New York, NY, Steven P. Ragland, the Tigar Law Firm, Annapolis, MD, for Defendants.
Christopher Jude Morvillo, U.S. Attorney's Office, SDNY (St Andw's), Joseph F. Bianco, Assistant United States Attorney, Mary Jo White, United States Attorney Criminal Division, New York, NY, for Plaintiff.
*82 OPINION & ORDER
KOELTL, District Judge.
On February 10, 2005, after a lengthy trial, a jury found each of the defendants Ahmed Abdel Sattar ("Sattar"), Lynne Stewart ("Stewart"), and Mohammed Yousry ("Yousry") guilty on each of the counts in which they were charged in the seven-count superseding indictment ("S1 Indictment").
Count One of the S1 Indictment charged Sattar, Stewart, and Yousry with conspiring to defraud the United States in violation of 18 U.S.C. § 371. Count Two charged Sattar with conspiring to murder and kidnap persons in a foreign country in violation of 18 U.S.C. § 956. Count Three charged Sattar with soliciting persons to engage in crimes of violence in violation of 18 U.S.C. § 373. Count Four charged Stewart and Yousry with conspiring, in violation of 18 U.S.C. § 371, to provide and conceal material support to be used in preparation for, and in carrying out, the conspiracy alleged in Count Two. Count Five charged Stewart and Yousry with a substantive count of providing and concealing material support to the Count Two conspiracy, in violation of 18 U.S.C. §§ 2339A and 2. Counts Six and Seven charged Stewart with making false statements in violation 18 U.S.C. § 1001. See United States v. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y.2003) ("Sattar I"); United States v. Sattar, 314 F. Supp. 2d 279 (S.D.N.Y.2004) ("Sattar II"). The jury found that the conspiracy charged in Count Two was solely a conspiracy to murder and not to kidnap persons in a foreign country, and that the crimes solicited as charged in Count Three were murder and conspiracy to murder.
At the conclusion of the Government's case, all defendants moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure on the grounds that the evidence was insufficient to sustain a conviction. At that time, Stewart argued, among other things, that the evidence was insufficient because the conspiracy to murder and kidnap persons in a foreign country had not been proved because the locus of the murder or kidnapping might be a place, such as Palestine, that is not an internationally recognized country. At the Government's request, the Court reserved decision on the motions and the defendants proceeded with their defense, including the testimony of each of the three defendants. At the conclusion of all of the evidence and after the jury verdict, the defendants again moved for judgment of acquittal, and the Court reserved judgment.
Having obtained a timely extension of time to file motions, Stewart has filed a renewed motion for a judgment of acquittal pursuant to Rule 29, for a new trial pursuant to Federal Rule of Criminal Procedure 33, for arrest of judgment pursuant to Federal Rule of Criminal Procedure 34, and in the alternative, for discovery on Stewart's selective prosecution claim. Defendants Sattar and Yousry join in the motions to the extent that they affect them. For the reasons stated below, the motions are denied.
I.
Each of the defendants has moved for a judgment of acquittal on each of the counts in which they are charged, but the only substantive arguments with respect to the insufficiency of the evidence have been raised by Stewart with respect to the Counts in which she is charged namely Counts One, Four, Five, Six, and Seven.
A.
To succeed on a motion for a judgment of acquittal pursuant to Rule 29 of the *83 Federal Rule of Criminal Procedure, the defendant must show that no rational trier of fact, viewing the evidence in the light most favorable to the Government, could have found the defendant guilty beyond a reasonable doubt of the essential elements of the crimes charged. United States v. Desena, 287 F.3d 170, 176 (2d Cir.2002). A defendant making an insufficiency claim "bears a very heavy burden." Id. at 177; see also United States v. Macklin, 927 F.2d 1272, 1277 (2d Cir.1991) (collecting Second Circuit cases).
In considering the sufficiency of the evidence, the Court must "view the evidence presented in the light most favorable to the government, and ... draw all reasonable inferences in its favor." United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). The Court must analyze the pieces of evidence "not in isolation but in conjunction," United States v. Matthews, 20 F.3d 538, 548 (2d Cir.1994), and must apply the sufficiency test "to the totality of the government's case and not to each element, as each fact may gain color from others," United States v. Guadagna, 183 F.3d 122, 130 (2d Cir.1999).
"[T]o avoid usurping the role of the jury," the Court must "not substitute [its] own determinations of credibility or relative weight of the evidence for that of the jury." Autuori, 212 F.3d at 111 (internal citation omitted). Thus, the Court must "defer to the jury's determination of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998). The jury's verdict "may be based entirely on circumstantial evidence." United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.1995); see also United States v. Aleskerova, 300 F.3d 286, 292 (2d Cir.2002) (elements of conspiracy can be established by circumstantial evidence); Macklin, 927 F.2d at 1277 (same).
B.
To the extent that the defendant also makes a motion pursuant to Rule 33 of the Federal Rule of Criminal Procedure based on an alleged insufficiency of the evidence, the standard is also an exacting one. A court will grant a new trial only "in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir.1993) (citing United States v. Imran, 964 F.2d 1313, 1318 (2d Cir.1992)). In evaluating the sufficiency of the evidence for purposes of Rule 33, the Court "must examine the entire case, take into account all facts and circumstances, and make an objective evaluation." United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001) (internal citation omitted). There must be "a real concern that an innocent person may have been convicted." Id. While the Court has "broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29," it must nonetheless "exercise the Rule 33 authority sparingly and in the most extraordinary circumstances." Id. (internal citation and quotation marks omitted).
C.
In deciding the motions to dismiss made at the conclusion of the Government's case, the Court must decide the motions based on the evidence at the time the ruling was reserved. See Fed.R.Crim.P. 29(b). In deciding the subsequent motions, the Court can consider all of the evidence, and Stewart refers in her written submission to the "totality of the evidence." Stewart Mem. at 8. Stewart specifically relies on her testimony that she was only engaged in the zealous representation of her client *84 and was not attempting to deceive the Government. Stewart Mem. at 51.
In considering the totality of the evidence, the jury is entitled to disbelieve a defendant's testimony and "use its disbelief to supplement the other evidence against [the defendant]," United States v. Stanley, 928 F.2d 575, 577 (2d Cir.1991), and may in light of all of the evidence conclude that the defendant's testimony was false and thereby infer the defendant's guilt. See Morrison, 153 F.3d at 50; United States v. Friedman, 998 F.2d 53, 57 (2d Cir.1993). This decision therefore focuses on the evidence at the conclusion of the Government's case and refers to the remainder of the evidence, particularly Stewart's testimony, as it relates to her motions after the conclusion of all of the evidence.
II.
Count One of the S1 Indictment alleges that, from about June 1997 through about April 2002, defendants Sattar, Stewart, and Yousry, as well as Sheikh Omar Abdel Rahman ("Abdel Rahman") and Rifa'i Ahmad Taha Musa, a/k/a "Abu Yasir" ("Taha"), together with others known and unknown, conspired to defraud the United States, in violation of 18 U.S.C. § 371, by obstructing the Department of Justice and the Bureau of Prisons in the administration and enforcement of the Special Administrative Measures ("SAM's") applicable to the imprisoned Sheikh Abdel Rahman. Stewart argues that there was insufficient evidence both of the existence of the Count One conspiracy and of her specific intent to join the conspiracy. In particular, Stewart argues that her actions were not calculated to deceive the Government, but rather to defy it openly. None of these arguments have merit.
The Court instructed the jury that, "in this case, the term `conspiracy to defraud the United States' refers to charges that the defendants agreed to [employ] deceitful or dishonest means toward the Department of Justice and its agency, the Bureau of Prisons, in order to obstruct, interfere with, impair, impede, or defeat the administration and enforcement of Special Administrative Measures upon inmate Sheikh Omar Abdel Rahman." (Tr. 12306-07.) See United States v. Ballistrea, 101 F.3d 827, 831 (2d Cir.1996).
The evidence at trial was more than sufficient to show that Stewart conspired with Yousry, Sattar, Abdel Rahman, and others to defraud the United States Department of Justice and the Bureau of Prisons. Stewart's knowledge of the existence of the conspiracy to defraud and her intent to participate in it were inferable from her conduct and her statements.
A.
The evidence showed that the Special Administrative Measures imposed upon Sheikh Abdel Rahman prohibited him from, among other things, passing or receiving communications from third persons with few exceptions. Abdel Rahman was permitted to communicate with his attorneys, but only with respect to legal matters. He could receive visits only from his attorneys and certain family members, and could communicate by telephone only with his legal spouse and his attorneys. Any correspondence to or from Abdel Rahman was required to be screened by the FBI to determine whether it contained either overt or covert requests for illegal activities, or actual or attempted circumvention of the SAMs. The SAMs also strictly prohibited Abdel Rahman from communicating with the news media in any manner, including through his attorneys. The SAMs required the attorneys of record for Abdel Rahman to sign an affirmation that counsel and anyone acting at *85 counsel's behalf would abide by the SAMs. (GX 2-6, 11, 13.)
The evidence further proved that in signing the attorney affirmations, Stewart affirmed, among other things, that she and her staff would abide by the SAMs; that she would not use her meetings with Abdel Rahman to pass messages between him and third parties; that she would not pass his messages to the media; and that she would be accompanied by a translator during prison visits only for the purpose of communicating with Abdel Rahman concerning legal matters. The affirmations specifically provided that the attorney understood that the Bureau of Prisons was relying on the sworn representation in affording Abdel Rahman the opportunity to meet or speak with the attorney. (GX 3, 7, 12.)
Stewart signed the attorney affirmations, and returned them to the United States Attorney's Office. (GX 3, 4, 6, 7, 12.) Significantly, she signed affirmations dated May 16, 2000 and May 7, 2001, which were the false statements that served as the basis for the charges in Count Six and Seven against her. (GX 7, 12.) There was substantial evidence that Yousry and Sattar were also aware of the SAMs and their restrictions on Abdel Rahman's ability to communicate with them.
A rational jury could find that Stewart and her co-defendants knew of the existence of the SAMs and the limitations the SAMs placed on Abdel Rahman's ability to communicate with others. A rational jury could find that, despite this knowledge, the defendants acted together to employ deceitful or dishonest means towards the Department of Justice and the Bureau of Prisons in order to obstruct the administration and enforcement of SAMs upon Abdel Rahman. The defendants did this primarily by smuggling messages to and from Abdel Rahman and by disseminating his statements to the media in the form of two press releases in June 2000, announcing his withdrawal of support for a cease-fire.
1.
In March 1999, Stewart and Yousry visited Abdel Rahman at the Federal Medical Center in Rochester, Minnesota ("FMC Rochester"). (GX 305, 306.) Prior to the visit, Stewart had signed and sent to the United States Attorney's Office for the Southern District of New York an affirmation making the representations explained above. (GX 3.) A rational jury could have found that Stewart and Yousry used this visit to bring a message to Abdel Rahman seeking his support for Taha's position to end the Islamic Group's cease-fire. (GX 1007X at 4-5.)
The Islamic Group ("IG") is an organization that had been designated a "foreign terrorist organization" by the Secretary of State. Under the cease-fire, the IG had suspended terrorist operations in Egypt in an effort to persuade the Egyptian government to release IG leaders, members, and associates who were in prison in Egypt. See, e.g., GX 1111 at 8-22. Prior to the March 1999 visit to Abdel Rahman, Sattar had received a letter from two individuals named Gamal Sultan and Kamal Habib, who requested an opinion from Abdel Rahman as to whether the Islamic Group should form a political party in Egypt. (GX 1005X at 2-4.) A rational jury could find that, during the course of the March 1999 visit, Stewart and Yousry relayed to Abdel Rahman the requests from Taha and from Sultan and Habib, and received Abdel Rahman's response. (GX 2415-6T.)
In response to Sultan's and Habib's letter, Abdel Rahman rejected the proposal that the Islamic Group form a political party. Abdel Rahman stated that the "cessation of violence" was a "matter of *86 tactics and not of principle." (GX 2415-6T; see also GX 1007X at 3, 6-7.) In response to Taha's request for Abdel Rahman's support in ending the cease-fire, Abdel Rahman stated that he had "no objection," even though others were calling for the halt of violence. Significantly, Abdel Rahman instructed that "[n]o new charter, and nothing should happen or be done without consulting me, or informing me." (GX 1007X at 4-5.)
Following the visit, Sattar relayed Abdel Rahman's messages to both Taha and Mustafa Hamza ("Hamza"). (GX 1007X at 3-7, 9-10; GX 1009X at 2-3.) Taha told Sattar that he wanted the letter for him "a little stronger." (GX 1009X at 2.)
2.
Stewart and Yousry next visited Abdel Rahman at FMC Rochester on May 19 and 20, 2000. Three days before that visit, on May 16, 2000, Stewart signed an attorney affirmation again making the representations explained above. (GX 6, 7.) Stewart submitted the attorney affirmation to the United States Attorney's Office on May 26, 2000, ten days after she signed it, and six days after the May 2000 prison visit. A rational jury could find that during the visit, Stewart violated her affirmation.
The May 2000 visit was, unbeknownst to Stewart and Yousry, recorded on videotape. During that visit, Stewart and Yousry secretly brought into the prison a number of letters for Abdel Rahman. (GX 1706X at 46-48; GX 1707X at 27-28, 33-36.) Among the correspondence was a letter from Sattar containing a message from Taha seeking Abdel Rahman's support in ending the cease-fire. (GX 1707X at 33-36.) In the letter, Sattar and Taha asked Abdel Rahman to take a "more forceful position," and to "dictate some points" that could be announced by Stewart to the media. (GX 1707X at 33-36.)
On May 19, 2000, the first day of the visit, Stewart had Yousry read to Abdel Rahman the letter from Sattar with Taha's message. Stewart testified that Yousry translated Sattar's letter with Taha's message to her before their visit with Abdel Rahman on May 19, 2000. (Tr. 7766.) Stewart, who had brought Sattar's letter into the prison concealed in a legal pad, handed the letter to Yousry shortly before Yousry read it to Abdel Rahman. When Stewart passed the letter to Yousry, she mentioned to him that Abdel Rahman would need to think about his response to the letter, and Yousry so informed Abdel Rahman. (GX 1707X at 27-28.) Just before Yousry was about to read Taha's message to Abdel Rahman, Yousry saw the prison guards outside the window of their meeting room and alerted Stewart to that fact. Yousry instructed Stewart to talk to Abdel Rahman, as if they were engaged in a conversation. Stewart and Yousry then laughed while acknowledging that if the prison guards discovered that they were reading the letter to Abdel Rahman, they would be "in trouble." (GX 1707X at 29.) While Yousry read Sattar's and Taha's message to Abdel Rahman, Stewart and Yousry actively concealed that fact from the prison guards. Stewart pretended to be participating in the conversation with Abdel Rahman by making extraneous comments about food and eating. (GX 1707X at 29-36.)
On May 20, 2000, during the second day of the visit, Abdel Rahman dictated letters to Yousry in response to Taha's and Sattar's message. In his letter, Abdel Rahman stated, among other things, "what use is the initiative ... where we declared the halt of violence ... and the government continues to arrest the Islamic Group members, puts them to military trials, continues to execute and re-arrest them?" (GX 1710X at 48.) He urged that the opposition voice be heard and that Taha *87 should be given "his natural right ... as head of the Group... [if not] the least is to have the person in charge consult with him...." (GX 1710X at 49; see also GX 1711X at 30-33.)
During Abdel Rahman's dictation, Stewart actively concealed the conversation between Abdel Rahman and Yousry from the prison guards by again engaging in covering noises. Among other things, Stewart again periodically interrupted the dictation with extraneous comments and told Yousry to talk to her from time to time "for the sake of talking about something." (GX 1710X at 53.) After the visit, Stewart and Yousry brought out of the prison Abdel Rahman's dictated letters in response to Taha's and Sattar's message. Once back in New York, the letters were provided to Sattar, who relayed Abdel Rahman's message to Hamza and Taha. (GX 1093X at 1-5; GX 1094X at 6-7.) Stewart testified that, after the visit, Yousry translated for her Abdel Rahman's response to Sattar's and Taha's letter. (Tr. 8300.) Sattar told Taha that while the details of Abdel Rahman's message were relayed to Taha and Hamza, and the lawyer would meet with the press, the details of the message would not be conveyed publicly. (GX 1094X at 2-3.)
Following the May 2000 visit, Sattar spoke with Yousry, Taha, and Yassir Al-Sirri ("Al-Sirri") about the release of Abdel Rahman's statement. (GX 1101X, 1102X, 1268X, 1103X). During a June 4, 2000 telephone conversation with Taha, Sattar told Taha that the release of Abdel Rahman's statement would not impact Sattar but "it will have an impact on the person would issued the statement." (GX 1101X at 8.) On the next day, June 5, 2000, Sattar spoke with Yousry about issuing a press release with Abdel Rahman's message. During their conversation, Sattar stated that he had spoken with Stewart about the content of the press release and he told Yousry also to speak with Stewart about it. Yousry suggested that the three of them meet to discuss the press release. (GX 1102X at 2-5.) On June 11, 2000, Sattar spoke with Al-Sirri about Abdel Rahman's withdrawal of support for the cease-fire, and about how to time the press release in order to maximize the value of the news coverage. (GX 1268X at 7.)
On June 13, 2000, Stewart and Sattar relayed Abdel Rahman's withdrawal of support for the cease-fire to Reuters reporter Esmat Salaheddin, who was based in Cairo, Egypt. (Tr. 5569-72, 5605-06.) Salaheddin testified at trial as to his conference call with Stewart and the accuracy of his article. (Tr. 5569-75.) In disseminating Abdel Rahman's statement, Stewart told Salaheddin that "Abdel Rahman is withdrawing his support for the cease-fire that currently exists." (Tr. 5574, 5617; GX 524.) Stewart also told Salaheddin that "[prison authorities] may bar me from visiting him because of this announcement." (Tr. 5574; GX 9.) The following day, Reuters and various Middle Eastern newspapers published articles about Abdel Rahman's withdrawal of support for the Islamic Group's cease-fire in Egypt. (GX 9; GX 1115 at 2.)
As part of her case, Stewart entered into evidence a transcript that showed that while discussing with Yousry the fact that there were IG members blaming Sattar in the Arabic media for disseminating Abdel Rahman's statement and calling it a fabrication, Stewart states that she was "risking my whole career" in disseminating Abdel Rahman's statement, and that she was not doing it "lightly." (DX LS-701T at 5-6.)
Stewart's dissemination of Abdel Rahman's withdrawal of support for the cease-fire and its publication in the media produced conflict within the Islamic Group *88 between pro-cease-fire and pro-violence factions, with pro-cease-fire advocates denying that Abdel Rahman had issued the withdrawal. (GX 1111X at 4-22; GX 1114X at 2; GX 1250X at 1-4.) Stewart and Sattar responded by issuing Abdel Rahman's reaffirmation of his withdrawal of support for the cease-fire on June 21, 2000, by relaying it to Salaheddin. (GX 2663; GX 1151X at 1-3; GX 1152X at 1-4; GX 1153X at 1-4; GX 1155 at 1-3.) The statement reaffirmed that everything that was said in the previous statement was correct and that Abdel Rahman said those things. The statement also stated, "... I did not cancel the cease-fire. I do withdraw my support to the initiative. I expressed my opinion and left the matters to my brothers to examine it and study it because they are the ones who live there and they know the circumstances where they live better than I. I also ask them not to repress any other opinion within the Gama'a, even if that is a minority opinion." (GX 2663 (emphasis in original).) The jury could reasonably find that the "other opinion" was a reference to Taha.
3.
On July 13 and 14, 2001, Stewart and Yousry visited Abdel Rahman at FMC Rochester. Prior to this visit, on May 7, 2001, Stewart signed and faxed to the United States Attorney' Office in the Southern District of New York an affirmation in which she agreed to abide by the terms of the SAMs then in effect and made the other representations explained above. (GX 12.)
This visit was also recorded on videotape without the knowledge of Stewart and Yousry. During this visit, at Sattar's request, Stewart and Yousry brought a message to Abdel Rahman from his son, Mohammed Abdel Rahman, which urged Abdel Rahman to continue to support an end to the cease-fire. They also secretly brought to Abdel Rahman messages and correspondence from other persons. (GX 1229X at 2-3; GX 1716X at 62-63; GX 1720X at 14-22.)
During this visit, Stewart and Yousry also told Abdel Rahman that Sattar had been informed that the U.S.S. Cole had been bombed on Abdel Rahman's behalf, and that Sattar was asked to convey to the United States Government that other things would follow if it did not free Abdel Rahman. (GX 1717X at 11-13.) Abdel Rahman said that negotiations should go through a lawyer. (Id. at 12.) While Yousry was informing Abdel Rahman about these things, Stewart actively concealed the conversations between Yousry and Abdel Rahman from the prison guards by, among other things, tapping a water bottle on the table while stating that she was "just doing covering noises." (GX 1717X at 12.)
B.
All of the evidence presented was more than sufficient to establish, beyond a reasonable doubt, that Stewart, Yousry, and Sattar participated in a conspiracy to defraud the United States. From the evidence of the concerted actions of Stewart, Yousry, and Sattar to relay Sattar's, Taha's, and Mohammed Abdel Rahman's messages to and from Abdel Rahman during prison visits, in violation of the SAMs, a rational jury could find the existence of the Count One conspiracy to defraud the United States regarding the SAMs. A rational jury could further infer the existence of the conspiracy from Stewart's and Yousry's concerted efforts to conceal from the prison guards and officials their conversations regarding Taha's and Sattar's messages to Abdel Rahman and Abdel Rahman's responses to them. A rational juror could also infer from the actions and *89 words of each of the defendants that they knowingly participated in the conspiracy.
Stewart argues that there was insufficient evidence to prove the existence of a conspiracy to defraud the Government because Stewart's violations of the SAMs were entirely open and notorious and that this shows that Stewart's actions were designed to "defy, and not to defraud." (Stewart Reply Mem. at 6.) Stewart points in particular to her public dissemination of the press release following the May 2000 prison visit. This argument has no merit. A reasonable jury could certainly find that Stewart gained access to Abdel Rahman by deceit and dishonest means. Without her agreement to abide by the SAMs and the other representations contained in her affirmations, she knew that she would not have been allowed to visit Abdel Rahman. Therefore, a reasonable jury could find that Stewart employed the dishonest means of signing and submitting false affirmations in order to gain access to the prison. Moreover, given the evidence of deliberate attempts to conceal that she was bringing messages into the prison and secretly obtaining responses to take out of the prison, a reasonable juror could find that Stewart was using dishonest means in order to take Abdel Rahman's messages out of prison in violation of the SAMs.
This was not a case of defiance of the SAMs as opposed to the dishonest effort to violate them. As the Court noted in two prior opinions, Stewart had ample opportunities to challenge the SAMs and the attorney affirmations within the legal system, but chose not to do so. Sattar II, 314 F.Supp.2d at 310; Sattar I, 272 F.Supp.2d at 372.
Stewart also argues that there was no conspiracy to defraud because the Government actually recorded the May 2000 and July 2001 prison visits. This argument is also unavailing. The Government was not required to prove that the Government was actually defrauded to establish a Section 371 conspiracy to defraud. See, e.g., Ballistrea, 101 F.3d at 832 (setting forth elements of Section 371 offense and citing United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir.1993), which, in turn, noted that a Section 371 violation "need not involve any detrimental reliance by the government.").
The Court of Appeals for the Second Circuit has frequently noted that the "essence of conspiracy is the agreement and not the commission of the substantive offense." United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001) (citation omitted). For a jury to find a defendant guilty of a conspiracy charge, the Government need not prove that the underlying substantive offense was actually committed. See United States v. Rosengarten, 857 F.2d 76, 78 (2d Cir.1988) (Section 371 conspiracy to defraud "need not involve the violation of a separate statute"). For the reasons explained above, a rational jury could find that the defendants, including Stewart, conspired to use deceitful and dishonest means to obstruct the administration and enforcement of the SAMs. The fact that the conspiracy did not in fact deceive the Government does not undermine the existence of the conspiracy. Further, the fact that prison visits were recorded by the Government does not undermine the evidence that the defendants were in fact conspiring to use deceitful and dishonest means. There is no evidence that Stewart and Yousry were aware that their visits were being recorded. Their actions were calculated to prevent the prison authorities from discovering what Stewart and Yousry were doing during their visits.
In addition, Stewart argues that the Government did not offer evidence sufficient to dispute Stewart's testimony that *90 the purpose of her actions was to provide zealous representation to Abdel Rahman. (Stewart Mem. at 51.) This argument also fails. The jury was entitled to disbelieve the defendant's testimony and use its disbelief to supplement the other evidence against the defendant. See Morrison, 153 F.3d at 50; Stanley, 928 F.2d at 577. The jury could disbelieve that zealous representation included filing false affirmations, hiding from prison guards the delivery of messages to Abdel Rahman, and the dissemination of responses by him that were obtained through dishonesty. Moreover, the Court specifically charged the jury on good faith with respect to Count One, and a rational jury could find, consistent with that charge and all of the evidence, that the Government had proved bad faith. (Tr. 12316-12317.)
The defendants' motions for judgment of acquittal pursuant to Rule 29 on Count One are therefore denied.
III.
Stewart moves for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or an arrest of judgment under Federal Rule of Criminal Procedure 34(a)(1), on Counts Six and Seven of the S1 Indictment, which charged her with two separate violations of 18 U.S.C. § 1001. Rule 34(a)(1) authorizes the Court to arrest judgment if the indictment does not charge an offense. Stewart argues that the Government failed to prove beyond a reasonable doubt that Stewart knowingly and willfully made false statements, as prohibited by Section 1001. Stewart also repeats her argument, previously rejected by the Court prior to trial, that a promise of future performance can never be prosecuted as a false statement.
Counts Six and Seven charged Stewart with having made false statements and having used a false writing and document when she submitted affirmations to the United States Attorney's Office in May 2000 (Count Six) and May 2001 (Count Seven). The specific affirmation at issue in Count Six was the affirmation that Stewart signed on May 16, 2000 and submitted to the United States Attorney's Office on May 26, 2001. (GX 7.) The affirmation at issue in Count Seven is the affirmation Stewart signed on May 7, 2001 and submitted at that time. (GX 12.) In both affirmations, Stewart agreed to abide by the terms of the SAMs applicable to Abdel Rahman, that she "shall only be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters," and that she shall not "use [her] meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman." The May 2001 affirmation included the additional representation that Stewart "will only allow the meetings to be used for legal discussion between Abdel Rahman and [her]." There was more than sufficient evidence for a rational jury to find that Stewart violated Section 1001 as charged in both Counts.
A.
With respect to the May 2000 affirmation at issue in Count Six, Stewart argues that there is no evidence that the statements in the affirmation were false when made on May 16, 2000. The Government responds that the statements were actually "made" when Stewart submitted the affirmation to the United States Attorney's Office on May 26, 2000 after the prison visit on May 19 and 20, 2000. The Government argues that there is more than sufficient evidence that at that time the representations in the affirmation were false because a rational jury could conclude *91 that Stewart did not intend at that time to abide by the SAMs relating to Abdel Rahman, nor abide by her representation that she would not use her meetings with Abdel Rahman to pass his messages to third parties, including the media. Indeed, at that time, Stewart planned on issuing to the media Abdel Rahman's statement withdrawing his support for the cease-fire and had discussed her planned press conference with Abdel Rahman and Yousry during that visit. (See GX 1707X at 40; GX 1710X at 46-47.) Thus, the Government is correct that there was more than sufficient evidence from which a rational jury could conclude that Stewart made a knowingly false statement and used a writing or document containing a false statement, when, on May 26, 2000 she submitted her affirmation to the United States Attorney's Office.
In any event, there was also more than sufficient evidence from which a rational jury could have concluded that Stewart did not intend to comply with the SAMs or her affirmation when she initially signed her name to the document under penalties of perjury on May 16, 2000. Indeed, the jury found Stewart guilty of participating in the Count One conspiracy to defraud the United States in the administration and enforcement of the SAMs for Abdel Rahman. That conspiracy began in June 1997, well before Stewart signed the SAMs affirmation on May 16, 2000.
Thus, evidence supporting Stewart's participation in the Count One conspiracy is relevant in considering her state of mind at the time she executed the SAMs affirmation on May 16, 2000. That evidence included instances in which, long before Stewart signed her affirmation on May 16, 2000, she had previously violated the SAMs by passing messages to Abdel Rahman from third parties during meetings. In March 1999, Stewart and Yousry visited Abdel Rahman at FMC Rochester and passed messages to him relating to the formation of a political party by the IG, and from Taha seeking Abdel Rahman's support for ending the cease-fire. (See GX 2415-6 and 2415-6T; GX 2059 and 2059T.) Also during that March 1999 meeting, Abdel Rahman passed messages back to Sattar and Taha through Yousry and Stewart. (See id.) From this evidence, the jury could reasonably infer that Stewart did not intend to abide by the SAMS when she signed the SAMs affirmation on May 16, 2000.
Stewart's conduct during the May 19-20, 2000 prison visit coming only three days after executing the SAMs affirmation also supports the rational conclusion that she did not intend to abide by the SAMs or the terms of the affirmation on May 16, 2000. There is no evidence to support an inference that Stewart's intent to comply with the SAMs changed between her execution of the affirmation and the visit. Instead, the reasonable inference is that Stewart's conduct during the May 2000 prison visit is an accurate reflection of her state of mind at the time she signed the affirmation on May 16, 2000. Indeed, particularly when viewed in the light of the evidence of her prior conduct of March 1999 and her conduct during the May 2000 visit, the reasonable inference is that when Stewart signed her affirmation on May 16, 2000, she did not intend to abide by the SAMs when she visited Abdel Rahman three days later.
B.
Stewart also argues that the evidence was insufficient to support her conviction on Count Seven regarding the May 2001 affirmation. Stewart argues that the Government offered no evidence that she intended to violate the SAMs when she signed and submitted the May 7, 2001 *92 affirmation. However, a rational jury could conclude beyond a reasonable doubt that, at the time Stewart signed the affirmation on May 7, 2001, she did not intend to abide by the SAMs or the terms of the affirmation.
The May 7, 2001 SAMs affirmation was executed in advance of the July 13-14, 2001 prison visit. Stewart executed this new affirmation following a period of many months during which she had been cut off from Abdel Rahman by the United States because of her release to the media of Abdel Rahman's withdrawal of support for the cease-fire. Thus, Stewart's past non-compliance with the SAMs and her prior false affirmation that she would abide by the SAMs could be used in assessing Stewart's state of mind when she submitted the May 7, 2001 affirmation to the United States Attorney's Office. The fact that Stewart then violated the SAMs again in her next visit to Abdel Rahman on July 13-14, 2001 supports the rational conclusion that she did not intend to abide by the terms of her May 7, 2001 affirmation at the time it was made and submitted to the Government. A rational jury could find beyond a reasonable doubt that the affirmation contained false statements when made.
During the July 13-14, 2001 visit, Stewart once again allowed messages to be passed from third parties to Abdel Rahman. One such message from Sattar included a message from Abdel Rahman's son, Mohammed, asking Abdel Rahman to continue to oppose the IG cease-fire. (See GX 1716X at 62-63.) Furthermore, during this visit, Stewart actively engaged in covering noises shaking a water bottle and using the words "covering noises" to describe her conduct as Yousry reported to Abdel Rahman information he and Stewart had obtained from Sattar: that the bombing of the U.S.S. Cole was intended to coerce the United States to free Abdel Rahman from prison, and that Sattar had been asked to approach the United States Government to tell them that unless the United States released Abdel Rahman, other attacks would follow. (See 1717X at 11-13.) Thus, the evidence of Stewart's state of mind demonstrates that she knowingly and willfully made false statements to the Government in May 2001 when she represented that she would abide by the SAMs and the terms of her affirmation.
C.
Stewart also argues that broken promises of future intent cannot be the basis for a violation of 18 U.S.C. § 1001. She thus argues that the evidence was insufficient to support the convictions on Count Six and Seven and that those counts must be dismissed pursuant to Fed. R. Cr. P. 34(a)(1) for failure to charge an offense.
This Court previously rejected the identical argument and held that "a knowingly false promise, which is a knowingly false statement of present intent, can be a false statement within the meaning of 18 U.S.C. § 1001." Sattar I, 272 F.Supp.2d at 377-78. The Court specifically relied on the decision in United States v. Shah 44 F.3d 285 (5th Cir.1995), which the Court found to be consistent with United States v. Uram, 148 F.2d 187 (2d Cir.1945), and United States v. Mandanici, 729 F.2d 914 (2d Cir.1984).
Stewart argues that the decision in Shah was wrong and should not be followed. But Stewart has presented no reason that the Court should reconsider its prior decision. For all of the reasons previously explained, a knowingly false statement of present intent can be a false statement within the meaning of 18 U.S.C. § 1001.
*93 The jury was carefully instructed that, in order to find a violation of the statute, the Government was required to prove that the statements were untrue when made and that the defendant acted knowingly and willfully, and not simply that the defendant broke her promise recited in the affirmations. (Tr. 12363-64.)
The charges in Counts Six and Seven stated offenses. A rational jury could find that those charges were proved beyond a reasonable doubt. Therefore, the motions to enter judgment of acquittal or to arrest judgment on Counts Six and Seven are denied.
IV.
Stewart moves for a judgment of acquittal on Counts Four and Five, and her motion could also be read to seek a new trial pursuant to Rule 33 on those Counts.
The elements of Count Five, the substantive offense of providing material support or resources to the Count Two conspiracy to kill, or concealing the nature, location, or source of such material support or resources in violation of 18 U.S.C. § 2339A, are: (1) that the Count Two conspiracy existed; (2) that within the United States, the defendant provided material support or resources, or concealed or disguised the nature, location, or source of material support or resources; and (3) that the defendant did so knowing or intending that it was to be used in preparation for, or in carrying out, the Count Two conspiracy. (See Tr. 12336-38.) Count Two charged that Sattar, Abdel Rahman, Taha, and others conspired within the United States, from about September 1999 through about April 2002, to murder persons outside the United States in violation of 18 U.S.C. § 956.
The elements of Count Four, conspiracy to provide material support or resources or conceal the nature, location, or source of material support or resources in violation of 18 U.S.C. § 371, are: (1) that two or more persons entered into the unlawful agreement starting in or about September 1999; (2) that the defendant knowingly and willfully became a member of the conspiracy; (3) that one of the members of the conspiracy knowingly committed at least one of the overt acts or one which is substantially the same as one explicitly charged, in the Southern District of New York; and (4) that the overt act was committed to further some objective of the conspiracy. (See Tr. 12344-45.)
Consistent with its interpretation of 18 U.S.C. § 2339A explained in Sattar II, 314 F.Supp.2d at 298, the Court instructed the jury that the "material support or resources" at issue here was "personnel" in the form of Abdel Rahman's participation, as a co-conspirator, in the Count Two conspiracy to kill. (See Tr. 12336-38 ("[T]he term `personnel' refers to individuals jointly engaged in a common undertaking, namely, persons preparing for, or carrying out, the conspiracy to murder ... persons outside the United States that is charged in Count Two.")). The Court further explained the concept of "personnel":
Here, the government has the burden of proving beyond a reasonable doubt that the defendant you are considering provided material support or resources by making Abdel Rahman available as a co-conspirator that is, as personnel to the conspiracy charged in Count Two, or that the defendant you are considering concealed the nature, location, or source of Abdel Rahman as personnel for that conspiracy.
(Tr. 12337.)
Stewart contends that there was insufficient evidence of her knowledge of the Count Two conspiracy or her specific intent to provide material support in the *94 form of "personnel" to that conspiracy. She also argues that, at most, she disseminated the constitutionally protected speech of Sheikh Abdel Rahman, and that speech cannot constitute "personnel."
A.
As an initial matter, there was sufficient evidence from which a rational jury could have concluded that the Government had proved beyond a reasonable doubt the existence of the conspiracy charged in Count Two. Stewart disputes her knowledge of the Count Two conspiracy and her knowledge and intent in providing material support and conspiring to do so, but has not attempted to develop any argument concerning the sufficiency of the proof of the existence of the conspiracy as charged in Count Two, and there was sufficient evidence of its existence.
For example, in September 1999, during a prison visit attended by Yousry, Abdel Rahman dictated points that a reasonable jury could have determined was a directive supporting Taha's militant position, and in particular, Abdel Rahman's permission to end the cease-fire. Sattar subsequently relayed that message to Taha which included statements that: "To those against whom war is made, permission is given to fight...." (GX 1029X at 6.) Abdel Rahman explained the Initiative, subsequently referred to by Stewart as the cease-fire, as "the suspension of military operations." (Id.) After recounting the existence of the Initiative, Abdel Rahman recounted the alleged killing of four Islamic Group members, and concluded: "I therefore demand that my brothers, the sons of the Islamic Group do a comprehensive review of the Initiative and its results. I also demand that they consider themselves absolved from it." (GX 1029X at 6-7; see also GX 2204AT). While this message was conveyed by Sattar to Taha, it was not publicly disclosed because, as noted below, attorney Ramsey Clark refused to issue it publicly. Abdel Rahman's withdrawal of support for the cease-fire was later issued publicly by Stewart in June, 2000.
The evidence also showed that in the fall of 2000, Sattar and Taha wrote a fatwah, in Sheikh Abdel Rahman's name, "to mandate the killing the Jews wherever they are ... and wherever they are found." (GX 1182X, at 15; see GX 1179X-1183X); caused the fatwah to be distributed worldwide (see GX 1182X); and agreed to tell Atia, a militant leader of the IG, to "go by it." (GX 1188X at 5). The evidence was sufficient, as the jury found, to establish the existence of the Count Two conspiracy.
A rational jury could also find that Stewart provided the material support and resources to the Count Two conspiracy, and conspired with Yousry to do so, by making Abdel Rahman available to the Count Two conspiracy as a co-conspirator, and that she concealed the source of the material support, in particular by covering up the true nature of the conversations during the May 2000 prison visit. Prior to the May 2000 prison visit, the jury could reasonably have found that Sattar and Taha were unsuccessful in obtaining Abdel Rahman's public withdrawal from the cease-fire. In September 1999 Ramsey Clark refused to release the statement that Abdel Rahman had given to Yousry. (See GX 1030X at 1-3; GX 2312-40T). Similarly, in February 2000 attorney Abdeen Jabarra refused to take a message from Abdel Rahman to the IG out of prison. (See GX 1701X at 33-37; GX 1062X at 4.) As detailed above, the jury could have concluded that Stewart made Abdel Rahman available as a co-conspirator by bringing out of prison his withdrawal of support for the cease-fire, and by concealing from *95 the prison authorities the fact that she was doing so.
Stewart brought Taha's and Sattar's message into the prison, and made covering noises while Yousry read the letter to Abdel Rahman, and Stewart and Yousry thereafter brought Abdel Rahman's withdrawal from the cease-fire out of the prison. Sattar then conveyed that message to Hamza and Taha. (GX 1093X, GX 1094X.) On June 13, 2000, Stewart relayed Abdel Rahman's withdrawal of support for the cease-fire to Esmat Salaheddin to be distributed by Reuters. (Tr. 5574-79.) Thereafter, on June 21, 2000, after becoming aware that pro-cease-fire advocates were denying that the prior statement had come from Abdel Rahman, Stewart issued a reaffirmation of Abdel Rahman's withdrawal of support for the cease-fire. (See GX 1111X at 4-22; GX 1114X at 2; GX 1250X at 1-4.)
Because Abdel Rahman was in prison and subject to very restrictive conditions under the SAMs, he was unavailable to the Count Two conspirators particularly Sattar and Taha without the active participation of Stewart and Yousry. A reasonable jury could find that the actions of Stewart and Yousry made Abdel Rahman available to provide leadership and direction as a conspirator in the Count Two conspiracy, and that they thereby provided material support, and conspired to provide and conceal material support, to the Count Two conspiracy.
A reasonable jury could conclude that the evidence established Stewart's knowledge of the Count Two conspiracy and her knowledge and intent to make Abdel Rahman available as a co-conspirator, thereby establishing the specific intent required by Section 2339A. Sattar II, 314 F.Supp.2d at 296. The context of the letter from Sattar and Taha that Stewart brought into the prison, together with the context of the message that she brought out and publicly disseminated, support her knowledge that she was making Abdel Rahman available to the Count Two conspiracy. On May 19, 2000, as described above, Stewart secretly brought into the prison a letter from Sattar that included a message from Taha. Sattar's description of the message from Taha, who was referred to as Abu Yasir, stated that Taha had "massive weight among many brothers," and "that if the regime worried about anyone, it is [Taha]." (GX 1707X at 35.) Sattar's letter indicated that Taha and "many other Brothers" needed Abdel Rahman to have a more forceful position with respect to the cease-fire. (GX 1707X at 36.) Previously, during the same visit, Yousry had read to Abdel Rahman a statement by Taha who was described as "one of the Islamic Group leadership members in Egypt," a statement which the jury could have found supported revolution against the Egyptian regime. (GX 1706X at 54-55.) The following day, as discussed above, Abdel Rahman dictated responses which included his position on the cease-fire and his support for Taha to be the head of IG, and if not, to at least have the person in charge consult with him. (GX 1710X at 49; GX 1711X at 30-33.) Stewart secretly brought this message out of prison, and it was delivered to Sattar and communicated to Taha and Hamza, and was the basis for the subsequent press release.
The jury could also have found that Stewart's knowledge and intent were supported by the fact that Stewart engaged in covering noises and actions during the parts of the May 19-20, 2000 prison visit that related to Taha and the cease-fire. From this deliberate conduct, the jury could have concluded that Stewart was deliberately attempting to conceal from the prison authorities her actions in bringing *96 in the statements and getting Abdel Rahman's response, and thus her provision of support for the Count Two conspiracy.
As described above, on June 13, 2000, Stewart issued Abdel Rahman's statement "withdrawing his support for the cease-fire that currently exists." The statement that Stewart released went on to state Abdel Rahman's opposition to the cease-fire:
Sheikh Omar had concluded that the unilateral truce observed by the Islamic Group since the Luxor slaughter of 58 tourists and four Egyptians had brought no advantage to Egypt's biggest militant group.... There is absolutely nothing moving forward.... The people who launch the cease-fire have good faith but the [Egyptian] government has shown no good faith. He wants people not to place hope in this process because nothing is moving forward.
(GX 524, Tr. 5573-74.) The plain meaning of a "cease-fire" is a suspension of active hostilities a truce. A rational jury could conclude, particularly with the full context of the press release by Stewart and the circumstances under which Stewart obtained the statement, that Stewart knew that this statement was support for those within the IG who sought to end the cease-fire and to resume the killings that had occurred before. Indeed, the statement itself placed the cease-fire in the context of a unilateral truce observed by the IG after the killings at Luxor. Furthermore, Stewart knew that the statement was obtained as a direct result of the request by Taha, a pro-violence leader of the IG, relayed by Sattar.[1]
A rational jury could have found that Stewart was aware of the significance of conveying Abdel Rahman's withdrawal of support for the cease-fire because, based on trial evidence from the trial of Abdel Rahman of which she was aware and which was introduced at this trial, she was aware of Abdel Rahman's role and influential position within the IG (see, e.g., GX 208 T at 2), the fact that he was consulted about acts of violence (see, e.g., GX 209T), and that he preached violence (see, e.g., GX 220T-04T, 211T.)[2] A rational jury could *97 have inferred that, by relaying a statement withdrawing support for a cessation of violence by an influential, pro-violence leader of a terrorist group, Stewart knew that she was providing support to those within the IG who sought to return to violence who the jury could have found were participants in the Count Two conspiracy, particularly Taha.
Stewart's knowledge and intent is also supported by her actions in issuing a reaffirmation of Abdel Rahman's withdrawal of support for the cease-fire on June 21, 2000. (GX 2663.) As explained above, she did so only after becoming aware of a conflict between the pro-cease-fire factions and the pro-violence factions, and indeed after there were allegations that the statement did not come from Abdel Rahman. Moreover, Stewart was aware from press reports that the first press release was being used by the pro-violence faction within the IG, particularly those led by Taha, to support its position. While the press reports were not admitted for the truth of the contents of the articles, they did put Stewart on notice of what the consequences were for a reaffirmation of Abdel Rahman's withdrawal of his support for the cease-fire.
More particularly, at the time of the issuance of the reaffirmation, Stewart had reason to believe that: (1) based on Stewart's first announcement of Abdel Rahman's withdrawal of support for the cease-fire, Taha stated that IG "leaders might end the unilateral truce they announced two years ago to stop operations" (GX 2312-45BT); (2) Abdel Rahman's withdrawal of support for the cease-fire was viewed as supportive of the pro-violence faction of IG and as "favorable to Taha," who was described as a "[prominent] leader" of the "hard-line faction within IG that rejects the cease-fire" (GX 2312-49T); (3) Taha said that the withdrawal of support for the cease-fire by Abdel Rahman, IG's "spiritual leader," could cause IG to "end" "the truce that it had announced unilaterally two years ago" (GX 2312-45AT); and (4) the pro-cease-fire faction in IG reacted vehemently to the withdrawal of support for the cease-fire (see GX 2312-47AT, 2312-50T, 2312-55T, 2312-57T).[3]
Indeed, after issuing the reaffirmation despite knowing all this, Stewart told Abdel Rahman that she was "very pleased and that she would like to do more...." (GX 1731T at 33.) Thus, the fact that Stewart again disseminated worldwide Abdel Rahman's withdrawal of support for the cease-fire, even after learning of the turmoil within IG that her first announcement caused, and the support that it gave to the pro-violence faction of IG, would also support a rational jury's conclusion that Stewart acted with the requisite knowledge and intent.
Stewart emphasizes in her motion that Abdel Rahman's statements did not cancel the cease-fire, but only withdrew his support for it. But the jury could have found that the statements provided leadership to the pro-violence faction of the IG including Sattar and Taha, members of the *98 Count Two conspiracy that had sought to enlist Abdel Rahman's support in ending the cease-fire since at least September 1999.
A rational jury could also have found that Stewart intended that the material support she provided and concealed would be used to carry out and prepare for the conspiracy to kill based on Stewart's own statements and motivations, viewed in combination with her actions, as described above, in twice issuing Abdel Rahman's withdrawal of support for the cease-fire. During the May 2000 prison visit, after being told by Yousry that the Abu Sayyaf terrorist group in the Philippines took hostages and demanded Abdel Rahman's freedom in exchange for the release of hostages, Stewart said "Good for them...." (See GX 1706X at 27.) Stewart went on to explain, "I think things like that in the Philippines, even though it may be futile and not be successful, they still keep your name ... as someone that eh, the Mujahideen eh, consider their own hero. It is very, very crucial." (1706X at 32.)
Similarly, in a recorded call on October 2000, after being told that a fatwah to kill Jewish people was issued and attributed to Abdel Rahman which was an overt act charged in the Count Two conspiracy Stewart reacted ultimately by stating that it was her position that "yes, he's going to get his message out no matter what." (GX 1193X at 13.) Yousry told Stewart that Abdel Rahman did not want his lawyers to disavow the fatwah, and Stewart also stated that the fatwah should not be disavowed by Abdel Rahman's lawyers. (See GX 1193X at 3, 12.) A rational jury could use this evidence to find a motivation for Stewart's actions as charged in Counts Four and Five of the S1 Indictment.[4]
Stewart also argues that the evidence of her specific intent was insufficient because the Government did not prove the specific identity of the victims of the conspiracy to kill in violation of 18 U.S.C. § 956 or in which country or countries the victims would be killed. Stewart's argument is incorrect. This Court has previously held that the Government was not required to allege or prove the identity of contemplated victims or the specific location outside the United States where the contemplated killing is to occur for purposes of the Section 956 conspiracy. See Sattar II, 314 F.Supp.2d at 303-05. Similarly, it is not necessary for the Government to prove that a defendant who knowingly provides or conspires to provide material support to such a conspiracy must know the identity of the victims of the conspiracy or their location. Cf. United States v. Salameh, 152 F.3d 88, 154 n. 16 (2d Cir.1998) (noting that to prove a bombing conspiracy under a statute referring to crimes against "any" building, vehicle or property, the Government was not required to prove that defendant "agreed to bomb a `populated structure in an urban area,'" because "[n]one of the four criminal objectives charged in the indictment *99 required the government to prove that the defendant was aware of the specific target of the bombing"); United States v. Romero, 897 F.2d 47, 50-51 (2d Cir.1990) (affirming conviction for conspiring to kill federal officer where defendants conspired to kill "anyone posing a threat to them or [their narcotics] business").
Stewart incorporates by reference arguments made by her counsel at the conclusion of the Government's case to the effect that Count Two was defective because the contemplated killings could occur in Jerusalem or Palestine, and neither of these places may be a "foreign country." (Tr. at 7136.) This argument is not a basis for a judgment of acquittal or new trial. The actual text of Section 956(a) requires only a conspiracy to commit murder "outside the United States," not "in a foreign country." All of the various possibilities suggested by Stewart's counsel as well as by the evidence in the case were outside the United States.
B.
Stewart argues that the evidence was insufficient to prove that she provided "material support" to the Count Two conspiracy because the only "material support" the Government relied upon was Abdel Rahman's protected speech that cannot serve as the basis for a prosecution under Section 2339A. Stewart argues that "it is not `personnel,' in the form of Sheikh Omar Abdel Rahman ... that Ms. Stewart `made available' to [the Count Two conspiracy]; rather it is Sheikh Rahman's words his speech that Ms. Stewart allegedly `made available' to the alleged conspiracy." (Stewart Mem. at 5 (emphasis in original)).
This argument has already largely been rejected in this Court's prior opinion denying the motion to dismiss Counts Four and Five in the S1 Indictment, and by the jury verdict which determined guilt based on the definition of personnel and the scienter standard explained in this Court's prior opinion. See Sattar II, 314 F.Supp.2d at 296-303.
In the prior opinion, this Court rejected the argument that Section 2339A could not be applied to the alleged provision of Abdel Rahman as a co-conspirator in the conspiracy to kill, and that the statute was unconstitutional as applied to such allegations. The substance of the allegations in the S1 Indictment were those proved at trial that Stewart relayed information and messages to and from Abdel Rahman, that she covered up the conversations with Abdel Rahman, and that she issued Abdel Rahman's withdrawal of support for the cease-fire. The Court found that the provision of Abdel Rahman in this way, even though it was by conveying his words, was consistent with the meaning of Section 2339A: "[T]here is no basis to limit the meaning of `provides ... personnel' to the physical transfer of personnel, and not to include making personnel available which is in accord with the ordinary and natural use of the term `provide,' and which is consistent with its placement in the statute and the purpose of proscribing the provision of resources used for a prohibited purpose." Sattar II, 314 F.Supp.2d at 297.
Thus, the Court previously rejected the argument that Stewart could not be convicted for making Abdel Rahman available through his words, as opposed to physically in person, to participate in the Count Two conspiracy as a co-conspirator. Id. at 298. A reasonable jury could find that Abdel Rahman was a participant in the Court Two conspiracy to kill, and that the methods of his participation occurred by his words, statements, directives, and leadership. Abdel Rahman's participation in the conspiracy was not merely a one-way flow of statements; Stewart brought information *100 and requests from Sattar and Taha to Abdel Rahman, allowing the imprisoned leader of the IG to continue to direct his followers. Notably, Stewart knew from her March 1999 visit that Abdel Rahman instructed his followers from prison that "[n]o new charter, and nothing should happen or be done without consulting me, or informing me." (GX 1007X at 5.) As noted above, a reasonable jury could have found that Abdel Rahman provided the leadership sought by Sattar and Taha.
When the Court previously rejected Stewart's challenge to the "provision" of Abdel Rahman as "personnel," the Court explicitly noted that the constitutional concerns raised by the use of the term "personnel" in 18 U.S.C. § 2339B were not present in this case. See id. at 296. Section 2339B makes it unlawful to knowingly provide material support or resources to a designated foreign terrorist organization. "Material support or resources" is defined in 18 U.S.C. § 2339A(b)(1) which also applies to Section 2339A and includes "personnel." This Court had previously found that the "provision" of "personnel" was unconstitutionally vague as applied to the allegations in the original indictment, which charged that Stewart had violated 18 U.S.C. § 2339B by providing personnel including herself to a designated foreign terrorist organization. Sattar I, 272 F.Supp.2d at 358-60. See also Boim v. Quranic Literacy Inst. and Holy Land Fnd. for Relief and Dev., 291 F.3d 1000, 1021-24 (7th Cir.2002); Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir.2000). Stewart relies on those cases pertaining to Section 2339B here in her current motion.[5] Stewart Mem. at 14-17. But this Court previously rejected those concerns as applied to the allegations of the provision by Stewart of Abdel Rahman as a co-conspirator in the Count Two conspiracy in violation of Section 2339A. As this Court explained:
The First Amendment concerns raised by the use of "personnel" in § 2339B, as applied to persons who provided themselves as "personnel" to an organization, are simply not present in this case. Section 2339A is being applied to persons who allegedly provided other personnel "knowing and intending that [it is] to be used in preparation for, or in carrying out" a violation of specific statutes, in this case a conspiracy to kill or kidnap persons in a foreign country. The allegations in this case do not concern the scope of membership in an organization or the permissible extent of advocacy.
Sattar II, 314 F.Supp.2d at 301. There is no basis to reconsider the Court's prior *101 ruling.[6]
Additionally, the jury found that Stewart knowingly or intentionally made Abdel Rahman available to participate in the Court Two conspiracy as a co-conspirator, as opposed to merely making Abdel Rahman's speech available. The jury was instructed that the "personnel" that Stewart allegedly provided and concealed, and conspired to provide and conceal, consisted of Abdel Rahman being made available as a co-conspirator. (See Tr. 12336-38.) The jury also found that Stewart acted with the requisite "high scienter" that the Court relied upon in its previous decision as curative of any alleged vagueness problems with Stewart's prosecution for this conduct. (See Tr. 12337-38 (jury instruction on knowledge or intent element).) Thus, the jury's verdicts on Counts Four and Five represent a finding that Stewart made Abdel Rahman available as a co-conspirator in the Count Two conspiracy by conveying his statements from prison.
The fact that Abdel Rahman participated in the conspiracy by his words does not make his participation constitutionally protected. The First Amendment lends no protection to participation in a conspiracy, even if such participation is through speech. As Chief Judge Mukasey explained, "[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself.... The gist of the crime of conspiracy is agreement to violate the law.... Thus, it is both possible and permissible to charge that criminal statutes were violated entirely by means of speech." United States v. Rahman, S3 93 Cr. 181, 1994 WL 388927, at *1-2 (S.D.N.Y. July 22, 1994) (internal citation omitted). Further, as the Court of Appeals explained in affirming Abdel Rahman's conspiracy conviction:
Numerous crimes under the federal criminal code are, or can be, committed by speech alone.... Various [statutes] criminalize conspiracies of specified objectives.... All of these offenses are characteristically committed through speech. Notwithstanding that political speech and religious exercise are among the activities most jealously guarded by the First Amendment, one is not immunized from prosecution for such speech-based offenses merely because one commits them through the medium of political speech or religious preaching. Of course, courts must be vigilant to insure that prosecutions are not improperly based on the mere expression of unpopular ideas. But if the evidence shows that the speeches crossed the line into criminal solicitation, procurement of criminal activity, or conspiracy to violate the laws, the prosecution is permissible.
United States v. Rahman, 189 F.3d 88, 117 (2d Cir.1999). See also United States v. Rowlee II, 899 F.2d 1275, 1278 (2d Cir.1990) ("It rarely has been suggested that the constitutional freedom for speech ... extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.") (internal citation and quotation marks omitted).
Stewart argues that the words of Abdel Rahman that she conveyed did not contain any directive or leadership or provide any function to the conspiracy, but merely expressed Abdel Rahman's "opinion" regarding the cease-fire. This argument is without merit. As noted above, the evidence would support a reasonable jury's finding that Abdel Rahman provided leadership *102 supporting Taha's militant position, and that his statements withdrawing support for the cease-fire were in furtherance of the conspiracy to kill. Furthermore, the jury could have also found that Abdel Rahman's words provided direction and leadership in other ways, including urging that Taha be given his "natural right as the head of the group." (GX 1710X at 53.) Much like in Abdel Rahman's original conviction, the evidence showed that his words "were not simply the expression of ideas" but instead "they constituted the crime of conspiracy." Rahman, 189 F.3d at 117.
Moreover, even if Abdel Rahman's words were protected speech, it is not his words but his agreement that is criminalized in the Count Two conspiracy. In United States ex rel. Epton v. Nenna, 446 F.2d 363 (2d Cir.1971), the Court of Appeals rejected the argument that the defendant's "conviction for conspiracy to riot violated his rights under the first amendment because the overt acts alleged in the indictment were all constitutionally protected speech." Id. at 366. The Court of Appeals disagreed with the premise of the defendant's argument and concluded that, in fact, some of the overt acts were actually unprotected. Id. at 367. Additionally, however, the Court reasoned that, when a defendant is convicted of conspiracy to commit an unlawful act, "it is not the `speech' that is made criminal, but rather the agreement, and whether the overt act is constitutionally protected speech would be irrelevant." Id. at 368.
Under Epton, it is plain that there is no constitutional defect in the fact that Abdel Rahman's participation in the Count Two conspiracy was, in part, through his words provided by Stewart. The jury could reasonably have found his agreement and support for the Count Two conspiracy, and that the words conveyed by Stewart furthered that conspiracy. While the Government points out that under Epton, all overt acts in furtherance of a conspiracy can be constitutionally protected acts, it is not necessary to reach that issue here. There were numerous acts in furtherance of the Count Two conspiracy that were not the words of Abdel Rahman.
Stewart also relies on Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam), and its progeny for the proposition that Abdel Rahman's words were protected by First Amendment.[7]Brandenburg reversed a conviction under the Ohio Criminal Syndicalism Act, which purported to punish mere advocacy because "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 447. Brandenburg and its progeny are not applicable here, where Abdel Rahman was found to have participated in the Count Two conspiracy to murder, rather than having merely engaged in advocacy. Brandenburg analysis does not apply to unlawful speech-acts such as conspiracy or aiding and abetting. United States v. Bell, 414 F.3d 474, 482 n. 8 (3d Cir.2005). Moreover, even if Abdel Rahman's speech were *103 constitutionally protected under the Brandenburg standard, this would not help Stewart because, as explained above, overt acts in furtherance of a conspiracy can be constitutionally protected speech. Epton, 446 F.2d at 368.
The jury was also carefully instructed in this case on the limited use it could make of statements that could be construed as advocacy of violence. See Tr. at 12319-12321. The instruction was based on the instruction Chief Judge Mukasey gave in the Rahman case, which was noted with approval by the Second Circuit Court of Appeals. Rahman, 189 F.3d at 118.
Thus, there is no constitutional impediment to finding that Abdel Rahman participated in the Count Two conspiracy through his words and that Stewart provided him, and conspired to provide him, as a conspirator in the Count Two conspiracy. The motion for judgment of acquittal or new trial on Counts Four and Five is denied.
V.
Stewart argues that the SAMs and the charges resulting from them are unconstitutional as applied. See Stewart Mem. at 63-66. The Court has previously rejected these arguments, and there is no basis to revisit those rulings. See Sattar II, 314 F.Supp.2d at 308-310; Sattar I, 272 F.Supp.2d at 363.
VI.
Stewart renews her argument that she has been selectively prosecuted, arguing in particular that she has been prosecuted while Ramsey Clark was not. Relying on United States v. Fares, 978 F.2d 52, 59 (2d Cir.1992), the Court has previously denied a nearly identical motion. See Order dated September 1, 2004. There is no basis to reconsider that ruling. Given the seriousness and extent of the criminal acts found by the jury against Stewart compared with the evidence relating to Clark, Stewart has failed to make a prima facie showing that she is similarly situated to Clark and that she has been singled out for prosecution. She has also failed to make any showing that she has been singled out because of bad faith or because of her political views. Stewart has also failed to make the showing necessary for discovery or an evidentiary hearing. See also Sattar II, 314 F.Supp.2d at 311-14 (denying vindictive prosecution claim); Order dated September 1, 2004 (denying selective prosecution claim).
VII.
Stewart moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the grounds that she was prejudiced by the admission of unfairly prejudicial evidence, which she argues was mainly not admissible against her but only against her co-defendants. She argues that the Court should have granted her previous severance motions pursuant to Rule 14 of the Federal Rules of Criminal Procedure, based on prejudicial spillover.
The Court previously set out the standards for severance under Rule 14 of the Federal Rules of Criminal Procedure and denied such motions both before and during trial. See Sattar II, 314 F.Supp.2d at 317; Sattar I, 272 F.Supp.2d at 380-81. There is no basis to reconsider those rulings and grant a new trial. As the Court has previously explained, much of the evidence about which Stewart complains, and which she claims should have justified a severance, would have been admissible at a trial of Stewart alone because it supported the existence of the Count Two conspiracy, which the Government was required to prove as an element of the charges against Stewart in Counts Four and Five. To the extent Stewart is complaining about the *104 admission of evidence that she claims was unfairly prejudicial, the Court made the careful balancing analysis throughout the trial under Federal Rule of Evidence 403, excluding evidence where the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
Moreover, the Court gave careful limiting instructions with respect to the consideration of evidence, limiting the jury's consideration of evidence where appropriate to specific defendants or for specific purposes. Despite the number of limiting instructions in this case, Stewart does not point to the inaccuracy of any such limiting instruction. Jurors are presumed to follow such instructions, and there is no basis to believe that they did not do so here. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987); Salameh, 152 F.3d at 116-17.
In addition, to the limiting instructions that were given when exhibits were introduced, repeated reference was made throughout the trial to such limiting instructions, including during the Government's cross-examination of certain witnesses. (See, e.g., Tr. at 9732-34, XXXXX-XXX.) Furthermore, before any exhibit was sent to the jury during deliberations, the Court included any limiting instructions relating to the exhibit in the note sent to the jury with the exhibit. Finally, the Court gave careful instructions to the jury in its final charge, including instructions that the jury was required to follow any limiting instructions (Tr. 12276), that the jury was required to make a separate determination of each defendant's guilt (Tr. 12280), and that the verdict as to any defendant on any count should not control the decision as to any other defendant or any other count. (Tr. 12300-01).
CONCLUSION
This opinion has not attempted to summarize all of the evidence at the trial, but has concentrated on the specific issues raised in the motions. There was sufficient evidence at the conclusion of the Government's case, and again at the conclusion of all of the evidence, for a reasonable jury to find each of the defendants guilty beyond a reasonable doubt on each of the counts in which each was charged. Thus, the Rule 29 motions are denied.
The Court has considered all of the arguments. To the extent not specifically addressed herein, the arguments are either moot or without merit.
For the reasons stated above, all of the pending motions are denied.
SO ORDERED.
NOTES
[1] In her Memorandum, Stewart claims that there was no evidence that she knew or had any contact or connection with Taha. Stewart Mem. at 38. However, Stewart brought a letter into the prison containing a statement explicitly attributed to Taha, "one of the Islamic Group leadership members in Egypt," that the jury could have found supported revolution in Egypt. (GX 1706X at 55.) The statement calling for a more forceful position on the cease-fire was attributed to Abu Yasir, rather than Taha, but the letter itself indicates his position in the IG that he had massive weight among many Brothers and the Egyptian regime worried about him. (GX 1707X at 35.) Abu Yasir was another name for Taha, and the jury could reasonably find that Stewart knew these were the same person. Stewart had the translation of a newspaper article in her office that discussed "Refai Taha (Abu Yasser), member of the `Islamic Group' Shura Council." (GX 2671.) After the issuance of the first press release, and before the issuance of the second press release, one of the articles marked as approved by Stewart contained statements attributed to Taha, and the article noted: "The Egyptian authorities regard Taha, alias Abu Yasir, as the Group's military official." (GX 2312-45BT.)
[2] Stewart also testified at length in the course of her case regarding her knowledge of Abdel Rahman, admitting that she knew that Abdel Rahman advocated violence (see Tr. 7471), was a prominent and high-ranking leader in a fundamentalist movement as early as the 1970s (see Tr. 7472), was a person to whom his followers wrote to get his interpretation of Islamic law (see Tr. 7721), and was a person of great influence within IG even after being sentenced and cut off from contact with the IG (see Tr. 8129-30). Stewart also testified that, at the time she issued the June 2000 press release, she knew that the IG had engaged in acts of violence against tourists in the past as a means of attacking Egypt's government and economy. (See Tr. 8349-50.) Finally, Stewart understood that the Luxor massacre was carried out in Abdel Rahman's name, and that leaflets were left on the scene saying the massacre was inspired by Abdel Rahman in an effort to secure his release. (See Tr. 8359.)
[3] Each of these newspaper articles GX 2312-45AT, 2312-45BT, 2312-47AT, 2312-49T, 2312-50T, 2312-55T, 2312-57T were marked as having been approved for reading to Abdel Rahman by Stewart, from which the jury could conclude that Stewart was familiar with their contents. Indeed, Stewart testified that Yousry told her about the reactions to her first press release as reported in the media and she reviewed newspaper articles. (See Tr. 7817-18.)
[4] Stewart relies on numerous cases that stand for the proposition that "absent evidence of purposeful behavior, mere presence at the scene of a crime, even when coupled with knowledge that a crime is being committed, is insufficient to establish membership in a conspiracy; and mere association with conspirators is similarly insufficient." United States v. Martino, 759 F.2d 998, 1002 (2d Cir.1985). See Stewart Mem. at 38, 42-49; Stewart Reply Mem. at n. 27. In this case, however, Stewart did engage in knowing, purposeful activity. With knowledge of the contents of the letter she was to bring into the prison, she secretly brought it in, made covering noises while it was read, secretly brought out a response and released a statement directly to Esmat Salaheddin containing Abdel Rahman's withdrawal of support for the cease-fire. The jury could rationally have found the requisite purposeful activity.
[5] Stewart also relies on United States v. Khan, 309 F. Supp. 2d 789 (E.D.Va.2004) to argue that the provision of Abdel Rahman could not be considered to be the provision of "personnel" as for purposes of Section 2339A. In Khan, the Court found various defendants guilty of violating Section 2339A for providing "personnel" knowing or intending that they are to be used in preparation for, or in carrying out, a violation of 18 U.S.C. § 956. The Court in Khan rejected the argument that the use of "personnel" in Section 2339A as applied to the facts of that case violated the First Amendment, and found that the statute did not implicate First Amendment concerns at all. Id. at 822. The Court noted that the alleged conspiracy "was not to provide `personnel' who would speak on behalf of [the organization], or provide moral support, or simply receive training, but to provide personnel who, after receiving training, would serve that organization as soldiers, recruiters, and procurers of supplies." Id. In this case, Abdel Rahman was sought as a co-conspirator to do more than speak on behalf of the organization. A reasonable jury could have found that Stewart provided and conspired to provide Abdel Rahman's to the Count Two conspiracy for his leadership as a co-conspirator.
[6] Stewart also renews, in the alternative, her overbreadth challenge to Section 2339A. Stewart Mem. at 32 n. 21. This argument was also previously rejected in the same opinion, and there is no basis to reconsider the decision. Sattar II, 314 F.Supp.2d at 304-05.
[7] The Government argues incorrectly that Brandenburg and its progeny cannot apply because those cases involved content-based statutes directed at advocacy, as opposed to generally applicable, content-neutral statutes aimed at conduct, such as Section 2339A. See Govt. Mem. at 63. However, Brandenburg's progeny have applied its standard to content-neutral statutes. See, e.g., Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303 (1973) (per curiam) (applying Brandenburg standard to a content-neutral disorderly conduct statute used to punish mere spoken words). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2475432/ | 453 F. Supp. 2d 633 (2006)
The PRESBYTERIAN CHURCH OF SUDAN, Rev. Matthew Mathian Deang, Rev. James Koung Ninrew, Nuer Community Development Services in U.S.A., Fatuma Nyawang Garbang, Nyot Tot Rieth, individually and on behalf on the Estate of her husband Joseph Thiet Makuac, Stephen Hoth, Stephen Kuina, Chief Tunguar Kueigwong Rat, Luka Ayuol Yol, Thomas Malual Kap, Puok Bol Mut, Chief Patai Tut, Chief Peter Ring Patai, Chief Gatluak Chiek Jang, Yien Nyinar Riek, and Moris Bol Majok, and on behalf of all others similarly situated, Plaintiffs,
v.
TALISMAN ENERGY, INC., and Republic of the Sudan, Defendants.
No. 01 Civ.9882 DLC.
United States District Court, S.D. New York.
September 12, 2006.
*634 *635 *636 *637 Carey D'Avino, Stephen Whinston, Keino Robinson, Berger & Montague, P.C., Philadelphia, Pennsylvania, Lawrence Kill, John O'Connor, Stanley Bowker, Anderson Kill & Olick, P.C., New York, New York, Steven E. Fineman, Rachel Geman, Daniel E. Seltz, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, New York, for the Plaintiffs.
Joseph P. Cyr, Marc J. Gottridge, Scott W. Reynolds, Lovells, New York, New York, for Defendant Talisman Energy, Inc.
ORDER
DENISE COTE, District Judge.
Summary judgment having been granted to Talisman Energy, Inc. ("Talisman"), it is hereby
ORDERED that, the Republic of Sudan having failed to answer or appear, the claims against it are referred to Magistrate Judge Pitman for an inquest.
IT IS FURTHER ORDERED that Talisman's motion to exclude the testimony of plaintiffs' expert witnesses; plaintiffs' motions to exclude the expert testimony of Peter Bechtold, Andrew Buchanan, Aidan Davy and Emery Brusset; plaintiffs' motion for a protective order regarding the identity of witness John Doe; and Talisman's motion for enlargement of time to move to substitute one or more legal representatives or successors in place of John Garang de Maibor as a third-party defendant are denied as moot.
SO ORDERED:
OPINION & ORDER
TABLE OF CONTENTS
Introduction ............................................................. 638
Procedural History ....................................................... 640
Background ............................................................... 641
A. The Conflict in the Sudan ........................................ 642
B. Oil Development in Southern Sudan Before 1996 .................... 643
C. Consortium ....................................................... 646
D. Lundin Oil ....................................................... 646
E. Talisman's Acquisition of Arakis ................................. 647
F. TGNBV ............................................................ 648
G. GNPOC Security Arrangements: 1999 to 2003 ........................ 649
H. Logistical Support of the Military ............................... 649
I. "Buffer Zone" Strategy ........................................... 650
J. The Airstrips .................................................... 651
K. GNPOC Effort to Extend Operations "South of the River" ........... 656
L. Talisman Denies Knowledge of Human Rights Abuses ................. 656
M. The Plaintiffs' Injuries ......................................... 657
Discussion ............................................................... 662
I. Motion for Summary Judgment ...................................... 662
*638
A. Conspiracy ....................................................... 662
B. Aiding and Abetting .............................................. 665
1. The Elements of Aiding and Abetting Liability Under
International Law ............................................ 666
2. Genocide ...................................................... 668
3. Crimes Against Humanity ....................................... 670
4. War Crimes .................................................... 671
5. Substantial Assistance ........................................ 671
a. Developing the Unity and Heglig Airstrips .................. 673
b. Exploring "South of the River" ............................. 674
c. Financial Assistance to the Government ..................... 675
d. Acts of Assistance to the Military ......................... 676
e. Remaining Examples of Assistance ........................... 677
6. Causation ..................................................... 677
II. Motion to Amend Complaint ....................................... 679
A. Choice of Law Rule ........................................... 681
B. GNPOC ........................................................ 683
1. Veil Piercing ............................................. 683
2. Joint Venture Liability ................................... 684
C. TGNBV and Goal Olie .......................................... 686
1. Piercing the Veil ......................................... 686
2. Agency Liability .......................................... 687
D. English Subsidiaries ......................................... 689
Conclusion ............................................................... 689
This case involves the most serious of issues. The plaintiffs have suffered greatly, and in filing this lawsuit they sought to represent all of the non-Muslim Africans who live in and near oil rich lands in the southern Sudan who were injured during six years of the decades-long armed conflict that has gripped the region. " They have sued two defendants: the Republic of the Sudan ("Government") and a Canadian corporation, Talisman Energy, Inc. ("Talisman"), for violations of international human rights. Talisman indirectly held oil interests in the Sudan from October 1998 through March 2003, and its role in oil development in the Sudan and in the regional conflict is at the heart of this lawsuit.
As the litigation has unfolded, it has presented complex issues of international law and the reach of America's Alien Torts Statute ("ATS"), 28 U.S.C. § 1350.[1] Talisman has resisted being hauled into an American court to answer charges arising out of events in Africa. The Republic of Sudan has refused to make any appearance in the litigation and is in default.
Now, as the litigation enters its final stages, with summary judgment motions fully briefed and a trial scheduled for January 8, 2007, the critical issue is whether the plaintiffs have gathered sufficient admissible evidence to show that Talisman engaged in any of the violations of international law on which it stands accused by the plaintiffs. More precisely, the plaintiffs seek to hold Talisman liable *639 for having conspired with or aided the Government in committing three crimes recognized under international law: genocide, crimes against humanity, and war crimes. The crime against humanity that is at stake is the widespread and systematic forcible transfer of a civilian population. The war crime is the targeted attacks by the military on civilians.
The plaintiffs have failed to locate admissible evidence that Talisman has violated international law. The hurdles the plaintiffs faced were many since (1) Talisman did not have any operational presence in the Sudan, and the plaintiffs did not sue the affiliate of Talisman that did have a presence in the Sudan and was more directly connected to events there;[2] (2) neither the Sudanese government nor the consortium that ran the oil exploration activities in the Sudan cooperated with the plaintiffs, and the plaintiffs' efforts to obtain evidence were severely frustrated; and (3) in any event the challenges of gathering the admissible evidence required to support plaintiffs' case in a desperately poor, distant country engulfed in civil war are significant.
For these and other reasons, in opposition to the summary judgment motion, the plaintiffs have not distinguished between the admissible and inadmissible. The plaintiffs repeatedly describe "Talisman" as having done this or that, when the examination of the sources to which they refer reveals that it is some other entity or an employee of some other company that acted. They assert that this or that event happened, when the documents to which they refer consist of hearsay embedded in more hearsay. Indeed, most of the admissible evidence is either statements made by or to Talisman executives, and the plaintiffs' descriptions of their own injuries, with very little admissible evidence offered to build the links in the chain of causation between the defendant and those injuries.
In recognition of the very serious gaps in their proof, the plaintiffs moved on the eve of the summary judgment practice to reconfigure the legal landscape with a far reaching proposal for amending their complaint. The thrust of the amendment would impose liability on Talisman for the activities of the consortium of oil companies that operated on the ground in the Sudan. This motion to amend, however, is unsupported by the legal or factual analysis that should have accompanied such an untimely and potentially transformative motion.
Talisman has separately moved to preclude plaintiffs from seeking categories of damages not previously identified by the plaintiffs. The motion was made after Talisman received plaintiffs' expert report on damages, which indicated that plaintiffs were seeking to recover categories of damages they had not identified in their Rule 26(a)(1) statements served more than two years earlier.
As the following discussion explains, Talisman is entitled to summary judgment on the claims which the parties have litigated for five years. In addition, the plaintiffs are not entitled to amend their pleading. Talisman's motion to preclude certain categories of damages is denied as moot, as is that part of its motion for summary judgment that addresses plaintiffs' claim for disgorgement of Talisman's revenues from its investment in the Sudan.
The decision to grant summary judgment for Talisman becomes inescapable *640 once the Federal Rules of Evidence and Civil Procedure are applied to the parties' submissions on this motion. It does not reflect a finding that the plaintiffs and their neighbors did not suffer great harms, or that the Republic of Sudan did not engage in gross violations of international law and the norms of civilized behavior. It does not even pass on the wisdom or propriety of Talisman's conduct. Instead, this Opinion addresses an issue that applies to every civil lawsuit filed in this country as it nears trial whether the issues being litigated are relatively mundane or of profound human consequence, as is true here. The issue is whether the plaintiffs have supplied sufficient admissible evidence to proceed to trial on their claims. They have not.
Procedural History[3]
Plaintiffs filed their class action complaint on November 8, 2001.[4] On March 19, 2003, the Honorable Allen G. Schwartz, to whom this case was originally assigned, denied Talisman's motion to dismiss brought on the basis of lack of subject matter jurisdiction, lack of personal jurisdiction, forum non conveniens, international comity, act of state doctrine, political question doctrine, failure to join necessary and indispensable parties and equity considerations. Presbyterian Church of the Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (2003) ("2003 Opinion").[5] This action was assigned to this Court on April 16, 2003. On June 13, 2003, a Scheduling Order set the dates for motion practice and established that fact discovery would close on March 25, 2005. During the discovery period, the parties deposed ninety-five witnesses.
An Opinion of March 25, 2005 denied plaintiffs' motion for certification of a class. Presbyterian Church of the Sudan v. Talisman Energy, Inc., 226 F.R.D. 456 (S.D.N.Y.2005). Plaintiffs' second motion for certification, with a narrower class definition, was denied in an Opinion of September 20, 2005. Presbyterian Church, of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(DLC), 2005 WL 2278076 (S.D.N.Y. Sept. 20, 2005).
Between the plaintiffs' two motions for class certification, Talisman moved for judgment on the pleadings based on the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004), and the Second Circuit's decision in Flores v. Southern Peru Copper Corp., 406 F.3d 65 (2d Cir. 2003). Talisman claimed that the standards articulated in those two opinions *641 made the 2003 Opinion's decision to recognize corporate and secondary liability under the ATS clearly erroneous. Talisman's motion was rejected in an Opinion dated June 13, 2005. Presbyterian Church of the Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 332 (S.D.N.Y.2005).
In the Fall of 2005 a trial date was set for January 8, 2007. Talisman moved for summary judgment on April 28, 2006. On the same day that Talisman moved for summary judgment, each side moved to preclude testimony from opposing expert witnesses. Talisman moved against seven expert witnesses offered by the plaintiffs: Gaspar Biro, Douglas Johnson ("Johnson"), Salem Mezhoud, Ronald Vollmar, James Levinsohn, Sherwood Goldberg ("Goldberg"), and Sharon Hutchinson. The plaintiffs moved against four of Talisman's experts: Peter Bechtold, Andrew Buchanan, Aidan Davy and Emery Brusset.
Plaintiffs' opposition to Talisman's summary judgment motion was filed on May 26, 2006. Their papers included a memorandum of law, a thirty page response to Talisman's Rule 56.1 statement of material undisputed facts ("Responsive Statement"), a seventy-two page additional statement of material disputed facts ("Additional Statement"), and two sets of exhibits. One set contained seventy-one exhibits[6] in two volumes. The second set contained one hundred and seventeen exhibits in ten volumes[7]
Despite the volume of plaintiffs' evidence, their arguments rest on a dozen or so pieces of evidence to which they refer repeatedly. Those pieces of evidence include excerpts from three depositions: James Buckee ("Buckee"), Talisman's CEO; Ralph Capeling ("Capeling") the general manager of Talisman (Greater Nile) B.V. or TGNBV, Talisman's indirect subsidiary which held Talisman's interests in the Sudan; and Mark Reading ("Reading"), a security advisor employed by TGNBV. Plaintiffs rely as well on a handful of TGNBV documents and several documents which appear to have been generated by Talisman itself. Many of these documents appear to contain hearsay, including reports about events witnessed by others. Some of the plaintiffs' most striking accusations against Talisman are drawn from affidavits prepared by Ian Taylor ("Taylor") for litigation against Talisman in Canada. Taylor was never deposed, is now deceased, and his affidavits are inadmissible.
On April 12, 2006, just two weeks before the summary judgment motion was filed, the plaintiffs filed a motion to amend their complaint. The complaint on which the parties conducted discovery was the Second Amended Complaint, filed on August 18, 2003 ("2003 Complaint"). The proposed Third Amended Complaint shall be referred to as the 2006 Complaint. The motion to amend is addressed after the discussion of the summary judgment motion.
Background
The following facts are undisputed, or taken in the light most favorable to the plaintiffs, unless otherwise noted. In order to describe as fairly as possible the *642 evidence the plaintiffs present, the description of events that follows is largely taken from the documents on which the plaintiffs have placed the greatest reliance, without a careful analysis of the admissibility of this evidence. It should be borne in mind that the plaintiffs have not yet shown that a percipient witness is available to testify to many of the events that are described below.
A. The Conflict in the Sudan
The recent history of the Sudan has been described several times in this litigation. See Presbyterian Church, 226 F.R.D. at 461-63; Presbyterian Church, 244 F.Supp.2d at 296-99. Because that history provides context to the issues presented in Talisman's motion for summary judgment, it is summarized here.
Sudan is the largest country in Africa and has a population of approximately 41 million. The population in the North is predominately Arab and Muslim, while the population in the South is largely non-Muslim and African. The two largest ethnic groups in southern Sudan are the Dinka and Nuer. A map showing the boundaries of the Sudan follows:
*643 Since gaining its independence in 1956, the Sudan has suffered through two long periods of civil war fueled, by the struggle between the Government, which is Arabdominated and based in the North, and rebels based in the South. The second, more recent civil war began in 1983, and was initially a struggle against the Government waged by the Sudan People's Liberation Army ("SPLA") led by John Garang ("Garang"). In 1991, the SPLA split into competing factions. From 1991 to 1997, those factions fought each other, as well as the Government.
In April 1997, the Government, and major rebel groups with the exception of the SPLA, signed the Khartoum Peace Agreement ("Khartoum Agreement"). As part of the agreement the rebel groups became the Southern Sudanese Defense Force ("SSDF") and entered into a partnership with the Government. Beginning in 1998, the SSDF split apart as senior military commanders left and formed their own militia groups. Some of the militia groups that were formed out of the SSDF were funded by the Government. By the end of 2000, the Khartoum Agreement had collapsed and fighting broke out again in the South among militia groups, as well as between militia groups and the Government. It is undisputed that during the time that Talisman was involved with the Sudan, southern Sudan was the site of increasing levels of violent conflict among a number of armed groups.
B. Oil Development in Southern Sudan Before 1996
After oil was discovered by Chevron in southern Sudan in 1979, the Government granted concessions to explore and extract oil in this region by dividing territory into numbered "blocks." The Sudan is made up of twenty-six states, and the oil concessions relevant to this litigation are spread among five of them: Unity (also referred to as Western Upper Nile), Western Kordofan, Northern Bahr el Ghazal, Jonglei, and Warab.[8]
Block 1, or the Unity oilfield, is north of the town of Bentiu and is now the southern terminus of the Sudan oil pipeline ("Pipeline"), which runs to the Red Sea in northeast Sudan. Block 1 is the only one of the three blocks that is located entirely within Unity State. Block 2, or the Heglig oilfield, is northwest of and adjacent to Block 1. Block 2 is mostly located in Western Kordofan State. Block 4, or the Kaikang oilfield, is a large block to the south and west of Blocks 1 and 2 and is primarily located in Western Kordofan, Northern Bahr el Ghazal and Unity States. The Government also designated Block 5A, which figures prominently in this litigation. Block 5A abuts a portion of the eastern borders of Blocks 1 and 4, and is primarily located in Unity State, but also touches Jonglei, and Warab.
The maps that follow show the geography of the relevant states and the boundaries of the oil concession:
*644
*645
On August 29, 1993, State Petroleum Company ("SPC"), a Canadian company, purchased the rights to Blocks 1, 2, and 4 and entered into a production sharing agreement with the Government to develop these blocks exclusively. From 1993 to 1996, SPC was the only oil company operating in Blocks 1, 2 and 4. The total area of these blocks consisted of 130,000 acres of "developed" land with proven oil reserves, and nearly 12 million acres of "undeveloped" land with no proven oil reserves.
In May 1994, Arakis Energy Corporation ("Arakis"), a Canadian corporation, *646 acquired SPC, which became a wholly owned subsidiary of Arakis. In 1996, the Government attempted to terminate SPC's concession rights, alleging that SPC had failed to perform drilling and production activities under the production sharing agreement. In reaction, SPC began to look for partners to build a consortium that could increase production levels. It found several.
C. Consortium
On November 29, 1996, China National Petroleum Corporation ("CNPC"), Petronas Carigali Overseas SDN BHD ("Petronas"), and Sudapet Ltd. ("Sudapet") joined with SPC (collectively "Consortium Members") to establish a consortium to conduct oil exploration in the Sudan and to construct, own and operate the Pipeline. All of the. Consortium Members except for SPC are wholly owned by governments: China, Malaysia, and the Republic of Sudan, respectively. An interim agreement between the Consortium Members became effective on November 29, 1996 ("Interim Agreement"). On February 28, 1997, they entered into the Consortium Agreement ("Consortium Agreement"), which updated the Interim Agreement.
In addition to these two documents, the consortium's activities are governed by two other sets of agreements. One set covers the relationship between the Consortium Members and the Government and relates to the three separate but related projects undertaken by the Consortium Members. The oil operations conducted in Blocks 1, 2 and 4 are governed by the Exploration and Production Sharing Agreement ("EPSA"); the construction and operation of the Pipeline is governed by the Crude Oil Pipeline Agreement ("COPA"); and the rights to use the land on which the Pipeline is constructed is governed by the Surface Lease Agreement ("Surface Agreement").
A second set of agreements governs the relationship among the Consortium Members and their conduct of the projects undertaken by the consortium. The Joint Operating Agreement ("JOA") covers oil exploration, production, and development in Blocks 1, 2 and 4. The Joint Construction and Operating Agreement ("JCOA") covers the construction and operation of the Pipeline.
The Consortium Members established the Greater Nile Petroleum Operating Company Limited ("GNPOC") as the entity which would conduct operations for the Consortium Members under their agreements with the Government.[9] Both the JOA and the JCOA identify GNPOC as an independent contractor. The JOA, JCOA, EPSA and COPA will be referred to collectively as the "GNPOC Project Agreements." The shares of GNPOC were 40% owned by CNPC, 30% owned by Petronas, 25% owned by SPC and 5% owned by. Sudapet. Thus, the Canadian company owned one-quarter of GNPOC.
D. Lundin Oil
In 1998, Lundin Oil AB ("Lundin Oil"), a Swedish company, obtained the rights to explore for and produce oil in Block 5A. Lundin Oil conveyed its interests in Block 5A to Lundin Petroleum AB ("Lundin Petroleum"), an affiliated Swedish company, in 2001. Lundin Petroleum sold its interests in Block 5A in April 2003. Lundin Oil and Lundin Petroleum shall be referred to collectively as Lundin. During its period as the operator, Lundin constructed and maintained roads within Block 5A. Lundin's *647 interests in the Sudan were held through several subsidiaries including International Petroleum Corporation ("IPC") and many documents on which the plaintiffs rely refer to interactions between GNPOC and IPC.
E. Talisman's Acquisition of Arakis
Talisman, headquartered in Calgary, Alberta, is an oil and gas exploration and production company with global operations. Talisman's international assets are generally held by subsidiaries. In October 1998, during a period of hope created by the Khartoum Agreement, Talisman acquired Arakis. Prior to acquiring Arakis, senior Talisman officials traveled to the Sudan to conduct due diligence. While in the Sudan the Talisman officials met with Government officials including Rick Machar ("Machar"), then the First Assistant to the President of the Sudan and the head of the Southern Sudan Coordinating Council ("SSCC"). The SSCC was a political body established by the Khartoum Agreement to serve a coordinating and supervisory role in the southern Sudan and to serve as link between the South and the Government.[10]
The Talisman officials visited several GNPOC sites, and spoke with representatives of the British government in the Sudan about the political and security situation. From 1898 through 1956, Sudan had been a British-Egyptian condominium. Talisman commissioned two independent reports concerning the security and political situation in the Sudan.
Through these efforts, Talisman learned that GNPOC had an agreement with the Sudanese Army that it would provide security for the GNPOC oil operations and that GNPOC security advisors had daily contact with the Sudanese Army. Robert Norton ("Norton"), who had served as the head of security for Arakis in the Sudan from 1994 to 1998, told Talisman's Buckee and Talisman Vice President Mary Sheppard ("Sheppard") in September 1998 during a "roundtable" meeting held in Canada concerning Canada's relationship with Sudan, that the Government used not just its military but also Government-sponsored militia to protect GNPOC oil fields. Norton also expressed his opinion that Talisman's presence in the Sudan would make oil exploration in the Sudan successful, and that that would increase Government oil revenues and tip the military balance in the Sudan in favor of the Government.[11]
One of the attendees at the roundtable was Melville Middleton ("Middleton"), a Canadian associated with Freedom Quest International. Middleton asked whether Talisman had contacted groups with knowledge of human rights violations by the Government, and was told by Sheppard that the Government had informed *648 Talisman that "the deal was off" if Talisman talked to the "other side." Middleton advised Sheppard, Buckee, and other Talisman officials at the roundtable that GNPOC and the Government were using the Sudanese military to evict civilian inhabitants forcibly and create a "cordon sanitaire" around existing oil fields. Middleton opined in that conversation that the Government would use oil revenues to buy weapons and fund militias to further the Government's "genocidal policies."
One of the two independent studies commissioned by Talisman was by a security consultant, Control Risks Group.[12] An April 1998 report prepared by Control Risks Group ("Moss Report") described three roles for the Sudanese military in protecting GNPOC operations as: "[a]rea domination", "[m]ilitary protection teams for key assets," and "[a]rmed escorts for road travel during hours of darkness." The Moss Report concluded that the presence of army units "creates a substantial deterrent to rebels, bandits or criminals."
At his deposition, Buckee explained that Talisman acquired Arakis because the opportunity to explore for and produce oil in the Sudan was a "technically" good project with attractive terms, and because Talisman thought it could do some good in a very poor country, including potentially serving as a catalyst for peace. In the period leading up to the acquisition, Arakis was having difficulty meeting its financial obligations to GNPOC. Talisman provided over $46 million in cash to Arakis through a credit arrangement so that it could meet those obligations.
After acquiring Arakis, Talisman formed a Sudan Steering Committee ("Steering Committee") comprised of senior-level Talisman officials that met on a weekly basis to address non-operational matters relating to Talisman's investment in the Sudan, including public relations, community development and security. The Steering Committee included Buckee; VicePresidents Talisman Vice President Nigel Hares ("Hares") and Sheppard; and Reg Manhas, who served as Talisman's head of Corporate Social Responsibility.
F. TGNBV
After it acquired Arakis, Talisman transferred the interests that Arakis had held in GNPOC and in the GNPOC Project Agreements to State Petroleum Corporation B.V., an indirect subsidiary of Talisman, which was renamed Talisman (Greater Nile) B.V. or TGNBV on December 10, 1998. TGNBV was a wholly-owned subsidiary of Goal Olie-en-Gasexploratie B.V. ("Goal Olie"). In the period that it owned TGNBV, Goal Olie was wholly owned by two English companies, first Supertest Petroleum (U.K.) Limited ("Supertest") and then Igniteserve Limited ("Ingniteserve").[13] Both Supertest and Igniteserve were wholly owned by Talisman Energy (UK) Limited ("Talisman UK"). Talisman UK was a direct and wholly-owned subsidiary of Talisman. On March 12, 2003, Talisman and Goal Olie sold TGNBV to ONGC Videsh Ltd., an Indian oil and gas company. With that sale, Talisman's investment in oil development in the Sudan ended.
The relationship between Talisman and TGNBV was structured through an agreement called a TASA. Under the TASA, Talisman provided advice to TGNBV on oil operations in the Sudan, including advice *649 on topics such as security, development, and managing the relationship with the Government. For its part, TGNBV sent TASA requests to Talisman, principally on business and operational issues. These requests were usually made by Capeling, TGNBV's General Manager.
Talisman also provided TGNBV with employees, including Capeling, through a practice called secondment. Secondment refers to the assignment of an individual from one of Talisman's companies to another for a defined period of time, usually in the range of two to three years.[14] Capeling reviewed the compensation of seconded employees, their job performance, and the continued need for their positions. The seconded TGNBV employees also reported to GNPOC line managers.
TGNBV did not actually conduct any oil operations in the Sudan; oil exploration and production work was performed by GNPOC. Of particular importance to the issues in this litigation, however, TGNBV's staff included two security advisors, Mark Dingley ("Dingley") and Mark Reading ("Reading"). Reading is a retired British soldier. These two men traveled widely through the GNPOC concession and neighboring areas and were the principal liaison with Mohammed Mohktar ("Mohktar"), the head of GNPOC security. They prepared periodic reports assessing the danger presented to TGNBV employees working in the GNPOC concession and the threat to the GNPOC oil operations. The reports were sent to "key personnel" in TGNBV and sometimes also went to senior Talisman officials, "depending on the nature of the report." The plaintiffs rely heavily on three documents authored by Dingley and Reading, and on their deposition of Reading.
G. GNPOC Security Arrangements: 1999 to 2003
During the period 1999 to 2003, the Government was heavily engaged in providing security for the GNPOC concession. The Government commitment included about 1,000 military and police officers assigned to protect the oilfield operations themselves; about 1,300 intelligence officers who worked to gather intelligence in the communities within the concession; and about 5,000 military personnel who were stationed in the concession. These Sudanese security forces were under the control of Sudan's Security Council, which was headed by Sudan's Minister of Mines and Energy.
GNPOC had its own security force, which was unarmed and which served as a liaison with the Government forces. From 2000 through 2003, Mohktar was the head of GNPOC security.
H. Logistical Support of the Military
In October 2000, Talisman and TGNBV worked on drafting guidelines for GNPOC's interaction with and support of the military forces in the concession area. The guidelines listed acceptable and unacceptable services and supplies, drawing a distinction between support for the Government's defense of GNPOC oil exploration activities and any offensive military action. For example, the proposal allowed GNPOC to share its communications facilities (radios, fax), to provide accommodations *650 at GNPOC rig and facility sites and at checkpoints in the concession area, to repair non-combat vehicles, and to give emergency medical treatment. Two types of services categorized as "unacceptable" were allowing the military to fill fuel barrels to be taken to strategic locations and to use GNPOC vehicles since GNPOC would have "no control" over how the fuel or vehicles were ultimately used.
Although not everyone within GNPOC believed that it increased the security of GNPOC employees, it was not uncommon for soldiers to ride in GNPOC trucks that delivered employees to well sites. At one point, GNPOC protested the practice and the military agreed that soldiers would patrol the oil field every night instead. A GNPOC contractor once witnessed soldiers "going to the battle" being transported in GNPOC trucks. Sudanese military officers were also allowed to fly on GNPOC flights.
In May 1999, GNPOC, the Government and IPC built two all-weather roads: one linking the Unity camp to Rubkona and one linking El Toor, an oilfield in Block 1, to Fariang. Both Rubkona and Fariang had army bases and the roads were considered important to the security of the oilfield. GNPOC also constructed a ring road around the Unity camp.
I. "Buffer Zone" Strategy
As part of the strategy for protecting the oil field operations, Sudanese forces cleared key areas of villagers. According to Tabai Deng Gai ("Gar), a former governor of Unity State, between the signing of the Khartoum Peace Agreement in 1997 and May 1999, the Sudanese military opened garrisons in the GNPOC concession area for defense of the oil operations. When a garrison was established, local police forces were expelled and villages were destroyed. Gai testified that he was aware of but had not seen an agreement between the Government and "Talisman" to protect oil operations and pipeline construction, and that pursuant to the agreement, the Government forced people to leave villages by attacking the villages with any means necessary, including small arms fire, artillery, helicopter gunships and bombers.[15] Gai explained that "it is an affair between the Sudanese army, the Arafiah (?) militia, the Talisman and their agreement entails that bridges have to be destroyed, people have to be displaced, people have to be killed if they do not want to go." (Question mark included in transcript.) Kwong Danhier Gatluak ("Gatluak") was chief of military intelligence for the SSDF from 1991 to 1999 and chief of military intelligence for the Sudan People's Defense Force ("SPDF") from 1999 to 2002.[16] Danhier testified that between 1997 and 2003, the Government forces routinely attacked undefended civilian villages in the GNPOC oil concession to clear the area for oil exploration.[17]
*651 While it is unclear how much of Gai's and Danhier's testimony is based on personal knowledge, a report written by Dingley in 1999 confirms the existence of a "buffer zone" strategy, at least on a small scale. It reads:
The military strategy, driven it appears by the GNPOC security management, is to create a buffer zone, i.e. an area surrounding both Heglig and Unity camps inside which no local settlements or commerce is allowed. This has been achieved with the exception of all but a few nomadic family tents, and extends to approximately 8kms around Heglig and 5kms around Unity. The advantage of this buffer zone is that it allows for easier control of movement in the vicinity.
(Emphasis supplied.)
A report released in January 2000 by John Harker ("Harker Report") on behalf of the Canadian government provides further evidence of displacement.[18] The Harker Report relates that between April and June 1999, the population of Ruweng County had declined by 50%, which it attributed primarily to oil development. Ruweng County is located in Block 1.[19] The report noted, however, that the displacement was "more or less complete by the time Talisman arrived on the scene" but that it had continued during the time of Talisman's involvement. Separately, at a meeting in Khartoum, Machar, then head of the SSCC, informed Buckee that "400,000 people had been displaced" in the Sudan.[20]
A June 2002 TGNBV security report describes the "buffer zone" around Heglig camp:
The focus will return to the ring road at Heglig. The remaining nomads (from the north) are being "encouraged" to complete their move through the area as soon as possible. The area within the security ring road while not a sterile area as found on security operations elsewhere (eg [sic] Algeria) is moving in that direction. Heglig Market has completed its first season out of the area (it was moved this year to the outside of the ring road). This step up in security with-in the ring road I believe is a good thing, it is partly in response to cattle raiding activities as witnessed last week when shots were fired close to Heglig in the early hours.
J. The Airstrips
There were three airstrips within the GNPOC concession area, two of which were controlled and maintained by GNPOC.[21] GNPOC's two airstrips are referred to as the Unity airstrip and the Heglig airstrip.[22] GNPOC used the airstrips *652 to support its activities within the concession. The two GNPOC airstrips were also used by the Sudanese military to provision their troops, and on occasion for defensive military activities. For at least some period of time, each of these airstrips was also a base for attacks against rebel forces and, the plaintiffs contend, against civilians including nine of the plaintiffs. GNPOC and military aircraft operating at the airstrips shared the same fuel tanks, and GNPOC occasionally allowed military aircraft to use GNPOC fuel.[23]
The Heglig airstrip was used extensively by the military. As of 2000, a dozen military flights came into the Heglig airstrip each week to supply Government security forces.
Of greatest concern for this litigation, the Heglig airstrip was also used by Government forces as a staging area for combat operations. A November 1999 TGNBV security report describes baggage trolleys being used to move ordinance around the airfield and Antonov cargo planes that had been converted for use as bombers being loaded with bombs weighing perhaps as much as 500 pounds. According to a TGNBV security officer, the use of the Heglig airstrip made sense for the Antonovs because it was "much closer to the area that they were bombing" than any other airstrip.
The Harker Report describes the use of the Heglig airstrip by military aircraft: "flights clearly linked to the oil war have been a regular feature of life at Heglig airstrip." The report contends that the facility had been used by "helicopter gunships & Antonov bombers of the [Government]. These have armed and refuelled [sic] at Heglig and from there attacked civilians."[24]
Talisman, and in particular its CEO Buckee, initially opposed the Government's use of the airstrips for its helicopter gunships or combat operations. It felt that such operations would draw rebel attacks on the airfields and thus posed a significant threat to the safety of TGNBV and GNPOC personnel. Talisman's objections were occasionally successful: a TGNBV report in January 2000 described a string of objections made in November and December 1999 and stated that "[m]ilitary use of the Heglig airstrip has not been observed since December 1999." By June 2000, however, combat operations had resumed. TGNBV security reports describe helicopters and Antanov bombers in June 2000, and Antanov bombers flying runs "around the clock" in October 2000.
The written proposals for moving the Government combat operations away from the Heglig airstrip included a January 2000 TGNBV suggestion that the military be asked to move to the Unity airstrip and a May 2000 suggestion that Talisman secretly pay for a helicopter gunship base and airfield within the GNPOC oil concession area. There is no evidence that such *653 a base was ever constructed or that this idea was ever pursued further. Indeed, Buckee testified that the idea was "immediately rejected as being a very silly idea."
The Unity airstrip began as just a dirt stip that was not used with any frequency until it was upgraded in approximately 2000. By 2001, the Sudanese military was using the Unity airstrip as well as an airfield for its helicopter gunships.
A TGNBV security report from a meeting with GNPOC's Mohktar in May 2001, indicates that Mohktar was not willing to ask the military to move from Unity to Rubkona at that time despite a personal request by Buckee just two weeks earlier that the military cease using the Unity airstrip.[25] Mohktar felt that the military helicopters were a "key" component in the Government's strategy for dealing with "Gadet"[26] and that its operations "could not continue without them." Rubkona was not an attractive alternative in Mohktar's view since it was less secure, with too many rebel sympathizers in the vicinity. An email from Reading to the Talisman Sudan Steering Committee described Unity as "an excellent location" from the Government's point of view because it allowed them to support operations in a variety of important areas without requiring the helicopters to carry extra fuel.
The same TGNBV document from January 2000 describes a series of conversations with Mohammed Khalifa Hussein, a GNPOC employee, about the use of Heglig for bombing attacks. The report indicates that Khalifa received a promise that the practice would stop, but that it soon resumed. This account is consistent with a TGNBV security report that suggests transferring the Unity airstrip to the Sudanese military, in part because of TGNBV's inability to control its use:
My personal view is that some thought should be given to turning over Unity Airstrip to the military in an official capacity, I struggle to see any alternative other than the present line of "defensive only" operations.[27] I think it is time to accept that they will not move to Rubkona in the forseeable future (still a longer-term aim) and that the military will not build their own facilities. They (government) have strung this along this far and I think they will continue to do that despite on occasions telling us what we want to hear. This I feel is the reality of the situation.
(Emphasis supplied.)
TGNBV security reports reflect ambivalence about the presence of the helicopter gunships at the GNPOC airstrips, noting that they did provide defense for the GNPOC operations, but that the consortium could not monitor or control what they did once they were in the air. It is worth quoting a May 2001 TGNBV security report in some detail:
[T]hese are the weapons of choice for this type of warfare. They are ideal for the area and terrain in which they have to operate. From a purely pragmatic point of view they offer great depth and defence of the oil operation in Block 4 and in the future south of the river. *654 They provide legitimate defence of the oil assets and from a military point of view are a necessity due to the risk and high threat assessment. The problem from our perspective is that although we can repeatedly say all that, when they are away from the oil area who really knows what they do? There is absolutely no way of monitoring. To suggest such a thing would be a disaster and impractical and in their [the Government's] defence many of the other companies are calling for a more "robust" attitude to the security threat in Block 4 and elsewhere. I'm sorry to be the bearer of bad news . . . this problem will not go away no matter how many security protocols etc. are signed.
The only improvement to the current situation would be at a higher level to get the gunships to operate out of Rubkona or have the military have their own purpose built facilities. Both of those suggestions are fraught with difficulties, in the fact that would oil money build the facilities (?) and even if the gunships move to Rubkona, it is still an oil facility and is sited in the GNPOC concession.
(Emphasis supplied.) (Question mark in original.) The report also noted that the dual use of the airstrip was not unique to GNPOC. It recited that
Many other airports in Sudan have dual roles, El Obeid is a classic case where the [UN/World Food Program] planes operate from, and this is done alongside [Government] offensive operations. When picking up Ambassadors this week it was plain to see "ordnance" [sic] in close proximity to aid planes.
After a rebel rocket attack on the Heglig facility in August 2001, Buckee revised his assessment of the level of the threat to GNPOC facilities and dropped his objections to the presence of the helicopter gunships at the Heglig airstrip. The rebels had fired 13 rockets from eight to twelve kilometers away from the facility. At that point, Capeling and the TGNBV security advisors also came to believe that the presence of helicopter gunships at Heglig would assist in the protection of the GNPOC oil facilities since the helicopters were useful in conducting "reconnaissance." Capeling sent a letter to the Government after the attack on Heglig emphasizing the importance of securing the safety of the people working for GNPOC.
Buckee also expressed concern about Government air attacks that were not directly related to the airstrips. He wrote to Major General Bakri Hassan Saleh, Minister of National Defense for the Government of Sudan, on February 12, 2001, to protest bombings by the Government in the South. The letter states that "Talisman has no capacity to verify reports of bombing, as the alleged incidents are occurring well outside our area of operations" but cautions that whatever "the military objectives may be, the bombings are universally construed as violations of international humanitarian law." Buckee urged Saleh to "stop any bombing that has a chance of inflicting damage on civilians."
On February 20, 2002, military aircraft attacked a World Food Program site at Bieh, a town in Block 5A that a TGNBV security report described as "effectively a no-go area" for the Government. A TGNBV security advisor wrote in a March 5, 2002 report about the incident that it was "reasonable to assume that the gunship that engaged the [World Food Program] site operated out of Unity Airstrip."
The report does not appear to be based on any first-hand observations of the attack. Its assumption that the helicopters involved in the attack flew from the Unity airstrip seems to be drawn from reports of a white helicopter near Bieh around the *655 time of the attack. There was a white helicopter owned by the military that operated from the Unity airstrip. The report also raises the possibility that the attack was triggered by the presence of SSIM, a militia group opposed to the Government, near the site of the food distribution.
The only first-hand account of the attack on Bieh in evidence is from one of the plaintiffs, Reverend James Koung Ninrew ("Reverend Ninrew").[28] Reverend Ninrew testified that he witnessed an attack that occurred in Bieh where "people were receiving foods and helicopter gunships came and attacked people; people were killed."[29]
The plaintiffs have also offered hearsay testimony from three individuals who ascribe control over helicopters to "Talisman". Danhier, former chief of military intelligence for both the SSDF and the SPDF, testified that Sudanese intelligence officers were seconded to "Talisman" in Sudan to act as liaison officers between "Talisman" and the Sudanese armed forces. One of those officers told Danhier that they could get him the use of a helicopter through "Talisman."
James Pui Yak ("Yak"), a Sudanese witness for plaintiffs, reported that he traveled to Nimne, a community in Block 5A, with "someone from the company" who claimed he was assessing Nimne for development projects when, in fact, Yak suspected the purpose of the trip was military intelligence.[30] Plaintiff Chief Peter Ring Patai ("Chief Patai") reported that while he was in Nimne, "Talisman" employees came in a helicopter with a Government escort to have a community development meeting. Two days later "Government"[31] forces attacked Nimne.
James Gatduel Gatluak ("Gatduel"), a former commander in the SPLA, testified that his forces, as well as several other militia groups, attacked Nialdhiu in Block 5A on orders from "Talisman." The orders for the attack were delivered by a person named Alwad Alnof[32] at a meeting Gatduel attended in January 2002. Alnof said that the attack was to allow the "company to operate" and that the attack "was for the security of oil." After the fighting, Gatduel was transported to the battle scene in a helicopter that belonged to "Talisman." Neither Talisman nor TGNBV *656 had any helicopters in the Sudan and there is no evidence that any Talisman or TGNBV employee had control over GNPOC equipment.
K. GNPOC Effort to Extend Operations "South of the River"
In April 2001, TGNBV's Capeling led a GNPOC "brainstorming" session on the question of whether GNPOC should try to develop a plan to explore the area in Block 4 "south of the river" that had not been previously explored. It appears that the river to which the April discussion refers cuts across the middle of the southerly portion Block 4.[33] In Capeling's opinion, something more than half of Block 4 was under Government control, but the southern portion of the Block was not and TGNBV did not consider it "secure."[34]
TGNBV's minutes of the April meeting reflect that the goal was "to sell the project as a peaceful one or not go at all," and suggest that a plan be designed to enter the area peacefully to ensure that the "local people welcome the arrival of the oil companies." They also reflect a report that prior efforts to cross the river to conduct seismic testing had been rebuffed by the military on the ground that it was unsafe. The minutes add that there was "little chance" that the terms of the EPSA would require the consortium to "give up" the area if it remained undeveloped, but that they could nonetheless show a willingness to develop the area. In contrast to this hope for a peaceful entry into the area, a response framed by a TGNBV security officer to questions posed by the Talisman Steering Committee in May 2001 noted that oil exploration operations in the southern area of Block 4 would be "impossible" without the aerial support provided by the Government's helicopters and the "threat they pose to the rebels."
Also in April 2001, Capeling learned of reports obtained by TGNBV security officers that the Government planned to move its military forces south of the river in the next dry season. Capeling didn't know the origin of the information or whether it was reliable, but raised the report with Hassan Ali ("Ali"), the Secretary General for Sudan's Ministry of Energy and Mining,[35] who "seemed surprised and said he would raise it with the Minister." Capeling's contemporary memorandum explains that such a movement by government forces would be "a very bad idea."
Two of the plaintiffs were displaced following April 2001 from homes located in what appears to be the area "south of the river." Both of the plaintiffs state that they were displaced by the "Government" although neither explains how they distinguished "Government" forces from other armed groups. These attacks did not involve helicopter gunships or bombers.
L. Talisman Denies Knowledge of Human Rights Abuses
As described above, before its acquisition of Arakis, Talisman had learned a great deal about the nature of the conflict in the Sudan and the Government's use of violence against non-Muslim, African civilians *657 living in or near the oil concession areas. The TGNBV security reports and other sources kept Talisman apprised of the ongoing war effort during the time of its involvement in the Sudan.[36] Indeed, in meetings with Sudanese Government officials, including the Minister of Mining and Energy, who was the head of the Security Council,[37] Buckee advocated against the bombing of civilian targets and encouraged the Government to use oil money for development rather than military spending.
Talisman officials nonetheless made several public statements denying knowledge of human rights abuses in the oil concession area. In November 1999, Buckee wrote to Talisman shareholders that staff in the field "had not seen any evidence of forced displacements or relocation in our area of operations." In May 2001, Talisman spokesman Barry Nelson ("Nelson") denied that Talisman was aware of air attacks being launched from the Heglig and Unity airstrips. In April 2002, Nelson denied that there had been displacements of large numbers of civilians "within our concession area." Nelson declared that "during the time we have operated there, there have not been displacements."
M. The Plaintiffs' Injuries
There are fifteen plaintiffs,[38] including thirteen individuals. All of the individual plaintiffs assert that they were displaced, and most of them report being displaced several times and from several locations. Only five plaintiffs were displaced from settlements in the three blocks within GNPOC's concession during the time of Talisman's involvement in the Sudan.[39] Two of the five were displaced "south of the river" in 2001 and 2002.[40] Eight plaintiffs were displaced from settlements in Block 5A during the time of Talisman's involvement in the Sudan; Block 5A is the concession assigned to Lundin during the time TGNBV was a Consortium Member.[41]
The plaintiffs frequently state that they have been displaced by the "Government" without giving any explanation for how they distinguished the Government forces *658 from other armed groups.[42] For nine of the plaintiffs, however, the link to the Government is clear. Those nine plaintiffs were displaced by at least one attack involving gunships and/or bombers, three in the GNPOC concession area, five in the Lundin concession area, and one in both concession areas.[43] Only plaintiffs Luka Ayuol Yol ("Yol"), Puok Bol Mut ("Mut"), and Chief Patai Tut ("Chief Tut") were displaced from the GNPOC concession area after October 1998 by gunship attacks. Two plaintiffs were physically injured in gunship attacks, one of which occurred within the GNPOC concession.[44] Finally, two plaintiffs were displaced before Talisman acquired Arakis.[45] The injuries suffered by each individual plaintiff follow, beginning with the three plaintiffs who were displaced from the GNPOC concession after October 1998 by gunship attacks: Yol, Mut, and Chief Tut.
Yol was captured and tortured by Government soldiers in 1999 in Biem, which is in Block 1. Yol was first displaced from Athonj[46] in November 1997, by Government troops and militia soldiers using tanks, bombers and gunships. He fled to Panlok, in Block 1, but was displaced one week later by helicopter gunships. In May 1999, he was displaced from Panchien in Block 1 by Government ground troops and bombers and gunships. Yol fled to Pagol in Block 1, which was attacked in March 2000 by Government soldiers, gunships and bombers. Yol fled Pagol for Nyador, which is in Block 5A. Nyador was attacked in February 2001 by bombers, and Yol fled to Chongonack, also located in 5A.
Mut is a member of the Parliament of Southern Sudan. Mut was displaced from a series of villages in Block 4 between 1998 and 2002[47] by the "Government" and allied militias. Three of the attacks that displaced Mut, attacks on Nooriak in 1998 and 1999 and Lara in 2002, included bombers and gunships.[48] Mut was shot in the right shoulder by a gunship during an attack at Lara in 2002.
Chief Tut is the Chief of Mayom County. Chief Tut was displaced from several villages in Block 4 in 2000 and 2001 by "Government" attacks.[49] Two of the displacements, from Mankien and Kernyang, *659 were caused by attacks that included helicopter gunships and Antanovs. Chief Tut was shot in the right leg during an attack by Murahaleen militia near Kernyang in 2000.[50]
Two other plaintiffs were displaced from the GNPOC concession after October 1998: Stephen Kuina ("Kuina") and Chief Gatluak Chiek Jang ("Chief Jang"). Kuina is a nurse from the Nuer tribe, and a member of the Sudanese Parliament. He was displaced from Pibor in Block 4 in 1995 by the Government and Murahaleen. Kuina moved to Mankien, also in Block 4, where he was again displaced in October 1998 by fighting that included bombardment by Antanov bombers. Kuina attempted to stay in Ruathnyibol in Block 4 and built a shelter there, but was displaced by ground troops who did not wear uniforms and did not use vehicles. Upon leaving Ruathnyibol, Kuina took up residence in a displaced person's camp in Maper, which is outside of Unity State and the oil concession area. Kuina stayed in Maper until 2000. In the camp in Maper, there were shortages of food and medicine, but there were no violent attacks. Kuina attempted to return to Unity State in 2000, building shelters for himself and his family in a number of locations including Pibor, Tuchneina, Kerial, Byei, Lara, Toy, Tam and Mayen Jur, all in Block 4, but was displaced each time. Kuina chose these locations because he had heard that there were no helicopter gunships in those locations[51]
Chief Jang is a chief of the Leek tribe. Chief Jang was displaced from Chotjara in Block 5A in July 1999, by bombers, gunships, and Government ground troops. Chief Jang went to Mankien in Block 4, but was displaced from Mankien by the "Government" in August 1999. Chief Jang returned to Chotjara in December 1999, was again displaced by "Government" forces in 2000, but returned again.[52] In October 2001, he was displaced from Chotjara for a third time by bombers, gunships and Government ground troops. Chief Jang returned to Chotjara yet again, and was displaced when Chotjara was attacked in December 2002 by bombers, gunships, tanks and Government ground forces.[53]
Eight plaintiffs were displaced from communities in Block 5A. Two of those plaintiffs, Yol and Chief Jang, were also displaced from the GNPOC concession and their injuries have already been described above. Nyot Tot Rieth ("Rieth"), a member of the Nuer tribe, was displaced from a village near Leer in Block 5A in 2002 when her village was burned by "Arabs". Rieth did not see any vehicles or aircraft at the time of the attack. Rieth's husband was killed in a bombing attack in Bieh in Block 5A in 2002, and Rieth seeks compensation as his surviving spouse. Rieth was not present during the attack that killed her husband.
Reverend Matthew Mathiang Deang ("Reverend Deang") is a member of the *660 Southern Sudan Parliament, the Presbyterian Church of Sudan and the New Sudan Council of Churches. Reverend Deang was displaced by a raid on Gany, which is located in Block 5A, in September 1999.[54] Reverend Deang testified at his deposition in November 2003 that Gany was attacked by the Government. In his May 9, 2006 declaration he asserts that a militia group attacked Gany. Reverend Deang was also displaced from Koch in Block 5A in September 1999 by a "Government" attack.
Reverend Ninrew is an education coordinator and pastor in the Presbyterian Church of Sudan. Reverend Ninrew was displaced from Koch in Block 5A in 1995 by a Government attack that included helicopters and bombers. He returned to Koch a month later and remained in Koch until 1998. In 1998, Reverend Ninrew left Koch after becoming aware of an attack on Liech, which is two hours from Koch. Reverend Ninrew could hear artillery, and could see and hear Antanovs and helicopter gunships during the attack on Liech. Reverend Ninrew went to Thornyor in Block 5A, where he was displaced later in 1998 by another attack by "Government of Sudan" forces.
Chief Tunguar Kueigwong Rat ("Chief Rat") is the Paramount Chief of the Leek Nuer. Chief Rat was displaced from Nhialdiu in Block 5A[55] in 2002[56] by an attack by Government soldiers on foot, horseback and in vehicles, including tanks, with support from bombers and gunships.
Chief Thomas Malual Kap ("Chief Kap") is a member of the Nuer tribe. He was displaced from Koch, located in Block 5A, repeatedly from 1998 to 2003. Chief Kap was first displaced from Koch in 1998, by a Government attack involving gunships, tanks and ground troops. After the 1998 attack, Chief Kap returned to Koch but was forced to flee by a Government attack that included helicopter gunships. After the second attack, Chief Kap again returned to Koch, only to be chased away by a third "Government" attack. After the third attack, Chief Kap fled to Pultuni. From Pultuni he was displaced to Mirmir, and then from Mirmir was displaced to Bieh. Chief Kap built shelters in each place but was forced to leave by Government forces. All three are in Block 5A. Chief Kap was displaced from Bieh by a Government attack during a food distribution by the World Food Program. In 2001, Chief Kap was shot in the foot by a Government soldier in an attack on Ngony in Block 5A.[57]
Chief Patai is the Paramount Chief of the Nuer tribe. Chief Patai and his community moved away from Duar in Block 5A in 2000 based on information that they would be attacked to make room for construction of an all-weather road.[58] He was displaced from Nimne in Block 5A in February 2002, by an attack by bombers and *661 gunships. Chief Patai was injured in the attack on Nimne when he was hit in the left leg by shrapnel from a bomb and was hit in the head and right eye by wood from his house that was dislodged by a bomb.
Two plaintiffs were displaced before Talisman acquired Arakis: Stephen Hoth ("Hoth") and Fatuma Nyawang Garbang ("Garbang"). Hoth, who is presently a student in the seminary at Creighton University, moved to Khartoum in 1988 to attend school. In June 1998, Hoth attempted to travel to see his family in Pibor in Block 4. Hoth only got as far as Mayom in Block 4 where he was stopped by Government and militia forces. Hoth waited for am months for the opportunity to continue to Pibor. In August 1998, Hoth went to Heglig to look for work from the oil companies, and returned to Khartoum in September 1998. Hoth left Khartoum for Egypt in December 1998 because of his concern that he would be forced to join a militia group.
Garbang is a refugee living in Illinois and working as a translator and a tutor. Garbang was shot in the leg by a Government soldier in Leer in Block 5A in 1994, and driven from her home. Garbang attempted to reestablish a home in Leer three times between 1997 and 1999, but did not do so after being told that the area was "totally controlled."
There are two institutional plaintiffs. Plaintiff Nuer Community Development Services in USA ("NCDS") is a non-profit Minnesota corporation and alleges as damages its payments to displaced persons, although not to any of the named plaintiffs. NCDS is not an alien and may not bring suit under the ATS. See Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir.1995). The plaintiffs do not contest dismissal of this claim.
The Presbyterian Church of Sudan ("Presbyterian Church") claims the loss of 64 churches due to Government attacks. The only evidence of its property loss comes through the testimony of three of, the named plaintiffs, who describe damages to churches in thirteen different communities. Only one of the churches was damaged during an aerial attack, and that attack occurred in Block 5A.
Reverend Ninrew saw five damaged churches.[59] Only one church showed damage from an air attack, that church, which is located in Leer in Block 5A, was "destroyed by bombs."[60] Deang was told by Chief Rat about soldiers putting a man into a burning church in Nhiadliu in Block 5A but there is no evidence that the soldiers were from the Government. Chief Jang saw churches that "had been burned by Government of Sudan forces" in villages in both Block 4 and Block 5A[61] but did not explain how he knew that it was Government forces that burned the churches.
*662 Discussion
I. Motion for Summary Judgment
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323006 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "A material fact is one that would affect the outcome of the suit under the governing law, and a dispute about a genuine issue of material fact occurs if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party." GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., Inc., 449 F.3d 377, 381 (2d Cir.2006) (citation omitted). The parties' summary judgment submissions' "shall set forth such facts as would be admissible in evidence," and when the moving party has demonstrated the lack of material factual dispute, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations" of the pleadings. Fed.R.Civ.P. 56(e); accord Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir.2002).[62] Thus, the evidence put forth by the nonmovant to survive summary judgment must be admissible and the "principles governing admissibility of evidence do not change on a motion for summary judgment." Raskin v. Wyatt, 125 F.3d 55, 66 (2d Cir.1997); see LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205-06 (2d Cir.2005).
Talisman has moved for summary judgment on the claims presented against it in the 2003 Complaint. These claims are that Talisman violated the customary international law relating to genocide, torture, war crimes, crimes against humanity, and the treatment of ethnic and religious minorities and their property, and that Talisman conspired with and aided and abetted its sole co-defendant, the Republic of Sudan, to commit those same violations of customary international law. The plaintiffs do not oppose the motion for summary judgment to the extent that it is addressed to Talisman's direct liability for violations of customary international law. Therefore, it is only necessary to address whether Talisman has shown that it is entitled to summary judgment on the claims of conspiring with and aiding and abetting the Government.
A. Conspiracy
Talisman has moved for summary judgment on the claim that it conspired with the Government to commit violations of international law. Although the 2003 Complaint does not include a claim of conspiracy, it does include in its text an allegation that Talisman conspired with the Government to carry out a campaign of ethnic cleansing, including extrajudicial killing, war crimes, forcible displacement, military bombings and assaults on civilian targets, confiscation and destruction of property, kidnaping, rape, and enslavement against the non-Muslim, African Sudanese population living in and near the oil concession areas.
*663 In opposition to the motion for summary judgment, the plaintiffs have described the conspiracy that they intend to prove at trial as follows. The conspiratorial agreement, formed between the Government and Arakis, was to clear the oil concession and surrounding area of all non-Muslim, African civilians. Talisman joined the conspiracy to displace residents with knowledge of its goal, and furthered its purpose principally by (a) designating new areas for oil exploration understanding that that would require the Government to "clear" those areas, (b) paving and upgrading the Heglig and Unity airstrips with knowledge that Government helicopters and bombers would use them in launching attacks on civilians, and (c) paying royalties to the Government with the knowledge that the funds would be used to purchase weaponry.
Knowing participation in a forcible transfer of population, when part of a widespread or systematic attack directed against a civilian population, is a crime against humanity and a violation of customary international law. See Presbyterian Church, 226 F.R.D. at 480-81. The plaintiffs argue that, having joined the conspiracy to displace a population, Talisman is liable for the acts of all other conspirators taken in furtherance of the conspiracy, which it identifies as the "well-settled" law of conspiracy articulated in Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). It locates evidence that the Pinkerton doctrine is recognized in international law in a judgment of the trial chamber of the International Criminal Tribunal for Rwanda ("ICTR") in Prosecutor v. Nahimana, Case No. ITCR-99-52-T, Judgement and Sentence, ¶1045 (Trial Chamber, Dec. 3, 2003). Under the Pinkerton doctrine, a "defendant who does not directly commit a substantive offense may nevertheless be liable if the commission of the offense by a co-conspirator in furtherance of the conspiracy was reasonably foreseeable to the defendant as a consequence of their criminal agreement." United States v. Bruno, 383 F.3d 65, 89 (2d Cir.2004) (citation omitted).
The plaintiffs misconstrue the reach of international law in at least two respects. First, the offense of conspiracy is limited to conspiracies to commit genocide and to wage aggressive war. Second, international law does not recognize a doctrine of conspiratorial liability that would extend to activity encompassed by the Pinkerton doctrine.
The starting point for this discussion must be Sosa, 542 U.S. at 692, 124 S. Ct. 2739. In Sosa, the Court explained that a claim under the "present-day law of nations" may form the basis for an ATS claim only to the extent it rests "on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" that Congress had in mind when it enacted the ATS. Id. at 725, 124 S. Ct. 2739.
While international law has recognized since the prosecution of Nazi war criminals that liability can be based on participation in a conspiracy, Presbyterian Church, 244 F.Supp.2d at 322, as of today international law applies the charge of conspiracy in only two circumstances: "conspiracy to commit genocide and common plan to wage aggressive war." Hamdan v. Rumsfeld, ___ U.S. ___, 126 S. Ct. 2749, 2784, 165 L. Ed. 2d 723 (2006).[63] Indeed, in *664 Nahimana, the defendants were charged with conspiring to commit genocide. Nahimana, Judgement and Sentence at ¶¶ 8-10, 10 ¶¶ 1040-55.
A conspiracy to wage aggressive war was the, first offense to be recognized in international law. Although the statute underlying the military tribunals following World War II was broadly worded and stated that "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such a plan," in fact, the charges of conspiracy that were brought were limited to conspiracy to commit aggressive war and applied only to Hitler's senior leadership. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, art. 6, Aug. 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, 288 ("Nuremberg Charter") (emphasis supplied); see also Allison M. Danner & Jenny S. Martinez, Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law, 93 Cal. L. Rev. 75, 116 (2005) ("Danner, Guilty Associations"). The charge of conspiracy was rejected at that time as a basis for imposing liability for either crimes against humanity or war crimes. Hamdan, 126 S.Ct. at 2784 & n. 39; see also Danner, Guilty Associations, at 116; International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946, reprinted in 41 Am. J. Int'l L. 172, 221-24 (1947).
Since World War II, the only other context in which the charge of conspiracy has been recognized in international law has been when the object was to commit genocide. Brief for Specialists in Conspiracy and International Law as Amicus Curiae Supporting Petitioner at 11, Hamdan v. Rumsfeld, ___ U.S. ___, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006) ("Conspiracy Amicus"). None of the recently established international criminal tribunals (to wit, the International Criminal Tribunal for the former Yugoslavia ("ICTY"), the ICTR or International Criminal Court ("ICC")), have been authorized to try defendants for the crime of conspiracy outside the context of genocide; both the ICTY and ICTR have been authorized by statute to try defendants for conspiring to commit genocide. Id.; see also Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, Between 1 January 1994 and 31 December 1994, S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg., art. 2, U.N. Doc. SIRES/955 (1994) ("ICTR Statute"); Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., art. 4, U.N. Doc. S/RES/827 (1993) ("ICTY Statute"); Presbyterian Church, 226 F.R.D. at 479.
As of today, therefore, liability under the ATS for participation in a conspiracy may only attach where the goal of the conspiracy was either to commit genocide *665 or to commit aggressive war.[64] The plaintiffs no longer contend that Talisman conspired with the Government to commit genocide; they have never claimed that it conspired to commit aggressive war. As described above, they contend that Talisman joined a conspiracy to commit a crime against humanity, specifically, a widespread and systematic attack on a civilian population to displace it forcibly.[65] As a result, the defendants' motion for summary judgment on the conspiracy claim is granted.
It should also be noted before leaving this subject, however, that even if the plaintiffs continued to press a claim that Talisman conspired to commit genocide, they would not be able to rely on the Pinkerton doctrine to impose liability on Talisman. "The Anglo-American concept of conspiracy was not part of European legal systems," Hamdan, 126 S.Ct. at 2784 (citation omitted), at the time of the Nuremberg tribunals, and has never found acceptance in international law.[66] While both the ICTY and ICTR Statutes recognize conspiracy as a mode of imposing liability for the crime of genocide, neither statute contains language supporting the application of the Pinkerton principle. Thus, Talisman could not be held liable under the ATS for the conduct of a coconspirator merely because that conduct was foreseeable.[67]
Talisman has also been sued in its capacity as a successor to Arakis. This appears to relate to the plaintiffs' contention that the conspiracy to displace non-Muslim Africans originated in an agreement between Arakis and the Government, and that when Talisman acquired Arakis, it joined the conspiracy and became liable for conspiratorial acts committed by Arakis and the Government before the acquisition. For the reasons already explained, the conspiracy claim must be dismissed as well to the extent it is brought against Talisman as a successor to Arakis.
B. Aiding and Abetting
Talisman has also moved for summary judgment on the plaintiffs' sole remaining claim, the claim that Talisman aided and abetted the Government in committing *666 genocide, torture, war crimes, and crimes against humanity. This Court has previously referred to the Ninth Circuit's finding that there is a "settled, core notion of alder and abettor liability in international law" that requires a plaintiff to show "knowing practical assistance or encouragement which has a substantial effect on the perpetration of the crime." Talisman, 374 F.Supp.2d. at 340 (citing Doe I v. Unocal Corp., 395 F.3d 932, 951 (9th Cir. 2002)). To address the issues presented by Talisman's motion, it is appropriate to set forth the elements of aiding and abetting liability under international law with more precision.
1. The Elements of Aiding and Abetting Liability Under International Law
The ICTY, ICTR and ICC each impose liability on individual defendants for aiding and abetting the commission of a crime. ICTY Statute at 7(1); ICTR at 6(1); Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998, art. 25(3), U.N. Doc. A/CONF.183/9 (1998) ("Rome Statute"). For example, the ICTY Statute provides that a "person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."[68] ITCY Statute at art. 7(1) (emphasis supplied).
The Rome Statute provides that:
Article 25
Individual Criminal Responsibility
3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
. . .
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.
. . .
Article 30
Mental Element
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
Rome Statute at art. 25, 30 (emphasis supplied).
The Appeals Chamber of the ICTY has described the actus reus of aiding and abetting as requiring that the accused carry *667 out "acts specifically directed[69] to assist, encourage or lend moral support to the perpetration of a certain specific crime" and that this support have "a substantial effect upon the perpetration of the crime." Prosecutor v. Vasiljevic, Case No. IT-98-32-A, Judgement, ¶ 102(i) (App. Chamber, Feb. 25, 2004) (emphasis supplied). The mental element of the crime of aiding and abetting or mens rea is defined as "knowledge that the acts performed by the aider and abettor assist the commission of the specific crime of the principal." Id. at ¶ 102(ii). To have a "substantial effect" it is not necessary to show that assistance constituted an indispensable element of the crime, only that "the criminal act most probably would not have occurred in the same way had not someone acted in the role the accused in fact assumed." Talisman, 244 F.Supp.2d. at 324 (citing Prosecutor v. Tadic, Case No. 94-1-T, Opinion and Judgment, ¶ 688 (Trial Chamber, May 7, 1997)).
The application of aiding and abetting liability is not novel. The theory of liability was used following World War II, and contemporary courts still draw on that precedent, citing among other cases the accusation made by the British Military against three individuals for supplying the poison gas used for the extermination of allied nationals interned in concentration camps. The prosecution was required to prove that the defendants knew that the gas would be used to kill human beings. See Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, ¶ 222 (Trial Chamber, Dec. 10, 1998); Tadic, May 7 Opinion and Judgment at ¶ 680.
Far more recently, in Vasiljevic, the Appeals Chamber for the ICTY found the appellant guilty of aiding and abetting the crimes of murder and persecution based on his participation in the murder of five Muslim men at the Drina River in Bosnia and Herzegovina in 1992. While armed, the appellant escorted the victims to the river bank and prevented their escape before they were shot and killed by others. Vasiljevic, Feb. 25 Judgement at ¶¶ 1, 134, 147. The Appeals Chamber found that the evidence established that the appellant knew that the principal perpetrators of the crimes intended to commit the crimes of murder and discrimination, and that armed with that knowledge he assisted the commission of the crimes in a way that had a "substantial effect upon the perpetration of the crimes" at a time when he was "fully aware that his participation assisted the commission" of the crimes. Id. at ¶¶ 134-35, 142-43 (citation omitted).
The articulation of aiding and abetting liability in Vasiljevic has been adopted by the Appeals Chamber of the ICTY in subsequent decisions. See Prosecutor v. *668 Kvocka, Case No. IT-98-30/1-A, Judgement, ¶ 89 (App. Chamber, Feb. 28, 2005), and Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgement, ¶ 45 (App.Chamber, July 29, 2004). It also finds its roots in prior Appeals Chambers' decisions. See Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, ¶ 163 (App. Chamber, Mar. 24, 2000); Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, ¶ 229 (App. Chamber, July 15, 1999).[70]
The international law of aiding and abetting liability closely parallels federal criminal law. Under federal law, a prosecutor must show the presence of two separate mental elements: knowledge and intent. Criminal culpability exists under federal law where it is shown that "the defendant knew of the crime, and that the defendant acted with the intent to contribute to the success of the underlying crime." United States v. Reifler, 446 F.3d 65, 96 (2d Cir.2006); see also In re South African Apartheid Litig., 346 F.Supp.2d. 538, 551 n. 14 (S.D.N.Y.2004). The prosecutor must also show that the defendant's efforts "contributed towards" the success of the criminal venture. Reifler, 446 F.3d at 96 (citation omitted).
Aiding and abetting liability is a specifically defined norm of international character that is properly applied as the law of nations for purposes of the ATS. See Sosa, 542 U.S. at 725, 124 S. Ct. 2739. To show that a defendant aided and abetted a violation of international law, an ATS plaintiff must show:
1) that the principal violated international law;
2) that the defendant knew of the specific violation;
3) that the defendant acted with the intent to assist that violation, that is, the defendant specifically directed his acts to assist in the specific violation;
4) that the defendant's acts had a substantial effect upon the success of the criminal venture; and
5) that the defendant was aware that the acts assisted the specific violation.
The plaintiffs have not identified sufficient evidence to raise a material question of fact that Talisman can be found liable for aiding and abetting the Government in the commission of genocide, crimes against humanity, or war crimes, because among other things they have not identified evidence that Talisman itself performed any act that could be construed as substantial assistance to the Government in its violation of international law. After briefly addressing the genocide claim, the following discussion will describe the elements of the remaining two claims and the plain tiffs' evidence that Talisman knew of the Government's criminal activity. The discussion of the intent and substantial assistance elements follows. At the conclusion, there is a discussion of the causation issues which affect each claim.
2. Genocide
The plaintiffs' brief in opposition to the summary judgment motion largely ignores the claim that Talisman aided and abetted genocide. They do not contend that Talisman acted with intent to or was aware that its acts did assist genocide. Instead the plaintiffs focus their energies on the claims that Talisman aided and abetted crimes *669 against humanity and war crimes. The plaintiffs essentially confine their discussion of genocide to a dispute about the admissibility of a congressional finding of genocide. A brief discussion of the genocide claim will therefore suffice.
Genocide is defined as:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Presbyterian Church, 226 F.R.D. at 478 (citing to Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, art. 2, 102 Stat. 3045, 3045, 78 U.N.T.S. 277, 280) (emphasis supplied); see also Kadic, 70 F.3d at 241. The intent element of genocide may be inferred from "evidence of a perpetrator's knowing participation in an organized or extensive attack on civilians." Presbyterian Church, 226 F.R.D. at 479 (citation omitted).
The parties dispute whether the plaintiffs have provided any admissible evidence that the Government was committing genocide in the southern Sudan.[71] There is no evidence that any international body has found that genocide has occurred in southern Sudan, nor that the United States Department of State has made such a finding. The plaintiffs rely exclusively on the Congressional finding of genocide in the Sudan Peace Act, Pub. L. No. 107-245, 116 Stat. 1504 (codified at 50 U.S.C. § 1701). Talisman argues that as a conclusion of law, unsupported by a factual investigation, the "finding" of genocide is not admissible under Rule 803(8)(c), Fed. R.Evid. See Gentile v. County of Suffolk, 926 F.2d 142, 148 (2d Cir.1991).
The plaintiffs also have difficulty showing that Talisman was on notice that genocide was occurring during the period of its investment. Their best evidence appears to be a conversation in 1998, before the investment, in which the former head of Arakis security told Talisman that it was his belief that if Talisman entered Sudan "the exploitation of the oil fields would be successful," that the resulting oil revenues would tip the military balance in the Sudan in favor of the Government, and that as a result "there would be no hope for the survival of the southern Christian community because they would not have resources to defend themselves." To the extent that this was understood at the time as a statement about the physical survival of a population, then this may be construed as notice of a risk that the Government would engage in a campaign of genocide.[72]
The plaintiffs have not pointed to evidence that Talisman knew or should have understood during the period of its investment in oil development in the southern Sudan that the Government was engaged *670 in genocide, as opposed to the forcible displacement of a population, for example. A claim of genocide is an extremely serious matter, and to survive summary judgment on such a claim requires evidence not only that genocide was occurring but also evidence that reasonably supports an inference that Talisman understood that to be so and understood that the acts performed by Talisman that the plaintiffs contend constituted substantial assistance were acts that facilitated genocide and were intended by Talisman to do so. While issues of knowledge and intent are exquisitely fact intensive inquiries, and not typically appropriate for resolution on summary, judgment, it is nonetheless incumbent on a plaintiff to point to evidence from which a reasonable juror could infer those states of mind. The plaintiffs have pointed to no such evidence, circumstantial or otherwise. Talisman is entitled to summary judgment on the claim that Talisman aided and abetted genocide.
3. Crimes Against Humanity
Crimes against humanity include murder, enslavement, deportation or forcible transfer,[73] torture, rape or other inhumane acts, committed as part of a widespread and systematic attack directed against a civilian population. Presbyterian Church, 226 F.R.D. at 480-81. A widespread attack is one conducted on a large scale against many people, while a systematic attack is an organized effort to engage in the violence. Id. at 481 (citing to Prosecutor v. Kordic, Case No. IT-95-14/2-A, Judgment, ¶ 94 (App.Chamber, Dec. 17, 2004)).
Counsel for the plaintiffs have not specifically identified which crime against humanity they are pursuing with this litigation, preferring instead simply to refer the Court to all of their evidence. The plaintiffs have presented no evidence that any plaintiff was enslaved, deported, or raped.[74] While one plaintiff has alleged torture, the plaintiffs have submitted no evidence to permit a finding that the torture was part of a widespread, systematic campaign. None of the plaintiffs is a murder victim and suing as the estate of the deceased.[75] On the other hand, each of the individual plaintiffs contends that he or she was forcibly displaced from concession lands.
The plaintiffs might face significant evidentiary challenges at trial in proving that their displacements were part of a widespread and systematic Government campaign directed against civilians during the period October 1998 to March 2003, the dates of Talisman's investment. The most compelling evidence relates to an earlier period of time. Some of the plaintiffs' difficulties in this regard will be discussed below in connection with the issue of causation.
There is evidence, however, that Talisman was informed that Government forces forcibly displaced civilian populations to create a buffer' zone around oil development *671 sites. Three examples of such evidence will suffice. Talisman officials were informed in the summer of 1998 that the Sudanese military removed local inhabitants in proximity to oil work sites. A 1999 TGNBV report describes the Government's practice of creating a zone around the oil facilities in which no settlement or commerce was allowed. An 2002 TGNBV security report describes residents being "encouraged" to leave the area around Heglig, purportedly to provide security for the oil operations.[76]
4. War Crimes
The canonical statement of war crimes as "armed conflicts not of an international character" is provided by common article 3 of the Geneva Conventions:
Persons taking no active part in the hostilities . . . shall in all circumstances be treated humanely without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment or torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all guarantees which are recognized as indispensable by civilized peoples.
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Feb. 2, 1956, 6 U.S.T. 3114, 75 U.N.T.S. 31, art. 3 (emphasis supplied); see also Kadic v. Karadzic, 70 F.3d 232, 242-43 (2d Cir.1995).[77]
The plaintiffs contend that the Government's military attacks on civilians in undefended villages constitute war crimes. Talisman does not disagree, but notes that an individual plaintiff must show that the tort was committed in the course of an armed conflict. See Kadic, 70 F.3d at 243.
Plaintiffs have introduced evidence from which the plaintiffs may argue that Talisman was informed that Government forces were targeting civilian populations. Whether the plaintiffs have evidence that each of the plaintiffs was displaced or otherwise injured in a Government attack directed against civilians will be discussed in connection with issues of causation.
5. Substantial Assistance
Plaintiffs argue that Talisman provided substantial assistance in the commission of each of these crimes through the following acts: (1) upgrading the Heglig and Unity airstrips; (2) designating areas "south of the river" in Block 4 for oil exploration; (3) providing financial assistance *672 to the Government through the payment of royalties; (4) giving general logistical support to the Sudanese military; and (5) various other acts.
The activities which the plaintiffs identify as assisting the Government in committing crimes against humanity and war crimes generally accompany any natural resource development business or the creation of any industry.[78] Many countries, including on occasion our own, have encouraged investment by domestic corporations in foreign countries that have abysmal human rights records based on the belief that economic development will bring with it political development, respect for the rule' of law and the observance of human rights.
The acts which the plaintiffs identify as acts of substantial assistance have no necessary or obvious criminal component. For instance, designating acreage for exploration is an essential component of any exploration for and development of natural resources. Upgrading airstrips is critical to the safe delivery of supplies for and transport of personnel. Similarly, paying royalties is customary, as is the payment of taxes and duties.[79] Thus, the plaintiffs' theories of substantial assistance serve essentially as proxies for their contention that Talisman should not have made any investment in the Sudan, knowing as it did that the Government was engaged in the forced eviction of non-Muslim Africans from lands that held promise for the discovery of oil.
It may be that this issue is best analyzed as one of intent, and therefore, that it is a purely factual matter that is most appropriately resolved at trial. Since liability for aiding and abetting will only lie where a jury finds that the defendant engaged in an act that provided substantial assistance to the wrongdoer with both knowledge of the criminal enterprise and intent to further that goal, a plaintiff must be able to show that the business activity, which would otherwise appear to be a normal component of the conduct of a lawful business, was in fact specifically directed to assist another to commit a crime against humanity or a war crime. This is a demanding burden when otherwise lawful acts are designated as the acts which provide substantial assistance, and there is no direct evidence of improper intent and no direct participation in the criminal act.
The plaintiffs essentially argue that Talisman understood that the Government had cleared and would continue to clear the land of the local population if oil companies were willing to come to the Sudan and explore for oil, and that understanding that to be so, Talisman should not have come. They have no evidence that Talisman (or TGNBV or GNPOC) participated in any attack against a plaintiff and no direct evidence of Talisman's illicit intent, so they wish to argue that Talisman's knowledge of the Government's record of human rights violations, and its understanding of how the Government would abuse the presence of Talisman, is a sufficient basis from which to infer Talisman's illicit intent when it designated areas for *673 exploration, upgraded airstrips or paid royalties. Against this background, we turn now to the factual deficiencies in the plaintiffs' evidence that. Talisman contends require summary judgment in its favor with respect to each of the acts that the plaintiffs have identified as Talisman's substantial assistance to the Government's violations of international law.
a. Developing the Unity and Heglig Airstrips
The plaintiffs contend that Talisman substantially assisted the Government's crimes by upgrading and improving two airstrips, knowing that the Government would use the improved airstrips to launch attacks on civilians. The plaintiffs do not contend that Talisman either knew of any specific Government attack on civilians before it occurred or did anything to support, or encourage a specific attack.
There is evidence that the Government used the Heglig and Unity airstrips to violate international law by targeting and displacing civilians.[80] Nine plaintiffs have described being displaced and/or injured by helicopter and bomber attacks. At least some of the plaintiffs are entitled to rely on circumstantial evidence that the flights that made those attacks originated from the Heglig and Unity airstrips. The airstrips provided a base of operations that was close to some of the Government's targets, allowing them to reach a wider range of locations, carry less fuel, and fly more frequent missions. The plaintiffs contend therefore that any improvements and upgrades to the airstrips assisted the Government substantially.
The two airstrips, however, were operated by GNPOC. There is no evidence that Talisman had any role in operating the airstrips, nor is there any evidence that Talisman had any role in upgrading the runways or in any other improvements to the airstrips.[81]
To impose liability on Talisman, plaintiffs rely on a single passage from undated handwritten notes, which they identify as being authored by Capeling,[82] in which the author proposes that the military be encouraged to relocate from Heglig to Unity airstrip so that it could establish "a stronger presence further south with better infrastructure and support." The notes add, "[t]hey need a better base." These notes do not provide the missing link that would allow a jury to find that Talisman upgraded and improved the Unity airstrip, much less that it did so with the knowledge and intention that the Government use the airstrip to launch attacks on civilians.
Assuming that the plaintiffs can show that Capeling is the author of the notes, that would show that the general manager of TGNBV considered such a proposal. The plaintiffs have not pointed to any evidence that TGNBV (a 25% participant in GNPOC) decided to make the proposal, that it presented the proposal to GNPOC, or that GNPOC adopted it. As already described in this Opinion, there is evidence *674 that the military did move its bombers and helicopters to Unity airstrip after it was upgraded, but no evidence that this was due to a request from GNPOC.
Taken in the light most favorable to plaintiffs, the evidence shows that the Sudanese military was responsible for the security of GNPOC personnel and operations in an area torn by armed conflict, that GNPOC was responsible for the infrastructure within the concession, and that GNPOC and the Consortium Members understood both that the military would take advantage of any infrastructure improvements, including upgraded airstrips, in planning their operations, and that the military engaged in not just defensive operations from airstrips, but also offensive operations. This is not sufficient to raise a question of fact as to whether Talisman upgraded the airstrips, much less that it specifically directed that activity to assist the Government to engage in offensive military operations against civilians rather than defensive operations or offensive operations against rebel forces.
Although not articulated by the plaintiffs, there is another argument that they may wish to make at trial. They may contend that Talisman is liable for the upgrading of the airstrips because TGNBV would not have made the suggestion that the airstrips be upgraded and that the military move to the Unity airstrip without Talisman approving the decision.[83] Again, however, there are simply too many evidentiary gaps to impose liability on this theory either. The plaintiffs have not pointed to evidence that TGNBV made the proposal, much less that it did so after discussion with Talisman. The plaintiffs have not even shown precisely which TGNBV security reports went to Talisman. As significantly, the documents on which the plaintiffs rely most heavily in opposing summary judgment, show that on those occasions on which Talisman did try. to act in the Sudan to affect security matters, its efforts had to be made by going through GNPOC and that those efforts were often rebuffed. To give but a few examples, the Government failed to respond to GNPOC requests, made at TGNBV's behest, to stop using Heglig for bombing runs in 1999; GNPOC's Mohktar refused to ask the Government to move flight operations to Rubkona in the spring of 2001; and a TGNBV report in 2001 addressing the military use of the airstrips noted that the Government had "strung this along" despite "on occasions telling us what we want to hear."
In sum, the plaintiffs have not shown that Talisman took any steps to upgrade either the Heglig or Unity airstrips or that it did so with the intent that the Government of the Sudan would use the airstrips to launch attacks on civilians. This theory of aiding and abetting liability fails.
b. Exploring "South of the River"
The plaintiffs contend that Talisman "furthered" the conspiracy by designating areas for oil exploration outside Blocks 1 and 2 and "south of the river", knowing that this designation "required" Government security forces to clear the area of non-Muslim, African civilians. According to the plaintiffs, the essence of the crime was the designation of an area for oil development that was outside the territory already under Government control. The plaintiffs essentially rely on two pieces of evidence: brief deposition testimony by TGNBV's Capeling and a single April 2001 e-mail with minutes of a brainstorming *675 session among Consortium Members. Two of the plaintiffs were displaced from the area south of the river following April 2001 by what they identify as Government attacks.
Plaintiffs have failed to point to any evidence that GNPOC ever adopted a plan to explore "south of the river", or that the Sudanese military engaged in any clearance activity because GNPOC had communicated such an intention to the Government. In any event, if an area south of the river were designated for exploration, that decision would have been made by GNPOC, not Talisman. Even as to the preliminary discussions to which the plaintiffs point, they have again failed to connect these preliminary discussions to Talisman. Capeling was the general manager of TNGBV; the plaintiffs have not even pointed to evidence from which one could infer that Capeling was instructed by Talisman to develop a plan to explore "south of the river."
Because there is no evidence that Talisman had any involvement in a plan or proposal to explore south of the river, it is unsurprising that there is also a complete absence of evidence of Talisman's illicit intent in this regard. With respect to TGNBV and GNPOC, the evidence reflects a desire to expand exploration activities only if it could be done peacefully, a prospect that some viewed as unlikely.
c. Financial Assistance to the Government
Plaintiffs contend that Talisman aided and abetted the Government by paying royalties to the Sudanese Government, which the Government used to purchase large amounts of new weaponry that it turned against the plaintiffs. Plaintiffs principally rely on an expert report submitted by military experts Sherwood Goldberg and Edward O'Connor ("Goldberg Report") to establish the financial link between oil revenues and military expansion.[84] The Goldberg Report asserts that the Government earned 00 million in oil revenue in 2002 and that it came largely from GNPOC's extraction of oil and payment of royalties. This same data is presented in the report by plaintiffs' expert Johnson, which identifies the source as the Human Rights Watch report Sudan, Oil, and Human Rights ("HRW Report"). The plaintiffs have not offered the HRW Report as evidence.[85]
Plaintiffs have failed to identify any admissible evidence on the amount or source of royalty payments to the Government, the amount spent by the Government on weapons procurement, or the timing of those expenditures.[86] While Goldberg may *676 be able to offer his expert opinion on the importance of the financial relationship to the military's effectiveness in the south, his opinion is not evidence of that relationship.
The plaintiffs have evidence from which a jury could find that Talisman believed that the Government used oil revenues to buy armaments, even if Talisman did not have any direct evidence or knowledge of that fact. It is reasonable to assume that evidence exists, even if the plaintiffs have not marshaled it for this motion, that Talisman's revenue stream from its investment in the Sudan was reduced because of royalty payments made by GNPOC or TGNBV, and that Talisman's audit procedures accounted for those reductions. It is also reasonable to assume, even if the plaintiffs have not succeeded in gathering admissible evidence to show when it occurred, that the Government spent money to buy helicopters and cargo planes, crudely convert the latter to bombers, and buy munitions. Nonetheless, even if the plaintiffs had pointed to evidence regarding each link in this chain of evidence, the issue would remain whether they had identified evidence sufficient to support a finding that when Talisman (or TGNBV or GNPOC) paid royalties, it "specifically directed" those payments to the Government's procurement of weaponry to target civilians and displace them.
Knowledge that such attacks had occurred and would likely occur again simply does not provide circumstantial evidence of an intent to assist in those attacks by the payment of royalties. The plaintiffs have pointed to no evidence that Talisman urged that such attacks be made. Quite to the contrary, the evidence to which the plaintiffs have directed the Court's attention on this motion includes several examples of Talisman speaking either with the head of GNPOC security or the Government to discourage such attacks and advocate that oil revenues be spent for development. Moreover, the Government was responsible for the security of GNPOC oil operations in the midst of a civil war. Defensive military actions, and even offensive campaigns not directed at civilians, would not be a violation of international law. The connection between the payment of royalties and the Government attacks on civilians is simply too indirect to permit the payment of royalties itself to serve as circumstantial evidence of an intent to assist in the Government's commission of war crimes and crimes against humanity.
d. Acts of Assistance to the Military
Plaintiffs contend that "Talisman, along with its GNPOC partners" assisted the Sudanese military by supplying the military with fuel and accommodations and building roads, among other things.[87] In particular, the plaintiffs argue that the construction of all-weather roads was significant assistance. The conflict in the Sudan was shaped by the changing seasons. The Government enjoyed a significant advantage because it had better vehicles and its forces were more mobile.
The decision to build the all-weather roads, however, was made by GNPOC. The plaintiffs have pointed to no evidence that Talisman shaped that decision in any way. The plaintiffs have also pointed to no evidence that Talisman provided any accommodations or fuel to the military. Again, Talisman's limited presence on the ground in the Sudan frustrates any effort by the plaintiffs to show that Talisman substantially aided the Sudanese military by providing logistical support, much less that it specifically directed any assistance *677 to the Government's violation of international law.
e. Remaining Examples of Assistance
The remaining theories of substantial assistance may be quickly described.[88] Plaintiffs allege that Talisman assisted the Government by using its community development program as a cover for gathering military intelligence. This allegation is based on accusations by Taylor, who is deceased, and is inadmissible hearsay. Plaintiffs' other evidence comes from Yak and Chief Patai and is only speculation of a possible connection between two events: a visit by a community development team from an oil company and an attack on a village two days later.
Finally, plaintiffs contend that Talisman "ratified" the human rights violations of the Government by publicly denying knowledge of those violations. Talisman's public comments do not constitute substantial assistance in acts of genocide, displacement or the targeting of civilians, and do not raise a question of fact as to whether the statements themselves were specifically directed to assist the Government in committing those acts.
6. Causation
Beyond the failure to show Talisman's substantial assistance in the Government's violation of human rights, there remain issues concerning causation. Talisman argues that only a few of the plaintiffs injuries can be causally linked to the violations of international law in which it is alleged to have participated. Because southern Sudan was a war-torn area, with violence ongoing for decades among many competing factions, every civilian injury cannot be attributed to attacks directed at civilians. Similarly, not every attack is necessarily an attack by the military or militia aligned with the Government. Thus, to recover in this lawsuit, a plaintiff must show that he or she was displaced or injured in an attack by Government forces and that the attack either targeted civilians or was undertaken to displace civilians.[89]
Because Talisman is entitled to summary judgment on all of the claims that plaintiffs have brought against it, it is unnecessary to resolve this argument. A brief review of the plaintiffs' evidence however, suggests that only three plaintiffs have shown that they were displaced by Government attacks to which GNPOC arguably provided assistance: Yol, Mut and Chief Tut.
With respect to the five plaintiffs who were displaced from Blocks 1, 2, and 4 in the period after Talisman acquired Arakis, only these three report that the displacement occurred because of an aerial attack. As to the remainder, they have not identified any basis to infer that the attacks were by Government forces, or forces aligned with the Government, or that the displacement occurred because of an attack that targeted civilians.
The plaintiffs have failed to present sufficient evidence to find Talisman (or TGNBV or GNPOC) liable for any displacement from Government attacks on civilians in Block 5A, the block in the oil *678 concession area under the management of Lundin. Only five of the eight plaintiffs who were displaced from Block 5A were displaced by aerial bombardments.[90] Even those attacks cannot be linked to GNPOC, or through GNPOC to Talisman, though.
There were three airstrips in the GNPOC concession: Heglig in Block 2 and Unity and Rubkona in Block 1. GNPOC managed Heglig and Unity; Rubkona was operated by the Government and Lundin and was also the location of a military base. Rubkona lies at the southeast corner of Block 1, and is the airstrip that is both the furthest south and east.
During the period of Talisman's investment, none of the plaintiffs was displaced or injured in an aerial attack in Block 2. Yol was displaced by an aerial attack in the north of Block 1, to which Heglig was the closest airstrip and Rubkona the most distant. Chief Tut and Mut were displaced and injured in attacks at or south of the Bahr el Arab river in Block 4. Rubkona is somewhat closer than the Unity airstrip to each of these sites, and the Heglig strip is much further away. The Rubkona airstrip is clearly closer to the site of each attack in Block 5A than either the Heglig or Unity airstrip.
The plaintiffs have no admissible evidence to identify the airstrip from which any Government aircraft flew on a particular mission. To the extent that the plaintiffs rely on the inference that helicopter gunship and bomber attacks in Blocks 1, 2 and 4 originated from either Unity or Heglig airstrips, which were under GNPOC's control, rather than the Rubkona airstrip (which was under the Government's control and next to the Lundin concession area) because Unity and Heglig were closer to the area attacked (or almost as close to the area), then they have the burden to show that attacks in Block 5A were or were at least likely to have been launched from Unity or Heglig instead of the airstrip that was the closest to Block 5A. They have offered no evidence to support such an inference, and they may not shift their burden in this regard by arguing that Talisman has not shown that the attacks did not originate from Rubkona.[91]
Finally, the claims brought by the two institutional plaintiffs must also be dismissed. Plaintiff NCDS is not an alien and may not bring suit under the ATS. Plaintiff Presbyterian Church has only *679 presented evidence of a single attack that may be linked to the Government, the destruction of a church in Leer by a bomber. That attack occurred in Block 5A, and there is no evidence to support an inference that the attack originated from the Heglig or Unity airstrips.[92]
In sum, Talisman is entitled to summary judgment On the claims presented in the 2003 Complaint. The plaintiffs have abandoned their claim that Talisman is directly liable for violating international law. The claim that Talisman conspired with the Government of Sudan fails because the plaintiffs' conspiracy claim relates to the forcible transfer of a civilian population, and international law does not recognize the crime of conspiracy for that conduct. The remaining claim, that Talisman aided and abetted the Government, fails for several reasons, including the plaintiffs' failure to present evidence that would raise a question of fact as to whether Talisman performed any act that assisted the Government in its violations of international law.
II. Motion to Amend Complaint
The plaintiffs have moved to amend their complaint. The 2003 Complaint pleads a single claim that the defendant Talisman violated or aided and abetted its co-defendant the Republic of the Sudan to violate the law of nations. It pleaded that Talisman was sued for its own actions, as a successor to Arakis and as a member of GNPOC. It alleges in the body of the pleading that Talisman and the Government conspired with each other to violate the law of nations.
On the eve of summary judgment practice, the plaintiffs moved to amend their pleading and to file a Third Amended Complaint, the 2006 Complaint. When stripped to its essentials, this amendment seeks to hold Talisman liable for the actions of GNPOC. The 2006 Complaint identifies alter ego, agency, and joint venture liability as additional theories of liability. The plaintiffs advance these new theories to hold Talisman liable for the acts of first TGNBV, and through TGNBV, for the acts of GNPOC. The 2006 Complaint asserts that Talisman is liable as TGNBV's alter ego under a veil piercing theory of liability, or because TGNBV acted as Talisman's agent.[93] In the event that Talisman may be held liable for TGNBV's acts, the joint venture theory seeks in turn to hold TGNBV liable for activities of GNPOC and the Consortium Partners. In contrast to the 2003 Complaint, which focused on the cooperation between Talisman and the Government, the 2006 Complaint asserts that Talisman also acted with GNPOC and TGNBV either by aiding and abetting GNPOC in ethnic cleansing, or conspiring with GNPOC, the Consortium Partners and TGNBV.
Through the summary judgment motion practice, it has become clear that the plaintiffs have abandoned any claim that Talisman itself violated the law of nations and, as just explained, they have been unable to identify evidence that Talisman aided or conspired with the Government in the latter's violation of the law of nations. Thus, the plaintiffs now depend on the theories of indirect liability that they advanced for the first time in the 2006 Complaint to *680 hold Talisman liable for GNPOC's activities.
Talisman has opposed the amendment. The plaintiffs' motion to amend their complaint is governed by Rule 16, Fed R. Civ. P., which requires a showing of good cause.[94]See In re Wireless Telephone Services Antitrust Litig., 02 Civ. 2637(DLC), 2004 WL 2244502, at *5 (S.D.N.Y. Oct. 6, 2004). To show good cause a movant must demonstrate that it has been diligent. See Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003).
The plaintiffs have not shown good cause. They have not even attempted to show their diligence, nor could they. The motion to amend comes over four and a half years after the filing of the lawsuit, over two and a half years after the deadline for amendment, more than two years after Talisman brought a motion attacking the previous theory of secondary liability (aiding and abetting liability) pleaded in the 2003 Complaint, over a year after the close of fact discovery, and virtually on the eve of the, filing of the summary judgment motion. While the plaintiffs defend their filing as simply a clarification of theories of secondary liability that were set forth in the 2003 Complaint, they are absolutely wrong. The proposed amendment dramatically alters the plaintiffs' theories of liability and the focus of the entire case.[95]
It could even be said that the plaintiffs acted in bad faith in waiting until the eve of summary judgment practice to file the motion to amend.[96] The choice of the filing date left the defendant with sixteen days before it was required to file its motion for summary judgment.[97] Talisman chose to address some of the new theories of secondary liability in its summary judgment motion and reserved its right to address all of them in detail in later motion practice in the event the motion to amend were granted.
The plaintiffs have not made any showing that the newly advanced theories have merit or that they could withstand a motion for summary judgment.[98] Indeed, it does not appear that the plaintiffs are adequately prepared even at this late stage to assert their new theories of secondary *681 liability. For example, the 2006 Complaint asserts that the corporate structures of five separate corporations should be disregarded in order to impose liability on Talisman for the actions taken by GNPOC. This demands a careful analysis of choice of law and foreign law issues, and the plaintiffs do not articulate a coherent analysis of either in response to Talisman's summary judgment motion. Quite to the contrary, the plaintiffs have not presented any affidavits of foreign law and simply ask the Court to disregard settled choice of law principles and apply domestic law. Similarly, the plaintiffs are unable to point to record evidence to support their arguments that, as a factual matter, Talisman so misused the corporate form that the corporate veil should be pierced.
In opposition to the motion to amend and in support of summary judgment, Talisman argues that it cannot be held liable for TGNBV's conduct because the plaintiffs have not shown that the corporate form of TGNBV and the three intermediate companies between it and Talisman should be disregarded under the laws of Netherlands and England, the states of incorporation for TGNBV and the intermediate companies. Talisman also argues that TGNBV cannot be held liable for GNPOC's conduct or the conduct of the Consortium Members under the Law of Mauritius, the place of GNPOC's incorporation. For the reasons described below, Talisman is correct. While it would be entirely appropriate to deny the plaintiffs' motion to amend without engaging with the merits of the proposed amendment, because of the significance of this litigation to each of the parties, and the fact that the plaintiffs' claims are otherwise subject to dismissal on summary judgment, the remainder of this Opinion will address at least some of the theories of secondary liability that the plaintiffs introduce in the 2006 Complaint. As this discussion demonstrates, the plaintiffs' motion to amend should be denied not just because of their utter failure to show good cause, but also because the amendment appears to be futile.
A. Choice of Law Rule
In order to locate the law which would govern a determination of whether Talisman may be held accountable for the actions of TGNBV and GNPOC, it is necessary to select the choice of law standard which will be applied. The plaintiffs' claims are all brought under a federal jurisdictional statute, the ATS. Sosa, 542 U.S. at 724, 124 S. Ct. 2739. The plaintiffs argue that federal choice of law rules should be applied because of the unique federal interests that are implicated by the ATS. Talisman argues that the choice of law rules of New York, the forum state, should be applied.
The Second Circuit has "never definitively resolved" the question of choice of law in ATS cases, Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105 n. 12 (2d Cir.2000), but did address the issue in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980). Filartiga distinguished the inquiry into subject matter jurisdiction, which is provided by the ATS, from the inquiry into choice of law, which it described as "a much broader one, primarily concerned with fairness" and thus one that looks "to wholly different considerations." Id. at 889. While Filartiga did not explain what those wholly different considerations were, the decision cited Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953), which had articulated choice-of-law principles for a Jones Act case in which an injured Danish seaman working on a Danish ship filed suit in New York to recover for injuries sustained in Cuba. Id. at 573, 73 S. Ct. 921. Recognizing the duty "to respect the subjects and the rights of *682 all other sovereign powers outside its own territory," id. at 578, 73 S. Ct. 921 (citation omitted), the Court weighed the factors connected to the shipping transaction and the national interests "served by the assertion of authority," id. at 582, 73 S. Ct. 921, such as, the place of the wrongful act, the law of the flag, the domicile of the injured seaman, the citizenship of the shipowner, and place of the contract, id. at 583-88, 73 S. Ct. 921, to conclude that Danish law supplied the substantive law and forbade recovery. Id. at 592, 73 S. Ct. 921. "The purpose of a conflict-of-laws doctrine is to assure that a case will be treated in the same way under the appropriate law regardless of the fortuitous circumstances which often determine the forum." Id. at 591, 73 S. Ct. 921.
Since the Second Circuit spoke in Filartiga, the Supreme Court has significantly curtailed the application of federal common law, and therefore the use of federal choice of law rules, which "are a species of federal common law." In re Gaston & Snow, 243 F.3d 599, 606 (2d Cir.2001). Under the current framework, "[t]he ability of the federal courts to create federal common law and displace state created rules is severely limited." Id.[99] In order to justify the decision to fashion rules of federal common law the "guiding principle is that a significant conflict between some federal policy or interest and use of state law must first be specifically shown." Atherton v. FDIC, 519 U.S. 213, 218, 117 S. Ct. 666, 136 L. Ed. 2d 656 (1997) (citation omitted). A generalized allegation of conflict is insufficient to justify the displacement of state law. See Woodward Governor Co. v. Curtiss Wright Flight Systems, Inc., 164 F.3d 123, 127 (2d Cir. 1999) ("[A]n actual, significant conflict between a federal interest and state law must be specifically shown, and not generally alleged." (citation omitted)).
The plaintiffs have not pointed to any conflict that would justify the displacement of the law of the forum state. Rather, they simply contend that federal choice of law principles should be applied and then proceed to identify just two factors to guide the selection of substantive law: the place of injury and domicile of the parties. They then propose that both those factors be ignored. Since Sudan is not an adequate forum for this lawsuit, see Presbyterian Church, 244 F.Supp.2d. at 335-36, they assert without further discussion that its substantive law should be disregarded too. Since Talisman does business in the United States through subsidiaries, see Presbyterian Church, 2004 WL 1920978, at *2, they assert it is appropriate to ignore Canadian law. As a result of this truncated analysis, the plaintiffs propose that federal common law provide not just the choice of law rule but also the substantive law for issues such as piercing the corporate veil and agency. Plaintiffs emphasize that there is a significant policy interest "implicit in our federal statutory law in providing a forum for adjudication of claims of violations of the law of nations." Wiwa, 226 F.3d at 100.[100]
*683 Pointing to a federal policy interest in providing a forum, however, is not a substitute for the identification of a conflict requiring displacement of state law. See Empire Healthchoice Assur., Inc. v. McVeigh, ___ U.S. ___, 126 S. Ct. 2121, 2132, 165 L. Ed. 2d 131 (2006) ("an area of uniquely federal interest establishes a necessary, not a sufficient, condition for the displacement of state law." (citation omitted)). Because the plaintiffs fail to identify any such conflict, New York's choice of law rules will be applied.[101]Id. at 2132-33.
"[U]nder New York choice of law principles, the law of the state of incorporation determines when the corporate form will be disregarded and liability will be imposed on shareholders." Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995) (citation omitted). The discussion that follows will work from the ground up, addressing first GNPOC, then TGNBV, and finally the intermediate Talisman subsidiaries. The law regarding the creation of a joint venture will be described in connection with Talisman's liability for the conduct of GNPOC. Finally, Talisman's liability on the theory that TGNBV was acting as its agent will be discussed in connection with TGNBV.
B. GNPOC
The plaintiffs seek to hold Talisman liable for GNPOC's conduct or the conduct of the Consortium Partners who formed GNPOC on the theory that Talisman is liable, through TGNBV, as a participant in a joint venture. GNPOC is a corporation. The plaintiffs have not shown either that it is appropriate to pierce the corporate veil or to treat it as a joint venture.
1. Veil Piercing
GNPOC is incorporated under the laws of Mauritius. GNPOC's articles of incorporation establish that Consortium Members, including TGNBV, own GNPOC shareholders. As a general rule, under the law of Mauritius, a plaintiff cannot recover damages from a shareholder for wrongs committed by the company. Mauritian law does allow for the corporate veil to be pierced, however, when it can be proved that a company conducts business with the intent to defraud creditors or as a mere facade. There are no Mauritian court decisions that provide guidance on what it means to operate as a facade. When faced with novel questions of corporate law, Mauritian courts turn to English case law for guidance. English courts find that a corporation is a facade when a subsidiary is established as a mere device for the purpose of evading existing obligations to other parties.
Plaintiffs have not presented evidence that the Consortium Members created GNPOC to shield themselves from existing liabilities or that GNPOC conducted its *684 business with the intent to defraud creditors. Consequently, GNPOC's corporate form will be observed.
2. Joint Venture Liability
Not only have plaintiffs failed to show that GNPOC's corporate veil should be pierced, they have also failed to show that GNPOC or the activities of the Consortium Partners would otherwise qualify as a joint venture.[102] The parties dispute which law should be applied to analyze joint venture liability. Plaintiffs would apply New York law, while defendant argues that the law of Mauritius governs. The first step in deciding a potential choice of law issue under New York law is to determine whether there is *an actual conflict between the laws of the two jurisdictions involved. Global-Net, 449 F.3d at 382. The plaintiffs have failed, however, to present evidence to create an issue of fact that a joint venture exists under the laws of either jurisdiction. As a consequence, there is no need to resolve the choice of law dispute. See Compagnie Noga D'Importation et D'Exportation, S.A. v. Russian Federation, 361 F.3d 676, 685 (2d Cir.2004) ("In any event, because we conclude that the answer to this question is the same regardless which of the bodies of law advocated by the parties is applied here, we need not cut the Gordian choice-of-law knot presented to us by the parties.").
Under Mauritian law a joint venture is an arrangement between two or more persons to pool resources in equal shares for a specific purpose and for the benefit of a third party. Two forms of joint ventures are recognized: societe de fait, which is not registered or incorporated, and societe civil, which must be registered with the Mauritian Registar of Companies. In order to prove that a corporation is a defacto societe de fait, it is necessary to show that all three elements of a joint venture exist: 1) ownership in equal shares 2) of an entity formed for a specific purpose and 3) operating for the benefit of a third party. A third party seeking to bringing suit against a societe de fait can only do so by bringing suit against all its members.
Under New York law, a joint venture is formed when:
(a) two or more persons enter into an agreement to carry on a venture for profit; (b) the agreement evinces their intent to be joint venturers; (c) each contributes property, financing, skill, knowledge, or effort; (d) each has some degree of joint control over the venture; and (e) provision is made for the sharing of both profits and losses.
SCS Comm'ns, Inc. v. Herrick Co., Inc., 360 F.3d 329, 341 (2d Cir.2004). All of the elements must be present before joint venture liability may be imposed. Itel Containers Int'l. Corp. v. Atlanttrafik Express Service Ltd., 909 F.2d 698, 701 (2d Cir. 1990). "A joint venture and a corporation are mutually exclusive ways of doing business." Id. at 702. "Though business associates may be treated as partners vis-a-vis *685 one another even when they operate through a corporation, the corporate form is to be respected in dealings with third parties." Id.
The plaintiffs have not presented evidence that would support the imposition of liability on TGNBV (and ultimately the plaintiffs contend on Talisman) as a joint venturer under Mauritian law. None of the agreements among the Consortium Members provides for participation in equal shares or is designed for the benefit of any third party.
Since GNPOC is organized as a corporation, New York law requires its corporate form to be respected and prevents suit by third parties under a joint venture theory. In arguing that the Consortium Members were joint venturers under New York law, the plaintiffs ignore this law (even though they refer to Itel, 909 F.2d at 702, which states that principle clearly) and rely primarily on the agreements the Consortium Members used to set up their operations in Sudan, specifically the Interim Agreement, Consortium Agreement, JOCSA, COPA, EPSA, Surface Agreement, JOA, and JCOA. None of these agreements, however, evidences an intent to create a joint venture.
The Interim Agreement contains a clause that states that the parties do not intend the Interim Agreement to create or constitute a partnership or joint venture ("No Partnership Clause"). The Consortium Agreement states that the Interim Agreement would "continue in full force and effect" except to the extent it was amended by the Consortium Agreement and other agreements and documents signed on March 1. Nothing in the Consortium Agreement amends the No Partnership Clause.
The JCOSA established GNPOC as a "private limited company with its members' liability limited by shares." The JOCSA makes clear that the parties intend to establish a private limited liability company and not a joint venture. The EPSA, COPA and the Surface Agreement are agreements between the Government and the Consortium Members and do not contain language that suggests an intention to enter into a joint venture.
The JOA and JCOA are agreements entered into by the Consortium Members detailing their respective obligations under their agreements with the Government of Sudan.[103] The JOA covers oil exploration, production, and development in Blocks 1, 2 and 4.[104] The JCOA covers the construction and operation of the Pipeline from Blocks 1, 2 and 4 to the Red Sea in northern Sudan. The JOA includes a section entitled "Nature of Relationship of Parties" which states that:
The rights, duties, obligations and liabilities of the Parties under this Agreement shall be several and individual, not joint or collective, it being the express intention of the Parties that their ownership of the respective Participating Interests shall be as tenants in common, and this Agreement shall not be deemed or construed to create a partnership, association or trust, or as authorising [sic] any Party to act as an agent, servant or employee for any other Party for any purpose whatsoever except as explicitly set forth herein. *686 (Emphasis supplied.) The JCOA contains a similar section, also entitled "Nature of the Relationship of the Parties" which states:
The rights, duties and obligations and liabilities as between the Parties under this Agreement shall be several and individual, not joint> or collective, it being the express intention of the Parties that their ownership of the respective Ownership Interests shall be as tenants in common, and this Agreement shall not be deemed or construed to create a partnership, association or trust, or as authorizing any Party to act as an agent, servant or employee for any other Party for any purpose whatsoever except as explicitly set forth herein.
(Emphasis supplied.) The JOA and JCOA, therefore, explicitly disavow the creation of any joint duties, rights or obligations.
The plaintiffs also point to the deposition testimony of Charles Selby ("Selby"), an officer and legal counsel to SPC, one of the original Consortium Members whose interests were eventually acquired by Talisman. At his deposition Selby testified that when the Consortium was being formed the relationship of the Consortium Members was described as one of partners or joint venturers and that, in his view, it was fair to characterize the formation of GNPOC as a joint venture.[105] Selby also testified, however, that during the early stages of the formation of the Consortium, the legal relationship of the parties had yet to be deemed.
The fact that Consortium Members may have viewed their relationship as a joint venture or described it informally as such is insufficient to create an issue of fact on joint venture liability. In order to create a joint venture under New York law the parties must enter into an agreement that evidences the intent to establish a joint venture. The plaintiffs have failed to point to any language in any of the agreements executed by the Consortium Members to support a finding of that intent. Because the plaintiffs have not created an issue of fact on one of the elements necessary to establish a joint venture, the plaintiffs are not entitled to disregard GNPOC's corporate form.
C. TGNBV and Goal Olie
The plaintiffs seek to hold Talisman liable for the acts of TGNBV either through piercing its corporate veil or under an agency theory.[106] TGNBV and its parent Goal Olie are incorporated under the laws of The Netherlands.
1. Piercing the Veil
Under Dutch law, the corporate veil may only be pierced to hold the shareholders of a company liable for claims against the company in limited circumstances which relate to insolvency and are not relevant to this litigation. Dutch law allows a parent company to be held liable for the misconduct of a subsidiary where the parent company has ignored the separate legal status of the subsidiary under the doctrine of equation. Where a plaintiff attempts to hold a parent company liable for the conduct *687 of an indirect subsidiary, Dutch law requires a plaintiff to pierce the corporate veil of each intermediate company before it may reach the parent company.
The doctrine of equation requires a showing that the corporate form has been abused to avoid a legal obligation.[107] In the only case where the Dutch Supreme Court has upheld a judgment of liability through the application of the doctrine of equation to two companies, the sole shareholder of one company set up a second company to avoid a third-party attachment that had been filed against him personally. That court has declined to impose liability where the sole basis for application of the doctrine of equation is the substantial overlap between a parent and its subsidiary, including the facts that they share the same board and conduct the same business activities, and that the parent controls the subsidiary's activities.
The plaintiffs have presented evidence that shows that Talisman closely monitored TGNBV and Goal Olie, that there was an overlap in the membership of the boards, and that some of the board members of both companies were Talisman officials. Viewing that evidence in the light most favorable to the plaintiffs, plaintiffs have still failed to create an issue of material fact that the doctrine of equation should be applied and that the corporate veil that separates TGNBV and Goal Olie from each other and ultimately from Talisman should be pierced. The plaintiffs have not shown any abuse of the corporate form.
2. Agency Liability
The plaintiffs also contend in the 2006 Complaint that Talisman can be held vicariously liable for any tort committed by TGNBV because TGNBV acted in the Sudan as Talisman's agent. The plaintiffs' truncated discussion of the legal theory relies exclusively on citation to Bowoto v. Chevron Texaco Corp., 312 F. Supp. 2d 1229 (N.D.Ca12004), an ATS decision which denied summary judgment and permitted the plaintiffs to proceed to trial on an actual agency theory but not an alter ego theory of liability. Id. at 1246-47. The plaintiffs seek to apply New York or federal common law principles of agency law, observing that they are identical.[108] Conceding that agency principles can be used to find personal jurisdiction over a parent corporation based on a subsidiary's presence, see Koehler v. Bank of Bermuda Limited, 101 F.3d 863, 865 (2d Cir.1996), Talisman argues that a plaintiff must pierce the corporate veil to establish liability of the parent for a subsidiary's acts and cannot substitute an agency theory of liability.
Plaintiffs have failed to address the choice of law analysis that should guide the selection of the substantive law of agency that applies to Talisman's relationship with TGNBV. This failure is particularly problematic because resolving the choice of law question under New York law would require, at a minimum, evidence of the law of two foreign jurisdictions. "[T]he relevant analytical approach to choice of law in tort actions in New York is *688 the interest analysis." GlobalNet, 449 F.3d at 384 (citation omitted). Interest analysis seeks to assess "which of the competing jurisdictions has the greatest interest in seeing its law applied to the matter at issue." Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt International B.V. v. Philippe S.E. Schreiber, 407 F.3d 34, 50 (2d Cir.2005). Where the choice of law concerns a loss allocation rule that "prohibits, assigns or limits liability after a tort occurs", id. (citation omitted), the interest analysis is conducted with reference to the principles set forth in Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972). Schreiber, 407 F.3d at 50. New York courts have applied the Neumeier principles to questions of vicarious liability. See Elson v. Defren, 283 A.D.2d 109, 726 N.Y.S.2d 407, 413 (1st Dept.2001).[109]
Under Neumeier, when the parties have different domiciles and it is not clear that the law of a domicile favors its respective litigant, the law of the place of the tort applies, "unless displacing it will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants." Schreiber, 407 F.3d at 50 (citation omitted).[110] The relevant jurisdictions for the Neumeier analysis would be the Sudan, which is both the locus of the tort and the domicile of most of the plaintiffs,[111] and the law of Canada, the domicile of Talisman. Under Neumeier, the presumption is that the law of the Sudan would apply.
The plaintiffs have not provided evidence of the law of agency from either the Sudan[112] or Canada. There is no reason to find that application of domestic law would be appropriate. Even if American law were applied it may not be appropriate under American law to impose liability on the parent of a closely-related subsidiary when the corporate veil cannot be pieced. See Itel, 909 F.2d at 702 (declining to reach issue of whether liability could be imposed on related corporations through agency theory without piercing the corporate veil). This Court declines to investigate these complex issues of foreign law in the absence of assistance from the parties. See In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 209 (2d Cir.2003). Having chosen to assert an agency theory of the eve of summary judgment practice, and to argue that they can proceed to trial on an agency theory, the plaintiffs had the obligation to support their theory with an adequate choice of law analysis. Having failed to do so, for the reasons already described, their motion to amend to plead this theory is denied.[113]
*689 D. English Subsidiaries
Even if the plaintiffs had shown that it is appropriate to pierce the corporate veil of TGNBV and Goal Olie, they would still need to pierce the corporate veil of three more English corporations in order to reach Talisman. Talisman (UK), Supertest and Igniteserve were each formed under laws of England. English law recognizes each company in a group of companies as a separate legal entity with separate rights and liabilities. A company will not be held liable for the misconduct of another based solely of ownership. When a plaintiff attempts to hold a parent liable for the acts of a subsidiary separated by one or more intermediate companies, the plaintiff must justify the piercing of the corporate veil of each separate corporation.
English courts will pierce the corporate veil to hold a parent liable when the subsidiary is so totally under the control of the parent that it cannot be' said to be carrying out its own business. In order to succeed on this theory there must be evidence of something more than supervision or control by the parent of the subsidiary. An English court will also pierce the corporate veil when a subsidiary is a mere sham or a facade. As previously described, a corporation will only be found to be a facade when it was established as a device to evade existing obligations to other parties.
The plaintiffs have not presented any evidence to show that the English subsidiaries did not have distinct businesses or that they were created to avoid existing debts. The only evidence that has been introduced about the corporate structures establishes that the Boards of Talisman UK and Supertest were identical and included Talisman employees Buckee and Sheppard. Taken in the light most favorable to the plaintiffs, this evidence is insufficient to create a material issue of fact that the corporate veil of any of the English subsidiaries should be disregarded.
In sum, the plaintiffs will not be permitted to amend their complaint to hold Talisman liable on theories of liability not pleaded in the 2003 Complaint. They have not explained why they delayed in presenting this motion to amend, and many of the theories they advance are either clearly futile or inadequately supported. To the extent that the plaintiffs seek to hold Talisman liable for aiding or conspiring with someone other than the Government, that application is also denied on the ground that the plaintiffs have utterly failed to show good cause for this transformation in the theory of their case.
Conclusion
Talisman's motion for summary judgment is granted. The plaintiffs' motion to amend is denied. Talisman's motion to preclude plaintiffs from seeking certain categories of damages is denied as moot.
NOTES
[1] As it has in previous Opinions in this litigation, this Opinion will refer to the statute as the Alien Tort Statute. See Presbyterian Church of the Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 469 n. 6 (S.D.N.Y.2005). Courts have also called the statute the Alien Torts Claim Act, see e.g., Flores v. Southern Peru Copper Corp., 343 F.3d 140, 143 (2d Cir.2003), as well as the Alien Tort Act, see, e.g., Kadic v. Karadzic, 70 F.3d 232, 236 (2d Cir.1995).
[2] It is not clear, of course, that there was personal jurisdiction over that Talisman affiliate in the United States.
[3] For additional background, see Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(DLC), 2005 WL 2082847 (S.D.N.Y. Aug. 30, 2005) (denying Talisman's motion to certify the Opinion of June 13, 2005 for interlocutory appeal); Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(DLC), 2005 WL 2082846 (S.D.N.Y. Aug. 30, 2005) (denying Talisman's motion for judgment on the pleadings based on the Statement of Interest from the United States Government); Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(DLC), 2005 WL 1994098 (S.D.N.Y. Aug. 19, 2005) (denying plaintiffs' motion for discovery sanctions); Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(DLC), 2005 WL 1060353 (S.D.N.Y. May 6, 2005) (resolving issues surrounding certain plaintiffs' standing to sue); Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(DLC), 2004 WL 1920978 (S.D.N.Y. Aug. 27, 2004) (denying Talisman's second motion to dismiss).
[4] The complaint was amended on February 25, 2002, and August 18, 2003.
[5] On March 18, 2003, Judge Schwartz ruled that the Government of Sudan must make an appearance if it wished to assert its immunity under the Foreign Sovereign Immunity Act (FSIA), 28 U.S.C. § 1602 et seq. Presbyterian Church of Sudan v. Talisman Energy, Inc., 01 Civ. 9882(AGS), 2003 WL 1342532 (S.D.N.Y. Mar. 18, 2003).
[6] A subsequent submission added three more exhibits.
[7] The Additional Statement referred to documents not by an exhibit number but by Bates number. At the request of the Court, the plaintiffs revised their submission and provided citations to exhibit numbers. In their revised submission the plaintiffs often cite to collections of exhibits without identifying a document or passage. The end result has been to make it particularly challenging to assess whether plaintiffs have admissible evidence to support their arguments.
[8] The spelling of the names of these states, which differs from the spelling on the map that follows, is drawn from the CIA World Factbook. See The World Factbook, Sudan (last updated Aug. 22, 2006), https://www.cia. gov/cia/publications/factbook/geos/su.html.
[9] GNPOC was a party to the JCOA and was added as a party to the JOA by a supplemental deed dated July 23, 1999. The intent to create GNPOC is expressly described in the Consortium Agreement. GNPOC is not a party to the agreements with the Government.
[10] Under the Khartoum Agreement, the SSCC was to be composed of ministers appointed by the President of the SSCC in consultation with "Southern political forces" The Governors of the southern states also sat on the SSCC. The President of the SSCC was to be appointed by the President of the Sudan "in consultation with the parties signatory" to the Khartoum Agreement.
[11] In a declaration in opposition to this motion Norton asserts that he explained to Talisman Vice President Nigel Hares ("Hares") that before any oil development work was done in a new area, the Sudanese military "cleared" the proposed work area of inhabitants to create a "safety zone." At his deposition, Norton had stated that he did not "specifically recall" the conversation with Hares and denied having personal knowledge of the Sudanese military committing human rights violations against civilians. A witness may not use a later affidavit to contradict deposition testimony in an effort to defeat a motion for summary judgment. See Bickerstaff v. Vassar College, 196 F.3d 435, 455 (2d Cir. 1999).
[12] The Control Risks Group study was commissioned by Arakis at Talisman's behest in an effort to keep Talisman's interest in the Sudan confidential.
[13] Supertest sold its shares in Goal Olie to Igniteserve on December 23, 1999.
[14] What appear to be the minutes of a TGNBV Board of Directors meeting describe employees seconded to TGNBV from Talisman as individuals who would "technically continue to be employed or retained as consultants by Talisman" but would be "seconded on a part-time or full-time basis to [TGNBV] and, in carrying out their duties as secondees, would be under the authority and subject to the decisions `of the board of directors of [TGNBV]."
[15] While there is a document from 2000 containing a recommendation that GNPOC enter into a formal security agreement with the Government, the plaintiffs have not pointed to other documentary evidence that a formal agreement was ever executed. It is not clear who the author of the 2000 document is and to whom the document was distributed.
[16] The SPDF, which is also referred to as the Southern People's Democratic Front, was a militia established by Machar with former members of the SSDF following the collapse of the Khartoum Agreement.
[17] The 2003 Complaint refers to a May 1999 Communique which the plaintiffs do not appear to have submitted with their summary judgment papers. As Talisman correctly observes, at this stage as well as at trial, the plaintiffs may rely only on authenticated, admissible evidence. The plaintiffs appear to concede that they are unable to authenticate the Communique and it will not be addressed further.
[18] The Harker Report provided an assessment of reports of slavery in the Sudan and the link between oil development and human rights violations, particularly forced displacement. Talisman contends the Harker Report is inadmissible hearsay.
[19] The Report adopted the conclusion of a United Nations official that "a `swath of scorched earth/clear territory' is being created around the oilfields."
[20] It is not clear from the deposition excerpt provided by the plaintiffs when this meeting took place.
[21] Rubkona airstrip is also located in Block 1 but is close to the border with Lundin's Block 5A, and supported Lundin's operations in Block 5A.
[22] It is not entirely clear who owned the Unity and Heglig airstrips. Under the terms of the EPSA, land acquired by GNPOC was to "become the Property of the Government as soon as it is purchased or acquired." Title to other fixed and movable assets was transferred to the Government once the costs of those assets had been recovered by GNPOC from revenue generated from oil production. There are statements in TGNBV documents, however, to the effect that the Heglig airstrip was a private airfield for support of GNPOC operations.
[23] GNPOC and the military kept fuel in the same fuel tanks but also were aware of how much fuel each had brought into the camp and how much fuel had been used, in essence maintaining a separate fuel balance sheet. Garth Butcher, a Talisman employee seconded to GNPOC who worked at Heglig, testified that in instances when the military had exhausted its supply of fuel, GNPOC would supply military aircraft with fuel until the military could deliver more.
[24] Talisman contests the admissibility of the Harker Report, in particular its statements about air attacks against civilians.
[25] The author of the report is not identified.
[26] "Gadet" refers to Peter Gadet, a military commander who had initially served in a militia that had splintered from the SSDF, but then had broken from that splinter group, and was believed to be affiliated with the SPLA.
[27] The reference to "defensive only" operations is a reference to Talisman's and perhaps TGNBV's desire to restrict military use of the airstrips to defensive operations only, and to forbid use of the airstrips for any offensive operations. As the Talisman and TGNBV documents reflect, however, this was a difficult line to draw, and one that it was nearly impossible for GNPOC to enforce.
[28] Reverend Matthew Mathiang Deang ("Reverend Deang") was in Koch, a village several miles from Bieh, on the day of the attack. He described seeing airplanes and smoke rising from Bieh. Chief Thomas Malual Kap ("Chief Kap") was "displaced from Bieh as a result" of the Government attack, but does not testify to having seen the attack. Nyot Tot Rieth ("Rieth") lost her husband in the attack but did not witness it. In their Responsive Statement, plaintiffs cite to deposition testimony about the Bieh attack by James Abelee ("Abelee"), a security officer with the World Food Program from 1996 until 2000, but the excerpts from Abelee's deposition that the plaintiffs offer do not contain a description of the attack. Finally, the Additional Statement refers to a document that is missing from the plaintiffs' submissions.
[29] Reverend Ninrew testified that he believed the attack he witnessed occurred in 2000, but that the event he was describing was the same 2002 attack on Bieh described in the 2003 Complaint.
[30] Taylor charged that Dingley, Reading and Capeling told him that "community development is a great cover for security work." Taylor also complained that Dingley and Reading used identification describing their work as "Community Development." As already explained, Taylor's evidence is inadmissible.
[31] Chief Patai does not explain how he could identify the allegiance of the forces that attacked Nimne two days later.
[32] The plaintiffs have not identified Alnof. There is no reason to believe he was an employee of either Talisman, TGNBV or GNPOC.
[33] The river is the Bahr-El-Arab, and can be seen on the map that shows Blocks 1, 2, 4 and 5A.
[34] The plaintiffs have not submitted Capeling's complete deposition, or even all of his testimony about the meeting. The brief passage they have offered on this issue leaves it unclear who the other attendees of the brain-storming meeting were and whether GNPOC ever reached a decision about exploring "south of the river."
[35] Capeling testified in his deposition that the Government "tried to establish that the Ministry of Energy and Mining be the focal point for communication with the Government."
[36] TGNBV was, naturally, well informed about conditions in the field. For example, in the Summer of 1999, Jemera Rone ("Rone"), who was researching human rights abuses in the Sudan, informed Capeling of his concern that forced displacements were occurring in the GNPOC concession area as part of an effort to establish a "cordon sanitaire" to aid in oil exploration activities.
TGNBV also hired a Sudanese lawyer, John Yor ("Yor"), to conduct an investigation into human rights abuses in the GNPOC concession that were disclosed in the Harker Report. Yor testified that "[a]lthough I received reports of displacement during my investigation, there were many causes of the displacement."
[37] As has been previously noted, the Government's Security Council was believed to control the Government forces that operated in the GNPOC concession.
[38] This number does not include Chief Mading Majik Kiir ("Kiir"), Yien Nyinar Riek ("Riek"), and Moris Bol Majok ("Majok"). Kiir is identified as a plaintiff in the Additional Statement but was not listed as a plaintiff in either the 2003 or 2006 Complaints, Majok's injuries are described in both the 2003 and 2006 Complaints and he is listed in both captions. Riek's injuries are also described in both complaints and he is listed in the caption of the 2003 Complaint but not the 2006 Complaint. Neither Majok or Riek is addressed by either party in the motion for summary judgment.
[39] Plaintiffs Stephen Kuina ("Kuina"), Luka Ayuol Yol ("Yol"), Puok Bol Mut ("Mut"), Chief Patai Tut ("Chief Tut"), and Chief Gatiuak Chiek Jang ("Chief Jang").
[40] Plaintiffs Mut and Chief Tut.
[41] Plaintiffs Yol, Chief Jang, Rieth, Reverend Deang, Reverend Ninrew, Chief Kap, Chief Tunguar Kueigwong Rat ("Chief Rat") and Chief Patai.
[42] While Talisman argues that several of the plaintiffs were not actually displaced by the attacks that they describe because they owned other homes or chose to leave voluntarily, the plaintiffs are entitled to the inference that they were displaced and it was the attack that caused their displacement.
[43] Plaintiffs Kuina, Mut, and Chief Tut in Blocks 1, 2 & 4; Reverend Ninrew, Chief Rat, Chief Kap, Chief Jang and Chief Patai in Block 5A; Yol in both concession areas.
[44] Mut was shot by a gunship in an attack in Block 4. Chief Patai was injured by a bomb from an Antonov in Block 5A. Rieth's husband Joseph Thiet Makuac was killed in the attack on Bieh in Block 5A and she is bringing a claim on his behalf.
[45] Fatuma Nyawang Garbang and Stephen Hoth.
[46] The Court has been unable to locate Athnoj on any of maps provided by the parties.
[47] Mut was displaced from Mankien, Wangkei, Nooriak, Kotrial Bek, and Lara. In his response to defendant's interrogatory, Mut also claimed to have been displaced from Kualkony, Wicok and Boaw, but has offered no other evidence to support those claims.
[48] Mut testified that two of the attacks that displaced him, attacks on Nooriak in 1998 and 1999, included bombers and gunships, At his deposition in June 2004, Mut testified that he first saw a gunship in 2002.
[49] Chief Tut was displaced from Mankien, Kotrial Bek, Kernyang, Ngonp, Lara, Mayen Jur and Thiek. There is no evidence to explain how Chief Tut knew the attacks that displaced him were by Government forces.
[50] Murahaleen are an arab militia, made up of retired army officers, who often ride on horseback.
[51] Kuina describes being displaced by fighting from each of these places but not helicopter or gunship attacks.
[52] There is no evidence to establish how Chief Jang knew that the forces that attacked Mankien in August 1999 and Chotjara in 2000 were from the Government.
[53] Chotjara is located in the. County of Nhialdiu. There is some confusion, based on Chief Jang's deposition testimony, about whether he was also displaced from the village of Nhialdu in Nhialdiu county. Chief Jang states in his May 2006 declaration that in his deposition, when he referred to Nhialdiu, he was referring to Nhialdiu county.
[54] Reverend Deang was not actually present for the raid on Gany.
[55] Nhialdu appears to be in Block 5A. This is consistent with Chief Rat's testimony. The Responsive Statement asserts that Nhialdiu is a name of an area that overlaps Blocks 5A and 4, but does not point to any evidentiary support for that assertion.
[56] In a February 2004 response to interrogatories, Chief Rat reported that he was displaced from Biel in 1998. In his July 2004 deposition, however, Chief Rat testified that he had voluntarily left Biel for Nhialdiu in 1999.
[57] The soldiers in the attack on Ngony were supported by helicopter gunships.
[58] The decision was also based on reports of other Government attacks. In his response to defendant's interrogatories Chief Patai claims also to have been displaced from Duer in 1999, however, plaintiffs have failed to submit evidence of this displacement.
[59] None of the churches identified by Ninrew were listed as having been damaged in the Presbyterian Church's response to defendant's interrogatories.
[60] The other four damaged churches were all built from thatch and had been either "severely damaged" or "burned." Reverend Ninrew attributes the damage to Government soldiers and allied militia but fails to explain how he knew who damaged the churches. Reverend Ninrew did not testify that he saw the attacks that damaged the churches. The other four churches were in Koch, Thornyor, Rier and Nyal. Koch and Thornyor are located in Block 5A and Nyal is in Block 5B, a concession block east of Block 5A. It is unclear whether Rier is in Block 5A or Block 4.
[61] The churches are in the villages of Chotjara, Wangrial, Riew, Biel, Bar Malual, Nyawal, Wanguar, and Wangtuak., Three of the churches (Chotjara, Wangrial, and Biel) were not identified in the Presbyterian Church's response to defendant's interrogatories,
[62] The plaintiffs urge a standard for summary judgment that would significantly reduce their burden, by among other things allowing them to rely on inadmissible evidence. Their application to alter the standard for a summary judgment motion is rejected.
[63] In observing that the only conspiracy crimes recognized by "international war crimes tribunals" were "conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a concrete plan to wage war," Hamdan noted that the jurisdiction of such tribunals "often extends beyond war crimes proper to crimes against humanity and crimes against the peace." Hamdan, 126 S.Ct. at 2784 (citation omitted).
[64] In Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir.2005) (per curiam), the Eleventh Circuit recognized conspiracy liability under the ATS for a number of violations of international law including crimes against humanity. Id. at 1159. As the plaintiffs point out in their brief, the Eleventh Circuit erred in doing so by drawing on domestic law, and not international law. Because this Court continues to believe that international law must supply the substantive law for plaintiffs' claims it declines to follow Cabello.
[65] To the extent that the plaintiffs' brief in opposition to this motion can also be read to argue that the plaintiffs believe that they have evidence to show the intentional targeting of civilians, that conduct may constitute a war crime. For the reasons already explained, however, Talisman could not be charged under the ATS with conspiring to participate in that war crime.
[66] The Nuremberg Charter included language that embraced the Pinkerton principle, Nuremberg Charter, art. 6, but the International Military Tribunal ("IMT") which implemented that charter refused to embrace the Pinkerton principle. See Conspiracy Amicus at 15 (noting that the pattern of the convictions of Rudolph Hess is evidence that the Pinkerton principle was not applied by the IMT); see also Danner, Guilty Associations at 116 (observing that the IMT judges "endorsed a restrictive notion of conspiracy").
[67] The plaintiffs cite to Nahimina as evidence of the ICTR's adoption of the Pinkerton principle, but do not point to any passage in the 240-page decision that supports this view. The passage they do quote addresses whether an agreement may be inferred from circumstantial evidence, which is a separate and uncontroversial proposition. See Nahimina, Judgement and Sentence at ¶ 1045.
[68] Articles 2 through 5 refer to the specific crimes described in the ITCY Statute, to wit, Grave breaches of the Geneva Conventions of 1949, Violations of the laws or customs of war, Genocide, and Crimes against humanity. ICTY Statute at art. 2-5.
[69] The use of the phrase "specifically directed" in Vasiljevic, Feb. 25 Judgement, at ¶ 102(i), may have been designed to address the issue of whether assistance must be "direct". In Prosecutor v. Tadic, Case No. 94-1-T, Opinion and Judgment (Trial Chamber, May 7, 1997), the ICTY trial court had conducted an extensive survey of the international precedent, focusing particularly on the Nuremberg trials, and had concluded that assistance which "directly and substantially affected the commission" of an offence would support aiding and abetting liability. Id. at ¶ 692. At least one trial chamber opinion has declined to require that assistance be both "direct" and "substantial", concluding that "the use of the term `direct' in qualifying the proximity of the assistance and the principal act to be misleading as it may imply that assistance needs to be tangible, or to have a causal effect on the crime." Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgement, ¶ 232 (Trial Chamber, Dec. 10, 1998). Requiring that the acts of the aider and abettor be "specifically directed" to assist the principal requires that the action of the aider be deliberate and intentional without creating confusion about the practical impact of the action.
[70] This Court has already observed that the Appeals Chambers of both the ICTR and ICTY are "endowed with the power to review and reverse Trial Chamber decisions for errors of law" and that where there are "inconsistencies between Trial Chamber decisions and Appeals Chamber decisions, decisions of the Appeals Chamber are authoritative." Presbyterian Church, 374 F.Supp.2d. at 340.
[71] Many international bodies have labeled the Government's conduct in western Sudan, known as Darfur, as genocide. This lawsuit does not allege any complicity in those acts.
[72] The plaintiffs have shown that Talisman was aware of reports in 1999 that the National Islamic Front, the ruling party in Sudan, was committed to a policy of jihad that included "enforced Arabization" of citizens in the south. The plaintiffs have not addressed whether jihad or enforced Arabization refers to the cultural or physical eradication of a group.
[73] The ICTY statute lists deportation, not forcible transfer, as a crime against humanity. See ICTY Statute art. 5. Forcible transfer is included, however, as a crime against humanity under the ICTY statute within the category designated as "other inhumane acts." See Prosecutor v. Milosevic, IT-02-54-T, Motion for Judgement of Acquittal, ¶ 41 (Trial Chamber, June 16, 2004).
[74] In their Responsive Statement, the plaintiffs explain that they asserted enslavement and rape on behalf of the class only.
[75] One plaintiff seeks damages due to the death of her husband. This plaintiff cannot provide eyewitness testimony of the circumstances under which her husband died. Talisman disputes in any event her legal right to recover compensation for that loss.
[76] The report that made this observation was written by Reading in June 2002. While there is no evidence about who received this report, some security reports were sent to Talisman officials.
[77] Plaintiffs urge that the second of the two Protocols Additional to the Geneva Convention, commonly referred to as Protocol II, also be considered as a source of war crimes. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed. Conflicts, June 8, 1977, 1125 U.N.T.S. 609. See also Kadic, 70 F.3d at 243 n. 8; Prosecutor v. Tadic, IT-94-1, Decision on Interlocutory Appeal on Jurisdiction, ¶ 117 (Oct. 2, 1995).
[78] Canada as a matter of national policy holds out the promise of the reinstatement of support services for Canadian companies engaged in trade with the Sudan as an incentive for the Sudan to resolve its internal disputes peacefully, believing that engagement and economic development of the country is the best route to bringing peace and the rule of law. See Presbyterian Church, 2005 WL 2082846, at *1, *6 (describing diplomatic note from the Embassy of Canada to the United States Department of State and distinguishing oil exploration from trade).
[79] Any business enterprise in or trade with the Sudan would no doubt have contributed to the Government's coffers.
[80] Some of the evidence on which the plaintiffs properly rely to show that Talisman was informed of a problem, becomes hearsay when the plaintiffs try to use it to prove that the problem was in fact occurring. For instance, to the extent that a TGNBV security report is based on hearsay, it may not be used to show the occurrence of the incidents described in it.
[81] Decisions to make capital improvements to oil facilities were made through Authorizations For Expenditures (AFE) forms that were circulated to all GNPOC members for approval. The plaintiffs have not pointed to any AFE form addressed to improvements of the airstrips. In any event, TGNBV, and not Talisman, was a member of GNPOC.
[82] The plaintiffs point to no evidence that Capeling is the author.
[83] As will be discussed later in this Opinion, the 2003 Complaint did not plead an agency theory of liability to hold Talisman liable for TGNBV's actions, and the attempt to add such a theory through the 2006 Complaint fails.
[84] Plaintiffs withdrew their designation of Edward O'Connor as an expert at his deposition on March 2, 2006.
[85] Talisman has submitted a two page excerpt from the HRW Report to support its motion to exclude the Goldberg Report.
[86] Plaintiffs present a few documents that reflect different individuals' views about the connection between oil revenues and military spending, but do not fill the evidentiary gap with competent evidence. An email from a Talisman employee seconded to GNPOC, sent to his sisters, speculates that "oil will just buy more military power to use against the south" and "[n]obody can tell me that this oil is not buying more military power." A 2001 Security Assessment by TGNBV security officer Dingley describes a possible increase in military spending by the Government.
A TGNBV security report from the summer of 2002 states that "the nature of the conflict has changed substantially in the last 3 and half years. What was an essentially low-tech bush war has changed at least for the [Government]. The goose is now far stronger and has a distinct technical superiority over the rebels."
[87] The plaintiffs' brief refers specifically to only these three forms of assistance.
[88] Plaintiffs also claim that material assistance was provided to militia groups "by the oil companies." Plaintiffs only admissible evidence linking Talisman to the militia groups is testimony by Gatduel about a meeting with someone called Alnof about an attack on Nimne. There is no evidence of who Alnof is or for whom he worked.
[89] Moreover, the plaintiffs acknowledge that not all Government attacks were even connected to the oil industry. According to the plaintiffs' experts, the Government's aggression in the south was also part of a long-term plan of "islamization" and "jihad."
[90] As for the remaining three plaintiffs displaced from Block 5A, they have not always identified evidence to show that it was the Government who attacked the settlement, or to show that the attack was aimed at civilians.
[91] The plaintiffs argue that Talisman can be linked to the conduct of Lundin in Block 5A, and therefore to attacks in Block 5A, because of a "joint seismic program" between Lundin and Talisman and because oil from Block 5A was transported in the Pipeline. There is no evidence of a "joint seismic program" nor is there any evidence that oil from Block 5A was transported through the Pipeline. Further, Capeling has testified that no oil from Block 5A, or any other non-GNPOC concession, was ever carried in the Pipeline during the time of Talisman's investment in the Sudan.
The plaintiffs also make the following statement in their Responsive Statement: "Lundin's investment in [B]lock 5[A] made economic sense only because of the pipeline which ran from Talisman's concession to the Port Sudan refinery. Conversely, the pipeline made economic sense only if it could also accommodate oil from Block 5[A]." The identified support for this statement is deposition testimony from a human rights researcher that Lundin had "mentioned to Talisman many times that it wanted to hook up to Talisman's pipeline in Block 1." This is inadmissible hearsay, and does not in any event prove the proposition asserted in the Responsive Statement.
[92] In their Responsive Statement, plaintiffs cite to evidence from the deposition of James Abelee about the Government "tactics" of tearing down churches, but have not included the relevant pages of Abelee's deposition in their evidence.
[93] The plaintiffs' brief in opposition to summary judgment described not only TGNBV but also GNPOC as Talisman's agent. The 2006 Complaint asserts an agency theory of liability as to TGNBV alone.
[94] The plaintiffs' motion to amend was brought under Rule 15(a), Fed.R.Civ.P., despite the existence of a scheduling order which required any amended pleading to be served by August 15, 2003. Because of that scheduling order, the motion is evaluated under Rule 16, Fed.R.Civ.P. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000) (holding that district court did not abuse its discretion in denying leave to amend after deadline set in scheduling order where moving party failed to establish good cause).
[95] Plaintiffs point out that Judge Schwartz observed in a footnote in his March 19, 2003 Opinion, that Talisman may be held liable for GNPOC's acts under a joint venture theory of liability. Presbyterian Church, 244 F.Supp.2d at 352 n. 50. Plaintiffs' thereafter amended their complainton August 18, 2003and did not plead a joint venture theory.
[96] The motion to amend was filed on April 12, 2006, making it impossible for it to be briefed and decided before April 28, the date on which summary judgment motions were due.
[97] The trial date of January 8, 2007 was set in September 2005, and as the parties were advised at that time, is firm. As a consequence, the schedule for summary judgment motions was chosen to allow time for decision and thereafter, time for the parties' preparation of pre-trial submissions.
[98] The plaintiffs assert that the amendment is not futile because it could withstand a motion to dismiss for failure to state a claim. It is much too late in the day for the application of that standard. With the preparation of the Pretrial Order as the next step in the litigation, the newly advanced theories must be able to survive summary judgment practice.
[99] The plaintiffs point out that in Corporacion Venezolana de Foment() v. Vintero Sales Corp., 629 F.2d 786 (2d Cir.1980), the Second Circuit applied federal choice of law rules in a federal question case, with the observation that the "use of federal common law in specialized areas where jurisdiction is not based on diversity has been sanctioned by the Supreme Court since the day Erie was decided." Id. at 795. A more recent Second Circuit decision, however, observed that Corporacion was decided "without the benefit of . . . federal decisions which limited our power to create federal common law." Pescatore v. Pan American World Airways, Inc., 97 F.3d 1, 12 (2d Cir.1996).
[100] This federal interest has been acknowledged in this litigation. See Presbyterian Church of the Sudan v. Talisman Energy, Inc., 2005 WL 2082846, at *7.
[101] It is unlikely that any conflict could be identified. Since choice of law rules seek to insure that a case will be resolved under the same rules of conduct whatever the forum, and that rights of foreign sovereigns will be respected, see Lauritzen, 345 U.S. at 578, 591, 73 S. Ct. 921, it is difficult to believe that federal choice of law rules would not require the application of the law of the state of incorporation to a determination of whether to ignore the corporate form. Plaintiffs' only argument in support of an actual conflict is a footnote that asserts that if New York choice of law rules would result in Dutch law governing questions of corporate form in this action, then the application of New York law reveals a significant conflict with a federal policy. This result-driven logic is no substitute for the identification of the federal choice of law rule or of a federal policy that is in conflict with the application of New York's choice of law rules.
[102] The plaintiffs include the Government as one of those joint venturers through its ownership of Sudapet, and thereby seek to hold Talisman liable for the Government's conduct as a joint venturer. In order for the Government to be viewed as one of the joint venturers, Sudapet's corporate form would have to be disregarded. The plaintiffs have failed to provide evidence of the law of Sudan to show what standard should be applied to pierce the corporate veil, or to point to any evidence that describes the relationship of the Government and Sudapet, much less evidence that supports their contention that Sudapet's corporate form should be disregarded. See First Nat. City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, 626-27, 103 S. Ct. 2591, 77 L. Ed. 2d 46 (1983) (noting that "government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such").
[103] Under both agreements the duties of the Consortium Members under their agreements with the Government were to be performed by GNPOC as the "Joint Operating Company" and Operator".
[104] The oil operations to be conducted in Blocks 1, 2 and 4 were governed by the Exploration and Production Sharing Agreement ("EPSA"), that the Consortium Members had entered into with the Government on March 1, 1997.
[105] Plaintiffs also point to a document from February 27, 1997, that seems to be from Arakis, describing the formation of the Consortium. The document concludes that "the partners to this Sudan petroleum joint venture project can now look ahead to a long and prosperous relationship as developers of one of the last great oil frontiers in the world today." (Emphasis supplied.)
[106] When this action was filed, TGNBV had net assets of over $400 million and net income of over $90 million. For whatever reason, the plaintiffs chose not to sue TGNBV.
[107] Dutch law bears a remarkable similarity to the law of New. York, which requires a showing both that the corporate form has been disregarded and that a fraud or other wrong was committed through the abuse of the corporate form. See In re Vebeliunas, 332 F.3d 85, 91-92 (2d Cir.2003).
[108] Under federal law, an agency relationship "depends on the existence of three elements: (1) the manifestation by the principal that the agent shall act for him; (2) the agent's acceptance of the undertaking; and (3) the understanding of the parties that the principal is to be in control of the undertaking." Cleveland v. Caplaw Enters., 448 F.3d 518, 522 (2d Cir.2006) (citation omitted).
[109] Under New York law, an attempt to use agency principles to hold a party liable for the tort of another is properly characterized as a question of vicarious liability. See Filemyr v. Lombardo, 11 A.D.3d 581, 782 N.Y.S.2d 670, 671 (2004).
[110] Neumeier set forth three rules to guide a court in choosing between the relevant interests at stake. Schreiber, 407 F.3d at 50. "The first applies when the parties share a domicile; the second applies when the parties are domiciled in different states and the law of each state is favorable to its respective litigant; and the third is applicable to all other split-domicile cases." Id.
[111] Three of the plaintiffs, NCDS, Garbang, and Hoth, reside in the United States and are domiciliaries of Minnesota, Illinois and Nebraska, respectively.
[112] While the Sudan is not an adequate forum for this litigation, see Presbyterian Church, 244 F.Supp.2d at 335-36, that does not mean that Sudanese law should not supply the rule of decision.
[113] As explained in the first section of this Opinion, the plaintiffs need at a minimum to be able to impose liability on Talisman for GNPOC's actions. Tagging Talisman for TGNBV's conduct gets them only part way on that journey. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611800/ | 39 Cal.App.2d 52 (1940)
H. H. GREEN, Appellant,
v.
GRIMES-STASSFORTH STATIONERY COMPANY (a Corporation) et al., Respondents.
Civ. No. 11292.
California Court of Appeals. First Appellate District, Division One.
May 10, 1940.
Desser & Rau, Milton N. Sherman and Jack L. Rau for Appellant.
Michael F. Shannon, Thomas A. Wood and Farrand & Slosson for Respondents.
Peters, P. J.
Plaintiff appeals from a judgment of dismissal entered after the sustaining of demurrers of the two defendants to his second amended complaint.
The action was brought under the provisions of the Unfair Practices Act as amended in 1935 (Stats. 1913, p. 508, amended by Stats. 1935, p. 1546, Deering's Gen. Laws, 1935 Supp., Act 8781, p. 2063) to obtain a mandatory injunction ordering defendants to sell certain filing supplies to plaintiff at the same price at which they sell such supplies to other dealers in the same neighborhood as plaintiff in Los Angeles, and for actual and punitive damages.
The second amended complaint alleges that the plaintiff maintains a retail store in Los Angeles selling stationery and filing supplies; that defendants are engaged in the business of selling stationery and filing supplies at retail and wholesale, and are jobbers and wholesalers of said supplies in Los Angeles; that defendant Grimes-Stassforth Stationery Company is the exclusive agent for the Shaw-Walker line of filing cabinets and supplies in the Los Angeles area and defendant Schwabacher-Frey Company for the Globe-Wernicke line of such supplies; that during the two years preceding the filing of the complaint plaintiff purchased supplies and stationery from the defendants, including supplies in the above lines, at the regular dealers' discounts of 331/3 to 40 per cent on filing supplies, and 10 to 20 per cent on stationery supplies, that in November, 1936, defendants, with intent to destroy competition and to discriminate against plaintiff, refused to sell filing supplies of the above lines to plaintiff at the dealers' or any other discount, and demanded the retail price therefor, which plaintiff paid; that defendants still continue to demand the retail price for these supplies from plaintiff, *54 while selling to other retail stationery stores located in the same neighborhood as plaintiff at the regular dealers' discount. Pertinent allegations of damage are made as to each defendant, and in a third cause of action it is alleged that defendants conspired to discriminate against plaintiff, and refused to sell to him at wholesale prices pursuant to such conspiracy.
The constitutionality of the Unfair Practices Act is no longer open to question. Since the filing of the briefs herein, the Supreme Court has upheld the constitutionality of the act. (Wholesale T. Dealers v. National etc. Co., 11 Cal.2d 634 [82 PaCal.2d 3, 118 A.L.R. 486]; see, also, Max Factor & Co. v. Kunsman, 5 Cal.2d 446 [55 PaCal.2d 177], affirmed by the United States Supreme Court, 299 U.S. 198 [57 S.Ct. 147, 81 L.Ed. 122], holding constitutional the Fair Trade Act as amended in 1933 [Stats. 1933, p. 793].)
Section 1 of the Unfair Practices Act, supra, as amended in 1935, so far as is pertinent here, reads as follows: "It shall be unlawful for any person, firm, or corporation, doing business in the State of California and engaged in the production, manufacture, distribution or sale of any commodity, or product, ... of general use or consumption, ... with the intent to destroy the competition of any regular established dealer in such commodity, product or service, or to prevent the competition of any person, firm, private corporation, ... who or which in good faith, intends and attempts to become such dealer, to discriminate between different sections, communities or cities or portions thereof, or between different locations in such sections, communities, cities or portions thereof in this State, by selling or furnishing such commodity, product or service at a lower rate in one section, community or city, or any portion thereof, or in one location in such section, community, or city or any portion thereof, than in another after making allowance for difference, if any, in the grade or quality, quantity and in the actual cost of transportation from the point of production, if a raw product or commodity, or from the point of manufacture, if a manufactured product or commodity. ..." (Italics ours.)
Respondents seek to sustain the action of the trial court in sustaining the demurrers on the ground that section 1 of the act, supra, only prohibits price discrimination between different localities or neighborhoods, and does not prohibit *55 price discrimination as against individual dealers, which is the only discrimination alleged in the complaint. Respondents also urge that the complaint fails to state a cause of action within the above-quoted section 1 for the reason that the filing supplies of which they are the exclusive agents are not articles of "general use or consumption" within the meaning of the section.
[1] We do not find it necessary to pass on these two points on their merits for the reason that there is a third attack made on the sufficiency of the complaint by respondents that seems to us to be sound.
Section 1, supra, provides that, in determining whether a dealer is guilty of price discrimination, an allowance may be made for the "difference, if any, in the grade or quality, quantity and in the actual cost of transportation" of the commodity. The complaint alleges that the defendants refused to sell filing supplies to plaintiff at dealers' discounts, and demanded and received the full retail price therefor, and that the defendants continue to demand the retail price for all purchases of these supplies sought to be made by plaintiff. The particular purchase alleged against respondent Grimes-Stassforth Stationery Company amounted to $2.20, while the particular purchase alleged against Schwabacher-Frey Company amounted to $3.21. The complaint further alleges that respondents are selling the designated filing supplies to other retail stationery stores located in the same neighborhood as plaintiff at dealers' discounts, but that the retail price was demanded from plaintiff, and a discount refused "with the wrongful and unlawful intent to discriminate against plaintiff", and "with the intent to destroy the competition of plaintiff in said articles". Respondents contend that the above allegations do not negative a difference in price based on the quantity purchased, and that it would appear from the complaint that plaintiff is demanding the wholesale price for retail quantities.
The complaint attempts to state a statutory cause of action predicated entirely upon the terms of the Unfair Practices Act. Under section 1, supra, it is not every difference in price that is made unlawful, but only those differences, made with the requisite intent, that cannot be justified after a proper allowance has been made for differences in grade, quality, quantity or cost of transportation. The complaint *56 fails to allege that the respondents sold to other dealers in the same quantities as are here involved at a discount, and fails to allege that the price differences which are alleged were not based on differences in grade, quality or quantity. This was an essential allegation. [2] Where a party relies for recovery upon a purely statutory liability it is indispensable that he plead facts demonstrating his right to recover under the statute. The complaint must plead every fact which is essential to the cause of action under the statute. Where a party relies on a statute which contains a limitation in the clause creating and defining the liability, as here, such limitation must be negatived in the complaint. These principles supported by authorities from many states are fully set forth in 49 Corpus Juris, sections 167 and 169, pages 151 and 153. (See, also, 21 Cal.Jur., sec. 36, p. 60; 21 R. C. L., sec. 7, p. 443.) In Bailey Trading Co. v. Levy, 72 Cal.App. 339, 344, [237 P. 408], in considering a similar problem, the court stated: "In construing the complaint to determine what the answer to that question should be, we must keep in mind the proposition that the relief sought herein is one which is alone afforded or authorized by statute--that is to say, the plaintiffs are relying upon a right given solely by statute, and that the rule is that where an action is founded on a statutory right or a right deducible wholly from statute, the plaintiff must, by his complaint, bring himself squarely and clearly within the terms or provisions of the statute upon which he relies or must rely to state a cause of action. 'When a pleader wishes to avail himself of a statutory privilege or right given by particular facts, he must show the facts, and those facts which the statute requires as a foundation of the action must be stated in the complaint. ... In remedial actions founded on a statute such averments must be made as are necessary to prove the case within the statute.' (Sutherland on Code Pleading and Practice, sec. 5630. See, also, Dye v. Dye, 11 Cal. 163, 167, 168; Himmelman v. Danos, 35 Cal. 441, 448; County of San Luis Obispo v. Hendricks, 71 Cal. 242, 246 [11 P. 682].)"
[3] It cannot be successfully contended that the allegation that respondents refused to sell to appellant at a discount "with the wrongful and unlawful intent to discriminate" against appellant is a sufficient allegation. Under the statute, even though respondents intended to discriminate *57 against appellant, if such discrimination was in fact predicated upon differences in quantity, no liability would attach to respondents. The allegation that the discrimination was "wrongful" and "unlawful" can in no way assist appellant. Such allegations are mere legal conclusions, and are surplusage, and insufficient to raise an issue of fact. (21 Cal.Jur., sec. 16, p. 31.)
[4] The demurrers were sustained with leave to amend. Appellant did not see fit to take advantage of the right to amend, so cannot now object that the defect in the complaint could be cured by amendment.
The judgment appealed from is affirmed.
Knight, J., and Ward, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611797/ | 39 Cal. App. 2d 23 (1940)
THE CITY OF NEWPORT BEACH (a Municipal Corporation) et al,. Respondents,
v.
ROBERT FAGER et al., Appellants.
Civ. No. 12497.
California Court of Appeals. Second Appellate District, Division Two.
May 8, 1940.
Owen E. Kupfer, Loren A. Butts and H. B. Cornell for Appellants.
Roland Thompson and Rutan, Mize & Kroese for Respondents.
Wood, J.
Actions were commenced by the City of Newport Beach and Newport Harbor Post No. 291 of the American Legion to quiet title to certain parcels of land abutting upon the shore of Newport Bay. A peninsula extending in an easterly direction from the mainland separates Newport Bay from the Pacific Ocean and the land in question is part of this peninsula, facing northerly toward the bay. The actions *26 were consolidated for trial and a judgment was entered in favor of the plaintiffs, from which defendants have prosecuted this appeal.
The defendants are the present and former owners of lots in a subdivision known as block 109, section B, Newport Bay. The official subdivision map shows that in 1905 the lots were bounded on the north by an alley. This alley was never actually improved but was officially abandoned in 1908. The land in controversy consists principally of reclaimed tide land which was filled as a result of certain dredging operations carried on by the city between 1918 and 1923. In 1917 the United States War Department established a bulkhead line in the bay which was located parallel to and about 260 feet northerly of the center line of the alley. The material from the dredging operations was deposited in the area between such bulkhead line and the northerly boundary of block 109. After the land was filled, the City of Newport Beach constructed a street designated as Bay Avenue, which is 50 feet in width, parallel to and 100 feet northerly of the center line of the alley shown on the subdivision map. Ninth and Tenth Streets, which constitute the easterly and westerly boundaries of block 109, were likewise extended through such filled area to the bulkhead line.
Each defendant claims title to, or at least the right of access to navigable water over, a strip of land between the northerly boundary of his lot and the bulkhead line, bounded easterly and westerly by the northerly prolongations of the lot lines. Defendants' claims are based upon asserted rights as littoral owners of the upland. The city claims title to the land in question by virtue of certain legislative grants as well as by private deed of the portion of the upland found by the court to have existed between the northerly boundaries of the lots in block 109 and the line of mean high tide. The several legislative grants upon which the city bases its claim of title are as follows: In 1919 the state granted to the city all tide land and submerged land within the city bordering upon or in front of the upland then owned by the city. (Stats. 1919, chap. 494, p. 1011.) In 1927 the state granted to the city all tide land and submerged land bordering upon, in and under Newport Bay and situated below the line of mean high tide, which had not been previously granted to the city. (Stats. 1927, chap. 70, p. 125.) In 1929 the state *27 granted to the city all tide lands, submerged lands and filled lands within the corporate limits of the city, situated below the line of mean high tide, which had not been previously granted to the city. (Stats. 1929, chap. 813, p. 1704.) The American Legion claims title as the grantee of the City of Newport Beach to that portion of the land in question lying between the northerly boundary of the alley and the southerly boundary of Bay Avenue in front of the lots owned by defendants.
The defendants contend that when the area in question was in a state of nature the northerly boundary of their lots was the line of the mean high tide of the Pacific Ocean in Newport Bay and that such line was to the south of the alley above referred to. The trial court found that at all times there was upland between the northerly boundary of defendants' lots and the line of the mean high tide. Defendants now contend that these findings of the trial court are not supported by the evidence, but we find it unnecessary to pass upon this contention, for if such findings were held to be unsupported by the evidence defendants' claims would nevertheless be defeated under settled principles of law relative to the rights of littoral owners.
The decision in Koyer v. Miner, 172 Cal. 448 [156 P. 1023], is determinative of the present appeal so far as the asserted littoral rights of the defendants are concerned. In that case plaintiff, who owned land bounded by the line of ordinary high tide in San Pedro Bay, sought to quiet title to certain reclaimed tide land in front of his property and to restrain defendants from maintaining structures on such filled land which prevented his free access to the navigable waters of the bay. The tide lands bordering on plaintiff's property had been granted by the state to the city of San Pedro and had been reclaimed under an agreement between the city and defendant Miner. Miner agreed to erect a seawall on the harbor front line established by the federal government and to fill the land between such seawall and plaintiff's land, dedicating certain portions thereof for use as public streets; the remainder of such filled land was to be held by Miner in fee, or if the grant of the fee was invalid, then under lease for a term of fifty years. The other defendants claimed rights in the filled land as successors in interest of Miner. In concluding that plaintiff as a littoral owner had no right of *28 access to the waters of the bay over such filled land, the court relied upon the case of Henry Dalton etc. Co. v. Oakland, 168 Cal. 463 [143 P. 721], and quoted the following language therefrom: "... when the public authorities see fit to make improvements on the land below high water mark for purposes of navigation the riparian owner must yield thereto ... the littoral rights of the defendants cannot impinge upon the control by the state of tidelands for the public purposes of navigation and fishery, or affect the public easement for those purposes. ... If such improvements have the effect of cutting off access over said tide-lands from the upland of the plaintiff, it is no ground of complaint because, as has been pointed out, it had no right as an upland owner to the free and unobstructed access to navigable waters over said tide-lands as against the right of the state to at any time devote them to the improvements of the harbor of Oakland in aid of the public easement of navigation and commerce." It was further held that the only littoral right which plaintiff had by virtue of his ownership of the upland was the right of access to the waters of the bay and that since this sole incident of littoral ownership had been rightfully terminated by the harbor front improvement plaintiff had no right to question the use to which the state was devoting such tide lands.
[1] We are satisfied that the correct rule is that the littoral owner of uplands upon a navigable bay has no right of access to the waters of the bay over intervening tide lands, whether filled or unfilled, which have been granted by the state to a city in trust for the purpose of improving such navigable bay in furtherance of commerce and navigation. (City of Oakland v. Buteau, 219 Cal. 745 [29 PaCal.2d 177]; People v. Southern Pac. R. Co., 169 Cal. 537 [147 P. 274].) [2] Although it is true that as against a stranger a littoral owner of upland bordering upon navigable waters may not be deprived of his right of access to such waters, no such right exists in favor of such littoral owner as against the state or its grantee in the exercise of a lawful use or purpose. (Boone v. Kingsbury, 206 Cal. 148 [273 P. 797]; San Francisco Sav. Union v. R. G. R. Petroleum Co., 144 Cal. 134 [77 P. 823, 103 Am. St. Rep. 72, 1 Ann. Cas. 182, 66 L.R.A. 242].) [3] It is apparent that if the court had found defendants to be littoral owners the result would have been the same. *29 No rights in the filled land involved in this action could have been asserted by the defendants as against the City of Newport Beach. In dredging the bay and filling the tide lands in question the city was carrying out a plan for the general development of the bay as a harbor and at the same time was improving the harbor front. The street construction on such land facilitated easy access to the waters of the bay by the general public and all of the improvements were in furtherance of the purposes for which the city held the land in trust.
[4] It is contended by defendants that the court erred in finding that the land in question had been freed from the tide land trust under which it was held by the city. The record discloses that in 1935 the legislature adopted an act authorizing the bringing of a suit against the state to quiet title to the land involved in this action. (Stats. 1935, chap. 448.) An action was thereafter commenced by the present plaintiffs against the state to quiet title to the land in accordance with their respective interests therein. A judgment was entered adjudging each plaintiff to be the owner of the portion of the land claimed by it free and clear of any public trust. [5] It is within the power of the legislature to free reclaimed tide land from the public trust when such land is no longer required for navigation, commerce or fisheries and when to do so will not substantially impair the public interest in the lands and waters remaining. (Atwood v. Hammond, 4 Cal. 2d 31 [48 PaCal.2d 20]; Knudson v. Kearney, 171 Cal. 250 [152 P. 541].) There is no showing that the land in question is required for navigation, commerce or fisheries, nor is there any evidence that the public interest in the remaining land and waters has been impaired in any way. The legislative act authorizing suit to quiet title is susceptible of but one construction, i. e., that it was the intent of the legislature to free the land involved from the public trust under which it had theretofore been held for, by virtue of the prior grants to the city, the state had divested itself of all interest in such land excepting its interest as the sovereign in protecting the public trust.
[6] Defendants further contend that the city never acquired title to the land in controversy. This argument is based upon the fact that the first legislative grant to the city covered only tide land and submerged land bordering upon or in front of upland then owned by the city, defendants *30 asserting that at that time the city owned no upland in front of block 109. In the interval between the first grant and the subsequent grants the land in dispute was artificially filled to a point above the line of mean high tide so that when the later grants of tide lands, submerged lands and filled lands "below the line of mean high tide" were made, defendants argue that no title to the filled land above the line of mean high tide was conveyed. Our answer to this contention is found in the case of Miller v. Stockburger, 12 Cal. 2d 440 [85 PaCal.2d 132]. In that case, the same contention was made with respect to a similar legislative grant conveying to the city of Long Beach "all tidelands and submerged lands, whether filled or unfilled, ... and situated below the mean high tide ...". In disposing of such contention the court states at page 444: "It would seem clear that the only lands which the legislature could possibly have had in mind (i. e., in using the words 'filled or unfilled') which were not included in the description 'Tidelands and submerged lands ... situated below the line of mean high tide' would be lands which formerly had been situated below said mean high tide line, but which at the time of the grant, had been filled in such manner as not to lose their character as tidelands or submerged lands." When in 1929 the legislature granted to the City of Newport Beach all tide lands, submerged lands and filled lands situated below the line of mean high tide such grant included so much of the filled land in question as had been formerly below the line of mean high tide. The fact that tide land is artificially raised above the line of mean high tide does not operate to divest the state of its title thereto nor does it change the character of such tide land. (Patton v. City of Los Angeles, 169 Cal. 521 [147 P. 141].) In the Patton case it was held that a legislative grant of all the tide and submerged lands within the city boundaries included tide land which had been artificially filled prior to the time when the grant was made.
[7] The legislature in 1931 fixed the line of mean high tide in front of lots 11 to 18, inclusive, in block 109 as being coincident with the bulkhead line. Contrary to the contention of defendants, this act cannot be construed as an abandonment of the portion of the filled land which is situated between the bulkhead line and the center line of the alley. The title to the filled land having vested in the city prior to *31 1931, the subsequent fixing of the line of mean high tide could not detract from the earlier grants of title.
[8] Defendants assert that the effect of the judgment was to deprive them of their property rights without due process and without compensation, contrary to constitutional guaranties. It must be borne in mind, however, that the littoral rights of an upland owner who does not own title to the submerged land or tide land in front of his property are, under the law in this state, subject to being terminated at will by any disposition which the state may choose to make of such submerged lands or tide lands. (Koyer v. Miner, supra; City of Oakland v. Buteau, supra.) Defendants as littoral owners are being deprived of no property right since their right of access over the intervening tide lands to navigable water was a qualified right at all times subordinate to the paramount right of the state in which title to such tide lands was vested. No right of action exists in favor of a littoral owner whose right of access over the tide lands to navigable water has been cut off by the disposition which the state has made of such tide lands. (Koyer v. Miner, supra.)
[9] All of the evidence relating to the character of the major portion of the land in question shows that it is artificially filled tide land. There is therefore no merit in the argument of defendants that such land is to be treated as an accretion to which they, as the respective upland owners, are entitled. In order for a littoral owner to be entitled to accretions which may form upon the upland, such accretions must have been the result of natural causes and must have been formed gradually and imperceptibly. (City of Los Angeles v. Anderson, 206 Cal. 662 [275 P. 789].) Accretions which have been added to the upland by artificial means do not inure to the benefit of the littoral owner but remain in the state or its successor in interest. (Dana v. Jackson Street Wharf Co., 31 Cal. 118 [89 Am. Dec. 164]; Patton v. City of Los Angeles, supra.)
[10] The suggestion of defendants that the city was without power to convey title to the portion of the land claimed by the American Legion because of the asserted prohibition against such conveyance which is found in section 862.2 of the Municipal Corporations Act (Deering, Gen. Laws, Act 5233) does not merit extended discussion. In no event could defendants have been prejudiced for, if the American Legion *32 does not own the land under a valid deed from the city then such land is owned by the city. In either instance the land would be owned to the exclusion of any asserted claim of defendants, who are not on this appeal in position to attack the findings settling the title to the lands as between the two plaintiffs. (Fouch v. Johnston, 199 Cal. 437 [249 P. 852]; Clapp v. Lorraine, 92 Cal. App. 270 [267 P. 911].)
The judgment is affirmed.
Moore, P. J., concurred.
McComb, J., deeming himself disqualified, did not participate in the decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611803/ | 39 Cal.App.2d 1 (1940)
In the Matter of the Estate of DIONISIOS MARINOS, Deceased. ANDREAS D. MARINOS et al., Appellants,
v.
KONSTANTINOS D. MARINOS, Executor, etc., Respondent.
Civ. No. 11284.
California Court of Appeals. First Appellate District, Division One.
May 8, 1940.
William Farnum White, in pro. per., for Appellants.
Theodore L. Breslauer for Respondent.
Peters, P. J.
Andreas D. Marinos, a legatee and son of the decedent, and a partial assignee of Andreas, appeal from the decree of final distribution in the above-entitled *3 estate. The controversy between appellants and respondent (the executor of the estate) arises over the fact that all of the personal property in the estate was consumed in the payment of debts and expenses of administration. If the real property (all devised to the widow) is chargeable with a proportionate part of such debts and expenses, appellants will receive a portion of Andreas' legacy. By the decree appealed from no portion of the debts and expenses was charged against the realty, with the result that Andreas and his partial assignee received nothing.
The facts are as follows: By his will the decedent devised and bequeathed his entire estate as follows:
"SECOND: All my property, real and personal, of every kind and character, and wheresoever situated, is my own separate property."
"THIRD: My will is that all my just and lawful debts and funeral charges shall, by my executor hereinafter named, be paid out of my estate as soon after my decease as shall to my executor be convenient and that my said executor expend for my funeral the sum of Two Hundred ($200.00) Dollars, and no more."
"FOURTH: All the rest, residue and remainder of my estate and effects, of whatsoever nature and kind, and wheresoever situated, which at the time of my decease I may be possessed of or entitled to, and which is not hereinbefore disposed of, I give, devise, and bequeath as follows, to-wit:"
"1st: To my beloved son Anastasios D. Marinos, now residing in the City and County of San Francisco, State of California, the sum of Ten ($10.00) Dollars, and no more, for the reason that I have already given him Thirteen Thousand ($13,000.00) Dollars, and my promissory note for Two Thousand ($2,000.00) Dollars."
"2nd: To my beloved son Andreas D. Marinos, now residing in the City of Athens, Republic of Greece, the sum of Four Thousand ($4,000.00) Dollars, and no more."
"3rd: To my beloved sons, Konstantinos D. Marinos and John D. Marinos, now both residing in the City and County of San Francisco, State of California, all the rest of my personal property (except the furniture of the house and as hereinafter mentioned in paragraph fourth (4th), to be divided between them share and share alike. *4"
"4th: To my beloved wife, Stavroula D. Marinos, now residing in the City and County of San Francisco, State of California, all my real property, together with the furniture contained in my house, No. 22 Ringold Street, San Francisco, California."
The estate, which was in fact community property of the testator and his wife, consisted of two parcels of real property, undivided third interests in two other parcels of real property, $291.16 in cash, and certain shares of stock. The stock was sold in the course of administration for $1450.34. During the course of administration the executor received $77.51 as dividends on the stock, and net income from the realty in the amount of $854.36. The gross value of the entire property, both real and personal, was a little over $23,400, of which one-half was awarded to the widow by virtue of her community property interest. Debts and expenses of administration, exclusive of executor's and attorney's fees, amounted to $1473.28, and to $3,124.36 including such fees. Upon the hearing of the account and petition for distribution the executor and attorney waived fees in excess of the amount of approximately $1200 cash then on hand, over and above debts and other expenses. The accounts of the executor showed that he had applied all of the personal property to the payment of the debts of the estate. Under the decree appealed from, all the remaining cash on hand ($1199.97) was applied to the payment of executor's and attorney's fees.
[1] The major contention of appellants is that the real property should bear a proportionate part of the debts and expenses of administration, and that the widow should either be compelled to pay into the estate a sum representing this proportion, or that real property sufficient to pay this sum should be sold before distribution.
We agree with appellants that the real property should bear a proportion of the debts of the estate and expenses of administration. Under the provisions of section 750 of the Probate Code resort is had to the estate of a testator to pay debts and expenses of administration as follows: (1) To property designated by the will to be thus applied; (2) to property not disposed of by will; (3) to property given to residuary legatees and devisees; and (4) "thereafter all other property devised and bequeathed is liable for the same, in proportion to the value or amount of the several devises and legacies, but *5 specific devises and legacies are exempt from such liability if it appears to the court necessary to carry into effect the intention of the testator, and there is other sufficient estate." (See, also, sec. 753, Prob. Code.)
It is to be noted that the section makes no distinction between realty and personalty as to the order of application of the assets of an estate to the debts and expenses of administration. Applying the section to the will here involved, it is to be noted that the testator did not designate specific property to be applied to the payment of debts and expenses of administration, merely directing that debts should "be paid out of my estate". Nor does the will fail to dispose of any property. Its provisions are clearly all-inclusive so as to include the entire estate of the testator. The holding of the trial court exonerating the real property cannot be sustained on the ground that the devise of all the real property to the wife is a specific devise, and therefore exempt from liability for debts and expenses under the last portion of section 750. [2] A devise or bequest of all real property or all personal property is not a specific devise or bequest, but is general. This matter was exhaustively considered and discussed in Matter of Estate of Woodworth, 31 Cal. 595, at pages 601 to 604, and pages 610 to 614. See, also, Estate of Ratto, 149 Cal. 552 [86 P. 1107], and Estate of Painter, 150 Cal. 498 [89 P. 98, 11 Ann. Cas. 760]. In 88 A.L.R. 553, there is an annotation entitled: "Bequest or devise of all testator's personal property or real property as general or specific." At page 554 it is stated: "The rule sanctioned, seemingly without dissent, by the cases, is that, in the absence of a clearly expressed intention of the testator to the contrary, a bequest of all of the testator's personal property, an aliquot portion of it, the remainder of the personal property, or any bequest in similar general terms, is a general and not a specific legacy." In reference to real property the rule in United States, contrary to the rule that existed at common law, is stated as follows (p. 560): "However, in the majority of cases decided in this country it is held that the question whether a testamentary gift of real estate is specific or general is to be governed by the same rule as where the subject of the gift is personal property; that is, that, in the absence of a clearly expressed intention of the testator to the contrary, a devise of real property in general terms, such as 'all' of the *6 testator's property, or the 'remainder' of the testator's property, will be held general, rather than specific." Various California cases are cited in support of this rule. Under these cases, the devise in subdivision 4th of Paragraph Fourth of the will, supra, devising "all my real property" to the wife must be held to be a general and not a specific devise. (See, also, 11 Cal.Jur. Ten-year Supp. 588.)
[3] Respondent urges that under the will the $4,000 bequest to Andreas could be satisfied only from one-half the cash on hand at the testator's death--that is, from one-half of the $291.16, and that Andreas has no legal interest in the other personal property--the dividends and the stock. Apparently, it is the theory of the respondent that even if the real property should have been compelled to carry a portion of the burden of the debts and expenses of administration and was improperly exonerated therefrom, appellants are in no position to complain. It is contended that Konstantinos and John as the legatees of "all the rest of my personal property" except the furniture, are the only ones who could complain of the error, if one was made. This is on the theory that the legacy to Konstantinos and John was a bequest of the stock, and that the cash legacy to Andreas could be paid only from the cash on hand at the death of the testator. This presents a question of construction of the will. Section 751 of the Probate Code provides:
"The property of a testator, except as otherwise provided in this code, must be resorted to for the payment of legacies in the following order:"
"(1) The property which is expressly appropriated by the will therefor."
"(2) Property not disposed of by the will."
"(3) Property which is devised or bequeathed to a residuary legatee."
It seems quite clear that the bequest of Konstantinos and John, considering its terms, and its position in the will immediately following the cash legacy of $4,000 to Andreas, reasonably means that the rest of the testator's personal property remaining after discharging the $4,000 bequest to appellant shall go to Konstantinos and John. To construe the will as providing that Andreas should get his $4,000 cash legacy only from cash on hand and that all other personal property was to go to Konstantinos and John even if there *7 were no cash, would be to entirely disregard the priority obviously intended for Andreas. It is our opinion that the will directed that personalty remaining after discharging the $4,000 cash legacy was to go to Konstantinos and John. Under this analysis of the terms of the will the proceeds from the sale of the stock and the dividends are applicable to payment of the cash legacy as property which is expressly appropriated by the will to such payment within the meaning of section 751 of the Probate Code. It follows, of course, that appellants therefore may object to the ruling of the trial court improperly exonerating the real property from its proportion of the burden for debts and expenses of administration, and unduly and improperly burdening the personalty with these obligations.
[4] This disposes of all points urged by the appellants before the trial court and in their briefs filed before the oral argument. At the time of argument the court suggested two other points that had not been raised in the court below or in the briefs. The first of these is whether the community property interest of the wife should be charged with a proportionate share of the debts and expenses of administration. The law is clear that in the absence of an expression of a contrary intent, the entire community property, including the interest of the surviving widow, is subject to the debts and expenses of administration upon the death of the husband. (Estate of Chanquet, 184 Cal. 307 [193 P. 762]; sec. 202, Prob. Code; see, also, Estate of Haselbud, 26 Cal.App.2d 375 [79 PaCal.2d 443]; 11A Cal.Jur., p. 491, sec. 358.) The converse is also true--that is, if the will designates that debts should be paid from the interest of the husband, the wife's share of the community property is exonerated, if the husband's share is sufficient to pay all such debts and expenses. Thus, in Estate of Chanquet, supra, the will directed that the wife was to receive her one-half of the community property, and a life estate in the residuum of the estate "after paying and discharging all my debts, the cost of my last illness and burial, the cost of administration of my estate ...". The Supreme Court reversed the court below, and held that the quoted phrase, when taken in connection with the other provisions of the will, should be interpreted to mean that the testator had designated that debts and expenses of administration must be paid out of the husband's share of the community *8 property. [5] In the instant case the testator declared, in Paragraph Second of the will, that: "All my property, real and personal ... is my own separate property." Then in Paragraph Third he stated: "My will is that all my just and lawful debts and funeral charges shall, by my executor hereinafter named, be paid out of my estate as soon after my decease as shall to my executor be convenient ...". (Italics ours.) The respondent argues that by the italicized portion of this paragraph the testator has definitely expressed his intention that debts and expenses should be paid out of his estate alone. Although the clause is not as clear as the comparable provision in the Estate of Chanquet, supra, we agree with this interpretation of this paragraph. In its correct sense the words "my estate" could only refer to that estate or property over which the testator had the right of testamentary control--it could not refer to the wife's share of the community property over which he had no such control. Appellants place some emphasis on Paragraph Second, declaring that: "All my property ... is my own separate property", and contend that by that paragraph the testator declared that all the property, including the wife's share of the community, was his separate property. We cannot presume that the testator intended by this clause to attempt to will away his wife's share of the community property over which he must be presumed to know he had no power of testamentary disposition. What is probably meant by that clause is that "my property" refers to his share of the community, and that the testator intended to declare that no other person had any interest in his share of the community property. In view of this construction of the terms of the will it must be held that the trial court properly exonerated the wife's share of the community property from liability for debts and expenses of administration.
[6] The second point raised at the time of oral argument must also be decided in favor of respondent. Appellants contend that the devise of "all my real property" to the wife, when considered with the bequest of "all the rest of my personal property" to Konstantinos and John is a residuary bequest, and that not only should all expenses of administration and debts of the estate be paid solely from the real property, under section 750 of the Probate Code, but that under section 751 of that code the executor must sell sufficient real property to satisfy the $4,000 bequest of Andreas in full. *9 These two results would follow if appellants' construction of the will were correct. However, when the will is read as a whole, it seems to us that the devise of "all my real property" was not intended as a residuary devise within the meaning of sections 750 and 751 of the Probate Code. The will shows a studied attempt to treat the personalty and the realty separately. As already pointed out, the testator wanted Andreas to have $4,000 of the personalty and Konstantinos and John to have the balance of such personalty, if any should exist. But, when he came to the real property, he stated that "all my real property" should go to his wife. A residuary bequest is defined in section 161, subdivision 4, of the Probate Code as follows: "A residuary legacy embraces only that which remains after all the bequests of the will are discharged." In other words, the term "residuum" implies that something has been taken from the class of property involved, and what remains is the residuum. (54 Cor. Jur., p. 715; 69 Cor. Jur., p. 925, sec. 2093.) Thus it has been held that a general residuary clause passes whatever may remain of the testator's estate after the defined devises and legacies have been satisfied. (Estate of Hall, 183 Cal. 61 [190 P. 364]; 26 Cal.Jur., p. 958, sec. 260.) In the instant case nothing was taken from the real property at all--all of the real property was devised to the wife. There was nothing left after satisfying other devises of real property. The Probate Code itself recognizes the distinction between a true residuary clause and a devise or bequest of "all my property". Section 125 of that code provides that: "A devise ... of all the testator's real ... property ... passes all the real ... property which he was entitled to dispose of by will at the time of his death ...". Section 126 provides that: "A devise of the residue of the testator's real property ... passes all the real ... property ... which he was entitled to devise ... at the time of his death, not otherwise effectually devised ... by his will." The general devise mentioned in section 125 must be held to be property "otherwise effectually devised" by the will within the meaning of section 126.
The decree of distribution is reversed and the matter remanded for proceedings not inconsistent with the views herein expressed.
Knight, J., and Ward, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1024363/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7172
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TROY JAMES POWELL, a/k/a Sld Dft 5:01CR5-7,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:01-cr-00005-RLV; 5:07-cv-00078-RLV)
Submitted: November 15, 2007 Decided: November 27, 2007
Before WILLIAMS, Chief Judge, and MOTZ and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Troy James Powell, Appellant Pro Se. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy James Powell seeks to appeal the district court’s
order treating his motion to amend as a successive 28 U.S.C. § 2255
(2000) motion and dismissing it on that basis. The order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by the district court is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Powell has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
- 2 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611806/ | 884 P.2d 339 (1994)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jimmy C. GREEN, Defendant-Appellant.
No. 92CA1575.
Colorado Court of Appeals, Div. I.
May 19, 1994.
As Modified on Denial of Rehearing June 16, 1994.
Certiorari Denied November 7, 1994.
*341 Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., and Deborah Isenberg Pratt, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Shelley Gilman, Denver, for defendant-appellant.
Opinion by Judge ROY.
Defendant, Jimmy C. Green, appeals the judgment of conviction entered on a jury verdict finding him guilty of robbery. The defendant contends, on appeal, that the trial court erred in admitting testimony reporting hearsay statements of an unavailable and unnamed declarant under the excited utterance exception to the hearsay rule, that by the admission of the hearsay evidence, the trial court denied him the right to confront a witness against him, and that the trial court committed error in improperly defining the theory of complicity in response to a question from the jury. We affirm.
On the night in question two Denver police officers observed two men, later identified as the defendant and his companion, being chased by a third man (the declarant). After the defendant and his companion ran into an apartment building, the declarant approached the officers and said that the two men had "just knocked down some lady and took her beer."
Soon thereafter, the defendant was captured in the apartment of an acquaintance in which the officers also found a white plastic bag containing a twelve-pack of beer. The defendant's companion was apprehended later after avoiding capture by jumping off the balcony of the apartment.
At the time of his arrest, the defendant admitted punching the victim after being provoked, but denied taking the beer from the victim and stated that he was not aware that his companion had taken anything from the victim. The victim identified the defendant as the man who hit him, testified that the other man grabbed the beer, and both men ran away. Defendant's companion pled guilty to criminal attempt to commit robbery.
The officers testified that the declarant's demeanor was "panicked," "out-of-breath," "excited," "nervous," and "angry"; that they did not get the declarant's name, address, description or other information; and that, while the officers were calling for assistance and securing the apartment building, the declarant disappeared.
I.
Defendant first asserts that it was error to introduce the declarant's statement under the excited utterance exception to the hearsay rule, CRE 803(2). We disagree.
The controlling authority is People v. Dement, 661 P.2d 675 (Colo.1983). Dement involved the excited utterance of an identified but unavailable declarant who provided the only eye witness identification of an assailant in a barroom assault. Under the test set out in that case, for hearsay to be admissible under CRE 803(2): (1) there must be some occurrence or event sufficiently startling to render normal reflective thought processes of the observer inoperative; (2) the statement must be a spontaneous reaction to the occurrence *342 or event and not the result of reflective thought; and, implicitly, (3) there must be sufficient direct or circumstantial evidence to allow the jury to infer that the declarant had the opportunity to observe the startling occurrence.
Here, the defendant implicitly concedes that the event was sufficiently startling so as to render reflective thought processes inoperative and explicitly concedes that the declarant was in a state of excitement. In addition, the defendant did not at trial, and does not on appeal, contest the existence of the declarant.
Defendant argues that the third element of the Dement test was not met here because there was insufficient evidence to allow the jury to infer that the declarant had the opportunity to observe the startling event. However, the threshold for satisfying the requirement that the declarant had an opportunity to observe the event is low, and the declarant's observation of the event may be inferable from sources other than the witness. As long as there is evidence before the trial court from which the jury could reasonably infer that the declarant had an opportunity to observe the event, the witness should be permitted to testify concerning the excited utterance, and the questions of credibility and weight should be left for the jury to resolve. People v. Garcia, 826 P.2d 1259 (Colo.1992).
Here, there is sufficient corroborating evidence of the declarant's statement. The victim testified that he had been hit in the face, knocked down, and robbed of a white plastic grocery bag containing beer. While the victim was male and the declarant said "some lady," the evidence showed the victim had a long ponytail and could be mistaken for a woman. The robbery occurred just moments before the declarant approached the police. The occupant of the apartment indicated that the defendant and his companion burst into the apartment saying they were being chased, and both police officers and the occupant of the apartment corroborated the declarant's statement that the plastic bag contained beer.
In light of this testimony, we conclude the foundation was sufficient to permit the trial court, within its sound discretion, to admit the statement under CRE 803(2) for consideration by the jury even though the declarant was both unavailable and unnamed.
II.
Defendant next asserts that the admission of the out-of-court statement of the declarant violated his right to confront witnesses against him as guaranteed by the Sixth Amendment or Colo. Const. art. II, § 16. We disagree.
With respect to the right to confront and cross-examine witnesses, our supreme court in People v. Dement, supra, adopted the rationale of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Dement and Roberts, a case-by-case analysis is required in which the court: (1) must consider whether the unavailability of the declarant "in the constitutional sense" has been established by evidence that good faith and reasonable efforts to produce the witness have been unsuccessful and (2) must assure that the evidence ultimately admitted is limited to that which bears sufficient "indicia of reliability" to assure "no material departure" from the purpose underlying the confrontation right to augment accuracy in the factfinding process.
With respect to the requirement of a good faith effort and reasonable efforts to produce the witness, the Roberts court stated:
The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness' intervening death), `good faith' demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation.
Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543, 65 L.Ed.2d at 613.
With respect to the first part of the analysis set forth in Roberts, unavailability means that the prosecution has made reasonable, good faith efforts to produce the witness without success. The effort required of the prosecution is limited to a reasonable *343 effort, and, since the law does not require a futile act, no effort may be sufficient. Ohio v. Roberts, supra.
In this instance, the People had no reasonable means to produce the unnamed declarant at trial. The officers were unable to provide a description of the declarant other than that he was a white male. With such a paucity of identification information, it would have been futile to have attempted to locate the declarant in a city the size of Denver. The officers acted reasonably in an emergency situation in calling for police assistance and securing the scene before asking the declarant to identify himself by which time he had disappeared.
We conclude the prosecution established that the unnamed declarant witness was "unavailable in the constitutional sense." See Cole v. Tansy, 926 F.2d 955 (10th Cir.1991).
The second aspect of the Roberts analysis is whether the out-of-court statement bears sufficient indicia of reliability to make it trustworthy without subjecting the declarant to cross-examination. This aspect of the analysis is similar to, if not identical with, the third, and implicit, requirement of Dement for the admission of an excited utterance as an exception to the hearsay rule.
The United States Court of Appeals for the Tenth Circuit in Cole v. Tansy, supra, concluded that if the statement qualified as an excited utterance exception to the hearsay rule, it had sufficient indicia of reliability to satisfy the second prong of the Roberts analysis with respect to the right of confrontation. See also Martinez v. Sullivan, 881 F.2d 921 (10th Cir.1989), cert. denied, 493 U.S. 1029, 110 S.Ct. 740, 107 L.Ed.2d 758 (1990); Miller v. Keating, 754 F.2d 507 (3d Cir.1985). Likewise, we conclude, for the reasons already stated, that there are sufficient independent indicia of reliability to satisfy the second prong of the Roberts analysis.
In addition, when the utility of confrontation is remote, there exists an exception to the requirement that the prosecution satisfy the Roberts analysis. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); People v. Dement, supra; People v. Barker, 713 P.2d 406 (Colo.App.1985). Here, the declarant's testimony was not crucial or devastating; it related to matters which were largely not in dispute, and it was corroborated in every material respect by the victim.
The People would have us abandon the Roberts analysis altogether because of White v. Illinois, ___ U.S. ___, 116 L.Ed.2d 848, 112 S.Ct. 736 (1992). In White the Supreme Court limited Roberts to its facts which involved statements made by a witness at a prior judicial proceeding. It held that evidence should not be withheld under the aegis of the Confrontation Clause of the Sixth Amendment when it is embraced within the excited utterance exception to the hearsay rule. White, which involved the statements of a child in a sexual abuse case, was cited by our supreme court in People v. Garcia, supra, with a comment appearing to limit White to its facts. In any event, Dement, which adopted Roberts, was clearly decided under Article II, Section 16 of the Colorado Constitution and not the Sixth Amendment to the United States Constitution. Our supreme court has, in other instances, construed our Constitution as more protective than the United States Constitution. People v. Young, 814 P.2d 834 (Colo.1991) (listing cases). Any abandonment of the Roberts analysis required by Dement will have to be done by our supreme court.
Therefore, the admission of the excited utterance by the unavailable and unnamed declarant under the circumstances here comported with the defendant's constitutional right of confrontation.
III.
Defendant finally contends that the trial court committed plain error in improperly defining the theory of complicity in response to a question sent by the jury during the course of deliberations. We disagree.
The trial court submitted an instruction to the jury on complicity containing the pattern jury instruction set forth in COLJI-Crim. No. 6:04 (1983). During deliberations, the jury sent this question to the court:
*344 Must you be aware of (knowingly) intent to commit a crime prior to the commission of a crime to be considered a complicitor, or can you be aware of a crime after it is committed and still be considered a complicitor?
After consultation with the prosecution and defense counsel, the trial court responded, without objection:
Conviction as a complicitor, under the complicity statute, requires that:
1. The principal committed all or part of the crime;
2. The complicitor had knowledge that the principal intended to or was engaged in the commission of a crime;
3. The complicitor aided, abetted, advised or encouraged the other person in the commission of a crime.
If the only knowledge the alleged complicitor has of the crime is after its commission, he cannot be considered as a complicitor.
(emphasis added)
Defendant argues that the emphasized language in the response improperly allowed the jury to convict him under a relaxed standard of proof and, thus, was plain error. We perceive no basis for reversal.
Colorado's criminal complicity statute, § 18-1-603, C.R.S. (1986 Repl.Vol. 8B), provides that:
A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he aids, abets, or advises the other person in planning or committing the offense.
The "intent to promote or facilitate the commission of the offense" of which the complicity statute speaks "only requires knowledge by the complicitor that the principal is engaging in, or about to engage in, criminal conduct" and requires that the intent of the complicitor be to aid the principal in the criminal act or conduct. People v. Wheeler, 772 P.2d 101, 104 (Colo.1989) (emphasis added); see also People v. Close, 867 P.2d 82 (Colo.App.1993); People v. Robinson, 874 P.2d 453 (Colo.App.1993).
Because the instruction and response given by the trial court comports with the language of the statute as interpreted in Wheeler, we perceive no error in this regard.
In addition, the last sentence of the response makes it clear that the later discovery of the fact that the principal committed, or was committing, a crime was not a basis for finding that the defendant was a complicitor. This sentence accurately states defendant's theory of the case which was that the defendant and his companion acted independently, that the defendant was not aware that the robbery was being committed by his companion at the time he struck the victim, and that he only discovered what his companion had done well after the event.
Judgment affirmed.
NEY and BRIGGS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600690/ | 186 P.3d 128 (2008)
BS & C ENTERPRISES, L.L.C., Plaintiff-Appellee,
v.
Douglas K. BARNETT, Defendant-Appellant.
No. 07CA0647.
Colorado Court of Appeals, Div. IV.
May 1, 2008.
*129 Richard L. Garnett, P.C., Richard L. Garnett, Idaho Springs, Colorado, for Plaintiff-Appellee.
Karen Schaefer Buck, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge WEBB.
In this C.R.C.P. 105 quiet title action, defendant, Douglas K. Barnett, appeals the trial court's order denying his motion to set aside a judgment entered by default in favor of plaintiff, BS & C Enterprises, L.L.C. We reverse and remand for a hearing on entry of default judgment.
Barnett was the beneficiary of a deed of trust encumbering the subject property, located in Clear Creek County. BS & C hired the county sheriff to serve him at the Morgan County address listed on the deed of trust. The sheriff's return of service stated, *130 "After diligent effort, a deputy was unable to locate the person to be served."
BS & C then moved for service by publication, asserting that a
search has been made of the public records . . . and of the telephone and other available directories; various inquires have been made from persons who might have information concerning defendants; endeavors have been made to serve defendants personally at any Colorado addresses available; and all of said efforts have been to no avail.
The trial court granted BS & C's motion, and publication was made in accordance with C.R.C.P. 4(g). A copy of the summons and complaint was mailed to and received by Barnett at the Morgan County address.
Barnett's son faxed an unsigned letter to the court with the deed of trust attached, stating: (1) "I am writing this letter on behalf of my father," (2) "I have attached a copy of the recorded Deed of Trust, which has not been satisfied or paid," (3) "no service has ever been attempted on my father in this case," and (4) "We would ask you to dismiss [BS & C's] quiet title action, since my Father's interest in the land is evident."
After the time for answering the complaint expired, BS & C scheduled a hearing on entry of default judgment. Despite the letter, no notice of the hearing was sent to Barnett. Following an order of default against Barnett, the trial court entered a decree quieting title to the subject property in BS & C, which it declined to set aside on Barnett's motion.
I.
In seeking to set aside a default judgment, the movant bears the burden of proving the grounds for relief by clear, strong, and satisfactory proof. Sumler v. Dist. Court, 889 P.2d 50, 55-56 (Colo.1995).
The primary goal of the trial court in ruling on a motion to set aside a default judgment is to achieve substantial justice. Id. Because the court is in the best position to do so, we will not disturb its ruling absent an abuse of discretion. Plaza del Lago Townhomes Ass'n v. Highwood Builders, LLC, 148 P.3d 367, 372 (Colo.App.2006). A trial court abuses its discretion if it applies an incorrect legal standard. Martin v. Union Pac. R.R. Co., 186 P.3d 61, 72, 2007 WL 2728625 (Colo.App. No. 05CA1917, Sept. 20, 2007).
II.
Barnett first contends the trial court abused its discretion in denying his motion because the letter from his son constituted an appearance, but he was not given written notice of the application for default judgment as required by C.R.C.P. 55(b). We agree.
Barnett did not cite C.R.C.P. 55(b) in his pro se motion. However, his argument that "the letter gave notice to the court of [his] interest in the case," but he "was not aware of the hearing and received no notification," sufficed to focus the trial court's attention on the correct issue. See Blades v. DaFoe, 704 P.2d 317, 322-23 (Colo.1985).
C.R.C.P. 55(b) provides in pertinent part:
If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.
"Colorado has taken a liberal approach in determining what constitutes an 'appearance' under C.R.C.P. 55(b)[]." Biella v. State Dep't of Highways, 652 P.2d 1100, 1102 (Colo.App.1982), aff'd 672 P.2d 529 (Colo.1983). As the supreme court said in R.F. v. D.G.W., 192 Colo. 528, 560 P.2d 837 (1977):
We note that we are not dealing with technical concepts of appearance as the word is used in analysis of jurisdiction over the person. Rather, we are concerned with a provision of the Rules of Civil Procedure which seeks to insure fairness by providing notice to a party who has expressed interest in defending a lawsuit brought against him.
192 Colo. at 530, 560 P.2d at 838 (citation omitted).
*131 We are guided by the principles that "[a] judgment by default is not designed to be a device to catch the unwary or even the negligent," id. at 531, 560 P.2d at 839, and that the notice requirement protects "those parties who, although delinquent in filing pleadings within the time periods specified, have indicated a clear purpose to defend by entry of their appearance." Bankers Union Life Ins. Co. v. Fiocca, 35 Colo. App. 306, 308, 532 P.2d 57, 58-59 (1975).
Thus, "[a] defendant is entitled to notice under C.R.C.P. 55(b) when it engages in conduct `sufficient to indicate to the trial court that the defendant had an interest in participating in the litigation.'" Plaza del Lago Townhomes Ass'n, 148 P.3d at 370 (quoting R.F. v. D.G.W., 192 Colo. at 530, 560 P.2d at 839). "To be entitled to notice, however, it is essential that the defendant have somehow communicated with the court." Id.
For example, in Carls Construction, Inc. v. Gigliotti, 40 Colo. App. 535, 536, 577 P.2d 1107, 1108-09 (1978), the defendant mailed a letter to the court setting forth a number of defenses to the complaint. The letter was not filed because the defendant failed to tender a docket fee. Nevertheless, the division concluded that because "the letter clearly indicated an intention on [the defendant's] part to defend," the notice requirement of C.R.C.P. 55(b) was triggered. Id.
Similarly, here, the letter on behalf of Barnett was a communication with the court that indicates his intention to defend. The letter shows Barnett's interest in the property by attaching the deed of trust. And it requests that the court "dismiss the Plaintiff's quiet title action, since [Barnett's] interest in the land is evident." Thus, we conclude that the letter constituted an appearance entitling Barnett to notice under C.R.C.P. 55(b).
In denying Barnett's motion, the trial court did not mention the letter or otherwise address whether Barnett had "appeared" for purposes of C.R.C.P. 55(b). Instead, it commented that "[d]efendant received actual notice via publication and mail." Hence, we further conclude that by focusing on Barnett's notice of the summons and complaint rather than on his lack of notice of the hearing under C.R.C.P. 55(b), the trial court applied the wrong legal standard, and thereby abused its discretion.
We recognize that First National Bank v. Fleisher, 2 P.3d 706, 714 (Colo.2000), holds notice under C.R.C.P. 55(b) need not be provided if the defaulting party had actual notice of the hearing. Here, although the trial court found that "[d]efendant monitored the case but failed to answer," we decline to apply Fleisher because the court did not find that Barnett had actual notice of the hearing. Moreover, the record does not support such an inference from the court's language concerning failure to answer.
We reject BS & C's argument that the letter cannot constitute an appearance requiring notice because it was written by Barnett's son, not Barnett himself. Under the plain language of C.R.C.P. 55(b), an appearance by a party's representative is sufficient to trigger the notice requirement.
Although no Colorado case has defined "representative" for purposes of C.R.C.P. 55(b), Best v. Jones, 644 P.2d 89 (Colo.App. 1982), suggests a liberal approach to this question as well. There, an officer of a corporation attempted to file documents with the court, which were rejected because a corporation can only appear through legal counsel. However, the division concluded that "[t]he attempt by the officer of the corporation in this case, while not technically an appearance on behalf of the corporation, was an `appearance' sufficient to trigger the notice requirement of C.R.C.P. 55(b)[]." Best, 644 P.2d at 90.
This approach is consistent with the limited out-of-state authority addressing the issue. See, e.g., Franklin v. Bartsas Realty, Inc., 95 Nev. 559, 598 P.2d 1147, 1151 (1979)(a letter by one appellant, on behalf of himself and the other appellants, constituted an appearance "entitling all the appellants" to notice); Hankins v. Cooper, 551 S.W.2d 584, 585 (Ky.Ct.App.1977)(similar).
We are not persuaded otherwise by BS & C's assertion that the letter did not constitute an appearance because Barnett's son could not submit Barnett to the jurisdiction of the court. In Fleisher, 2 P.3d at 714, the *132 court said, "A party has appeared for the purposes of [C.R.C.P. 55(b)] if it has submitted to the jurisdiction of the court." However, we do not read this statement as requiring that an appearance constitute submission to jurisdiction. People in Interest of J.M.W., 36 Colo. App. 398, 400, 542 P.2d 392, 393 (1975), from which the court quoted comparable language, was vacated in R.F. v. D.G.W. And the R.F. court eschewed the "technical concepts of appearance as the word is used in analysis of jurisdiction over the person." 192 Colo. at 530, 560 P.2d at 838.
We also reject BS & C's argument that accepting the son's letter would "open the door" to anyoneeven a stranger intending only mischiefto appear on behalf of a defendant and thereby trigger the notice requirement. The case of a stranger is not before us. Here, the letter asserts a close relationship, that of parent and child. Other possible representative relationships should be addressed on a case-by-case basis.
Further, the integrity of the process is protected because the communication with the court must still be "sufficient to indicate to the trial court that the defendant had an interest in participating in the litigation." Id. at 530, 560 P.2d at 839. A person without a close connection to the defendant would rarely be able to articulate such an interest. Here, the letter did so by, among things, attaching a copy of the deed of trust.
Finally, the burden on a trial court to determine when such notice is required is minimal compared to the benefit of affording a nonanswering defendant the opportunity to contest entry of default judgment. See id. ("[T]he preservation of that fairness and resolution of litigation on the merits must take precedence over a concern with judicial expediency."). Indeed, where "a party is not represented by a lawyer, a court should be reluctant to foreclose the opportunity of a litigant to present some defense." Id. at 531, 560 P.2d at 839.
Here, a search of the court file would have revealed that Barnett had made an appearance sufficient to require notice under C.R.C.P. 55(b), but BS & C had not provided it.
Accordingly, we reverse the order and remand the case for further proceedings to set aside the default judgment and to hold a hearing under C.R.C.P. 55(b).
III.
Barnett also contends the trial court abused its discretion in denying his motion because it should not have allowed service by publication. We reject Barnett's argument that the return of service alone shows BS & C's lack of due diligence in attempting to effect personal service, but we conclude that he may challenge the grounds for service by publication at the C.R.C.P. 55(b) hearing.
Service by publication is void only where an express and material provision of the rule authorizing such service has been violated or information has been withheld by the applicant. Hancock v. Boulder County Pub. Tr., 920 P.2d 854, 857 (Colo.App.1995).
In a quiet title action, service by publication is authorized by C.R.C.P. 4(g). Mason-Jares, Ltd. v. Peterson, 939 P.2d 522, 524 (Colo.App.1997). This rule provides in pertinent part:
[S]ervice by mail or publication shall be allowed only in actions affecting specific property or status or other proceedings in rem. . . . The party desiring service of process by mail or publication . . . shall file a motion. . . . [The motion] shall state the facts authorizing such service, and . . . show the efforts, if any, that have been made to obtain personal service. . . .
Under C.R.C.P. 4(g), the court shall order such service if it is satisfied that "due diligence has been used to obtain personal service or that efforts to obtain the same would have been to no avail."
Here, we are unpersuaded that the sheriff's return shows BS & C failed to exercise due diligence in seeking to effect personal service. See Gamewell v. Strumpler, 84 Colo. 459, 466, 271 P. 180, 182 (1928) (return "by such officer or person that defendant cannot, after diligent search, be found therein, constitutes a proper and sufficient basis for publication of the summons"); see also Rael v. Taylor, 876 P.2d 1210, 1227 n. 27 *133 (Colo.1994)("A petitioner in a quiet title proceeding who complies with the requirement of [Rule 4(g)] in effect provides the trial court with evidence presumptively establishing that the due diligence standard of notice has been satisfied.").
Barnett cites no Colorado authority, and we have found none, holding that a party must continue to attempt personal service after receiving a sheriff's return stating inability to locate the defendant, even though here the return also shows that the sheriff made only one attempt. Such a principle would place such a party in the position of having to supervise the sheriff.
We also reject Barnett's argument that BS & C knew of his location based on a letter it faxed to him. The record contains no such letter and does not otherwise support this argument. See Fraser v. Colo. Bd. of Parole, 931 P.2d 560, 563 (Colo.App.1996) (reviewing court may only consider documents contained in the record); see also McCall v. Meyers, 94 P.3d 1271, 1272 (Colo.App.2004) (statements in briefs may be disregarded absent record support).
Barnett further argues that BS & C's Motion for Service by Publication contains material misrepresentations regarding its efforts to locate him. However, we are unable to evaluate the accuracy of these representations because Barnett had no opportunity to dispute them. Thus, we conclude Barnett may raise this issue at the C.R.C.P. 55(b) hearing, after which the trial court shall make specific findings, based on all the circumstances, whether service by publication should be set aside because BS & C did not act with due diligence under C.R.C.P. 4(g).
To the extent that Barnett asserts a due process violation because he was neither notified of the hearing nor given an opportunity to be heard, our conclusion that the default judgment must be set aside and a hearing must be held under C.R.C.P. 55(b) avoids this argument, as well as his remaining contentions. See, e.g., Developmental Pathways v. Ritter, 178 P.3d 524, 535 (Colo.2008)(principle of judicial restraint requires avoidance of constitutional issues).
The order is reversed, and the case is remanded for further proceedings consistent with this opinion.
Judge TERRY and Judge STERNBERG[*] concur.
NOTES
[*] Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2007. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600698/ | 186 P.3d 582 (2008)
Norval H. NELSON, Sr., Appellant,
v.
STATE of Alaska, COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee.
Norval E. Nelson, Jr., Appellant,
v.
State of Alaska, Commercial Fisheries Entry Commission, Appellee.
Nos. S-12563, S-12564.
Supreme Court of Alaska.
July 3, 2008.
Michael Hough, Homer, for Appellants.
John T. Baker, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.
OPINION
WINFREE, Justice.
I. INTRODUCTION
The Alaska Commercial Fisheries Entry Commission (CFEC) issues entry permits and interim-use permits for commercial fishing purposes.[1] Both types of permits are *584 renewable annually.[2] The CFEC designates distressed and certain other fisheries for limited entry and caps the number of entry permits it issues for these fisheries.[3] A point system determines who receives entry permits for these fisheries; points are available for economic dependence on and past participation in a given fishery.[4] The CFEC has authority to issue an interim-use permit while an entry permit application is pending or being appealed.[5]
In 1987 father and son fishers applied separately for entry permits in a sablefish fishery the CFEC had designated for limited entry.[6] The CFEC denied both applications for insufficient points. The father and son argue, as they have throughout their proceedings, that they each should be awarded additional points for two reasons: (1) the CFEC should be estopped from denying each of them additional "skipper points" because its misinformation caused both of them not to qualify for those points; and (2) they each qualify for additional skipper points under a regulatory "extraordinary circumstances" exception.[7] We affirm the denials of the extra points, and therefore the denials of the entry permits, because the CFEC did not err in concluding that the father and son were not misinformed and that neither qualified for additional points for "extraordinary circumstances."
II. FACTS AND PROCEEDINGS
Norval H. Nelson, Sr. (Nelson Sr.) and his son, Norval E. Nelson, Jr. (Nelson Jr.) have been full-time commercial fishers for many years. They fish together, just as Nelson Sr. fished with his father, and they have landed crab, sablefish, and halibut.
By early 1987 the CFEC had determined that the Northern Southeast Inside sablefish longline fishery (sablefish fishery) could sustain only seventy-three commercial fishers.[8] In November 1987 Nelson Sr. and Nelson Jr. each applied to the CFEC for a sablefish fishery entry permit. Each claimed a total of 44.5 points: 9 points for 1975 skipper participation, 18 points for 1984 skipper participation, 10 points for income dependence, and 7.5 points for vessel ownership. In 1989 the CFEC classified Nelson Sr. with 0 points and Nelson Jr. with 40.5 points, and did not grant either application due to insufficient points.
The Nelsons requested administrative hearings and each amended his application to include an additional 11 points for skipper participation in 1977, for a projected total of 55.5 points each. A joint hearing on their applications was held in 1992, and the Nelsons raised two arguments now before us in this appeal. First, the Nelsons asserted that CFEC relayed misinformation that ultimately resulted in the CFEC denying Nelson Sr. skipper points for 1984 and Nelson Jr. skipper points for 1975 and 1977. Specifically, the Nelsons alleged that a CFEC staff person erroneously told Nelson Sr. that each boat could have only one interim-use permit at a time. The Nelsons claimed that as a result of this alleged misinformation, Nelson Sr. did not secure an interim-use permit in 1984 because Nelson Jr. had one for that year, and Nelson Jr. did not secure an interim-use permit in 1975 or 1977 because Nelson Sr. had one for each of those years. Neither Nelson was entitled to skipper points for the years he did not have an interim-use permit but each argued that he nonetheless should receive those points under an estoppel theory. Second, the Nelsons asserted that a mechanical breakdown in 1977 precluded them from participating in the sablefish fishery, which constituted extraordinary circumstances *585 entitling each of them to skipper points for that year.
In January 1997 a CFEC hearing officer issued a consolidated decision classifying Nelson Sr. with 17.5 points and Nelson Jr. with 43.5 points, still insufficient to qualify either Nelson for a permit. The Nelsons petitioned for administrative review in April 1997, and in August 2002 the CFEC affirmed the hearing officer's decision. The Nelsons petitioned for reconsideration, and in June 2003 the CFEC again affirmed the hearing officer's decision. The Nelsons then appealed to the superior court.
In December 2006 Superior Court Judge Michael L. Wolverton affirmed the decisions of the hearing officer and the CFEC. The superior court noted that the hearing officer's factual findings about the misinformation claim "were supported by substantial evidence" and that the hearing officer's conclusion about the lack of extraordinary circumstances "was supported by the facts in the record and [had] a reasonable basis in law."
The Nelsons appeal individually. This opinion addresses both appeals.
III. STANDARD OF REVIEW
When a superior court acts as an intermediate court of appeal, we independently review the merits of the underlying administrative decision and give no deference to the superior court's decision.[9] We have recognized at least four principal standards of review for administrative decisions,[10] two of which are applicable here: "substantial evidence" for questions of fact and "reasonable basis" for questions of law that involve agency expertise.[11] Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[12]
IV. DISCUSSION
We affirm the CFEC decision. Substantial evidence supports the CFEC's conclusion that the Nelsons were not misinformed. The CFEC also had a reasonable basis for its conclusion that the Nelsons' mechanical troubles did not constitute extraordinary circumstances.[13]
A. The CFEC Decision Rejecting the Nelsons' Misinformation Claim Is Supported by Substantial Evidence.
Successful estoppel claims against the government must satisfy four elements: (1) a governmental body asserts a position; (2) a person reasonably relies on that assertion; (3) the person suffers prejudice as a result; and (4) estoppel serves the interest of justice.[14] The hearing officer and the CFEC concluded that the Nelsons had failed to prove that an erroneous statement had been made.
The hearing officer found that the Nelsons' "testimony about the alleged misinformation was confused, contradictory, and thus, not credible." The hearing officer identified discrepancies in the Nelsons' position: first, Nelson Sr. contradicted himself regarding when the alleged statement was made; *586 second, the Nelsons contradicted themselves regarding whether they believed they only needed one permit or whether they only could have one permit; and third, the Nelsons had on several other occasions held duplicate permits. The hearing officer noted that the only evidence of alleged misinformation was the Nelsons' self-interested testimony, which, in the case of Nelson Jr., was based not on personal knowledge but rather on what his father had told him. The hearing officer concluded that by neither asking the staff person to testify nor introducing evidence of other fishers being wrongly advised on this issue, the Nelsons failed to establish that they had been misinformed.
In our view, substantial evidence supports the hearing officer's and the CFEC's conclusions that the staff person did not misinform the Nelsons. We thus uphold the CFEC's decision not to award either Nelson additional skipper points based on estoppel.
B. The CFEC Decision Rejecting the Nelsons' "Extraordinary Circumstances" Claim Has a Reasonable Basis.
The CFEC may award applicants points they reasonably would have been entitled to receive but for "extraordinary circumstances."[15] Extraordinary circumstances do not include "voluntary or involuntary retirement from" a fishery or "loss of the financial means to continue participation in" a fishery.[16] Extraordinary circumstances do include "the loss of vessel or equipment through sinking, destruction, or extensive mechanical breakdown."[17] Mechanical breakdown "implies that the equipment worked at some point. Inability to properly use equipment and unsuitability of equipment are not generally considered to be `mechanical breakdowns.'"[18]
The hearing officer and the CFEC rejected the Nelsons' extraordinary circumstances claim, concluding that inappropriate gear, not gear failure, ultimately caused the Nelsons' inability to participate in the sablefish fishery in 1977. The hearing officer acknowledged that the Nelsons experienced mechanical problems that year, but, because the sablefish fishery season was two and a half months long, found it was "[m]ore than likely" that they "had ample time to have a gear failure and still get back to fishing after a repair." The hearing officer found that if the Nelsons had been prevented from participating in the sablefish fishery, it was because they were "using a crab block instead of a longline gurdy" and that "[a]cquiring the necessary equipment is a common experience for fishers and is not unique or extraordinary." The hearing officer also noted that their vessel was "run down," that "any boat share money beyond the loan payment went into repairing and equipping the vessel," and that the Nelsons did not participate in the sablefish fishery with that vessel again until 1984.
In our view, the CFEC had a reasonable basis for its interpretation and application of the regulations to reject the Nelsons' "extraordinary circumstances" claim. It is unfortunate if financial considerations precluded the Nelsons from participation in the sablefish fishery, but the regulations explicitly state that "loss of the financial means to continue participation in" a fishery does not constitute extraordinary circumstances.[19] We thus uphold the CFEC's decision declining to award the Nelsons additional points based on this claim.
V. CONCLUSION
Because the CFEC did not err in declining to give the Nelsons additional points, we AFFIRM the denials of their limited entry permits.
NOTES
[1] AS 16.43.020, .100(a)(7)-(8), .140. The Limited Fisheries Entry Act, AS 16.43.010-.990, established the CFEC and charged it with, among other things, "regulat[ing] entry into the commercial fisheries for all fishery resources in the state." AS 16.43.020, .100(a)(1).
[2] 20 Alaska Administrative Code (AAC) 05.425(a), .560(a) (2007).
[3] 20 AAC 05.300-.320, .515.
[4] AS 16.43.250; 20 AAC 05.600(a).
[5] 20 AAC 05.415.
[6] 20 AAC 05.310(f).
[7] 20 AAC 05.703(d).
[8] Cleaver v. State, Commercial Fisheries Entry Comm'n, 48 P.3d 464, 465 (Alaska 2002). "Northern Southeast Inside" refers to an administrative area described in the regulations. 20 AAC 05.230(a)(8). Sablefish are also referred to as black cod. Cleaver, 48 P.3d at 466 n. 9. "Longlining" involves using "baited hooks on offshoots . . . of a single main line (usually several miles long) to catch fish." Id. at 466 n. 8.
[9] Simpson v. State, Commercial Fisheries Entry Comm'n, 101 P.3d 605, 609 (Alaska 2004) (citing Bruner v. Petersen, 944 P.2d 43, 47 n. 5 (Alaska 1997)).
[10] Id. (citing Jager v. State, 537 P.2d 1100, 1107 n. 23 (Alaska 1975)).
[11] Id.
[12] Cleaver, 48 P.3d at 467 (citing Commercial Fisheries Entry Comm'n, State v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991)).
[13] The State also argues that Nelson Sr.'s appeal is moot. According to the State, even if the CFEC had classified Nelson Sr. with all of the points he seeks through his appeal, he still would not qualify for a permit because the denial level as of October 9, 2007, was higher than Nelson Sr.'s projected point total. The State cites O'Callaghan v. State, 920 P.2d 1387 (Alaska 1996), in support of the proposition that an appeal is moot if an appellant who prevailed would not be entitled to relief. Id. at 1388. In O'Callaghan, we concluded that the appeal of an unsuccessful gubernatorial candidate was moot because the term of office of the successful candidate had already ended. Id. at 1388-89. The State may be correct, but because we still must address Nelson Jr.'s claims, which mirror Nelson Sr.'s claims, we resolve the claims on their merits.
[14] Wassink v. Hawkins, 763 P.2d 971, 975 (Alaska 1988) (citing Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984)).
[15] 20 AAC 05.703(d).
[16] Id.
[17] Id.
[18] Cleaver, 48 P.3d at 469.
[19] 20 AAC 05.703(d). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1877329/ | 113 So. 2d 912 (1959)
Grover McCULLOUGH
v.
STATE.
6 Div. 451.
Supreme Court of Alabama.
July 2, 1959.
Rehearing Denied August 20, 1959.
Griffin & Wilson, Birmingham, for petitioner.
MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., opposed.
MERRILL, Justice.
Petition of Grover McCullough for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in McCullough v. State, 113 So. 2d 905.
Writ denied.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600710/ | 186 P.3d 829 (2008)
Scott CHESBRO, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, Kansas, Appellee.
No. 98,545.
Court of Appeals of Kansas.
June 27, 2008.
*831 Bill Skepnek and Paul T. Davis, of Skepnek Fagan Meyer & Davis, P.A., of Lawrence, for appellant.
Christopher F. Burger, of Stevens & Brand, L.L.P., of Lawrence, for appellee.
Before McANANY, P.J., GREEN and CAPLINGER, JJ.
GREEN, J.
This case began when Scott Chesbro petitioned the trial court for review of the denial by the Board of County Commissioners of Douglas County, Kansas (Board), of a residential entrance permit for Chesbro's property located near Lone Star Lake. Chesbro claimed that because his property was located adjacent to Douglas County Road 1-E, the Board should have granted him a residential *832 entrance permit from his property to this road. Nevertheless, after determining that Douglas County (County) had acquired the portion of property abutting Douglas County Road 1-E through adverse possession, the trial court granted the Board's motion for summary judgment. Chesbro now appeals from the trial court's grant of summary judgment.
Chesbro argues that the trial court erred in granting summary judgment to the Board on its adverse possession theory. We disagree. The uncontroverted evidence in this case established that the County had acquired the subject property by adverse possession through a belief of ownership for the requisite 15-year period under K.S.A. 60-503. Because Chesbro failed to bring forth evidence establishing a material dispute of fact as to the Board's adverse possession claim, Chesbro's argument on this issue fails.
Nevertheless, the Board argues that the trial court erred in denying summary judgment on its agreed boundary theory. Because we have determined that the trial court properly granted summary judgment to the Board on its adverse possession theory, it is unnecessary to address the Board's argument on this issue. Moreover, because the Board never cross-appealed the trial court's denial of summary judgment on the agreed boundary theory, the Board did not preserve this issue for appeal.
Finally, Chesbro argues that the trial court erred in granting summary judgment on his claim that the Board's denial of his residential entrance permit application was made in an arbitrary and capricious manner. We again disagree with Chesbro's argument. Because Chesbro's land did not abut the county road and Chesbro did not show that he had a legal right to access the road from his property, the Board was well within its authority to deny Chesbro a residential entrance permit. We agree with the trial court that the Board's decision was not arbitrary or capricious. Accordingly, we affirm.
In December 2004, Chesbro purchased 173.79 acres of real estate near Lone Star Lake in Douglas County from Alvin Fishburn. Fishburn had owned the property since at least 1972. The property is located next to land owned by the County that is a part of Lone Star Lake park. A public park access drive, Douglas County Road 1-E, runs somewhat parallel to the property line of Chesbro's property.
In May 1972, Fishburn appeared before the Board to discuss constructing a boundary line fence between his property and the northeast boundary line of the Lone Star Lake area owned by the County. Fishburn and the Board agreed to the construction of the line fence and split the costs of the materials equally. The line fence was then constructed along the boundary line where such construction was physically possible. There was at least 10 feet between the edge of the pavement for the park access drive and the fence line. In a July 2006 affidavit, Fishburn stated that he is believed the fence had been constructed more than 25 years ago. Fishburn further stated that the fence was in the same location as when it was constructed.
According to Fishburn, he intended the fence to be a boundary line fence between his property and the County's property. Fishburn attested that although the fence may have been located within his property line, it was constructed with the intention that it would mark the separation between his property and the County's property. According to Fishburn, since the fence was constructed, the County had been the only one to possess or provide any care to the property located on the County's side of the fence.
Fishburn and his wife conveyed the real estate to Chesbro with a general warranty deed. A title commitment performed before the sale showed that the property included the strip of disputed land between the fence and the public road. The County never recorded any interest in the disputed strip of land with the register of deeds office. When Chesbro purchased the property, neither Fishburn nor anyone else associated with the transaction told Chesbro that the County owned the disputed strip of land. Since he has owned the property, Chesbro has paid all property taxes on the property, including those for the disputed strip of land.
*833 Keith Browning, the director of public works and county engineer for the County, attested that the County had treated the fence as a boundary between the two properties for more than 15 continuous years and had intended to possess and own the property on the County's side of the fence. Browning further attested that the County believed that the property on the south side of the fence was exclusively County property and had exclusively and continuously maintained the property for more than 15 years. Moreover, Charlie Nichols, the individual responsible for maintaining Lone Star Lake Park for approximately 33 years, attested that he had understood that the fence represented the boundary line between the County's property and the adjoining landowner's property. Accordingly, the County had openly and exclusively maintained the property on the south side of the fence for more than 15 years and had treated the property as its own.
Chesbro attested that he had seen virtually no evidence that the County had maintained the disputed strip of property other than some occasional trimming of weeds and grass directly adjacent to the public road. Moreover, Chesbro alleged that he met with Browning at the property in early 2005 and discussed where the property line was set. According to Chesbro, Browning acknowledged that the property line was at a point marked by a pin that abutted the public road.
In late 2005, Chesbro applied to the County department of public works for a residential entrance permit from his property onto Douglas County Road 1-E. After a public hearing, the Board denied Chesbro's application by a vote of 2 to 0. Chesbro then filed a notice of appeal and petition for judicial review with the trial court. Chesbro argued that the Board's denial of his application was made in an arbitrary manner because the Board had previously granted an agricultural entrance permit to Fishburn and had granted a residential entrance permit to a similarly situated landowner. Moreover, Chesbro alleged that over 25 entrance permits from privately owned property to Douglas County Road 1-E currently existed. Chesbro further argued that his property directly abutted and crossed onto the road surface of Douglas County Road 1-E and that he was entitled to a residential entrance permit to the road.
The Board moved for summary judgment and argued that the uncontroverted facts showed that Chesbro's property did not abut the park access drive based on the establishment of an agreed boundary line fence. The Board further argued that the County had gained adverse possession of the land between the boundary fence and the park access drive.
The trial court conducted a nonevidentiary hearing in September 2006. At the hearing, the parties acknowledged that the fence had been in place for at least 25 to 30 years and that the disputed strip of land was a 100-square-foot strip of property. Moreover, Chesbro's counsel told the trial court that Chesbro's testimony at trial would be that he had occasionally taken care of the disputed strip of land; however, this evidence had been omitted from Chesbro's affidavit.
The trial court issued a written memorandum decision in December 2006. The trial court denied the Board's motion for summary judgment on its agreed boundary theory. Nevertheless, the trial court granted the Board's motion for summary judgment on its adverse possession theory. Chesbro moved for reconsideration of the trial court's decision. Chesbro argued that the trial court never addressed his claim that the Board's denial of his application for a residential entrance permit was made in an arbitrary manner. In a second written memorandum decision filed in January 2007, the trial court found that the Board's denial of the residential entrance permit was neither arbitrary nor capricious. Accordingly, the trial court denied Chesbro's motion for reconsideration.
I. Did the trial court err in granting summary judgment on the Board's adverse possession theory?
On appeal, Chesbro argues that the Board erred in granting summary judgment to the Board when it determined that the County was the rightful owner of the strip of property in question through adverse possession. An appellate court's standard of review in summary judgment cases is familiar:
*834 "`"`Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.'"' [Citation omitted.]" Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
"[A] party cannot avoid summary judgment on the mere hope that something may develop later during discovery or at trial. [Citations omitted.]" Crooks v. Greene, 12 Kan. App. 2d 62, 66, 736 P.2d 78 (1987). Mere speculation is similarly insufficient to avoid summary judgment. Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, Syl. ¶ 8, 138 P.3d 388, rev. denied 282 Kan. 791 (2006).
Generally, whether title is acquired by adverse possession is a question of fact to be determined by the trier of fact. Buchanan v. Rediger, 26 Kan. App. 2d 59, 62, 975 P.2d 1235, rev. denied 267 Kan. 888 (1999). Nevertheless, when a factual determination turns on undisputed facts, it becomes a question of law for the court. See Ruebke v. Globe Communications Corp., 241 Kan. 595, 605-06, 738 P.2d 1246 (1987) (recognizing that malice in defamation claim, which is ordinarily question of fact for jury, could be decided as question of law when facts not in dispute). Where there are no factual disputes, appellate review of a summary judgment order is de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
The doctrine of adverse possession provides that "`the true owner of property, who fails to protect rights of ownership against one holding in adverse possession and manifesting the same as required by statute and for the length of time fixed thereby, is considered as having acquiesced in the transfer of ownership.' [Citation omitted.]" Buchanan, 26 Kan.App.2d at 62, 975 P.2d 1235.
K.S.A. 60-503 states: "No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years." K.S.A. 60-503 changes the common-law concept of adverse possession by eliminating hostility as an essential element. See Stark v. Stanhope, 206 Kan. 428, 432-33, 480 P.2d 72 (1971). Under K.S.A. 60-503, adverse possession can now be acquired in Kansas either (a) under a claim knowingly adverse, i.e., a hostile holding or (b) through occupancy under a belief of ownership. The possession must still be "`open, exclusive, and continuous'" for the statutory period. Stark, 206 Kan. at 432, 480 P.2d 72.
"The doctrine of adverse possession permits the `tacking' of possession to establish the requisite time period. . . . [O]nce the statute of limitations for adverse possession begins to run against the rightful owner of real property, the time continues even if the rightful owner dies or otherwise transfers the property. [Citations omitted.]" Buchanan, 26 Kan.App.2d at 64, 975 P.2d 1235.
Moreover, in a claim of title by adverse possession, every presumption is in favor of the holder of the legal title and against the claimant. The law will not allow the property of a person to be taken by another upon slight presumptions or probabilities. The facts relied upon to establish adverse possession cannot be presumed, and presumptions will not be indulged in to establish a claim of title. Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980).
In the instant case, the Board argued that the County had acquired the disputed *835 strip of land by adverse possession through a belief of ownership. Thus, in order to prevail on their adverse possession claim, the Board needed to establish that the County had openly, exclusively, and continuously possessed the disputed strip of land under a belief of ownership for the requisite 15-year period. See Stark, 206 Kan. at 432, 480 P.2d 72. The County's belief of ownership must have been in good faith and reasonable under all the facts and circumstances. See Armstrong v. Cities Service Gas Co., 210 Kan. 298, 309, 502 P.2d 672 (1972).
The trial court determined that the County had been in exclusive and open possession of the disputed strip of land for more than 30 years and had operated under a belief that the County had owned the land. The trial court determined that because the requisite period to establish adverse possession was 15 years under K.S.A. 60-503, the strip of land had become the County's property in 1987. In making this determination, the trial court looked to the County's payment of half the cost of the fence, Fishburn's statements in his affidavit that he believed the disputed strip of land belonged to the County, the County's maintenance of the disputed strip of land, and the affidavits of Nichols and Browning. Moreover, the trial court determined that the County's exclusive weed killing and mowing were sufficient acts to establish adverse possession when taking into consideration the particular land, its condition, character, locality, and appropriate use.
A. Open, Exclusive, and Continuous Possession
1. County's Maintenance of Property
Chesbro first attacks the trial court's decision by arguing that the County's maintenance of the property was insufficient to constitute adverse possession. Chesbro cites Trager v. Elliot, 106 Kan. 228, 187 P. 875 (1920), and Thompson v. Hilltop Lodge, Inc., 34 Kan. App. 2d 908, 126 P.3d 441 (2006).
Nevertheless, both Trager and Thompson are distinguishable from the instant case. In Trager, our Supreme Court held that the grazing of cattle on unoccupied prairie land or the occasional cutting of grass for hay was insufficient to establish notice of a claim of exclusive possession to the holder of a tax title to such unoccupied prairie land, especially when at that time cattle and horses ordinarily pastured over all unfenced and uncultivated land. Moreover, it was the settlers' custom in the area to cut grass for hay on unoccupied lands. 106 Kan. 228, Syl. ¶ 2, 187 P. 875. In Thompson, the trial court held that the plaintiff's "`maintenance of a lawn along an open boundary does not constitute an adverse holding or give sufficient notice to the owner of title to support a claim of adverse possession.'" 34 Kan. App. 2d at 910-11, 126 P.3d 441. There, however, this court noted that both the plaintiff and the defendant were caring for the disputed tract of land, and there was no indication that the plaintiffs were exclusively providing the maintenance. As a result, the plaintiff's use of the property did not give unequivocal notice to the defendant of the plaintiff's claim of title to the tract. 34 Kan. App. 2d at 910-11, 126 P.3d 441.
The instant case is different from both Trager and Elliot because in those cases multiple parties were possessing and maintaining the property at issue. Moreover, in those cases, the property was either unbounded or partially unbounded. In this case, however, it is undisputed that Fishburn and the County agreed and understood that the fence would be the boundary line between the two properties. As a result, the County exclusively maintained its side of the fence and Fishburn maintained his side of the fence. Fishburn, Browning, and Nichols provided uncontroverted evidence in this case that the County exclusively cared for, maintained, and possessed its side of the fence for more than 15 years.
Chesbro contends that no information was provided as to how the strip of property was "maintained" in this case. Nevertheless, Nichols provided the following information in his affidavit about how the County's Lone Star Lake property had been maintained:
"9. I have been taking care of or otherwise been responsible for the maintenance of the grounds at Lone Star Lake Park for approximately the past 33 years;
*836 "10. For more than 15 years, Douglas County has been the only one I know of who has:
"a. Maintained the park property at Lone Star Lake Park;
"b. Maintained the property around the park access drive within Lone Star Lake Park;
"c. Maintained the ditches along side the park access drive within Lone Star Lake Park; and
"d. Kept the grass cut on the Lone Star Lake Park property."
Moreover, Chesbro even acknowledged in his affidavit that the County provided "occasional trimming of weeds and grass directly adjacent to the road."
Our Supreme Court has stated that actions necessary to constitute adverse possession "`are relative to the type and nature of the property and surrounding circumstances, taking into consideration the particular land, its condition, character, locality, and appropriate use.'" Schaake v. McGrew, et al., 211 Kan. 842, 846, 508 P.2d 930 (1973). "[N]either actual cultivation nor residence is necessary to constitute actual possession where the property is so situated and is of such a type as not to admit of any permanent useful improvements, and [such] possession must be as definite as the character of the land will permit. [Citations omitted.]" Manville v. Gronniger, 182 Kan. 572, 578, 322 P.2d 789 (1958).
In his appellate brief, Chesbro acknowledges that the strip of disputed land is essentially a large ditch. Moreover, the record establishes that the property is located next to a public park access road on Lone Star Lake park property. Based on the character of the property, the uncontroverted evidence showing the County's exclusive maintenance of the Lone Star Lake property, including the strip of disputed land, by weed cutting, ditch mowing, and ditch maintenance, along with the placement of the fence as a boundary between the two properties, were sufficient actions to constitute adverse possession.
Although not mentioned in Chesbro's brief, the trial court noted that Chesbro had asserted that he had occasionally taken care of the disputed strip of land. This fact was not included in Chesbro's affidavit but was proffered at the nonevidentiary hearing. The trial court determined that Chesbro's argument lacked merit because his maintenance of the property would have occurred after the County had gained the strip of land by adverse possession. The trial court's reasoning appears to be correct. By the time that Chesbro had purchased the land from Fishburn, the requisite 15-year period under K.S.A. 60-503 for adverse possession had been met. As a result, Chesbro's assertion does not defeat the Board's adverse possession claim.
2. Chesbro's Knowledge of Ownership
Chesbro further argues that the County's failure to record its interest in the property and Fishburn's failure to inform him of the property being possessed by the County disputes the assertion of open, exclusive, and continuous possession of the disputed strip of land.
Nevertheless, the County did not need to file a deed in order to establish that it had adversely possessed the property. A claim of adverse possession does not require possession under a deed or other muniment of title. See Casner v. Common School District No. 7, 175 Kan. 551, 555, 265 P.2d 1027 (1954). Moreover, Fishburn's failure to notify Chesbro of the County's ownership and possession of the property does not defeat any of the elements of adverse possession.
The undisputed evidence in this case established that a fence had been installed between the County's property and Fishburn's property (later Chesbro's property) more than 25 years before this action and was still in the same location when this action was commenced. The County and Fishburn had agreed that this was the boundary line between the two properties. The County was the only one that maintained the property on its side of the fence after the fence was constructed. The County's exclusive maintenance was consistent with the character of the property. Based on the uncontroverted evidence in the case, the trial court properly determined that the County's possession of *837 the property was open, exclusive, and continuous for the requisite 15-year period.
B. Belief of Ownership
Chesbro next attacks the trial court's decision by arguing that Browning's affidavit was insufficient to establish the County's belief of ownership in the disputed strip of land. Browning attested that the County had treated the fence "as a boundary fence between the two properties for more than fifteen continuous years, and has intended to possess and own the property on the County side of the fence, regardless of the true property line." In addition, Browning stated that the County had believed that the property on the south side of the fence was its exclusive property.
Chesbro maintains that Browning never provided an adequate foundation for his statements because Browning failed to state how long he has been employed by the County or any other basis for his belief that the County had owned the disputed strip of land. In his affidavit, however, Browning states that he is the director of public works and county engineer for the County. It is apparent that Browning, as the director of public works for the County, would have access to information concerning the County's property.
Moreover, even if there was a problem with Browning's affidavit, this was only part of the evidence provided by the Board to establish belief of ownership. Specifically, the Board provided sworn testimony from Fishburn that the fence was constructed with the intention that it would mark the boundary between Fishburn's property and the County's property and that the County had maintained the property on its side of the fence since the fence was constructed. In addition, both Fishburn's affidavit and the minutes from the Board's May 1972 meeting reflect that the County paid for half the cost of the materials to build the fence. Moreover, the Board provided sworn testimony from Nichols, who had been responsible for the maintenance of the Lone Star Lake property for approximately 33 years, that he had always understood that the fence line separated the County's property from the adjoining landowner's property. Nichols further attested that he had always understood, intended, and acted as if the fence represented the boundary line between the County's property and the adjoining landowner's property and that the County had maintained the property on the County's side of the fence for more than 15 years and had treated the property as its own. Even if Browning's affidavit was excluded, the other evidence previously mentioned would have been more than sufficient to establish the County's belief of ownership in the disputed strip of land.
Nevertheless, Chesbro argues that he never had the opportunity to cross-examine the Board's affiants or have their in-person testimony taken because they were not listed as witnesses in the Board's expert disclosure. Nevertheless, the record shows that Browning was listed in the Board's expert disclosure. Moreover, the record is clear that Fishburn's evidence, as the former property owner during the 15-year requisite period for adverse possession, was necessary to the case. Once the Board had filed its properly supported summary judgment motion, it was incumbent upon Chesbro to come forward with specific facts showing that there was a genuine issue for trial. See K.S.A. 60-256(e). If Chesbro needed more time to conduct discovery or to develop the evidence needed to show that there was a genuine issue of material fact, he needed to invoke K.S.A. 60-256(f) which provides a procedural mechanism to raise this issue in order to prevent the entry of summary judgment.
Chesbro contends that the assertions in the affidavits provided by the Board were directly contradicted by his sworn statements that he met with Browning in early 2005 and Browning acknowledged that the property line was at a point marked by a pin that abutted the public park access road. Chesbro further stated in his affidavit that "[a]t no time did he [Browning] ever assert that the property line was at the fence line and that Douglas County owned the property between the fence line" and the public park access road.
The trial court determined that Chesbro's claim concerning Browning would be an improper *838 application of the doctrine of laches against a governmental entity and stated:
"This kind of claim cannot be advanced against a government entity under the doctrine of laches. It cannot be said that the failure to register an interest in the property was proof of `slackness' or the county sleeping on its rights. The county's exclusive and continued maintenance defeats that contention. Defendant has believed in good faith for more than 30 years that it owned the strip of land. This belief cannot be impeached when Defendant subsequently learned of a different purported true boundary. Further, the boundary pin no longer marks the true boundary because the true boundary, having been set by adverse possession in 1987, is now the fence line between Plaintiff's and Defendant's property."
The uncontroverted evidence in this case established that by the time that the meeting between Browning and Chesbro had occurred, the County had believed in good faith for more than the requisite 15-year period that it had owned the disputed strip of land. Browning's "acknowledgment" to Chesbro that the property line was marked by a pin many years after the County had already acquired ownership of the property through adverse possession would not operate to destroy the County's ownership and possession.
Finally, Chesbro suggests that the County's failure to pay taxes on the property in question indicates that it did not have a good faith belief in ownership of the disputed strip of land. Nevertheless, an adverse possessor is not required to pay taxes to succeed in a claim of ownership. Graham v. Lambeth, 22 Kan. App. 2d 805, 808, 921 P.2d 850 (1996). It is only one of the factors to consider in determining whether a claim of ownership exists or a claim is knowingly adverse. Renensland v. Ellenberger, 1 Kan. App. 2d 659, 664, 574 P.2d 217 (1977). Here, both parties represented to the trial court that the disputed strip of property was only 100-square feet, while Chesbro's property was 173.79 acres in its entirety. As the trial court pointed out, the County's assessment of property taxes on the strip of land amounts to 1/2200th of an acre, which is a de minimis cost.
The County's failure to pay taxes on the disputed strip of land does not dispute the evidence in this case that a fence had been erected more than 25 years before this action with an understanding by both the County and the adjoining landowner that the fence would serve as the boundary line between the two properties. Recognizing that several factors buttressed the County's belief that it owned the disputed strip of land, the trial court stated:
"First, the fact that the county paid half the cost of a fence indicates that it believed it owned the strip of land between the fence and [the public road]. The county was not likely to pay half the cost of a fence that they believed sat on private property. Mr. Fishburn's affidavit as a landowner who lived on the other side of the fence for more than 30 years lends credibility to the county's claim of ownership. He stated that both he and [the Board] believed the strip of land to belong to the county. Mr. Fishburn would have been intimately aware of what was happening on the strip of land for more than 30 years, and his recollections must not be discounted.
"Second, the county's exclusive mowing of and killing of weeds on the strip of land demonstrates its belief of ownership on the strip of land, as well as announcement of this belief of ownership to the entire world. The county is not likely to maintain land it does not believe it owns. The testimony of Mr. Nichols, an employee who has maintained the grounds in close proximity to the strip of land for more than 33 years, as well as the testimony of Mr. Browning, the county's director of public works, credibly supports [the Board's] claim of exclusivity over the 15-year statutory period required to gain a property by adverse possession. [Chesbro] offers nothing in the way of rebuttal evidence to refute the two employees' claims."
The trial court thoroughly considered all of the evidence presented in both the Board's motion for summary judgment and Chesbro's response and properly concluded that the *839 uncontroverted evidence established that the County had a good faith belief of ownership. In opposing the Board's motion for summary judgment, Chesbro had the burden to come forward with some evidence to establish a material dispute of fact. See Glenn v. Fleming, 247 Kan. 296, 304, 799 P.2d 79 (1990). "A genuine issue of fact exists only if a controverted fact has controlling legal force as to a controlling issue. [Citations omitted.]" Schultz v. Schwartz, 28 Kan. App. 2d 84, 87, 11 P.3d 530, rev. denied 270 Kan. 900 (2000). "`"If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact."`[Citations omitted.]" P.W.P. v. L.S., 266 Kan. 417, 423, 969 P.2d 896 (1998). Here, Chesbro never brought forth any evidence to establish a material dispute of fact concerning the County's good faith belief of ownership for the requisite 15-year period. Based on the trial court's well-reasoned decision, the grant of summary judgment on the Board's adverse possession claim was proper.
II. Did the trial court err in denying summary judgment on the Board's agreed boundary theory?
In addition, the Board argues that Chesbro's property does not abut the road because the parties have agreed to the boundary between their properties. This argument was raised in their motion for summary judgment, but the trial court denied summary judgment on this theory. Because we have determined that the trial court properly granted summary judgment to the Board on its adverse possession theory, it is unnecessary to address the Board's argument on this issue.
Moreover, our Supreme Court has held that before an appellee may present adverse rulings to the appellate court, the appellee must file a cross-appeal. If an appellee does not file a cross-appeal, the issue is not properly before the appellate court and may not be considered. Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008); see K.S.A. 60-2103(h). Further, this court has stated that an appellate court may review a denial of a motion for summary judgment on appeal when asserted as a cross-appeal. It is necessary that a cross-appeal be perfected in order to obtain appellate review of the adverse decision. If no cross-appeal is filed, the trial court's undisturbed rulings become a final ruling when the case is finally adjudicated. Grimmett v. S & W Auto Sales Co., 26 Kan. App. 2d 482, 484, 988 P.2d 755 (1999). Because the Board never cross-appealed the trial court's denial of summary judgment on this issue, the Board has not preserved this issue for appeal.
III. Did the trial court err in determining that the Board's decision was not arbitrary or capricious?
Finally, Chesbro argues that the trial court erred in finding summary judgment on his claim that the Board's denial of his entrance permit application was made in an arbitrary and capricious manner. K.S.A. 77-621(c)(8) provides that agency action may be set aside if it "is otherwise unreasonable, arbitrary or capricious." "An agency's action is `arbitrary and capricious' if it is unreasonable or `without foundation in fact.' [Citation omitted.]" Zinke & Trumbo, Ltd. v. Kansas Corporation Comm'n, 242 Kan. 470, 475, 749 P.2d 21 (1988).
Importantly, the appellant has not provided this court with the Board's decision denying his application for a residential access permit, the minutes from the hearing where the Board denied the permit, or any other evidence that would show the Board acted in an arbitrary and capricious manner. "An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, the claim of alleged error fails. [Citation omitted.]" Ellibee v. Aramark Correctional Services, Inc., 37 Kan. App. 2d 430, 433, 154 P.3d 39, rev. denied 284 Kan. 945 (2007).
Moreover, based on the limited record before this court, we cannot say that the Board's decision was unreasonable or without foundation in fact. Our Supreme Court has held that a right of access to and from a public street or highway is one of the incidents of ownership of land abutting the street or highway. Teachers Insurance & Annuity Ass'n of America v. City of Wichita, *840 221 Kan. 325, 330, 559 P.2d 347 (1977). In order for a landowner to have this right of access, he or she must own land abutting that street or highway. Spurling v. Kansas State Park & Resources Authority, 6 Kan. App. 2d 803, 804-05, 636 P.2d 182 (1981).
Determining that the Board's decision was not arbitrary and capricious because Chesbro had no legal right to access the public park access road from his property, the trial court aptly stated:
"One of the paramount incidents of property ownership is the right to exclude others. Kaiser Aetna v. U.S., 444 U.S. 164, [62 L. Ed. 2d 332,] 100 S. Ct. 383 (1979). Because Plaintiff [Chesbro] does not own land abutting East 715 Road, Defendant [the Board] is well within its rights as a property owner to exclude Plaintiff for whatever reason. Because Plaintiff lacks a legal right to access, denial of that access is neither arbitrary nor capricious, but merely an exercise of a property owner's right to exclude.
"Defendant's denial of Plaintiff's request for a residential access permit was a reasoned, rational decision supported by Defendant's property ownership and Kansas law. This court's finding that Defendant owned the strip of land by adverse possession extinguished any legal right of access the Plaintiff might have had and made moot any discussion of an alleged arbitrary denial of Plaintiff's request for a residential access permit. Plaintiff had no legal right to access East 715 Road from his property, so consequently Defendant was not obliged to allow access."
The trial court's reasoning was proper. The evidence in this case established that the County owned the land abutting the public park access road and that Chesbro's property did not abut the road. As a result, Chesbro had no right of access to and from the public park access road, and the Board could deny Chesbro's application. Although Chesbro alleges that other similarly situated property owners had been granted residential entrance permits, there is no evidence in the record that would support these statements. Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993). As a result, Chesbro's argument on this issue fails.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600713/ | 41 P.3d 720 (2001)
98 Hawai`i 58
STATE of Hawai`i, CHILD SUPPORT ENFORCEMENT AGENCY, Petitioner-Appellee, and
Jane Doe, Petitioner-Appellant,
v.
John DOE, Respondent-Appellee.
No. 23057.
Intermediate Court of Appeals of Hawai`i.
November 26, 2001.
Reconsideration Denied December 10, 2001.
As Amended December 10, 2001.
Certiorari Denied January 11, 2002.
*721 Gregg Young, Acting Chief Judge, for petitioner-appellant.
Michael F. O'Connor, Associate Judge, (Tam, O'Connor, Henderson, Taira & Yamauchi), for respondent-appellee.
Margaret K. Masunaga, Corporation Counsel, Family, Support Division, Kona Branch, for petitioner-appellee.
WATANABE, Acting Chief Judge, LIM, and FOLEY, JJ.
Opinion of the Court by LIM, J.
Petitioner-Appellant Jane Doe (Mother) appeals the March 9, 1999 decision and order *722 of the family court of the third circuit,[1] and the court's December 20, 1999 order denying her March 19, 1999 motion for reconsideration of its decision and order. She also appeals the court's May 3, 1999 judgment and the notice of entry of judgment of even date.[2] We affirm.
I. BACKGROUND.
A son (Child) was born to Mother on April 24, 1985. Mother, who is fifty-one years old, has never been married and has no children other than Child. On December 12, 1997, Petitioner-Appellee Child Support Enforcement Agency, State of Hawai`i (CSEA), filed a petition for paternity on behalf of Child, pursuant to application by Mother. The petition sought adjudication of Child's paternity and other relief pursuant to Hawai`i Revised Statutes (HRS) chapter 584 (1993 & Supp. 2000) (entitled, "Uniform Parentage Act"). John Doe was named as the defendant in the petition. During a brief interlude, Mother and John Doe had engaged in sexual intercourse once or twice. The petition prayed, inter alia, that John Doe be adjudged the father of Child, that Mother be awarded custody of Child and that John Doe "be ordered to pay for the support, maintenance and education of [Child] from the time of birth[.]"
A February 27, 1998 order directed Mother, Child and John Doe to submit blood specimens for a genetic paternity test. The test did not exclude John Doe as Child's father; indeed, it set the probability that John Doe was Child's father at 99.94%, as compared to an untested, unrelated man of the same race. During a December 16, 1998 hearing,[3] the parties stipulated that John Doe (Father) is Child's natural father. Father did not contest Mother's custody of Child. Father did not request visitation with Child.
On January 29, 1999, trial was held on the question of child support. Father, sixty-six years old and currently unmarried with three grown children, testified that up until the time of the petition for paternity, he did not know that Child had been born. Maternal grandmother disputed this, testifying that she had once shown Child to Father, about two weeks after his birth. On this issue, Mother had testified in her deposition that, "I don't think he even knew." The court ultimately found, however, that Father knew about the pregnancy and birth.
Apparently, Father did not communicate with Mother after their brief encounter, save for a 1985 Christmas card. Mother confirmed that she and Father had not spoken since she was about five months into the natural aftermath of their affair. She had tried to telephone Father once in 1991. Father implied that Mother had told him, during her gravidity, that he would not have to support the child. Father expressed dismay at the prospect that his family and his business associates might find out about Child.
Father reported, on his federal income tax returns for the years 1985 to 1997, the following incomes:
Year Income
1985 $259,000
1986 $313,000
1987 $392,500
1988 $610,885
1989 $827,945
1990 (Tax return not in the record.)
1991 $521,200
1992 $1,046,100
1993 $747,850
1994 $772,115
1995 $773,538
1996 $640,680
1997 $683,680
Father, the owner of a corporation with several subsidiaries, testified extensively about *723 offsettingand in his opinion, overwhelmingpersonal and business debts and obligations, both established and contingent. However, the court noted in its decision and order that Father "has some $337,000.00 in net liquid assets."
Mother testified that when Child was about a year old, she sold her home in Honolulu, moved to California, and lived off the proceeds of the sale, approximately $100,000. She could not recall whether the $100,000 was before or after taxes. While there, she obtained a real estate license, but worked "[a] little bit, not much." After three years in California, she and Child returned to Hawai`i with approximately $10,000 left from the sale of the house. From 1990 to 1998, Mother earned between $24,000 and $28,000 annually, working as a teacher. Mother maintained that all, or all but "[v]ery, very little[,]" of her teaching salary was spent on Child. At the time of the trial, she had no significant assets.
Mother presented copious evidence at trial that Child, a student in the public schools, is polite, motivated and successful, academically and otherwise. Mother also presented evidence that she and her brother (Uncle) had enjoyed a privileged standard of living during their upbringing. So had the children of Uncle during theirs.
Mother asked for $1,128,298 in past child support, based upon the applicable[4] child support guidelines as applied to her and Father's past salaries. The court decided, however, that pursuant to HRS § 584-15(d) (Supp.2000),[5] Father's liability for past child support would be limited to a portion of the expenses actually incurred on Child's behalf. The court held that Mother had the burden of proof as to the amount of those expenses.
The court first found that Mother had not provided sufficient evidence of Child's expenses for the year between his birth and their move to California, or for their three years in California.
As for subsequent years, the court did not believe Mother's testimony that she had spent virtually all of her teacher's salary on Child. The court found, instead, that Mother had proved that she had spent $182,000 on her and Child's expenses since returning to Hawaii from California,[6] and that half of that, or $91,000, would be attributed to Child's expenses. The court concluded, finally, that Father would pay $61,000, or about 67%, of the $91,000 in Child's past expenses that Mother had proved.
For current child support payments, Mother argued that the November 1, 1998 amended child support guidelines (ACSG), as applied to Father's approximate average income as shown on his 1997 personal income tax return, dictated that Father should pay $6,320 per month in child support.[7]
However, the court departed from the ACSG, holding instead that the appropriate standard of living for Child would result in monthly expenses for Child equal to 50% of the $1,091.82 that Mother spent on general *724 expenses[8] for her household each month plus 60% of the $1,675.00 that Father spent on personal expenses each month (not including certain expenses not applicable to Child; specifically, life insurance and dependent care).[9] This totaled about $1,550 per month. Based on the ratio of the net incomes of Mother and Father, the court further decided that Father should pay for 92% of the appropriate standard of living determined by the above formula. The court thereupon determined that Father would pay a rounded $1,430 per month in current child support.[10]
II. ISSUES PRESENTED.
Mother presents the following issues on appeal: (1) whether the court erred in its calculation of past child support; and (2) whether the court erred in its calculation of current child support.
III. DISCUSSION.
Relevant statutes governing child support include HRS § 571-52.5 (1993): "When the court establishes or modifies the amount of child support required to be paid by a parent, the court shall use the guidelines established under section 576D-7,[11] except when exceptional circumstances warrant departure." (Footnote added.) The ACSG utilize a child support guidelines worksheet keyed to the respective net incomes of the parties to come up with a current child support amount:
The Child Support Guidelines Worksheet enclosed within the Hawaii 1994 ACSG consists of two pages. [2 Hawaii Inst. for Continuing Legal Education, Hawaii Divorce Manual § 17], at 163-64. The first page has three parts: Part I computes the Primary Child Support; Part II computes the Standard of Living Adjustment (SOLA); and Part III computes the Total Monthly Support Obligation by adding the total of the Primary Child Support obligation and the SOLA obligation. The second page consists of the Statement Regarding Exceptional Circumstances. The party seeking an exceptional circumstance *725 deviation from the amount computed according to Parts I, II, and III on the first page must declare under penalty of perjury the exceptional circumstances.
CSEA v. Mazzone, 88 Hawai`i 456, 463, 967 P.2d 653, 660 (App.1998). The ACSG give examples of "exceptional circumstances" warranting departure from the amount of child support calculated through the ACSG. Among the examples given is: "A monthly income that would result in a computation higher than the children's reasonable needs." We have interpreted this to mean, more precisely, "A monthly income that would result in a computation higher than the reasonable needs of the children based on the relevant standard of living." Nabarrete v. Nabarrete, 86 Hawai`i 368, 371, 949 P.2d 208, 211 (App. 1997) (emphasis in the original).
On the other hand, HRS § 584-15(d) provides, in pertinent part: "The court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just."
A. Past Child Support.
Mother contends on appeal that the determination of past, as well as current, child support was controlled by HRS § 571-52.5, and therefore Father should reimburse her the amount he would have paid over the years if child support had been determined by the ACSG. Father agrees that HRS § 571-52.5 governs current child support, but argues that the court did not err in applying HRS § 584-15(d) to past support.
The meaning of a statute is a question of law that we review de novo. Gardens at West Maui v. County of Maui, 90 Hawai`i 334, 339, 978 P.2d 772, 777 (1999) (citation omitted).
Mother argues that the above-quoted sentence of HRS § 584-15(d), which has remained unamended since it was originally enacted in 1975, was meant to be replaced by HRS § 571-52.5, which was enacted as a part of Act 332 of 1986. However, "[a]s a general rule, repeals by implication are disfavored. If effect can reasonably be given to two statutes, it is proper to presume that the earlier statute is to remain in force and that the later statute did not repeal it." Gardens at West Maui, 90 Hawai`i at 340, 978 P.2d at 778 (citations, internal quotation marks and original brackets omitted). In the case of HRS § 584-15(d) and HRS § 571-52.5, effect can be given both statutes. HRS § 571-52.5 establishes the amount of child support payments to be made now, and as modified in the future, by the obligor parent; HRS § 584-15(d) gives the court the discretion to limit the obligor parent's liability for past support to a just proportion of past expenses. HRS § 584-15(d) was not repealed when HRS § 571-52.5 was enacted.
Moreover, the chapter of which HRS § 571-52.5 is a part, HRS chapter 571 (1993 & Supp.2000) (entitled, "Family Courts"), governs the family courts in general. The chapter containing HRS § 584-15(d), on the other hand, HRS chapter 584 (entitled, "Uniform Parentage Act"), is concerned specifically and exclusively with actions to establish the paternity of a child and to obtain child support, reimbursement and other relief, and is the authority that Mother invoked in bringing her petition for paternity. Hence, as between HRS § 571-52.5 and HRS § 584-15(d), and assuming arguendo that they embrace the same subject matter, it cannot be said as a matter of statutory construction that the former ousts the latter in the matter of past child support. Cf. State v. Putnam, 93 Hawai`i 362, 370, 3 P.3d 1239, 1247 (2000) ("Where there is a plainly irreconcilable conflict between a general and a specific statute concerning the same subject matter, the specific will be favored." (Brackets, citations, footnote and internal quotations marks omitted.)).
At any rate, we need no interpretation to clearly see that the last sentence of HRS § 584-15(d) affords the court discretion to limit past child support to a proportion of the expenses already incurred on behalf of the child, as an alternative to any other provisions of HRS § 584-15 that may govern past child support.[12] As stated by the supreme *726 court:
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language contained in the statute itself. Where the language of a statute is plain and unambiguous, our only duty is to give effect to the statute's plain and obvious meaning. Further, in interpreting a statute, we give the words their common meaning, unless there is something in the statute requiring a different interpretation.
Gardens at West Maui, 90 Hawai`i at 339, 978 P.2d at 777 (citation omitted).
Having decided the applicability of HRS § 584-15(d), we now examine how it was applied in this case. The court's application of HRS § 584-15(d) is reviewed for abuse of discretion. Cf. Nabarrete, 86 Hawai`i at 372, 949 P.2d at 212 ("Since no rules or guidelines have been published advising the family court how to decide [a certain child support issue], the relevant appellate standard of review is the abuse of discretion standard."). An abuse of discretion occurs if the trial court has "clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992) (citation omitted).
In this regard, Mother argues that, because of Child's academic success and admirable character, his "reasonable needs . . . based on the relevant standard of living[,]" Nabarrete, 86 Hawai`i at 371, 949 P.2d at 211 (emphasis omitted), are greater than they otherwise would be. This argument is illogical and irrelevant to the past expenses of the Child under HRS § 584-15(d), and is without merit. Mother also argues that the evidence presented at trial about the high standard of living she enjoyed during her childhood demonstrates that she knows how to spend a large amount of money in Child's best interest. Be that as it may, it says nothing about past expenditures on behalf of Child. This argument is also without merit.
Mother also argues there was uncontradicted testimony that she had sold her house in Honolulu for $100,000, and had spent all but $10,000 of that allegedly sole source of income on her and Child's expenses during their time in California. She thereupon contends the court should have found that she had spent an additional $90,000, for a total of $272,000 ($90,000 plus the $182,000 found by the court), on their combined expenses during Child's lifetime.[13] She concludes the court should have found a total of $136,000 in reimbursable expenses (50% of $272,000), instead of $90,000 in reimbursable expenses.
However, CSEA and Mother bore the burden of proof as petitioners. See Ho v. Leftwich, 88 Hawai`i 251, 257, 965 P.2d 793, 799 (1998) (the plaintiff "must bear the burden of proving all of the elements of her case" (citation omitted)). Other than the uncontradicted testimony cited, there was virtually no other evidence presented to the court at trial about Mother's and Child's expenses during their time in California. We agree with the court's conclusion that the syllogism advanced by Mother is devoid of factual underpinning sufficient to meet her burden of proof.
*727 In addition, "it is the right of the trier of fact to determine credibility and to weigh evidence." State v. Napulou, 85 Hawai`i 49, 55, 936 P.2d 1297, 1303 (App.1997) (citation omitted). We observe that, in a similar respect, the court was "not convinced [Mother] spent no monies on herself between 1990 and the present for personal expenses, other than food." Because the court had the exclusive right to decide how much weight, if any, to give to Mother's testimony about her expenses in California, we will not reexamine its finding on the issue.
Mother's final complaint on the issue of past child support is that the court, after finding that she had spent a total of $91,000 on Child's expenses, ordered Father to reimburse only $61,000, or approximately 67%, of that sum. HRS § 584-15(d) gave the court discretion to limit Father's liability to the portion of Child's expenses that it deemed just. Although reasonable minds might differ as to the justice of the court's apportionment, we cannot say, upon the circumstances of the case as revealed by the evidence, that the court "clearly exceeded the bounds of reason or disregarded rules or principles of law or practice" in this respect. Amfac, Inc., 74 Haw. at 114, 839 P.2d at 26 (citation omitted).
We conclude the court did not err in its award for reimbursement of past expenses for Child under HRS § 584-15(d).
B. Current Child Support.
Before the establishment of child support guidelines, appellate review of a child support award proceeded under the abuse of discretion standard. Doe VI v. Roe VI, 6 Haw.App. 629, 640, 736 P.2d 448, 456 (1987) (a paternity proceeding under HRS chapter 584 (1985)). However, the advent of child support guidelines significantly narrowed the trial court's discretion in certain respects:
When we decided Davis [v. Davis, 3 Haw. App. 501, 653 P.2d 1167 (1982) ], the family court's discretion was "wide". That discretion was substantially narrowed, however, when the Board of Family Court Judges promulgated its Guidelines on October 20, 1986.
In our view, the family court's decision not to apply the October 20, 1986 Guidelines was wrong. Even when the Guidelines are applied, however, HRS § 571-52.5 (Supp.1986) permits the family court to depart from the Guidelines "when exceptional circumstances warrant departure." The questions are (a) whether there are exceptional circumstances in this case permitting a departure from the Guidelines so as to allow Father to pay less than the Guidelines indicate; (b) if yes, whether Father should be allowed to pay less than the Guidelines indicate; and (c) if yes, how much less? We review the family court's answer to question (a) under the right/wrong or de novo standard of appellate review. We review the family court's answer to questions (b) and (c) under the narrowed abuse of allowed discretion standard.
Mack v. Mack, 7 Haw.App. 171, 179-80, 749 P.2d 478, 483 (1988) (footnote omitted).
As previously noted, HRS § 571-52.5, applicable to the family courts in general, requires use of the ACSG established under HRS § 576D-7 (1993 & Supp.2000) when "the court establishes or modifies the amount of child support required to be paid by a parent[.]" The chapter governing paternity proceedings does the same: "In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, a court enforcing the obligation of support shall use the guidelines established under section 576D-7." HRS § 584-15(e).
As also noted above, HRS § 571-52.5 and the ACSG require "exceptional circumstances" before a court may depart from the amount calculated by the ACSG. "The party seeking [an] exceptional circumstance deviation from the amount computed according to the [ACSG] has the burden of proof." Richardson v. Richardson, 8 Haw.App. 446, 457, 808 P.2d 1279, 1286-87 (1991). The ACSG, as we interpret them, include among such exceptional circumstances "[a] monthly income that would result in a computation higher than the reasonable needs of the children based on the relevant standard of living." Nabarrete, 86 Hawai`i at 371, 949 P.2d at 211 (emphasis omitted).
*728 In Doe VI, a paternity action tried before the advent of child support guidelines, we penned the general principle:
We do not agree with [father] that the need of the child is controlling. Nor do we believe, however, that the child's support should be determined mainly on the non-custodial father's standard of living. The court must be cognizant of the fact that to raise the mother's standard of living through the vehicle of child support would constitute the imposition of an unauthorized obligation on part of the father toward the mother. Also, an award for child support is for the child's current needs based on the child's appropriate standard of living and not for the purpose of saving portions thereof for future needs.
Doe VI, 6 Haw.App. at 641, 736 P.2d at 456-57 (citations and original brackets omitted). In Richardson, a post-guidelines case in which the mother moved for an increase in child support from her former husband, we recognized that the ACSG incorporated this general principle:
In Doe VI v. Roe VI, 6 Haw.App. 629, 736 P.2d 448 (1987), which is a pre-child support guidelines case, we stated that "an award for child support is for the child's current needs based on the child's appropriate standard of living and not for the purpose of saving portions thereof for future needs." 6 Haw.App. at 641, 736 P.2d at 457. In other words, a payment in excess of the children's reasonable needs at the appropriate standard of living is, by definition, a payment for something other than child support. In recognition of this fact, Part III of the ACSG states [that an exceptional circumstance is] . . . "[a]n unusually high monthly income that would result in a computation higher than the reasonable needs of the children. Doe VI v. Roe VI[.]"
Richardson, 8 Haw.App. at 456-57,808 P.2d at 1286 (some quotation marks in lieu of internal block quote format). Also in Richardson, we formulated a schema for analysis in this regard:
In this situation the three questions of fact that must be answered are: (1) What is the appropriate standard of living? (2) What is the total cost of the children's reasonable needs at the appropriate standard of living? (3) If the answer to question (2) is less than the total amount computed according to Parts I and II of the ACSG, then the case involves an exceptional circumstance.
What criteria shall the family court use when factually deciding the child's appropriate standard of living in a particular case? In our view, the following subsections of HRS § 576D-7 (Supp.1990) are the most relevant:
[(a)](1) All earnings, income, and resources of both parents; . . .
(2) The earning potential, reasonable necessities, and borrowing capacity of both parents;
* * *
(7) To balance the standard of living of both parents and child . . .;
(8) To avoid extreme and inequitable changes in either parent's income depending on custody; . . .
* * *
[(b)](3) Applied to ensure, at a minimum, that the child for whom support is sought benefits from the income and resources of the obligor parent on an equitable basis in comparison with any other minor child of the obligor parent[.]
Based on the above, we conclude that (a) the parents' prior financial situation; (b) the custodial parent's current financial situation; and (c) the noncustodial parent's current financial situation are all relevant considerations when factually determining the child's appropriate standard of living in a particular case.
Id. at 457-58, 808 P.2d at 1287 (ellipses and typesetting in the original).
In our case, where the parents never married and never formed a household `a la Richardson, there was no "parents' prior financial situation" because the parents never formed a financial unit. Therefore, only "the custodial parent's current financial situation" and "the noncustodial parent's current financial situation" were relevant considerations in determining Child's "appropriate standard of living."
Mother argues on appeal that the court abused its discretion by relying too much on *729 the respective current expenses of the parties in its determination of current child support, while ignoring their respective current incomes and assets. Mother bootstraps this argument into the conclusion that,
The trial court is of the unique thought that in a paternity support case, the [ACSG] do not apply. It is assumed, according to the trial court, that only children born in wedlock may utilize the [ACSG]. The trial court offers no authority or precedent for the exclusion. Nevertheless, the trial court went ahead and determined current child support by percentages of each parents [sic] monthly expenses[.]
. . . .
It is submitted that there should be no distinction in the application of the [ACSG] whether a child is born in or out of wedlock. By creating such a distinction in order to avoid application of the [ACSG] in determining child support payment amounts for illegitimate children has no precedent, no apparent public policy, and is prejudicial without basis. The trial court's second class treatment of illegitimate children compounds its error by eliminating any need to assess whether the child, where fortunate to have been conceived from parents of financial stature, has the ability to fulfill the high expectations his/her parents are capable of financially providing.
Opening Brief at 16-17. While passionately stated, there are a number of problems with this argument.
First, the underlying argument, that the court ignored the respective current incomes and assets of the parties, is simply not true. The court took them very much into consideration when it ordered Father to pay for 92% of Child's reasonable needs at the appropriate standard of living. They naturally played a role as well in producing the respective levels of current expenses that were utilized by the court in arriving at the appropriate standard of living. Second, the court made no distinction between so-called legitimate and illegitimate children "in order to avoid application of the [ACSG.]" The court, in its words, utilized "the criteria described in Richardson," a case involving children born in wedlock. Thus, its analytical frame-work would have been the same regardless of the marital status of Child's parents. Finally, the notion that Child's aptitudes should be a consideration in this respect cannot withstand careful scrutiny of the apposite statutes and cases.
Apparently, Mother's argument is actuated by the following passage in the court's decision and order, which she quotes as proof of her argument:
The concept of an appropriate standard of living remains elusive, especially in a paternity case where some of the criteria described in Richardson, supra, pages 457 and 458[, 808 P.2d 1279], do not seem to apply. For example: "(7) To balance the standard of living of both parents and child;" and "(8) To avoid extreme and unrequitable [(sic; should be "inequitable") ] changes in either parent's income depending upon custody." [Father] has no obligation to [Mother], and to raise [Mother's] standard of living through the vehicle of child support would be improper (Doe [VI] v. Roe VI, 6 [Haw.App.] 629, 641[, 736 P.2d 448]). This would seem especially true where the parties have never cohabited and there is no history of a complete family unit standard of living.
Mother mistakes the point of the above passage. It is not that the court believed the ACSG do not apply in paternity cases. Rather, the court believed that the two HRS § 576D-7 criteria it identified, stated as they were in a case involving children born in wedlock, were not useful in determining the appropriate standard of living in a case in which the parents never married or cohabited.
The court based its determination of the reasonable needs of Child at the appropriate standard of living on the relatively basic general expenses of Mother, and on the relatively more opulent personal expenses of Father. Intertwined as they naturally were with the respective incomes and assets of the parties, they were indicative of Mother's financial situation and Father's financial situation, the two relevant considerations we identified above. The court ruled that the reasonable needs of the Child at the appropriate standard of living required that approximately *730 $1550 per month be spent on Child's expenses, of which $1,430, or approximately 92%, was Father's share. This is much less than the amount that any of the ACSG worksheets dictated Father should pay in current child support. Hence, the court concluded that Father indeed had a monthly income that would result in a computation higher than the reasonable needs of the child based on the relevant standard of living. In considering a departure from the ACSG on this basis, the court was correct. Mack, 7 Haw. App. at 179, 749 P.2d at 483; Nabarrete, 86 Hawai`i at 371, 949 P.2d at 211.
We next examine whether the court abused its discretion in deciding that Father should pay less than the ACSG indicated, and in deciding how much less. Mack, 7 Haw.App. at 179, 749 P.2d at 483.
Doe VI was a pre-guidelines paternity action involving a mother whose annual salary was $34,000. She owned a two-bedroom condominium apartment subject to a mortgage of $48,000. She also owned a 1978 BMW and about $54,500 in her employer's profit-sharing plan. The father's gross annual income over the relevant period averaged about $110,000. He admitted to a $2,300,000 net worth. Doe VI, 6 Haw.App. at 637-38, 736 P.2d at 454-55.
In vacating the trial court's child support order that required the father to pay $1,600 per month in basic child support, we first determined "the child's current needs based on the child's appropriate standard of living[.]" Id. at 641, 736 P.2d at 457. Relying upon the mother's current income and expense statement, we determined that the child's monthly personal expenses totaled $500. We added to that the child's monthly general expenses, $434, to arrive at a monthly expense total of $934. Then, we accepted mother's representation that father's contribution of child support would boost the child's monthly expenses by $250, arriving at a rounded $1,200 in monthly expenses at the child's appropriate standard of living. Applying an 80% factor based upon the respective earning abilities and financial means of the parties, we held that father should pay $960 per month in basic child support. Id. at 640-42, 736 P.2d at 456-57.
In our case, the court utilized the same procedure, mutatis mutandis, except that it treated Father's actual monthly personal expenses as Child's monthly personal expenses at the appropriate standard or living, in the absence of any evidence of estimate of how child support would boost Child's actual monthly expenses.
In Richardson, a post-divorce action under the ACSG, the divorce decree had ordered the father to pay $550 per month in basic child support for two children, based on the mother's then-current monthly income of $300 and the father's then-current monthly income of $2,530. Almost three years later, the mother moved for an increase in child support. Her average gross monthly income at the time was approximately $1,585. Father's average gross monthly income at the time was approximately $10,788. The applicable ACSG dictated that the father pay $2,100 per month in basic child support. However, the trial court departed from the ACSG, because the father had "an unusually high monthly income that would result in a computation higher than the reasonable needs of the child pursuant to Section 576D-7, HRS, and Doe VI v. Roe VI, 6 Haw.App. 629, 736 P.2d 448 (1987)[,]" and ordered the father to pay $860 per month in basic child support. Richardson, 8 Haw.App. at 448-54, 808 P.2d at 1281-84 (internal block quote format omitted).
In vacating the award of basic child support, we observed that the monthly general expenses of the mother and her children totaled $1,483. The monthly personal expenses of the children amounted to $811. Thereupon, we held:
Based on the facts in the record, it appears that [father's] court-ordered payments are in fact less than the amount computed according to . . . the November 1, 1989 ACSG. In light of the fact that [mother] was awarded only $49.00 per month more than the $811.00 per month she was actually spending for the children's [personal] expenses, we conclude that the amount awarded does not fund the children's share [($741.50) ] of [mother's general] monthly expenses for housing, car, and utilities [($1,483) ]. In light of the record, especially *731 [finding of fact] 10 [(essentially, that the children were well cared for) ] and the fact that [mother] was awarded only $49.00 per month more than the $811.00 per month she was actually spending for the children's [personal] expenses when she was receiving only $550.00 per month child support based on [father's] $2,530 monthly income, we also conclude that the family court either did not consider or did not adequately consider [father's] current $10,788.00 per month income when it decided [mother's] motion. Therefore, we conclude that the family court failed to comply with HRS § 584-15(e) and the ACSG.
Id. at 458-59, 808 P.2d at 1287.
In our case, Child's actual monthly personal expenses totaled $557. His share of the household's monthly general expenses was $545.91. Hence, the court's basic child support award of $1,430 per month was not only $873 more than Child's actual monthly personal expenses, it was about $327 more than all of his actual monthly expenses put together.
Although reasonable minds might differ as to the justice of the amount of basic child support awarded by the court, in light of the foregoing precedents, we cannot say, upon the circumstances of the case as revealed by the evidence, that the court "clearly exceeded the bounds of reason or disregarded rules or principles of law or practice" in this respect. Amfac, Inc., 74 Haw. at 114, 839 P.2d at 26 (citation omitted).
We conclude the court did not err in its award of current child support.
IV. CONCLUSION.
Accordingly, we affirm the court's March 9, 1999 decision and order, its December 20, 1999 order denying Mother's March 19, 1999 motion for reconsideration of its decision and order,[14] and its May 3, 1999 judgment and the notice of entry of judgment of even date.
NOTES
[1] Unless otherwise stated, all actions of the family court of the third circuit relevant to this appeal were taken by the Honorable Victor M. Cox.
[2] The May 3, 1999 judgment, by its terms, was entered pursuant to Hawai`i Rules of Civil Procedure (HRCP) Rule 58 (1999). The HRCP are, however, inapplicable to proceedings in the family courts. HRCP Rule 81(a)(4) (1999). The judgment was for the reimbursement of pretrial child-rearing expenses previously provided for in the court's March 9, 1999 decision and order, a provision in the decision and order that Jane Doe also specifically appeals. The appeal of the judgment thus adds nothing to our consideration of or decision on this appeal and will not be further discussed.
[3] The Honorable Colin L. Love presided over the December 16, 1998 hearing.
[4] It should be noted that the first child support guidelines were adopted on October 20, 1986. Mack v. Mack, 7 Haw.App. 171, 172 n. 1, 749 P.2d 478, 478 n. 1 (1988). For her calculation of past child support for the period before the adoption of the child support guidelines, Mother utilized the "schedules of temporary family support and temporary spousal support/alimony" adopted by the family court of the first circuit on July 1, 1983 as guidance in issuing pendente lite support orders.
[5] Hawai`i Revised Statutes (HRS) § 584-15(d) (Supp.2000) provides, in relevant part, that "[t]he court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just."
[6] The court arrived at the $182,000 figure by taking the average of Mother's $24,000 to $28,000 annual gross income for the years 1990 to 1998, or $27,000, and applying to that average Mother's current spendable income to gross income ratio of approximately 75%, to arrive at a figure of $20,250 available for expenditure annually. Over the nine years in question, a rounded total expense figure of $182,000 resulted.
[7] Mother argues on appeal that the current child support amount should be $7,220 per month instead of the $6,320 per month she argued in support of below. Mother also asserts on appeal that the child support enforcement agency submitted a child support guidelines worksheet for current child support, based upon Father's December 1998 income and expense statement, that yielded a current child support obligation of $4,490 per month. However, the worksheet was not entered into evidence and was returned, and is not in the record. Father did not submit any child support guidelines worksheets.
[8] Mother's income and expense statement included a category of general monthly expenses, consisting of subcategories for rent, utilities, car expenses and insurance, insurance other than car insurance, installment debt, support obligations under prior court order, and payments to other dependents. Mother listed $625 for rent, $190 for utilities, $225 for car expenses and insurance, and $51.82 for insurance other than car insurance.
[9] Father's income and expense statement included a category of personal monthly expenses, consisting of subcategories for food, clothing, medical and dental, laundry and cleaning, personal articles, recreation, school (including food), household, bus, life insurance premium, and payment to others for dependent care. Father listed $800 for food, $100 for clothing, $200 for medical and dental, $100 for laundry and cleaning, $250 for personal articles, $225 for household, $985 for life insurance premium, and $300 for payment to others for dependent care.
[10] The court also ordered that Mother continue to cover Child under her medical insurance, but that Father pay 92% of any medical, dental or vision costs not covered by insurance.
[11] HRS § 576D-7 (1993 and Supp.2000) provides, in relevant part:
Guidelines in establishing amount of child support. (a) The family court, in consultation with the [child support enforcement] agency, shall establish guidelines to establish the amount of child support when an order for support is sought or being modified under this chapter [HRS chapter 576D, entitled "Child Support Enforcement"]. The guidelines shall be based on specific descriptive and numeric criteria and result in a computation of the support obligation.
The guidelines may include consideration of the following:
(1) All earnings, income, and resources of both parents; provided that earnings be the net amount, after deductions for taxes, and social security. Overtime and cost of living allowance may be deducted where appropriate;
(2) The earning potential, reasonable necessities, and borrowing capacity of both parents;
(3) The needs of the child for whom support is sought;
(4) The amount of public assistance which would be paid for the child under the full standard of need as established by the department;
(5) The existence of other dependents of the obligor parent;
(6) To foster incentives for both parents to work;
(7) To balance the standard of living of both parents and child and avoid placing any below the poverty level whenever possible;
(8) To avoid extreme and inequitable changes in either parent's income depending on custody[.]
[12] HRS § 584-15(c), (d) & (e) provide, in pertinent part:
Judgment or order. . . .
. . . .
(c) The judgment or order [regarding paternity] may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. . . . The court may further order the noncustodial parent to reimburse the custodial parent, the child, or any public agency for reasonable expenses incurred prior to entry of judgment, including support, maintenance, education, and funeral expenses expended for the benefit of the child.
(d) Support judgment or orders ordinarily shall be for periodic payments which may vary in amount. In the best interest of the child, a lump sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support. The court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court deems just.
(e) In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, a court enforcing the obligation of support shall use the guidelines established under section 576D-7. Provision may be made for the support, maintenance, and education of an adult or minor child and an incompetent adult child, whether or not the petition is made before or after the child has attained the age of majority.
[13] Mother does not raise on appeal the issue of expenditures for the period of time between Child's birth and their move to California.
[14] Mother's March 19, 1999 motion for reconsideration of the court's March 9, 1999 decision and order argued that the court erred in not awarding her reimbursement of her expenditures on behalf of Child during their stay in California. Because we have concluded otherwise, supra, we affirm the court's December 20, 1999 order denying Mother's motion. We observe, in passing, that Mother's motion attached and relied upon a portion of her deposition, which was not in evidence at trial. | 01-03-2023 | 10-30-2013 |
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