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https://www.courtlistener.com/api/rest/v3/opinions/2589352/ | 72 A.D.2d 59 (1979)
Paul Wolfgruber, Respondent,
v.
Upjohn Company, Appellant
Appellate Division of the Supreme Court of the State of New York, Fourth Department.
December 21, 1979
Kernan & Kernan, P. C. (Andrea Lynch of counsel), for appellant.
Shults & Shults (Eric Shults of counsel), for respondent.
SIMONS, HANCOCK, JR., DOERR and MOULE, JJ., concur.
*60CARDAMONE, J. P.
Plaintiff Dr. Paul Wolfgruber has been a practicing physician for over 25 years. He prescribed defendant's antibiotic, Cleocin, for an infection he developed in 1974 and followed a course of self-treatment. The defendant, Upjohn Company, distributed to the medical profession free samples of Cleocin which contained package inserts warning of possible diarrhea and/or colitis from ingesting the drug. The Physician's Desk Reference also contained similar warnings respecting the use of Cleocin. This is the precise malady incurred by plaintiff as a result of his course of self-treatment. Plaintiff conceded that he knew of the drug since at least 1974 when defendant's "detail man" gave him free samples with descriptive literature. Prior to taking the drug himself, he prescribed it to 20 of his patients. His strict products liability and breach of warranty of merchantability of fitness suits against defendant withstood a motion for summary judgment to dismiss them. We reverse.
This drug products liability and warranty suit against Upjohn is based not on the failure of its drug to effect a cure, but rather on the conduct of the manufacturer in subjecting the consumer to a risk of side effects. Whether such a claim is legally viable is dependent upon an assessment of the adequacy of the warning or precautions provided by the manufacturer to the medical community which dispenses prescriptions.
Although New York courts have for a long time consistently held that there is a duty to warn and properly label drugs (Laturen v Bolton Drug Co., 188 N.Y. 574; Thomas v Winchester, 6 N.Y. 397; Donigi v American Cyanamid Co., 57 AD2d 760, affd 43 N.Y.2d 935; Halloran v Parke, Davis & Co., 245 App Div 727; Wechsler v Hoffman-La Roche, 198 Misc 540, mod 279 App Div 654; Marcus v Specific Pharms., 191 Misc 285; Fagan v McRae, 169 NYS 577), the extent of the required warnings or how they are to be disseminated has to date not been precisely formulated. Because the manner of furnishing a warning for a drug to be marketed to the public differs from *61 that which is feasible for ordinary consumer products, the Federal statute and regulations enumerate specific requirements for drug labeling (US Code, tit 21, §§ 352-353; 21 CFR Parts 201-202, 310). With the exception of oral contraceptives (see 21 CFR 310.501), the warnings are not found in the packaging of the drug, but are furnished instead to the medical community as the "informed intermediary" between the manufacturer and the patient (see, e.g., Magee v Wyeth Labs., 214 Cal App 2d 340; McEwen v Ortho Pharm. Corp., 270 Ore 375; Incollingo v Ewing, 444 Pa 263). Since nonmedical consumers are legally precluded from "self-prescribing" prescription drugs, the physician's function is to evaluate a patient's needs, assess the risks and benefits of available drugs and then prescribe a drug, advising the patient of its risks and possible side effects (Magee v Wyeth Labs., supra; Parke, Davis & Co. v Mayes, 124 Ga App 224; Kaspirowitz v Schering Corp., 70 NJ Super 397).
Thus, the manufacturer's liability, if any, is directly related to the adequacy of the warning provided (see, generally, Merrill, Compensation for Prescription Drug Injuries, 59 Va L Rev 1; Rheingold, Products Liability The Ethical Drug Manufacturer's Liability, 18 Rutgers L Rev 947; Willig, The Comment k Character: A Conceptual Barrier to Strict Liability, 29 Mercer L Rev 545). The scope of the warning is the key factor in a drug products liability suit because prescription drugs are "[u]navoidably unsafe products". As explained in comment k of section 402 A of the Restatement, Torts 2d: "Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous * * * [M]edical experience * * * justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use".
Other States have held that the sufficiency of a manufacturer's warning for a prescription drug is generally a question of fact for the jury (see, e.g., Love v Wolf, 225 Cal App 2d 378; Smith v Squibb & Sons, 69 Mich App 375, affd 405 Mich 79). However, where the warning given to the prescribing physician by the manufacturer through the Physician's Desk Reference, package inserts and other literature gives specific detailed *62 information on the risks of the drug, the manufacturer has been held absolved from liability as a matter of law (Magee v Wyeth Labs., supra; Carter v Metropolitan Dade County, 253 So 2d 920 [Fla], cert den 263 So 2d 584; Nolan v Dillon, 261 Md 516). Recently the Second Department considered a case similar to the one before us and concluded that there was a question of fact (Baker v St. Agnes Hosp., 70 AD2d 400). We consider Baker distinguishable since in that case the warnings were furnished at one time in the Physician's Desk Reference and then later discontinued. In the instant case not only were the warnings fully descriptive and complete, but they were communicated to the prescribing physician who also happens to be the plaintiff user, Dr. Wolfgruber.
We see no reason why New York's well-established rule governing the field of products liability should not apply with equal effect to the marketing for public consumption of prescription drugs. The Court of Appeals has set forth consistently adhered-to guidelines in the area of products liability for the marketing of a product. Liability will not be found unless: (1) the product is "defective" because it is not reasonably safe as marketed; (2) the product was used for a normal purpose; (3) the defect was a substantial factor in causing the plaintiff's injuries; (4) the plaintiff by the exercise of reasonable care would not have both discovered the defect and apprehended its danger; (5) the plaintiff would not have otherwise avoided the injury by the exercise of ordinary care (Codling v Paglia, 32 N.Y.2d 330, 342; Velez v Craine & Clark Lbr. Corp., 33 N.Y.2d 117; see Bolm v Triumph Corp., 71 AD2d 429; Biss v Tenneco, Inc., 64 AD2d 204). Regardless of the descriptive terminology used to denominate the cause of action (viz., "strict liability" or "negligence"), where the theory of liability is failure to warn, negligence and strict liability are equivalent (Bolm v Triumph, supra; Biss v Tenneco, Inc., supra; Rainbow v Elia Bldg. Co., 49 AD2d 250). Under this formulation plaintiff clearly cannot establish a basis to impose liability upon defendant.
Accordingly, even though summary judgment or dismissal is uncommon in a negligence suit, on the facts of this case defendant's motion should have been granted. The warning given was adequate by any standard and the plaintiff as a doctor knew the risks of taking this particular drug whose side effects were those specifically warned against as fully as *63 defendant was able. Where there are admissions, as here, which remove any fact issue, no warrant exists to deny defendant's motion for summary judgment (Siegel, New York Practice, § 280). For us to hold otherwise would serve only to resurrect the discredited doctrine that the defendant manufacturer is an insurer of plaintiff's safety (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 386; Biss v Tenneco, Inc., 64 AD2d 204, supra; Restatement, Torts 2d, § 402 A, comment k).
The order should be reversed and defendant's motion for summary judgment should be granted.
Order unanimously reversed, without costs, motion granted and complaint dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3096435/ | IN THE
TENTH COURT OF APPEALS
No. 10-10-00349-CR
David Lee Hood,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2005-320-C2
MEMORANDUM Opinion
David Lee Hood was convicted of forgery
and sentenced to two years in state jail. See Tex. Penal Code Ann. § 32.21 (Vernon Pamp. 2010). The
sentence was suspended and Hood was placed on community supervision for 5
years. Community supervision was revoked on August 26, 2010. Hood appeals the judgment revoking his community supervision.
Hood was notified by letter of the
Clerk dated September 29, 2010 that the case was subject to dismissal because
it appeared that the certification of defendant’s right of appeal indicated
that Hood waived his right of appeal. See Tex. R. App. P. 25.2(d). Hood was further warned that the
Court would dismiss this appeal unless, within 21 days of the date of the
letter, a response was filed showing grounds for continuing the appeal. More
than 21 days have passed and Hood has not filed a response.
Accordingly, this appeal is
dismissed. See Tex. R. App. P.
44.3.
TOM
GRAY
Chief
Justice
Before
Chief Justice Gray,
Justice
Davis, and
Judge
Scoggins[1]
Appeal
dismissed
Opinion
delivered and filed November 17, 2010
Do
not publish
[CR25]
[1]
The Honorable Al Scoggins, Jr.,
Judge of the 378th
District Court of Ellis County,
sitting by assignment of the Chief Justice of the Supreme Court of Texas
pursuant to section 74.003(h) of the Government Code. See Tex. Gov’t Code Ann. § 74.003(h)
(Vernon 2005). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1032765/ | cc: Hon. Douglas W. Herndon, District Judge
Cannon & Tannery
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
(0) 1947A
2 | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589389/ | 79 N.Y.2d 1021 (1992)
Wing Ming Properties (U.S.A.) Ltd., Appellant,
v.
Mott Operating Corp., et al., Respondents.
Court of Appeals of the State of New York.
Argued March 26, 1992.
Decided May 7, 1992.
David C. Sprafkin for appellant.
Peter F. Dwyer for Mott Operating Corp. and others, respondents.
Maureen R. Green for Bank Central Asia, respondent.
Chief Judge WACHTLER and Judges KAYE, TITONE, HANCOCK, JR., BELLACOSA and YESAWICH, JR.,[*] concur; Judge SIMONS taking no part.
*1022MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In 1973, defendants-respondents Mott, Kaplan, Chu and Tam conveyed "all that volume of space and property" above a building located at 5 Chatham Square in Manhattan to plaintiff-appellant's predecessor in interest. Defendants reserved the right to "maintain the projection" of an existing rooftop air-conditioning unit and room. Plaintiff's predecessor in interest planned to later transfer the unused development rights of the rooftop airspace, subject to defendants' reservation, to a contiguous building which it owned. The objective was to increase the Floor Area Ratio (FAR) of the contiguous building, thus allowing a greater height.
In 1985, defendant Kaplan subleased 5 Chatham Square to respondent Bank of Central Asia (BCA) with a specification allowing BCA to "use the roof facilities in connection with any heating, ventilating or air conditioning equipment" and to "alter the entire facade of the Building" up to the second floor *1023 level. BCA subsequently removed the existing rooftop air-conditioning equipment and room, erected new air-conditioning equipment, and constructed a facade with parapet walls extending over the rooftop.
Plaintiff-appellant, as successor in interest, commenced this action for trespass, alleging that the new equipment and parapets encroached on the rooftop airspace which was acquired under the 1973 conveyance. Supreme Court granted defendants' motion for summary judgment dismissing the complaint (148 Misc. 2d 680) and the Appellate Division affirmed (172 AD2d 301). This Court granted leave to appeal.
Defendants concede that development rights were conveyed pursuant to the 1973 conveyance. Despite the concession, we agree with the defendants and the courts below, which ruled in their favor, that defendants did not trespass on those development rights. The new rooftop air-conditioning equipment and parapets erected after 1985 by BCA are excluded from the computation of FAR under New York City Zoning Resolution § 12-10. The FAR of 5 Chatham Square and, consequently, plaintiff's development rights, are therefore unaffected by BCA's parapets and substituted equipment.
Despite the fact that defendants in 1973 also conveyed a property right for plaintiff to exclusively possess the 5 Chatham Square rooftop airspace, no trespass on that right is sufficiently presented to withstand a summary judgment dismissal as to the relief plaintiff seeks in that regard. The variations between the air-conditioning unit and room existing at the time of the 1973 conveyance and the replacement unit and ducts subsequently erected by BCA, and the extent to which the newly constructed parapets rise above the elevation plane of the conveyed airspace, are de minimis at best. Neither injunctive nor monetary relief is warranted. Indeed, plaintiff has not alleged or demonstrated on the record before us that these slight variations negatively affected its property value in any measure.
Order affirmed, with costs, in a memorandum.
NOTES
[*] Designated pursuant to NY Constitution, article VI, § 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589391/ | 79 N.Y.2d 430 (1992)
In the Matter of Pearl Leather Finishers, Inc., Respondent,
v.
Gloversville-Johnstown Joint Sewer Board, Appellant.
Court of Appeals of the State of New York.
Argued April 1, 1992.
Decided May 7, 1992.
Deborah H. Karalunas and Thomas R. Smith for appellant.
Chief Judge WACHTLER and Judges KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur in Per Curiam opinion; Judge SIMONS taking no part.
*431Per Curiam.
Respondent Pearl Leather Finishers is a leather finishing and painting business located in the City of Johnstown. Pursuant to General Municipal Law § 452, the City of Johnstown has enacted a sewer use law, which is contained at article 17 of the Johnstown City Code. Johnstown's sewer use law requires that each significant industrial user and each major contributing industry obtain an industrial wastewater discharge permit from the appellant Gloversville-Johnstown Joint Sewer Board. Effective November 25, 1985, the respondent, a major contributing industry as defined at section 17-201 (23) of the City Code, was granted a permit to discharge industrial wastewater into the public sewers served by the Gloversville-Johnstown Jointly Owned Wastewater Treatment Facility.
Respondent disputed the sewer rents assessed by the appellant Sewer Board and did not pay its sewer use bills for the period between August 1986 until November 1987. Respondent was served with a notice of violation and after a hearing, the Sewer Board determined that respondent owed $8,388.05 in sewer rents. The Sewer Board ordered payment within 14 days or else respondent's discharge permit would be revoked. Respondent commenced this CPLR article 78 proceeding challenging the Sewer Board's determination.
The Appellate Division, based on its review of the record, concluded that there was a rational basis for the Sewer Board's calculation of sewer rents due from respondent. The court agreed with respondent, however, that the Sewer Board lacked the authority to revoke its discharge permit. The Sewer Board appealed from that portion of the Appellate Division's judgment, and we granted leave to appeal to consider whether *432 the Sewer Board possessed the power to revoke the discharge permit.
While General City Law § 20 (26-a) authorizes cities to establish and impose sewer rents, this must be undertaken in accordance with article 14-F of the General Municipal Law. Section 452 (4) lists several ways in which a locality can recover unpaid sewer rents. The local legislative body may maintain an action "as upon contract for sewer rents in arrears, including penalties and interest" or may "foreclose liens for such sewer rents" (§ 452 [4] [a], [b]). Alternatively, the local legislative body may draw up an annual statement showing the properties in arrears, which statement "shall be presented to the board or body empowered to levy city, county or town taxes * * * [and] [s]uch board or body shall levy the amounts contained in such statement against the real property liable at the same time and in the same manner as city, county or town taxes * * * [and] [t]he amounts so levied shall be collected and enforced in the same manner and at the same time as may be provided by law for the collection and enforcement of city, county or town taxes" (§ 452 [4]).
This statute speaks directly to the problem of recovering past due sewer rents and gives localities the authority to pursue three different options. In our opinion, given the explicit nature of these remedies, the power of revocation must be deemed to have been excluded (see generally, McKinney's Cons Laws of NY, Book 1, Statutes § 240). Thus, the Appellate Division was correct in holding that the Sewer Board's authority was derived from a statutory scheme that does not permit revocation as a method of collecting unpaid sewer rents and that the Board's revocation of respondent's discharge permit should therefore be annulled.
Finally, we also agree with the Appellate Division that the term "penalties" as used in the statute refers to monetary penalties, and that, consequently, General Municipal Law § 452 (5) (d), which states that local sewer laws "[m]ay provide for penalties for sewer rents in arrears," does not give the Sewer Board the authority to revoke discharge permits.
Accordingly, the judgment of the Appellate Division should be affirmed, with costs.
Judgment affirmed, with costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1935996/ | 14 B.R. 759 (1981)
In re Francis J. THOMAS, Bankrupt.
Carl L. BEKOFSKE, Trustee Plaintiff,
v.
Francis J. THOMAS, Bankrupt Defendant.
Bankruptcy No. 79-60506 C-1.
United States Bankruptcy Court, E.D. Michigan, S.D., Flint.
October 21, 1981.
*760 Carl L. Bekofske, Flint, Mich., for trustee plaintiff.
Harvey R. Dean, Wall & Dean, Warren, Mich., for bankrupt defendant.
MEMORANDUM OPINION
HAROLD H. BOBIER, Bankruptcy Judge.
Statement of Facts
On September 14, 1979, Francis J. Thomas filed a voluntary petition for a straight bankruptcy in this Court. Adjudication in bankruptcy occurred at that time by operation of law. The bankrupt was employed as a wage earner throughout the calendar year 1979. There was no significant variation in earnings during each pay period. The bankrupt's wife, who did not file bankruptcy, had no income and did not contribute withholding or any other form of tax prepayment. In addition to his wife, Thomas has three dependent children, each of whom he could have claimed as an exemption for withholding tax purposes. However, during the entire calendar year of 1979, Thomas claimed only three exemptions for withholding tax purposes.
After January 1, 1980, Thomas and his wife filed joint income tax returns with the City, State, and Federal governments for the calendar year 1979. All three of their children were claimed as tax exemptions. Therefore, for withholding tax purposes the bankrupt claimed only three exemptions; whereas he claimed five exemptions on each of his tax returns.
The total refunds the bankrupt received from the City, State, and Federal governments amounted to $2,730. On February 19, 1981, however, the trustee filed a complaint for turnover of nonexempt tax refunds wherein the trustee demanded the entire $2,730 to be turned over to the estate for distribution to creditors. The bankrupt, through his attorney, filed an answer and brief on March 4, 1981, which objected to the trustee's request.
A hearing on the trustee's complaint was conducted by the Court on April 28, 1981. After hearing the arguments presented by the parties, the Court took the matter under advisement and requested that the attorney for the bankrupt file a bill of particulars and the trustee to file a brief in support of his position. Those pleadings having now been duly filed with the Court, the questions presented by the parties for the Court's determination are now ready for resolution.
Issues
The parties have agreed that there exist three issues which need to be resolved by the Court. They are as follows:
1. Is the bankrupt entitled to have the tax refunds he received for the calendar year 1979 pro-rated to reflect the portion of the total tax refunds which are not subject to the claim of the trustee in bankruptcy?
2. Of the pro-rated amount the trustee is entitled to receive, should that amount be reduced by one-half as a result of the bankrupt's spouse's purported interest in those funds when in fact such spouse did not earn any wages nor contribute any withholding taxes in the taxable year in question?
*761 3. Should the pro-rated amount of the bankrupt's tax refund which is subject to administration by the trustee be calculated from the number of exemptions which the bankrupt actually declared for withholding purposes or the number of exemptions he could have declared?
Discussion of Law
As set forth above, Francis J. Thomas filed his petition to be adjudicated a bankrupt in these proceedings on September 14, 1979. Since the petition was filed prior to September 30, 1979, it constituted a case commenced under the Bankruptcy Act of 1898, and consequently, all matters and proceeding in and relating to this case are to be conducted and determined under the Bankruptcy Act of 1898, as amended. See P.L. 95-598, § 403(a), 92 Stat. 2683 (1978).
The question of whether a bankrupt's tax refund is subject to the administration by the trustee has been repeatedly presented to the courts. The most illustrative and often cited cases in recent times have been Segal v. Rochelle, 382 U.S. 375, 86 S. Ct. 511, 15 L. Ed. 2d 428 (1966) and Lines v. Frederick, 400 U.S. 18, 91 S. Ct. 113, 27 L. Ed. 2d 124 (1970). In Segal, two partners of a bankrupt partnership made a claim for loss-carryback tax refunds which the partnership was entitled to receive after the filing of the petition in bankruptcy, but which arose as a result of partnership losses incurred prior to the filing of the petition in bankruptcy. The Supreme Court held that the loss-carryback tax refunds could be administered by the trustee because they constituted "property" of the estate and were "transferable" within the meaning of Section 70(a)(5) of the Bankruptcy Act.
In Lines, the question presented was whether the United States Supreme Court would extend the rationale used in Segal to include accrued, but unpaid, vacation pay due to a bankrupt wage earner at the time of the filing of the petition in bankruptcy. The court declined to extend Segal to include unpaid vacation pay within the meaning of Section 70(a)(5) of the Bankruptcy Act. The court's reasoning was as follows:
Applied to the set of facts before us here, the principles reflected in the earlier cases compel a decision for the bankrupt. In Segal, a business had ceased to operate and the task of the trustees in bankruptcy was to marshal whatever assets were left for distribution to the creditors. The tax refund claim, arising out of the operations of the business and specifically out of the losses that had precipitated its failure, was such an asset. By contrast, the respondents here are wage earners whose sole source of income, before and after bankruptcy, is their weekly earnings. The function of their accrued vacation pay is to support the basic requirements of life for them and their families during brief vacation periods or in the event of layoff. Since it is a part of their wages, the vacation pay is "a specialized type of property presenting distinct problems in our economic system." Sniadach v. Family Finance Corp. 395 U.S. 337, 340, 89 S. Ct. 1820 [1822], 23 L. Ed. 2d 349, 353. Where the minimal requirements for the economic survival of the debtor are at stake, legislatures have recognized that protection that might be unnecessary or unwise for other kinds of property may be required. See, e.g., the Consumer Credit Protection Act, § 301, 82 Stat. 163, 15 USC § 1671 (1964 ed., Supp. V). Lines v. Frederick, supra, at 20, 91 S. Ct. at 114.
The cases which have relied on either Segal or Lines in determining whether income tax refunds were to be included as property of the estate have come to different conclusions. For example, In the Matter of Buchholtz, 259 F. Supp. 31 (D.Minn. 1966) the court cited Segal in affirming the decision of the referee to include a portion of a joint income tax refund in the administration of the bankruptcy case. In Buchholtz, both the bankrupt husband and his non-bankrupt wife earned income subject to withholding taxes. The trustee made a claim for the proportionate amount of the tax refund which was attributable to the husband's earnings, and the bankruptcy court agreed with the trustee's position. On appeal, the district court affirmed the bankruptcy court's ruling and concluded;
*762 The Bankruptcy Court sits, as the parties concede, as a Court of equity. The Referee in the exercise of his equity jurisdiction has determined that a fair determination requires that the refund be allocated in proportion to the respective withheld tax contributions. Other choices might possibly be made. The contribution formula seems clearly equitable and is the preferred choice. Id. at 32.
In the case of In re Jones, 337 F. Supp. 620 (D.Minn.1971) the court held that a proportionate share of the bankrupt's tax refund constituted property within Section 70(a)(5) of the Bankruptcy Act. The facts in Jones were almost identical to those in the present case. The bankrupt and his wife filed a joint tax return and claimed their two children as tax exemptions. The bankrupt was the only wage earner and was entitled to receive a tax refund based on excess withholding taxes. The trustee in Jones made a claim for that portion of the income tax refund which was calculated by a ratio of the number of days of the year which had passed at the time of the adjudication over the 365 days in a calendar year. The bankruptcy court approved this formula and directed the debtor to turnover the proportionate share of the tax refund which the trustee was entitled to receive. On appeal, after an exhaustive discussion of the Segal and Lines decisions, the district court affirmed the ruling of the bankruptcy referee and stated:
It is not clear to this Court that wages withheld prior to adjudication are so entwined with the bankrupt's future wage earning activity that they should receive the same treatment as future wages. This is especially true of that portion of the withholding that can be allocated to preadjudication earnings. The decision by the Referee that the refund constituted property within § 70(a)(5) has a rational basis in the law.
. . . .
The Bankruptcy Court sits as a court of equity. The Referee in the exercise of his equity jurisdiction has determined that the formula proposed by the trustee provides a fair allocation of the tax refund. The bankrupt and his wife chose to file a joint return. Having so decided, the bankrupt should not be permitted to rely upon a result which would have obtained had he chosen another course of action. In addition, in the instant case the wife had no income of her own. Thus there is no problem of compelling the non-bankrupt wife to contribute part of her earnings to a fund for the benefit of her husband's creditors. (Footnote omitted.) Id. at 624-625.
Counsel for the bankrupt herein has consistently cited to Gehrig v. Shreves, 491 F.2d 668 (8th Cir. 1974) in support of the proposition that the trustee has no right to the bankrupt's tax refund. The split decision rendered in Gehrig, however, is not pursuasive. In fact, the majority opinion was fully cognizant of the fact that the Court of Appeals for the Second Circuit had already rejected the Lines rationale when it stated:
Resolution of the instant controversy rests on whether the rationale of Segal or Lines most appropriately applies to the wage earner's tax refund claim made here. The Second Circuit in Kohoszka [479 F.2d 990] rejected Lines as the applicable precedent, concluding that:
What we have then in Lines is a very narrow exception to the general proposition that everything of value passes to the trustee, i.e., vacation pay which will become essential for basic week to week support in the future does not pass. Because a tax refund is not the weekly or other periodic income required by a wage earner for his basic support, to deprive him of it will not hinder his ability to make a fresh start unhampered by the pressure of preexisting debt. Therefore, the tax refund is § 70(a)(5) property which passes to the trustee. (479 F.2d at 994-995.)
As we have already noted, the Ninth Circuit reached a contrary conclusion in affirming Cedor [337 F. Supp. 1103 (N.D. Cal.1972)]. Ruling that the income tax refund is equivalent to the vacation pay present in Lines, the Cedor court stated:
*763 There is nothing to suggest that the sums refunded were related to the circumstances which precipitated the bankruptcy. The Supreme Court considered the question in Segal to be "close", 382 U.S. 379 [86 S. Ct. 514] * *; in light of Lines and Snaidach [sic], [395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349], the balance on this question tips in favor of the bankrupt. The collection by the Internal Revenue Service without the consent or control of the bankrupt, and the belated refund, render these funds quite similar in a practical sense, to the accrued but unpaid wages which constituted vacation pay. If Lines stands for anything, it is that the practical realities are controlling in this determination. While the amount of refund is not so easy to calculate as the amount of vacation pay, it may generally be said to be an amount that, by reason of past experience, is anticipated by the wage-earner as an annual event. To deprive the wage-earner of that planned-on annually recurring payment, cannot be said to be less severe than the deprivation of two weeks of paid vacation, in terms of a fresh start. [337 F.Supp. at 1105.] Id. at 670-671.
The dissenting opinion in Gehrig came to a completely contrary result and concluded by stating:
I respectfully dissent, however, from the holding that a tax refund resulting from compulsory minimum withholding required by law for federal and state income tax purposes is not "property" within the meaning of § 70(a)(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5). I believe that Cedor unduly extended the narrow holding of Lines v. Frederick, 400 U.S. 18, 91 S. Ct. 113, 27 L. Ed. 2d 124 (1970), which was confined to the unique characteristics of vacation pay. Instead, I am fully persuaded by the reasoning of the Second Circuit in Kokoszka, which holds such refunds to be § 70(a)(5) "property". (Footnote omitted.) Id. at 674.
An additional reason why this Court should not follow the Gehrig decision is because a different panel of Circuit Judges for the Eighth Circuit had previously ruled in the case of In re Wetteroff, 453 F.2d 544 (8th Cir. 1972), cert. denied, 409 U.S. 934, 93 S. Ct. 242, 34 L. Ed. 2d 188 (1973) that a joint tax return could not be considered entireties property, and therefore, whatever interest a non-bankrupt wife might have in a joint tax return cannot be a bar to the administration of an asset of the bankrupt husband's estate. The Wetteroff decision does provide a basis for holding against the bankrupt herein with respect to the second issue presented above.
As a result of the conflicts which existed between the Second and Eighth Circuits, the United States Supreme Court addressed the issue of the treatment of income tax refunds under § 70(a)(5) of the Bankruptcy Act in Kokoszka v. Belford, 417 U.S. 642, 94 S. Ct. 2431, 41 L. Ed. 2d 374 (1974). The court held in Kokoszka that a tax refund does constitute "property" within the meaning of § 70(a)(5) and cannot be exempted under the provisions of the Consumer Credit Protection Act. In affirming the Court of Appeals of the Second Circuit, the Court stated:
As the Court of Appeals noted, since a "tax refund is not the weekly or other periodic income required by a wage earner for his basic support, to deprive him of it will not hinder his ability to make a fresh start unhampered by the pressure of preexisting debt," 479 F.2d 990, 995 (CA2 1973). "Just because some property interest had its source in wages . . . does not give it special protection, for to do so would exempt from the bankrupt estate most of the property owned by many bankrupts, such as savings accounts and automobiles which had their origin in wages." Ibid.
We conclude, therefore, that the Court of Appeals correctly held that the income tax refund is "sufficiently rooted in the prebankruptcy past" to be defined as "property" under § 70a(5). (Footnote omitted.) Id. at 648, 94 S. Ct. at 2435.
*764 The United States Supreme Court likewise rejected the bankrupt's argument that the Consumer Credit Protection Act exempts income tax refunds from the administration of a bankruptcy estate when it stated:
An examination of the legislative history of the Consumer Protection Act makes it clear that, while it was enacted against the background of the Bankruptcy Act, it was not intended to alter the clear purpose of the latter Act to assemble, once a bankruptcy petition is filed, all of the debtor's assets for the benefit of his creditors. Id. at 650, 94 S. Ct. at 2436.
Although counsel for the bankrupt in the present case has advanced several different theories as to why the trustee should not receive the tax refunds in question, this Court has not been referred to any authority to support these theories, nor has its independent research uncovered any such authority. The only persuasive argument which has been presented is to the effect that there should be an apportionment of the tax refunds in question between pre-petition and post-petition withholding taxes which formed the basis for the tax refunds in question. It is clear to this Court that the only equitable manner in which to make such an apportionment is by counting the number of days in the calendar year which had passed prior to the filing of the petition in bankruptcy and dividing this number by the 365 days of the calendar year to determine the appropriate proration. Since the bankrupt's petition was filed in this Court on the 257th day of the year, the turnover sought by the trustee should be limited to 257/365ths of the total refund (i.e., 70.41%). Applying this percentage to the $2,730 received by the bankrupt, the net turnover which the trustee is entitled to receive is $1,922.19.
Conclusion
In summary, it is the considered opinion of this Court, based on the above discussion of applicable cases and statutes that the trustee is entitled to a turnover order in the amount of $1,922.19 for the following reasons:
1. The income tax refunds do constitute "property" within the purview of § 70(a)(5) of the Bankruptcy Act. Kokoszka v. Belford, supra.
2. The amount of the tax refunds to which the trustee is entitled should not be reduced by any interest, if any, the bankrupt's wife may have in those funds. The entire amount of withholding payments made were derived solely from the bankrupt's wages, and although his wife joined in filing the tax returns, this should not reduce the trustee's interest. In re Wetteroff, supra.
3. The method of apportioning the amount of the tax refunds is inherently equitable to all parties concerned. In re Jones, supra.
A separate order shall be entered in accordance with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609711/ | 526 P.2d 676 (1974)
AI R. THREADGILL, Plaintiff-Appellee,
v.
PEABODY COAL COMPANY, Defendant-Appellant.
No. 73-304.
Colorado Court of Appeals, Div. I.
July 9, 1974.
Rehearing Denied August 7, 1974.
*677 Graham, Webster & Wise, Hugh D. Wise, George S. Graham, Grand Junction, for plaintiff-appellee.
Dufford, Williams & Milburn, D. J. Dufford, Grand Junction, for defendant-appellant.
Selected for Official Publication.
PIERCE, Judge.
Defendant, Peabody Coal Company (Peabody), appeals from a judgment holding it liable for damages for the loss of certain equipment owned by the plaintiff which was lost in the process of probing test holes drilled by Peabody. Plaintiff was an independent contractor hired by Peabody to prove the test holes for the purpose of locating coal deposits. After the test holes were sunk to the appropriate depth by Peabody, plaintiff's employees lowered a probing device to the bottom of each hole and proceeded to "log" the hole as the probe was retrieved. "Logging" consists of gathering soil samples and other data. During the probing of one of the test holes by the employees of the plaintiff, the proving device became stuck in the hole. Employees of Peabody then commenced recovery operations which were unsuccessful.
Plaintiff's complaint alleged two claims for relief: (1) that the loss of the probe was due to defendant's negligence in attempting to recover the probe, and (2) that the defendant was obligated under a contract between the parties to pay the value of any equipment owned by the plaintiff lost in the course of the probing operation. Defendant filed an answer containing several defenses and pleaded a counterclaim for expenses incurred in the recovery attempt based on the alleged negligence of plaintiff's employees.
Upon trial to the court, the court found that an oral contract for the services of the plaintiff did exist, but that there had been no express agreement, oral or otherwise, upon the placement of the risk of loss of the probing device. The court then found that the plaintiff had satisfactorily established "a certain practice or custom in the drilling industry which places the risk of probe loss on the driller (here the defendant) where, as here, there is no agreement otherwise." Furthermore, the court found that Peabody's employees had not been negligent in conducting the recovery operation but made no finding as to any negligence on the part of the plaintiff, or his employees. However, the court ruled that the negligence was immaterial under the trade practice, and thus, in effect, placed a duty of strict liability upon Peabody. The court then entered judgment in favor of the plaintiff and dismissed Peabody's counterclaim.
I
Peabody's first allegation of error is that the evidence is not sufficient to support the trial court's finding that a custom or trade usage existed that was binding on defendant.
In order to bind a party by a usage in the trade, it must be shown either that the party had actual knowledge of the existence of the trade usage or that the usage is so well established as to justify a finding of constructive knowledge. Lorraine Mfg. Co. v. Allen Mfg. Co., 77 Colo. 156, 234 P. 1055; 5 S. Williston, Contracts § 661 (3d ed. W. Jaeger). The issue of knowledge of the trade usage, whether actual or constructive, is generally a question to be decided by the trier of fact. Nicoll v. Pittsvein Coal Co., 269 F. 968 (2d Cir.); 5 S. Williston, Contracts § 662 (3d ed. W. *678 Jaeger). Peabody's representatives testified that they had no knowledge of the alleged custom, and Peabody argues that, to show constructive knowledge, the custom or usage must be demonstrated to be "universal" and "notorious." Such terms have been used where the evidence was insufficient to support a finding that the alleged custom even existed. See, e. g., Lorraine Mfg. Co. v. Allen Mfg. Co., supra. However, these requirements are only applicable to the English law of custom by which accepted practices have developed into substantive rules of law. They do not apply to a trade usage which is offered only as evidence as to the intent of the parties. See 5 S. Williston, Contracts § 649 (3d ed. W. Jaeger); Comment, Custom and Trade Usage: Its Application to Commercial Dealings and the Common Law, 55 Colum. L.Rev. 1192.
The proper test applicable to this issue is stated in the more recent case of Ryan v. Fitzpatrick Drilling Co., 139 Colo. 471, 342 P.2d 1040. That is, to be binding upon a party, a trade usage must be "sufficiently general so that the parties could be said to have contracted with reference to it." See Lorraine Mfg. Co. v. Allen Mfg. Co., supra.[1]
Although contradicted on some points by Peabody's evidence, each of the plaintiff's witnesses testified as to his experience in the trade within the geographical locale of the instant operation and to the existence, within that locale, of the alleged trade usage. These witnesses further explained the usage by pointing out that the driller has primary control over the drilling of the hole and that since the prober has no connection with the operation until he begins the "logging" process, he must rely on the driller's judgment as to the readiness of the hole to receive the probe. Furthermore, once a probe becomes lodged in the hole, the prober must rely on the driller's equipment for recovery operations. The testimony of these witnesses also indicated that the loss of equipment was generally considered to be a cost to the owner of the land being probed; in this case, Peabody.
Finally, as pointed out by the trial court, the actions of the parties with regard to the recovery operation were consistent with the alleged usage. Such actions tending to demonstrate the intent of the parties are proper considerations for the fact finder. Deeb v. Canniff, 29 Colo. App. 510, 488 P.2d 93.
We hold that the evidence produced at trial was sufficient to support a finding of a general trade usage which permitted the inference that the parties must have contracted with reference to it.
Peabody also argues, however, that the evidence failed to establish that the alleged trade usage was sufficiently certain to permit its application to the facts before the court. It cites testimony to the effect that, in some cases, the driller is obligated only to provide a certain number of "rig hours" for the purpose of recovering lost tools and that the obligation of the driller does not extend to liability for the value of unrecoverable tools. However, this testimony referred to cases in which the parties expressly agreed with respect to the obligations of the parties regarding the loss of the contractor's tools. Other witnesses testified that in the majority of logging jobs, as was the case here, no written agreement is actually entered into by the parties. Furthermore, the alleged trade usage which plaintiff sought to establish, and which the trial court found, provided a rule in cases in which no express agreement was reached by the parties.
The evidence in the record was sufficient to support the finding of the trial *679 court that, in the absence of other factors, the trade usage would place on the driller the responsibility for the loss of the probing device in addition to the cost of the recovery attempt. That finding will not be disturbed upon review.
II
Peabody, however, also asserts that even though the trial court found the trade usage, the issue of plaintiff's negligence is not removed from the case. We agree with this contention.
In order for a trade custom or usage to be binding upon a person who has not expressly agreed to be bound by it, it must be reasonable. Alden Sign Co. v. Roblee, 121 Colo. 432, 217 P.2d 867; 5 S. Williston, Contracts §§ 658, 659 (3d ed. W. Jaeger). This requirement in the law of trade usage generally specifies only that the usage not be illegal or in violation of public policy. 5 S. Williston, Contracts § 658 (3d ed. W. Jaeger).
The public policy of our state dictates that, generally, parties cannot contract away their potential liability for their own negligence. See, e. g., French v. Bekins Moving & Storage Co., 118 Colo. 424, 195 P.2d 968; Denver Union Terminal Ry. v. Cullinan, 72 Colo. 248, 210 P. 602; Parris v. Jaquith, 70 Colo. 63, 197 P. 750; Denver Consolidated Electric Co. v. Lawrence, 31 Colo. 301, 73 P. 39. If, under most circumstances, one cannot by express contract, immunize himself from the consequences of his own negligence, then an implied agreement to that effect arising out of a general custom or trade usage will not be given effect. See King v. Gannon, 261 Mass. 94, 158 N.E. 346, 54 A.L.R. 1215. Only where such agreement is entered into by parties of equal bargaining power and where the agreement is express and unequivocal, have such clauses been held enforceable. See Mohawk Drilling Co. v. McCullough Tool Co., 271 F.2d 627 (10th Cir.). See also Tyler v. Dowell, Inc., 10th Cir., 274 F.2d 890, cert. denied, 363 U.S. 812, 80 S. Ct. 1248, 4 L. Ed. 2d 1153; M. J. Delaney Co. v. Murchison, 393 S.W.2d 705 (Tex.Civ.App.). Here, there is no evidence in the record of such circumstances and the trial court erred in ruling that the trade usage applied regardless of the negligence of the parties. To the extent that the trade usage before us purports to relieve the contractor of the consequences of his own negligence, it is in conflict with the express public policy of this state.
Therefore, we hold that the findings of the trial court regarding the existence and generality of a trade usage placing the risk of loss upon the driller or owner in the absence of an express agreement are affirmed. The finding that negligence was made irrelevant by such usage is rejected, as a matter of law, and the case is remanded for further proceedings not inconsistent with this opinion.
COYTE and SMITH, JJ., concur.
Judgment affirmed in part, reversed in part, and cause remanded with directions.
NOTES
[1] While the Uniform Commercial Code does not govern this case, we think it significant to note that the drafters of the Code in defining a trade usage have adopted a similar standard focusing on the likelihood that the parties contracted with reference to the usage. See Uniform Commercial Code § 1-205(2) (C.R.S.1963, XXX-X-XXX(2). They have also rejected the "universal" and "notorious" language. Uniform Commercial Code § 1-205 (2) (Comment 5). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326570/ | Kern, Leila R., J.
The defendant was indicted in September of 2010 on the charge of trafficking in Oxycodone over 28 grams. Defendant now moves to suppress all tangible and intangible evidence obtained during a police search of his person and the 2009 Silver Range Rover he was driving. The basis for the motion is that the police lacked reasonable suspicion to approach the Range Rover and the defendant’s consent to search the car was not voluntary. For the reasons contained herein, the motion is DENIED.
BACKGROUND
On May 30, 2010, at about 8:30pm, Officer Sacco, an officer with the Medford Police Department, was on detail around Alexander Avenue in Medford. He was there because the Mystic Valley Housing Authority had requested detail due to the high crime rate—primarily domestic violence and drugs—in the area. Officer Sacco himself had made several arrests in the area and, within the previous month, had made an arrest at 125 Alexander Avenue for cocaine trafficking. That evening, Sacco observed two vehicles, a black Nissan Maxima and a silver Range Rover with New Hampshire license plates, in the process of parking along Alexander Avenue. The engines of both cars remained running once they were parked. As Sacco continued to watch the vehicles, he saw the driver of the Nissan exit his vehicle and approach the front passenger door of the Range Rover, looking up and down the street as he proceeded. Upon noticing Officer Sacco’s marked cruiser, the driver of the Nissan hesitated and started back towards his car before continuing on his original path and entering the front passenger side of the Range Rover. Based on the New Hampshire license plates1 and his knowledge and experience with street-level drug transactions, Sacco believed he was witnessing a drug transaction. Sacco pulled up beside the Range Rover, leaving about four (4) feet between the two cars. The resulting encounter between the defendant and Sacco resulted in a search of the defendant and of the Range Rover, during which police found a significant amount of cash, packaged in a manner consistent with drug distribution, and 290 Oxycontin pills. The defendant was arrested and later charged and indicted for trafficking in Oxycodone over 28 grams. The passenger was not arrested or charged.
DISCUSSION
1. Initial Approach of the Range Rover a. Reasonable Suspicion
A police officer is justified in stopping and questioning an individual when the stop is based on a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Watson, 430 Mass. 725, 729 (2000). The officer must be able to point to specific and articulable facts, and any rational inferences that may be drawn therefrom, which justified his or her suspicions. Commonwealth v. Williams, 422 Mass. 111 (1996).
Six factors that have been considered relevant in establishing reasonable suspicion to stop a motor vehicle are (1) high crime area, (2) time of night, (3) vehicle suddenly pulled over or was erratically operated, (4) doors swung open, (5) flight in reaction to a show of police authority, and (6) uncommon movements and furtive gestures of occupants of the vehicle. Commonwealth v. Wilson, 52 Mass.App.Ct. 411 (2001). The circumstances surrounding Officer Sacco’s “stop” of the defendant’s vehicle include three (3) of the above-stated factors. First, Sacco was in that particular area because it was known to be a high crime area, particularly with respect to drug crimes, and the Mystic Valley Housing Authority had asked police to patrol the housing complex that was just one (1) block away from where the defendant was stopped. Also, Officer Sacco himself had recently made a drug trafficking arrest at a house within yards of where the defendant had parked his car. Second, it was approximately 8:30 p.m. when Officer Sacco pulled up next to the Range Rover and the sky was quickly getting darker. Third, Sacco noticed several uncommon and/or furtive movements. Officer Sacco noticed that when the driver of the Nissan exited his car, his “head was on a swivel,” looking up and down the street in a manner Sacco knew from his experience to be typical of “counter-surveillance.” Also, the driver of the Nissan, upon noticing the marked cruiser, hesitated and started to turn back towards his own car before turning back and continuing to the passenger seat of the Range Rover.
*610A police officer may rely on his own training and experience as a basis for reasonable suspicion. Commonwealth v. Depeiza, 449 Mass. 367, 373 (2007). Combined with the three (3) above factors, Officer Sacco observed behavior that appeared to him, based on his training and experience, to follow the precise manner in which street-level drug transactions occurred. Sacco knew from his training that street-level drug transactions were often conducted near highways, allowing for quick flight from the area. In this case, the two cars were parked close to Route 93, a major highway. The driver of the Nissan also left his car running while he got into the passenger seat of the Range Rover, leading Officer Sacco to believe that the ensuing interaction would brief and that the driver of the Nissan had left his car running in order to leave the area quickly. Sacco also knew that it was common practice for the buyer to enter the car of the seller and he observed the driver of the Nissan get into the front passenger seat of the Range Rover. Finally, Officer Sacco saw that the Range Rover had New Hampshire plates and was parked in an area that required a Massachusetts license plate in order to be parked there. Therefore, Sacco had reasonable suspicion to approach the defendant in order to investigate further. See Commonwealth v. Almeida, 373 Mass. 266 (1977) (when officers experienced in night patrols saw a parked car with its engine running, but lights out, behind an apartment building in a high crime area, they were justified in conducting an investigative stop); Commonwealth v. Kennedy, 426 Mass. 703, 708 (1999) (holding that an officer’s training, education, and knowledge, along with factors similar to those above, can support probable cause to arrest and search the defendant).
b. Custodial Interrogation
In order for Miranda to be triggered, there must be custodial interrogation. Miranda v. Arizona, 384 U.S. 436 (1966). Parking a police car next to—but not blocking the exit of—the target vehicle does not constitute a stop under the Fourth Amendment or Article 14 of the Mass. Declaration of Rights. Commonwealth v. Stephens, 451 Mass. 370, 382 (2008). Parking a police car so as to block the exit of the target vehicle, however, does constitute a stop under the Fourth Amendment and Art. 14. See Commonwealth v. King, 389 Mass. 233, 241 (1983); Commonwealth v. Helme, 399 Mass. 298, 303 (1987). Given the fact that Alexander Avenue is a one-way street and the Nissan was parked directly in front of the defendant’s Range Rover, it is likely that Officer Sacco’s cruiser was blocking the exit of the Range Rover, indicating that the defendant was in custody.
Interrogation requires questioning that the police should know is reasonably likely to result in an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980).2 Officer Sacco’s initial questioning of the defendant was most likely not intended to illicit an incriminating response. Sacco began by asking the defendant what he was doing and if he was visiting anyone on the street. The defendant responded that he and his friend were going to the liquor store and that they were not from the area, telling Sacco they were both from Somerville, MA. Sacco then told the defendant that he had a nice car and that he had noticed the New Hampshire license plates, proceeding to tell the defendant that no liquor stores were open at the time and the street was resident-only parking. Since the defendant had indicated that he was from Somerville, and the Range Rover had New Hampshire license plates, Officer Sacco also asked the defendant who the car belonged to, to which the defendant stated, “a friend.” Sacco asked the defendant if he had a license and the defendant indicated that he did and asked Sacco if he would like to see it. At that point, Sacco exited his cruiser and approached the Range Rover.
Officer Sacco’s above conversation with the defendant was casual in nature. Sacco spoke in a calm tone, did not flash his lights, draw his weapon, or even get out of his cruiser. He was merely trying to determine what was going on, not necessarily implicate the defendant in any crime. Therefore, Sacco’s initial questioning of the defendant did not constitute interrogation and thus, did not trigger the Miranda warnings. When Sacco’s conversation with the defendant revealed that the defendant alleged he was from Somerville (despite his New Hampshire plates) and that the Range Rover did not actually belong to him, Officer Sacco was warranted in asking to see the defendant’s license, exiting his cruiser to look at it, and approaching the Range Rover to further investigate the situation.
2. Search of the Interior of the Range Rover
As Officer Sacco approached the Range Rover he smelled burnt marijuana, elevating his reasonable suspicion of illegal activity to probable cause. See Commonwealth v. Correia, 66 Mass.App.Ct. 174, 177 (2006) (detection of “a strong, fresh odor of burnt marijuana emerging from a motor vehicle provide[s] probable cause to search the vehicle”).3 Officer Sacco then said to the defendant, “You know what my next question is, right?” to which the defendant responded by giving Officer Sacco a coffee cup that contained a burnt marijuana “cigar.”4 At this point Officer Sacco had probable cause to believe that there would be additional drugs in the car based on the activity he had seen prior to approaching the Range Rover coupled with the smell of marijuana and the burnt marijuana “cigar.” Once probable cause to search a car has been established, a police officer may search any part of the car where it is reasonably likely the object of the search may be found, including any compartments, containers, and the trunk, for contraband. United States v. Ross, 456 U.S. 798 (1982).5 Wyoming v. Houghton, 526 U.S. 295 (1999).
*611Officer Sacco asked the defendant to step out of the car, where he informed the defendant of his Miranda rights, which the defendant said he understood and acknowledged. The ensuing conversation between Officer Sacco and the defendant informed the officer that there was a “hypothetically” large amount of drugs in the car, which gave further support to Sacco’s belief that illegal activity was occurring and contraband would be found in the Range Rover. Upon searching the car, police found a significant amount of cash, in addition to the $800 found on the defendant (packaged in a manner the police knew from their experience to be consistent with drug distribution). They also found 290 80mg Oxycontin pills, separated into three clear plastic bags in a green canvas bag on a child’s car seat behind the front passenger seat.
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant’s Motion to Suppress is DENIED.
That area of Medford was resident-only parking, which required Massachusetts license plates and a resident sticker.
See Commonwealth v. Torres, 424 Mass. 792, 796-97 (1997) (citing Irmis, “Interrogation must reflect a measure of compulsion above and beyond that inherent in custody itself, ” and therefore Miranda warnings are only required when “a person in custody is subjected to either express questioning or its functional equivalent”).
See also Commonwealth v. Kitchings, 40 Mass.App.Ct. 591 (1996); Commonwealth v. Lawrence L., 439 Mass. 817 (2003); Johnson v. United States, 333 U.S. 10 (1948) (all standing for the proposition that an odor of a forbidden substance is sufficient for probable cause to search an individual or a location).
Offlcer Sacco should have read the defendant his Miranda rights prior to continuing questioning since his questioning now centered upon the smell of marijuana and responses from the defendant regarding the smell would most likely incriminate the defendant. The fruits of an interrogation done without Miranda warnings are, however, admissible so long as the statements made are voluntary. United States v. Patane, 542 U.S. 630 (2004). Therefore, the marijuana cigar handed to Officer Sacco is admissible. Furthermore, the police did not rely upon the cigar in order to search the car; they had probable cause based on the odor of marijuana alone.
Commonwealth v. Garden, 451 Mass. 43, 50 (2008) (cites Ross for the scope of a warrantless automobile search based on probable cause). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2609712/ | 22 Ariz. App. 311 (1974)
526 P.2d 1266
STATE COMPENSATION FUND, Petitioner,
v.
Frank E. KEEFE, Respondent Employee, The Industrial Commission of Arizona, Respondent.
No. 1 CA-IC 969.
Court of Appeals of Arizona, Division 1, Department C.
October 8, 1974.
*312 William D. Browning, Tucson, for petitioner.
Richard L. Keefe, Tucson, for respondent employee.
Edward F. Cummerford, Chief Counsel by William C. Wahl, Jr., Former Chief Counsel, The Industrial Commission of Arizona, Phoenix, for respondent.
OPINION
FROEB, Judge.
This is a review of a compensation award of the Industrial Commission entered in favor of the respondent, Frank E. Keefe. The State Compensation Fund appeals the Commission's finding of an injury arising out of and in the course of employment, as well as the sufficiency of the medical evidence appearing in the record to support the award.
Frank Keefe was employed by the Fund as a claims investigator. On March 31, 1971, he had occasion to travel from Tucson to Bisbee to investigate a claim for the Fund. After he completed his investigation work, Keefe decided to gather some information in Bisbee for an article he was preparing to publish in the "Innercom," a publication of his employer, the petitioner.
In the course of gathering this information, Keefe found it necessary to descend 125 feet to the bottom of a mill and to ascend thereafter by means of a stairwell of *313 approximately thirty degrees inclination and separated frequently by landings or levels. As Keefe ascended from the mill, he became extremely short of breath and suffered from chest pains. He found it necessary to stop at the landings in order to rest before proceeding on to the next set of stairs. Upon completing the ascent, Keefe rested for ten more minutes before leaving the mill area in his car. He proceeded to return to Tucson, but a short distance outside Bisbee he had to pause at a roadside comfort stop by lying prone atop a picnic table for another thirty minutes.
Keefe failed to report this incident to his employer or his physician. In fact, he continued his normal routine without visiting his doctor for a checkup of any kind. Finally, on April 21, 1971, while suffering from chest pains and breathing exhaustion, and having had a weight loss of approximately forty pounds, Keefe visited his family physician, Dr. Stanley Kitt, who thereafter hospitalized Keefe for five days. Dr. Kitt prescribed digitalis as a result of an electrocardiogram administered to Keefe while under observation in the hospital. Keefe did not disclose to Dr. Kitt at this time the events of March 31, 1971.
On January 22, 1972, Keefe consulted another physician, Dr. Stanley Schneider, who diagnosed his condition as aortic stenosis resulting from an attack of rheumatic fever suffered by Keefe in 1924. Dr. Schneider prescribed corrective open heart surgery to which Keefe consented, and the surgery was performed in Houston, Texas, during March 1972.
Shortly before his open heart surgery and about a year after the incident in the mill stairwell in Bisbee, Keefe filed this claim for compensation. He alleged that the stairwell incident occurred in the course of his employment and that it led to the heart surgery for which he seeks compensation.
In addition to the testimony of Keefe and his wife, the Commission heard testimony from several physicians, including Drs. Kitt and Schneider, all of whom treat cardiac patients.
We are called upon to determine whether the injury complained of arose out of and in the course of the employment, and whether there was sufficient medical evidence to establish a causal relation between the injury and the employment so as to support the findings of the Commission.
Petitioner argues that Keefe was no longer in the course of his employment when he undertook to gather information for an article intended for his employer's magazine. Rather, the petitioner asserts that this activity was for the personal pleasure and enjoyment of Keefe and therefore is not compensable.
This court has recognized a two-pronged test to determine an employee's statutory right to compensation. To be compensable an injury (1) must occur by accident, and (2) arise out of and in the course of his employment. Arizona Revised Statutes, § 23-1021; Truck Insurance Exchange v. Industrial Commission, 22 Ariz. App. 158, 524 P.2d 1331 (1974).
Both of these requirements have been explained and cited by our courts in numerous cases. As a general rule, an employee is injured in the course of his employment if the employee was involved in an activity he might reasonably be expected to undertake during such time, and if the employee was at a place where he could reasonably be expected to be when the accident occurred. Goodyear Aircraft Corp. v. Gilbert, 65 Ariz. 379, 181 P.2d 624 (1947); Thomas v. Industrial Commission, 54 Ariz. 420, 96 P.2d 407 (1939). The injury arises out of the employment when a causal connection is shown between the employment activity and the injury. Ware v. Industrial Commission, 92 Ariz. 188, 375 P.2d 384 (1962).
Applying these general principles, we must examine the facts to determine if there is a sufficient basis in the evidence to support the finding that the injury occurred during the course of the employment.
*314 The evidence before the Commission established that the magazine was a publication of the employer; that Keefe was an "official correspondent"; that he had written prior articles for the publication, and that the preparation of articles was encouraged by the magazine's editor.
On this evidence we find that Keefe's magazine writing was not merely for his own personal enjoyment, but was also within the course of his employment.
We now turn to the medical testimony to determine if it established the necessary causal relation between the employment and the injury.
While some medical experts require as a fact that the activity of an employee which gives rise to a heart attack be "unusual" as compared to "normal" work activities, such a showing is not required as a matter of law. Stotts v. Industrial Commission, 15 Ariz. App. 290, 488 P.2d 495 (1971). See also Pima Mining Co. v. Industrial Commission, 11 Ariz. App. 480, 466 P.2d 31 (1970). However, a causal relationship between the employment and the injury must be proven within a reasonable medical certainty. Stotts v. Industrial Commission, supra. When such a connection is not apparent to a layman, it can only be determined by expert evidence. Waller v. Industrial Commission, 99 Ariz. 15, 406 P.2d 197 (1965). Here the medical evidence necessary to support the award is found in the evidence. Dr. Stanley Kitt testified as follows:
Q. In connection with whether or not there is a connection to a reasonable medical probability between that incident and the heart difficulty which you found him to be suffering from on April 20th, would you feel qualified to express an opinion, to a reasonable medical probability, or would you rather defer to a cardiologist or one specializing in internal medicine and cardiology?
A. Oh, I think I could I think I could comment on that to the fact that it very easily could have caused the problem that we found at that time in the hospital; the increase in pulse rate and the irregularity.
Q. Even three weeks prior; the incident being three weeks prior?
A. Yes.
Q. And during that three week period, you had no contact with Mr. Keefe?
A. No.
Q. Can you say I know that you are saying it could do, Doctor, to a reasonable medical probability: can you say that the incident did cause the problem you saw on April 20th?
A. I could say that it is probable.
And, further, as to any aggravation of a pre-existing condition stemming from Keefe's 1924 rheumatic heart condition, Dr. Kitt testified:
Q.... Would you have an opinion as to whether there was any, within a reasonable degree of medical probability, any aggravation of that pre-existing condition?
A. I said it was very likely that it aggravated a pre-existing condition.
Dr. Stanley Schneider's testimony supports the same view:
Q. Is it medically probable, within a reasonable degree of medical certainty, that stress can and in a given situation, bring about a hastening of heart difficulty? Do you have an opinion on that?
A. Yes.
Q. What is your opinion?
A. Stress may hasten heart difficulty?
Q. Now ... as to past history ... would you have a medical opinion, then, based upon a reasonable medical certainty, whether or not the stress in this instance to Frank Keefe brought about a hastening of heart difficulty?
A. I think it may have.
Moreover, Dr. John Carroll, a cardiologist, examined the medical records and testified *315 that the climbing of the stairs caused a medical event referred to as "decompensation" of the heart and that once this occurs, symptoms of heart difficulty become progressively more severe.
Aggravation of a pre-existing condition by an employment-related work accident is compensable. Tatman v. Provincial Homes, 94 Ariz. 165, 382 P.2d 573 (1963). When the aggravation of the pre-existing condition causes symptoms of the condition to arise earlier than normally anticipated without the aggravation, then it is legally a proximate cause of the disability. We are presented with a situation in which proof of medical causation is peculiarly within the knowledge of the expert medical witnesses and must rely on their opinion as to occurrence and cause of medical disabilities. McNeely v. Industrial Commission, 108 Ariz. 453, 501 P.2d 555 (1972). Resolution of "heart cases" is based upon medical opinion setting forth the causal relationship between the activity and heart failure. Linn v. Industrial Commission, 10 Ariz. App. 571, 460 P.2d 677 (1969). In cases of conflicting medical testimony it is the responsibility of the Industrial Commission to resolve these evidentiary conflicts in a reasonable way.
In the case before us the record includes testimony on the nature and extent of Keefe's pre-existing condition, the various effects of the stair climbing on the physical condition of his heart, and opinions of medical experts as to causation. The shortness of breath, chest pains, exhaustion and profuse sweating were all symptoms of a serious heart condition, the manifestation of which was hastened or accelerated by an activity which was reasonably contemplated within the employment relation.
The petitioner has also urged the court to set aside the Findings and Award of the Commission on the basis that Keefe's testimony as to his physical condition during and shortly after the stair climbing incident was uncorroborated by any disinterested witness, and therefore was improperly considered by the Commission. Such, however, may not be disregarded by the Commission unless the testimony has been impeached or contradicted or unless the circumstances are such as to cast doubt upon the credibility of the testimony. Quirk v. Industrial Commission, 3 Ariz. App. 84, 412 P.2d 81 (1966). The Commission did not so find and thus we must reject the challenge to it.
We conclude that the findings of the Industrial Commission are reasonably supported by the evidence appearing in the record. The award is therefore affirmed.
WREN, P.J., and NELSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609713/ | 526 P.2d 679 (1974)
Clara CAMPBELL, a/k/a Mrs. M. Campbell, Plaintiff-Appellant,
v.
GATES RUBBER COMPANY, Defendant-Appellee.
No. 74-042.
Colorado Court of Appeals, Div. I.
September 10, 1974.
*680 Walter L. Gerash, Fischer & Kenison, Louis M. Fischer, Howard Kenison, Denver, for plaintiff-appellant.
Dayton Denious, William P. Denious, Denver, for defendant-appellee.
Not Selected for Official Publication.
Not Selected for Official Publication.
VAN CISE, Judge.
Plaintiff, Mrs. Campbell, an employee of defendant Gates Rubber Company, appeals from a summary judgment dismissing her action for personal injuries. The dismissal was grounded on Gates' affirmative defense that Mrs. Campbell's exclusive remedy was under the Workmen's Compensation Act, C.R.S.1963, 81-1-1 et seq. We affirm.
The facts are not disputed. All of the pertinent events occurred on Gates property. After finishing her shift for the day and clocking out, Mrs. Campbell left the building in which she worked, and walked on a sidewalk toward her car which was in a parking lot owned and maintained by Gates for the convenience of its employees. She slipped on a patch of ice and fell, fracturing her wrist.
Mrs. Campbell instituted this action charging Gates with negligence in allowing a dangerous condition to exist on its property which caused her to suffer personal injury. She contended that she was not performing a service for her employer and that she was outside the scope of her employment at the time of the accident and that she was therefore entitled to bring a separate action against Gates as the owner of the premises.
Gates had complied with the requirements of the Workmen's Compensation Act, and it contended that the accident occurred in the course of plaintiff's employment and that her remedies were limited therefore to those provided under the Act. Proceedings under the Act have been stayed pending the outcome of this lawsuit.
State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591, is dispositive of the present action. In Walter, the court stated that although the general rule is that no compensation is recoverable by a workman who is injured while on his way to or from his work, "special circumstances bringing the accident within the scope of the employment" could give rise to benefits under the Act when the workman "is in the act of leaving the premises of his employer." It then held that where an employee is injured crossing a public street bisecting the premises of his employer while on his way to the place where parking space is assigned to him on the premises of his employer, his injuries are compensable under the Act as a matter of law. See also Sieck v. Trueblood, 29 Colo. App. 432, 485 P.2d 134.
Plaintiff's injuries were incurred in the "scope of her employment," and Gates had complied with the provisions of the Act. Plaintiff has no cause of action against *681 Gates except under the Act. 1967 Perm. Supp., C.R.S.1963, 81-3-2. The summary judgment was properly entered.
Judgment affirmed.
SILVERSTEIN, C. J. and COYTE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609715/ | 11 Wash. App. 879 (1974)
526 P.2d 1228
In the Matter of the Marriage of PATRICIA A. MELVILLE, Respondent, and JOHN H. MELVILLE, Appellant.
No. 954-3.
The Court of Appeals of Washington, Division Three.
October 4, 1974.
Norman D. Brock (of Underwood, Campbell, Zellmer & Brock), for appellant.
David W. Henault (of Fredrickson, Maxey, Bell & Allison, Inc., P.S.), for respondent.
McINTURFF, J.
John Melville appeals from an award of property, alimony, child support and attorneys' fees in a decree of dissolution.
His net worth was in excess of $100,000 when the parties were married in 1966. In 1973 the parties' net worth, including both separate and community property, was approximately $31,800.
The court awarded Patricia Melville $14,000 in cash, the household furniture and furnishings valued at approximately $2,500, and an unvalued car. She was ordered to pay a $2,000 community obligation owed her mother. Her husband was awarded personal property valued at $106,764.28, real property valued at $37,550, plus liabilities of $115,206.24. He was ordered to pay: (1) child support of $100 per month per child until such time as each child reached the age of 18, or was sooner emancipated, or until the age of 21 if the child was regularly enrolled in school; (2) $4,000 attorneys' fees for his wife; (3) $100 per month alimony for 12 months; and (4) $6,100 in community obligations.
[1, 2] The first issue is whether the trial court erred in failing to make a specific finding as to the character and status of the property of the parties prior to its division. *881 The characterization of property is not controlling upon its division, but rather one of many factors to be considered by the court. Eide v. Eide, 1 Wash. App. 440, 462 P.2d 562 (1969); Worthington v. Worthington, 73 Wash. 2d 759, 440 P.2d 478 (1968). It is evident from the court's oral decision and findings that it appreciated the fact Mr. Melville possessed substantial income-producing property prior to the marriage. As a result, the source of his livelihood was left intact for his benefit. The award of property to Mrs. Melville was not an abuse of discretion; thus this court will not substitute its judgment for that of the trial court. Robuck v. Robuck, 62 Wash. 2d 917, 385 P.2d 50 (1963).
[3] Secondly, is an award of alimony for a period of 12 months, with no mention of its termination upon the remarriage of the wife, inequitable and an abuse of judicial discretion? We answer in the negative. An award of alimony, including its duration, lies within the sound discretion of the trial court. Kelso v. Kelso, 75 Wash. 2d 24, 448 P.2d 499 (1968). Since the trial court did not specifically order the alimony to continue beyond the remarriage of Mrs. Melville, that portion of the decree is controlled by the second paragraph of RCW 26.09.170 which states:
Unless otherwise agreed in writing or expressly provided in the decree the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
(Italics ours.) There being no express provision for the continuation of alimony after the remarriage of Mrs. Melville, Mr. Melville's obligation terminates upon the former's remarriage.
[4] Thirdly, does a court in a dissolution proceeding have jurisdiction to direct a parent to provide a child post-majority support and education? RCW 26.09.170 specifically confers upon a dissolution court jurisdiction to direct a parent to provide for the support and education of a child after it attains majority, wherein it provides:
Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child *882 are terminated by emancipation of the child or by the death of the parent obligated to support the child.
(Italics ours.) The jurisdictional defect described in Baker v. Baker, 80 Wash. 2d 736, 498 P.2d 315 (1972), and relied upon by Mr. Melville, no longer exists. See Rieke, The Dissolution Act, 49 Wash. L. Rev. 375, 412-13 (1974). The award was within the court's jurisdiction.
[5] The final issue is whether the allowance of $4,000 in attorneys' fees makes the property division inequitable. The awarding of attorneys' fees is not an element of a property division. RCW 26.09.140. The amount of attorneys' fees awarded to a wife in a dissolution case rests in the sound discretion of the trial court, which must consider the financial need of the wife and the ability of the husband to pay. Fite v. Fite, 3 Wash. App. 726, 479 P.2d 560 (1970). We find no abuse of discretion in the award herein.
The judgment of the trial court is affirmed.
GREEN, C.J., and MUNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2384549/ | 859 S.W.2d 617 (1993)
Edward H. THOMPSON and Rebecca Thompson Perry, Appellants,
v.
VINSON & ELKINS, Appellee.
No. 01-92-0996-CV.
Court of Appeals of Texas, Houston (1st Dist.).
August 5, 1993.
*618 Will G. Dickey, Megan Gabel, Houston, Roy Q. Minton, John L. Foster, Austin, for appellants.
Phillip T. Bruns, Jean C. Frizzell, Houston, for appellee.
Before DUGGAN and DUNN, JJ., and SAM H. BASS, Assigned Justice.[*]
OPINION
SAM H. BASS, Assigned Justice.
The appellants have filed a motion for rehearing. We overrule the motion for rehearing. However, we withdraw our previous opinion, substituting this one in its stead.
This is an appeal from a summary judgment granted to the appellee, Vinson & Elkins (V & E), in a case brought by the appellants, Edward H. Thompson and Rebecca Thompson Perry (the Thompsons), involving allegations of wrongdoing in the handling of trust property. In their sole point of error, the Thompsons contend that the trial court erred in granting V & E's motion for summary judgment. We affirm.
When reviewing a summary judgment, we begin with the proposition that the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of *619 law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, we take evidence favorable to the nonmovant as true. Id. at 548-49. We indulge every reasonable inference in favor of the nonmovant. Id. at 549. We also resolve all doubts in its favor. Id.
The Thompsons' first amended petition names numerous defendants. Its factual allegations pertinent to V & E are as follows.
The Thompsons are residual beneficiaries under their aunt's will. Their aunt, Irma Beeley (Irma), provided in her will that the residue of her estate, after some specific bequests were made, was to be placed in a trust for the protection and well-being of her husband, Raymond Beeley (Raymond). The trustees were authorized to make payments to Raymond if, for any reason, he should be "in need."
In addition to being residual beneficiaries, the Thompsons had other potential benefits under the will. The trustees were authorized to pay them whatever amounts the trustees, in their discretion, deemed proper and sufficient for the Thompsons' education, health, support, and welfare. Raymond and a lawyer, Charles Johnson (Johnson), were named cotrustees under the will. Johnson, who is also an accountant, is a defendant, though not a party to this appeal.
Irma eventually began to deteriorate mentally. She executed a general power of attorney to Johnson and died not long thereafter. The most significant asset in her estate was her interest in the stock of Dixie Pipe Sales, Incorporated (Dixie), also a defendant and not a party to this appeal. Robert Beeley (Robert), another nephew of Irma and Raymond, and also a defendant not a party to this appeal, had an interest in Dixie. Robert sought to acquire more Dixie stock. Johnson was Robert's accountant and also the accountant for Dixie.
Raymond ultimately suffered a stroke. The stroke debilitated him mentally, and he eventually died. This left Johnson as the sole trustee of Irma's trust.
Johnson selected V & E to represent Irma's "estate and trust" in the process of distributing the trust's assets. V & E already represented Robert, a company owned by Robert, Dixie, and other members of the Beeley family, including Margaret Beeley (Margaret), who Raymond married after Irma's death, and who is also a defendant and not a party to this appeal. V & E did not check to see if there was any conflict in representing Irma's estate.
As it turned out, in representing the Beeleys, Thomas H. Wharton, a partner at V & E, had written a letter to Margaret and Raymond which addressed the issue of who would wind up with the Dixie stock that was to pass to the Thompsons under Irma's will. In relevant part, the letter states as follows:
It is my understanding that a year or so ago, some thought was given to having the company redeem the Dixie stock that would be owned by the trust created under Irma's will for you. The main consideration for such a redemption would be to make certain that the Dixie stock did not fall into the hands of Irma's niece and nephew [the Thompsons] and would stay in the Beeley family. Bobby [Robert] tells me that he had discussed that with you and, at least at some point, you had thought you might want to go forward with such a redemption. Depending upon what your feelings are with respect to the future of Dixie, Charles [Johnson] is planning to suggest that you might wish to explore the possibility of having the company redeem not only the trust stock, but your stock. One advantage to redeeming all of the stock would be that neither you nor Charles could be criticized for the value placed upon the stock redeemed from the trust. Assuming all the stock was valued in the same manner. [sic] Although I have talked to Bobby about the possibility of redeeming the trust stock, I have not, nor has Charles, mentioned to him any thought of redeeming your one-half.
This plan, however, was "shelved," and a new plan concocted whereby Dixie would acquire the trust's stock at book value.
*620 After Raymond's death, the Thompsons employed an attorney to work with Johnson in arranging the distribution of the trust assets. The Thompsons' attorney contacted Johnson and V & E. He was unable to work with them to the Thompsons' satisfaction, however, so the Thompsons sued Johnson for an accounting. Ultimately, V & E agreed to voluntarily provide the information the Thompsons sought.
Continuing with the factual allegations in the Thompsons' first amended petition: Johnson and V & E then implemented the new plan to manipulate the Thompsons into agreeing to take book value for their Dixie stock. They misrepresented to the Thompsons the value of the stock, concealed facts about restrictions in Dixie's bylaws on the sale of stock, and sent the Thompsons a letter for their signature which set out a proposed agreement that the Thompsons should be paid only book value for the stock. The plan, however, failed; "[t]he trick did not work." The Thompsons returned the letter unsigned.
C. Boone Schwartzel (Schwarzel), another V & E partner, submitted an accounting to the Thompsons. He also wrote a letter to the Thompsons' attorney, suggesting that if the Thompsons did not come to an agreement with Johnson and V & E on how much the Thompsons should be paid for the stock, the trust's assets would be consumed by attorney's fees. The letter stated in relevant part as follows:
With respect to the amount of money to be retained, the amount of attorney's fees and accounting fees to be incurred in resolving the Dixie matter and any issues raised by your clients is uncertain, particularly in view of the actions taken to date by your clients ... Johnson is familiar with cases in which accounting fees and legal fees have been extremely high. In fact, in a matter to be concluded shortly, over $500,000.00 in attorney's fees were incurred by co-trustees relating to the administration of trusts over less than a two-year period. Thus, until the nature and extent of your clients' claims can be ascertained, our client is reluctant to make significant distributions over and above the items mentioned in my prior letter.
In Schwartzel's letter transmitting the accounting, he stated to the Thompsons: "[A]s you know, this firm has for many years represented Dixie Pipe Sales Company and various members of the Beeley family." However, the Thompsons had actually not been aware of V & E's representation of Dixie and the Beeleys.
Upon receiving the accounting from Schwartzel, a meeting was held between the Thompsons' representatives, Johnson, and Schwartzel. After the meeting, the Thompsons' accountant inventoried the documents which supported Schwartzel's accounting. He found, apparently misfiled, Wharton's letter to Raymond and Margaret which discussed the plan "to make certain that the Dixie stock did not fall into the hands of [the Thompsons]."
The Thompsons subsequently demanded that ownership of the Dixie stock be transferred immediately to their names. Robert then notified them that their request triggered the "restrictions" set out in Dixie's bylaws, and that Dixie was exercising its "right" to purchase the stock at book value. The amount of "book value" was determined by Johnson. Ultimately, the Thompsons filed this lawsuit. This concludes the recitation of the Thompsons' factual allegations against V & E in their first amended petition.
The Thompsons' first amended petition is very specific and ordered in setting out their causes of action and the parties against whom the respective causes of action are being brought. They bring the following causes of action against V & E: (1) "professional negligence;" (2) violation of confidential relationship; (3) breach of fiduciary duty; (4) conversion; (5) violation of the Texas Deceptive Trade Practices Act (DTPA); (6) fraud; and (7) breach of contract. Throughout their brief, the Thompsons also refer to a claim of conspiracy they allegedly brought against V & E. Also in their brief, they mention V & E's "participation in ... interference in inheritance *621 rights." We address each claim separately, beginning with conspiracy.
Nowhere in their first amended petition did the Thompsons allege that V & E engaged in a conspiracy. Their causes of action are individually set out in highlighted headings, in a specific, orderly fashion. Under each heading is a list of the defendants against whom the Thompsons are bringing that particular cause of action. There is no mention of conspiracy, regarding V & E or any other defendant. Conspiracy simply was not pled. This claim was not before the trial court, and, as such, the Thompsons' claim of conspiracy cannot be considered by this Court. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).
Nor did the Thompsons plead "interference in inheritance rights." We cannot consider this claim, either. See Clear Creek Basin Authority, 589 S.W.2d at 678-79.
The Thompsons properly pled fraud and breach of contract. In regard to fraud, in its motion for summary judgment, V & E pled and supported two assertions with summary judgment proof: (1) V & E did not make any representation to the Thompsons, and (2) the Thompsons did not rely on any representation made by V & E.[1] In their response, the Thompsons did not present evidence that V & E made a representation or show that they relied on a representation made by V & E. Nor do they present this issue to us on appeal. The fraud claim is not before us. See Clear Creek Basin Authority, 589 S.W.2d at 678-79.
In regard to breach of contract, V & E stated in its motion for summary judgment and proved that it had no contract with the Thompsons. In their response, the Thompsons did not submit evidence of a contract. They do not present this issue on appeal, either. The breach of contract claim is not before us. See Clear Creek Basin Authority, 589 S.W.2d at 678-79.
Regarding the Thompsons' claim for professional negligence, V & E argued in the trial court and argues here that the Thompsons do not have standing to assert such a claim against V & E because the Thompsons were not in privity with V & E. For the purposes of a claim for professional negligence, "privity" means the contractual connection or relationship that exists between the attorney and the client. See Dickey v. Jansen, 731 S.W.2d 581, 582 (Tex.App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.). "Texas law does not recognize a cause of action for negligence against an attorney asserted by one not in privity with that attorney[.]" Id. Texas cases "have consistently held that third parties have no standing to sue attorneys on causes of action arising out of their representation of others." Id. at 582-83.
In Dickey, testamentary trust beneficiaries brought a cause of action for professional negligence against the testator's attorney and law firm for negligent preparation of a trust provision. 731 S.W.2d at 582. The trust provision at issue was to have included mineral interests in Louisiana, but the provision was invalid under Louisiana law. Id.
The defendants moved for summary judgment, arguing that "an attorney is not liable to ... those not in privity to attorneys... for alleged failure to perform duties which the attorney owes only to his clients." Dickey, 731 S.W.2d at 582. The trial court granted the defendants' motion. Id. This Court affirmed, rejecting the plaintiffs' argument that they were entitled to maintain their action as third party beneficiaries to the employment contract between the testaor and the attorney. Id.
Here, V & E showed by proper summary judgment proof that there was no privity between it and the Thompsons. V & E *622 attached excerpts from both Edward H. Thompson's and Rebecca Thompson Perry's depositions to its motion for summary judgment. Regarding the privity issue, Edward H. Thompson testified as follows:
Q. Had you ever had any dealings with Vinson & Elkins?
A. No, sir.
. . . . .
Q. Other than hearing about Vinson & Elkins, you hadn't had any dealings with them?
A. Certainly not to my knowledge.
Q. All right. I take it you never hired Vinson & Elkins to represent you, did you?
A. That is correct.
. . . . .
Q. [Y]ou never hired Vinson & Elkins, did you?
A. I did not.
Q. Have you ever spoken to any lawyer who works for Vinson & Elkins, to your knowledge?
A. To my knowledge, no, not knowing that they were a lawyer with Vinson & Elkins.
Q. I understand. You might have spoken to somebody on the street that you didn't know was a Vinson & Elkins lawyer?
A. That's true.
Q. But you, to the best of your knowledge, in your lifetime you have never sat down and conversed with a lawyer from Vinson & Elkins, have you, sir?
A. No, sir.
Rebecca Thompson Perry testified as follows:
Q. I take it, then, to your knowledge, you never consulted with any Vinson & Elkins lawyer, did you?
A. No, I had not.
Q. Never shared any kind of confidence with Vinson & Elkins lawyers. True?
A. No.
Q. And you have never been given any advice by a lawyer from Vinson & Elkins, have you?
A. No.
Q. And you have never relied on any advice from any Vinson & Elkins lawyer, have you?
A. No.
In their brief, the Thompsons acknowledge a lack of privity between them and V & E.[2] However, they ask us to "relax" the privity requirement. We believed when writing Dickey that the requirement is well-reasoned and should not be "relaxed" in a case brought against an attorney by parties who are not the attorney's clients, but who are instead would-be "third party beneficiaries" of the attorney-client relationship. 731 S.W.2d at 583. We decline to depart from our reasoning or our holding.[3]
The Thompsons also ask that we apply section 552 of the Restatement (Second) of Torts, which states in relevant part that one who, in the course of his business, supplies false information to others, may be liable for the loss suffered by a person *623 for whose benefit he supplies the information. See Restatement (Second) of Torts § 552 (1977). However, Texas courts of appeals have rejected the idea of applying section 552 to lawyers. See First Municipal Leasing Corp. v. Blankenship, Potts, Aikman, Hagin & Stewart, 648 S.W.2d 410, 413-14 (Tex.App.-Dallas 1983, writ ref'd n.r.e.); Bell v. Manning, 613 S.W.2d 335, 338 (Tex.Civ.App.-Tyler 1981, writ ref'd n.r.e.).
We agree with the holdings in those cases. A nonclient should not have a negligence cause of action against an attorney under facts such as those presented here. The trial court was correct in granting summary judgment on the Thompsons' professional negligence claim against V & E.[4] We next consider whether summary judgment was proper on the Thompsons' claim of breach of fiduciary duty.
The term "fiduciary relationship" means "legal relations between parties created by law or by the nature of the contract between them where equity implies confidence and reliance." Peckham v. Johnson, 98 S.W.2d 408, 416 (Tex.Civ. App.-Fort Worth 1936), aff'd sub nom., 132 Tex. 148, 120 S.W.2d 786 (1938). Fiduciary relationships are recognized in a variety of legal relations, historically including those involving attorney and client, see Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988), and trustees, see Hickman v. Stone, 69 Tex. 255, 5 S.W. 833, 834-35 (1887).
Here, however, V & E, as discussed above, did not have an attorney-client relationship with the Thompsons. Nor was V & E the Thompsons' trustee. Rather, according to the Thompsons' pleadings, V & E represented Irma's "estate" and "trust."
There is considerable authority, however, that, as a matter of law, one cannot represent an "estate." An estate is not a legal entity that can sue or be sued. Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.1987); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex.1975) ("[T]he `estate' of a decedent is not a legal entity and may not properly sue or be sued[.]").
Nor do we believe that V & E represented the "trust." A trust is not a legal entity. See Rippstein v. Unthank, 380 S.W.2d 155, 157 (Tex.Civ.App.-Amarillo 1964), rev'd on other grounds, 386 S.W.2d 134 (Tex.1964) (a trust is a "confidence reposed in one person"); Coverdell v. Mid-South Farm Equip. Ass., 335 F.2d 9, 13, 14 (6th Cir.1964) (a trust cannot sue or be sued, but rather legal proceedings are properly directed at the trustee); Restatement (Second) of Trusts § 2 (1959) (a trust is a "relationship").
Even if V & E did represent Irma's estate or the trust, we would decline to hold under these facts that the concept of a fiduciary relationship stretches far enough to cover the relationship between a residual beneficiary of a trust and the attorney representing either (a) the estate of the decedent whose will created the trust, or (b) the trust itself.
A fiduciary duty is an extraordinary one and will not be lightly created. The mere fact that one subjectively trusted the other does not, alone, indicate that he reposed confidence in the other in the sense demanded by fiduciary relations, because something apart from the transaction itself is necessary.
Gillum v. Republic Health Corp., 778 S.W.2d 558, 567 (Tex.App.-Dallas 1989, no writ).
Furthermore, contrary to the Thompsons' pleadings, but as acknowledged in their brief, the record indicates that V & E's involvement with the trust itself was in *624 representing one of the trustees, Johnson. Although a fiduciary relationship may exist between the beneficiary of a trust and a trustee, under the facts presented here, no fiduciary relationship exists between the beneficiary of a trust and the attorney representing a trustee. The trial court was correct in granting summary judgment on the Thompsons' breach of fiduciary claim against V & E.[5]
It was also correct in granting summary judgment on the Thompsons' claim against V & E for violation of a confidential relationship. A confidential relationship exists when "one party is in fact accustomed to being guided by the judgment or advice of the other, or is justified in placing confidence in the belief that such party would act in its interest." Thames v. Johnson, 614 S.W.2d 612, 614 (Tex.Civ. App.-Texarkana 1981, no writ).
Edward H. Thompson testified that he never "had any dealings" with V & E, had never hired it, and had never, to his knowledge, even spoken to one of its lawyers. He therefore was clearly not "accustomed to being guided by the judgment or advice" of V & E. Nor would he have been "justified in placing confidence in the belief" that V & E would act in his interest, considering that he had never had any dealings with V & E and that he was not V & E's fiduciary.
Rebecca Thompson Perry testified that she had never consulted, shared a confidence with, or been given advice by V & E. Nor was she V & E's fiduciary. We reach the same conclusion regarding Rebecca Thompson Perry as we reached with Edward H. Thompson. Neither had a confidential relationship with V & E.
We now turn to the Thompsons' claim against V & E for conversion. "Conversion" is "the wrongful exercise of dominion and control over another's property in denial of or inconsistent with his rights." Earthman's, Inc. v. Earthman, 526 S.W.2d 192, 198-99 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).
The summary judgment evidence demonstrates that V & E never "wrongful[ly] exercise[d] dominion or control" over the shares of Dixie stock from Irma's estate. However, in their brief, the Thompsons argue:
V & E wrongly advised DPS [Dixie] and Robert Beeley that the Appellants' Stock was subject to redemption. Based upon that advice, DPS converted Appellants' Stock.
(Emphasis added.)
The Thompsons, however, cannot reach V & E with a conversion claim based upon such a complaint. They have no conversion claim against a lawyer who allegedly "wrongly advised" another party, thus leading to the other party's alleged conversion of their property. Any claim here for the allegedly wrong advice supplied by the attorney rests with the wrongly advised party itself.[6] The trial court was correct in *625 granting summary judgment on the Thompsons' conversion claim against V & E.
Regarding the Thompsons' claim against V & E for violating the DTPA,[7] we note that, to recover under the DTPA, the plaintiff must be a consumer. MacDonald v. Texaco, Inc., 713 S.W.2d 203, 205 (Tex.App.-Corpus Christi 1986, no writ).
A DTPA "consumer" is "an individual... who seeks or acquires by purchase or lease, any goods or services ..." Tex.Bus. & Com.Code Ann. § 17.45(4) (Vernon 1987). The "goods or services" sought or acquired by the plaintiff must form the basis of its DTPA complaint. Commercial Escrow Co. v. Rockport Rebel, Inc., 778 S.W.2d 532, 536 (Tex.App.-Corpus Christi 1989, writ denied).
Here, as demonstrated by the deposition testimony of the Thompsons set out above, the Thompsons did not directly "seek or acquire" any "goods or services" from V & E. We recognize, however, that:
Privity between the plaintiff and defendant is not a consideration in deciding the plaintiff's status as a consumer under the DTPA ... A plaintiff establishes his standing as a consumer in terms of his relationship to a transaction, not by a contractual relationship with the defendant.
Kennedy v. Sale, 689 S.W.2d 890, 892-93 (Tex.1985) (quoting Flenniken v. Longview Bank & Trust, 661 S.W.2d 705, 707 (Tex. 1983)); see also Wellborn v. Sears, Roebuck & Co., 970 F.2d 1420, 1426 (5th Cir. 1992).
V & E asserts that none of the cases in the Kennedy line, decided before or after, "have involved a third party suit against an attorney solely alleging the attorney's negligence." We note, however, that: (1) this lawsuit did not "solely allege[] the attorney's negligence," because the Thompsons pled other, non-negligence causes of action besides professional negligence; and (2) because attorneys may be subject to liability under the DTPA, see DeBakey v. Staggs, 605 S.W.2d 631, 633 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e., 612 S.W.2d 924 (Tex.1981), and because privity between plaintiff and defendant is not required in a DTPA action, see Kennedy, 689 S.W.2d at 892-93, we believe that no privity is required in a DTPA case against an attorney, as well.
Nevertheless, the trial court was correct in granting summary judgment on the Thompsons' claim against V & E for violating the DTPA. The summary judgment evidence demonstrated that the alleged DTPA violations that the Thompsons assert V & E committed were not a producing cause of any damages. For example, in her deposition, Rebecca Thompson Perry testified as follows:
Q. In that letter from Mr. Wharton there was discussion of the possibility of the company buying not only the Irma Beeley estate stock but simultaneously Raymond [sic] stock, correct?
A. Yes, and that was on June 27th of '86.
Q. Right. And you know that that did not happen did it?
A. Yes.
Q. Yes, you know that it did not happen?
A. Yes, I do know that it did not happen.
Q. You say in your petition that that plan was shelved, correct?
A. That's correct.
. . . . .
Q. You never consented to take book value for the stock, did you?
A. No, I did not.
Q. Whatever Vinson & Elkins ... attempted to maneuver you into doing, you didn't do it, did you?
*626 A. No, I did not.
. . . . .
Q. So whatever ... Vinson & Elkins [was] trying to maneuver you into doing, you just didn't do it, did you?
A. No, I don't believe I did.
In his deposition, Edward H. Thompson testified as follows:
Q. [I]f Mr. Schwartzel was trying to threaten you or coerce you into waiving some right you had with respect to stock, it didn't work, did it, sir?
A. I don't believe it did, sir.
. . . . .
Q. The letter indicated the possibility was for ... the estate to sell the shares and your Uncle Ray Beeley sell his shares back at the same time, correct?
A. I think that was suggested.
Q. And you know that never happened, don't you, sir?
A. I don't believe it happened.
. . . . .
Q. Prior to receiving notification from Dixie Pipe Sales regarding the calculation of book value, nobody had represented to you what the value of that Dixie Pipe stock was other than perhaps your own lawyers, true, sir?
A. No one has represented that to me, no, sir.
That the alleged false, misleading, or deceptive act or practice be a producing cause of damages to the plaintiff is an element of a DTPA claim. Tex.Bus. & Com.Code Ann. § 17.50(a) (Vernon 1987); MacDonald, 713 S.W.2d at 205. The summary judgment evidence disproved this element. As such, V & E was entitled to summary judgment on this claim. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975); Southwest Indus. Import & Export, Inc. v. Borneo Sumatra Trading Co., 666 S.W.2d 625, 627 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.).
The Thompsons lastly contend that "outstanding discovery issues preclude the granting of V & E's summary judgment."[8] They argue:
[O]utstanding discovery issues remain pending in the court below and are the subject of numerous motions to compel filed by Appellants. These motions are directed to Defendants V & E, DPS [Dixie], and Robert Beeley. The documents requested by Appellants relate to V & E's representation of the Trust, of Johnson, as trustee, of DPS, and of Robert Beeley. In response to the request for production, depositions, and motions to compel compliance with such request, V & E and Johnson have generated a document entitled "Privileged Documents List" ... [T]he trial court [has] fail[ed] to address these motions[.]
The record shows that the Thompsons sued V & E on March 7, 1991. It shows that V & E moved for summary judgment on March 30, 1992. The trial court granted summary judgment to V & E on June 8, 1992. Therefore, the Thompsons had over a year to conduct discovery before V & E moved for summary judgment, and over 15 months before summary judgment was entered.
The Thompsons' motions to compel were filed on August 12 and September 23, 1991. The latest of these dates was over six months before V & E moved for summary judgment, and over eight months before summary judgment was entered.
Furthermore, the record does not reflect that the Thompsons' motions to compel were ever presented to the trial court for a ruling. The record does not contain a request for an oral hearing on either motion or a submission date for either motion.
Under these circumstances, we hold that the trial court did not err in granting a properly filed, valid motion for summary judgment despite the "outstanding discovery issues."
*627 We overrule the Thompsons' point of error and affirm the judgment of the trial court.
NOTES
[*] The Honorable Sam H. Bass, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.
[1] That a material representation was made by the defendant is the first element of a cause of action for fraud. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex.1977). In regard to constructive fraud, this tort can only occur upon the breach of a duty. Gillum v. Republic Health Corp., 778 S.W.2d 558, 571 (Tex. App.-Dallas 1989, no writ). However, we hold that here, for reasons that will be clear later in the opinion, V & E had no duty to the Thompsons.
[2] "[I]t is undisputed that, at all relevant times, V & E provided legal services to Johnson, as trustee of the Trust, and V & E never provided legal services directly to either of the Appellants[.]"
[3] The Thompsons contended in oral argument that the privity requirement has been nullified in cases such as this one, citing American Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480 (Tex.1992). There, the Texas Supreme Court held "that an excess carrier may bring an equitable subrogation action against the primary carrier." Id. at 483. Under the theory of equitable subrogation, "the insurer paying a loss under a policy becomes equitably subrogated to any cause of action the insured may have against a third party responsible for the loss." Id. at 482. The excess insurer is "thus able to maintain any action that the insured may have against the primary carrier for mishandling of the claim." Id.
The court wrote that the same "considerations that have resulted in our recognizing an excess carrier's right to bring an equitable subrogation action against the primary insurer offer similar support for an action by the excess carrier against defense counsel." Id. at 484. While we recognize the grounds for a comparison on the issue of privity, we do not find American Centennial either on point or persuasively analogous. It does not address the issue presented here or otherwise aid in our determination of it. In our view, it clearly did not nullify the privity requirement in cases such as the one at bar.
[4] In so holding, we reject the Thompsons' argument that "[a]ll claims against V & E are assets of the Trust which have now vested in Appellants, and Appellants now have ownership of the claims and standing to assert them." A "trust," as we discuss later in this opinion, is not a legal entity. Title to the "assets" is actually held by the trustee. Restatement (Second) of Trusts § 2 (1959). The Thompsons cite no authority, and we can find none, for the proposition that a trustee's potential claim against his attorney, based on the advice rendered by the attorney to the trustee, could somehow vest in the beneficiaries. We believe such a holding would conflict with the privity rule.
[5] Citing Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942), and Kirby v. Cruce, 688 S.W.2d 161 (Tex.App.-Dallas 1985, writ ref'd n.r.e.), the Thompsons also argue that they have a claim against V & E for V & E's "knowing participation" in Johnson's breach of his fiduciary duty to the Thompsons. We agree with the Thompsons that when a third party knowingly participates in a fiduciary's breach of his fiduciary duty, the third party becomes a joint tortfeasor with the fiduciary and may be held liable as such. See Kinzbach, 160 S.W.2d at 514. However, neither Kinzbach nor Kirby involved a beneficiary bringing a breach of fiduciary duty claim against the fiduciary's attorney. We believe that allowing the Thompsons to bring such a claim against V & E would, under the facts of this case, conflict with the privity rule.
The Thompsons also refer us to Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468 (Tex. App.-Houston [1st Dist.], no writ). There, we noted that "an attorney is liable if he knowingly commits a fraudulent act that injures a third person, or if he knowingly enters into a conspiracy to defraud a third person." Id. at 472. That rule, however, does not apply here. As will be clear later in the opinion, the summary judgment evidence showed that the Thompsons were not injured by V & E's alleged acts. And, as previously noted, the Thompsons did not plead that V & E engaged in a conspiracy.
[6] Furthermore, V & E's advice turned out not to be wrong. The by-law provision upon which V & E based its advice that the Thompsons' stock was subject to redemption was recently held to be valid by the Fourteenth Court of Appeals in Dixie Pipe Sales, Inc. v. Perry, 834 S.W.2d 491 (Tex.App.-Houston [14th Dist.], 1992, writ denied).
[7] We agree with the Thompsons that attorneys may be subject to liability under the DTPA. See DeBakey v. Staggs, 605 S.W.2d 631, 633 (Tex.Civ. App.-Houston [1st Dist.] 1980), writ ref'd n.r.e., 612 S.W.2d 924 (Tex.1981).
[8] V & E was entitled to move for summary judgment at any time. A "party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any parts thereof." TEX.R.CIV.P. 166a(b) (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609717/ | 11 Wash. App. 844 (1974)
526 P.2d 70
THE STATE OF WASHINGTON, Respondent,
v.
LUTHER LEE GOSBY et al., Appellants.
No. 2281-1.
The Court of Appeals of Washington, Division One.
September 3, 1974.
Durning & Smith and David L. Shorett, for appellants (appointed counsel for appeal).
Christopher T. Bayley, Prosecuting Attorney, and Frederick L. Yeatts, Deputy, for respondent.
JAMES, J.
Luther Lee Gosby and Thomas Eugene Robles appeal from judgment and sentence entered on a jury verdict after both were found guilty of the crime of robbery *845 while armed with a deadly weapon. Gosby's counsel on appeal did not represent him at trial.
The Rainier Beach Tavern was robbed of $230, some wine and some cigarettes on the morning of December 26, 1972. One assailant held the only employee on duty at knife point while the other took money from the cash register. No other persons were present.
The defendants do not dispute the State's evidence concerning the manner in which the robbery was carried out. But they deny that they were the perpetrators. Therefore, the only issue at trial was the identity of the robbers.
Defendants' first claim of error is that the testimony of the only eyewitness to the crime should have been suppressed. The only eyewitness to the crime was the victim. Both defendants contend that in identifying them as her assailants, her credibility was completely destroyed. They point out that she originally made an erroneous identification; she failed to identify one of the defendants in a police lineup shortly after the robbery; she on one occasion stated that she would be unable to identify her assailants; her description of her assailants was imperfect; at trial, she failed to positively identify one of the defendants; she is white and the defendants are Black; and her testimony at a preliminary hearing as to the roles of the assailants varied from her testimony at trial.
[1] The victim's testimony was clearly competent, relevant and material. As with any witness, her credibility was at issue. Under our adversary system, witness credibility is tested by cross-examination and is the subject of fair comment in final argument. State v. Favro, 5 Wash. App. 311, 313, 487 P.2d 261 (1971). The record discloses that trial counsel availed themselves of every opportunity to discredit the witness. But neither reason nor precedent supports defendants' contention that eyewitness identification testimony should be suppressed because credibility is in issue.
Any evidence tending to identify the accused as the guilty person is relevant and competent. It need not be in itself sufficient to support a conviction in order to be admissible; *846 it is enough, if it has a tendency to that effect. Nor need the evidence be so far positive as to leave nothing but the credibility of the witnesses to be considered. Uncertainty in this respect affects only the weight of the evidence, not its admissibility, and certainly it has some bearing on the question whether the accused was guilty of the crime to show that the person committing it was of his general appearance, or to show that a person of his general appearance was seen in the vicinity of the place of the crime immediately prior to its commission.
State v. Spadoni, 137 Wash. 684, 691, 243 P. 854 (1926). See also State v. Gersvold, 66 Wash. 2d 900, 406 P.2d 318 (1965).
[2] Gosby makes the further claim that the case against him should have been dismissed as a matter of law for insufficiency of evidence identifying him as one of the perpetrators of the crime. He points out that, at trial, the victim did not categorically identify him as one of the men who robbed her. She stated only that she was "almost sure" of his identity. She did positively identify Robles.
Gosby's argument ignores the testimony of Gosby's sister and a female friend of both Gosby and his sister which put the defendants in the tavern alone with the victim a brief moment before the robbery occurred. Their testimony was corroborated by other State's witnesses. This evidence, though circumstantial, was sufficient to carry the issue of Gosby's identity to the jury. It could serve no other purpose than to identify him as one of the robbers. The trial judge properly denied Gosby's motion to dismiss.
The defendants' principal claims of error concern the trial judge's instruction on circumstantial evidence. The jury was instructed as follows:
I instruct you that evidence may be of two kinds, direct or circumstantial. Direct evidence relates directly to factual questions and is produced by witnesses testifying from their direct personal observation or other direct sensory perceptions. Circumstantial evidence relates to facts and circumstances from which the jury may infer other or connected facts which usually and reasonably follow according to the common experience of mankind. *847 If circumstantial evidence is considered by you, it should be consistent with guilt and it should be inconsistent with innocence.
If upon consideration of the whole case, you are satisfied beyond a reasonable doubt of the guilt of any defendant, it does not matter whether such certainty has been produced by direct evidence, or by circumstantial evidence, or by both.
Instruction No. 10.
On appeal, defendants contend that the instruction was defective in that it failed to advise the jury that no element of the crime could be established solely by circumstantial evidence unless such evidence was not only consistent with the hypothesis of guilt but was inconsistent with any hypothesis of innocence.
[3] As an abstract proposition, we agree with defendants' contention. If the only proof concerning an essential element of a crime is circumstantial, it cannot constitute proof beyond a reasonable doubt if it is consistent with a reasonable hypothesis of innocence, even though it is also consistent with a hypothesis of guilt.
[4] At trial, however, neither defendant requested that the instruction on circumstantial evidence be focused upon the elements of the crime. We, therefore, may not consider this claim on appeal.
The basis for challenging an instruction which is not urged at the time of trial cannot be considered for the first time on appeal. State v. Harris, 62 Wash. 2d 858, 385 P.2d 18 (1963). New theories presented for the first time on appeal must be disregarded. State v. Lyskoski, 47 Wash. 2d 102, 287 P.2d 114 (1955).
State v. Leevans, 70 Wash. 2d 681, 683, 424 P.2d 1016 (1967). The exception to this principle that where fundamental constitutional rights are denied by the challenged instruction is not applicable. State v. Peterson, 73 Wash. 2d 303, 438 P.2d 183 (1968). In any event, neither in their briefs nor in oral argument did either defendant designate which elements they claim were proved only by circumstantial evidence. As we have pointed out, the only element which was *848 disputed was identity and it was the only element upon which circumstantial evidence had any impact.
The more difficult problem presented concerns the trial judge's refusal of defendant Gosby's request that the jury be instructed:
In order to sustain a conviction on circumstantial evidence alone, however, the circumstances proved by the State must not only be consistent with each other and consistent with the hypothesis that the accused is guilty, but also must be inconsistent with any hypothesis or theory which would establish, or tend to establish, his innocence.
(Italics ours.) in place of the language used in instruction No. 10:
If circumstantial evidence is considered by you, it should be consistent with guilt and it should be inconsistent with innocence.
(Italics ours.)
[5] Again, as an abstract proposition, we agree that, in a proper case, the jury should be instructed that guilt (or more properly, each necessary element of a crime) may not be established by circumstantial evidence alone unless the circumstantial evidence is inconsistent with any reasonable hypothesis of innocence.[1] But defendants' proposed instruction was not couched in terms of reasonable hypotheses of innocence. It is not error to refuse an improper instruction. State v. Chambers, 81 Wash. 2d 929, 933, 506 P.2d 311 (1973); State v. Wilson, 26 Wash. 2d 468, 482, 174 P.2d 553 (1946). And, as above discussed, the trial court could properly have determined as a matter of law that the circumstantial evidence concerning identity, the only contested issue, was not consistent with any reasonable hypothesis of innocence. Therefore, the refusal of Gosby's proposed instruction did *849 not constitute prejudicial error.[2]State v. Grant, 9 Wash. App. 260, 511 P.2d 1013 (1973).
[6] Finally, the defendants contend that the trial judge erred in denying them separate trials. The denial or granting of a motion for separate trials for two or more defendants jointly charged is a matter within the sound discretion of the trial judge and will not be disturbed unless there is a manifest abuse of discretion. RCW 10.46.100; State v. Parker, 74 Wash. 2d 269, 444 P.2d 796 (1968); State v. Aiken, 72 Wash. 2d 306, 434 P.2d 10 (1967); State v. Courville, 63 Wash. 2d 498, 387 P.2d 938 (1963); State v. Baker, 150 Wash. 82, 272 P. 80 (1928). We find no abuse of discretion.
Affirmed.
FARRIS and CALLOW, JJ., concur.
Petition for rehearing denied October 15, 1974.
Review granted by Supreme Court January 27, 1975.
NOTES
[1] In an untimely offer, defendant Robles proposed an instruction on circumstantial evidence which was defective in that it did not instruct concerning the establishment of guilt by circumstantial evidence alone.
[2] In refusing Gosby's proposed instruction, the trial judge said:
[Gosby's proposed instruction] does not apply to this type of a case. This is the kind of a circumstantial evidence instruction which you must give to the jury where the State's whole case rests upon circumstantial evidence and there is no direct evidence. It is improper to give this instruction when there is some direct evidence as well as some circumstantial evidence.
In so stating, the trial judge may have been influenced by language in our statement in State v. Nabors, 8 Wash. App. 199, 203, 505 P.2d 162 (1973) that:
In a case with both direct and circumstantial evidence, the jury should not be instructed concerning a conviction based upon circumstantial evidence alone. Such a statement can serve only to confuse jurors.
(Italics in original.)
Upon reflection, we feel that the statement, though appropriate to the facts of the case, was uncritically broad. It is conceivable that, in an appropriate case, the jury might be disposed to entirely disregard the direct evidence concerning an element of the crime charged. In such event, the jury would then be required to determine whether the State had met its burden of proof by circumstantial evidence. In such a case, a jury should be instructed that the circumstantial evidence in proof of the element must be inconsistent with any reasonable hypothesis of innocence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2589446/ | 97 P.3d 1252 (2004)
195 Or. App. 282
Robert G. CONEY, Appellant,
v.
Cynthia FAGAN and Landa S Inc., Defendants, and
Firco Healthcare, Inc., an Oregon corporation, dba Firwood Gardens Retirement Home, Respondent.
0010-10497; A116943.
Court of Appeals of Oregon.
Argued and Submitted December 2, 2003.
Decided September 15, 2004.
*1253 Donald B. Potter, Portland, argued the cause and filed the briefs for appellant.
Jeffrey Spere, Portland, argued the cause for respondent. With him on the brief were Frances Baker and Sussman Shank LLP.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
ARMSTRONG, J.
Plaintiff brought claims for defamation and intentional interference with economic relations against Firco Healthcare, Inc. (Firco), and its employee Fagan. Firco moved for summary judgment on plaintiff's claims, which the trial court granted. Plaintiff appeals from an ensuing judgment that dismissed his claims against Firco. He argues that the record shows that there are genuine issues of material fact about whether Fagan made a defamatory statement, whether Firco is vicariously liable for that statement, and whether the statement caused his employer, Landa S, Inc. (Landa), to terminate his employment. We reverse and remand.
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On review of the grant of summary judgment, we state the facts and all reasonable inferences that may be drawn from them in favor of the nonmoving party in this case, plaintiff. ORCP 47 C; Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001).
Firco owns Firwood Garden Retirement Home (Firwood), which is located in Portland. Landa is located in Camas, Washington. Landa rents, manufactures, and sells pressure-washing machines. The corporations are linked by a child's death. Farias, a Firwood employee, had a two-and-a-half-year-old child who died from injuries that he suffered after he ran in front of a moving vehicle. Patterson, an employee at Firwood, started a collection from Firwood employees and residents to help Farias pay associated medical bills.
Patterson also contacted her friend, plaintiff, and asked if he would start a similar collection at Landa. Plaintiff did so, and Landa agreed to match the contributions made by Landa employees. Sometime after the collection of funds began at both Firwood and Landa, Patterson approached defendant Fagan and asked her to open a bank account for Farias and to deposit funds into the account as they were received. At the time, Fagan was the administrator of Firwood. Fagan agreed to open the account and did so.
After Fagan established the account, Farias attempted to withdraw funds from it. Because Fagan had not given Farias signature authority on the account, the bank did not allow Farias to make withdrawals. Patterson learned of Farias's unsuccessful attempt and subsequently accused Fagan of mismanaging the account. Patterson repeatedly called Fagan to discuss the account. After several conversations, Patterson told Fagan that, unless she turned over the records of the account to Landa, Landa would pursue legal action against Fagan. The bank also *1254 called Fagan and told her that someone had called the bank to complain that Fagan was stealing money from the account.
Fagan drove to Landa to discuss Patterson's allegations with Landa management. When she arrived, she identified herself as Firwood's administrator. Fagan spoke with Sanford, a member of Landa's management. Sanford told Fagan that Landa had never considered taking legal action against Fagan. Sanford also told Fagan that a Landa employee, Calhoun, had complained about Fagan's handling of the account and that Sanford had told Calhoun that he should call the bank if he was concerned about how Fagan was handling the fund. Calhoun was plaintiff's supervisor at Landa. Plaintiff alleges that, during Fagan's conversation with Landa management, Fagan said that she had seen Patterson, Calhoun, and plaintiff ingesting cocaine at Firwood. At the time of the alleged statement, Fagan knew that plaintiff worked at Landa and that plaintiff was Patterson's best friend.
After Fagan's conversation with Sanford, Landa terminated plaintiff's employment. Plaintiff alleges that he was terminated because of the statement that Fagan made to Sanford about plaintiff's use of cocaine. Fagan and Sanford denied that Fagan made the statement. However, Fagan's sister, Baker, said that Fagan told her that she had made such a statement to Sanford.
After he was terminated, plaintiff brought this action against Fagan and Firco, alleging claims of defamation per se and intentional interference with economic relations. Firco moved for summary judgment on plaintiff's claims. Firco's motion was based on two arguments: first, that there was no issue of material fact about whether a defamatory statement was made; and, second, that even if Fagan made a defamatory statement, there was no issue of material fact about whether Firco could be vicariously liable to plaintiff for the statement. The trial court granted Firco's motion. Plaintiff appeals the judgment dismissing his claims against Firco.
Plaintiff first argues that Baker's affidavit creates an issue of fact about whether Fagan made a defamatory statement to Sanford about plaintiff's alleged use of cocaine. Baker testified:
"Fagan told me that she had caught Dora Patterson, [plaintiff] and Cal Calhoun doing cocaine in the maintenance room at Firwood Gardens and that she had to fire Dora from Firwood because of it.
"[Fagan] also told me at that time that she had to go over to Landa, where [plaintiff] and Cal Calhoun worked, and tell Gary Sanford of Landa that she had caught [plaintiff] and Calhoun doing cocaine in the maintenance room at Firwood."
We agree that Baker's testimony creates a factual issue about whether Fagan made the allegedly defamatory statement because Baker's testimony would allow a reasonable jury to find that Fagan had made the disputed statement. The trial court therefore erred in concluding that there was no factual issue about whether the allegedly defamatory statement was made.
We turn to plaintiff's argument that there were factual issues about whether Firco was vicariously liable for the allegedly defamatory statement. "Under the doctrine of respondeat superior, an employer is liable for an employee's torts when the employee acts within the scope of employment." Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988) (citation omitted). To establish that an employee's act was within the employee's scope of employment, a party must satisfy three requirements:
"(1) the conduct must have occurred substantially within the time and space limits authorized by the employment; (2) the employee must have been motivated, at least partially, by a purpose to serve the employer; and (3) the act must have been of a kind that the employee was hired to perform."
Lourim v. Swensen, 328 Or. 380, 385, 977 P.2d 1157 (1999).
If we determine that there is a factual issue about whether an employee was acting within the time and space limits authorized by the employment, we then consider the second and third elements to determine whether there is an issue about whether the *1255 allegedly tortious conduct by the employee "was sufficiently connected to the employer's purpose to support the employer's vicarious liability." Minnis v. Oregon Mutual Ins. Co., 334 Or. 191, 206, 48 P.3d 137 (2002).
Plaintiff argues that Fagan was acting within the time and space limits authorized by her employment when she made the allegedly defamatory statement. The parties agree that Fagan's general work hours were from 8:30 a.m. to 5:00 p.m., five days per week and that, unless she was on vacation, Fagan was on call when she was not working. The record also shows that Firwood had a written job description for Fagan's position of administrator. The job description states that the administrator has "full responsibility for [the] overall management and control of the facility and residents." The description also makes the administrator responsible for "[p]romot[ing] and maintain[ing] good personal relations[hips] with residents, families, community and employees." The description also requires the administrator to "[p]resent a positive and professional image to staff, residents, families and community through appropriate actions and dress."
In light of those provisions, a reasonable jury could find that, as the administrator of Firwood, Fagan had the authority to leave Firwood and speak with other people in order to maintain her personal relationships with, or to ensure that she was viewed in a positive light by, Firwood residents, families, staff, and community members. A reasonable jury could also find that Fagan went to Landa for those reasons and that her conduct therefore fell within the time and space limits authorized by her employment. Thus, evidence in the record creates a factual issue about whether Fagan's conversation with Sanford was within the time and space limits authorized by her employment.
We next consider whether plaintiff has created a factual issue on the second and third requirements of the Chesterman test for vicarious liability. Plaintiff argues that he has "presented more than ample evidence from which a jury could find that Fagan's communication with Landa, during which she defamed plaintiff, was the kind of act she was hired to perform or that it resulted from, or was an outgrowth of, her duties with Firwood Gardens." Firco responds that "the fact that Fagan's employment may have arguably given her the time and place to speak to [plaintiff's] employers does not mean that her employer was liable for defamatory statements she may have made during that opportunity."
With regard to the second requirement that Fagan's allegedly tortious act be motivated by a desire to serve Firco Firco argues that this case is controlled by Vinsonhaler v. Quantum Residential Corp., 189 Or.App. 1, 73 P.3d 930 (2003), and Miller v. Salem Merchant Patrol, Inc., 165 Or.App. 266, 995 P.2d 1206 (2000). Firco is wrong. Those cases are distinguishable because in both cases the plaintiff failed to present any evidence that the employee's act was motivated by a desire to serve the employer.
Here, the evidence shows that Firwood residents and employees, and Landa and its employees, all contributed to the Farias fund. The record also shows that, at various times, Fagan understood that Landa and its employee, Calhoun, were concerned about her management of the fund and that Landa might be considering legal action based on that concern. The record shows that Fagan knew of the friendship between plaintiff and Patterson and that plaintiff was collecting money for the Farias fund at Landa. The jury could infer from the record that Fagan believed that plaintiff, in addition to Calhoun and Patterson, was behind the accusations that Fagan was mismanaging the account and that Fagan made the allegedly defamatory statement in an effort to discredit her accusers.
As noted earlier, Fagan, as administrator of Firwood, was required to maintain her personal relationships with, and ensure that she was viewed in a positive light by, Firwood residents, families, staff, and community members. A reasonable jury could therefore find that Fagan made the statement in order to do things that she was expected to do as a part of her work as administrator of Firwood: maintain her personal reputation with Firwood residents, families, staff, and community members and also ensure that she and Firco were viewed in a positive light by that group. The regard in which Fagan *1256 was held by that group certainly would have been diminished if the people in the group believed that Fagan was stealing from a charitable account established for a Firwood employee. If Fagan successfully discredited her accusers, then she could minimize the damage that the accusations of mismanagement had done to her personal reputation and the way that she was viewed by the relevant group. A reasonable jury could therefore find that Fagan was motivated to make the allegedly defamatory statement at least in part by a desire to serve Firco.
A reasonable jury could also find, based on the record, that plaintiff satisfied the third requirement for establishing Firco's liability that the act was of the kind that Fagan was hired to perform. Although Fagan was not authorized to make defamatory statements as part of her employment, she was expected to make statements designed to promote her personal relationships with Firco residents, employees, families, and community members and also to ensure that those people regarded her in a positive way. "[W]hen an employee does in the course of his employment a duty in an improper manner, his employer is liable for any consequent injury, even [if] the employee disobeyed [the employer's] orders." Newkirk v. Oregon-Wash. R.R. & Nav. Co., 128 Or. 28, 38, 273 P. 707 (1929). A jury could find that the allegedly defamatory statement was tied to Fagan's job duties and was an act "of the general kind" that she was expected to perform when she was hired as administrator. The trial court therefore erred in granting summary judgment to Firco on the ground that there was no factual issue about whether Firco could be liable for Fagan's statement.
We turn, finally, to plaintiff's contention that the trial court erred in granting summary judgment to Firco on plaintiff's claim of intentional interference with economic relations because the record establishes a factual issue about whether Landa fired plaintiff because of Fagan's allegedly defamatory statement about him. Firco argued to the trial court, and reiterates on appeal, that it was entitled to summary judgment on plaintiff's claim of intentional interference with economic relations because plaintiff did not create a factual issue about whether Fagan had made the allegedly defamatory statement. That is one of the arguments that Firco made on the defamation claim, and we have already rejected it. On appeal, Firco argues for the first time that the trial court's decision was proper because, even if the statement was made, there is no factual issue about whether the statement caused Landa to terminate plaintiff's employment. We do not consider Firco's alternative argument because it was not raised in the trial court; if it had been, plaintiff could have developed a different record. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 660, 20 P.3d 180 (2001).
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900948/ | Criminal Case Template
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DAVID A. CARRASCO,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
§
§
§
§
§
No. 08-02-00399-CR
Appeal from the
244th District Court
of Ector County, Texas
(TC# C-28,995)
MEMORANDUM OPINION
On October 1, 2001, David A. Carrasco pleaded guilty and was convicted of
possession of a controlled substance. Imposition of the sentence was suspended, and he
was placed on community supervision for two years. The trial court modified the terms
of community supervision on January 23, 2002, and September 3, 2002. On September 5,
2002, Carrasco filed a notice of appeal from the September 3, 2002 modification order.
On January 13, 2003, we notified the parties of our intent to dismiss the appeal for want
of jurisdiction unless any party could show grounds for continuing the appeal. The
parties had ten days to respond to our notice. No response has been filed.
An order modifying the terms of community supervision is not subject to a direct
appeal. See Tex. Code Crim. Proc. Ann. art. 42.12, §§ 22, 23(b) (Vernon Supp. 2003);
Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Elizondo v. State, 966
S.W.2d 671, 672 (Tex. App.--San Antonio 1998, no pet.). Redress for an error in the
modification of community supervision is appropriate only through a writ of habeas
corpus returnable to the Texas Court of Criminal Appeals. Basaldua, 558 S.W.2d at 5;
Elizondo, 966 S.W.2d at 672. Accordingly, we do not have jurisdiction over Carrasco's
attempted appeal from the order modifying the terms of community supervision.
The appeal is dismissed for lack of jurisdiction.
SUSAN LARSEN, Justice
February 13, 2003
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/3096658/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00566-CR
Cedric Lamier Higgs § From the 432nd District Court
§ of Tarrant County (1274907D)
v. § November 27, 2013
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2363789/ | 169 N.J. Super. 280 (1979)
404 A.2d 1182
JACOB ROTH, T/A HIGHWAY CHECK CASHING SERVICE, PLAINTIFF-APPELLANT,
v.
FIRST NATIONAL STATE BANK OF NEW JERSEY, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued May 21, 1979.
Decided June 20, 1979.
*282 Before Judges CONFORD, PRESSLER and KING.
Mr. Ernest Prupis argued the cause for appellant (Messrs. Weltchek, Prupis & Ritz, attorneys).
Mr. Alan D. Wiener argued the cause for respondent (Messrs. Raff and Schneider, attorneys).
The opinion of the court was delivered by CONFORD, P.J.A.D. (retired and temporarily assigned on recall).
Plaintiff, a depositor in defendant bank, sued the bank for loss of a large sum of cash just withdrawn by him, as the result of his being robbed as he left the bank. The culprits were tipped off as to the robbery opportunity by a friendly teller at the bank who was aware of plaintiff's daily morning habit of withdrawing substantial cash for use in his check-cashing business. The trial judge, sitting without a jury, found for defendant as of the end of the plaintiff's case as well as at the end of the entire case,[1] on the ground *283 that the teller's action was not in the course of her employment. The judge also rejected an alternative contention by plaintiff that defendant breached a voluntarily undertaken duty of escorting plaintiff from the bank door to his car.
The parties do not disagree as to the facts, set forth hereinafter, which are consistent with the findings of operative fact made by the trial judge.
Plaintiff Jacob Roth had a check cashing business in South Kearney. At the end of each day he took all of the checks which had been brought to him for cashing and wrote out a check of his own for the amount of money he wanted to cash the next morning for use in his business. The following morning he would go to the bank at about 8:45 to deposit the checks he had taken in and to cash the check he had written on his own account.
Plaintiff followed his usual practice on the morning of July 24, 1974. He arrived at the bank at about 8:45, and a guard at the door, as usual, accepted the checks and gave them to a teller. The check he had written that morning was for $72,000. Plaintiff then went to a luncheonette to wait until the bank opened. He returned to the bank at 9 A.M., went to the head teller, and received a brown paper package from her. He proceeded to the door, and someone grabbed him from behind and held a knife to his throat. Another man grabbed the package and the two men escaped.
The police eventually arrested certain people and recovered a little over $15,000 in cash. Thus plaintiff lost $56,908, for the recovery of which this action was instituted.
Plaintiff had been cashing his checks at this branch of the bank for about 14 years and he went there at least once every weekday. For some time the regular bank guard, Willie, had always escorted plaintiff to his car with his gun drawn. But he had been out sick for several weeks. There was another guard, but he never walked plaintiff to the car. Plaintiff acknowledged that he never asked that guard to do that and never complained to the bank about the unavailability of a guard.
*284 Long before the robbery, plaintiff had arranged to have a police escort. A police officer would meet him either at the bank or at a designated point about a mile away from the bank and would follow him to his place of business with a radio car. That arrangement had gone on for a number of years, and an officer had met Roth practically every day. On the day of the robbery, however, Roth did not wait for the officer.
An individual named Morse had a "girlfriend," one Connie Walker, who worked at the bank as a teller. She told him about plaintiff's custom of withdrawing large sums of cash from the bank on a regular basis. She described plaintiff and his car to Morse, and Morse subsequently made a confirmatory observation of plaintiff leaving the bank. Morse and Walker "jokingly" discussed how "it would be nice to have that sort of money." In June or July 1974 Morse transmitted the information about plaintiff to one Lambert who, along with two confederates, committed the robbery on July 24, 1974.
There is no evidence that Walker as teller handled plaintiff's withdrawal transactions, either generally or on the occasion in question.
I
Plaintiff's basic claim is that defendant bank owed him a duty of confidentiality as to his activity as a depositor and that it violated that duty through the conduct of its employee, the teller Walker, described above. The trial judge found that Walker's disclosure to Morse was a proximate cause of plaintiff's loss, albeit he did not conclude for liability of defendant.
It must be conceded that there is a generally recognized obligation of confidentiality in respect of a depositor's financial relationship with a bank. 10 Am. Jur.2d, Banks, § 332 at 295; 5A Michie, Banks and Banking, (1973) c. 9, § 1 at 18 (1973) ("Deposits"); Peterson v. Idaho First Nat'l *285 Bank, 83 Idaho 578, 367 P.2d 284 (Sup. Ct. 1961); cf. Commercial Union Ins. Co. v. Burt-Thomas-Aitken Constr. Co., 49 N.J. 389 (1967). If Walker's conduct could be regarded as within the scope of her employment, there might well be a case of liability. But a thorough consideration of the law, in the light of the facts at hand, satisfies us that Walker's act was not within the scope of her employment.
The term "scope of employment," for present purposes, is an elastic one, and none of the commonly found definitions thereof can be relied upon with assurance either for negative or affirmative absolute criteria of liability. As perceptively stated by Prosser:
But his [employer's] vicarious liability, for conduct which is in no way his own, extends to any and all tortious conduct of the servant which is within the "scope of the employment." This highly indefinite phrase, which sometimes is varied with "in the course of the employment," is so devoid of meaning in itself that its very vagueness has been of value in permitting a desirable degree of flexibility in decisions. It is obviously no more than a bare formula to cover the unordered and unauthorized acts of the servant for which it is found to be expedient to charge the master with liability, as well as to exclude other acts for which it is not. It refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment. [Prosser, Law of Torts, at 460-461 (1971)]
Our Supreme Court has referred to 1 Restatement, Agency 2d, § 228 at 504 (1958), as summarizing the conventional rule to the following effect:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
*286 (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
See Commercial Union Ins. Co. v. Burt-Thomas-Aitken Constr. Co., supra, 49 N.J. at 392, n. 1.
See also, McAndrew v. Mularchuk, 33 N.J. 172, 190 (1960); Snell v. Murray, 117 N.J. Super. 268, 273 (Law Div. 1971), aff'd 121 N.J. Super. 215, 216 (App. Div. 1972); Gindin v. Baron, 11 N.J. Super. 215 (App. Div. 1951.) Ordinarily, if the employee deviates from the business of his employer and, while in the pursuit of his own ends, commits a tort, the employer is not liable. However, an act may be within the scope of employment although consciously criminal or tortious, 1 Restatement, Agency 2d, § 231 at 512, as where done for the master's purposes or reasonably expectable by the latter. See Gindin v. Baron, supra. A catalogue of pertinent factors is listed in 1 Restatement, Agency 2d, § 229 at 506.
A special situation of liability on respondeat superior principles for outrageously criminal conduct not serving the employer's purposes is found in the cases, relied upon by plaintiff, imposing liability on a sleeping car company for sexual assault by a porter on a passenger. See Berger v. Southern Pacific Co., 144 Cal. App.2d 1, 300 P.2d 170 (D. Ct. App. 1956); Annotation, 60 A.L.R.2d 1115 (1958). There liability is said to be based on such a company's special duty of exercising a high degree of care for the safety and comfort of its passengers and the fact that fulfillment of that duty is committed to the tortfeasor porter. See Berger v. Southern Pacific Co., supra, 300 P.2d at 173. The principle has, however, in some cases been extended to any employee of the company whose duties relate to the car in which the passenger is travelling. Annotation, 60 A.L.R.2d, at 1116-1117. Some elements of the just stated rule have been held applicable to hold an employer where an employee assaults a business invitee, without regard to the *287 relevance of the assault to the service of the master's purposes or needs. See Annotation, 34 A.L.R.2d 372, 378-379 (1954).
A fair consideration of the rationale of the scope-of-employment principle will not accommodate defendant's liability here. Not only was the employee's act outrageously criminal, and not in any sense in the service of the employer's interests, but she had no apparent connection with the effectuation of the transactions by which plaintiff made his withdrawals of cash. Walker's knowledge was seemingly a mere matter of observation on her part. Finally, the tort itself, the "tip" to Morse, was not shown to have occurred within the time-space ambit of the employment. See 1 Restatement, Agency 2d, § 229 (2) (b). In short, to use the language of Prosser, the "unordered and unauthorized acts" of the servant in this case are not such that it should be found, as between the plaintiff and the defendant, "expedient [as a matter of justice] to charge the master" with liability therefor. Prosser, Law of Torts, at 460.
Plaintiff presses for a favorable result by invoking the contractual relationship between the bank and him and urging he has sustained a breach of contract. This approach does not advance his cause. In this factual context, it is still necessary for him to demonstrate that the act of the employee was authorized. Here it certainly was not.
II
Plaintiff concedes that defendant generally had no duty to protect its customers once they left the premises. Nevertheless, he says that defendant had regularly supplied such protection for him and that when the replacement guard failed to escort him to his car there was a breach of a duty voluntarily assumed by defendant for which he should have redress in damages. The judge held that the bank had at one time assumed such a duty but that at the time of the robbery that assumption had ceased and hence there was no duty to be breached.
*288 Clearly the judge was right. Whatever duty the bank had assumed voluntarily it had abandoned long before the robbery occurred. Plaintiff acknowledged that the former guard, Willie, had been gone for at least two weeks, and defendant's witness said that he had been gone two months. Plaintiff knew that the new guard did not provide protection beyond the doors of the bank. Yet he never asked for protection and never complained that the protection Willie had provided had been withdrawn. He knew that a Newark police officer was generally available to escort him and had been available for several years. Still he did not wait for that officer on the morning he was robbed.
There is thus sufficient evidence to support the trial judge's conclusion that at the time of this robbery the bank was under no voluntary duty to protect plaintiff. There is no cause of action on this theory.
Judgment affirmed; no costs.
NOTES
[1] The judge deferred action on defendant's motion for dismissal at the end of plaintiff's case and received evidence on behalf of defendant before ruling. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2592694/ | 722 F.Supp. 766 (1989)
NATIONAL TREASURY EMPLOYEES UNION, Plaintiff,
v.
James D. WATKINS, Secretary of Energy, Defendant.
Civ. A. No. 89-1006.
United States District Court, District of Columbia.
June 16, 1989.
*767 Elaine Kaplan, Gregory O'Duden, Clinton D. Wolcott, Nat. Treasury Employees Union, Washington, D.C., for plaintiff.
Mary Goetten, U.S. Dept. of Justice, Washington, D.C., for defendant.
MEMORANDUM OPINION
JOHN H. PRATT, District Judge.
Plaintiff, the National Treasury Employees Union (NTEU), brings this action challenging the legality of the Department of Energy's (DOE) "Drug-Free Federal Work Place Testing Implementation Program" (DOE Program), which authorizes the random urinalysis drug testing of certain DOE employees the agency has designated as holding "sensitive" positions and "reasonable suspicion" urinalysis testing of all DOE employees. Plaintiff has moved for a preliminary injunction enjoining the implementation of the program on its members pending a decision on the merits. Plaintiff argues that the proposed testing is an unconstitutional infringement of the Fourth Amendment rights of NTEU members. The issues have been extensively briefed and a hearing on the motion was held on June 13, 1989.
I. Background
NTEU is a federal sector labor union that represents 2,200 DOE Headquarters employees. All DOE employees in NTEU's bargaining unit have been notified that they will be subject to reasonable suspicion urinalysis testing. Additionally, DOE has notified 31 NTEU member employees that they will be subject to random testing. NTEU seeks preliminary relief only as to 24 of its members[1] who are designated for immediate random testing and all of its members who are subject to reasonable suspicion testing.
The DOE Program was instituted pursuant to Executive Order 12,654, 51 Fed.Reg. 32,889 (1986), which requires all executive agency heads to create and implement plans to achieve a drug-free workplace, including plans to institute random, reasonable suspicion and post-accident urinalysis drug testing of employees. On July 29, 1988, DOE issued regulations describing its program to implement the Executive Order. DOE Order 3792.3. On June 13, 1989, DOE issued a detailed "Drug Free Federal Work Place Plan" (DOE Plan), which explains how the regulations would be implemented, along with a general notice to all of its employees that drug testing would begin after 60 days. Due to the pendency of this action, the government has agreed to delay testing until June 19, 1989.
Random testing
The DOE Order sets out five categories of "sensitive positions" which may be subject to random testing. DOE Order § I(2).[2] A total of 1,150 out of 16,000 DOE employees nationwide, approximately 7% of the DOE workforce, were designated to hold sensitive positions for which random testing is required. Defendant's Memorandum, Exhibit A, Declaration of J. Merle *768 Schulman ¶ 19. Employees selected for random testing will generally receive notice within 2 hours of the scheduled test. DOE Order § II(5)(a).
As stated previously, NTEU seeks preliminary relief against random testing only as to 24 DOE employees. Of these, 18 hold positions as motor vehicle operators and drive cars or vans to transport documents and passengers throughout the Washington metropolitan area. Three of the motor vehicle operators are required to maintain a Level 2 security clearance (a clearance for access to "top secret" information) and carry firearms to protect the documents they transport. The remaining 15 motor vehicle operators are required to maintain a Level 3 security clearance ("secret" information) and do not carry firearms. The remaining six employees of concern to us here are Computer and Communications Specialists or Assistants. These employees operate secured computerized voice and facsimile communications equipment for DOE, transmitting both sensitive and non-sensitive information through appropriate agency channels. The Communications Specialists have a DOE Q/Secured Compartmentalized Information (SCI) security clearance and are required to submit to a background investigation before working in the secured Communications Center.
Reasonable Suspicion Testing
The DOE Program also provides for "reasonable suspicion" testing of any employee, regardless of the sensitivity of his or her position and regardless of whether the suspected drug use occurred during work hours. See DOE Order § 4(f). Supervisors are to initiate the reasonable suspicion testing based upon, among other things:
(1) observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug; (2) a pattern of abnormal conduct or erratic behavior; (3) arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug use, possession or trafficking; (4) information provided either by reliable and credible sources or independently corroborated; or (5) newly discovered evidence that an employee has tampered with a previous drug test.
Id.
Testing Procedures
Consistent with the Executive Order and regulations, the DOE Order describes the procedures the agency will use to collect an employee's urine and mandates discipline for employees who do not cooperate. DOE Order § II(6).[3] Employees who test positive are given an opportunity to present evidence of legitimate drug use to a Medical Review Officer, who may cancel a positive test result. Id. § III(2). Employees who are found to have a verified positive test result must be disciplined; first offenders are generally required to either undergo rehabilitation or be dismissed from employment. Id. § III(3), (5). An employee who tests positive must also be removed from a sensitive position pending rehabilitation. A second verified positive test results in automatic dismissal. Id.
*769 II. Discussion
The traditional standards governing the issuance of a preliminary injunction require us to consider: (1) the likelihood that plaintiff will succeed on the merits; (2) the threat of irreparable harm to the plaintiff if the injunction is not granted; (3) the possibility that the defendant and others will suffer substantial harm in the event that injunctive relief is granted; and (4) the interest of the public. Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977); see also Population Institute v. McPherson, 797 F.2d 1062, 1078 (D.C.Cir.1986).
An extended review of these issues is not required in view of the fact that several other members of this court, Judges Oberdorfer,[4] Greene,[5] Flannery,[6] Revercomb,[7] Hogan,[8] and Gesell,[9] have been presented with the same problem. In the majority of these cases, the court has enjoined the random testing provisions of the drug-testing plans at issue. Hartness v. Bush, 712 F.Supp. 986 (D.D.C.1989)[10]; Bangert v. Hodel, 705 F.Supp. 643 (D.D.C.1989); National Treasury Employees Union v. Lyng, 706 F.Supp. 934 (D.D.C.1988); Harmon v. Meese, 690 F.Supp. 65 (D.D.C.1988), appeal pending, No. 88-427 (D.C.Cir.); National Federation of Federal Employees v. Carlucci, 680 F.Supp. 416 (D.D.C. 1988), appeal pending, No. 88-5080 (D.C. Cir.). In each case in which the issue was raised (Hartness, Lyng and Bangert), the court narrowed the reasonable suspicion testing programs.
The Supreme Court has recently issued two decisions that offer us some guidance. Skinner v. Railway Labor Executives' Association, ___ U.S. ___, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding post-accident testing of railroad employees); National Treasury Employees Union v. Von Raab, ___ U.S. ___, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (upholding one-time testing during medical examination of employees who apply for promotion to positions of the Customs Service that directly involve drug interdiction or require firearms). Neither deals directly with the issue of random drug testing. However, both tend to confirm the analysis employed by the district courts in this Circuit in earlier cases, focusing on the nature of the governmental interests to be protected as balanced against the nature of the privacy interests at stake. Specifically, the cases direct us to consider the extent of the privacy invasion, including the circumstances which enhance or reduce the employees' legitimate expectation of privacy, and any "special governmental needs" which may make the testing necessary. Von Raab, 109 S.Ct. at 1390.
In the present case, the government, in support of random testing, cites its interest in safety considerations attendant to the operators of motor vehicles or employees who carry firearms and its interest in the integrity of employees who have access to sensitive or classified information.
We believe that the safety risks involved with the motor vehicle operators carrying-out their duties are no greater than the normal risks associated with vehicle use by the general public. See NTEU v. Lyng, 706 F.Supp. at 947. The fact that three of the motor vehicle operators are required to *770 carry firearms is not dispositive. Numerous courts have rejected random or compulsory testing of employees who carry firearms as part of their appointed duties. See Bangert, 705 F.Supp. 643, 648 & n. 17. But see Hartness, 712 F.Supp. at 992-93. These drivers, unlike the employees in Von Raab, are not law enforcement officers with on-going contact with the public, engaged in the dangerous task of tracking criminals. Rather, they are engaged in the task of document transportation. The likelihood of the drivers ever needing to use their guns appears, on the record before us, extremely remote.
DOE also argues that the motor vehicle operators and computer and communication specialists and assistants have a diminished expectation of privacy by virtue of possessing security clearances. This claim, which requires speculation on our part, is not persuasive. We believe the fact that the employees at issue here hold security clearances tends more to reflect an expectation of decreased privacy in the screening process that such an investigation entails than an expectation resulting from an ongoing, surprise surveillance that the proposed random testing would entail. See Von Raab, 109 S.Ct. at 1397 (likening urine testing to the screening involved in background investigations and medical investigations). Although the employees at issue have administrative contact with sensitive documents either transporting them in the case of the drivers, or transmitting them in the case of the computer and communications specialists and assistants the employees, thus far, have never been subjected to ongoing security checks or strict job controls once their security clearance has been determined. They are not required to routinely disclose information concerning their medical or financial circumstances and are not required to undergo routine physical examinations for work.
Moreover, the government's interest in randomly testing these employees is sharply undercut by the complete absence of any history of drug-related accidents, safety violations or a single incident of blackmail or bribery involving employees in these positions.[11] Although the lack of evidence pointing to widespread drug use is not conclusive and, of course, not itself fatal to a drug-testing program, especially where extraordinary safety and national security hazards are present, Von Raab, 109 S.Ct. at 1395, it nevertheless appears to be a factor to consider when reviewing "all the circumstances surrounding the search." Skinner, 109 S.Ct. at 1414, quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985); see also Hartness, 712 F.Supp. at 991 (noting that "while Skinner and Von Raab abandoned any requirement for particularized, individualized suspicion as a predicate for random testing, the fact bound opinions require substantial generalized suspicion").
Defendant has not demonstrated that these employees pose the imminent risk of "disastrous consequences" that supported the government's interest in Skinner and Von Raab. Cf. Skinner, 109 S.Ct. at 1407-8; Von Raab, 109 S.Ct. at 1392.
The government would be on surer footing in the factual setting of a one-time post-accident testing or a one-time scheduled testing as a prerequisite for promotion, as were at issue in Skinner and Von Raab. The situation is quite different here. The proposed random testing requires employees to expose themselves to an invasion of personal privacy on a recurring and surprise basis during the ordinary workday. This is more than even a nonsensitive *771 person should be required to undergo.
While the issue is not completely free from doubt, the court finds that there is a substantial likelihood that plaintiff will prevail on the merits of its challenge to the constitutionality of DOE's proposed random urinalysis testing. Defendant has failed to justify the reasonableness of the search at issue. Without the requested relief, these employees must either submit to an unconstitutional search or risk dismissal. DOE will not suffer any substantial harm from a preliminary injunction barring the random urine testing of these employees. We find that the public interest also will be well served by maintaining the status quo, particularly in view of the random testing cases pending before the D.C. Circuit.
With regard to reasonable suspicion testing, the issue is clearer. Other judges in this Circuit who have addressed the issue have permitted such testing to go forward provided that there is a reasonable, articulable and individualized suspicion that a specific employee may be under the influence of drugs while on duty.[12] We too agree and shall uphold reasonable suspicion testing provided that DOE adheres to the additional safeguard that such testing shall be based on reasonable, articulable and individualized suspicion that a specific employee may be under the influence of drugs while on duty.
An order consistent with the forgoing has been entered this day.
ORDER
Upon consideration of plaintiff's motion for a preliminary injunction, defendant's opposition thereto, and the entire record herein, and for the reasons set forth in the accompanying memorandum opinion, it is by the Court this 16th day of June, 1989
ORDERED that plaintiff's motion for a preliminary injunction is granted in part and denied in part; and it is
ORDERED that, pending a decision on the merits, defendant is enjoined from conducting proposed random urinalysis testing of plaintiff's members who hold positions as motor vehicle operators or computer and communications specialists or assistants; and it is
FURTHER ORDERED that plaintiff's motion for a preliminary injunction enjoining defendant from conducting proposed "reasonable suspicion" drug testing is denied, provided that such testing of NTEU members represented in this case is based upon reasonable, articulable and individualized suspicion that a specific employee may be under the influence of drugs while on duty.
NOTES
[1] NTEU seeks preliminary relief against random testing for 18 of its members who hold the position of Motor Vehicle Operator and 6 of its members who hold the positions of Computer and Communications Specialists or Assistants.
[2] The categories include employees with access to sensitive information, presidential appointees, law enforcement officers, employees whose duties involve law enforcement or the national security, positions determined to involve the protection of life or property, positions involved in public health or safety, and positions which involve a high degree of trust. Id.
[3] An employee selected for random testing is, upon notice, directed to report to a designated private site or restroom. Upon arrival at the collection site, an employee is required to provide identification and surrender unnecessary outer garments and personal possessions, which could conceal substances that could be used to adulterate the urine specimen. The employee is generally permitted to provide the specimen in the privacy of a stall or behind a partition, while a "collection site person" or monitor of the same sex as the employee remains on the site. The monitor is to note any unusual behavior of the employee while the sample is being collected in a permanent record book. If the amount of urine collected is not sufficient (at least 60 milliliters), the employee may be detained and required to drink additional liquids until an adequate specimen is provided. If the monitor believes that the employee may have tampered with the specimen or if the sample is outside a certain temperature range or if the employee's supervisor believes that the specimen will be altered, the collection site person must directly observe the employee produce the urine specimen. DOE Order II(6)(a). Employees targeted for reasonable suspicion testing also must produce urine specimens under direct observation. DOE Order § X(D). An employee who fails to produce an adequate sample is subject to disciplinary action, "up to and including removal." DOE Notice (Plaintiff's Exhibit 7 at ¶ 7).
[4] Hartness v. Bush, 712 F.Supp. 986 (D.D.C. 1989) (Executive Office of the President and General Services Administration).
[5] Bangert v. Hodel, 705 F.Supp. 643 (D.D.C.1989) (Department of Interior).
[6] Uniformed Division of Officers Ass'n v. Brady, No. 88-3377, slip op., 1988 WL 142378 (D.D.C. Dec. 23, 1988) (Secret Service); National Treasury Employees Union v. Lyng, 706 F.Supp. 934 (D.D.C.1988) (Department of Agriculture).
[7] Harmon v. Meese, 690 F.Supp. 65 (D.D.C. 1988), appeal pending, No. 88-472 (D.C.Cir.) (Department of Justice).
[8] National Federation of Federal Employees v. Carlucci, 680 F.Supp. 416 (D.D.C.1988), appeal pending, No. 88-5080 (D.C.Cir.) (Department of Army).
[9] AFGE v. Dole, 670 F.Supp. 445 (D.D.C.1987), appeal pending, No. 87-5417 (D.C.Cir.) (Department of Transportation).
[10] Judge Oberdorfer did not grant preliminary relief to Government Services Administration employees who carry firearms. Hartness, 712 F.Supp. at 993.
[11] The government presents evidence of one DOE computer and communications assistant entering a rehabilitation program after admitting to being on duty under the influence of cocaine and a second employee being discharged for distributing drugs (to the first employee). These incidents occurred in 1984. Additionally, DOE operations offices reported six cases (1 each in 1986-1988 and 3 in 1989) in which sensitive employees were identified as drug users in connection with background investigations (5 cases) or were arrested (1 case). Finally, DOE's Federal Employee Assistance Program Report for Fiscal Year 1988 identified 30 employees, presumably out of 16,000 DOE employees, who were counseled for use of drugs other than alcohol. Defendant's Exhibit A, Declaration of J. Merle Schulman at ¶¶ 20-21.
[12] See Hartness, 712 F.Supp. at 992 (enjoining reasonable suspicion testing "at least until the GSA plan is revised to provide that such testing is based upon reasonable, articulable, and individualized suspicion of use of drugs on or off duty, causing a reasonable suspicion that a specific employee may be under the influence of drugs while on duty); Bangert, 705 F.Supp. at 650-51 (upholding reasonable suspicion testing provided agency conformed to safeguards cited therein); Lyng, 706 F.Supp. at 950 (same). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1498082/ | 804 S.W.2d 602 (1991)
COMMUNITY MUTUAL INSURANCE COMPANY, Appellant,
v.
William R. OWEN, Appellee.
No. 01-90-00542-CV.
Court of Appeals of Texas, Houston (1st Dist.).
January 31, 1991.
Rehearing Denied February 28, 1991.
*603 Dwayne Newton, Houston, for appellant.
David S. Ross, Warren W. Harris, Houston, for appellee.
Before EVANS, C.J., and O'CONNOR and HUGHES, JJ.
OPINION
O'CONNOR, Justice.
The resolution of this case depends on the legal effect of mistake of fact and mistake of law. We reverse the summary judgment granted to William Owen and remand the cause for further proceedings.
William Owen's wife was hospitalized at Memorial City General Hospital for three months in 1986, where she died on October 24, 1986. During the hospitalization, Mrs. Owen incurred charges of $49,820.30. On September 4, 1987, plaintiff, Community Mutual Insurance Company, Owen's insurer, issued a check to Owen in the amount of $49,820.30. Later the same month, the insurance company issued another check to the hospital for the same amount for the same charges.
After making unsuccessful demands for payment from both Owen and the hospital, the insurance company filed suit against Owen, asserting he did not pay the hospital and refused to refund the money. The insurance company claimed Owen converted the funds and his retention of the funds unjustly enriched him. Owen generally denied these assertions.
The insurance company filed a motion for summary judgment asserting the uncontroverted summary judgment evidence established, as a matter of law, its allegations of unjust enrichment and conversion. In his response, Owen claimed the insurance company's claims were barred because it had made a mistake of law, and on the same grounds, moved for summary judgment. After considering both motions for summary judgment, the trial court denied the insurance company's motion and granted Owen's motion. The trial court did not state its reasons for granting the summary judgment in its order. The insurance company appeals.
*604 I. Standard of review
The trial court granted summary judgment for Owen, the defendant. A defendant who moves for summary judgment assumes the burden of showing, as a matter of law, that plaintiff cannot prove at least one element of its cause of action. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Babe v. Guaranty Nat'l Ins. Co., 787 S.W.2d 575, 577 (Tex.App.Houston [1st Dist.] 1990, writ requested).
When the defendant moves for a summary judgment on the plaintiff's cause of action, the defendant assumes the burden of showing as a matter of law the plaintiff has no cause of action. Rogers v. R.J. Reynolds Tobacco Co., 761 S.W.2d 788, 793 (Tex.App.Beaumont 1988, writ denied). The defendant must disprove the plaintiff's cause of action as pled. Rogers, 761 S.W.2d at 795. If the defendant cannot meet that burden, the defendant is not entitled to a summary judgment. Griffin v. Rowden, 654 S.W.2d 435, 436 (Tex.1983).
In deciding whether defendant met his burden, we apply the following rules: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference will be indulged in favor of the nonmovant and any doubts will be resolved in the nonmovant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).
When, as here, a summary judgment does not specify the ground upon which the court granted it, we will affirm the judgment if there is any ground that will support the judgment. Rabe, 787 S.W.2d at 576; McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex. App.Houston [1st Dist] 1985, writ refd n.r.e.).
Owen, the defendant, moved for summary judgment on the grounds that when the insurance company paid for his wife's hospitalization twice, it was a mistake of law, and thus the insurance company could not recoup payment from defendant. The insurance company asserts the summary judgment proof did not prove it made a mistake of law, and, in fact, there was no evidence indicating what manner of mistake it made in paying Owen. The insurance company claims that for Owen to prevail on his mistake of law theory, he was required to prove the insurance company made the double payment with full knowledge of all the facts. Finally, the insurance company claims Owen failed to offer any summary judgment evidence to negate its causes of action for conversion and unjust enrichment.
II. Summary judgment proof
Because both the insurance company and Owen moved for summary judgment, the trial court could consider all the summary judgment evidence filed with the motions. Dallas County Appraisal Dist. v. Institute for Aerobics Research, 766 S.W.2d 318, 319 (Tex.App.Dallas 1989, writ denied).
A synopsis of the summary judgment evidence is: The insurance company paid both the hospital and Owen for the same charges; Owen endorsed the check for $49,820.30, deposited it into his account, and did not pay the hospital; the insurance company wrote a number of letters to first, the hospital and then, to Owen, asking them to return the funds; in the letters, the insurance company said it issued the check to the hospital "in error," and later in a letter to Owen, it said it issued the check to him "in error."
III. Mistake of fact distinguished from one of law
In points of error one and two, the insurance company asserts the trial court erred in granting summary judgment because Owen's summary judgment evidence did not establish the insurance company committed a mistake of law in paying the hospital.
The general rule is that the courts will not relieve a party of the effects of a mistake of law. Furnace v. Furnace, 783 *605 S.W.2d 682, 686 (Tex.App.Houston [14th Dist.] 1989, writ dism'd w.o.j.). The courts will, however, relieve a party of the effects of a mistake of fact. Annotation, Right of Insurer Under Health or Hospitalization Policy to Restitution of Payments Made Under Mistake, 79 A.L.R.3d 1113, 1116 (1977). A mistake of fact means any mistake except a mistake of law. RESTATMENT OF RESTITUTION § 7 (1936). A mistake of law means a mistake as to the legal consequences of an assumed state of facts. Id. The RESTATEMENT § 6 defines a mistake as a "state of mind not in accord with the facts."
The general rule is that a party who has paid funds due to a mistake of fact is entitled to restitution, if the receiving party has not materially changed its position in reliance on the payment. Bryan v. Citizens Nat'l Bank in Abilene, 628 S.W.2d 761, 763 (Tex.1982); Singer v. St. Paul Mercury Ins. Co., 478 S.W.2d 579, 583 (Tex.App.San Antonio 1972, writ ref'd n.r.e.). In Bryan, citing the RESTATMENT OF RESTITUTION § 1 (1936), the supreme court said the purpose of restitution is to prevent unconscionable loss to the party paying out the funds and unjust enrichment to the party receiving the funds. 628 S.W.2d at 763.[1]
It is clear the insurance company made the double payment under the mistaken impression the debt was still outstanding. The letters included in the transcript as part of the summary evidence all attest to a mistake of fact. Owen believes that the mistake inures to his benefit. We do not agree.
We sustain the insurance company's points of error one and two.
IV. The third point of error
In point of error three, the insurance company contends the trial court erred in granting the summary judgment because Owen did not negate the alternatively pled cause of action of conversion. Because we sustained points one and two, we do not need to reach point three.
V. The insurance company's motion for summary judgment
In point of error four, the insurance company contends the trial court should have granted its motion for summary judgment on the theory of unjust enrichment. The denial of a motion for summary judgment, generally, is not subject to appellate review. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). When, however, both parties file motions for summary judgment and one motion is granted and the other is denied, a review of the trial court's action is permitted. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (Tex.1958). In such a case, the appellate court may determine all questions presented, including the propriety of the order overruling the losing party's motion. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); Teledyne Isotopes, Inc. v. Bravenec, 640 S.W.2d 387, 389 (Tex. App.Houston [1st Dist.] 1982, writ ref'd n.r.e.).
*606 The insurance company asserts the summary judgment evidence establishes its right to summary judgment under the doctrine of unjust enrichment and its entitlement to a constructive trust. As the movant, the insurance company was required to prove all the essential elements of its cause of action as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Dallas County Appraisal Dist, 766 S.W.2d at 320.
For a party to be entitled to restitution, it must show the person sought to be charged wrongfully secured a benefit or passively received one which it was unconscionable to retain. Corpus Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex.AppCorpus Christi 1987, writ denied). If the insurance company has grounds for either, it is that Owen passively accepted a benefit he should not have retained.
We hold that on this record, Owen passively accepted a benefit he should not have retained. Owen received the funds he knew were for the payment of his wife's hospital bill, he made no attempt to use the funds to pay the bill, and he retained the funds when he learned that the hospital had been paid by the insurance company. We do not find, however, that the insurance company proved that retaining the proceeds was, as a matter of law, unconscionable. A fact issue remains on that issue. We overrule the insurance company's fourth point of error.
NOTES
[1] An insurer, having paid the same debt twice, is faced with a difficult questionfrom whom should it seek repayment, the hospital or the insured? That problem was recently played out in two companion cases that began as one lawsuit. See Lincoln Natl Life Ins. Co. v. Brown Schools, Inc., 757 S.W.2d 411, 413 (Tex.App. Houston [14th Dist.] 1988, no writ), and Lincoln Natl Life Ins. Co. v. Rittman, 790 S.W.2d 791, 793 (Tex.App.Houston [14th Dist.] 1990, no writ). In the beginning, the insurance company filed suit against both the hospital and the insured for overpayment. The suit against the hospital was resolved by partial summary judgment in favor of the hospital, which the trial court severed and the insurance company appealed (Lincoln I). In the Lincoln I appeal, the court of appeals held that, as between the hospital who provided the services and the insurance company, the insurance company should bear the loss. 757 S.W.2d at 413. Following the issuance of Lincoln I, the insurance company proceeded to judgment in a non jury trial suit against the insured, and again lost (Lincoln II). The court of appeals again affirmed against the insurance company, this time for a combination of reasons: The stipulated evidence from the earlier hearings was not included in the record in this appeal, and general concepts of equity required a holding against the insurance company. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1679662/ | 392 So.2d 454 (1980)
STATE of Louisiana
v.
Gregory SMITH.
No. 67511.
Supreme Court of Louisiana.
December 15, 1980.
Rehearing Denied January 26, 1981.
*455 Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Fred P. Harper, Jr., Louise Korns, Lance Africk, Asst. Dist. Attys., for plaintiff-appellee.
LEMMON, Justice.
In this appeal from a conviction of second degree murder the principal issue involves defendant's attempt to suppress the murder weapon seized incident to the allegedly unlawful arrest of Wilbert Kelly.
I.
On June 20, 1978 the body of an unidentified female was discovered in an isolated wooded area of Orleans Parish. The victim apparently had been shot repeatedly with a .45 caliber pistol and a .38 caliber pistol. A slug recovered from her body was submitted to the crime laboratory for analysis. *456 Medical opinion fixed the time of death as the nighttime hours of the evening prior to the discovery of the body.
The victim was eventually identified as Veronica Dubuchet, but apparently little other information was uncovered until an unexpected, critical clue was provided by the crime laboratory.
On July 17 the crime laboratory, in examining a .45 caliber automatic which had been recently submitted for testing, identified the pistol as the weapon which fired the slug found in Miss Dubuchet's body. The pistol had been seized by the police during the arrest of a wanted fugitive named Wilbert Kelly at the home of Bernard McGee.
This information led police to a series of interviews with several individuals who were with Miss Dubuchet on the evening of her death. Police eventually learned that defendant, in the company of several other men, took Miss Dubuchet to the lonely spot where her body was found and, as she begged for her life, shot her mercilessly with the .45 caliber automatic and then with a .38 caliber derringer until she died.
Defendant was ultimately convicted of second degree murder. After being adjudicated a habitual offender, he was sentenced to life imprisonment at hard labor.
II.
Prior to trial defendant moved to suppress the .45 caliber pistol seized from McGee's home incident to Kelly's arrest, contending that the warrantless arrest was illegal under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) and State v. Brown, 387 So.2d 567 (La. 1980). Although none of defendant's reasonable expectations of privacy were implicated by the police entry into McGee's home or their seizure of a pistol in Kelly's possession, La.Const. art. 1, § 5 (1974), as construed by this court in State v. Hebert, 351 So.2d 434 (La.1977) and State v. Culotta, 343 So.2d 977 (La.1977), permits defendant to question the legality of the police conduct leading to the seizure. Compare Rakas v. Illinois, 435 U.S. 922, 98 S.Ct. 1438, 55 L.Ed.2d 515 (1978); Rawlings v. Kentucky, ___ U.S. ___, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, ___ U.S. ___, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
The evidence presented at the motion to suppress established that Officer Dewey Varnado on July 11, 1978 was requested to assist in the apprehension of a female probationer in connection with a probation violation. When the woman was brought to police headquarters, she offered to provide information about a wanted subject, Wilbert Kelly, in exchange for leniency. A check of the records of "wanted" subjects revealed that Kelly was being sought on charges of armed robbery and attempted murder of police officers.
When Varnado accepted the woman's offer to help locate Kelly, she dialed a telephone number and engaged in a conversation with Bernard McGee, telling McGee that she knew Kelly was at his house and that she was afraid he would get into trouble if Kelly was permitted to remain there. McGee apparently revealed that Kelly was still at his residence, and the woman covered the receiver with her hand and relayed the information to Varnado.
Varnado immediately summoned assistance and went directly to McGee's residence, arriving within a half hour. In fact, McGee was still on the phone with the woman when the officers arrived.
Three armed officers surrounded the house, while Varnado and a fifth officer approached the front door with shotguns in their hands. When McGee answered Varnado's knock at the door, Varnado told McGee they were there to apprehend Wilbert Kelly. The officers entered the house, and when McGee indicated someone was in the back room, the officers proceeded into that room and found Kelly asleep on a sofa bed, with a .45 caliber automatic on the bed. The officers ordered Kelly out of the bed and arrested him, seizing the pistol in the course of a protective search.
*457 On appeal defendant argues that the warrantless arrest of Kelly after the nonconsensual entry in McGee's house violated the dictates of the Payton decision and that suppression of the pistol seized in that arrest is required.
We observe initially that the Payton decision does not control this case. In Payton the defendant's own reasonable expectations of privacy were breached by the warrantless, nonconsensual entry into Payton's own home. In the present case the defendant had no Fourth Amendment interest violated which gave rise to a right on his part to question the validity of the seizure. His right to litigate the validity of this seizure arises only under the Louisiana Constitution.
In State v. Brown, above, this court, recognizing the parallel between the United States Supreme Court's approach to the Fourth Amendment and the proper result under the state constitution, held that a warrantless, non-consensual entry into a defendant's home for the purpose of an arrest was constitutionally invalid, unless such entry was necessitated by exigent circumstances. The court also found that the photographic lineup was a product of that illegal arrest, but nevertheless affirmed the conviction because the in-court identification was clearly free from taint of arrest.
The Brown decision clearly applied the principles of Payton to suppress evidence obtained as a result of a warrantless arrest in a defendant's home in the absence of exigent circumstances. Nevertheless, we conclude that suppression of the evidence is not required in the present case.
First, the facts of the present case presented the officers with exigent circumstances necessitating a prompt entry to secure the arrest of a dangerous felon. The officers were seeking an individual wanted for violent felonies involving danger to human life. His benefactor, McGee, had effectively been warned that he (McGee) would get into trouble if he allowed Kelly to remain hidden on his premises, and the officers wasted no time in going immediately to McGee's home. Hindsight may have revealed that their haste was unnecessary, but the officers' concern that Kelly might flee was reasonable, particularly in light of the fact that he was located on the premises of a third person.
Second, we hold that State v. Brown, above, is not to be given retroactive effect.[1]
As the United States Supreme Court noted in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the deterrent function of the exclusionary rule is not served by retroactive application to situations in which officers acted in good faith reliance on previously announced standards. The court in Peltier accordingly refused to accord retroactive application to its decisions limiting border patrol search authority and upheld searches which were conducted pursuant to previously announced regulations that, although not declared invalid at the time of the questioned search, were later declared to be unconstitutional infringements of the Fourth Amendment. The same result should obtain here under the Louisiana Constitution, especially since the question involved is not *458 one of the fairness of the trial or the determination of guilt or innocence.[2]
III.
Our conclusion that the Payton and Brown decisions do not require suppression of the pistol does not completely dispose of the issue of the legality of Kelly's arrest. There remains the question of the reasonableness of the officers' belief that Kelly was in McGee's home and that probable cause existed for Kelly's arrest.
There is little question here that the officers had a substantial basis for believing that Kelly was in McGee's home. The female probationer freely offered her assistance to the police and fully explained the basis on which she based her information. She revealed her acquaintance with McGee and telephoned him in the officer's presence to confirm Kelly's presence. When McGee reported that Kelly was still there, she gave officers the signal to proceed and held McGee in conversation until the police arrived. Her credibility and the reliability of her information were apparent from the circumstances. See State v. Abadie, 390 So.2d 517 (La.1980). Furthermore, the officers entered only the living room portion of the house for safety reasons and did not go into the rear portion of the residence until McGee confirmed the presence of "a friend" who was staying with him.[3]
The issue of probable cause presents a more difficult problem. Although the officers acted in good faith reliance on the "wanted" report issued by other New Orleans police officers as a justification for Kelly's arrest, the mere fact that Kelly was "wanted" does not establish that there was in fact probable cause for his arrest. Perhaps that fact was a sufficient basis for Varnado's reasonable belief that the officers had probable cause to believe that Kelly committed the crimes, but such boot strapping cannot substitute for probable cause in order to satisfy the Fourth Amendment's restrictions on police seizures of persons or the parallel restrictions found in the Louisiana Constitution.[4]
Neither party introduced evidence on the issue of probable cause for Kelly's arrest at the hearing on the motion to suppress.[5] We accordingly base our determination of that issue on allocation of the burden of proof.[6] We hold that when a defendant *459 seeks to exclude physical evidence seized pursuant to the arrest of a third person, the burden falls upon the defendant to demonstrate that the arrest was not supported by probable cause.[7]
Normally, the burden is on the prosecution to justify a warrantless arrest or search of a defendant in order to use the evidence which is a product of the arrest or search. See State v. Franklin, 353 So.2d 1315 (La.1978). However, in cases involving the arrest of third persons, we analogize the burden of proof issue to those decisions of this court which hold that a defendant challenging the voluntariness of the confession of a third person must carry the burden of proving by a preponderance of the evidence that the person did not give the confession voluntarily. See State v. Bouffanie, 364 So.2d 971 (La.1978); State v. Williams, 385 So.2d 214 (La.1980).
This approach accommodates the competing societal interests, on the one hand, of admitting highly reliable and probative physical evidence and, on the other hand, of deterring unreasonable police conduct. The approach is particularly appropriate to the situation in which the complaint does not concern the defendant's federally protected constitutional right to his own privacy. If the defendant wishes to utilize the expanded exclusionary rule of the Louisiana Constitution when he is adversely affected by a seizure which violates another person's reasonable expectation of privacy, it is appropriate to require that the defendant establish the police conduct was unreasonable.
In this case defendant has not carried his burden of establishing that the police arrested Kelly without probable cause. Accordingly, the trial court did not err in denying the motion to suppress.
Defendant's other assignments are controlled by the application of well established principles and are treated in an unpublished appendix.
The conviction and sentence are affirmed.
DIXON, C. J., and DENNIS, J., dissent with reasons.
DIXON, Chief Justice (dissenting).
I respectfully dissent.
If there was no probable cause to arrest Kelly, defendant has the right under the Louisiana Constitution (Art. 1, § 5) to suppress what was illegally seized at Kelly's arrest.
NOTES
[1] Because defendant lacks standing under the Fourth Amendment, we need not decide whether Payton is to be given retroactive effect. The United States Supreme Court has not decided this issue, and we are not persuaded that general principles of retroactive application require such a result. In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the court said "[i]t is indisputable ... that in every case in which the court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the court has concluded that any such new constitutional principle would be accorded only prospective application." See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not to be given retroactive effect, and State v. Bible, 389 So.2d 42 (La.1980), holding that Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) was not to be given retroactive effect.
[2] In State v. Ranker, 343 So.2d 189 (La.1977), this court expressed concern about the constitutionality of C.Cr.P. art. 224's authorization of forcible entry into a place where the person to be arrested "is reasonably believed to be". That expression in dicta, however, is not a sufficient reason to exclude probative physical evidence seized in this case by police who were acting in conformity with existing legislative standards. Compare United States v. Blake, 632 F.2d 731 (9th Cir.1980).
The implication in the Brown decision that Payton is to be given retroactive effect is dicta and does not govern here at any rate, because the warrantless entry was into Brown's own home.
[3] Although we do not predicate our holding on consent, we note the prosecution's contention that McGee did not voice objection to the entry and did not attempt to refuse entry to the police. It is also noteworthy that the police approached McGee's home in the mid-afternoon hours.
[4] As stated earlier, the Fourth Amendment is not the basis of our analysis because Smith has no privacy interest involved in Kelly's seizure at McGee's home. Rather, Smith had the right to raise the validity of Kelly's arrest only under La.Const. art. 1, § 5 (1974).
[5] The defendant's contentions regarding the illegality of the arrest and subsequent seizure focused on the manner in which the entry was effected and not upon the lack of probable cause for Kelly's arrest.
[6] In fact, when the prosecutor during the hearing on the motion to suppress attempted to elicit from one officer the information that had been obtained from other sources, defendant objected that the response would call for "hearsay". The trial court erroneously sustained the objection.
The hearsay rule is not required to be applied at suppression hearings. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Devenow, 220 So.2d 78 (La.1969). Information relayed to a policeman from other sources can be treated at a suppression hearing as "non-hearsay" and may be considered insofar as it tends to prove that such information was in fact given to the officer. Whether he was reasonable in acting on the report is tested by other factors, such as the reliability of the manner in which the information was obtained and the credibility of the person reporting. See State v. Paciera, 290 So.2d 681 (La.1974).
[7] In a case, such as presented here, in which police officers are working in a large urban police department, a request (or "wanted") by one police officer alerting others that he has probable cause to arrest a suspect can be acted upon by other police officers. The test of the validity of the arrest, for purposes of the exclusionary rule, ultimately rests upon whether the investigating officers had sufficient facts to support probable cause. See United States v. Ragsdale, 470 F.2d 24 (5th Cir.1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2592583/ | 48 N.Y.2d 795 (1979)
In the Matter of Quotron Systems, Inc., Respondent,
v.
Ivan E. Irizarry, as Finance Administrator of the City of New York, et al., Appellants.
Court of Appeals of the State of New York.
Argued October 15, 1979.
Decided November 15, 1979.
Allen G. Schwartz, Corporation Counsel (Leonard Olarsch and Steven Forrest Jackson of counsel), for appellant.
Jeffrey S. Cook, Alan M. Epstein and Donald P. Kelley for respondent.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
*797MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The nature of plaintiff's business is sufficiently described in Quotron Systems v Gallman (39 N.Y.2d 428), which held that it could not be taxed as a utility. A fair reading of Matter of Crystal v City of Syracuse (38 N.Y.2d 883, affg 47 AD2d 29), Matter of Metropolitan Bank of Syracuse v Department of Assessment of City of Syracuse (44 N.Y.2d 864, affg 57 AD2d 1055) and Matter of Crossman Cadillac v Board of Assessors of County of Nassau (44 N.Y.2d 963, affg 60 AD2d 842) is that section 102 (subd 12, par [d]) of the Real Property Tax Law is "aimed principally at expanding the definition of real property with respect to utility companies" (44 NY2d, at p 964) and that otherwise telephone and telegraph equipment will be taxable as realty only if it is "`incorporated as part of the real estate'" (id., at p 965). Bearing in mind the well-settled rule that ambiguities in tax statutes are to be construed most strongly in favor of the taxpayer and against the government (Quotron Systems v Gallman, supra, at p 431; McKinney's Cons Laws of NY, Book 1, Statutes, § 313, subd c), we have held in Crystal, Crossman and Metropolitan Bank that portable plug-in telephones, movable office telephone systems and portable bank vault alarms are not real property within the meaning of the descriptive phrase of section 102 (subd 12, par [d]) of the Real Property Tax Law: "Telephone and telegraph lines, wires, poles and appurtenances". While we recognize that People ex rel. Holmes Elec. Protective Co. v Chambers (1 Misc 2d 990, affd 285 App Div 886, affd 1 N.Y.2d 760) is closely akin to the instant fact situation, it must be deemed to have been overruled by the later cases referred to above, which refused to recognize as appurtenances to telegraph or telephone lines movable equipment similar to that here involved.
Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2592614/ | 37 N.Y.2d 75 (1975)
In the Matter of Edna Bowne et al., Respondents,
v.
County of Nassau et al., Appellants, et al., Respondent.
In the Matter of Helen Colvin et al., Respondents,
v.
County of Nassau et al., Appellants, et al., Respondent.
In the Matter of Myron Di Pasquale et al., Respondents,
v.
County of Nassau et al., Appellants, et al., Respondent.
Court of Appeals of the State of New York.
Argued March 25, 1975.
Decided June 9, 1975.
John F. O'Shaughnessy, County Attorney (William S. Norden, Natale C. Tedone and James N. Gallagher of counsel), for appellants.
William D. Friedman for respondents.
Louis J. Lefkowitz, Attorney-General (Jesse J. Fine and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in Per Curiam opinion.
*78Per Curiam.
Section 256 of the Executive Law (L 1971, ch 387) places the Probation Department of Nassau County under *79 the supervision and control of the county executive. Prior to the effective date of this statute, this power had been exercised by the judiciary originally on the local level and later by the Judicial Conference. The petitioners, employees of the department, claim that the current statute violates article VI of the State Constitution. The question is whether the Probation Department is constitutionally part of the unified court system as defined in section 28 of article VI of the Constitution. Special Term held that it was not, and the Appellate Division reversed. We have concluded that the order of Special Term should be reinstated.
The only explicit reference to the Probation Department in the Constitution is found in section 5 of article XVII, which empowers the Legislature to "provide for the maintenance and support of institutions for the detention of persons charged with or convicted of crime and for systems of probation and parole of persons convicted of crime." The judiciary's past authority over the Nassau County Probation Department derived solely from legislation (Code Crim Pro, § 938-d) which vested in the Judges of the County and Family Court power to appoint directors of probation and certify payrolls for employees of the Probation Department. Then, in 1962, the Constitution was amended to provide for a unified court system (NY Const, art VI). Central to constitutional reorganization of the court system was the concept that the general supervisory powers formerly granted to individual courts should pass to the Administrative Board of the Judicial Conference (NY Const, art VI, § 28). Thereafter we recognized that the Probation Departments were subject to the supervision and control of the board rather than the individual courts designated by statute (Matter of Kleinman v McCoy, 19 N.Y.2d 292; McCoy v Helsby, 28 N.Y.2d 790). In neither of these cases however did we consider or decide whether the Probation Department is for all purpose constitutionally a part of the unified court system.
In Kleinman (p 295) the New York City Labor Department had certified the collective bargaining agent for all probation officer trainees and probation officers employed in the courts in New York City. This was done pursuant to an agreement between the Administrative Board and the city, and the petitioners claimed that this was an invalid delegation of the board's constitutional power of "administrative supervision" of the "court system". We held that it was not since "[i]n *80 collective bargaining with court personnel on salaries and other money benefits, where the City of New York is to pay the cost, both the board and the city are jointly concerned in any negotiation." By approaching the issue in this matter we affirmed the board's constitutional power to administer the Probation Department as part of the "court system" of which it was legislatively then a part.
This does not mean however that these agencies are expressly, or even necessarily, an integral part of the unified court system. Since their relationship to the administration of justice itself is although often intimate, always collateral, it is reasonable that their place in the judicial scheme should depend solely in legislation.
Our later decision in McCoy v Helsby (supra, p 791) is not to the contrary. There the question was whether the application of the Taylor Law to Probation Department employees conflicted with the board's supervisory powers over the court system. Although we upheld the application of the law to nonjudicial employees as a "reasonable limitation" on the "exercise of this power" we took occasion to note that "It may be that some future legislative action would so deeply cut at the basic fibre of administrative power as to be violative of section 28 of article VI of the Constitution." In stating this caveat we simply meant to indicate that so long as these agencies performed functions in the court system, the power to supervise and control those functions was in the board and might not be abridged by legislation.
In sum, the Constitution grants to the Legislature the power to maintain and support Probation Departments. The establishment of the unified court system did not necessarily affect this grant of power any more than it impaired the legislative power to build courthouses, staff them with nonjudicial employees, or supply them with facilities, supplies, or building maintenance. In the final analysis judicial control over the regulation of employment in those agencies depended solely on existing statutory authority which the Legislature was free to withdraw (see, e.g., City of New York v Maltbie, 274 N.Y. 90, 97). Thus by enacting chapter 387 of the Laws of 1971 (now Executive Law, § 256) which transferred jurisdiction over the civil service in the Probation Department to the county executives, the Legislature did not violate article VI of the State Constitution.
*81The orders of the Appellate Division should be reversed and the judgments of Special Term reinstated.
Orders reversed, without costs, and the judgments of Supreme Court, Nassau County, reinstated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591616/ | 72 N.Y.2d 720 (1988)
Herzog Brothers Trucking, Inc., Also Known as Herzog Brothers, Inc., et al., Appellants,
v.
State Tax Commission et al., Respondents.
Court of Appeals of the State of New York.
Argued November 17, 1988.
Decided December 22, 1988.
Joseph E. Zdarsky and Guy J. Agostinelli for appellants.
Robert Abrams, Attorney-General (Lew A. Millenbach, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
Thomas C. Brady and Douglas B. L. Endreson for the Seneca Nation of Indians, amicus curiae.
Chief Judge WACHTLER and Judges KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
*722SIMONS, J.
This appeal questions whether the State may require the corporate plaintiff, a wholesale distributor of motor fuel to Seneca Indian retailers on the Allegany and Cattaraugus Reservations, to prepay taxes on motor fuel delivered to the retailers for resale to Indian and non-Indian consumers. We first considered the question in May 1987 on appeal by plaintiffs (69 N.Y.2d 536). At that time, we held that the Federal Indian trader laws preempted State regulation of the corporate plaintiff and that the Appellate Division erred, therefore, in denying its application for an order preliminarily enjoining defendant from proceeding against it. The State Tax Commission then petitioned the Supreme Court of the United States for a writ of certiorari to review our decision. The Supreme Court granted the writ, vacated the judgment and remanded the case to us "for further consideration in light of proposed regulations" published by this State's Commissioner of Taxation and Finance effective November 30, 1988 (20 NYCRR 414.6, 414.7) and applicable to sales made after January 1, 1989 (see, State Tax Commn. v Herzog Bros. Trucking, ___ US ___, 108 S Ct 2861). *723 Now, upon reargument following remand, we adhere to our prior determination.
Plaintiff Herzog Brothers Trucking, Inc. is a Pennsylvania corporation engaged in the wholesale and retail distribution and sale of motor fuels. In 1984 and 1985 it distributed motor fuels to the Seneca Nation of Indians by selling wholesale to authorized Indian retail establishments located on the Allegany and Cattaraugus Reservations. Those transactions constituted Herzog's only sales in this State.
New York subjects sales of motor fuel to both sales and motor fuel excise taxes. Under prior law the sales tax was collected at the time motor fuels were sold to the ultimate consumer and the motor fuel tax was collected upon the first sale by the distributor (see, Tax Law former arts 12-A, 28). Indian retailers claimed exemption from State taxation, however, and refused to collect or pay either tax. Because of this the taxes were being avoided by non-Indians purchasing untaxed motor fuels on the reservation. Accordingly, the Legislature amended the statute on June 1, 1985 (L 1985, ch 44, § 20, adding Tax Law § 1102) to impose motor fuel and sales taxes on the importation of motor fuels by the distributor of such fuels at the time the fuel is imported or first sold (Tax Law § 284 [1]; § 1102 [a] [i], [ii]). Under the statutory scheme, both taxes are then passed through to the retailer, ultimately to be borne by the retail consumer (see, Tax Law § 289-c [1], [2]; § 1102 [d]; § 1132 [a]; § 1133 [a]). The statute also provides that all motor fuel sold in the State is presumed to be subject to the motor fuel tax (Tax Law § 285-a). Only non-Indians are subject to the taxes, however; Indian consumers are exempt by Federal law. Accordingly, the statute allows the distributor a refund of previously paid taxes on fuel sold to Indians.
In 1984 and 1985 defendant imposed an assessment of approximately $480,000 against Herzog for taxes due from sales to the Indian retailers. Herzog filed petitions challenging these assessments, claiming exemption because all their sales were to Indians on Indian reservations. In November 1985, while administrative proceedings were pending, plaintiffs instituted this action seeking a declaration of unconstitutionality of the taxes and the procedures employed to collect them. They moved for a preliminary injunction to restrain defendants from taking any action to impose or collect the taxes. Supreme Court granted the motion but the Appellate Division reversed and denied the motion. It thereafter granted leave to *724 appeal to this court on a certified question and we reversed its order (69 N.Y.2d 536, supra).[*]
Our determination in favor of the plaintiff rested upon our conclusion that Herzog was a "trader" within the meaning of the Federal Indian trader laws, i.e., "[a]ny person desiring to trade with the Indians on any Indian reservation" (25 USC § 262), and that under Federal statutes, and the Supreme Court decisions construing them, the State's action imposed an impermissible burden upon trade with reservation Indians, an area preempted by Federal law (69 NY2d, at 544-546, supra). Upon granting certiorari, the Supreme Court invited the Solicitor General of the United States to submit a brief amicus curiae. In his brief, the Solicitor General agreed with this court that plaintiff was an Indian trader and that insofar as the statutory scheme required it to prepay taxes on fuel that would ultimately be sold to Indian retail customers on the reservation, in effect requiring the routine payment of an invalid tax, it imposed an impermissible burden under the Indian trader statutes. He believed, however, that we interpreted the language of the statutes and the cases construing them too broadly. He contended that cases permitting the imposition of minimal burdens of collection on Indian retailers would justify the imposition of similar burdens on Indian traders, parties one step further removed from the taxable event in the chain of distribution. He suggested vacatur of the judgment and remand so that we might review the statutes as applied under new regulations proposed by New York's Commissioner of Taxation and Finance but not yet adopted. The cases relied upon by the Solicitor General were fully considered by us in our earlier opinion. They rest on an analysis of the permissible limits of State interference with the sovereignty of Indian nations. Our decision rested on the Supremacy Clause and the preemption by the Federal Government of the regulation of Indian traders (see, Central Mach. Co. v Arizona Tax Commn., 448 US 160; Warren Trading Post v Tax Commn., 380 US 685). In the absence of a reversal by the Supreme Court, we assume that our interpretation of those *725 decisions and our application of them to the facts before us represents the present state of the law on the subject.
The Supreme Court order vacating the judgment remanded the case to us, however, for an opportunity to reconsider our decision in light of new regulations proposed by the Commissioner of Taxation and Finance not before us on the prior appeal but effective November 30, 1988. Defendant also requests us to address them, noting that the statutes are effective only insofar as collection of the taxes imposed is not precluded "by reason of the United States constitution and of laws of the United States enacted pursuant thereto" (Tax Law § 284 [1]; § 1102 [a]). Thus, while the tax collection scheme, and the regulations implementing it, applied to the 1984 and 1985 sales may have been unconstitutional, it is defendant's contention that the statutes as implemented by these new regulations impose no unconstitutional burden on Indian traders and they ask us to modify our earlier decision accordingly.
The new regulations apply only to sales of motor fuels after January 1, 1989 and it is not apparent from the record that plaintiff will continue to sell to the Indians. Thus, even assuming there were no factual issues to be determined when applying them, a decision on their validity upon the present record would constitute an advisory opinion involving hypothetical future transactions of unknown parties. It could "have no immediate effect and may never resolve anything" because defendant may not have occasion to assess tax payments against the corporate plaintiff or any other distributor under the circumstances presented by this appeal (see, New York Pub. Interest Research Group v Carey, 42 N.Y.2d 527, 531; see also, Cuomo v Long Is. Light. Co., 71 N.Y.2d 349). Indeed, the briefs before the court indicate that the State and the Indians are presently attempting to negotiate a different solution to the tax collection problem. We express no opinion, therefore, on whether the statutes as implemented by the new regulations generally meet constitutional standards.
Finally, the Attorney-General asks us to consider the validity of the assessments in light of the Hayden-Cartwright Act (4 USC § 104) which permits States to tax motor fuels sold on "United States military or other reservations". This statute was not cited by defendant on the prior appeal to this court, not urged as a ground for reversal before the Supreme Court, and not identified by the Supreme Court as a matter for our consideration on remand. In that the subject is now before us *726 for the first time, we decline to consider it (see, 22 NYCRR 500.11 [g] [3]).
Accordingly, upon reargument following remand from the Supreme Court of the United States, this court adheres to its May 7, 1987 decision of reversal (69 N.Y.2d 536, supra).
Upon reargument, following remand from the Supreme Court of the United States, this court adheres to its May 7, 1987 decision of reversal (69 N.Y.2d 536), without costs.
NOTES
[*] Our order remitted the matter to the Appellate Division for consideration of undetermined questions. Upon remand, the Appellate Division determined that plaintiff had established its likely success on the merits and affirmed the trial court's prior grant of a preliminary injunction (132 AD2d 809). That subsequent decision is not affected by the matter now before the court because of our decision on this reargument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2353301/ | 754 F. Supp. 1567 (1990)
Beulah Rose DIXON and Raymond Dixon, Plaintiffs,
v.
S & S LOAN SERVICE OF WAYCROSS, INC., and Hudson Management, Inc., Defendants.
No. CV 590-001.
United States District Court, S.D. Georgia, Waycross Division.
October 18, 1990.
*1568 Gloria A. Einstein, Waycross, Ga., Sidney L. Moore, Jr., Decatur, Ga., for plaintiffs.
Mary Jane Cardwell, Neal L. Conner, Jr., Waycross, Ga., David G. Crockett, Atlanta, Ga., for defendants.
ORDER
EDENFIELD, Chief Judge.
This case concerns the Truth-in-Lending Act, 15 U.S.C. §§ 1601 et seq. (1988) ("TILA"), and the Georgia Industrial Loan Act, O.C.G.A. §§ 7-3-1 et seq. (1980) ("GILA"). The plaintiffs, Mr. and Mrs. Dixon, complain that the defendants violated TILA when defendant S & S Loan Service of Waycross ("S & S") made three loans to them in the winter of 1988-89. Before the Court is the defendant's motion for summary judgment on all counts. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the defendant's motion.
*1569 BACKGROUND
In December 1988, Mr. and Mrs. Dixon each entered into a separate loan agreement with S & S ("the December loans"). Almost two months later, Mr. Dixon procured a third loan from S & S ("the February loan"). The Dixons allege that S & S violated TILA and the regulations promulgated thereunder in making all three loans. In making the December loans, the defendants allegedly violated TILA and the regulations by failing to include vehicle single interest insurance premiums as an element of the finance charge. S & S allegedly violated TILA in making the February loan because it failed to include nonrecording insurance premiums as an element of the finance charge. The Dixons further allege that S & S violated GILA by requiring the Dixons to purchase "Accidental Death & Dismemberment" insurance and by charging them an "excessive, illegal, and unwarranted [vehicle single interest] premium." Under TILA, offenders may be assessed damages and attorney's fees, and this relief is what the Dixons seek.
S & S answered, denying the plaintiffs' allegations of wrongdoing, asserting several affirmative defenses, and counter-claiming for the unpaid balances on the three loans. The Dixons failed to reply to S & S on those counterclaims, and, accordingly, the Court entered judgment for S & S on them. Court Order, No. CV 590-001 (July 18, 1990). S & S then moved for summary judgment.
SUMMARY JUDGMENT
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509, 91 L. Ed. 2d 202 (1986). Thus, summary judgment is appropriate where the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The substantive law governing the action determines whether an element is essential. E.g., Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510; DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1813, 108 L. Ed. 2d 943 (1990). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S. Ct. at 2552; see Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.1990). It is then the nonmovant's burden to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990); Rollins v. Tech-South, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). In assessing whether the movant is entitled to summary judgment in its favor, the district court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmoving party. E.g., Earley, 907 F.2d at 1080; Apcoa, Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 (11th Cir.1990). The evidence need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir.1988). "Where the record, taken as a whole could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); see Anderson, 477 U.S. at 252, 106 S. Ct. at 2512; Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir.1989). The Court, however, must avoid weighing conflicting evidence, Liberty Lobby, 477 U.S. at 255, 106 S. Ct. at 2513; Brown v. Hughes, 894 F.2d *1570 1533, 1536 (11th Cir.), cert. denied, ___ U.S. ___, 110 S. Ct. 2624, 110 L. Ed. 2d 645 (1990); Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986), or making credibility determinations. Liberty Lobby, 477 U.S. at 255, 106 S. Ct. at 2513; McKenzie v. Davenport Funeral Home, 834 F.2d 930, 934 (11th Cir.1987).
ANALYSIS
A. TILA Generally
Congress's purpose in passing TILA was "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him." 15 U.S.C. § 1601(a) (1988). TILA is a remedial statute, and, hence, is liberally construed in favor of borrowers. E.g., Smith v. Fidelity Consumer Discount Co., 898 F.2d 896, 898 (3d Cir.1990). The remedial objectives of TILA are achieved by imposing "a system of strict liability in favor of consumers when mandated disclosures have not been made." Id. Thus, "[l]iability will flow from even minute deviations from the requirements of the statute" and the regulations promulgated under it. Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir.1984); Smith 898 F.2d at 898.
To implement TILA, Congress "delegated expansive authority to the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 560, 100 S. Ct. 790, 794, 63 L. Ed. 2d 22 (1980). The Board exercised its authority by promulgating regulations; namely, Regulation Z, 12 C.F.R. § 226 (1990). See Milhollin, 444 U.S. at 555, 100 S. Ct. at 790. Regulation Z has the force of law: "[A]bsent some obvious repugnance to the statute[, Regulation Z] should be accepted by the courts." Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S. Ct. 2266, 2274, 68 L. Ed. 2d 783 (1981). With this framework in mind, the Court proceeds to address the contentions of the parties.
B. TILA and Vehicle Single Interest Insurance
S & S has moved for summary judgment on the Dixons' claim that S & S "failed to include in the finance charge an additional $526 charged to each plaintiff as single interest automobile coverage, when such coverage was not sold in accordance with the requirements of Regulation Z." Complaint at 3.[1] Single interest insurance is a type of property insurance. Everyday auto insurance is also a type of property insurance. The difference between everyday auto insurance and vendor's single interest insurance on a vehicle offered as collateral is who is protected, and for how much. Common auto insurance protects the driver's interest in the auto for the value of the car. Single interest insurance connected with a secured loan is different: *1571 It "protects only the creditor's interest, defined as the unpaid balance [of the loan] at the time of the occurrence of the insured risk." Hernandez v. United Fire Ins. Co, 79 F.R.D. 419, 423 n. 1 (N.D.Ill.1978); see Cordova & Simonpietri Ins. Agency v. Chase Manhattan Bank, N.A., 649 F.2d 36, 37 (1st Cir.1981). Regulation Z and the Official Staff Interpretations of the regulation make clear that single interest is covered by this regulation. 12 C.F.R. § 226.4(d)(2)(i) n. 5; Official Staff Interpretation, 12 C.F.R. Part 226, Supp. 1 at 285.
To help assure meaningful disclosure of credit terms, section 1605 of TILA ordinarily requires lenders to include single interest premiums in the disclosed finance charge. 15 U.S.C. § 1605(c). Lenders may exclude these premiums only if: (1) the single interest coverage may be obtained from a person of the consumer's choice; (2) that fact is disclosed to the borrower; (3) the cost of such insurance, if obtained from the creditor, is disclosed; (4) the insurer waives all rights of subrogation against the consumer; and (5) that (1)-(4) be disclosed by a "clear and specific statement." The Official Staff Interpretations clarify that, pursuant to requirement (1), "the creditor must allow the consumer to choose the insurer and disclose that fact." Official Staff Interpretations, 12 C.F.R. Part 226, Supp. I at 285 (1990).
S & S claims that it met the requirements needed to exclude these premiums from the finance charge, and requests summary judgment on this claim. S & S obtained the Dixons' signatures on a loan agreement form that provides:
INSURANCE: We require credit life insurance, credit accident and health insurance, and property insurance covering the collateral for this loan. You may furnish this required insurance through anyone you choose, or you may provide it through an existing policy. If you pay off your loan early, you will have the option either to cancel or to retain your insurance coverage.
This statement complies with the requirements set forth in section 1605(c) and Regulation Z.
The Dixons claim that, despite the disclosure in the loan agreement, S & S violated these provisions of TILA and the regulations. Mrs. Dixon testified in her deposition that she offered to allow her existing car insurance policy to serve as single interest insurance on the car. S & S either refused to accept the proffered policy or merely thought it irrelevant to its request for single interest insurance. Whether this exchange actually occurred, however, is immaterial to this summary judgment motion. In a decision binding on this Court, the former Fifth Circuit held (in a similar TILA case) that, where a loan contract meets TILA disclosure requirements, a borrower may not introduce contemporaneous evidence to contradict the express terms of the loan agreement. Anthony v. Community Loan & Invest. Corp., 559 F.2d 1363, 1369-70 (5th Cir. 1977); see USLIFE Credit Corp. v. FTC, 599 F.2d 1387, 1389-90 (5th Cir.1979); Williams v. Blazer Fin. Servs., 598 F.2d 1371, 1374 (5th Cir.1979); Kramer v. Marine Midland Bank, 559 F. Supp. 273, 284 (S.D.N.Y.1983). But see Kaminski v. Shawmut Credit Union, 494 F. Supp. 723, 729 (D.Mass.1980) (where admissions on file expressly contradict written agreement, such admissions control). Because the Dixons have not claimed that their signature on the loans were the product of illiteracy, fraud, or duress, the parol evidence rule operates to exclude the Dixons' proffered evidence. See Anthony, 559 F.2d at 1369 (exception to parol evidence rule for agreements procured because of illiteracy, fraud, or duress). In essence, the parol evidence rule renders that evidence immaterial, see USLIFE, 599 F.2d at 1390, and, as such, it creates no genuine issue of material fact to defeat summary judgment on this count.
The Dixons, recognizing Anthony's effect on their claim, also attempt to use Mrs. Dixon's testimony as evidence not to contradict the written agreement, but to show that S & S would not allow "insurance coverage ... [to] be obtained from a person of the consumer's choice," as Regulation Z requires. This ploy is unavailing for two reasons. First, calling an apple an *1572 orange does not make it so. The simple fact is that the Dixons are offering oral evidence to contradict the express terms of the agreement. The agreement stated that they could obtain the single interest insurance themselves, or use an existing policy. Yet they voluntarily purchased single interest insurance from S & S, and did so in writing. Anthony therefore applies. Second, although the record is not clear on this point, it appears that S & S rejected the Dixons' proffered auto insurance because it only insured the Dixons' equity in the auto. Single interest insurance, however, as explained earlier, protects a fundamentally different interest: the creditor's. The creditor's interest in collateralized property is for the unpaid balance of the loan at the time the insured-against risk occurs. S & S, therefore, had an eminently reasonable cause to reject the Dixon's offer: it protected the wrong interest. For these reasons, the Court GRANTS summary judgment on this ground.
C. TILA and Nonrecording Insurance
The Dixons claim that the nonrecording insurance they purchased from S & S was sold to them in violation of TILA. S & S does not agree, and has moved for summary judgment on this ground. Nonrecording (or "non-filing") insurance is "designed ... to compensate the ... lender for its losses resulting solely from its failure to file for public record the instrument securing debt, usually a bill of sale to secure debt, a conditional sale contract, or a chattel mortgage." American Aviation & Gen. Ins. Co. v. Georgia Telco Credit Union, 223 F.2d 206, 206-07 (5th Cir.1955). Section 1605(d) of TILA states, in pertinent part:
(d) Items Exempted from Computation of Finance Charge in all Credit Transactions. If any of the following items is itemized and disclosed in accordance with the regulations of the Board in connection with any transaction, then the creditor need not include that item in the computation of the finance charge with respect to that transaction:
(1) Fees and charges prescribed by law which actually are or will be paid to public officials for determining the existence of or for perfecting or releasing or satisfying any security interest related to the credit transaction.
(2) The premium payable for any insurance in lieu of perfecting any security interest otherwise required by the creditor in connection with the transaction, if the premium does not exceed the fees and charges described in paragraph (1) which would otherwise be payable.
Regulation Z does not clarify this already clear provision, although the Official Staff Interpretations offer an example of a charge that does not fit within the terms of Section 1605(d)(2): "If the creditor collects and simply retains a fee as a sort of `self-insurance' against non-filing it may not be excluded from the finance charge." Regulation Z, Official Staff Interpretation, 12 C.F.R. Part 226, Supp. 1 at 286. In other words, the exclusion is only available if the non-filing insurance is actually purchased. Id. S & S argues that it met all the statutory and regulatory requirements in this regard: a) the premium was paid to a third-party insurance carrier pursuant to master policy; b) the premium was less than the recording fee itself; and c) the amount of the premium was disclosed to the Dixons in writing. The Dixons do not contest these assertions. Their quarrel is more basic. They claim that the "nonrecording insurance" purchased by S & S was not insurance against nonrecording it was merely a pool of the "premiums" collected in this manner from all of S & S's borrowers. Claiming that S & S used this pool of funds as a general "reserve to cover all bad debts which had any security interest connected with them," the Dixons allege that this practice violates Regulation Z. Plaintiff's Brief at 11.
To bolster this allegation, the Dixons have marshalled a substantial amount of evidence. First, the Dixons admit that the policy states that it, in part, insures against direct losses sustained by S & S in "enforcing its rights under [the security interest agreement] solely as the result of the failure of the Insured duly to record or file the *1573 [security interest] with the proper public officer or public office." Exhibit F, Defendant's Memorandum in Support of Summary Judgment, at Item 4. The Dixons admit that this appears proper under TILA. But the Dixons point to a subsequent provision which, they claim, belies that statement:
The maximum aggregate amount the Insured may claim under this agreement shall not exceed 89% of the Insured's premiums collected and paid to the [insurer]. Any subsequent recovery of such claims will be forwarded to the [insurer] as Subrogation to reduce the aggregate amount of claims paid to the Insured.
Exhibit F, paragraph 1. Under this provision, therefore, S & S could never collect from the insurer more than 89% of the total amount of "nonrecording insurance premiums" it had collected and sent to the insurer. The Dixons assert that this shows that the "nonrecording insurance" was not insurance at all.
Second, the Dixons alert the Court to several places in the deposition of Mr. Jimmy P. Hudson, the president of S & S Loan Service and Hudson Management, where Mr. Hudson indicates that this "insurance" policy is actually used as a "reserve for bad debts of all types." Plaintiffs' Brief at 9. For example, the following colloquy took place:
Q[uestion:] [W]hat is the risk that you are trying to protect yourself against by buying this type of coverage?
A[nswer:] To protect us in the event we were not able to pick up the security placed on the loan.
Q Because of somebody having a prior security agreement?
A Well, that could enter into it; or say the security placed was already placed somewhere else and it wasn't disclosed to us, whatever the circumstances might be.
Q So in your opinion if a person came in with, for example, a house full of furniture he had bought from Joe's Furniture Store and Joe already had a security interest recorded down there at the courthouse and you bought this coverage with respect to that loan and it turned out that the customer had not told you about Joe's Furniture Store's recorded security agreement and the loan went into default, you could collect on this policy to pay that loan; is that your understanding?
A That's correct, sir.
....
Q ... Suppose this [loan] were declared in default and you learned from the local operating office that you have this $1500 uncollectible, he hadn't paid it, you have got a security interest in household goods and you have nonrecording insurance and you as Hudson Management, Inc., now have to make a decision as to whether to file a claim with Voyager [the insurer] or not; how would you go about making that decision, what would you take into consideration, what would you do?
A Well, on some of them the cars have been disposed of, some of them the furniture has been disposed of, some of the accounts the folks never had the furniture that was mentioned.
Q Suppose they never had the furniture that was pledged, would you file a claim with Voyager?
A Probably after we took legal action in order to try to collect the balance.
Q What if he had the furniture originally but they disposed of it before you got a chance to go after it, would you file a claim with Voyager?
A Probably, after we pursued the legal action.
Deposition of Jimmy R. Hudson, at 29-30, 44. After the Dixons' attorney expressed puzzlement why Mr. Hudson said he would make these claims under a nonrecording insurance policy when the claims had nothing to do with nonrecording, counsel decided to make sure that his own definition of "nonrecording" was identical to Mr. Hudson's:
Q ... So you are insuring against the risk you take by not recording your security interest at the courthouse; that's what [the contract with Voyager] appears *1574 to be. That's the risk you are insuring against; is that correct?
A Yes, sir.
Q Now if you have a situation such as we have been talking about where the person never even owned the property and lied about all of it at the time he made the loan, then you wouldn't have been able to recover the property whether or not you recorded it because it never existed; is that correct?
Id. at 45-46. At this point S & S's attorney objected, claiming that the question called for a legal conclusion which his client was not competent to give. Id. Mr. Hudson never answered this question. It is clear from his previous answer, however, that he knew the purpose of the insurance.
The Dixons point to further evidence indicating that the "nonrecording insurance" purchased by S & S from Voyager was not insurance: Mr. Hudson could recall no instance when Voyager ever evaluated, let alone rejected a claim by S & S pursuant to this agreement. Hudson Deposition at 51-52. The Dixons argue that this evidence creates a genuine issue of material fact whether the premium collected by S & S for "nonrecording insurance" was in fact used to purchase true nonrecording insurance. Further, the Dixons argue that this premium is more likely a "premium or other charge for any guarantee or insurance protecting the creditor against the obligor's default or other credit loss," which should have been included in the finance charge under section 1605(a)(5) of TILA.
Having reviewed the evidence in the light most favorable to the Dixons, the Court holds that there is a genuine issue of material fact whether the "nonrecording insurance" premiums collected by S & S were actually used to purchase nonrecording insurance, as required by Regulation Z. Accordingly, the Court DENIES S & S's motion for summary judgment on this issue.
D. Compulsory Accidental Death & Dismemberment Insurance the Georgia Industrial Loan Act
The Dixons also claim that S & S required them to purchase accidental death and dismemberment ("AD & D") insurance as a condition for obtaining the loans, in violation of the regulations promulgated under the Georgia Industrial Loan Act ("GILA"). Ga.Comp.R. & Regs. § 120-1-1-.01 through § 120-1-14-.26 (1990) ("the Georgia regulations"). According to S & S, however, the Dixons were not required to purchase AD & D, but voluntarily chose to do so. S & S also argues that all aspects of S & S's sale of AD & D to the Dixons were in accordance with GILA and the regulations. Moreover, argues S & S, the Georgia parol evidence rules precludes the Dixons from challenging the voluntariness of their purchase of AD & D because they signed a provision stating, "I acknowledge and declare that I have voluntarily purchased this insurance protection, and that said purchase had not been compulsory. I also acknowledge that this insurance is offered neither as a condition nor as a part of a credit transaction." Finally, S & S argues that the Dixons are estopped from making this claim because they, subsequent to the AD & D purchase, requested that the policies be cancelled and loan balances credited for the return premiums.
The Court agrees with S & S that Georgia's parol evidence rule bars extrinsic evidence to challenge the voluntariness of the Dixons' purchase of AD & D. "Parol evidence is inadmissible to add to, take from or vary a written contract." O.C.G.A. § 13-2-2 (1982). The parol evidence rule is not a rule of evidence, but, rather, a rule of substantive law. E.g., Southern Stone Co. v. Singer, 665 F.2d 698, 701 (5th Cir. Unit B 1982) (applying Georgia law). Despite its name, the parol evidence rule also precludes the use of written evidence to add to, take from, or vary the terms of a written agreement. Bank Bldg. & Equip. Corp. of Am. v. Georgia State Bank, 132 Ga.App. 762, 765, 209 S.E.2d 82 (1974).
The Dixons point to an internal corporate memorandum of the defendants, which was produced during discovery, to bolster their claim that the purchase of AD & D was not voluntary. The memorandum states, in discussing several types of loans offered *1575 by S & S: "All new and former borrower's [sic] are to have AD & D on this loan." The parol evidence rule, however, prohibits the consideration of this document to contradict the plain statement of voluntariness that the Dixons signed. The Court is bound to deem the Dixon's purchase of AD & D in this case as voluntary.[2] Further, because the Dixons voluntarily purchased AD & D, the Court does not see how they have standing to litigate whether S & S, in light of this memorandum, required AD & D of other borrowers.
This leaves only the issue whether the terms of S & S's sale of AD & D measures up to the requirements of GILA and the Georgia regulations. O.C.G.A. § 7-3-14(3)(B) states, in pertinent part, that a GILA lender "may accept as security on any loan ... the following: ... Reasonable insurance on the life and health of the principal party." (emphasis added) The Dixons reason that, because AD & D is not a typical example of life or health insurance, it is not "reasonable" within the meaning of the statute. This argument misses the point, however. Section 7-3-14(3)(B) applies only to insurance purchased "as security on any loan," i.e., credit insurance. The AD & D agreement signed by the Dixons, however, plainly states that "this insurance is offered neither as a condition nor as part of a credit transaction." Thus, to the extent that the Dixons are contending that the AD & D was credit insurance, the parol evidence rule precludes that contention. To the extent that the Dixons are arguing that S & S's sale of noncredit AD & D to them violated this section, they are misreading the statute.
Moreover, assuming arguendo the Dixons were correct that the sale of AD & D violated the Georgia regulations in section 120-1-14 et seq., Georgia law affords them no right to sue for such violations. Section 120-1-14-.26 provides that "[a]ny person who fails to comply with the requirements of this Regulation [§ 120-1-14 et. seq.] shall be subject to such penalties as may be appropriate under Chapter 25-3 of the Georgia Code Annotated and the Rules and Regulation promulgated thereunder." Although this regulation refers to the superceded version of the Georgia statutes, the regulation is still extant. Moreover, the Dixons have pointed to no section of the current Code which affords them such a right to sue. A violation of the type complained of here by the Dixons, therefore, subjects the alleged violator only to such administrative sanctions as requested by the Georgia Insurance Commissioner. Robinson v. Central Loan & Finance Corp., 609 F.2d 170, 175 (5th Cir.1980); Plant v. Blazer Fin. Servs., Inc., 598 F.2d 1357, 1368 (5th Cir.1979). The Dixons, therefore, are not the proper parties to make this claim; the Insurance Commissioner is. Accordingly, the Court GRANTS S & S's motion for summary judgment on this point.
E. Vehicle Single Interest Insurance and GILA
The plaintiffs further allege that S & S's sale of vehicle single interest insurance to the Dixons violates GILA and the Georgia regulations. Specifically, they allege that, in violation of O.C.G.A. §§ 7-3-14 and 7-3-15: a) there is no evidence that such insurance was actually issued with regard to Mrs. Dixon's loan, even though she was charged $526 for it; b) because the insurance was for $3552, and S & S has not shown that the car insured, a 1981 Mercury Cougar, was actually worth that much, the insurance was not reasonable with the meaning of the Georgia regulations; and c) although not mentioned in the complaint or the Dixons' answers to compulsory interrogatories, see Local Rule 8.6, the single interest insurance was unlawful under O.C. G.A. § 33-24-4 (1990) (Chapter 24 of Title *1576 33 deals with the sale of insurance generally).
S & S makes several counterarguments, but the Court need not address them. As mentioned above, an alleged violation of the Georgia regulations, section 120-1-14, subjects alleged offenders only to administrative sanctions; it confers no private right of action for claimed violations. The Dixon's new argument that the insurance also violates other sections of the Georgia Statutes is immaterial to the allegations in the complaint. The Court will not, on summary judgment, address issues not mentioned in the complaint. Accordingly, the Court GRANTS summary judgment to S & S on this contention.
F. Dual Loans and GILA
In their brief, the Dixons have agreed to abandon this Count of the complaint. The Court therefore GRANTS S & S's motion on this count.
CONCLUSION
The Court GRANTS IN PART and DENIES IN PART the defendant's motion for summary judgment,[3] as follows:
1) S & S's motion for summary judgment as to Complaint, § V, para. 10(a) is GRANTED;
2) S & S's motion for summary judgment as to Complaint, § V, para 10(b) is DENIED;
3) S & S's motion for summary judgment as to Complaint, § VI, para. 14(a) is GRANTED;
4) S & S's motion for summary judgment as to Complaint, § VI, para. 14(B) is GRANTED;
5) S & S's motion for summary judgment as to Complaint, § VI, para. 14(c) is GRANTED;
SO ORDERED.
NOTES
[1] Section 1605(c) of TILA, as codified, states:
(c) Property Damage and Liability Insurance Premiums Included in Finance Charge. Charges or premiums for insurance, written in connection with any consumer credit transaction, against loss of or damage to property or against liability arising out of ownership or use of property, shall be included in the finance charge unless a clear and specific statement in writing is furnished by the creditor to the person whom the credit is extended, setting forth the cost of insurance if obtained from or through the creditor, and stating that the person to whom the credit is extended may choose the person through which the insurance is to be obtained.
15 U.S.C. § 1605(c) (1988). Regulation Z clarifies this statutory provision. It states:
(2) Premiums for insurance against loss of or damage to property, or against liability arising out of the ownership or use of property,5 may be excluded from the finance charge if the following conditions are met:
(i) The insurance coverage may be obtained from a person of the consumer's choice,6 and this fact is disclosed.
(ii) If the coverage is obtained from or through the creditor, the premium for the initial form of insurance coverage should be disclosed.
5 This includes single interest insurance if the insurer waives all right of subrogation against the consumer.
6 A creditor may reserve the right to refuse to accept, for reasonable cause, an insurer offered by the consumer.
Regulation Z, 12 C.F.R. § 226.4(d)(2) (1990) (footnotes in original).
[2] Because the parol evidence rule is a rule of substantive law, the Court is not passing on the admissibility of parol evidence as an evidentiary matter, but as a rule of contract construction. Cf. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Cottle, 849 F.2d at 575 (district court, on summary judgment, may not consider evidentiary admissibility of evidence of disputed fact offered by nonmovant.)
[3] Defendant Hudson Management, a corporate relation of S & S, has not moved for summary judgment. Because, however, Hudson Management is essentially an alternative defendant, not one against whom separate and distinct allegations are levelled, this judgment also applies to it, as well. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1104619/ | 461 So. 2d 775 (1984)
Lavoid D. JOHNSON and Pauline Johnson
v.
James G. McMURRAY, et al.
82-413.
Supreme Court of Alabama.
September 7, 1984.
As Modified on Denial of Rehearing November 9, 1984.
*776 Joseph M. Cloud of Cloud & Cloud, and Robert H. Ford of Brinkley & Ford, Huntsville, for appellants.
Harold F. Herring, H. Harold Stephens, and William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee James G. McMurray.
John S. Key of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee James H. Griffith, M.D.
Michael A. Worel of Emond & Vines, Birmingham, for amicus curiae The Alabama Trial Lawyers Ass'n.
JONES, Justice.
This is a medical malpractice case. Plaintiffs/Appellants Lavoid D. and Pauline Johnson appeal from a judgment for Defendants Dr. James G. McMurray and Dr. Thomas G. Griffith, following a jury verdict. We reverse and remand.
FACTS
In May 1979, Lavoid Johnson, 68 years old, was referred by his family physician to Dr. James G. McMurray, a Huntsville urologist, for treatment of heart complications, emphysema, and swelling of the ankles, legs, and feet. After tests were performed, Mr. Johnson's condition was diagnosed as a benign enlarged prostate, for which he was hospitalized. Upon removal of the prostate tissue and further examination, Dr. McMurray discovered "two nodules of well-differentiated carcinoma," or cancer.
*777 During the lymph node surgery, a 4" × 4" surgical sponge was left in Mr. Johnson's lower abdomen. On August 28, 1979, Dr. McMurray advised Mr. Johnson of the presence of the sponge, as well as the need for its immediate removal. Because he objected to Dr. McMurray's participation in the sponge removal surgery, Mr. Johnson requested, through his lawyer, that Dr. McMurray recommend other surgeons for the surgery. Dr. McMurray did so, and Mr. Johnson chose Dr. Thomas Griffith, a Huntsville urologist.
The testimony is in conflict as to the extent of Dr. McMurray's involvement in the operation to remove the sponge. Mrs. Johnson testified that she told Dr. McMurray on three separate occasions that he was not to participate in any way in her husband's surgery. Dr. Griffith testified that he told the Johnsons that he would not perform the operation unless Dr. McMurray was present during the surgery for assistance, and that the Johnsons did not object to his presence. According to the hospital report, Dr. McMurray signed as chief surgeon for the sponge removal operation. Also, Dr. McMurray's name appears on the operating room registry and he dictated the operating report. Additionally, the record is clear that Mr. Johnson refused to sign a consent form with Dr. McMurray's name on it, but did sign the form with Dr. Griffith's name designated as the surgeon. The form reads, in pertinent part, as follows:
"1. I, Lavoid D. Johnson, the undersigned,
(Patient, or nearest relative)
authorize Dr. T. Griffith
(Physician)
and his assistant to perform, under anesthetic deemed advisable, the operation
stated above on Lavoid D. Johnson,
(Name of patient)
and also, to perform such additional procedures as may be considered therapeutically necessary, based upon the findings in the course of the operation. Any tissue surgically removed may be disposed of by the physician, or assisting physician, or the hospital, in accordance with its accustomed practice.
"(Signed) Lavoid D. Johnson"
Shortly after the sponge removal surgery, Mr. Johnson was released from the hospital. He did not see Dr. Griffith after discharge, but did see Dr. McMurray. Throughout the remainder of 1979, he suffered from kidney infections and swelling in his legs. Upon his readmission to the hospital in December, it was discovered that the blood supply in his leg had been restricted, necessitating the amputation of his leg on January 1980.
STATEMENT OF THE CASE
The Johnsons filed suit against Dr. McMurray (later amended to include Dr. Griffith) alleging fraud, conspiracy to commit fraud, assault and battery, conspiracy to commit assault and battery, negligence, and wantonness.[1] The trial court, at the conclusion of all the evidence, directed a verdict as to both Defendants on the Plaintiffs' claims of fraud and conspiracy to commit fraud. The jury returned a verdict in favor of both Defendants on the remaining claims. This appeal followed.
THE DISPOSITIVE ISSUE
The primary issue presented on appeal is whether the trial court erred in directing a verdict for Defendants on the claims of fraud and conspiracy to commit fraud.[2]
*778 Appellants' claim of error on this issue is grounded on Code 1975, § 6-5-102, which provides:
"Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case."
DECISION
Although the "Alabama Medical Liability Act" does not explicitly include fraudulent concealment as a cause of action, this Court has recognized such a cause of action against a physician and hospital in Horn v. Citizens Hospital, 425 So. 2d 1065 (Ala.1982). The plaintiff in Horn began experiencing abdominal pain in 1972one year following her appendectomy. It was not until 1979 that X-rays revealed the presence of a needle remnant at the site of the appendectomy. The trial court granted the defendants' motion for summary judgment based solely on the statute of limitations defense. This Court affirmed, reasoning, under the facts of that case, that § 6-5-482(b), by its own terms, had pre-empted the fraudulent concealment statute of limitations and set the outer limits for the commencement of the action at four years.
Nevertheless, in its rationale for so holding, the Horn Court recognized fraudulent concealment as the basis for a medical malpractice context cause of action. Moreover, we find no justification for not following the traditional rules of statutory construction, which mandate that the two statutes§ 6-5-102 and § 6-5-482be construed in pari materia. Certainly, the holding in Horn that the express wording of § 6-5-482 precluded the operation of § 6-5-102 as against the contention that the latter statute extended the statute of limitationsdoes not suggest that the medical malpractice statute has abrogated fraudulent concealment as the basis for a cause of action. To the same extent, see Benefield v. F. Hood Craddock Clinic, 456 So. 2d 52 (Ala.1984).[3]
Although silence ordinarily does not constitute fraud, in dealings between persons standing in a confidential relationship, the law, as codified in § 6-5-102, imposes an obligation on the part of the one to safeguard the interests of the other; and the withholding of material facts is a breach of that duty and constitutes actionable fraud. Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So. 2d 403 (1969).
This Court has determined that the relationship between a doctor and his patient is a "confidential" one. Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940). The policy considerations for confidentiality in the doctor/patient relationship are grounded in the necessity on the part of the patient to fully disclose to his doctor all information essential to the patient's proper diagnosis and treatment, and in the corresponding duty on the part of the doctor to fully disclose to the patient facts necessary to enable the patient to intelligently exercise his right to control, to the extent feasible, his own health care. The Johnsons ground their claim for fraudulent suppression on the doctors' failure to inform them that Dr. McMurray would perform, or participate in, the sponge removal operation on Mr. Johnson. They point to the tendencies of the evidence indicating that Dr. Griffith knew that Mr. Johnson did not want Dr. McMurray to take any part in the second operation; and, yet, that at all times, both doctors intended for Dr. McMurray to participate in the surgery.
Additionally, they contend that the jury could reasonably infer from the evidence that Dr. McMurray failed to inform the Johnsons that he would be participating in *779 the surgery, knowing that the Johnsons were adamant about his nonparticipation. At the same time, contend the Johnsons, Dr. McMurray intended to participate in the operation, with or without Mr. Johnson's consent; and that if he could not convince Mr. Johnson to sign the consent form with his name on it, then he would convince Mr. Johnson to sign the form with Dr. Griffith's name on it, knowing that he would perform, or participate in, the surgery, under the guise of being Dr. Griffith's "assistant," as designated by Dr. Griffith's consent form.
This evidence, coupled with the undisputed fact that Mr. Johnson rejected Dr. McMurray's initial offer to perform the removal surgery, sought out Dr. Griffith for that purpose, and declined to sign Dr. McMurray's consent form, is sufficient to support the Johnsons' claims for fraud.
Finally, the Appellees' insistence that the trial court properly directed a verdict as to the fraud claims, because of the missing element of damages, is misplaced. If the jury is reasonably satisfied from the evidence that Mr. Johnson's right to withhold consent to Dr. McMurray's active participation in the removal operation was violated, then it is for the jury to determine what damages, if any, Mr. Johnson suffered. If the jury finds actual damages, its award, within its discretion, may also include punitive damages.
The point to be emphasized here is that, if the jury finds the requisite element of damages, it is not precluded, as a matter of law, from awarding damages for fraudulent concealment of Dr. McMurray's participation, even if it also finds that the removal surgery was successful and did not contribute to Mr. Johnson's subsequent loss of his leg. Such latter finding, if made by the jury, may be considered in its assessment of damages on the fraud claim, but it is not controlling. In other words, our holding does not eliminate the element of damages as one of the essential elements of a fraud claim in the instant context. Rather, it is our holding that the issue of damages, under the circumstances of this case, is one for the jury as in fraud cases generally.
Therefore, because we find sufficient evidence to support each of the elements of fraudulent suppression of a material fact, we hold that the trial judge was in error in directing a verdict for each Defendant on this claim.
OTHER ISSUES
Although we reverse the judgment on the issues of fraud and conspiracy to commit fraud, we address two other issues raised by the Appellants that may recur upon retrial of the cause:
1) Whether the trial court erred in refusing to allow the Plaintiffs' expert witness to refer to a pamphlet entitled "Current Opinions of the Judicial Council of the American Medical Association"; and
2) Whether the court erred by charging the jury that Dr. McMurray could not be liable for assault and battery if the Plaintiffs gave their consent to Dr. Griffith for the performance of the sponge removal surgery.
1. The "Learned Treatise" Issue
The rule in Alabama, generally, is that "a learned treatise, essay, or pamphlet on a subject of science or art, which is testified to by an expert on the subject as being a standard or trustworthy authority on the subject, is admissible as an exception to the hearsay evidence rule." C. Gamble, McElroy's Alabama Evidence, § 258.01(1) (3d ed. 1977). Extracts from the treatise, however, "are not admissible unless the treatise is first approved by an expert as authoritative and standard," and is relevant to the issue for which it is presented in the particular trial. C. Gamble, supra, § 258.01(2), (3).
In this case, the Plaintiffs attempted to introduce into evidence a pamphlet published by the American Medical Association entitled "Current Opinions of the Judicial Council." While it is well settled in this State that medical treatises are admissible, as a precondition or predicate to their admission, the rule requires that the party *780 seeking to introduce medical books authenticate them as "standard works within that profession." Comment, Learned Treatises as Direct Evidence: The Alabama Experience, 1967 Duke L.J. 1169, 1171 (1969).
We have searched the record thoroughly for some indication that the Plaintiffs' lawyer properly authenticated this pamphlet. The question that most closely bears on the requisite predicate is: "Does [the pamphlet] have within it pronouncements of standards of care for patients by doctors?" While that question is an appropriate preliminary inquiry, it falls short of the ultimate question: "Is the pamphlet recognized as an authoritative and standard work in the medical profession?" The requirement of the rule that the expert witness respond to this all-important question is more than a matter of form or a mere technicality.
What the writer in the Duke Law Journal called "The Alabama Experience" has been hailed for its liberality in relaxing the burden of proof as to scientific and artistic matters. But this liberality cannot be extended to preclude the necessity for authentication of the proffered publication as a recognized standard work within the particular field of art or science. This requisite predicate is the very foundation of the rule itself. Indeed, absent this authentication, there is no proof that the proffered document is in fact a learned treatise; thus its admissibility, as an exception to the hearsay rule, fails.
2. The Jury Charge Issue
Appellants also claim as error the trial judge's charge to the jury as follows:
"If you are reasonably satisfied from the evidence that the Plaintiff Lavoid Johnson gave his consent to Thomas Griffith for the sponge removal operation and that Dr. Griffith pursuant to that consent, was authorized, under the evidence in this case, to choose the Defendant Dr. McMurray as his assistant, then you cannot find that the Defendant Dr. McMurray was guilty of an assault and battery...."
At the time the above charge was initially given, Appellants made no objection. During deliberations, the jury asked the court for a recharge on the issue of assault and battery. The trial judge responded by giving the very same charge; thereupon, Appellants objected.
Recently, in Reece v. Simpson, 437 So. 2d 68 (Ala.1983), this Court held:
"First, we note that no objection was made to the court's oral charge and, therefore, we would be powerless to reverse even if the plaintiff's argument was meritorious. As we held in Record Data International, Inc. v. Nichols, 381 So. 2d 1 (Ala.1979):
"`Rule 51, ARCP specifies that error may not be assigned for the giving of a defective charge unless the party seeking to assign error objects to that portion of the charge which is defective before the jury retires to consider its verdict, and specifically states the matter to which he objects and the grounds of his objection....
"`Rule 51 affords the trial court an opportunity to correct any error in its charge before it becomes error with injury to reversal.'
"381 So.2d at 7."
In Reece, we determined that the charge given by the trial judge was correct, and that plaintiff's objection, even if timely, would not have been a meritorious one. Although the charge is hypothesized upon the jury's belief of the evidence favorable to the Defendants, we think the charge as given is confusing and misleading in light of the evidence that the Johnsons affirmatively demanded that Dr. McMurray not participate in any manner in the sponge removal surgery. (This point of confusion is demonstrated by the jury's inquiry during deliberations.) A jury question was presented with respect to the propriety of Dr. Griffith's choice of Dr. McMurray as his "assistant" for the sponge removal surgery in light of Mr. Johnson's insistence that he demanded of both doctors that Dr. McMurray take no part in the surgery. And we are confident that the trial court *781 will encounter no difficulty in making this clear upon retrial.
Ordinarily, a doctor is within his rights in choosing whomever he desires as his assistant, as long as the patient does not object. In this case, however, the jury was not bound, as a matter of law, to interpret Mr. Johnson's execution of Dr. Griffith's consent form as carrying with it the patient's consent for Dr. McMurray to act as Dr. Griffith's assistant, in view of the affirmative proof that Mr. Johnson did object. Therefore, because the charge is subject to being interpreted as "transferred intent," as a matter of law, we hold that the trial judge erred in so instructing the jury. If this jury instruction had been properly objected to, and its misleading tendencies called to the trial court's attention, the Johnsons' claim of reversible error would have been meritorious.
CONCLUSION
We have reviewed closely each of the remaining issues presented; examined the voluminous record; considered each of the adverse rulings by the trial judge which are apt to recur on retrial; and we find no further error. For the error earlier noted, however, the judgment of the trial court is reversed and this cause is hereby remanded to the trial court for further proceedings against both Defendants consistent with this opinion.
REVERSED AND REMANDED.
TORBERT, C.J., and SHORES, BEATTY and ADAMS, JJ., concur.
MADDOX, FAULKNER, ALMON and EMBRY, JJ., dissent.
EMBRY, Justice (dissenting):
I cannot agree with the majority that the trial court erred in directing a verdict for defendants on the Johnsons' claims of fraud and conspiracy to commit fraud. Great reliance is placed upon Horn v. Citizens Hospital by the majority in reversing because of the trial court's action regarding those claims. That reliance is grossly misplaced. Rather than recognizing a cause of action for fraudulent concealment, the Horn issue was whether fraudulent concealment could toll the statute of limitations as set out in § 6-5-482(b) of the Code. Indeed, I find no cases where an action for fraud against a doctor, for medical malpractice, has resulted in recovery absent evidence of fraudulent misrepresentation. The only alleged false misrepresentation was in connection with Dr. McMurray's future participation in the surgery to remove the sponge. There is no evidence of the required then-present intent not to perform (by intending to participate in the future surgery). Stated otherwise, there is no evidence that McMurray falsely misrepresented a then-present existing fact. See Purcell Company v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983). It should be noted that Mr. Johnson did not seek Dr. Griffith. Dr. McMurray procured his services for Mr. Johnson.
Contrary to the view of the majority, the jury could not have found damages had the question been submitted to it; there was no evidence of damages and none from which damages could be inferred.
Regarding the jury instruction issue: it shows that Dr. Griffith would not agree to perform the surgery unless Dr. McMurray assisted. It is logical to assume that the person who did the first surgery would be the most desirable assistant. Thus, the charge was correct and the jury's acquittal on the assault and battery claim was, of necessity, a conclusion that Johnson had consented to McMurray's participation in the sponge removal surgery.
Having found no error, I can only conclude that the judgment below should be affirmed.
MADDOX, FAULKNER and ALMON, JJ., concur.
ON APPLICATION FOR REHEARING
JONES, Justice.
*782 OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.[4]
TORBERT, C.J., and SHORES, BEATTY and ADAMS, JJ., concur.
MADDOX, FAULKNER, ALMON and EMBRY, JJ., dissent.
NOTES
[1] As we construe the Plaintiffs' statement of their respective claims (and as they concede on appeal), each of Mrs. Johnson's claims is derivative merely, seeking damages only for loss of consortium.
[2] Ordinarily, a claim for conspiracy to commit a wrong, and a claim for commission of that wrong, are not necessarily provable by the same evidence; i.e., the burden of proving the one is not necessarily met by proving the other. Here, however, the one (the alleged conspiracy to commit fraud) cannot exist without the other (the alleged commission of fraud), because the burden of proving fraudulent suppression, under the peculiar facts of this case, is met only if the proof also shows that the Defendants were acting in concert with respect to the alleged fraudulent concealment. Therefore, we need address only the single issue of Plaintiffs' fraud claim.
[3] Because of Horn`s and Benefield`s holdings, applying the medical malpractice act's statute of limitations, it is worthy of note that the shortest period of limitations here applicable is two years, with the outer limits of four years (as opposed to one year from the date of discovery). The amendment adding Dr. Griffith was filed well within the prescribed period. Thus, the statute of limitations is not an issue in the instant case.
[4] We note receipt, after release date of the original opinion, of the "Suggestion of Death" of Mr. Johnson. His death has no effect on these appellate proceedings. See A.R.A.P. 43(a). But, upon remand of this cause to the circuit court, the operative effect of A.R.Civ.P. 25 is invoked. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609725/ | 526 P.2d 1328 (1974)
TOM'S TAVERN, INC., a Colorado corporation, Plaintiff-Appellant,
v.
The CITY OF BOULDER, a municipal corporation, and Stephen P. Dickson (James Murray) as Director of Finance and Record of the City of Boulder, Defendants-Appellees.
No. 25902.
Supreme Court of Colorado, En Banc.
October 7, 1974.
*1329 Bisbee, Geil & Kezer, John H. Bisbee, Boulder, for plaintiff-appellant.
Walter L. Wagenhals, City Atty., Ronald B. Porter, Deputy City Atty., Boulder, for defendants-appellees.
GROVES, Justice.
This is an appeal from a summary judgment in favor of defendants. An action for a declaratory judgment and injunctive relief was brought by Tom's Tavern, Inc., holder of a hotel-restaurant liquor license. This challenged § 3-4 of the Revised Code of the City of Boulder which imposes an annual occupation tax upon businesses engaging in the sale of alcoholic beverages.
The ordinance in question is similar to those upheld in Post v. Grand Junction, 118 Colo. 434, 195 P.2d 958 (1948), and Springston v. Fort Collins, Colo., 518 P.2d 939 (1974). It provides for an annual $1500 fee for hotel and restaurant liquor licenses. The tax varies with the class of liquor license, but each license in a particular class is taxed alike.
At trial, plaintiff's counsel made an opening statement, explicitly detailing the evidence that he would proffer. Upon the close of the statement, the defendants moved for a summary judgment. The court granted the motion and judgment was entered thereon. We affirm.
I
The plaintiff first argues that, because the ordinance singles out only one occupation for the imposition of the tax, it violates the Equal Protection Clause of the Fourteenth Amendment. Further, plaintiff contends that, although it is within the power of the City of Boulder to levy an occupation tax, the only proper class upon which to levy is one which must include all *1330 occupations since no rational basis exists for selecting any particular occupation in view of the revenue raising purpose of the ordinance.
The powers of the City of Boulder to impose an occupation tax for the purpose of raising revenue is not doubted. Post v. City of Grand Junction, supra; Springston v. Fort Collins, supra. Although the equal protection question raised here has not been considered by this court, the law is well settled. In Oliver Iron Mining Co. v. Lord, 262 U.S. 172, 43 S. Ct. 526, 67 L. Ed. 929 (1923), the Court held that a state legislature may, consistent with the Fourteenth Amendment Equal Protection Clause,
"exercise a wide discretion in selecting the subjects of taxation, particularly as respects occupation taxes. It may select those who are engaged in one class of business and exclude others, if all similarly situated are . . . dealt with according to uniform rules."
The classification made by the legislature will not be open to objection "unless it precludes the assumption that [it] was made in the exercise of legislative judgment and discretion." Stebbins v. Riley, 268 U.S. 137, 45 S. Ct. 424, 69 L. Ed. 884 (1925).
Counsel for plaintiff claim that the liquor business is no different than any other business, that any distinction is imaginary and that a classification which includes only the liquor related businesses is necessarily arbitrary and capricious. We cannot agree. Arizona considered the identical question in Kaufman v. City of Tucson, 6 Ariz.App. 429, 433 P.2d 282 (1967). The court held that singling out of liquor related business for the tax burden was neither discriminatory nor arbitrary. The Court quoted McQuillin on Municipal Corporations with approval:
"`Classifications embodied in municipal licensing legislation must be based upon intrinsic, natural and reasonable distinctions germane to the police or revenue purpose of the law. The difference between the subjects need not be great; and if any reasonable distinction can be found to exist, the classification imposed by the licensing laws will be sustained. The classifications may reasonably distinguish between business or trades or between different methods of conducting the same general character of business or trade * * * It is inherent in the exercise of power to license or tax that a state or municipality, duly authorized by the state, be free to select the subject of taxation and to grant exemptions. Neither due process nor equal protection imposes upon a state any rigid rule of equality of taxation. The Supreme Court has repeatedly held that the inequality which results from the singling out of one particular class for taxation or exemption infringes no constitutional limitation. (Independent Warehouses v. Scheele, 331 U.S. 70, 67 S. Ct. 1062, 91 L. Ed. 1346 (1946)). * * * If no abuse appears, and especially in doubtful cases, courts will not interfere with a licensing classification.' 9 McQuillin on Municipal Corporations § 26.60 at 142 (3d Ed.Rev.). (Emphasis supplied)"
It has further been held that the same facts which justify classification for regulation justify classification for taxing purposes. Ex parte Asotsky, 319 Mo. 810, 5 S.W.2d 22 (1928). The liquor related businesses are historically treated as a class for regulatory purposes. Concern over the business of liquor sales and manufacturing as a distinct business is reflected in the U.S.Const. amend. XXI, the Colorado Constitution and C.R.S.1963, 75-2-1 et seq. Public interest is uniquely involved. It is clear that the liquor related businesses form a distinct and justifiable class for regulatory purposes, and thus for taxing purposes.
The trial court was correct in ruling as a matter of law that this classification is within the purview of the legislative body and cannot be assailed if there is some rational and justifiable basis for the classification made in the ordinance.
*1331 II
Plaintiff's next contention is that the Equal Protection Clause of the Fourteenth Amendment is violated in that the fee falls proportionately more heavily upon the less affluent license holder than upon the more affluent. This question was faced by California in American Locker Co. v. City of Long Beach, 75 Cal. App. 2d 280, 170 P.2d 1005 (1946). The court stated that:
"a license tax imposing the same amount upon all engaged in the same business, regardless of . . . profits received therefrom, is not an unreasonable discrimination against any particular person engaged in the business because its net profit is less than that of others engaged in the same business or because the imposition of the tax may even result in some person engaged in the business operating at a loss. (City of Los Angeles v. Los Angeles Independent Gas Co., 152 Cal. 765, 768, 93 P. 1006, and cases therein cited; Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44, 48, 41 S. Ct. 219, 65 L. Ed. 489.)"
A flat license fee will always result in some disparity between the more and the less affluent applicant. This disparity does not rise to a denial of equal protection as long as members within the same class are treated uniformly.
III
The plaintiff contends further that the tax in question violates the Colo.Const Art. X, Sec. 3 provision requiring uniformity. Jackson v. City of Glenwood Springs, 122 Colo. 323, 221 P.2d 1083 (1950), is dispositive here. There it was stated:
"Our court has consistently held that this constitutional provision refers to the levy of ad valorem taxes upon property, and does not apply to taxes imposed upon privileges and occupations."
The evidence proffered, of disparity, does not change the rule.
IV
Closely related to the equal protection argument is plaintiff's claim that the tax is confiscatory in that it will ". . . create a severe financial burden on liquor businesses marginally capitalized."
The rule is that a given tax is confiscatory if it is prohibitive of a whole occupation, not just of individual businesses. Kaufman v. City of Tucson, 6 Ariz. App. 429, 433 P.2d 282 (1967); Louisville v. Sagalowski, 136 Ky. 324, 124 S.W. 339 (Ct.App.1910). Measured by this standard, the tax cannot be held to be confiscatory. Plaintiff would have introduced evidence of the variations of the gross receipts of various holders of the hotel-restaurant licenses. This would not have tended to show that the tax prohibits the occupation. Further, that the tax may tend to discourage some who would otherwise go into the liquor related business, does not, even if true, amount to confiscation.
V
The final argument is that the ordinance is in violation of Colo.Const. Art. XXII vesting in the state legislature exclusive responsibility for regulating the liquor industry. The plaintiffs argue that the city, under the guise of taxing for the purpose of raising revenue, is regulating the industry, thereby encroaching upon the state's power. We do not agree.
The ordinance fails to provide for regulation which might indicate some exercise of the police power, and further, it explicitly states that "no delinquency in the payment of this tax shall be grounds for suspension or revocation of the liquor license." Post v. Grand Junction, 118 Colo. 434, 195 P.2d 958 (1948), as well as Springston v. Fort Collins, Colo., 518 P.2d 939 (1974), in upholding similar ordinances against similar allegations, note that this same provision indicates a taxing, not a regulatory measure.
Before the city council enacted the ordinance, it conducted preliminary investigation *1332 of the costs involved in administering the licensing procedure, and based the fee for the license on these anticipated cost figures. Although occupational taxes need not be levied in accordance with costs, as long as they are not confiscatory, Springston, supra, it is reasonable to assume from the city's procedure, that the council was attempting an equitable distribution of the tax burden. We hold that the purpose of the ordinance is, as it is purported to be, to raise revenue for the city. Any secondary effect of the ordinance to discourage entrants into the business will not affect its validity as a revenue raising measure enacted under the taxing power of the City of Boulder.
Judgment affirmed.
ERICKSON, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591913/ | 223 P.3d 359 (2009)
2009-NMCERT-007
STATE
v.
SOLIS-CORDOBA.
No. 31,797 (COA 29,255).
Supreme Court of New Mexico.
July 27, 2009.
Denial of Certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591919/ | 223 P.3d 506 (2009)
167 Wash.2d 710
STATE of Washington, Respondent,
v.
Cynthia Crisaundra BOSS, and
Paul Anthony Pelts, and each of them, Petitioners.
No. 81897-5.
Supreme Court of Washington, En Banc.
Argued October 13, 2009.
Decided December 17, 2009.
*507 Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Petitioner.
Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Respondent.
*508 C. JOHNSON, J.
¶ 1 This case involves a challenge to a conviction for first degree custodial interference pursuant to RCW 9A.40.060. Cynthia Boss was charged with intentionally denying Child Protective Services (CPS) access to her daughter, O.J.B-P., after CPS obtained a custody order awarding CPS legal custody of O.J.B-P. Boss argues the trial court committed reversible error because jury instruction 10 omitted one express element (lawfulness of the custody order) and one implied element (her knowledge of CPS's right to custody of her daughter) of first degree custodial interference and jury instruction 9 impermissibly commented on the evidence. The Court of Appeals affirmed Boss's conviction, concluding (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law; (2) although Boss's knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of first degree custodial interference, the issue could not be raised on appeal; and (3) the trial court's comment on the evidence was harmless error. We affirm on a slightly different basis, concluding (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) knowledge of the right to physical custody is not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court's comment on the evidence.
FACTS
¶ 2 O.J.B-P., the biological daughter of Boss and Paul Pelts, was born February 15, 2006. Prior to O.J.B-P.'s birth, CPS had filed dependency proceedings regarding Boss's two other children.[1] Upon learning of O.J.B-P.'s birth, CPS filed a dependency petition in juvenile court. On May 11, 2006, after determining that a risk of imminent harm to O.J.B-P. existed, the court issued a custody order granting the Department of Social and Health Services (DSHS) temporary custody of O.J.B-P. That same day, CPS representatives went to Boss's apartment to obtain physical custody of O.J.B-P., but the child could not be found. A hearing took place the following day, at which the court issued a shelter care order continuing CPS's legal supervision over O.J.B-P. That evening, CPS representatives returned to Boss's apartment and served Pelts with the order.
¶ 3 Because CPS's attempts to locate O.J.B-P. over the course of the next few days were unsuccessful, CPS obtained a writ of habeas corpus for her. On May 30, Boss informed a DSHS employee over the telephone that she was not going to make O.J.B-P. available to the agency. The following day, Boss was served with the writ of habeas corpus. Because she refused to divulge O.J.B-P.'s location, she was taken into custody. While in court, Boss was served with copies of the May 11 custody order, the shelter care order, and the writ of habeas corpus, but refused to provide any information to help CPS locate O.J.B-P.
¶ 4 At a second court hearing held June 1, Boss told the court that she could retrieve O.J.B-P. if she were released. Boss was released from custody later that day, but did not bring O.J.B-P. with her or otherwise make her available to CPS at the hearing on June 2. Another hearing was scheduled for June 8, but Boss, who had moved out of her apartment, did not appear. On August 22, a social worker with CPS was notified that O.J.B-P. had been found in Houston, Texas. The social worker flew to Houston where she took custody of O.J.B-P. and returned her to Washington.
PROCEDURAL HISTORY
¶ 5 The State charged Boss with first degree custodial interference.[2] Boss moved in *509 limine to preclude the State from introducing evidence relating to CPS's basis for seeking the custody order, specifically, CPS's history with Boss and her older children. After the prosecutor indicated that the State did not intend to offer this evidence, Boss's attorney challenged the lawfulness of the custody order. He argued that the court issued the order based upon what it "knew about the other children" and that the State should have been required to show there were grounds to believe O.J.B-P. was in danger. Report of Proceedings (RP) (Jan. 31, 2007) at 4. In response to Boss's argument about the custody order, the court stated, "[t]hat's for the judge, not the jury, I would assume. Otherwise, all that stuff that you don't want in, it is all coming in." RP (Jan. 31, 2007) at 5. When the court questioned whether Boss could challenge the lawfulness of the custody order, Boss's attorney acknowledged "the general proposition that if there is an order in place from the court, one must obey the order and not try to do an end-run around it," and stated he could find no law directly on point. RP (Jan. 31, 2007) at 6. He also conceded that "the lawfulness of the [custody] order ... isn't something [that] we can necessarily attack in this forum." RP (Feb. 7, 2007) at 4.
¶ 6 Boss made no objection when the State offered the custody order and writ into evidence at trial.[3] Later, the prosecutor asked the trial court to take judicial notice of the custody order for the purpose of instructing the jury that CPS had a lawful right to physical custody of O.J.B-P., as of the date the custody order was entered, May 11, 2006. The trial court concluded it possessed the authority to determine whether the juvenile court had lawfully entered the custody order and concluded it had. The jury instructions provided by the trial court included instruction 9, which instructed the jury CPS had a lawful right to custody of O.J.B-P., and instruction 10 (the "to convict" instruction), which provided the elements of first degree custodial interference. The jury convicted Boss as charged.
¶ 7 On appeal, Boss claimed instruction 10 omitted two elements of the crime: (1) the lawfulness of the custody order and (2) Boss's knowledge of the lawfulness of the custody order. At oral argument, Boss modified her argument regarding the second element and argued instead that her knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of the crime. Additionally, the Court of Appeals, sua sponte, raised the issue of whether the trial court had, in instruction 9, commented on the evidence by instructing the jury that CPS had a lawful right to custody of O.J.B-P.
¶ 8 The Court of Appeals affirmed Boss's conviction. State v. Boss, 144 Wash.App. 878, 184 P.3d 1264 (2008). The court concluded that the lawfulness of the custody order was a question for the trial court to decide as a matter of law. The court agreed with Boss's argument that her knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of first degree custodial interference but concluded that Boss could not raise this issue for the first time on appeal because she did not show that the error was manifest. Finally, the court ruled that the trial court had commented on the evidence by instructing the jury that, as a matter of law, the State had proved CPS had a lawful right to physical custody of O.J.B-P. The court held, however, that the error was harmless in light of the uncontested evidence admitted at trial.
ISSUES
1. Whether the lawfulness of the custody order was a question for the trial court to decide as a matter of law (Jury Instruction 10).
2. Whether Boss's knowledge of CPS's right to physical custody of O.J.B-P. was an implied element of first degree *510 custodial interference (Jury Instruction 10).
3. Whether the trial court's comment on the evidence merits reversal (Jury Instruction 9).
ANALYSIS
¶ 9 We review alleged errors of law in jury instructions de novo. State v. Miller, 156 Wash.2d 23, 27, 123 P.3d 827 (2005).
Lawfulness of the Custody Order
¶ 10 Boss argues instruction 10 omitted the element of the lawfulness of the custody order. In support of this argument, she claims RCW 9A.40.060 expressly includes the lawfulness of the order as a required element of a "to convict" instruction and determination of this element was within the province of the jury.
¶ 11 The language of the statute for first degree custodial interference provides in part:
A relative of a child under the age of eighteen or of an incompetent person is guilty of custodial interference in the first degree if, with the intent to deny access to the child or incompetent person by a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person, the relative takes, entices, retains, detains, or conceals the child or incompetent person from a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person and:
(a) Intends to hold the child or incompetent person permanently or for a protracted period.
RCW 9A.40.060(1) (emphasis added). In order for the jury to convict Boss of first degree custodial interference, the State had to prove, among other elements, that a person or entity other than Boss had a "lawful right to physical custody" of O.J.B-P. To prove this element, the State relied on the custody order giving CPS custody of O.J.B-P. Boss contends that the jury should have been required to determine whether that order was lawfully entered, alleging that the order's lawfulness is a fact that must be proved to sustain a conviction and must therefore be an element of the crime. We disagree.
¶ 12 The language of instruction 10 mirrors the language of the statute:
To convict the defendant of the crime of custodial interference in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That the defendant is a relative of [O.J.B-P.], a child under the age of eighteen;
(2) That on or about the period of time intervening between May 31, 2006 through August 22, 2006, the defendant, with the intent to deny access to [O.J.B-P.] by an institution, agency or person having a lawful right to the physical custody of such person, took, enticed, retained, detained, or concealed [O.J.B-P.] from an institution, agency or person having a lawful right to the physical custody of such person and intended to hold [O.J.B-P.] permanently or for a protracted period; and
(3) That any of the acts occurred in the State of Washington.
CP 45 (emphasis added). Instruction 10 contains the same elements as RCW 9A.40.060, including whether a person or entity other than Boss had a "lawful right to physical custody" of O.J.B-P. We reject Boss's argument that instruction 10 omits an element of the statute.
¶ 13 Whether a trial court may determine the lawfulness of a court order, as a matter of law, in the context of a prosecution for custodial interference, is an issue of first impression in Washington. However, in the context of prosecution for domestic violence no-contact orders, we have established that the lawfulness of a court order is a question for the trial court to decide as a matter of law. Miller, 156 Wash.2d at 24, 123 P.3d 827. The reasoning of Miller applies with equal force to the custody order at issue herein.
¶ 4 In Miller, the defendant requested a "to convict" instruction that would have required the jury to determine the lawfulness of the no-contact order he was charged with *511 violating. The trial court gave a "to convict" instruction that did not include the lawfulness of the court order relied upon by the State but, rather, simply required the jury to determine whether a no-contact order existed. We held that while the existence of a nocontact order is an element of the crime of violating such an order, the lawfulness of the order "is a question of law appropriately within the province of the trial court to decide as part of the court's gate-keeping function." Miller, 156 Wash.2d at 24, 123 P.3d 827. The crime included an element of existence, not lawfulness of the court order.
¶ 15 Similarly, whether CPS had a custody order for O.J.B-P., i.e., a lawful right to custody, was a question of fact within the province of the jury. Whether the order itself was lawful, i.e., whether the court granting the order was authorized to do so, whether the order was adequate on its face, and whether the order complied with the underlying statutes, is a matter of law within the province of the trial court.[4]
¶ 16 Relying on Miller, the Court of Appeals reasoned that it was the trial court's role to determine whether the custody order was valid, and hence relevant:
The trial court gave Boss's counsel a number of opportunities to dispute the custody order's validity. The trial court ultimately ruled, however, that the order was lawfully entered. Because this ruling was a proper exercise of the trial court's "gate-keeping function" to determine the custody order's validity as a matter of law, the trial court did not err by declining to include the question of the order's validity as an element of the offense in the "to convict" instruction.
Boss, 144 Wash.App. at 886, 184 P.3d 1264. We agree. While the existence of the custody order is an element of first degree custodial interference, the lawfulness of such an order is not.
Boss's Knowledge of CPS's Right to Physical Custody of O.J.B-P.
¶ 17 Boss argues instruction 10 omits the element of whether Boss had knowledge of CPS's right to the physical custody of O.J.B-P. She argues the element, while not expressly within RCW 9A.40.060, is implied by the common law. Boss's counsel raised this issue for the first time during oral argument before the Court of Appeals. The Court of Appeals accepted Boss's argument, "construing" the statute to conclude the implied knowledge element was omitted in the instruction. However, the court went on to hold that Boss could not raise this issue for the first time on appeal because she did not show that omission of the element was manifest error. In her supplemental briefing before this court, Boss does not appear to argue that the elements of the crime include an implied element of knowledge.[5] Somewhat oddly, the State seems to concede in its briefing that knowledge is an implied element of the crime. But like the Court of Appeals, the State argues any error in the instruction was harmless.
¶ 18 The initial problem in construing this statute is that neither party has pointed us to any deficiency in the statute, constitutional or otherwise, that requires "construing" RCW 9A.40.060 to add an element not otherwise present in the statute. The Court of Appeals pointed to no statutory deficiency, we cannot find any, and we conclude the statute requires no construction.
¶ 19 Knowledge of the existence of a custody order is inherent in the intentional element of the offense. A person cannot "intentionally" commit first degree custodial interference without being on notice of the underlying order. The State must establish a custody order existed and the defendant intentionally violated the order. The State must establish a defendant is aware of the *512 existence of the order to prove the defendant intentionally violated it. The State did so. We disagree with the Court of Appeals and hold that while knowledge of the custody order is involved in the prosecution of the crime, this knowledge is inherent in the intent requirement of first degree custodial interference. We do not have to "construe" RCW 9A.40.060 to add the element to the statute because it is already there.
Comment on the Evidence
¶ 20 Boss argues instruction 9 commented on the evidence by instructing the jury that CPS had a lawful right to custody of O.J.B-P.[6]
¶ 21 "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Wash. Const. art. IV, § 16. It is error for a judge to instruct the jury "that matters of fact have been established as a matter of law." State v. Becker, 132 Wash.2d 54, 64, 935 P.2d 1321 (1997).
¶ 22 Instruction 9 provided: "As of May 11, 2006, DSHS, Children's Protective Services and the State of Washington had [sic] lawful right to physical custody of [O.J.B-P]." CP 44. We agree that the improper "comment" in instruction 9 was in the trial court's incorporation of specific facts that commented upon the elements of instruction 10, i.e., the specific reference to CPS's lawful right to custody of O.J.B-P. As discussed above, whether CPS had a lawful right to custody is an element of first degree custodial interference and a question of fact within the province of the jury. While it was proper for the trial court to determine the lawfulness of the May 11 custody order in the course of determining the admissibility of that order, it was for the jury to determine whether it believed the State's evidence and witnesses and whether the State had proved beyond a reasonable doubt that CPS had a right to physical custody of O.J.B-P. on account of the lawful custody order.[7]
¶ 23 By commenting on the evidence, instruction 9 was an error. Boss claims that the comment is an error meriting reversal; the Court of Appeals concluded the error was harmless. Boss, 144 Wash.App. at 889, 184 P.3d 1264. The harmless error analysis, however, does not apply to judicial comment claims. "With trial-type errors, the Neder harmless error analysis asks the court to determine whether the result could have been the same without the error, which is a different standard than the presumption of prejudice we apply in our judicial comment cases under article IV, section 16." State v. Levy, 156 Wash.2d 709, 725, 132 P.3d 1076 (2006) (citing Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)).
¶ 24 A judicial comment on the evidence in a jury instruction is presumed prejudicial, and the burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted. State v. Jackman, 156 Wash.2d 736, 743, 132 P.3d 136 (2006). The State makes this showing when, without the erroneous comment, no one could realistically conclude that the element was not met. Levy, 156 Wash.2d at 725-27, 132 P.3d 1076. The proper analysis requires the State to bear the burden to show that Boss was not prejudiced by instruction 9.
¶ 25 Citing Becker, Boss argues that whether the State has provided sufficient proof that CPS had a lawful right to custody of O.J.B-P is irrelevant because "the only thing that matters is whether the trial court's comment took an element away from the jury's consideration." Suppl. Br. of Pet'r at 17 (citing Becker, 132 Wash.2d at 65, 935 P.2d 1321). But Boss misreads Becker. Whether or not sufficient evidence exists to prove the substance of the comment is only relevant to whether the comment is an error, *513 not to whether the error was harmless. See Becker, 132 Wash.2d at 65, 935 P.2d 1321 ("Whether the State produced sufficient evidence for a rational juror to find YEP [(Youth Education Program)] was a school is irrelevant to whether the jury instruction was correctly drafted." (emphasis added)).
¶ 26 Here, the State has met its burden to show that Boss was not prejudiced by the comment. The record fully supports the conclusion that the custody order was both lawful and properly admitted into evidence. The custody order gave the State custody of O.J.B-P., declaring, in pertinent part, that O.J.B-P. "shall be taken into custody... under the supervision of DSHS." Ex. 1, RP (Feb. 7, 2007) at 105. The trial court admitted the custody order into evidence without objection from Boss. At trial a CPS social worker testified that the custody order placed O.J.B-P. in CPS custody; Boss offered no evidence to rebut this testimony. Boss failed to raise this issue until oral argument before the Court of Appeals. Accordingly, no one could realistically conclude that the element was not met in this case. The trial court's error in commenting on the evidence through instruction 9 was therefore not prejudicial.
CONCLUSION
¶ 27 We affirm Boss's conviction, concluding (1) the lawfulness of the custody order was a question for the trial court to decide as a matter of law, (2) Boss's knowledge of CPS's right to physical custody of O.J.B-P. was not an implied element of first degree custodial interference, and (3) Boss was not prejudiced by the trial court's comment on the evidence.
WE CONCUR: ALEXANDER, Chief Justice, and OWENS, FAIRHURST, MADSEN, JOHNSON, SANDERS, STEPHENS, and CHAMBERS, Justices.
NOTES
[1] Boss has two older children, but Pelts is not their biological father. These children were the subject of dependency proceedings due to allegations of physical and sexual abuse at the hands of Boss and Pelts. Both children had been placed in court-ordered protective custody.
[2] The first degree custodial interference statute provides in part:
A relative of a child under the age of eighteen... is guilty of custodial interference in the first degree if, with the intent to deny access to the child ... [by an] agency, or other person having a lawful right to physical custody of [the child], the relative takes, entices, retains, detains, or conceals the child ... [from an] agency, or other person having a lawful right to physical custody of [the child] and ... [i]ntends to hold the child ... permanently or for a protracted period.
RCW 9A.40.060(1)(a).
[3] The shelter care order was not entered into evidence due to the prejudicial nature of some of its contents.
[4] Challenges to the lawfulness of an order should be made to the issuing court and not another judge. Miller, 156 Wash.2d at 31, 123 P.3d 827.
[5] Boss argues the elements of the offense of custodial interference in the first degree are "(1) a relative of a child, (2) with intent to deny access to the child, (3) takes the child, (4) from someone who has legal custody, (5) and intends to permanently or for a protracted period hold the child." Pet. for Review at 6-7; Suppl. Br. of Pet'r at 9. Absent from these elements is the parent's knowledge of the agency's right to the physical custody of the child.
[6] This issue was also not raised at trial, nor in Boss's briefing to the Court of Appeals, but during oral argument before the Court of Appeals.
[7] The State concedes this error, admitting that the instruction 9, as drafted, "went too far" in incorporating specific facts. The State suggests the proper wording is: "an agency has a lawful right to custody of a child if granted by court order." We agree that such language would avoid the error present here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1518660/ | 953 S.W.2d 405 (1997)
F.E. APPLING INTERESTS, Individually and on Behalf of Boca Chica Development Co., Appellant,
v.
McCAMISH, MARTIN, BROWN & LOEFFLER, Appellee.
No. 06-96-00084-CV.
Court of Appeals of Texas, Texarkana.
Argued July 24, 1997.
Decided August 12, 1997.
Rehearing Overruled September 3, 1997.
Arnold Anderson Vickery, Archer Waldner & Vickery, Houston, David M. Gunn, Scott Rothenberg, Rothenberg & Gunn, Bellaire, William B. Emmons, Emmons & Associates, Houston, for Appellant.
H.L. Buddy Socks, McCamish, Socks, Kolb, San Antonio, for Appellee.
*406 Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
OPINION
ROSS, Justice.
F.E. Appling Interests, individually and on behalf of Boca Chica Development Company, appeals a judgment in favor of the defendant-appellee, McCamish, Martin, Brown & Loeffler. The appellant contends that the trial court erroneously granted summary judgment against its negligence claim. The judgment is reversed and the case remanded.
F.E. Appling Interests, a Texas general partnership, was the managing partner of Boca Chica Development Company ("Boca Chica"), a Texas joint venture. Floyd E. Appling, Jr., a co-trustee and income beneficiary of two of the four Appling family trusts comprising the appellant, executed an affidavit describing many of the facts leading to this case. According to Appling's affidavit, Boca Chica obtained a loan and line of credit from Victoria Savings Association ("VSA") in 1985 in order to finance a real estate development. Boca Chica accepted the loan on the condition that VSA later expand the line of credit. However, in 1987, VSA decided not to extend the additional credit.
In 1988, Boca Chica went bankrupt, and the appellant brought a lender liability claim against VSA, seeking damages in excess of $15 million. Trial was set to begin on March 13, 1989. The appellant feared that the Federal Savings & Loan Insurance Corporation ("FSLIC") would take over VSA before a judgment could be obtained. Therefore, the appellant was anxious to settle. The parties entered into settlement negotiations in early March 1989. Even as the parties worked toward an agreement, the appellant worried about whether any agreement would be enforceable against the FSLIC. 12 U.S.C.A. § 1823(e) (West Supp.1997) provided that no agreement would be enforceable against the FSLIC unless the agreement:
(A) is in writing,
(B) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,
(C) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and
(D) has been, continuously, from the time of its execution, an official record of the depository institution.
Appling distrusted VSA's representations that the settlement agreement complied with the requirements of Section 1823(e). Therefore, Appling agreed to sign the settlement agreement if VSA's attorneys would affirm that it met the requirements of Section 1823(e). The parties signed a settlement agreement dated March 8, 1989 and March 9, 1989. The agreement provided, in part:
[B]oth Victoria and its counsel represent to Plaintiffs that (a) this agreement is in writing; (b) it is being executed by both Victoria and Plaintiffs contemporaneously with the acquisition of these assets by Victoria; (c) that the Agreement has been approved by the Board of Directors of Victoria Savings Association and that such approval is reflected in the minutes of said board (a copy of which shall be attached to this Agreement); and (d) that a copy of this Agreement shall be from the time of its execution continuously maintained as an official record of Victoria; all in accordance with 12 U.S.C. § 1823(e).
On March 9, 1989, the VSA Board of Directors ("VSA Board") approved the settlement.
The settlement agreement was signed by Ralph A. Lopez, who was an attorney employed by the appellee. In his deposition, Lopez stated that he was VSA's attorney of record for the lawsuit and that he signed the settlement agreement within the course and scope of his employment with the appellee.
On February 16, 1989, the VSA Board adopted a resolution consenting to the Texas Savings and Loan Commissioner putting VSA under a state of "voluntary supervision." The resolution gave Jerry G. Payne, a representative of the Texas Savings and Loan Department, the power to perform *407 many functions, including settling lawsuits against VSA. On March 3, 1989, the VSA Board members and James L. Pledger, the Savings and Loan Commissioner, signed an agreed order placing VSA under Payne's voluntary supervisory control. The order provided in part that "no meeting of the Board shall occur without written approval of the Supervisor prior to the meeting (and the Supervisor shall be allowed to attend any such meeting), and no action taken at any Board meeting will be valid or binding on the Association unless and until such action is approved in writing by the Supervisor or the Commissioner." In his deposition, Lopez claimed that he did not know about the supervisory agreement when the settlement agreement was signed.
Payne never ratified the settlement agreement. The agreement was never entered as a final judgment. On June 29, 1989, VSA was declared insolvent, and the FSLIC was appointed receiver. Subsequently, the appellant's case against VSA was removed to federal court. The Resolution Trust Corporation ("RTC") was substituted for the FSLIC in September 1989. The RTC contended that the settlement agreement was not binding. The federal court agreed. It concluded that the VSA Board gave up its authority to enter into a settlement when it signed the agreed supervisory order on March 3, 1989. Therefore, the VSA Board did not have the authority to settle with the appellant on March 9, 1989. As a result, the settlement agreement was not binding on the RTC, because it was not "approved by the board of directors of the depository institution," as required by 12 U.S.C.A. § 1823(e)(1)(C).
On March 8, 1991, the appellant sued the appellee, stating negligence and fraud actions stemming from the appellee's representation that the VSA Board approved the settlement agreement. On August 18, 1994, the appellee filed a motion for summary judgment. The motion presented one ground for summary judgment against the negligence claim: that the appellee owed no duty to the appellant. On October 18, 1994, the trial court granted summary judgment on the negligence claim, but denied summary judgment on the fraud claim. On September 17, 1996, the trial court entered final judgment, ordering that the appellant take nothing on its negligence claim and dismissing the fraud claim without prejudice. The appellant appeals the denial of its negligence claim.
Summary judgment is appropriate if the summary judgment evidence
on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show[s] that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.
TEX.R. CIV. P. 166a(c). When deciding whether a disputed issue of material fact precludes summary judgment, an appellate court views all evidence in the light most favorable to the nonmovant and resolves all doubts in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant movant can prevail on summary judgment by establishing conclusively against the plaintiff one element of the plaintiff's cause of action. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex.1996).
The appellant alleges that the appellee negligently misrepresented that the settlement agreement met the requirements of Section 1823(e). The appellee argues that the appellant is raising a professional malpractice claim. The appellee notes that an attorney is not liable to third parties for professional malpractice because an attorney does not owe a duty of professional care to nonprivies. The Texas Supreme Court recently noted:
At common law, an attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney's negligent representation of the client. Without this "privity barrier," the rationale goes, clients would lose control over the attorney-client relationship, and attorneys would be subject to almost unlimited liability.
Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996) (citations omitted). Barcelo held that "an attorney retained by a testator or settlor *408 to draft a will or trust owes no professional duty of care to persons named as beneficiaries under the will or trust." Id. at 579.
The appellee's argument is fallacious. The appellant has not brought a professional malpractice claim. Instead, the appellant has brought a negligent misrepresentation claim. Texas recognizes a cause of action for negligent misrepresentation, as defined by RESTATEMENT (SECOND) OF TORTS § 552 (1977). Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex.1991). Restatement (Second) of Torts § 552(1),(2) (1977) provides:
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
A negligent misrepresentation claim is not equivalent to a professional malpractice claim. "Under [a negligent misrepresentation] theory, liability is not based on the breach of duty a professional owes his clients or others in privity, but on an independent duty to plaintiff based on [the defendant's] manifest awareness of plaintiff's reliance [on the misrepresentation] and intention that the plaintiff so rely." Horizon Financial, F.A. v. Hansen, 791 F. Supp. 1561, 1574 (N.D.Ga.1992). "Privity is not a necessary element of a claim for negligent misrepresentation." Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230, 236 (Colo.1995). Therefore, an attorney can be subject to a negligent misrepresentation claim in a case in which he is not subject to a professional malpractice claim. Id. at 235-40; Kirkland Constr. Co. v. James, 39 Mass. App.Ct. 559, 658 N.E.2d 699, 700-02 (1995).
The basis for a negligent misrepresentation claim is the relationship of trust created when an attorney makes representations to a third party in order to induce the third party's reliance. For example, in Kirkland, Kirkland agreed to renovate office space for Write Now after being assured by Choate, Hall, & Stewart, Write Now's law firm, that Write Now had the ability to pay for the renovation. After Write Now failed to pay for the renovation, Kirkland brought suit against Choate, Hall, & Stewart, alleging negligent misrepresentation. In reversing the trial court's dismissal of Kirkland's case for failure to state a claim, the appeals court stated:
First, Kirkland does not allege that it sought legal advice from Choate, Hall; it sought assuring information from the lawyers about their client. Second, the complaint may be read to allege that Choate, Hall made factual representations about arrangements its client "had made to ensure payment to Kirkland." Choate, Hall's objective was to induce Kirkland to enter into a contract for the benefit of its client, itself, and, incidentally, Kirkland. That combination, if Kirkland can prove it, may well be significant. Third, Kirkland alleges that Choate, Hall knew and intended that Kirkland would rely on the representations in its letters, and Kirkland reasonably so relied. And fourth, the representations were allegedly false, careless, and harmful. Those allegations, if they are proven, are the stuff of liability.
Kirkland, 658 N.E.2d at 701 (citations omitted). When an attorney undertakes such a course, he assumes a relationship with the third party that is similar to privity:
When a lawyer at the direction of her client prepares an opinion letter which is addressed to the third party or which expressly invites the third party's reliance *409 she engages in a form of limited representation. Although the attorney is paid by and represents her client, in the opinion letter she expressly states (with her client's consent) that she is rendering a legal service to the third party. Commentators have agreed that the attorney owes a duty to the third party if the opinion letter is either addressed to the third party or expressly authorizes his reliance.
Crossland Sav. FSB v. Rockwood Ins. Co., 700 F. Supp. 1274, 1282 (S.D.N.Y.1988) (citation omitted). For example, in New York, courts impose liability for negligent misrepresentation when the attorney and third party have "a relationship so close as to approach that of privity." Prudential Ins. Co. v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 590 N.Y.S.2d 831, 605 N.E.2d 318, 320 (1992). Such a relationship exists if three criteria are present:
(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance.
Id. at 321-22. These criteria, which are similar to the requirements of Restatement (Second) of Torts § 552, can create a duty when an attorney provides an opinion letter to a third party at the request of his client. Prudential, 590 N.Y.S.2d 831, 605 N.E.2d at 320; see Petrillo v. Bachenberg, 139 N.J. 472, 655 A.2d 1354, 1359 (1995).
By recognizing a cause of action for negligent misrepresentation, we do not undermine the requirement of strict privity that is usually required for a third party to assert a claim against an attorney. For example, the Barcelo plaintiffs would have no negligent misrepresentation cause of action because the defendant never made a representation to them. In fact, only two Texas cases present fact situations implicating Section 552.
In First Mun. Leasing Corp. v. Blankenship, Potts, Aikman, Hagin and Stewart, 648 S.W.2d 410, 412-13 (Tex.App.-Dallas 1983, writ ref'd n.r.e.), First Municipal Leasing Corporation ("First Municipal") purchased The System Works' right to receive payments under a contract with Fort Bend County ("the County"). First Municipal then arranged to sell this right to Richardson Heights Bank and Trust ("Richardson Heights"). Before purchasing the right to receive payments, Richardson Heights requested a letter from an attorney concerning whether The System Works' contract was a binding legal obligation of the County. First Municipal requested that The System Works provide such an opinion. The System Works employed Blankenship, Potts, Aikman, Hagin and Stewart ("Blankenship, Potts") to generate an opinion. Blankenship, Potts knew that the opinion was to be given to a third party; however, the opinion letter was addressed solely to The System Works. The letter concluded that the contract was binding on the County. After First Municipal and Richardson Heights received the letter, they consummated the transaction. Later, it was determined that the County was not obligated to The System Works, so First Municipal purchased the contract from Richardson Heights and sued Blankenship, Potts for damages resulting from the law firm's negligent preparation of the opinion letter. The trial court granted summary judgment for Blankenship, Potts, and the court of appeals affirmed, partly because Blankenship, Potts owed no duty to a nonclient, such as First Municipal.
In Bell v. Manning, 613 S.W.2d 335, 335-38 (Tex.Civ.App.-Tyler 1981, writ ref'd n.r.e.), J.W. Guill, a building contractor, agreed to build a house for the Bells. Guill and the Bells visited the office of attorney Manning, who had been employed by Guill to prepare a mechanic's and materialman's lien. Guill and the Bells were met by Manning's secretary, Sexton, whom the Bells mistook for Manning. Upon Sexton's urging, the Bells signed a deed of trust to a bank, even though they were paying cash for the house. After the bank foreclosed on the house, the Bells sued Manning, claiming that Sexton negligently misrepresented to them that they needed to execute the deed of trust in order to make the transaction legal. The trial court granted summary judgment in favor of Manning, and the court of appeals affirmed. The court *410 pointed to cases holding that "an attorney is not liable to a party, other than his client, for damages resulting in the performance of his service requiring professional skill and ability." Id. at 338. The court concluded that Sexton's remarks were not negligent misrepresentations, but that even if they were, there was no liability because Manning owed no duty to the Bells.
First Municipal and Bell failed to recognize that strict privity may not be required in a negligent misrepresentation cause of action. The concerns behind the strict privity requirement are not applicable here. Crossland, 700 F.Supp. at 1283, discussed some of these concerns:
As to the loss of confidentiality, where the opinion letter is addressed to the third party at the direction of the client, any resulting loss of confidentiality is as a result of the client's own decision and not that of the attorney. The sacrifice of confidentiality is the consequence of the client's choice. As to zealous representation, the rendering of an opinion to a third party at the client's direction for the advancement of the client's interests does not detract in any way from the attorney's loyalty to her client; she is serving her client's interest by rendering the opinion. That the risk of liability may induce caution is not inappropriate. The rendering of a legal opinion is a service of the attorney's duties as to which judgment is expected to prevail over zeal. Finally, as to the ethical prohibition on the attorney's representation of an adverse party, that prohibition is not present where the client recognizes the potential conflict and nonetheless directs the attorney to furnish the opinion to the adverse party.
See also Vereins-Und Westbank, AG v. Carter, 691 F. Supp. 704, 715-16 (S.D.N.Y.1988). In the instant case, a liability finding would not compromise the appellee's loyalty to its client because the disputed representation was made in order to effectuate the client's desire to obtain a settlement with the appellant. Therefore, we hold that the appellee is not entitled to summary judgment on the ground that it owed no duty to the appellant. Because we conclude that the appellee may have a duty to the appellant under Restatement (Second) of Torts § 552, we need not address the appellant's contention that the appellee voluntarily assumed a duty.
The judgment of the trial court is reversed, and this cause of action is remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1748053/ | 714 S.W.2d 414 (1986)
INA OF TEXAS, Appellant,
v.
R.D. LEONARD, Appellee.
No. 04-85-00162-CV.
Court of Appeals of Texas, San Antonio.
July 9, 1986.
Rehearing Denied August 7, 1986.
Richard J. Reynolds, III, San Antonio, for appellant.
W. Burl Brock, San Antonio, for appellee.
Before CADENA, C.J., and BUTTS and DIAL, JJ.
OPINION
DIAL, Justice.
R.D. Leonard, appellee, sustained a serious hand injury when he was shot while attempting to load a defective gun. The gun had recently been purchased at Mac's Gun Rack, an establishment owned by Arthur McClure. Leonard sued McClure seeking damages and McClure turned to *415 his insurance company INA, appellant in this case, to provide his defense. INA claimed that McClure's policy excluded "products and completed operations," the type of coverage which would have extended to the injury suffered by Leonard. Consequently, INA refused to defend McClure. McClure then retained his own counsel, and after a trial, judgment was rendered in favor of Leonard in the amount of $125,000. Leonard took an assignment of interest from McClure to pursue any cause of action the latter might have against INA for its failure to defend. Leonard, as judgment creditor and assignee of McClure, brought this suit against INA.
The controversy centers around the effectiveness of subsequent endorsements and their relationship to the main policy and to each other. The primary question for our consideration is whether the endorsement included coverage for products and completed operations hazards. If so, INA would be required to pay the $125,000 judgment secured by Mr. Leonard against McClure.
The material background facts are as follows: For several years McClure had purchased insurance coverage for his gun shop from INA's agent, Eckhardt & Klier. These policies excluded products and completed operations coverage. Early in 1981 McClure sought to renew the insurance policy and was sent another policy which included TxMP 200, a broad liability endorsement, and TxMP 230, the completed operations and products hazard exclusion provision. That endorsement provided, "it is agreed that the insurance does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard." Approximately one month later McClure apparently requested increased coverage and the policy was changed by TxMP 202, the change endorsement. That provision stated:
In consideration of an additional premium of $366.00, it is understood and agreed TxMP-101 is hereby added to Loc 1 Bldg 1 Coverage A, Coverage b is hereby increased to $45,000 and TxMP 123 is hereby added. TxMP-202-Comprehensive General Liability is hereby added to Section II Endts 101, 123, 202 are attached.
Endorsement 202, the "Comprehensive General Liability Endorsement," provided as follows:
The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence, 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, but the Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Company's liability has been exhausted by payment of judgments or settlements.
Additionally, at the time these new endorsements were executed, no exclusionary endorsement was re-issued. Thus, the policy which was in effect at the time of the accident contained a broad "general liability" endorsement plus the exclusionary endorsement (TxMP 230). The question for our consideration, then, is to ascertain the effect of the later general liability endorsement (TxMP 202) on the earlier exclusionary endorsement (TxMP 230). INA claims that we must look at the policy as it existed in its entirety on the date of the incident, including all endorsements, and disregard the chronology of the subsequent endorsements. Leonard, on the other hand, claims that the later comprehensive general liability endorsement superseded the earlier exclusionary endorsement and urges a construction favoring the later TxMP 202 endorsement.
The trial court found that coverage did exist on the date of the accident and ordered that INA pay the $125,000 judgment to Mr. Leonard. In his Findings of Fact *416 and Conclusions of Law, the trial judge concluded that the subsequent endorsement changed the policy to provide the insured with broad liability coverage, including completed operations and products liability coverage. We agree with this finding. Well established principles of insurance and contract law required a finding that Endorsement 202 was in effect at the time of the accident and provided for the coverage at issue.
It is clearly the law in Texas that contract theory applies to the interpretation of insurance policies and such agreements should be construed accordingly. General American Indemnity Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660, 661 (1960). If a valid modification of an original contract has been made, the terms of the latest contract prevail if sufficient consideration has been exchanged. National Farmers Organization v. Smith, 526 S.W.2d 759, 765 (Tex.Civ.App.-Corpus Christi 1975, no writ). The findings of fact indicate that the later endorsements were added pursuant to extra premiums being paid by McClure and that they "changed" the policy. Since no challenge has been made to this finding, we assume that the modification was valid. See also, Willeke v. Bailey, 144 Tex. 157, 189 S.W.2d 477, 479 (1945); Hall v. Professional Leasing Associates, 550 S.W.2d 392, 394 (Tex.Civ. App.-Dallas 1977, no writ); Ed Hoffman Motors v. G.F.C. Corp., 304 S.W.2d 216, 217-18 (Tex.Civ.App.-San Antonio 1957, writ ref'd n.r.e.) (when two contracts between same parties are inconsistent, later one is conclusively presumed to supersede).
We agree with Leonard's claim that these cases provide persuasive authority for giving greater weight to the later endorsements. These decisions are based in large part on the premise that the modifications represented the latest expression of the parties' intent regarding their agreement and that they should therefore prevail. In the present case it is undisputed that the later endorsements were added without any exclusionary provision as had been the usual procedure in prior dealings between the parties. Additionally, the testimony suggested that TxMP 202 was customarily utilized to broaden coverage already existing under TxMP 200. Consequently, it is certainly reasonable to infer that the broad liability coverage was intended as an addition to the contract (since no exclusionary provision was re-issued) and should be given significant attention in our interpretation of the parties' agreement. We view the cases discussed above, when considered along with those specifically addressing insurance contracts, as persuasive authority for Leonard's claim that the policy included coverage for products and completed operations hazards.
While we found no Texas cases with facts similar to those we are faced with here, other jurisdictions have addressed similar cases. These courts have consistently held that subsequent conflicting endorsements supersede the master policies with which they conflict. For example, the Louisiana and New Mexico Supreme Courts held that subsequent conflicting insurance endorsements govern the interpretation of the entire contract if it is subject to more than one reasonable construction. Farr v. Pacific Mutual Life Insurance Co., 200 So. 865, 867 (La.1941); Ivy Nelson Grain Co. v. Commercial Union Insurance Co. of New York, 80 N.M. 224, 453 P.2d 587, 589 (1969). Other appellate courts have followed this line of reasoning and have viewed later endorsements as controlling the interpretation of the contract when uncertainties exist. See e.g., Truck Insurance Exchange v. Marks Rentals, Inc., 288 Md. 428, 418 A.2d 1187, 1191 (1980) (stated that later endorsement supersedes conflicting terms in policy when insurer responsible for drafting of instrument); Hamill v. Nationwide Mutual Insurance Co., 499 S.W.2d 892, 898 (Tenn.App.1972) (stated that conflicting provisions of endorsement or rider take precedence over terms of initial policy); see also, J. APPLEMAN, 13A INSURANCE LAW AND PRACTICE §§ 7537, 7538 (rev. ed. 1976).
Although the cases cited above involved conflicts between the initial insurance policy *417 and later endorsements, and the present case involves conflicting endorsements, we find that this distinction makes no difference. In fact, it may be viewed as strengthening a position favoring the later endorsement. A later provision which is held to supersede the master policy itself would, logically, also supersede an earlier endorsement which is in conflict, since the latter is merely a constituent part of the contract as a whole. This view is shared by Appleman's Insurance Law and Practice which states that when several riders or endorsements appear on an insurance policy, the last in point of time is controlling. J. APPLEMAN, 13A INSURANCE LAW AND PRACTICE § 7537 (rev. ed. 1976).
We recognize that INA disagrees with this interpretation and maintains that chronology is immaterial, advocating instead a strict "four-corners" approach to interpreting the insurance contract. However, the case upon which INA relies, Government Employers Insurance Co. v. Lally, 327 F.2d 568, 570 (4th Cir.1964), is distinguishable from the facts before us since the policy in the present case contains no specific language which limits the application of endorsements as was the case there.
We find that Texas insurance law is in harmony with the principals discussed above. It is settled law in Texas that we must construe insurance policies in favor of the insured when ambiguity exists, Aetna Insurance Co. v. Houston Oil & Transportation Co., 49 F.2d 121, 123 (5th Cir. 1931), and we must strictly construe exceptions and words of limitation in favor of the insured. Glover v. National Insurance Underwriters, 545 S.W.2d 755, 761 (Tex. 1977). If there are repugnant conditions in a policy we must interpret the contract in favor of the insured to prevent forfeiture, defeat, or diminution of coverage if possible. Haywood v. Grand Lodge of Texas K.P., 138 S.W. 1194, 1196 (Tex.Civ.App.- Galveston 1911, no writ). This holds true even if the insurer's position appears to be more reasonable than the one offered by the insured. Glover v. National Insurance Underwriters, 545 S.W.2d at 755; see also, Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, 763 (1953) (when language in policy is subject to more than one reasonable construction, court must apply interpretation which favors insured and permits recovery).
We agree with INA's position that a court must generally give effect to each provision of an insurance contract. However, the present case involves an unusual situation wherein the contract contains irreconcilable conflict. We must therefore apply the rules discussed above which require that we favor the insured and accept his interpretation of the contract provided it is reasonable. The position which Mr. Leonard has urged, favoring the broad liability coverage under TxMP 202, certainly meets this test. It is logical, fair, and supported by well established principals of contract and insurance law. We therefore conclude that TxMP 202 governs the interpretation of the policy and that the completed operations and products hazard coverage was effective on the date of Mr. Leonard's accident.
We hereby overrule INA's points of error and affirm the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2419303/ | 700 S.W.2d 635 (1985)
RGS, CARDOX RECOVERY, INC. and Spearman-Tertiary, Ltd., Appellants,
v.
DORCHESTER ENHANCED RECOVERY CO., et al., Appellees.
No. 13-85-066-CV.
Court of Appeals of Texas, Corpus Christi.
October 31, 1985.
Rehearing Denied November 27, 1985.
*637 John W. Bickel, II, Mark D. Summers, William A. Brewer, III, Dallas, for appellants.
Frank Finn, Rachelle Hoffman Glazer, Michael V. Powell, Dallas, for appellees.
Before NYE, C.J., and DORSEY and BENAVIDES, JJ.
OPINION
DORSEY, Justice.
This is an appeal from a summary judgment in an action for interpretation or reformation of the terms of a joint venture agreement. We affirm the judgment of the trial court.
The disputed language within paragraph 9.2 of the Joint Venture Agreement, entitled Management Committee, provides in part: "No Management Committee meeting may be held or action taken unless voting members representing aggregate venture percentage of at least seventy-five percent (75%) are present and voting, and all decisions except as otherwise herein provided shall be by majority vote...." Appellee urged, and the trial court agreed, that such language is unambiguous and means that at least seventy-five percent of the venture are present and voting on each issue in order to reach a decision. Appellant argues that this provision is a requirement for a quorum in order to transact business; that after the quorum of 75% has been initially reached, the committee can transact business based on a majority of the represented shares.
We first determine whether the contractual provision is ambiguous. If, after applying the rules of contract interpretation, the disputed contractual provision remains reasonably susceptible of more than one meaning, the provision is ambiguous. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If the contract is ambiguous, extrinsic evidence may be admitted to show the circumstances surrounding the drafting of the disputed provision in order to glean the intentions of the parties. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517 (Tex.1980).
*638 Transpetco I Joint Venture was formed on April 11, 1979, for the purpose of recovering oil and gas by means of carbon dioxide injection, and the joint venture agreement was executed. Under that agreement, field operations are to be conducted by an operator, who is selected or removed by the joint venture's Management Committee. The composition and voting procedures for the Management Committee are set forth in paragraph 9.2 of the joint venture agreement:
9.2 Management Committee. The Management Committee shall consist of one representative of each of the Joint Venturers, together with representatives of CAI and RGS as hereinafter provided, which representatives shall sometimes be referred to herein as members. Each of the Joint Venturers may remove and replace its representative on the Management Committee at any time. No Management Committee meeting may be held or action taken unless voting members representing aggregate Venture Percentages of at least seventy-five percent (75%) are present and voting, and all decisions except as otherwise herein provided shall be by majority vote of those voting members present, with one vote being allocated to each representative with the vote being weighted or equal to their respective Venture Percentages in the Joint Venture.... (Emphasis added.)
On February 1, 1984, at a meeting of the Management Committee, a vote was called on the issue of whether appellant RGS should be installed as the operator instead of appellee Dorchester Enhanced Recovery Company. Dorchester Gas Producing Company, Halliburton Company, and Texas Energy Services, Inc., although voting on previous issues at the meeting, stated that with respect to changing operators each was "present, but not voting." RGS, Cominco and Spearman, representing 54.0625% of the ownership interests in the joint venture, voted affirmatively on the motion to remove Dorchester as operator and to install RGS as operator. Appellees urge, and the trial court agreed, that because less than 75% of the interests were both present and voting on the issue, it failed to carry. Appellant argues that the clause means a quorum requirement which, once met, would allow the committee to take action by a majority vote.
Appellants filed a declaratory judgment action to enforce the vote and to declare that appellees' conduct was ineffective to block the change in operator, or in the alternative, for reformation of the disputed paragraph.
Appellees responded and filed their motions for summary judgment contending that Section 9.2 supported their position as a matter of law.
The propriety of the summary judgment is being attacked. As this is a case involving the interpretation of a contract, if the contract is found to be unambiguous, a summary judgment is proper. If the contractual provision in dispute is found to be ambiguous, the summary judgment proof will be examined to see if a material fact issue exists in order to determine whether the summary judgment was proper.
We must then examine the entire contract to attempt to harmonize the other relevant provisions with the one in dispute. If, after so doing, the provision remains reasonably susceptible to more than one interpretation, we must reach the conclusion that the provision is ambiguous. Coker, 650 S.W.2d at 393.
We agree with the rule that requires this Court to attempt to harmonize the other relevant provisions with the one in dispute if the provision is ambiguous, but here, there is only one provision dealing with two different matters; the second dependent on the first and not ambiguous. We find that both sections are in the same sentence and when read together are not ambiguous.
The first phrase delineates clearly that "no meeting may be held or action taken unless voting members representing Aggregate Venture Percentages of at least *639 seventy-five (75%) are present and voting...." (Emphasis ours.) This provision controls when a meeting may be held and when action may be taken. The second section "... and all decisions except otherwise herein provided shall be by majority vote of those voting members present." (Emphasis ours.) This provides the percentage of vote necessary to carry a decision or decide what action may be taken. That is: one section declares when action may be taken and the other declares what vote is required to take such action. The vote must be by majority to carry a decision but such vote or decision cannot be had or held unless 75% are present and voting. The first phrase limits the second, but it does not contradict it or make it susceptible to two interpretations. The parties had a right to contract and place whatever limitations upon themselves as they might agree to in their contract. That the provision might be burdensome or awkward is not a problem for the courts. The appellants agreed to the provision and appellees have the right to rely on compliance with the provision as agreed to by the parties. Appellants' second and third points of error are overruled.
Appellants' first point of error alleges that the trial court erred in granting Defendants' Motion for Partial Summary Judgment on Count II of their petition, which sought reformation of the Joint Venture Agreement to represent the original agreement of the parties.
To support their petition for reformation, appellants allege mutual mistake, unilateral mistake coupled with knowledge of the unilateral mistake by appellees, or unilateral mistake and fraud.
A party seeking reformation of an instrument based on mutual mistake must show that the provision complained of was included or omitted due to the mutual mistake of the parties and must show the true agreement of the parties to the instrument. National Resort Communities, Inc. v. Cain, 526 S.W.2d 510 (Tex.1975); Capitol Rod & Gun Club v. Lower Colorado River Authority, 622 S.W.2d 887 (Tex. App.Austin 1981, writ ref'd n.r.e.). A mutual mistake is "one common to both or all parties, wherein each labors under the same misconception respecting a material fact, the terms of the agreement, or the provision of a written instrument designed to embody such an agreement." Capitol Rod & Gun Club, 622 S.W.2d at 892; Schmaltz v. Walder, 566 S.W.2d 81 (Tex. Civ.App.Corpus Christi 1978, writ ref'd n.r.e.); Eggert v. American Standard Life Insurance Company, 404 S.W.2d 99, 105 (Tex.Civ.App.Corpus Christi 1966, no writ). In order to justify reformation of the instrument, the evidence of mistake must be clear, exact and satisfactory. Alkas v. United Savings Association of Texas, Inc., 672 S.W.2d 852, 858 (Tex.App. Corpus Christi 1984, writ ref'd n.r.e.). The appellant, in order to defeat the summary judgment, must show that there is some evidence that the writing differs from the true agreement, and that these erroneous provisions were inserted by mutual mistake of the parties.
Appellants' summary judgment evidence contains affidavits of interested parties which state that Section 9.2 established a threshold quorum requirement and that decisions would be binding if supported by a majority vote. Appellees' summary judgment affidavits state that Section 9.2 established an issue-by-issue quorum requirement. There is no suggestion in the summary judgment evidence that both the appellants and appellees were laboring under the same misconception as to a material fact, term, or provision of the written instrument designed to embody their agreement. See Capitol Rod & Gun Club, 622 S.W.2d at 892; Schmaltz, 566 S.W.2d 81; Eggert, 404 S.W.2d at 105. Nor is there any suggestion that appellees knew at the time of the execution of the agreement that appellants' understanding of Section 9.2 was not the same as was set out in the agreement. After carefully reviewing the voluminous summary judgment evidence, we find no evidence that raises the issue that the alleged mistake was common to both appellant and appellee.
*640 Unilateral mistake alone is not a ground for reformation. Allen v. Berrey, 645 S.W.2d 550 (Tex.App.San Antonio 1982, writ ref'd n.r.e.); Capitol Rod & Gun Club, 622 S.W.2d at 892. Unilateral mistake accompanied by fraud or misrepresentation by the other party will warrant reformation. Ace Drug Marts, Inc. v. Sterling, 502 S.W.2d 935, 939 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n.r.e.); Peterson v. Barron, 401 S.W.2d 680, 687 (Tex.Civ.App.Dallas 1966, no writ.)
There is nothing in the record to suggest that appellees made a material, false representation upon which appellants relied to their detriment. See, Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183, 185 (Tex.1977).
As no issue of fact was raised by appellants' summary judgment proof regarding their claimed bases for reformation, the trial court's granting of Defendant's Motion for Summary Judgment was proper. Appellants' first point of error is overruled.
We AFFIRM the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2250034/ | 586 N.E.2d 1239 (1992)
146 Ill.2d 324
166 Ill.Dec. 910
The PEOPLE of the State of Illinois, Appellee,
v.
Lawrence STEFAN, Appellant.
No. 71612.
Supreme Court of Illinois.
January 23, 1992.
*1241 Mary Robinson, Robinson & Skelnik, Elgin, for appellant.
Roland W. Burris, Atty. Gen., Springfield (Rosalyn Kaplan, Sol. Gen., and Terence M. Madsen and Douglas K. Smith, Asst. Attys. Gen., of counsel), for the People.
Justice FREEMAN delivered the opinion of the court:
On November 6, 1986, a Du Page County grand jury returned a 12-count indictment charging defendant, Lawrence Stefan (Stefan), and L & S Industries, Inc., with violations of the Environmental Protection Act (the Act) (Ill.Rev.Stat.1985, ch. 111½, par. 1001 et seq.) for criminal disposal of hazardous wastes, reckless disposal of hazardous wastes, and unauthorized use of hazardous wastes within the Village of Addison, Illinois. Stefan moved to dismiss counts I, IV, VII, and X of the indictment on the ground that prosecution on those counts was barred by the constitutional protection against double jeopardy because Stefan previously had been convicted of the same offenses under the municipal ordinance of the Village of Addison (Addison Village Code § 23.13). Counts VII and X of the indictment, which were directed against L & S Industries, Inc., the corporation of which Stefan was the president, were dismissed because the corporation was involuntarily dissolved prior to the return of the indictment. However, the trial court denied Stefan's motion to dismiss counts I and IV of the indictment. Stefan appealed the denial of the motion to dismiss on jeopardy grounds by filing an interlocutory appeal to the appellate court (134 Ill.2d R. 604(f)). The appellate court affirmed the trial court's ruling on the motion (208 Ill.App.3d 205, 153 Ill.Dec. 303, 567 N.E.2d 18). We granted Stefan's petition for leave to appeal (134 Ill.2d R. 315). We reverse.
FACTS
Counts I and IV of the indictment charge Stefan with criminal disposal (count I) and reckless disposal (count IV) of hazardous wastes into the Village of Addison sanitary sewer system between January 1, 1984, and January 1, 1985, in violation of sections 44(c) and (f) of the Act. Specifically, counts I and IV allege:
Count I: "[B]etween January 1, 1984 and January 1, 1985, at and within Du-Page County, Illinois, LAWRENCE STEFAN committed the offense of Criminal Disposal of Hazardous Waste in that said defendant, without lawful justification, knowingly disposed of hazardous waste, in that said defendant disposed of hazardous waste, by depositing said hazardous waste into the Village of Addison sanitary sewer system, in violation of [section 44(c)]."
Count IV: "[B]etween January 1, 1984 and January 1, 1985, at and within Du-Page County, Illinois, LAWRENCE STEFAN committed the offense of Reckless Disposal of Hazardous Waste in that said defendant disposed of hazardous waste and his acts which caused the hazardous waste to be disposed, were performed with a conscious disregard of a substantial and justifiable risk that such disposing of hazardous waste was a gross deviation from the standard of care which a reasonable person would exercise in the situation, in that said defendant deposited hazardous waste into the Village of *1242 Addison sanitary sewer system, in violation of [section 44(f)(1)]."
Sections 44(c) and (f)(1) of the Act provide, in pertinent part:
"(c) Criminal Disposal of Hazardous Waste.
(1) A person commits the offense of Criminal Disposal of Hazardous Waste when, without lawful justification, he knowingly disposes of hazardous waste.
* * * * * *
(f) Reckless Disposal of Hazardous Waste.
(1) A person commits Reckless Disposal of Hazardous Waste if he disposes of hazardous waste, and his acts which cause the hazardous waste to be disposed of, whether or not those acts are undertaken pursuant to or under color of any permit or license, are performed with a conscious disregard of a substantial and justifiable risk that such disposing of hazardous waste is a gross deviation from the standard of care which a reasonable person would exercise in the situation." Ill.Rev.Stat.1985, ch. 111½, pars. 1044(c), (f)(1).
Stefan filed a request for a bill of particulars directed to the State (Ill.Rev.Stat 1985, ch. 38, par. 111-6), requesting that the State specify the dates of the alleged violations for each count of the indictment and identify the hazardous wastes alleged in each count. The State responded by filing a bill of particulars, stating with regard to the dates of the offenses that "the offenses constitut[ed] a repeated and continuous course of conduct on the part of each defendant." As to the types of hazardous wastes alleged, the State's bill of particulars asserted that the hazardous wastes were of the types referred to in several sections of the Illinois Administrative Code cited by the State (35 Ill.Adm. Code § 721.122 et seq. (1985)).
The State then filed, pursuant to court order, an amended bill of particulars. With regard to counts I and IV, the amended bill of particulars reiterates that the dates of the offenses were between January 1, 1984, and January 1, 1985. Further, the amended bill states that the offenses "constitute[] a repeated and continuous course of conduct on the part of the defendant between the dates indicated." As to the type of hazardous waste alleged in count I, the amended bill of particulars states that the waste meets the definitions in one or more of the following sections of the Illinois Administrative Code: section 21.123(a)(5), characteristic of reactivity; section 721.124(a), characteristic of "EP toxicity" due to the presence of cadmium exceeding more than 1 milligram per liter, and/or chromium exceeding 5 milligrams per liter; and section 721.131, hazardous wastes from nonspecific sources. 35 Ill.Adm.Code §§ 721.123(a)(5), 721.124(a), 721.131 (1985).
As to count IV, the amended bill of particulars states that the hazardous waste alleged meets the definitions of one or more of the following sections of the Administrative Code: section 721.122(1), characteristics of corrosivity; section 721.123(a)(5), cyanide-bearing waste with characteristics of reactivity; section 721.124(a), cadmium and chromium waste listed by virtue of characteristics of "EP toxicity"; section 721.131, hazardous wastes from nonspecific sources. 35 Ill.Adm.Code §§ 721.122(1), 721.123(a)(5), 721.124(a), 721.131 (1985).
Stefan moved to strike the State's amended bill of particulars on the grounds that the amended bill was not specific enough with regard to the dates of the offenses and the types of hazardous wastes alleged, and that the amended bill did not sufficiently limit the dates and types of wastes alleged. The trial court denied Stefan's motion to strike. Stefan then filed the motion to dismiss certain counts of the indictment, the denial of which is the subject of this appeal.
The prior prosecutions under the municipal ordinance of the Village of Addison, which Stefan alleges bar the prosecution by the State, were brought in two sets. The first set of six complaints was brought on February 8, 1984. Each of the six complaints named L & S Industries, Larry Stefan, president, as defendants. The complaints alleged that defendants knowingly discharged into the public sewer system *1243 the following materials on the following dates: (1) on January 27 and 30, 1984, a waste containing cyanide in amounts greater than allowed under the Village of Addison ordinance; (2) on January 31 and February 1, 1984, wastes containing excessive amounts of cyanide, cadmium, zinc, and chromium; (3) on February 2, 1984, a waste containing excessive amounts of cyanide; and (4) on February 3, 1984, a waste containing excessive amounts of cadmium and zinc. On May 2, 1984, upon the defendants' plea of guilty to the violations charged, the trial court entered an order imposing a fine of $3,000 plus $804.94 in fees and costs upon the defendants.
The second set of ordinance violation complaints was brought on July 11, 1984, against L & S Industries, Larry Stefan, president. This set of three complaints alleged that defendants knowingly discharged into the public sewer system on April 17, May 30, and May 31,1984, wastes containing cadmium, chromium, cyanide, and zinc in amounts greater than allowed under the Village of Addison ordinance.
On February 13, 1985, an agreed order was entered, setting forth a finding that L & S Industries, Inc., violated the village ordinance by discharging, into the public sewer system, wastes containing excessive levels of prohibited chemicals. The order directs that L & S Industries, Inc., and Stefan shall no longer, as of the date of the order, engage in the business of metal plating in the Village of Addison.
All nine of the ordinance violation complaints cite section 23.13 of the Village of Addison ordinance, which provides, in pertinent part:
"No person shall discharge or cause to be discharged the following described substances, materials, waters or wastes to any public sewers:
* * * * * *
(b) Any waters or wastes containing toxic or poisonous solids, liquids or gases in sufficient quantity, either singly or by interaction with other wastes, to injure or interfere with any sewage treatment process, constitute a hazard to humans or animals, create any hazard in the receiving waters of the sewage treatment plant, or to cause the effluent from the treatment works to violate applicable effluent standards.
* * * * * *
No person shall discharge or cause to be discharged the following described substances, materials, waters or wastes to any public sewers if it appears likely in the opinion of the superintendent that such wastes can harm either the sewers, sewage treatment process, or equipment, have an adverse effect on the receiving stream or otherwise endanger life, limb, public property or constitute a nuisance. * * * The substances prohibited * * * are:
* * * * * *
(5) Any waters or wastes containing iron, chromium, copper, zinc and similar objectionable or toxic substances beyond the maximum allowable concentrations as determined by the Village of Addison." Addison Village Code § 23.13.
The Village of Addison published a list of maximum allowable objectionable wastes which may be discharged into the sanitary sewer system. The list indicates the maximum amounts of zinc as 5 milligrams per liter; cyanide as "[n]o detectable amount, or as outlined in Section 23.13"; cadmium as 0.25 milligrams per liter; and "chromium, hexavalent" as 1 milligram per liter, and "chromium, trivalent" as 5 milligrams per liter.
DISCUSSION
I. "Same Offence" for Double Jeopardy Purposes
On appeal, Stefan asserts that the appellate court erroneously relied upon the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, for determining whether a subsequent prosecution is barred under the double jeopardy clause of the fifth amendment (U.S. Const., amend. V). In addition, Stefan asserts that the appellate court failed to follow the recent case of Grady v. Corbin (1990), 495 U.S. 508, 110 S.Ct. 2084, 109 *1244 L.Ed.2d 548, which constituted controlling authority from the United States Supreme Court as to the proper analysis for a double jeopardy claim. Stefan contends that the appellate court's continuing reliance upon People v. Jackson (1987), 118 Ill.2d 179, 113 Ill.Dec. 71, 514 N.E.2d 983, which this court decided prior to the Supreme Court's issuance of Corbin, leaves the law in Illinois unclear, because Jackson is, at least in part, inconsistent with Corbin.
The issue for our determination is whether Stefan's offense of knowingly discharging certain chemicals into the public sewer system in violation of the Addison ordinance and the charged offenses of criminal disposal and reckless disposal of hazardous wastes into the Addison sewer system in violation of the Act constitute the same offense for double jeopardy purposes.
The fifth amendment to the United States Constitution protects persons from being twice placed in jeopardy for the same offense. The fifth amendment provides, in pertinent part:
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." (U.S. Const., amend. V.)
The double jeopardy clause of the Federal Constitution applies to the States through the due process clause of the fourteenth amendment. (Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.) Although the Federal provisions are controlling, the Illinois Constitution of 1970 also provides a double jeopardy guarantee. Article I, section 10, of the Illinois Constitution provides:
"No person shall * * * be twice put in jeopardy for the same offense. "Ill. Const.1970, art. I, § 10.
The double jeopardy principle has its origins in common law. As stated in Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, the common law prohibited not only a second punishment for the same offense, but also a second trial for the same offense, "`whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted.'" (Green, 355 U.S. at 187, 78 S.Ct. at 223, 2 L.Ed.2d at 204, quoting Ex parte Lange (1874), 85 U.S. (18 Wall.) 163, 169, 21 L.Ed. 872, 877.) The Court in Green further noted that the double jeopardy protection has as its basis the idea that:
"[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for 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." (Green, 355 U.S. at 187-88, 78 S.Ct. at 223, 2 L.Ed.2d at 204.)
The constitutional guarantee against double jeopardy affords separate protections against three things: (1) a second prosecution after acquittal; (2) a second prosecution after conviction; and (3) multiple punishments for the same offense. Illinois v. Vitale (1980), 447 U.S. 410, 415, 100 S.Ct 2260, 2264, 65 L.Ed.2d 228, 235.
The test for determining whether two offenses are the same for double jeopardy purposes has been set forth in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309:
"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."
As the Court stated in Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, the Blockburger test emphasizes the elements of the two crimes which are compared.
Recently, however, the Supreme Court in Grady v. Corbin (1990), 495 U.S. 508, 110 S.Ct 2084, 109 L.Ed.2d 548, stated that the Blockburger test does not provide sufficient protection for defendants from the burden of multiple trials. (Corbin, 495 U.S. at 520, 110 S.Ct at 2093, 109 L.Ed.2d at 564.) The Court in Corbin held that the *1245 Blockburger test provides only the initial analysis for double jeopardy purposes. Corbin stated:
"[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an `actual evidence' or `same evidence' test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct." (Corbin, 495 U.S. at 521, 110 S.Ct at 2093, 109 L.Ed.2d at 564.)
Thus, the Corbin test focuses on the conduct which the State will prove, rather than the elements of the offenses.
The Court in Corbin reiterated its statement in Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, that Blockburger does not provide the only double jeopardy test Rather, as Brown stated:
"Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." (Brown, 432 U.S. at 166 n. 6, 97 S.Ct. at 2226 n. 6, 53 L.Ed.2d at 195 n. 6.)
Corbin also cites the two earlier cases of Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, and In re Nielsen (1889), 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, as examples where the double jeopardy clause barred subsequent prosecutions, even though application of the Blockburger test would have allowed multiple prosecutions. Corbin, 495 U.S. at 519, 110 S.Ct. at 2092, 109 L.Ed.2d at 563.
In Corbin, the defendant's automobile crossed the median on a highway and struck two oncoming vehicles. As a result, one person was killed and another injured. The defendant was issued two traffic citations, one for driving while intoxicated and another for failing to keep right of the median. Three days later, an assistant District Attorney began investigating the accident for a homicide prosecution. However, the assistant District Attorneys who appeared in court on the traffic case were not aware of the death. Nor was the trial judge who presided over the traffic case aware of the death. The defendant pleaded guilty to the traffic offenses and was sentenced and fined. Corbin, 495 U.S. at 510-14, 110 S.Ct at 2087-89, 109 L.Ed.2d at 557-59.
Two months later, an indictment was issued charging the defendant with reckless manslaughter, criminally negligent homicide, third-degree reckless assault, and driving while intoxicated. The prosecution filed a bill of particulars, stating that it would rely upon conduct for which the defendant had already been convicted in the traffic casedriving while intoxicated and failing to keep right of the medianto prove the homicide and assault charges. (Corbin, 495 U.S. at 513-14, 110 S.Ct at 2089, 109 L.Ed.2d at 559.) Because the same conduct would be proved in the second trial, the Court held that the successive prosecution was barred. Corbin, 495 U.S. at 522-23, 110 S.Ct at 2094, 109 L.Ed.2d at 565-66.
In the instant case, Stefan asserts that the appellate court improperly relied upon the analysis in People v. Jackson (1987), 118 Ill.2d 179, 113 Ill.Dec. 71, 514 N.E.2d 983, which held that offenses are the same for double jeopardy purposes only if they meet the Blockburger testthat is, where one of the offenses is wholly included within the other, or if one offense represents a species of lesser-included offenses as recognized in Harris v. Oklahoma (1977), 433 U.S. 682, 97 S.Ct 2912, 53 L.Ed.2d 1054.
Stefan notes that in applying Jackson, the appellate court concluded that the ordinance violations and the statutory offenses in the instant case were not the same for double jeopardy purposes because each offense required proof of a fact that the other did not. The appellate court held that the offenses charged in the indictment required proof of a mental stateknowledge for count I, and recklessness for count IVwhereas the Addison ordinance *1246 offenses did not include any mental state and constituted absolute liability offenses. The appellate court also stated that the ordinance violations required proof that the hazardous wastes be discharged into a public sewer, whereas under the Environmental Protection Act, the discharge of wastes could occur other than to public sewers.
We agree with Stefan that the appellate court's analysis in this case demonstrates the result which may occur on these facts from an application of the Blockburger analysis, without the benefit of Corbin. However, in view of Corbin, we must go beyond the Blockburger test to determine whether Stefan is being afforded constitutional double jeopardy protections.
In response to Stefan's argument, the State asserts that the Corbin decision merely renders the appellate court's decision in the instant case incomplete. We note that the appellate court opinion in the instant case was filed on February 5, 1991, after the Corbin opinion was issued. The State argues, however, that because this court may affirm the appellate court on any ground which appears of record (People v. Sloan (1986), 111 Ill.2d 517, 522, 96 Ill.Dec. 55, 490 N.E.2d 1260), this court may affirm the appellate court's decision based on the other arguments presented by the State. Alternatively, the State asserts, this court should remand the case to the appellate or trial court for consideration of issues not fully addressed.
We disagree with the State that a remand in the instant case is necessary. Further, we hold that insofar as the double jeopardy analysis set forth in Jackson is inconsistent with Corbin, Corbin has overruled the Jackson analysis as the proper double jeopardy test. Jackson relied principally upon the Blockburger analysis. Jackson, however, also took into account the Supreme Court's holdings in Harris v. Oklahoma (1977), 433 U.S. 682, 97 S.Ct 2912, 53 L.Ed.2d 1054, Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct 2221, 53 L.Ed.2d 187, In re Nielsen (1889), 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, and Illinois v. Vitale (1980), 447 U.S. 410, 100 S.Ct 2260, 65 L.Ed.2d 228. Jackson set forth the double jeopardy analysis as a two-part test. First, a court was to determine if the statutory elements for the two offenses were the same. If not, then the court would determine whether either of the offenses was a lesser-included offense of the other. Jackson relied upon Blockburger, Harris, Brown and Nielsen for the two-part test.
Jackson's interpretation of a portion of Vitale, however, has effectively been overruled by Corbin. Jackson stated that certain dicta in Vitale "appears to be inconsistent with, or at least to qualify, the holding of [Vitale]." (Jackson, 118 Ill.2d at 184, 113 Ill.Dec. 71, 514 N.E.2d 983.) Vitale involved facts similar to Corbin. In Vitale, the defendant was convicted of the traffic offense of failing to reduce speed to avoid an accident. Subsequently, the defendant was charged with involuntary manslaughter based on his reckless driving. The Court held that the second prosecution was not barred under the Blockburger analysis. However, the Court remanded the case for further analysis regarding the statutory offenses and a determination of which acts the State would rely upon to prove manslaughter. Vitale, 447 U.S. at 421, 100 S.Ct. at 2267-68, 65 L.Ed.2d at 238-39.
The Vitale language which Jackson found inconsistent with the Court's holding provides that if in the pending prosecution in Vitale, the State would rely upon and prove a failure to reduce speed to avoid an accident as the reckless act necessary to prove manslaughter, then the defendant could raise a double jeopardy claim. (Jackson, 118 Ill.2d at 184, 113 Ill.Dec. 71, 514 N.E.2d 983, citing Vitale, 447 U.S. at 419-20,100 S.Ct. at 2267, 65 L.Ed.2d at 237-38.) This court in Jackson noted that this dicta from Vitale had not been cited by the Supreme Court in any cases subsequent to Vitale, and stated that the language apparently was inconsistent with the Court's decisions before and after Vitale. (Jackson, 118 Ill.2d at 184-85, 113 Ill.Dec. 71, 514 N.E.2d 983.) After Jackson was issued, however, the Supreme Court in Corbin made clear that the Vitale analysis was consistent with Brown, Nielsen, and Harris, *1247 and constituted a "same conduct" test. (Corbin, 495 U.S. at 520,110 S.Ct at 2093, 109 L.Ed.2d at 564-65.) Accordingly, insofar as Jackson found that Vitale was inconsistent with other Supreme Court precedent, or that the cited dicta was inconsistent with the Vitale holding and the proper double jeopardy analysis, Jackson is overruled.
Stefan asserts that application of the analysis set forth in Corbin to the facts of the instant case will result in a finding that the State's prosecution for criminal disposal and reckless disposal of hazardous waste is barred. The State responds that, even under the Corbin analysis, its indictment and bill of particulars do not charge the "same conduct" at issue in the ordinance violation actions. We note, however, that at oral argument before this court, the State conceded that where the dates of the indictment and the ordinance violation complaints overlap, for instance, on January 27, 1984, the "same conduct" is alleged for double jeopardy purposes.
In its brief, the State asserts that Corbin rejected a "single transaction" view of the double jeopardy clause, and that, under Corbin, the State may seek to convict a defendant for certain conduct even where the conduct occurred simultaneously with the conduct for which the defendant already has been convicted. (Corbin, 495 U.S. at 522-23, 110 S.Ct. at 2094, 109 L.Ed.2d at 566.) The State also asserts that Garrett v. United States (1985), 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764, holds that the double jeopardy clause does not bar prosecution for a continuing criminal enterprise where the defendant already had been tried and convicted of one of the predicate offenses. Alternatively, the State asserts that this court should remand the case to the appellate court for further consideration of this issue, or remand the case to the circuit court with a mandate that the circuit court order the State to amend the bill of particulars to exclude the specific dates or chemicals referenced in the ordinance violation complaints.
We reject the State's contention that a remand is necessary. Further, we find that the nature of the conduct and offenses charged in Garrett is distinguishable from that in the instant case. In Garrett, the defendant had engaged in an extensive marijuana importation and distribution operation, involving his attending meetings and making telephone calls in several States, including Arkansas, Florida, Georgia, Louisiana, Massachusetts, Michigan, Texas, and Washington. The defendant pleaded guilty to importation of marijuana in an action brought in Washington. Subsequently, the defendant was indicted in Florida under a Federal drug-abuse prevention statute for a "continuing criminal enterprise" violation. Garrett, 471 U.S. at 775-76, 105 S.Ct. at 2409-10, 85 L.Ed.2d at 769-70.
The "continuing criminal enterprise" offense in Garrett required proof that the defendant had committed a felony that was part of a series of three or more violations of the statute over a definite period of time with a substantially similar purpose. Further, a conviction would require a finding that the defendant acted in concert with five or more other persons; that the defendant acted in a supervisory position in the criminal operation; and that the defendant received substantial income from the operation. Garrett, 471 U.S. at 776,105 S.Ct. at 2410, 85 L.Ed.2d at 770.
The Court in Garrett stated that the fact that one of the three predicate offenses was committed during the five-year time period did not necessarily lead to the conclusion that the defendant would then have committed the other two requisite offenses. (Garrett, 471 U.S. at 788-89, 105 S.Ct. at 2416, 85 L.Ed.2d at 777-78.) The Court stated that the conduct charged was "multilayered" as to time and place. Under such circumstances, the Court held that the double jeopardy clause did not bar the later prosecution. Garrett, 471 U.S. at 792-93, 105 S.Ct. at 2418-19, 85 L.Ed.2d at 780-81.
The Court noted that the conduct charged was not comparable to a single course of conduct, such as stealing a car and "joyriding," as were charged in Brown v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. By contrast to Garrett, in *1248 Brown, "Every moment of [defendant's] conduct was as relevant to the joyriding charge as it was to the auto theft charge." Garrett, 471 U.S. at 787, 105 S.Ct. at 2416, 85 L.Ed.2d at 777.
Similarly, the offenses in the instant case, unlike Garrett, do not involve "multilayered" conduct as to time and place. It appears that Stefan's conduct of discharging hazardous wastes in 1984 is as relevant to the Addison ordinance offenses as it is to the indictment charges. Further, the State's amended bill of particulars does not distinguish any of the alleged conduct from the conduct which formed the basis for the ordinance convictions. The amended bill of particulars characterizes the conduct charged in the indictment as "a repeated and continuous course of conduct" by Stefan. However, as Stefan points out, that the conduct charged is continuous conduct over several dates does not preclude a double jeopardy bar. See Brown, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187; In re Nielsen (1889), 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118.
Under the Corbin analysis, the conduct for which the State is prosecuting Stefan is the same conduct for which Stefan was convicted in the ordinance violation cases. The indictment charges the criminal disposal and reckless disposal of hazardous wastes into the Village of Addison sewer system between January 1, 1984, and January 1, 1985. The hazardous wastes which allegedly were disposed were cyanide, cadmium, and chromium. The ordinance violation actions convicted Stefan of knowingly discharging cyanide, cadmium, zinc, and chromium into the public sewer system on specific dates in January, February, April, and May 1984. The State's amended bill of particulars failed to specify chemicals other than those already included in the ordinance prosecutions. Further, the amended bill does not specify dates between January 1, 1984, and January 1, 1985, on which Stefan allegedly discharged hazardous wastes, to distinguish the time of the conduct alleged in the State's action from the time of the conduct of which Stefan was convicted in the ordinance violation actions.
As Corbin noted:
"All nine federal Circuits which have addressed the issue have held that `when a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden shifts to the government to establish that there were in fact two separate offenses.'" (Corbin, 495 U.S. at 522 n. 14, 110 S.Ct at 2094 n. 14, 109 L.Ed.2d at 565 n. 14, quoting United States v. Ragins (4th Cir.1988), 840 F.2d 1184, 1192.)
The State in the instant case has made no such showing that the offenses charged are separate from those already prosecuted. Accordingly, the State's prosecution on counts I and IV of the complaint are barred by the double jeopardy clause.
II. Meaningful Opportunity to Participate
We also address two other issues which the parties raise. The State asserts that Corbin may be inapplicable to the instant case because the record is insufficient to show whether the State's Attorney was or could have been present for the ordinance violation cases prosecuted by the Village of Addison. The State cites People v. Raebig (1991), 213 Ill.App.3d 146, 157 Ill.Dec. 155, 571 N.E.2d 1174, in which the appellate court distinguished Corbin's double jeopardy bar where the State prosecutor was deprived of a meaningful opportunity to participate in the initial proceeding. The State asserts that if this court agrees with Raebig, this court should remand the instant case for a more complete determination of whether the State's Attorney had a meaningful opportunity to participate in the initial prosecution.
Stefan counters that Raebig stands for the proposition that the appropriate prosecuting official, as opposed to the arresting officer, must have a meaningful opportunity to decide upon the charge to be brought and to take part in the prosecution of that charge before the prosecution will be barred by the double jeopardy guarantee *1249 from pursuing other charges. (Raebig, 213 Ill.App.3d at 149-50, 157 Ill.Dec. 155, 571 N.E.2d 1174.) Stefan asserts that Raebig does not support the State's assertion that a remand is necessary.
We agree. In Raebig, the arresting officer issued traffic citations to the defendant for failure to yield at a stop sign or to wear a seat belt. The officer noted that the traffic accident had resulted in a fatality, but he failed to check the box on the citations requiring a court appearance, and the defendant signed the guilty pleas on the citations and mailed them with the required fines to the circuit court clerk's office. Defendant later was indicted for reckless homicide based on the same conduct charged by the traffic tickets. Defendant moved to dismiss the indictment on double jeopardy grounds, and the trial court granted the motion. (Raebig, 213 Ill.App.3d at 148, 157 Ill.Dec. 155, 571 N.E.2d 1174.) The appellate court reversed, holding that because the officer's failure to properly mark the citations to require defendant to appear in court deprived the State's Attorney of the opportunity to participate in the prosecution, the subsequent prosecution for reckless homicide was not barred by the double jeopardy clause. Raebig, 213 Ill.App.3d at 149-50, 157 Ill.Dec. 155, 571 N.E.2d 1174.
Raebig does not apply to the facts of the instant case, where there is no assertion that a prosecutor was not provided the opportunity to participate in the prosecution of the initial ordinance violation charges. Further, as noted by Stefan, the United States Supreme Court held in Waller v. Florida (1970), 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, and this court reiterated in People v. Allison (1970), 46 Ill.2d 147, 263 N.E.2d 80, that for double jeopardy purposes, a municipality and a State constitute the same sovereign. Therefore, a conviction or acquittal entered in a municipal ordinance prosecution bars a later prosecution by the State's Attorney for violation of a State statute based upon the same conduct. (Waller, 397 U.S. at 394-95, 90 S.Ct. at 1188-89, 25 L.Ed.2d at 440-41; Allison, 46 Ill.2d at 149, 263 N.E.2d 80.) Accordingly, we reject the State's argument that because it did not prosecute the initial charges, the double jeopardy clause does not bar prosecution under the indictment.
III. Defendant's Being Personally in Jeopardy
In addition, the State contends that Stefan was not personally in jeopardy during the Village of Addison proceedings. Stefan counters that he was personally in jeopardy. We set forth the State's arguments first. The State asserts that only the corporation, L & S Industries, Inc., and not defendant personally, was a party to the ordinance violation actions. Rather, Stefan appeared only in his capacity as president of L & S Industries, Inc. Accordingly, the State argues, there is no double jeopardy bar to the State's action against Stefan in the instant case. The State's argument was raised in the appellate court but was not addressed by that court.
The State asserts that the captions and wording of the documents in the Village of Addison actions show that the defendant was being named only in his capacity as a representative of the corporation and not personally. For instance, the State asserts that it was L & S Industries, Inc., which pleaded guilty to the ordinance violations and was fined in May 1984. In addition, it was L & S Industries, Inc., which, on February 13, 1985, entered into an agreed order regarding the second set of ordinance violation actions. The State contends that the agreed order does not operate to bar the State's later prosecutions because the agreed order is similar to a consent decree under which the parties merely recite the agreement they have reached. Further, because there was no trial in the instant case, jeopardy would attach only if the defendant entered a guilty plea, which Stefan did not do in the second set of ordinance violation actions. The State cites People v. McCutcheon (1977), 68 Ill.2d 101, 11 Ill.Dec. 278, 368 N.E.2d 886, in support of this last argument.
Stefan first replies that McCutcheon is distinguishable from the instant *1250 case. Stefan asserts that McCutcheon holds that where the defendant entered a guilty plea which later was vacated, the defendant was not in jeopardy as to the charges and later could be prosecuted on the charges. Stefan also notes that Corbin involved an initial judgment entered pursuant to a guilty plea. Stefan contends that a judgment entered after a guilty plea or stipulated finding of guilt are enforceable to the same extent as a judgment following a trial, and is binding for double jeopardy purposes.
We agree. In McCutcheon, the court made a distinction between a guilty plea and a jury verdict for double jeopardy purposes within a certain context. The court stated that a finding of guilt by a trier of fact on a lesser charge is presumptively a finding of not guilty on the greater offense because the trier of fact had the opportunity to find the defendant guilty of the greater offense. However, where the defendant pleads guilty to the lesser offense, there is no verdict on the greater offense. (McCutcheon, 68 Ill.2d at 105-06, 11 Ill.Dec. 278, 368 N.E.2d 886.) In the instant case, there is no assertion that Stefan pleaded guilty to a lesser offense than that charged in the ordinance violation actions and that now the State is charging him with the greater offense for which no verdict was rendered. Rather, Stefan was adjudged guilty and punished for the conduct charged in each of the Village of Addison complaints. We reject the State's argument regarding McCutcheon.
Further, Stefan replies that he was personally at jeopardy in the ordinance prosecutions. Stefan asserts that the complaints themselves, in addition to the manner in which the Village of Addison sought to bring him before the court, show that Stefan himself was a defendant in those actions. Initially, Stefan notes that the ordinance violation complaints identify the defendant on the complaint form as "L & S IndustriesMr. Larry Stefan, Pres." The second set of ordinance violation complaints and all but one of the first set of complaints also had a check mark in the box on each complaint form identifying defendant as a "male." Further, a notice to appear directed to Larry Stefan was issued for each complaint in both sets of prosecutions.
In addition, Stefan asserts that no summons was issued or served upon the corporation, L & S Industries, Inc., in the first set of ordinance violation actions. The only service was upon Larry Stefan individually, by a separate notice to appear issued for each of the complaints. In the second set of complaints, both the corporation and Larry Stefan individually were servedthe corporation via summons, and Larry Stefan by way of notices to appear.
Further, Stefan points out that he was the only defendant properly served in the first set of ordinance cases; and no order was entered dismissing him from the action before the adjudication of guilt and imposition of fines. Further, the final order entered in the second set of ordinance violation actions explicitly names Lawrence Stefan, in addition to the corporation, as a party subject to the penalty imposed. The order states, in part, that "L & S INDUSTRIES, INC., an Illinois Corporation or any successor organization, LAWRENCE J. STEFAN, individually and any other corporation or business entity which he may control or be a majority shareholder in, shall not hereafter engage in the business of metal plating within the confines of the Village of Addison, State of Illinois."
We agree with Stefan that he was a party to the ordinance violation actions who was personally subjected to punishment as a result of the final orders in those actions. Accordingly, we hold that double jeopardy bars the State's prosecution on the basis that Stefan already was put in jeopardy for the same offense.
For the foregoing reasons, the judgments of the appellate court and circuit court are reversed.
Judgments reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1469571/ | 139 N.J. Super. 475 (1976)
354 A.2d 374
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GARY ROBINSON AND DEREK VAN AUSTIN, DEFENDANTS-APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Submitted September 30, 1975.
Decided February 27, 1976.
*479 Before Judges KOLOVSKY, BISCHOFF and BOTTER.
Mr. Stanley C. Van Ness, Public Defender, attorney for appellants (Mr. Daniel W. O'Mullan, designated attorney, of counsel and on the brief for appellant Gary Robinson; and Mr. Philip S. Elberg, designated attorney, of counsel and on the brief for appellant Derek Van Austin).
Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. David L. Rhoads, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by BOTTER, J.A.D.
Defendants were convicted of second degree murder. The victim, Nathan "Dukie" Mitchell, was shot on a street in East Orange on February 16, 1972. With leave of the court, separate appeal briefs were filed for each defendant, and each asserts various errors in the trial judge's instructions to the jury.
*480 The State offered evidence tending to support a case of felony murder. Alma "Dolly" Darci testified that she had given Dukie narcotics on credit; that shortly thereafter defendants approached Dukie, pushed him against a car and began going through his pockets. Dukie resisted and he was shot. She said that Gary Robinson had the gun, although there was testimony that Derek Van Austin had the gun earlier that evening.
Jimmy Johnson testified that he was with Alma Darci when he heard the shot. They were the State's principal witnesses. Johnson testified that they were walking side by side, talking, and upon hearing the shot he turned around and saw Dukie fall. Then defendants ran past them. There was evidence that Johnson and Darci were close associates who dealt in narcotics and knew defendants before this incident.
Both defendants testified. Gary Robinson said that he spent the day with Derek Van Austin; that Derek had a gun which he tried to use as security for a loan from Jimmy Johnson so that they could both buy heroin, but Johnson declined the offer. Robinson said that he took the gun from Derek intending to use it in negotiating for heroin. He also testified that earlier in the week he had "burnt" Dukie by taking $35 from him for heroin without delivering the goods. He said he did not see Dukie again until the night in question. He testified that Dukie approached him in anger, an argument ensued and he stepped back, displaying part of the gun to Dukie to scare him off. Instead, Dukie reached for the gun, the gun went off and Dukie fell. He and Derek ran to Derek's house. At that time Derek had the gun and Robinson arranged to have someone dispose of it.
Derek Van Austin testified that he was with Gary Robinson when Dukie approached in an angry manner. Robinson produced a pistol and Dukie grabbed for it. A struggle ensued, the gun went off and he ran from the scene. He said he did not join in the struggle and he denied having the *481 gun that night. He admitted using heroin in small quantities. Both defendants denied that it was Dukie who was supposed to deliver heroin to them. The State theorized that it was defendants who expected to receive heroin from Dukie and that they went after him to seize the heroin that he had obtained from Alma Darci.
The trial judge charged the jury on various principles of law, including murder, manslaughter, malice, aiding and abetting, misadventure, self-defense and the duty to retreat. Shortly after the jury began deliberating they asked to be reinstructed on the definition of first degree murder, second degree murder and manslaughter. Supplemental instructions were given and the jury resumed deliberations.
The next day the jury asked for additional instructions, namely, (1) the definition of aiding and abetting, (2) whether aiding and abetting can be applicable in second degree murder or manslaughter, and (3) the legal definition of malice. In response the court gave the following supplemental instructions:
* * * the law of this State with respect to aiders and abettors, is as follows:
If two or more persons act in concert in committing a criminal offense such as the one charged here, all who participate in the commission of the offense are equally guilty of this offense regardless of the part each took in the commission of the crime. Consequently, if a killing is brought about by the action of one of those involved, all who are acting in concert are guilty.
So that's the law with respect to aiding and abetting.
Now, with respect to the you asked for the definition of malice as I gave it to you. I stated that malice in its legal sense means nothing more than an illegal state of mind. The law presumes that all unlawful homicides, that is, all unlawful killings are committed with malice unless the lack of malice appears from the evidence. That's the definition of malice.
Now, you asked the third question which is can aiding and abetting be applicable to second degree murder or manslaughter? Aiding and abetting can be applicable to any unlawful act.
Now, I think that answers the three questions, at least, I hope so. *482 Exception was taken to the supplemental charge on aiding and abetting, specifically to the absence of an instruction that intent to aid and abet must be present. Exceptions were also taken by both defendants to the charge on malice, complaining that it was not complete.
Both defendants contend before us that the supplemental charge on malice was erroneous. Robinson also contends that the earlier instructions placed undue emphasis on the presumption that all unlawful homicides or killings are murder in the second degree unless "rebutted upward by the State by showing * * * that the killing was first degree murder" or "rebutted downward if the evidence shows" that the offense was "no more than manslaughter." As a result, Robinson contends, the instructions implied that defendants had the burden of proving that the killing, if unlawful, was manslaughter and not murder. Our disposition of the contention regarding the supplemental charge on malice makes it unnecessary to resolve Robinson's assertion that the burden of "mitigating murder to manslaughter" was impliedly shifted to defendants.[1] Reading the charge as a whole (State v. Freeman, 64 N.J. 66, 69 (1973); State v. Wilbely, 63 N.J. 420, 422 (1973)), we conclude, nevertheless, that the supplemental instructions on malice were erroneous and require a reversal of defendants' convictions.
Murder (N.J.S.A. 2A:113-1 and N.J.S.A. 2A:113-2) is said to be distinguished from manslaughter *483 (N.J.S.A. 2A:113-5) by malice, express or implied. State v. Gardner, 51 N.J. 444, 457-459 (1968); State v. Brown, 22 N.J. 405, 410-411 (1956). Manslaughter is an offense distinct from and not a degree of murder, and malice is "the grand criterion which distinguishes murder from other killing." Id. at 410. At common law all homicides were presumed to be malicious unless the evidence proved otherwise, but murder could be "justified by the command or permission of the law," or it could be "excused on the account of accident or self-preservation," or it could be "alleviated into manslaughter * * *." Id. at 410-411; State v. Gardner, supra.
In his charge proper and in the first supplemental instructions the trial judge stated that all "unlawful homicides or killings are murder in the second degree," but the presumption of second degree murder is rebuttable upward to first degree or downward to manslaughter, according to the evidence. Defendants contend that in defining malice as "nothing more than an illegal state of mind," and in charging that all unlawful homicides or killings "are [presumed] committed with malice unless the lack of malice appears from the evidence," the judge failed to define malice properly and relieved the State of its full burden of proving malice, thus erroneously establishing a presumption in favor of murder over manslaughter.
Earlier cases did say that an "unlawful homicide" is presumed to be murder in the second degree, State v. DiPaolo, 34 N.J. 279, 294 (1961), cert. den. 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961), and that proof of a "killing" raises a presumption of malice which may be rebutted by the evidence. State v. Williams, 29 N.J. 27, 43-44 (1959); State v. Huff, 14 N.J. 240, 249 (1954). However, these statements are superseded by the ruling in State v. Gardner, supra, which makes it clear that the presumption of second degree murder ("any other kind of murder is murder in the second degree." N.J.S.A. 2A:113-2; emphasis added) applies only as between first degree murder *484 and second degree murder; it comes into play for the benefit of a defendant only after the State has proved a murder beyond a reasonable doubt. The presumption of second degree murder plays no role in distinguishing between murder and manslaughter. The prosecution bears the burden of proving malice to establish murder and must disprove facts that would reduce the offense to manslaughter (i.d., 51 N.J. at 459), when the issue is presented by the evidence, just as the prosecution must disprove self-defense when that issue appears. State v. Abbott, 36 N.J. 63, 72-73 (1961); State v. Terry, 41 N.J. 1 (1963); see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The court said in State v. Gardner:
Only when the essential elements of murder have been proved beyond a reasonable doubt does the presumption of murder in the second degree arise. This presumption is intended to favor the defendant and to underscore the burden of the State to prove three additional elements, i.e., premeditation, deliberation and willfulness as defined in State v. DiPaolo, 34 N.J. 279, 295 (1961), beyond a reasonable doubt, in order to elevate the crime from second degree to first degree. The presumption has no role whatever in determining whether (1) there was in fact an intent to kill or inflict grave bodily harm (the minimum requirement of murder), or (2) the homicide was justifiable or excusable, or (3) the homicide was no greater than manslaughter. The State's burden of proving, beyond a reasonable doubt, that the homicide was murder includes the burden of so proving that the killing was not accidental, justified or excusable, or manslaughter. The State must bear this burden throughout the entire trial and the presumption comes into play only after the State has satisfied this mandate. It must, of course, be remembered in connection with the foregoing discussion that we are not here dealing with a felony murder. [51 N.J. at 459][2]
State v. Gardner, supra, 51 N.J. at 459, held that the failure to convey proper instructions on the State's burden of proof constituted plain error requiring reversal. However, *485 the charge in Gardner expressly put the burden on defendant to persuade the jury that the evidence warranted an "alleviation" to manslaughter. The charge in the case at hand did not explicitly shift the burden, but appellants contend that the effect was the same. State v. Gardner foreshadowed the recognition of this issue as a matter of federal constitutional import. Mullaney v. Wilbur, supra, recently held that Maine Law violated the due process clause of the Fourteenth Amendment by requiring a defendant charged with murder to establish by a preponderance of evidence that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter. Due process requires the prosecution to prove beyond a reasonable doubt the absence of facts which make a killing manslaughter when the issue properly appears in the case.
We are satisfied that the judge erred in defining malice in the supplemental instructions. The charge that malice means "nothing more than an illegal state of mind" was erroneous. Coupled with the statement that "[t]he law presumes that all unlawful homicides, that is, all unlawful killings are committed with malice unless the lack of malice appears from the evidence," the instruction constituted prejudicial error. To say that malice is simply an illegal state of mind blurs the use of the term in distinguishing murder from manslaughter, since both involve illegal states of mind. See State v. Madden, 61 N.J. 377, 386, 395-396 (1972). And to presume malice from any unlawful killing tends to prefer murder over manslaughter, contrary to the principles enunciated in State v. Gardner and Mullaney v. Wilbur, supra.
Of course, malice, being a state of mind, may be inferred from the circumstances of the killing. Mullaney v. Wilbur, supra, 421 U.S. at 692, 95 S.Ct. at 1885, 44 L.Ed.2d at 516; State v. Brown, supra, 22 N.J. at 410. But there is a vast difference between a permissible inference and a presumption of fact. See State v. DiRienzo, 53 N.J. 360, *486 378-382 (1969); Perkins, "A Re-Examination of Malice Aforethought," 43 Yale L.J. 537, 550 (1934) (hereafter Perkins); cf. State v. DiPaglia, 64 N.J. 288, 294 (1974); Jurman v. Samuel Braen, Inc., 47 N.J. 586, 594-597 (1966). There is no logical basis for presuming that every unlawful killing implies malice. Where the burden is on the State to prove every fact necessary to constitute the crime (Mullaney v. Wilbur, supra; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368, 375 (1970)), instructing a jury in terms of presumptions of fact rather than permissible inferences presents risks of constitutional dimension. See State v. DiRienzo, supra; see also Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); United States v. Romano, 382 U.S. 136, 86 S.Ct. 274, 15 L.Ed.2d 210 (1965); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).
The problem may be clarified further by considering the definition of malice a matter of some controversy. See State v. Gardner, supra, 51 N.J. at 458; Perkins, supra. Its usefulness as a word of art to convey the distinction between murder and manslaughter must be questioned. Cf. State v. Madden, supra, 61 N.J. at 396-397.
Malice has been variously defined. In some contexts it is described as merely the intentional doing of an unlawful act without justification or excuse, regardless of consciousness of wrongdoing. Morss v. Forbes, 24 N.J. 341, 358-359 (1957); see also id. at 379-380 (Weintraub, J., dissenting). Often used synonymously with criminal intent as knowing wrongdoing, the "concurrence of an `evil meaning mind with an evil doing hand,'" (State v. Fair, 45 N.J. 77, 90 (1965); State v. Williams, 29 N.J. 27, 41 (1959); Morisette v. United States, 342 U.S. 246, 251, 72 S.Ct. 246, 249, 96 L.Ed. 288, 294 (1952)), the term is also given more invidious characteristics such as an "evil design *487 in general, the dictate of a wicked, depraved and malignant heart" (State v. Brown, supra, 22 N.J. at 410), possibly even animated by anger or hatred (see State v. Huff, supra, 14 N.J. at 249). But proving a hateful motive is not essential to proof of malice, for, as noted, historically malice was presumed from the intentional commission of the wrongful act. Id.; Perkins, supra at 548-551. The real difficulty is that the meaning of malice in common understanding and usage, as well as in law, is not suitably exact for defining crimes as serious as murder and manslaughter. In fact, the term "malice aforethought" which had various particular meanings in the law of homicide (see Perkins, supra at 544-551) has given way to mere "malice" with all its loose connotations.
A knowing intention to do an unlawful act constitutes mens rea, criminal intent an "evil intention." State v. Labato, 7 N.J. 137, 149 (1951). One can intend less than serious bodily injury and still act with an evil-meaning mind. This was illustrated in State v. Madden, supra, where a police officer was attacked and killed by a mob composed of persons who may have had diverse criminal, evil intents, ranging from an intent to kill, to injure, to interfere with the officer's performance of his duty or merely to harass or humiliate. 61 N.J. at 396. However, the court said that if death resulted from an act not performed with the intention to do some injury to the officer, the crime would be involuntary manslaughter, not murder. Id. at 386. Thus, unlawful acts causing death which are performed with evil intention or hatred may constitute murder or manslaughter or possibly only a quasi-criminal offense.
State v. Madden highlights the need to deal in specifics when charging a jury. It proves the inutility of the phrases "an unlawful act," "criminal intent" or "an evil meaning mind" when defining degrees of homicide. Id. at 395-397. The need to deal in specifics is no less acute because the term malice has an ancient history as the sign of murder.
*488 Thus, when distinguishing murder from manslaughter it is desirable to define murder as a killing committed (a) with the intent to kill or to do grievous bodily harm to any person or (b) with knowledge of the likelihood of death or grievous bodily injury accompanied by an indifference to the result. State v. Gardner, supra, 51 N.J. at 458; State v. Madden, supra, 61 N.J. at 385. Involuntary manslaughter is distinguished by an intent to inflict less than serious injury, id.; and it includes an unintentional killing such as results from the reckless handling of a firearm. See State v. Bonano, 59 N.J. 515, 523 (1971). Voluntary manslaughter is a killing committed in a sudden transport of passion induced by provocation sufficient to inflame an ordinary, reasonable person. State v. Madden, supra, 61 N.J. at 399-400; State v. Guido, 40 N.J. 191, 209 (1963); State v. King, 37 N.J. 285, 299-301 (1962). These definitions are not complete, but they illustrate a proper focus upon essential elements of the crimes without the distortion engendered by concepts of evil.[3] To say that malice can be inferred from circumstances which prove an intention corresponding to the conditions of murder is tautological at the very least. Nothing is lost by omitting the term "malice" in instructing a jury,[4] and State v. Gardner and State v. Madden strongly suggest the need to emphasize specific acts and intents in differentiating murder from manslaughter.
*489 As we have said, the brief definition of malice in response to the jury's inquiry was inaccurate and misleading. We cannot say that the error was made harmless by earlier instructions which properly defined manslaughter and the State's burden of proof. Since we must reverse on this point no purpose would be served by reviewing in detail the supplemental charge on aiding and abetting or considering its potential for prejudice. The instruction was obviously incomplete. It did not embrace the statutory definition to aid, abet, counsel, command, induce or procure, N.J.S.A. 2A:85-14 although the phrase "act in concert" did suggest community of purpose. See State v. Sullivan, 43 N.J. 209, 236-237 (1964), cert. den. 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966). But the possibility that separate participation and intent will establish different kinds or degrees of crime, or none at all, committed by each defendant (State v. Fair, supra, 45 N.J. at 94-96) made it essential to discuss intent as part of the aiding and abetting charge. As stated in State v. Madden, supra:
* * * if two should attack and one of them intends only a simple assault and battery and is unaware of the intent of the other to use deadly force, he would be culpable only according to his own intent and wrong. But if he participates in an attack or continues in it with an awareness of the purpose of others to kill or to do grievous bodily harm, he is chargeable with that further intent and result. [61 N.J. at 391]
We need not deal with the plain error contention concerning the omission to charge the effect of mere presence at the scene. See State v. Madden, supra, 61 N.J. at 397-398; State v. Fair, supra, 45 N.J. at 95.
The convictions of defendants are reversed. The case is remanded for a new trial.
NOTES
[1] The two contentions are related. However, Robinson's contention as to the implicit shift in the burden of proof is complicated by the absence of exceptions (thus governed by the "plain error" rule, R. 1:7-2, R. 2:10-2; State v. Macon, 57 N.J. 325, 336-341 (1971) and State v. Hock, 54 N.J. 526, 538 (1969), cert. den. 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970)), and by the presence of instructions which placed upon the State the burden of proving "any crime or any degree of crime" beyond a reasonable doubt. United States ex rel. Castro v. Regan, 525 F.2d 1157 (3 Cir.1975), upheld a similar charge against a challenge based upon Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), discussed below.
[2] Without proof of malice, a killing in the commission of a felony or a killing of certain law enforcement officers who are performing their duties is murder. N.J.S.A. 2A:113-1; State v. Madden, 61 N.J. 377, 384-386 (1972).
[3] This abbreviated description of acts constituting murder omits the crimes of felony murder and murder of law enforcement officers. See note 2, supra. Defining the crimes in this fashion shows how little, if anything, is lost by omitting the term "malice."
[4] In defining murder, manslaughter and negligent homicide, the term malice is not used in the Model Penal Code (U.L.A.) § 210.0 to 210.4, at 532-533, approved by the American Law Institute in 1962. This treatment is followed in the proposed New Jersey Penal Code,[1] Final Report of the New Jersey Criminal Law Revision Commission, §§ 2C:11-1 to 2C:11-5, at 49-51 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1150076/ | 531 So. 2d 632 (1988)
Gary MOAWAD
v.
STATE of Mississippi.
No. 57874.
Supreme Court of Mississippi.
September 14, 1988.
P.J. Townsend, Jr., Townsend, McWilliams & Holladay, Drew, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen., by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, ROBERTSON and SULLIVAN, JJ.
ROY NOBLE LEE, Chief Justice, for the court:
Gary Moawad was indicted, tried and convicted in the Circuit Court of Panola County March, 1976 Term, for murder less than capital and two (2) aggravated assaults. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections on the murder conviction and to terms of twenty (20) years and five (5) years for the aggravated assaults, the sentences to run consecutively. *633 Through no fault of his own, Moawad's appeal was not properly perfected and, on February 26, 1986, this Court granted his petition for an out-of-time appeal. He has assigned five (5) errors in the trial below.
Facts
On November 13, 1975, E.O. Tubbs was shot and killed in his home. The cause of his death was a single gunshot delivered at close range with a .32-caliber revolver, to the back of his head. Death was instantaneous. Willodean Tubbs, decedent's wife, sustained a gunshot wound just below her right eye and son, Michael Tubbs, suffered multiple lacerations to his face and head.
Previous to the homicide and assaults, appellant and the Tubbs family, i.e. E.O. Tubbs, Willodean Tubbs, his wife, Michael Tubbs, son, and Kathleen Smith, daughter, became acquainted in 1965. At that time appellant and Kathleen Smith were attending Bible School in Tupelo, Mississippi, after which they began dating, and in May of 1965 were married. In 1969, appellant and Kathleen began experiencing marital difficulties. The couple separated in 1975, and Kathleen began divorce proceedings against him. Appellant had visited the Tubbs home in Sardis, Mississippi, regularly. Three children (sons) were born to the marriage of appellant and Kathleen and they also visited regularly with the grandparents.
On November 13, 1975, appellant and his youngest son, Paul, went to the Tubbs' home in Sardis, Mississippi. Mr. Tubbs, his wife Willodean, and his son, Michael, all were present. Appellant explained his visit by saying that he and Kathleen were reunited. According to Mrs. Willodean Tubbs, everything was calm and the conversation was normal. At the beginning of the visit they were in the living room and talked approximately forty (40) minutes.
The testimony of Mrs. Willodean Tubbs and Michael Tubbs and evidence for the State indicated that appellant took the child out to the fenced backyard and returned to the house and into the kitchen. E.O. Tubbs had left the living room and was sitting in a chair in the kitchen. When appellant entered the kitchen from the yard there was a shot heard by Willodean and Michael. Appellant then entered the living room with a .32-caliber Smith & Wesson revolver in his hand and shot Mrs. Tubbs, the bullet striking her just below the right eye and rendering her unconscious. Michael attempted to wrestle the pistol away from appellant, and, during the struggle, suffered lacerations to his face and head. Michael broke loose and ran to a neighbor's house for help. Appellant picked up the child from the backyard and drove directly to the North Mississippi Legal Services Office in Oxford, Mississippi, to speak with an attorney.
When Michael Tubbs returned home, his mother had revived and was bleeding from her eye. Mr. Tubbs' body was slumped in the chair where he had been seated in the kitchen. Patricia Hendricks, a neighbor of the Tubbs, testified that she responded to a knock at her door on November 13, 1975, and Mrs. Tubbs was standing outside covered with blood. She ran over to the Tubbs residence, entered the house, and saw Mr. Tubbs' body seated in a chair in the kitchen. There was nothing in his hands and she saw no firearms. She and Michael Tubbs removed the body from the chair and put it on the floor.
Marham Kozam, appellant's step-brother, testified that on November 13, 1975, appellant told him there was no hope for his marriage because Kathleen still wanted a divorce. Appellant was nervous and Kozam observed him place his .32-caliber pistol in a baby diaper. On November 13, 1975, he received a telephone call from appellant, who told him that he shot Mr. E.O. Tubbs. After the conversation, Kozam searched the house for appellant's pistol and was unable to find it. Dr. Arthur Boyd, a physician at North Panola Hospital, examined the Tubbs family.
Mr. E.O. Tubbs was pronounced dead on arrival at the hospital, and it was the opinion of Dr. Boyd that the cause of death was a gunshot wound to the "left oxipa [sic] *634 behind the ear."[1] Mrs. Tubbs sustained a gunshot wound just below the right eye. The bullet did not exit and remains lodged in Mrs. Tubbs' head. Michael Tubbs sustained a ragged laceration to the upper portion of his left cheek under the eye approximately two and one-half (2 1/2) inches long. A .32-caliber bullet was removed from Mr. Tubbs' head and was identified as having been fired from either a Smith & Wesson revolver or an INA.
Appellant testified in his own behalf, and, according to him, an argument ensued in the Tubbs home, he was attacked by E.O. Tubbs, and Michael Tubbs, and the gun fired during the struggles, resulting in the shooting of E.O. Tubbs and Mrs. Willodean Tubbs and that appellant struck Michael Tubbs with an ashtray during the struggle.
Law
I.
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO TRY THE APPELLANT ON THREE (3) SEPARATE INDICTMENTS AT THE SAME TRIAL.
For the first time, on appeal, appellant contends that it was error for the lower court to allow the three (3) indictments to be consolidated in one trial. The record reflects that appellant made no objection to the consolidation of the charges and the assigned error is procedurally barred from review by this Court. It has been held consistently that the failure to make a contemporaneous objection at trial constitutes a waiver of any error subsequently assigned. Irving v. State, 498 So. 2d 305 (Miss. 1986); Gates v. State, 484 So. 2d 1002 (Miss. 1986); Gray v. State, 472 So. 2d 409 (Miss. 1985). See also Wainright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Accord: Pieratt v. State, 235 So. 2d 923 (Miss. 1970); Tubbs v. State, 402 So. 2d 830 (Miss. 1981); Walker v. State, 473 So. 2d 435 (Miss. 1985); Ward v. State, 461 So. 2d 724 (Miss. 1984).[2]
The assigned Error I is rejected.
II.
THE LOWER COURT ERRED IN GRANTING JURY INSTRUCTION S-3.
III.
THE LOWER COURT ERRED IN GRANTING JURY INSTRUCTION S-10.
IV.
THE LOWER COURT ERRED IN GRANTING JURY INSTRUCTION S-5.
The instructions relating to the above assigned errors follow:
Instruction S-3
The Court instructs the Jury that a mere denial by the defendant does not entitle him to an acquittal until such denial is so clear and convincing to enable each juror, when considering said denial with all the testimony, to form a reasonable doubt as to the guilt of the defendant.
Instruction S-5
The Court instructs the Jury that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon.
Instruction S-10
The Court instructs the jury that if you believe from the evidence that in this case the defendant made an aggravated assault in and upon the body of Mike Tubbs with a certain deadly weapon, to-wit: a pistol, without provocation, or without threat of great bodily harm to *635 himself, then it will be your sworn duty to find the defendant guilty as charged.
The record reflects that no objection was made to any of the three instructions set forth above. Therefore, the points are procedurally barred and are not properly before the Court for consideration. Rule 42, Miss.Sup.Ct. Rules. Lockett v. State, 517 So. 2d 1317 (Miss. 1987); Gray v. State, 472 So. 2d 409 (Miss. 1985); Billiot v. State, 454 So. 2d 445 (Miss. 1984); Gilliard v. State, 428 So. 2d 576 (Miss. 1983). Accord: Booker v. State, 449 So. 2d 209 (Miss. 1984); Oates v. State, 421 So. 2d 1025 (Miss. 1982); Gates v. State, 484 So. 2d 1002 (Miss. 1986).
The assigned errors are rejected.
V.
THE LOWER COURT ERRED IN PASSING OVER THE FIRST ALTERNATE JUROR AND APPOINTING THE SECOND ALTERNATE JUROR TO REPLACE A REGULAR JUROR.
Appellant contends that the lower court improperly passed over the first alternative juror, Mrs. A.H. Wilson, and appointed the second alternate juror, D.M. Yount, to replace a regular juror who had become ill prior to the time the jury retired to consider its verdict. However, the record does not reflect this alleged replacement of a regular juror by an alternate:
The Court: All right, you've heard the conclusion of the presentation of the evidence, the arguments of counsel. I'm very grateful that we have not had any instances requiring the replacement of any member of the regular twelve of the panel, and I, at this time, express the gratitude of the court for the patience of the alternate jurors, who have sat here. They have concluded their duties, and I'm glad that they did not have to take their place on the regular panel. .. . Thank you for being here and you may now be excused from the box.
In Mason v. State, 440 So. 2d 318 (Miss. 1983), the Court said:
We have on many occasions held that we must decide each case by the facts in the record, not assertions in the brief, however sincere counsel may be in those assertions. Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.
440 So.2d at 319.
In absence of anything in the record appearing to the contrary, this Court presumes that the trial court acted properly. Vinson v. Johnson, 493 So. 2d 947 (Miss. 1986); Fontaine v. Pickle, 254 So. 2d 769 (Miss. 1971).
The assigned Error V is rejected.
The judgment of the lower court is affirmed.
AFFIRMED.
PRATHER, ROBERTSON, SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur.
DAN M. LEE, P.J. and HAWKINS, P.J., specially concur.
DAN M. LEE, Presiding Justice, specially concurring:
Because there was no objection to the three jury instructions given at Moawad's trial, I agree with the majority's opinion that Moawad is procedurally barred from bringing the instructions as error here on appeal. However, I would point out that had an objection been lodged, it would have been reversible error to have given these instructions.
Instruction S-10 reads:
The Court instructs the jury that if you believe from the evidence that in this case the defendant made an aggravated assault in and upon the body of Mike Tubbs with a certain deadly weapon, to-wit: a pistol, without provocation, or without threat of great bodily harm to himself, then it will be your sworn duty to find the defendant guilty as charged.
This instruction curtails the jury's consideration of a proper self defense instruction, as we recommended in our opinion in Robinson v. State, 434 So. 2d 206 (Miss. 1983):
The Court instructs the jury that to make a killing justifiable on the grounds of self *636 defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.
Id. at 207. See also Fairman v. State, 513 So. 2d 910, 914 (Miss. 1987). Instruction S-10, as given in the present case, cuts out or conflicts with the jury's consideration of whether or not the danger to the defendant was either actual, present, or urgent, or whether or not the defendant had reasonable grounds to apprehend a design on the part of the victim to kill him or to do him great bodily harm, and, additionally, whether or not the defendant had reasonable grounds to apprehend that there was imminent danger of the design being accomplished. As such, this instruction should not be given.
Instruction S-3, which was also given in the present case, reads:
The Court instructs the jury that a mere denial by the defendant does not entitle him to an acquittal until such denial is so clear and convincing to enable each juror, when considering said denial with all the testimony, to form a reasonable doubt as to the guilt of the defendant.
Such an instruction has the effect of shifting the burden of proof to the defendant to prove his denial by clear and convincing evidence. This instruction undercuts the principle that the burden of proof is on the state to prove each element of the crime beyond a reasonable doubt. This burden of proof never shifts from the state, even though the defendant has the duty to go forward and present evidence to substantiate matters raised in his defense. Meshell v. State, 506 So. 2d 989, 992 (Miss. 1987); Talbert v. State, 347 So. 2d 352, 354 (Miss. 1977). Instruction S-3, as given, confuses the concepts of burden of proof, which lies with the state, and the burden of production, which lies with the defendant to substantiate matters raised in his defense. As such, an instruction like S-3 should not be given.
Finally, Instruction S-5, given in this case, reads:
The Court instructs the jury that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon.
Although malice aforethought may be presumed from the unlawful and deliberate use of a deadly weapon, this instruction may only be used "where the evidence has failed to establish the circumstances surrounding use of the weapon." Carter v. State, 493 So. 2d 327, 330 (Miss. 1986).
The Carter opinion continues:
Where the facts have been set forth, even on conflicting testimony, the question of malice should be left for the consideration of the jury. [cites omitted] Since it is apparently so difficult for the Bench and Bar to recognize the proper case in which it may be granted, rarely should the prosecution seek, and the court give, such an instruction.
Id. Where the facts and circumstances surrounding the killing have been disclosed, giving this instruction invades the jury's consideration of the evidence of malice and should not be given.
I wish to emphasize again (see my special concurrence in Robinson v. State, 434 So.2d at 208) to the bench and bar the importance of jury instructions in our judicial system and to emphasize that careful attention needs to be given to correctly instructing the jury in the principles of law to be applied in each case.
HAWKINS, P.J., joins this concurring opinion.
NOTES
[1] Mr. E.O. Tubbs also sustained a wound to his back. A bullethole was found in the top back portion of a chair in the kitchen.
[2] The three charges for the death of Mr. Tubbs, assault of Mrs. Willodean Tubbs, and assault of Michael Tubbs and the facts surrounding them were so intertwined that the entire occurrence would have been shown in the trial of the murder charge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600308/ | 170 P.3d 596 (2007)
STATE of Washington, Respondent,
v.
Michael E. ASHBY, Appellant.
No. 34185-9-II.
Court of Appeals of Washington, Division 2.
October 30, 2007.
*597 Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, for Respondent.
Michael Ashby, pro se.
BRIDGEWATER, J.
¶ 1 Michael E. Ashby appeals the trial court's imposition of appellate costs under RCW 10.73.160, after we dismissed his personal restraint petition challenging his earned early release time. We reverse the trial court's imposition because his appellate costs under RCW 10.73.160 are "limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence." RCW 10.73.160(2) (emphasis added). Because he did not appeal or collaterally attack his 1990 criminal conviction or sentence, we reverse the trial court's award of appellate costs.
FACTS
¶ 2 In June 2004, we dismissed Ashby's personal restraint petition in which he claimed that his restraint was unlawful because the Department of Corrections (DOC) failed to credit him with earned early release time that he accrued while in the Pierce County jail. We concluded that "Ashby has failed to show that the jail certification was incorrect. Unlike at trial, the burden of proof is on the petitioner to demonstrate that an error has been made." CP at 8.
¶ 3 In March 2005, we issued our certificate of finality, which, among other things, awarded appellate costs of $125 to the State. Pierce County filed a motion with the trial court "for an order adding appellate costs to the judgment and sentence." CP at 23. In response, Ashby filed a motion for temporary removal and transport from DOC to the trial court and a motion for remission and/or modification of the appellate costs.
¶ 4 Meanwhile, in June 2005, Ashby filed a complaint with DOC, saying that he was "very concerned" that the savings balance of his inmate trust account had decreased from $145.50 in May to $20.50 in June. CP at 45. DOC explained that it had placed a $125 hold on Ashby's inmate trust account, explaining, "This is in reference to a court case you lost and the [Attorney] General is requesting a fee for court costs." CP at 45.[1]
¶ 5 In August 2005, the trial court denied Ashby's motions, finding that he did not have *598 a right to be present at the hearing and that any remission of the payment of costs would be premature, as Pierce County had yet to enforce the judgment for costs. The trial court ordered that:
appellate costs in the amount of $125.00 shall be added to the legal financial obligations listed in the Judgment and Sentence to be paid by the defendant. All other terms and conditions of the original Judgment and Sentence shall remain in full force and effect as if set forth in full herein.
CP at 32-33. Shortly thereafter, Ashby filed a notice of appeal from the trial court's order.[2]
¶ 6 Ashby also filed another motion for remission of the appellate costs. Within this motion before the trial court, he claimed that Pierce County had proceeded to enforce the judgment for appellate costs of $125 when DOC had placed a $125 hold on his inmate trust account. And he claimed that under RAP 3.1 he was an aggrieved party and had a right to seek review under RAP 2.2(a)(1).[3] He also sought an inquiry into whether he was able to pay.
¶ 7 Finally, Ashby filed with the trial court a motion for arrest of judgment under CrR 7.4(a)(3)[4] for what he termed "[i]nsufficient [p]roof of a material element of the crime, and/or ability to pay court order[ed] costs." CP at 39. Again, within this motion before the trial court, he claimed that Pierce County had proceeded to enforce the judgment for appellate costs of $125 when DOC had placed a $125 hold on his inmate trust account. And he claimed that Pierce County had proceeded without any inquiry into whether he was able to pay. Thus, he claimed that under RAP 3.1 he was an aggrieved party and had a right to seek review under RAP 2.2(a)(1).
¶ 8 In September 2005, the trial court concluded that Ashby's motion for arrest of judgment under CrR 7.4(a)(3) and Ashby's motion for remission of the appellate costs established a basis for further consideration.[5] After directing Pierce County to file a response, the trial court indicated that it would review Pierce County's response and decide whether a hearing was necessary.
¶ 9 In October 2005, Pierce County argued in its response that: (1) Ashby's motion for arrest of judgment under CrR 7.4 was untimely and failed to articulate a basis for relief and (2) Ashby's motion for remission of the appellate costs failed to show that he was an aggrieved party. Specifically, Pierce County concluded:
Thus, there is nothing in defendant's supporting evidence to show that the $125.00 currently on hold is connected to costs imposed in this Pierce County cause number. The amount may pertain to an unsuccessful personal restraint petition that was filed against the department of corrections on a different conviction, or it may be that the hold was in reference to the order adding appellate costs that was entered by this court on December 3, 2004. However, it is defendant who is seeking remission and who must show that the funds are being collected with regard to this Pierce County cause number in order to show that he is an aggrieved party under this cause number. Defendant does not provide documentation to show that was the case. . . . Defendant has not provided evidence that the State has actually collected any costs stemming from this Pierce County cause number.
CP at 70-71.[6]
¶ 10 In October 2005, the trial court denied Ashby's motion for arrest of judgment and *599 Ashby's motion for remission of the appellate costs. Thereafter, Ashby filed a "MOTION FOR EXTENSION OF TIME TO FILE MEMORANDUM OF LAW AND COMBINED REPLY TO COUNTY'S RESPONSE TO MOTION FOR REMISSION OF APPELLATE COSTS." CP at 81-83. The trial court treated this motion as a motion for reconsideration and gave the State an opportunity to respond. Pierce County declined to respond.
¶ 11 Then, in November 2005, Ashby filed a motion to vacate his judgment under CrR 7.8(b)(4) and (5).[7] Among other things, Ashby argued that the trial court did not have authority to require him to pay appellate costs of $125 under RCW 10.73.160(1) and (2),[8] as his personal restraint petition was neither an appeal nor a collateral attack from a criminal conviction or sentence. Rather, in his personal restraint petition, Ashby had claimed that his restraint was unlawful because DOC failed to credit him with earned early release time that he had accrued while in the Pierce County jail.
¶ 12 Nevertheless, the trial court denied Ashby's motion for reconsideration and Ashby's motion to vacate his judgment. Ashby appealed.
ANALYSIS
¶ 13 Among other things, Ashby argues that the trial court erred in denying his motion to vacate. He claims that the trial court had no authority under RCW 10.73.160 to add appellate costs to his judgment and sentence. Pierce County responds that Ashby did not raise this issue below and that the trial court's order is not properly before this court. But clearly Ashby raised this issue before the trial court in his motion to vacate and in his memorandum of law in support of his motion to vacate.[9] We agree with Ashby that the trial court lacked authority under RCW 10.73.160 to add appellate costs to his judgment and sentence.
¶ 14 Normally, we would review a trial court's decision to vacate a judgment under CrR 7.8(b) for an abuse of discretion.[10]See State v. Ellis, 76 Wash.App. 391, 394, 884 P.2d 1360 (1994); State v. Aguirre, 73 Wash. App. 682, 686, 871 P.2d 616, review denied, 124 Wash.2d 1028, 883 P.2d 326 (1994). But this appeal mainly raises the question of whether the trial court based its decision on an erroneous view of the law.
¶ 15 "The choice, interpretation, or application of a statute to a set of facts is a matter of law reviewed de novo." State v. Law, 110 Wash.App. 36, 39, 38 P.3d 374 (2002). In other words, we review questions of law, including statutory construction, de novo. State v. Bright, 129 Wash.2d 257, 265, 916 P.2d 922 (1996). "The purpose of statutory construction is to give content and force to the language used by the Legislature." State v. Wilson, 125 Wash.2d 212, 216, 883 P.2d 320 (1994). We apply unambiguous statutes according to their plain language. In re Pers. Restraint of Skylstad, 160 Wash.2d 944, 948, 162 P.3d 413 (2007). "And no construction should be accepted that has *600 `unlikely, absurd, or strained consequences.'" Skylstad, 160 Wash.2d at 948, 162 P.3d 413 (quoting State v. Elgin, 118 Wash.2d 551, 555, 825 P.2d 314 (1992)).
¶ 16 RCW 10.73.160(1) provides that "[t]he court of appeals, supreme court, and superior courts may require an adult or a juvenile convicted of an offense . . . to pay appellate costs." The statute further provides that "[a]ppellate costs are limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence." RCW 10.73.160(2) (emphasis added). Because Ashby is not a juvenile offender, we do not consider the part of RCW 10.73.160(2) regarding a juvenile offender conviction or disposition.
¶ 17 Applying the traditional rules of statutory construction, RCW 10.73.160(2) is unambiguous.[11] And the statute is to be enforced in accord with its plain meaning. State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003). Nothing in the statute's language suggests that the legislature intended RCW 10.73.160(2) to be illustrative. Rather, the statute's language suggests that the legislature plainly meant for these enumerated expenses to be the exclusive and complete list of appellate costs. Thus, appellate costs under RCW 10.73.160(2) include only those expenses specifically incurred by the State in prosecuting or defending: (1) an appeal from a criminal conviction or sentence; or (2) a collateral attack from a criminal conviction or sentence. And because "[w]e cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language," State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003), appellate costs under RCW 10.73.160(2) do not include expenses specifically incurred by the State in prosecuting or defending other actions. "We assume the legislature `means exactly what it says.'" Delgado, 148 Wash.2d at 727, 63 P.3d 792 (quoting Davis v. Dep't of Licensing, 137 Wash.2d 957, 964, 977 P.2d 554 (1999)).
¶ 18 Here, Ashby did not appeal his 1990 criminal conviction or sentence. And Ashby did not collaterally attack his 1990 criminal conviction or sentence. In fact, Pierce County had argued that his personal restraint petition was time-barred under RCW 10.73.090(1), which provides that "[n]o petition or motion for collateral attack[[12]] on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." But in our order dismissing Ashby's personal restraint petition, we concluded, "[RCW 10.73.090(1)] does not apply here as Ashby is not attacking his judgment and sentence." CP at 7. Rather, Ashby simply claimed in his personal restraint petition that his restraint was unlawful because DOC failed to credit him with earned early release time that he accrued while in the Pierce County jail.
¶ 19 Thus, Pierce County did not specifically incur expenses in defending an appeal from Ashby's 1990 criminal conviction or sentence. And Pierce County did not specifically incur expenses in defending a collateral attack from Ashby's 1990 criminal conviction or sentence. Therefore, under the plain language of RCW 10.73.160(2), Pierce County did not incur any appellate costs. And under RCW 10.73.160(1), neither we nor the trial court could require Ashby to pay appellate costs.
¶ 20 We erred when, among other things, we awarded appellate costs of $125 to Pierce County.[13] And the trial court erred when it added appellate costs of $125 to Ashby's judgment and sentence.[14] Therefore, we reverse *601 and remand for the trial court to enter a corrected judgment and sentence, striking the addition of appellate costs of $125.
¶ 21 Reversed and remanded for the entry of a corrected judgment and sentence.
We concur: HOUGHTON, C.J., and PENOYAR, J.
NOTES
[1] According to attachments to DOC policy 200.000, it appears that the orders are received from the Attorney General's Office. See Deductions, Attach. to DOC Policy 200.000 (updated Oct. 2003), available at http://www. doc.wa.gov/Policies/default.aspx?show=200 (last visited Oct. 17, 2007).
[2] Because Ashby failed to pay a filing fee or file an order of indigency, this court dismissed his appeal.
[3] But besides having DOC place a $125 hold on his inmate trust account, it appears that Pierce County took no further action until September 2005 to enforce the judgment for appellate costs of $125.
[4] Under CrR 7.4(a)(3), "Judgment may be arrested on the motion of the defendant for . . . insufficiency of the proof of a material element of the crime."
[5] The trial court treated these motions as a CrR 7.8 motion.
[6] But as of September 23, 2005, DOC no longer placed a $125 hold on Ashby's inmate trust account. Instead, DOC listed the $125 as an "amount paid" under Ashby's "DEBTS AND OBLIGATIONS." CP at 141. In fact, DOC listed the $125 as "COSTS, SANCTIONS, AND ATTORNEY FEES" under "INFO NUMBER" 31152-6-II, the personal restraint petition that we dismissed in June 2004. CP at 21, 141.
[7] Under CrR 7.8(b)(4), the trial court may relieve a party from a final judgment, order, or proceeding if the judgment is void. Under CrR 7.8(b)(5), the trial court may relieve a party from a final judgment, order, or proceeding for any other reason justifying relief from the operation of the judgment.
[8] Under RCW 10.73.160(2), "Appellate costs are limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence or a juvenile offender conviction or disposition."
[9] And under RAP 2.2(a)(10), a party may appeal from a trial court's order denying a motion to vacate a judgment.
[10] An abuse of discretion occurs when the trial court's decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State v. Aguirre, 73 Wash.App. 682, 686, 871 P.2d 616, review denied, 124 Wash.2d 1028, 883 P.2d 326 (1994). And a trial court would necessarily abuse its discretion if it based its decision on an erroneous view of the law. State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).
[11] Language is unambiguous when it is not susceptible to two or more interpretations. State v. McGee, 122 Wash.2d 783, 787, 864 P.2d 912 (1993).
[12] Under RCW 10.73.090(2), collateral attack is defined as "any form of postconviction relief other than a direct appeal. `Collateral attack' includes, but is not limited to, a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a motion to arrest judgment."
[13] But we note that Ashby did not appeal our award of appellate costs to the State. Instead, he merely appealed the trial court's addition of appellate costs to his judgment and sentence.
[14] The legislature is, of course, free to amend RCW 10.73.160(2) to include expenses specifically incurred by the State in prosecuting or defending other actions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2597765/ | 213 P.3d 578 (2009)
346 Or. 364
STATE
v.
HINKLE.
(S057299).
Supreme Court of Oregon.
July 9, 2009.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2597773/ | 213 P.3d 418 (2009)
STATE of Kansas, Appellee,
v.
David E. EASTERLING, Appellant.
No. 100,454.
Supreme Court of Kansas.
August 7, 2009.
*420 Christopher M. Joseph, of Joseph & Hollander P.A., of Topeka, argued the cause, and Stephen M. Joseph, of the same firm, of Wichita, was with him on the brief for the appellant.
Matt P. Patterson, assistant district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, Robert D. Hecht, district attorney, and Steve Six, attorney general, were on the brief for the appellee.
The opinion of the court was delivered by JOHNSON, J.:
As part of a plea agreement, David E. Easterling pled guilty to two counts of aggravated indecent liberties with a child under the age of 14. In exchange for his plea, the State agreed to recommend a durational departure from the hard 25 life sentence mandated by K.S.A. 21-4643 (Jessica's Law) to a term of 118 months in prison. At sentencing, the district court declined to follow the joint recommendation for departure and imposed the statutorily prescribed hard 25 life sentence. In pronouncing its decision, the sentencing court mentioned Easterling's post-Miranda admission that he had sexually molested his daughter in the 1980's, which the judge had discovered was recorded in the law enforcement officer's arrest report affidavit.
Easterling appeals his sentencing, alleging that (1) his right to due process was violated by the district court's reliance on the arrest report affidavit at sentencing, without affording Easterling the opportunity to challenge its contents or requiring that the State prove the contents by a preponderance of the evidence; and (2) the life sentence with a mandatory minimum of 25 years constitutes cruel or unusual punishment, in violation of § 9 of the Kansas Constitution Bill of Rights.
FACTUAL OVERVIEW
Easterling's 5-year-old granddaughter told her paternal grandmother that Easterling had been inappropriately touching her genitals. The grandmother reported the allegation to the Social and Rehabilitation Services (SRS) which led to a "safe talk" interview with the child. Officer Heather Stults-Lindsay then interviewed Easterling and reported that, after Miranda warnings had been given, Easterling admitted to touching his granddaughter inappropriately.
After plea negotiations, Easterling waived a preliminary hearing and pled guilty to an amended complaint containing the two counts of aggravated indecent liberties with a child. The day before the scheduled sentencing hearing, the district court, sua sponte, convened a hearing to clarify certain matters.
First, the court was concerned that the amount of time scheduled for the sentencing hearing might be insufficient, if psychological testimony about the child was to be offered. In that respect, the State advised the court that it would stipulate that the victim was doing well. Further, the State agreed to the submission of additional letters in support of the defendant, including one from the therapist who had been treating Easterling.
Next, the court inquired about a discrepancy in the minute sheet about the charges to which Easterling had pled. The parties confirmed that the two counts were identical charges of aggravated indecent liberties with a child and that Easterling had entered a guilty plea to both counts.
The court then inquired as to how the allegations arose. Specifically, the court *421 wanted to know the extent of SRS's involvement, which the State explained.
Finally, the court advised the parties that "there is the affidavit of the officer, which indicated that the defendant had admitted after Miranda apparently that he had an incident like this with his own daughter back in the 80's. That's in the police report." Easterling's counsel acknowledged that defendant had given up his right to challenge the affidavit by pleading guilty, but suggested that the court should not consider the statement because the allegation of prior abuse had not been proved. Before the parties left court that day, the district court made certain that Easterling's counsel had a copy of the affidavit, which states, in relevant part:
"State of Kansas: Shawnee County,
"I, Heather Stults-Lindsay of lawful age, after first being duly sworn on oath, on information and belief states:
"A Safe Talk was conducted with the five year old granddaughter of David Easterling. The five year old disclosed that her grandfather had been touching her vagina and buttocks with his hand and penis. The five year old described the white stuff that came out of grandpa's penis when his penis touched her vagina. In a post Miranda interview with Easterling he advised that when his granddaughter spent the summer with him in July and August 2006 during and after her baths he would fondle her vagina with his fingers. After her baths he would have her go to his bedroom and lay on his bed. He then licked her vagina on several occassion [sic] and stated on one occasion rubbed his penis on her vagina. He also advised that the five year old touched his penis on one occasion in his bedroom. Easterling stated he could not remember if he ejaculated or not. Easterling also admitted to sexually molesting his own daughter when she was a child in the 1980's.
"In a conversation with Easterling's wife she advised she was aware of the sexual touching of her daughter as a child in Arkansas, but they did not report that to authorities. Easterling's wife stated she was unaware of the sexual acts with her grand daughter [sic].
"Easterling was transported to DOC and booked on on [sic] the seven counts listed on this report.
"I verify under penalty of perjury that the foregoing is true and correct.
"All of the events described herein occured [sic] within Shawnee County, Kansas. FURTHER AFFAINT [sic] SAYETH NAUGHT."
The following day at sentencing, the district court provided a detailed explanation of the sentencing authority vested in the court by the legislature, including a discussion of Jessica's Law, K.S.A. 21-4643. The court advised Easterling that in order to exercise its departure authority and impose the jointly recommended sentence of 118 months, the court must review the proffered mitigating circumstances and determine whether the reasons to depart are both substantial and compelling.
The court noted that it had considered the six mitigating circumstances listed in K.S.A. 21-4643(d) and had not found substantial and compelling reasons to depart from that list. However, the court acknowledged that the statutory list is nonexclusive and, accordingly, the court specifically reviewed and briefly discussed each of the numerous mitigating circumstances propounded in Easterling's departure motion. The court observed that if it were to focus entirely on the circumstances relating to the defendant, e.g., "defendant's community service, church, his work, his family, the statement by his daughter who also proffered that the victim is doing well, the defendant's lack of prior criminal record, the fact the State has joined in recommending the departure, obviously a strong and compelling argument can be made for reduced sentence."
However, the court opined that its inquiry had a second component in which it focused on the crimes themselves. Here, the court noted, the defendant, an older man, performed multiple acts of lewd fondling with a very young child, who was particularly vulnerable. The child had been placed in his trust. He committed the acts to satisfy his sexual desires at the expense of a 5-year-old *422 child. The court found that Easterling's acts were no different from the typical scenario presented for the crime of aggravated indecent liberties with a child under age 14, with the possible exception that "it may have been more intense than normal, if normal could even be defined."
The court then acknowledged that it had considered the Stults-Lindsay arrest report affidavit, because the court believed that it could "consider any other relevant evidence that the Court would find trustworthy and reliable." The court found the affidavit to be reliable and trustworthy because it had been "signed under oath under penalty of perjury by a law enforcement officer of legal age." The court opined that the acts Easterling performed in this case, together with the prior abuse of his daughter, indicated that "defendant possesses an abnormal condition in which an adult has a sexual desire for children."
In that vein, the court expressed concern that there had been no expert opinion as to how long the victim would remain in therapy and "what the long term effects might be because of the dysfunction of this family unit." Likewise, the court noted the absence of any assurance that "the defendant wouldn't re-offend under the right circumstance with a minor child in the future" and declared: "One of the purposes of the current law, Mr. Easterling, is Kansas's attempt to protect children from abuse by one whose only interest is to satisfy their sexual desires." The court then found:
"Therefore, after making an assessment of the defendant for the departure, after making an assessment of the nature of the crime and the defendant's involvement and the applicable Kansas law, the Court finds that while there have been at least nine or more reasons advanced for departure, the Court cannot and does not find from the totality of the circumstances that there are both substantial and compelling reasons to depart. The defendant's motion for durational departure is therefore denied."
Easterling appealed that ruling, and this court has jurisdiction, subject to K.S.A. 22-3601(b)(1).
DUE PROCESS
Easterling asserts that the sentencing court violated his right to due process when it based his sentence, in part, on the information contained within the arrest report affidavit, without providing him a genuine opportunity to challenge the disputed factual assertions in the affidavit and without requiring the State to prove the disputed facts by a preponderance of the evidence. We are not presented with a challenge to the district court's assessment that the reasons given for departure were not substantial and compelling. Easterling clarified in his reply brief that he is "challenging the district court's denial of procedural due process, not its decision to deny a departure motion." Accordingly, our review is unlimited. See State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008) ("Whether a defendant's due process rights were violated is a question of law over which this court exercises unlimited review.").
Although Easterling's brief does not specifically set forth which of the facts contained in the affidavit that he disputes, we discern his principal concern is with his admission to previously sexually molesting his own daughter. Moreover, Easterling's counsel's oral arguments did not focus on disputing that Easterling actually made the inculpatory statement to the law enforcement officer. Rather, counsel argued that the procedures employed did not ensure that the content of Easterling's statement was true and not a false or involuntary confession.
Easterling supports his arguments with federal authority, commencing with a citation to Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), for the proposition that a defendant is entitled to due process at sentencing. Gardner was a death penalty case in which the jury recommended a life sentence, but the trial judge sentenced the defendant to death, relying in part on confidential information in the presentence report which had not been disclosed to the defendant. In a plurality decision, six members of the Supreme Court voted to invalidate the death sentence, albeit for differing reasons. Four of the justices explicitly based their decision, at least in part, on *423 the applicability of the Due Process Clause to sentencing proceedings.
We pause to note that the State's brief did not address the due process question. Instead, the State relied exclusively on an argument that this court lacked jurisdiction to entertain Easterling's appeal of the departure denial because he received a presumptive sentence. See K.S.A. 21-4721(c)(1) (appellate court shall not review any sentence that is within the presumptive sentence for the crime). At oral argument, the State acknowledged that its jurisdiction argument is undermined by our intervening opinion in State v. Ortega-Cadelan, 287 Kan. 157, 163-64, 194 P.3d 1195 (2008) (life sentence for off-grid crime does not meet K.S.A. 21-4703 definition of "presumptive sentence").
Although we are unaware of any Kansas case explicitly stating that a defendant is entitled to due process at sentencing, we have made that finding in the analogous context of probation revocation proceedings. "The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation." State v. Walker, 260 Kan. 803, Syl. ¶ 2, 926 P.2d 218 (1996). Certainly, then, the potential for depriving a defendant of his or her liberty at sentencing would likewise mandate the applicability of due process limitations at that critical stage of the criminal proceedings. The question then becomes the extent of the process that is due a defendant at sentencing. Cf. State v. Palmer, 37 Kan.App.2d 819, Syl. ¶ 4, 158 P.3d 363 (2007) ("Because probation revocation hearings are not equivalent to criminal prosecutions, they are allowed a more flexible process and consideration of material that might not be admissible in an adversary criminal trial."); see also Gardner, 430 U.S. at 358 n. 9, 97 S.Ct. 1197 (fact that due process applies does not implicate entire panoply of criminal trial procedural rights; due process is flexible, calling for such procedural protections as the particular situation demands).
At oral argument, Easterling declared that for sentencing purposes a defendant need only advise the court that he or she disputes a particular fact and due process precludes the court's consideration of that disputed fact unless the State presents evidence to prove the fact by a preponderance of the evidence. Further, Easterling asserted that if, as in this case, the State must refrain from advocating for the existence of a disputed aggravating fact because of its commitments under a plea agreement, then the court simply cannot consider that fact. Easterling overstates his constitutional entitlement.
In his brief, Easterling relies principally on decisions from the Second Circuit Court of Appeals, to-wit: Gonzalez v. Kuhlman, 911 F.Supp. 120, 125-26 (S.D.N.Y.1995) ("[W]hile, at sentencing, due process does not `implicate the entire panoply of criminal trial procedural rights,' it requires some protection against a defendant being sentenced on the basis of `materially untrue' statements or `misinformation' and insists also that the state prove disputed conduct upon which a sentence rests `by a preponderance of the evidence.'"); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.1987) (due process violated when information on which defendant is sentenced is "materially untrue" or is, in fact, "misinformation"); United States v. Pugliese, 805 F.2d 1117, 1123-24 (2d Cir.1986) (due process requires that defendant be allowed in some manner to challenge proffered presentence report information; court has obligation to assure itself that the information upon which it relies in sentencing defendant is both reliable and accurate). At oral argument, Easterling conceded that the factual context in which these cases considered due process at sentencing differed from the departure denial presented in this case.
Gonzalez involved a sentencing for a jury trial conviction of first-degree robbery. At the time of the robbery sentencing, Gonzalez was awaiting trial on a gun possession charge and faced a possible indictment for an alleged prison assault. The prosecutor, on his own and without any plea negotiations with defendant, advised the sentencing court that if it imposed an indeterminate sentence of 7 to 21 years, the prosecutor would drop the pending gun charge and would not pursue an indictment on the assault. Gonzalez opposed the proposal, indicating his desire to have a trial on the other charges and asserting that *424 he was not guilty of those other offenses. The court announced that, based upon the facts of the current case, an appropriate sentence would have been 5 to 15 years. However, in light of the prosecutor's commitment not to go forward with the other charges, the court imposed a 7- to 21-year sentence. The record did not reflect that the sentencing court had made any determination as to the factual accuracy of the prosecutor's representations or of the defense's denials regarding the assault and gun charges.
In reversing the sentence, Gonzalez first clarified that the fact the sentence imposed fell within the statutory maximum for the robbery conviction was not determinative of whether Gonzalez was deprived of his constitutionally protected right to due process at sentencing. On the other hand, the court also clarified that a defendant has no right to protest the dismissal of charges; that in fixing a sentence a court may consider other pending charges and uncharged but relevant conduct; and that traditionally a sentencing judge's discretion is largely unlimited either as to the kind of information that may be considered and the source from which it derives. However, those "principles are subject to the overall constraint that the procedure by which these factors come before the court conform to the requirements of due process." 911 F.Supp. at 125. In determining whether the procedures employed by the sentencing court conformed to minimal due process requirements, the district court applied the four factors enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976):
"(1) the nature of the individual interest at stake, (2) the risk of error inherent in the present method of obtaining information, (3) the usefulness of additional procedural safeguards in securing accurate information, and (4) the government's interest in being free of the fiscal and administrative burdens that the provision of additional safeguards would impose." Gonzalez, 911 F.Supp. at 126.
The Gonzalez court opined that application of the analysis was straightforward in that case. The interest at stakedefendant's future libertycould not be greater. Relying on unproven prosecutorial representations to obtain information presents an inherent risk of error, if not a temptation to make unfounded allegations of uncharged offenses or to initiate baseless prosecution simply to influence the sentence in the pending case. Requiring additional procedural safeguards is bound to result in an incremental benefit in improved accuracy of information to be considered by the sentencing court. Finally, while acknowledging the government's interest in avoiding extended "mini-trials" after conviction to be significant and legitimate, the court opined that procedures could be fashioned to assure that the court relies only on accurate information in sentencing without imposing an excessive burden on the State. 911 F.Supp. at 126.
Ultimately, Gonzalez declared:
"Here there is no close question. Cutting through the competing characterizations of what took place, the defendant was sentenced to an additional term of imprisonment of two to six years (the difference between the five to fifteen year term otherwise thought appropriate and the seven to twenty-one years imposed) for offenses of which he was accused, but which he denied, without (i) any evident consideration by the sentencing court of the accuracy of those charges or (ii) any determination as to whether the People had established the petitioner's guilt even by a preponderance of the evidence. While the sentencing judge undeniably could have sentenced the petitioner to a term of seven to twenty-one years purely on the basis of the offense of conviction, without regard to the other charges, the reliance on the disputed conduct in the absence of these safeguards violated petitioner's federal constitutional right to due process of law." 911 F.Supp. at 126.
In Lee, the defendant was charged in one count of an indictment with violating the Racketeer Influenced and Corrupt Organizations Act (RICO) by committing five racketeering acts. He pled guilty to the charge but only admitted committing two of the alleged racketeering acts. One of the acts to which Lee did not admit was a double murder. The prosecution recommended a 40-year *425 sentence, in part because of Lee's participation in the double murder, the details of which were submitted to the court in an extensive sentencing memorandum. The sentencing court concluded that Lee had participated in the double murder and acknowledged that this fact affected the court's decision to impose the maximum penalty. Lee contended on appeal that the sentencing court violated his due process rights by imposing a sentence predicated on the insufficiently proven finding that he participated in the double murder.
With respect to the process that Lee was due at his sentencing, the Lee court reiterated the four Mathews v. Eldridge factors. The court noted that a defendant's challenge to the accuracy of the government's proffered sentence-enhancing facts "may take the form of countering affidavits, letters, or other written submissions; it may consist of the defendant and/or counsel, as in the instant case, directing argument and comment to the court; there may simply be a cross-examination of witnesses, or a full-blown evidentiary hearing." 818 F.2d at 1056. However, regardless of the form of defendant's challenge, the district court must ensure that the defendant has an effective opportunity to rebut allegations likely to affect the sentence. The court noted that Lee had declined the district court's offer of a full-blown evidentiary hearing, even though the court was under no duty to make that offer. Nevertheless, the court found that the sentencing court had afforded Lee a full opportunity through argument addressed to the court to rebut the government's allegations, i.e., Lee had been afforded procedural due process. Moreover, the court found that the prosecution had presented sufficient evidence to prove by a preponderance of the evidence that Lee participated in the double murder. 818 F.2d at 1057-58.
Finally, in Pugliese, the defendants challenged their enhanced sentences for counterfeiting based upon allegations that they had sanctioned an attempt to murder a witness against them. Ultimately, the sentences were vacated because the district court had not comported with its obligations under Federal Rules of Criminal Procedure § 32. 805 F.2d at 1124. However, for our purposes, Pugliese found that the sentencing judge's use of a transcript of a sentencing proceeding before another judge that revealed that one of the defendants had threatened the witness did not deny the defendants' due process. Also, the opinion held that the defendants were not entitled to a full-blown hearing in their challenge to the presentence reports. 805 F.2d at 1122-23.
Here, the State was not the proponent of an enhanced sentence. To the contrary, the prosecutor had agreed to jointly recommend a sentence of 118 months, which was a mitigated sentence; the statutory default was the hard 25 life sentence that Easterling received. However, the State did not have the burden to prove the substantial and compelling reasons to depart from the default sentence. On the other hand, the prosecutor would not, and indeed could not, proceed to actively advocate in favor of a fact which might undermine the jointly recommended sentence, such as putting on evidence to prove that Easterling had previously abused his own daughter. See State v. Woodward, 288 Kan. 297, Syl. ¶ 3, 202 P.3d 15 (2009) (State can breach plea agreement by effectively arguing against the negotiated sentencing recommendation).
Despite the factual distinctions, however, we are persuaded by Easterling's argument that, for due process purposes, the bottom line is the same. The parties agreed that the appropriate sentence under the circumstances was 118 months. The sentencing court agreed that, focusing on Easterling's circumstances, the argument for the appropriateness of the 118-month sentence was a strong one. However, the sentencing court rejected that 118-month sentence in favor of a hard 25 life sentence, based in part on the previous sexual abuse, i.e., the court enhanced the sentence based on information about prior uncharged but relevant conduct. The rationale for precluding the use of "materially untrue" information or "misinformation," for requiring the sentencing court to assure itself that the information upon which it relies to fix sentence is reliable and accurate, and for requiring the sentencing court to ensure that the defendant have an effective opportunity to rebut the allegations likely *426 to affect the sentence is fully applicable under these circumstances. See Lee, 818 F.2d at 1055-56.
Where we depart from Easterling's argument is his assertion that a sentencing court is precluded from considering a sentence-enhancing fact, where the State cannot advocate for the existence of the fact because of its contractual obligations under a plea agreement. Even the federal cases upon which Easterling relies make it abundantly clear that a sentencing court may consider any circumstance which aids it in deriving a more complete and true picture of the convicted defendant's background, history, or behavior, and that the use of such information, including other crimes for which the defendant was neither tried nor convicted, "does not in and of itself offend a defendant's due process rights." Lee, 818 F.2d at 1055. Likewise, the general statute governing departure sentencing specifically provides that "[i]n determining aggravating or mitigating circumstances, the court shall consider: . . . any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable." K.S.A. 21-4716(d)(4). Although Easterling was sentenced under K.S.A. 21-4643, which contains its own departure provisions, no sound reason exists not to apply the general provisions in this context. We decline to constrain a sentencing court's considerable discretion by limiting the information it can consider to only that which is proffered by the parties.
Nevertheless, a sentencing court's largely unlimited discretion as to the kind or source of information it may consider at sentencing must be exercised "[w]ithin the frame of procedural due process." Lee, 818 F.2d at 1055. Therefore, if a sentencing court endeavors to enhance a sentence beyond that which is jointly recommended by the parties based on a fact which the defendant disputes and for which the prosecutor cannot advocate, the court must, sua sponte, assure itself that the information establishing the sentence-enhancing fact is reliable, accurate, and trustworthy and must provide the defendant with an effective opportunity to rebut the allegation.
In this case, the district court did take steps to safeguard Easterling's rights. It advised defense counsel in advance that the court was looking at the arrest report affidavit and made certain that counsel had a copy. The court made a determination on the record that the affidavit was reliable and trustworthy, at least with respect to accurately reflecting what Easterling and his wife said to the affiant officer. At the sentencing hearing, the court clarified that the defense would have an opportunity to be heard, specifically inviting the defense "to proceed with your argument and any evidence or additional evidence that you want to offer in the amended agreed motion for durational departure." We believe that, pursuant to the four Mathews v. Eldridge factors, the district court's actions afforded Easterling the minimum process to which he was due under the federal Constitution.
As with most, if not all, sentencing cases, the first factorthe nature of the individual interest at stakefavors the defendant; and the fourth factorthe government's interest in being free of the fiscal and administrative burdens that the provision of additional safeguards would imposefavors the State (or in this instance the court). The scales will be tipped by the second and third factors: the risk of error inherent in the method used to obtain the information; and the usefulness of additional procedural safeguards in securing accurate information.
The risk of error in this case can be analyzed on two levels: the risk that the officer inaccurately reported the statements made by Easterling and his wife; or the risk that Easterling or his wife gave a false or coerced statement to the officer. The district court specifically addressed the first level, finding the affidavit to be reliable and trustworthy because the affiant/officer swore an oath that her statements were true and correct "under penalty of perjury." We agree. The inherent risk of error is significantly reduced when the information is obtained through a sworn affidavit. The whole point of using an affidavit is to ensure the accuracy and truthfulness of the affiant's statement.
Moreover, under the third factor, employing any procedure in addition to the affidavit *427 would be marginally useful with respect to ensuring the officer's veracity. There is scant difference between an officer delivering a report under oath from the witness stand and delivering a report under oath in a written affidavit. Granted, Easterling suggests that his statement may not have been voluntary and, in that regard, the opportunity to cross-examine the officer would have been useful. However, while the voluntariness of the confession affects its admissibility at trial and might have a bearing on an assessment of whether the confessor was telling the truth, it does not change the reliability and trustworthiness of the officer's statement as to what Easterling actually said to the officer. Accordingly, the district court did not err in accepting the affidavit without further foundation from the officer.
Easterling concentrates on the second level, contending that the procedures employed did not adequately ensure that his statement was truthful. On appeal, he suggests that the officer's affidavit, without more, was insufficient to protect against the possibility that his confession was involuntarily given and/or was a false confession. In challenging the use of the affidavit in district court, defense counsel was less specific. The argument below was that the affidavit did not have "any place in this Court because it was never tested and it is just an allegation and that's all it is." We disagree with both arguments.
A confession by the defendant differs from the unproven representations of the prosecutor, which Gonzalez found to have a high inherent risk of error under the second Mathews v. Eldridge factor. 911 F.Supp. at 126. The source of a prosecutor's information may be unknown or suspect. A confessor is relating first-hand information. A prosecutor normally has an incentive to relate the defendant's prior uncharged conduct to obtain a sentence enhancement. To the contrary, a confessor is making a declaration against his or her own interest. Even if the statute of limitations has run on the prior criminal acts, our hearsay exceptions recognize that a reasonable person will not say something that subjects the declarant to "hatred, ridicule or social disapproval in the community . . . unless the person believed it to be true." K.S.A.2008 Supp. 60-460(j). One would be hard-pressed to divine a more socially stigmatizing declaration than a father admitting to sexually molesting his daughter.
Here, however, the officer's affidavit presented the district court with more than Easterling's confession. It included corroboration from his wife, who admitted to knowing about the prior sexual abuse of her own daughter and admitted that the conduct was not reported to the authorities. Again, such a declaration against interest is inherently trustworthy, given the risk of societal disapproval of the wife's failure to report her daughter's sexual abuse. To ignore the prior uncharged conduct, the district court would have had to find that both Easterling and his wife gave false confessions. Accordingly, under the second factor, we find that the risk of error inherent in using Easterling's corroborated confession was minimal.
Finally, Easterling asserts that the court's procedure did not give him a meaningful opportunity to rebut the prior abuse allegation. At oral argument, counsel admitted that the defense was aware of the arrest report affidavit at the time of plea negotiations. In fact, counsel advised that the defense had obtained an expert to testify about false confessions. Moreover, the district court put the defense on notice the day before sentencing that it had looked at and was considering the affidavit which contained Easterling's confession of prior abuse. The defense had ample notice to comport with due process.
At the sentencing hearing, the court specifically invited the defense "to proceed with your argument and any evidence or additional evidence that you want to offer" in support of the departure motion. Easterling does not adequately explain why this invitation did not provide him with sufficient opportunity to rebut his own confession or that of his wife. He does not allege that he was unable to obtain the appearance of his false confession expert; he did not request a continuance of the sentencing hearing. Easterling's counsel did not even advise the court that Easterling and his wife would say that they made false confessions or that the daughter would deny *428 that Easterling had molested her, much less present any readily available testimony or affidavits from any of the persons with first-hand knowledge. As was the case in Lee, the defense apparently declined to accept the district court's proffered opportunity to rebut the contents of the affidavit. That declination does not change the fact that the court provided a method by which the defendant could be effectively heard, thereby comporting with the mandates of the Due Process Clause.
CONSTITUTIONALITY OF SENTENCE
Easterling contends that the length of his sentence is an unconstitutionally cruel or unusual punishment, in violation of § 9 of the Kansas Constitution Bill of Rights. Our standard of review is de novo. See State v. Freeman, 223 Kan. 362, 368, 574 P.2d 950 (1978).
Easterling did not challenge the constitutionality of his sentence before the district court. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (even constitutional grounds for reversal cannot be raised for the first time on appeal). Easterling declares, without argument, that consideration of the issue is necessary to prevent a denial of his constitutional rights. Cf. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (exceptions to general rule that new legal theory may not be asserted for first time on appeal include "consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights").
However, as the State points out, recent decisions of this court have refused to consider the merits of this very issue when raised for the first time on appeal. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009), and State v. Ortega-Cadelan, 287 Kan. 157, 160-61, 194 P.3d 1195 (2008). Those decisions were founded upon the nature of the three-prong test for determining cruel and unusual punishment set forth in Freeman:
"(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
"(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
"(3) A comparison of the penalty with punishments in other jurisdictions for the same offense." 223 Kan. at 367, 574 P.2d 950.
We noted that the factors include both legal and factual questions, none of which could be ignored because "no single consideration controls the issue." Thomas, 288 Kan. at 161, 199 P.3d 1265. Because the district court had not made any factual findings relative to the Freeman test, we declined to go beyond our role as an appellate court. See Thomas, 288 Kan. at 161, 199 P.3d 1265 (appellate courts do not make factual findings; they review those made by the district courts).
Here, Easterling argues that we have sufficient facts in the record to analyze the first Freeman factor. However, he does not point to the district court's findings, but rather he simply reiterates some of the mitigating factors he proffered in his departure motion. Nevertheless, we acknowledge that the district court's detailed recitation in ruling on the departure motion does provide us with more in the way of factual findings than we have previously seen. However, those findings cut against, rather than support Easterling's position. The court found that Easterling's culpability "may have been more intense than normal." It found that Easterling acted to satisfy his own sexual gratification without regard to the victim's vulnerability or the position of trust Easterling held over the child. Accordingly, the court expressed concern that Easterling might "re-offend under the right circumstance with a minor child in the future" and noted that one of the purposes of the lengthy sentence was "to protect children from abuse by one whose only interest is to satisfy [his] *429 sexual desires." In other words, given the factual findings which are actually in the record, we are unable to find that the first Freeman factor establishes a cruel or unusual sentence.
Moreover, Easterling does not favor us with any argument or authority on the third factor, a comparison of how other jurisdictions punish this offense. As noted, the analysis requires consideration of all three Freeman factors. Accordingly, the issue is not before us in a posture to be effectively decided.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2597775/ | 213 P.3d 875 (2009)
229 Or. App. 740
GARCIA
v.
BELLEQUE.
A139630.
Court of Appeals of Oregon.
July 15, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2900835/ | COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
7777 DRILLING CORPORATION, )
) No. 08-03-00099-CV
Appellant, )
) Appeal from the
v. )
)
County Court at Law
H. L. BROWN, JR., OIL
OPERATOR, )
)
of Midland County, Texas
Appellee. )
) (TC# 9019)
)
MEMORANDUM OPINION
Pending before the
Court is Appellant=s motion
to dismiss this appeal pursuant to Tex.R.App.P.
42.1(a)(1), which states:
(a) On Motion or By Agreement. The appellate court may dispose of an appeal
as follows:
(1) On Motion of Appellant. In accordance with a motion of appellant, the
court may dismiss the appeal or affirm the appealed judgment or order unless
disposition would prevent a party from seeking relief to which it would
otherwise be entitled.
Appellant has
complied with the requirements of Rule 42.1(a)(1). The Court has considered this cause on
Appellant=s motion
and concludes the motion should be granted and the appeal should be
dismissed. We therefore dismiss the
appeal.
May
1, 2003
DAVID WELLINGTON
CHEW, Justice
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ. | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2609691/ | 11 Wash. App. 873 (1974)
526 P.2d 904
ISADOR SCHREIBER, Appellant,
v.
CHARLES A. RIEMCKE et al., Respondents.
No. 902-3.
The Court of Appeals of Washington, Division Three.
September 24, 1974.
Velikanje, Moore, Countryman & Shore and Warren L. Dewar, Jr., for appellant.
Jon R. Harlan, Prosecuting Attorney, and Thomas M. Rasmussen, Deputy, for respondents.
McINTURFF, J.
Plaintiff appeals from the trial court's order granting defendants' motion for summary judgment and dismissal, and order denying plaintiff's motion for summary judgment. Plaintiff sought to have the court nullify *874 an increased valuation of his property, to recover real estate taxes paid under protest, and to enjoin any future increased assessment until completion of a systematic revaluation of other taxable real property in Yakima County.
Plaintiff is the owner of real property in Yakima County known as Wards Plaza Shopping Center, under lease to Montgomery Ward Corporation, with 21 1/2 years remaining on the 30-year lease. In April 1971, the appraised value of the property based on the 4-year systematic statutory revaluation was raised to $1,423,800 for the taxable year 1972. A hearing was held on plaintiff's appeal to the Yakima County Board of Equalization (hereafter referred to as the Equalization Board) on September 21, 1971, from which the Equalization Board entered an order reducing the appraised valuation to $780,000. Defendants assert by affidavit of the chief appraiser for the Yakima County assessor's office, Alton Olson, that they concurred in the reduced valuation only because they were led to believe by plaintiff's counsel that the increase in valuation under the law should properly be assessed to lessee Montgomery Ward Corporation, which defendants later determined to be error. Defendants did not appeal from the Equalization Board's order reducing the assessed valuation.
On January 1, 1972, approximately 3 1/2 months after the hearing before the Equalization Board, defendants reappraised plaintiff's property at $1,423,800 for the taxable year 1973. Plaintiff again appealed to the Equalization Board which reduced the assessed value to $1,114,800. Plaintiff appealed to Superior Court, where the court granted defendants' motion for summary judgment from which this appeal is taken.
[1] A preliminary question to be resolved is whether this case is properly before this court. The general rule is that when an adequate administrative remedy is provided, it must be exhausted before the courts may intervene. Wright v. Woodard, 83 Wash. 2d 378, 518 P.2d 718 (1974). This doctrine is particularly appropriate where the questions involve matters within the expertise of the agency, *875 e.g., Wright v. Woodard, supra (classification of property); Stimson Timber Co. v. Mason County, 112 Wash. 603, 192 P. 994 (1920) (overassessment of property). But where the questions raised are purely legal and beyond the authority and expertise of an administrative agency to resolve, and it appears that further administrative proceedings would be ineffective or useless, the court may relax its requirement of exhaustion of administrative remedies. Hillsborough v. Cromwell, 326 U.S. 620, 625, 90 L. Ed. 358, 66 S. Ct. 445 (1946); B. McAllister, Taxpayers' Remedies Washington Property Taxes, 13 Wash. L. Rev. 91, 128 (1938); accord, Louisville & Jefferson County Planning & Zoning Comm'n v. Stoker, 259 S.W.2d 443 (Ky. App. 1953); Levitt & Sons, Inc. v. Division Against Discrimination, 31 N.J. 514, 158 A.2d 177 (1960); Walker Bank & Trust Co. v. Taylor, 15 Utah 2d 234, 390 P.2d 592 (1964); see generally In re Buffelen Lumber & Mfg. Co., 32 Wash. 2d 205, 209, 201 P.2d 194 (1948). See discussion in 3 K. Davis, Administrative Law Treatise § 20.09 (1958).
The issues raised on this appeal question the constitutionality of the acts of the county assessor in reappraising property outside of the normal 4-year systematic cyclical program. As this issue could not be resolved by the Board of Tax Appeals, it would be useless to entertain further administrative proceedings. Hence, this case may properly be heard in the courts.
[2] The crux of this case is whether a county assessor may reappraise property outside of the normal 4-year systematic cyclical program for revaluation. Our answer is yes, provided, that there has been a bona fide mistake made in the prior revaluation, and that the resulting assessment is neither arbitrary, capricious, nor violative of the equal protection clauses of our federal and state constitutions, and the uniformity clause of our state constitution.
Initially, we must consider the following statutes. RCW 84.40.020 provides in pertinent part:
*876 All real property in this state subject to taxation shall be listed and assessed every year, ...
RCW 84.41.030 provides:
Each county assessor shall maintain an active and systematic program of revaluation on a continuous basis, and shall establish a revaluation schedule which will result in revaluation of all taxable real property within the county at least once each four years.
(Italics ours.)
The clear import of these statutes is to require the assessment of property at least every 4 years to insure uniformity in taxation. The broad purpose of general revaluation throughout the state is to establish "standards of fairness and uniformity." RCW 84.41.010.
The plaintiff argues that a revaluation by the assessor, "out of cycle," was precluded because of the defendants' failure to appeal to the tax commission the Equalization Board's determination of value in 1971. RCW 84.08.130. The merits of this issue can be resolved without determining whether the failure of the assessor to employ the appeal procedure permanently barred a subsequent revaluation within the cyclical period.
The plaintiff cites Dore v. Kinnear, 79 Wash. 2d 755, 489 P.2d 898 (1971), and Carkonen v. Williams, 76 Wash. 2d 617, 458 P.2d 280 (1969), for the contention that a departure from the 4-year revaluation schedule violates the equal protection clauses of our state and federal constitutions and the uniformity clause of our state constitution.
In Carkonen the court held the 4-year cyclical revaluation program within each county did not violate constitutional provisions relating to uniformity and equal protection. The court said at page 633:
[S]tate courts which have considered cyclical revaluation programs have generally found them to be compatible with constitutional equal protection and uniformity provisions, provided they be carried out systematically and without intentional discrimination.
Later, in Dore, the court, in attempting to meet the requirements *877 of RCW 84.41.030, held that the failure to revalue a substantially equal amount of taxable property each year of a 4-year cyclical revaluation program violated the uniformity requirement of article 7, section 1 (amendment 14) of the state constitution, and the equal protection requirements of the state and federal constitutions. The court stated:
Thus, where a cyclical program of revaluation is undertaken, a systematic and consistent program of revaluation must be maintained during each year of the cyclical period in a county. This would require that substantially an equal amount of taxable property in a county be revalued in each year of the cyclical program in order that all taxpayers receive the same treatment within the cyclical period to avoid derogation of the equal protection clauses of our federal and state constitutions and the uniformity of taxation clauses of our state constitution.
Dore v. Kinnear, supra at 763. However, Dore and Carkonen do not decide whether a reassessment can be made outside the cyclical program if a bona fide mistake has been made in a prior assessment. Uniformity is the keystone of taxation. The reappraisal in this case did not result in the kind of discriminatory taxation found in Dore; rather, it attempted to achieve the goal of uniformity being sought by the assessors in Carkonen.
[3] It could be contended that reappraisal to correct a mistake would be discriminatory because it would be outside the cyclical program. This contention is answered in the negative. In Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 352, 62 L. Ed. 1154, 38 S. Ct. 495 (1918), the United States Supreme Court stated:
The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, ... It is also clear that mere errors of judgment by officials will not support a claim of discrimination.
(Italics ours.)
Additional authority allowing the correction of mistakes *878 made in property valuations is found in Lewis v. Bishop, 19 Wash. 312, 319, 53 P. 165 (1898). The court, in construing the substantially similar predecessor to RCW 84.48.010 (First),[1] concluded that "[this] statute affords ample provision for the correction of any mistakes that may have occurred, and makes it possible that plaintiff's property shall be charged with its just burden of taxation."
We therefore hold that the defendants may reappraise property outside the 4-year systematic cyclical program if there has been a bona fide mistake made in the prior assessment. The assessment in 1972 is not retroactive to the prior year. See British Columbia Breweries (1918) Ltd. v. King County, 17 Wash. 2d 437, 135 P.2d 870 (1943).
[4] Plaintiff also contends that there was no reappraisal of the property in January 1972, upon which the assessor could adequately base his revaluation. We disagree. There is substantial evidence to the contrary. The findings of the Equalization Board, dated July 1971, state that the property was inspected by the appraiser. Charles Riemcke, Yakima County Assessor, further stated that the property was reappraised in January 1972. In the absence of evidence to the contrary, the presumption of the law is that government officials properly perform their duties in good faith. Rosso v. State Personnel Bd., 68 Wash. 2d 16, 411 P.2d 138 (1966).
Plaintiff finally argues there is no evidence that the Equalization Board's act of lowering the appraiser's revaluation in 1971 to $780,000 was based upon a consideration of the lessee's interest being assessed. We do not agree. The findings of the Equalization Board indicate that the "poor lease" was taken into consideration in arriving at this assessed valuation. The findings of the Equalization Board dated July 1971 state that the assessed valuation of *879 $1,423,800 was reduced to $780,000 "because of a poor lease something like 30 years at $1 a foot."
Since there was no determination by the trial court that the assessor had made a bona fide error in arriving at the assessed value of the property in 1971, and that the subsequent revaluation was neither arbitrary, capricious or intentionally discriminatory in nature, a material issue of fact remains unresolved. The granting of the motion for summary judgment was therefore improper.
The judgment of the trial court is reversed and the matter is remanded to the trial court for a hearing consistent with this opinion. Each party shall bear its own costs.
GREEN, C.J., and MUNSON, J., concur.
NOTES
[1] RCW 84.48.010 provides:
"First. [The Board of Equalization] shall raise the valuation of each tract or lot or item of real property which in their opinion is returned below its true and fair value to such price or sum as they believe to be the true and fair value thereof, after at least five days' notice shall have been given in writing to the owner or agent." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609695/ | 526 P.2d 930 (1974)
In the Matter of the ESTATE of Allison LaSARGE, Deceased.
Melvine KINCER, Appellant,
v.
Harold LaSARGE, Appellee.
No. 46917.
Supreme Court of Oklahoma.
September 10, 1974.
Charles R. Gray, W.N. Palmer, Pawhuska, for appellant.
Shoemake & Briggs, Pawhuska, for appellee.
*931 HODGES, Justice.
The question to be decided is whether or not the appellant is the legitimized daughter of Allison LaSarge, deceased. If she is, she is the sole heir, and inherits the whole of his estate. If she is not, the estate, goes to the brothers and sisters of decedent.
The appellant, Melvine Kincer (Melvine), was born on August 6, 1928, to Mary Stubbs in Kay County, Oklahoma.
She was given the name of Melvine LaSarge and carried that name, and no other, until she married Kincer.
After the birth of Melvine, a bastardy proceeding was begun in Kay County, Oklahoma, against Allison LaSarge (Allison) charging him with being her father and asking for her support. Allison plead guilty to the charge and on September 1, 1928, he was decreed to be the father of Melvine and was ordered to pay the mother $1,000.00 in payments of $25.00 a month.
Harold LaSarge made the payments on behalf of his brother, Allison, whom he supported for most of his life because of Allison's physical handicaps, and because Harold was on the Osage roll, but Allison had been born two years too late to qualify.
In 1932, the $1,000.00 had been paid, and the payments stopped. Then by request of Mary Stubbs, the mother, Allison took the child. Allison was then living in Tulsa with his brother, Harold, and Harold's wife Marie. Marie picked up the child and brought her to their home. Shortly thereafter, the family, (Harold, Marie, Allison and Melvine) moved to Pawhuska where they lived for approximately two years. Melvine was enrolled in the Pawhuska schools. Allison was dependent on Harold for support and Harold assumed the obligation of supporting Melvine until her mother reclaimed her.
Melvine was baptized in the Catholic Church in Pawhuska on December 21, 1935. Marie and Melvine testified that Allison was present. Marie testified Allison told the priest that he was Melvine's father, and that it it was necessary to have permission of one of the parents before the priest would baptize the child. The baptismal certificate was admitted into evidence. It designates Allison LaSarge and Mary Stubbs as the parents of Melvine Bernadette LaSarge.
Melvine's mother returned for her in 1936. Her mother had married, and she continued to live with her mother and step-father until her marriage to Kincer. Shortly after returning to her mother's home, the family moved from Kay County to New Mexico.
In 1940 or 1941, Melvine visited with her father for about two weeks in Fairfax, Oklahoma. At that time, he was living with Harold and Harold's second wife, Josephine. *932 He gave money to Josephine to buy clothes for her, and introduced her as his daughter to Josephine.
Many letters were written by the appellee, Harold LaSarge, to Melvine in his behalf, and in behalf of his brother, Allison. Allison could not write, and also suffered from a severe visual defect as the result of having had measles as a child. Some of those letters were written in 1963 and 1964. These were saved by Melvine and received in evidence. In these letters, Harold calls himself her uncle, and Allison her father, and expresses terms of endearment of her father and uncle toward Melvine and her family. He recounts many of her "Dads" activities, and says that he has instructions from her Dad to say hello, and to kiss her children for him. He also recounted her birth date as being August 6, 1928, and listed her pedigree at 1/2 Kaw, 1/8 Pottawatamie, and 3/32 Osage, with the rest French. In one of the letters, he promised to visit in March of 1964 in which he said that Melvine's children will "get to see their Grandpa and Uncle." This letter also included an X by "your Dad", the signature.
It is only after Allison's death that Harold denied Allison's paternity.
Allison died on July 1, 1966. Harold was appointed administrator of his estate, which consisted of a fractional Osage headright. He did not list Melvine as an heir. Melvine petitioned the court for determination of heirship and distribution of estate where she prayed to be adjudged the sole and only heir at law of Allison LaSarge.
Appellee urges and the court found that Allison did not publicly acknowledge Melvine as his daughter. We do not agree.
The policy of the law is to favor legitimation of children born out of wedlock. The severity with which the law formerly dealt with illegitimate children has been tempered both by statute and judicial construction. The effect of legitimating a child under 10 Ohio St. 1971 § 55 is to make such child legitimate from birth and to give the child the right of inheritance. In Re Chew's Estate, 200 Okl. 317, 193 P.2d 572, 574 (1948).
There are two ways that an illegitimate child may be legitimized. One is to acknowledge paternity in writing in accordance with 84 Ohio St. 1971 § 215. The other is to comply with the provisions of 10 Ohio St. 1971 § 55. In Re Estate of Marriott, 515 P.2d 571, 573 (Okl. 1973).
It is provided by 10 Ohio St. 1971 § 55 that:
"The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court. * * *"
There is no express definition in the statute of the phrase "public acknowledgment", but the phrase has been generally employed in the ordinary or commonly understood sense of disclosing facts of paternity without concealment to relatives, friends, acquaintances, and other third persons. It is generally held that the recognition need not be universal or so general and public as to to have been known by all. Trier v. Singmaster, 184 Iowa 307, 167 N.W. 538, 541 (1918).
We cited Jones v. Snyder, 121 Okl. 254, 249 P. 313 (1926) in In Re Estate of Marriott, 515 P.2d 571, 573 (Okl. 1973), for the holding that: if the father takes the child into his own home; cares and provides for the child; treats it as his own; and by his acts and conduct manifests acknowledgment that the child is his; such acts and conduct are sufficient compliance with the statute to legitimize the child, whether or not the father in so many words publicly proclaims the child as his.
In this case, the public record of the plea of guilty to the bastardy proceeding was introduced.
The clerk of the district court is required to keep an appearance docket, a *933 trial docket, a journal, a judgment docket, and an execution docket, by the terms of 12 Ohio St. 1971 § 22, and to enter all pleadings under 12 Ohio St. 1971 § 23. It is provided by 12 Ohio St. 1971 § 502 that the books and records required by law to be kept by the county clerk may be received in evidence in any court.
A record is a "public record" within the purview of the statute if it is a record which a public officer is required to keep and if it is filed in such a manner that it is subject to public inspection. See Douvas v. Newcomb, 267 P.2d 600 (Okl. 1954).
It would seem that the plea of guilty was sufficient to constitute public acknowledgment. It is a matter of public record regardless of the other actions of decedent.
However, it also appears from the record that Melvine Kincer nee LaSarge was legitimized by Allison's conduct both publicly and by his actions. Many witnesses testified to the father-daughter relationship which was purported to be common knowledge in the family, and in the community. Allison acknowledged paternity repeatedly to: Harold's wife, Marie, the priest who baptized Melvine, the court in bastardy proceedings, his half-sister Lois Revard, Mrs. Rogers, his neighbor, Josephine McClure, Harold's second wife, and to merchants in Pawhuska.
Appellee also asserts that Melvine was not legitimized, because Allison did not have a home to take her into, and that after he married (a very brief relationship) she was not taken into the home of his wife.
In the case of In Re Buffington's Estate, 169 Okl. 487, 38 P.2d 22 (1934) this court held that where the unmarried father made his home with his aunt, and there received and treated the child as his own, it was irrelevant that the father later married, and did not receive the child into the family with the consent of his wife. The court held that:
"The law does not provide any definite time that an illegitimate child must remain in the family of the father, in order to constitute an adoption under section 8057 C.O.S. 1921 (10 Ohio St. 1971 § 55). The adoption is complete when the father publicly acknowledges the child as his own, receives it as such into his family, and otherwise treats it as if it were a legitimate child. The subsequent marriage of the father to a woman other than the mother of the child does not annul an adoption once made under the law."
Therefore, receiving a child into his family implies that where there is an established home, an actual physical acceptance of the child into such place, even though such acceptance or receiving is only for a short duration is adequate.
Allison's actions were more than sufficient to meet the statutory requirements of adoption of illegitimate child by her father as set forth in 10 Ohio St. 1971 § 55. We find that Melvine Kincer, is the legitimized daughter of Allison LaSarge, and as such is the sole and only heir at law of Allison LaSarge.
The appellee has filed a cross-petition in error alleging that the trial court erred when it refused to strike the testimony of three out-of-state witnesses who were present and available, and offered for cross-examination at the time of the hearing, but refused to return to Oklahoma for additional proceedings. The trial court held that it was without authority to compel such witnesses to return and overruled the alternative motion that their testimony be stricken. We find that this was not error. It is provided by 12 Ohio St. 1971 § 390, that a witness shall not be obliged to attend for examination on a trial of a civil action except in the county of his residence, adjacent county, or where he may be when the subpoena is served upon him unless he is subpoenaed by any state department, board, commission, or legislative committee authorized by law to issue subpoenas.
*934 No authority is cited for the proposition that such testimony be stricken. Appellee was given the opportunity to examine the witnesses at the time of the hearing. The proposition is without merit.
Reversed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609701/ | 526 P.2d 1315 (1974)
The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Cornelius J. CRUZ, Defendant-Appellee.
No. 26524.
Supreme Court of Colorado, En Banc.
October 7, 1974.
*1316 Nolan L. Brown, Dist. Atty., Thomas G. Elliott, Deputy Dist. Atty., Golden, for plaintiff-appellant.
Thomas H. May, Denver, for defendant-appellee.
LEE, Justice.
This is an appeal from an interlocutory ruling which granted defendant-appellee's motion to suppress from evidence a Sears, Roebuck credit card. It was the alleged unauthorized use of this credit card by Cruz which resulted in the filing of a two-count information charging him with second-degree forgery and criminal attempt in violation of 1971 Perm.Supp., C.R.S. 1963, 40-5-103 and 40-2-101.
The basis for Cruz' motion to suppress was that his warrantless arrest was without probable cause and the seizure of the credit card incident to the arrest violated his constitutional rights under the Fourth Amendment. We disagree with the trial court's ruling and therefore reverse.
During the evening of January 14, 1974, a man and woman purchased a portable color television set at the Sears, Roebuck & Co. Westland store in Lakewood. They produced a credit card in the name of Raymond Duke. The purchase was held up by the credit department for the reason that the address given by the customers differed from Raymond Duke's address as shown by the credit department records. The purchasers were told to pick up the TV set the following morning.
The next day, Mrs. Raymond Duke reported to Sears the theft of her purse which contained Raymond Duke's Sears credit card. Later that morning, a man telephoned Sears concerning the TV set. He was advised he could pick it up and he stated he would come down and do so. The Lakewood police were then notified of the credit card theft and of the attempted purchase. Agents Muller and Janssen responded to the Sears store, where surveillance of its package pickup area was commenced.
After waiting for approximately forty-five minutes, during which only "one or two persons" came into that department, at about 11:30 a. m., Cruz appeared at the pickup area where he talked with a clerk. Agent Muller observed a Sears credit card in Cruz' hand, which he held below the edge of the service counter and at which he glanced during his conversation with the clerk. Cruz inquired concerning the location of a pay telephone. He left the store, followed by Agent Janssen. After looking up and down the street, Cruz reentered the store. Agent Janssen then identified himself as a police officer and asked Cruz for his identification. Janssen then asked Cruz to return to the pickup area. Upon returning there, Cruz was observed attempting to push something under the counter with his right foot. Agent Janssen then discovered the Duke credit card on the floor underneath the counter. He retrieved the credit card and turned it over to Agent Muller.
*1317 Previously, while Cruz was temporarily out of the store, Agent Muller had inquired of the clerk concerning her conversation with Cruz. Muller was informed that Cruz had told the clerk he was there to pick up the package for Duke.
After examining the credit card, Agent Muller than announced to Cruz that he was under arrest and advised him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
The trial court, in our view, misconceived the legal effect of the foregoing undisputed facts and mistakenly concluded that Cruz had been arrested at the time he re-entered the store and was confronted by Agent Janssen. We agree that at that point in time Janssen did not have probable cause to make an arrest.
In our opinion, the initial confrontation between Janssen and Cruz was no more than a temporary detention in the nature of a field investigation, as is sanctioned by the following decisions: Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; People v. Stevens, Colo., 517 P.2d 1336; People v. Marquez, Colo., 516 P.2d 1134; Stone v. People, 174 Colo. 504, 485 P.2d 495. In Stone, supra, standards were delineated which would justify a temporary detention for field investigation, as follows:
"* * * In order lawfully to detain an individual for questioning, (1) the officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose."
Applying the tests to this case, we find Agent Janssen was aware of the following circumstances which in our view would raise a reasonable suspicion that Cruz committed or was about to commit a crime: a credit card had been stolen; an attempt had been made the night before to purchase a TV set by use of the stolen credit card; a man had called Sears earlier that morning concerning picking up the merchandise and, after being advised he could do so, announced that he would come down and pick up the TV; only one or two other persons had appeared at the pickup area prior to Cruz' coming in; he appeared with a credit card in his hand and had a discussion with the store clerk; Cruz then temporarily departed from the store, looking up and down the street; and he thereafter voluntarily re-entered the store.
In view of the foregoing, it cannot be said that the purpose of the temporary detention was unreasonablethat of determining whether Cruz was one of the parties to the theft of the credit card and the attempted fraudulent purchase of the TV set. The officers' duty in these circumstances demanded this field investigation.
Thirdly, the character of the detention was reasonable when considered in light of the purpose. No factor has been called to our attention which might lead to an opposite conclusion. We note that Cruz was not prevented from leaving the store. He voluntarily re-entered and without hesitance complied with the officer's request.
As noted above, the facts and circumstances at this point in the sequence of events were insufficient to justify a finding of probable cause. The missing ingredient, however, was supplied when Cruz attempted to conceal the stolen credit card on the floor underneath the pickup area counter.
We hold that the warrantless arrest by Agent Muller was supported by probable cause. The motion to suppress should have been denied.
The ruling is reversed.
ERICKSON, J., dissents.
*1318 ERICKSON, Justice (dissenting):
I respectfully dissent.
The majority errs in concluding that the facts of this case bring it within the "Stone area." Therefore, the trial court's disposition of the defendant's motion to suppress the credit card was proper.
In Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), this court set forth three requirements which must be satisfied before temporary detention for purpose of questioning and identification can be deemed to be constitutionally permissible. Only the first test raises an issue on the facts of this case. To detain a person without probable cause, "the officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime."
Agent Janssen had no knowledge of any facts which would create a suspicion that Cruz had committed, or was about to commit, a crime. The elements listed by the majority do not create suspicion and are consistent with innocence. The officers knew only that a credit card had been stolen and that someone would appear to pick up the television set. The officer saw that Cruz had a credit card in his hand, a fact which is perfectly normal, considering that he was in the Sears store ostensibly to transact business. He also knew that Cruz had related to the clerk that he was there to obtain the television set for Duke. Agent Janssen did not know whether Duke had ordered the set.
The action taken by the police does not fall within the exception enunciated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), because nothing in the record would indicate that the stop was necessary to protect the officer, or to suggest even an inference that the defendant was armed and dangerous. People v. Montoya, Colo., 524 P.2d 76 (1974) (dissenting opinion); People v. Stevens, Colo., 517 P.2d 1336 (1973) (dissenting opinion); People v. Gurule, 175 Colo. 512, 488 P.2d 889 (1971) (dissenting opinion).
Accordingly, the motion to suppress was properly sustained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609714/ | 84 Wash. 2d 426 (1974)
526 P.2d 1217
JAMES BARTLETT, Respondent,
v.
BRUCE HANTOVER et al., Petitioners.
No. 43031.
The Supreme Court of Washington, En Banc.
October 3, 1974.
UTTER, J.
The Court of Appeals, Division One, affirmed a jury award against a defendant motel owner in favor of his plaintiff employee for gunshot wounds inflicted by a third person upon the plaintiff while he was at work.
There are three issues raised on appeal to this court. The first is whether the trial court erred in permitting evidence of subsequent installation of bulletproof glass in the manager's desk area when there was no issue of fact as to either dominion, control or feasibility of the alterations. The second is the propriety of the instruction on the subject of lost earnings and lost earning capacity. The last is *428 the defendant employer's liability for injuries to his employee caused by the intentional criminal acts of a third person. The case is remanded for new trial inasmuch as the trial court erred in its ruling on the first issue. The instruction on damages should be modified on retrial. We find no error in the ruling on the defendant's liability.[1]
[**]On June 22, 1969, at about 10:30 p.m., the plaintiff, who worked as manager of the motel, was in the living quarters behind the office. When he heard the outside door open, he went into the office and stood behind the counter. Two men had entered and one was standing on the left and one to the right of the plaintiff approximately 6 feet away. The plaintiff asked each man separately if he could help him. One responded by saying they would like a room but immediately thereafter, the plaintiff was knocked to the floor by a bullet in the head. He was shot again in the left shoulder as he tried to get up. There was never any mention of holdup or robbery, nor any demand for money; the plaintiff was "just point blank shot without asking, ..."
Previously on March 19, 1969, the plaintiff had been the victim of an armed robbery in the same office. At that time he offered no resistance, no shots were fired and no one was injured. Between the two occurrences, the plaintiff suggested to the owners that they join an intermittent patrol system and also suggested the placing of a sign in the office to the effect that there was 24-hour surveillance. The owner replied by stating that in neither case would such precautions do any good. A few weeks after the shooting, the owners purchased and installed bulletproof glass and metal plating which made the portion of the motel office behind the counter bulletproof.
The trial court admitted testimony concerning the installation of boiler plate and bulletproof glass to protect the office area behind the counter.[**]
[1, 2] We have heretofore allowed evidence of safety *429 measures after an accident as admissible when the issue of practicability or feasibility is made an issue by either the plaintiff or defendant. Brown v. Quick Mix Co., 75 Wash. 2d 833, 454 P.2d 205 (1969). In Brown, one defendant admitted that installation of a guard on an auger (which was done after the accident), was feasible before the injury occurred. His codefendant vigorously contended that the guard was not practical. We stressed that if the issue of feasibility is in the case, it is relevant regardless of whether the issue is part of the plaintiff's case and his burden of proof, or injected by the defendant as a defense.
The facts of this case, however, fail to bring it within the exception we noted in Brown. The defendant stipulated at a pretrial conference his dominion and control over the motel and the feasibility of better protecting his employee from a third party's crime by installation of bulletproof glass. The evidence was, therefore, not relevant to matters before the jury for consideration. Relevancy "means the logical relation between proposed evidence and the fact to be established." Keisel v. Bredick, 192 Wash. 665, 669, 74 P.2d 473 (1937). All facts are admissible in evidence which afford reasonable inferences or throw any light upon the contested matter.
In this case the evidence of subsequent alterations was not admitted to throw any light upon the contested matter inasmuch as at the pretrial conference the defendant motel owner stipulated that he would admit, in testimony upon direct examination, dominion and control over the motel facility and feasibility of better protecting the injured plaintiff from intentional criminal acts of a third person by use of a bulletproof cage in the manager's office. If either of these two questions had been an issue in the case, or a "contested matter" as stated in Keisel, then evidence of the defendant's subsequent alterations offered to prove them would have been admissible under our rationale in Brown. It takes, however, two parties to make a factual allegation a contested matter in a case. An admission by both sides of what is sought to be established removes it as an issue in *430 the case and it is not a contested matter. The evidence, which either directly or by inference tends to prove what the other party admitted, is not relevant and should be excluded. This is recognized in C. McCormick, Evidence § 275 (2d ed. E. Cleary 1972). There the author recognizes that the general rule is to exclude evidence of remedial safety measures such as repairs, changes and construction, or installation of new safety devices when offered as admissions of negligence or fault. He observes, however, at page 667-68, that
The ingenuity of counsel in suggesting other purposes has made substantial inroads upon the general rule of exclusion. Thus evidence of subsequent repairs or changes has been admitted as evidence of ... the possibility or feasibility of preventive measures, when properly in issue; ...
The author cautions that
before admitting the evidence for any of these other purposes, the court should be satisfied that the issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the fact to be inferred conveniently by other proof, and consequently that the need for the evidence outweighs the danger of its misuse.
(Footnotes omitted.)
[3] The evidence of actual subsequent alterations which the trial court admitted into evidence had the prejudicial effect of showing by inference that the defendant himself must have believed his prior inaction was negligent because he subsequently altered the premises. The subjective belief of a defendant in a negligence action is not relevant to the issue of his negligence; it is the objective test which determines whether one has breached his duty of due care to another, and we have long so held. Peterson v. Betts, 24 Wash. 2d 376, 165 P.2d 95 (1946).
The issue framed by this case and the issue which this court must decide is:
Given that the defendant admits dominion and control *431 over the premises and admits the feasibility of better protecting the plaintiff through the use of a bulletproof cage in the manager's office, are such subsequent alterations admissible to prove negligence as an implied acknowledgment by conduct that due care required that these measures should have been taken before the injury?
This is a question which focuses on the defendant's subjective belief and not on an objective test. It also addresses the argument refuted in Hart v. Lancashire & Yorkshire Ry., 21 L.T.R. (n.s.) 261, 263 (1869), that "because the world gets wiser as it gets older, therefore it was foolish before."
The only thing which the introduction of evidence of subsequent alteration added to the plaintiff's case beyond what the defendant stipulated to in pretrial conference was an inference of implied acknowledgment by conduct that the defendant subjectively believed that he had breached his duty of due care by not having made the alterations before the injury. This added inference is not an element in the proof of negligence, and in the circumstances of this case where the properly contested matters of feasibility, dominion and control were admitted by the opposing party, the "proof" was prejudicial.
5 R. Meisenholder, Wash. Prac. § 10 at 45, regarding admission of evidence of subsequent repairs, notes:
Such evidence is not relevant upon an alleged issue if the alleged issue is not in the case upon the pleadings or evidence. Likewise it obviously must be relevant as proof upon the actual issues in the case to which it purportedly relates.
(Footnote omitted.)
[4] The instruction on damages told the jury they could consider as an element of damages "the reasonable value of earnings and earning capacity lost together with the present cash value of the earning capacity reasonably certain to be lost in the future." The defendant objected to that portion of the damage instruction on the grounds that there was no evidence in the case to support it. An examination *432 of the record reveals there was no testimony regarding the amount of either earnings lost from the time of the accident or a formula for reducing lost earning capacity to present cash value. This was erroneous and on retrial should not be repeated. We have stressed that instructions should not be given on issues which are not supported by evidence and that this rule applies to the elements for which damages are to be allowed. Vangemert v. McCalmon, 68 Wash. 2d 618, 622, 414 P.2d 617 (1966); O'Donoghue v. Riggs, 73 Wash. 2d 814, 818, 440 P.2d 823 (1968).
[5] In Hinzman v. Palmanteer, 81 Wash. 2d 327, 336, 501 P.2d 1228 (1972), we indicated it was error for the trial court to give a portion of WPI 34.02, 6 Wash. Prac. 182 (1967)[2] without giving the entire instruction, which would have given the jury a basis upon which to determine the present cash value. We there stated "[t]he omission of this paragraph from the instruction, and the absence of any evidence providing a guide for the jury, left the jurors with no evidence or guide from which to determine the appropriate rate of interest to apply. This was a fatal omission ..." To instruct the jury to reduce an award to present cash value without further defining what that term is and how it should be applied, is error.
[6, 7] We do agree with that portion of the Court of *433 Appeals opinion which indicates certainty is not required in the area of proof of lost earning capacity and that portion holding that an employer can be liable to his employee for injuries caused by the intentional criminal acts of a third person.
The judgment is reversed and the case remanded for new trial.
HALE, C.J., and FINLEY, ROSELLINI, HUNTER, HAMILTON, STAFFORD, WRIGHT, and BRACHTENBACH, JJ., concur.
NOTES
[1] A portion of the Court of Appeals opinion (Bartlett v. Hantover 9 Wash. App. 614, 513 P.2d 844 (1973)) is adopted in full by the court. This portion is set off by asterisks at the beginning and end of the section.
[2] WPI 34.02, 6 Wash. Prac. 182 (1967):
"DAMAGES ARISING IN THE FUTURE DISCOUNT TO PRESENT CASH VALUE
"`Present cash value' as used in these instructions means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the loss at the time in the future when [the expenses must be paid] [or] [the earnings would have been received] [or] [the benefits would have been received.]
"The rate of interest to be applied by you in making this determination should be that rate which in your judgment is reasonable under all the circumstances taking into consideration the prevailing rates of interest in the area which can reasonably be expected from safe investments which a person of ordinary prudence, but without particular financial experience or skill, can make in this locality.
"[Damages for [pain and suffering] [disability] [and] [disfigurement] are not reduced to present cash value.]" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609722/ | 111 Ariz. 222 (1974)
526 P.2d 1244
The STATE of Arizona, Appellee,
v.
Vernon Jodie WILLIAMS, Appellant.
No. 2848.
Supreme Court of Arizona, In Division.
October 3, 1974.
Gary K. Nelson, former Atty. Gen., N. Warner Lee, Atty. Gen., by Stanley L. Patchell and Michael C. Anderson, Asst. Attys. Gen., Phoenix, for appellee.
John M. Neis, Pima County Public Defender, by Charles J. Babbitt and Lindsay *223 Brew, Asst. Public Defenders, Tucson, for appellant.
CAMERON, Vice Chief Justice.
This is an appeal from a jury verdict and judgment of guilt to the crime of kidnap for rape. § 13-492(A) A.R.S. of 1956. The appellant-prisoner was given 20 years of probation with the condition that he serve 6 months in jail.
The issues presented in this case are as follows:
1. Does § 13-492(A) A.R.S. include the crime of kidnap for rape?
2. Does the 1973 version of § 13-492(A) A.R.S. operate retroactively to a case on appeal?
3. Under the facts of the instant case, did the crime of kidnap for rape merge with the crime of armed rape?
The facts necessary for a determination of this case are as follows. The rape victim came alone to Mr. Williams' home to solicit a subscription to Watchtowers, a religious periodical. Once she was inside the house, Williams forced her at gunpoint into the adjoining bedroom whereupon he proceeded to have forcible sexual intercourse with her. He then threatened her with blackmail if she revealed what had occurred. However, after release from captivity she went to the home of her in-laws and told them of her experience, and then summoned the police.
Defendant was indicted for Count I, kidnap for rape, § 13-492(A) A.R.S.; Count II, rape while armed, §§ 13-611 and 13-614 A.R.S.; and Count III, lewd and lascivious acts, § 13-652 A.R.S.
* * * He was tried and convicted on all three counts. Imposition of sentence was suspended for twenty years for the kidnap for rape conviction with the condition that he serve six months in the Pima County Jail; imposition of sentence was also suspended for five years for armed rape and five years for lewd and lascivious acts.
Defendant filed a notice of appeal from the judgment without specifying which of the three convictions from which he was appealing. The brief of the defendant, however, indicates that he questions only the conviction of guilt for kidnap for rape. We have, nevertheless, reviewed the record relative to all three counts for fundamental error as required by § 13-1715 A.R.S. and find none. We consider in this opinion only those items raised by defendant in his brief concerning the kidnap for rape conviction.
KIDNAP FOR RAPE
The defendant while admitting prior Arizona cases appear to the contrary contends that § 13-492(A) A.R.S. does not apply to the facts in this case. At the time of the act § 13-492 A.R.S. was the general rape statute. Titled "Kidnaping for extortion, robbery, ransom, rape, sodomy, lewd or lascivious acts; punishment" § 13-492 A.R.S. reads as follows:
"A. A person, except in the case of a minor by the parent, who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains such individual for ransom, reward or otherwise, or to commit extortion or robbery, or to exact from relatives of such person or from any other person any money or valuable thing, or a person who aids or abets any such conduct, is guilty of a felony." (Emphasis added)
Paragraph B of § 13-492 A.R.S. covers kidnapping of a minor under 14 for the purposes of rape, sodomy or lewd or lascivious acts.
Defendant contends that the words "or otherwise" are not specific enough to cover a kidnapping for rape as opposed to kidnapping for ransom or reward. It is Williams' argument that "or otherwise" should be read as ejusdem generis and interpreted to mean some form of reward or pecuniary gain. Defendant also contends *224 that the presence of Paragraph B in § 13-492 A.R.S. relating to kidnapping of a person under the age of 14 strengthens his argument that Paragraph A is limited to kidnapping for ransom, reward or some other form of pecuniary gain. While we admit the argument has merit, we disagree. We have held in previous cases, as defendant candidly admits, that Paragraph A of § 13-492 A.R.S. is broad enough to cover kidnapping for rape. State v. Taylor, 82 Ariz. 289, 312 P.2d 162 (1957); State v. Jacobs, 93 Ariz. 336, 380 P.2d 998 (1963).
Defendant further contends, however, that the statute as written and interpreted by this court is "a statute which forbids * * * an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application." Citing Connally v. General Const. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1925). We disagree. We believe that the statute is clear enough to put the defendant on notice that kidnapping for rape is a crime in addition to the general kidnapping statute.
RETROACTIVITY
The defendant committed the crimes in December of 1972. In 1973, however, §§ 13-491 and 13-492 A.R.S. were amended. The state legislature in 1973 altered the phrase "* * * detains such individual for ransom, reward or otherwise, * * *" to read "* * * detains any individual for ransom, reward or other pecuniary benefit, * * *." Defendant contends that he should have the benefit of the new statutory language. We disagree.
Section 1-244 A.R.S. states that "no statute is retroactive unless expressly declared therein." We have stated that retrospective laws are not favored, State v. Martin, 59 Ariz. 438, 130 P.2d 48 (1942), and our Court of Appeals has stated:
"The dividing line between regarding receiving stolen property as a misdemeanor or as a felony was changed from $50 or more to $100 or more in 1969. See A.R.S. § 13-621. The sale of hubcaps to appellant occurred in 1967, but appellant contends that the new limit should apply to him. A.R.S. § 1-244 provides `No statute is retroactive unless expressly declared therein.' There was testimony that appellant paid $50 and $88 for stolen hubcaps. The trial court correctly instructed the jury that they were to determine whether the crime, if committed, was a felony or misdemeanor using the $50 limit. * * *" State v. Hall, 18 Ariz. App. 593, 595, 504 P.2d 534, 536 (1973). See also, Merchants Despatch Trans. Corp. v. Arizona State Tax Commission, 20 Ariz. App. 276, 512 P.2d 39 (1973).
MERGER
Defendant argues that the crime of kidnap merges into rape. We disagree. Arizona's "double punishment" statute reads as follows:
"An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other." § 13-1641 A.R.S.
We have stated that in order to determine whether or not there was merger one must remove the elements of one charge and see if there were sufficient facts left to support the other charge. State v. Mitchell, 106 Ariz, 492, 478 P.2d 517 (1970).
In the situation at hand the kidnap preceded the rape and was complete before the rape. That the victim was forced to move from one room to another in defendant's house, a small distance of asportation as opposed to being forced to move miles away, is not a dispositive fact. The essence of kidnap is not the distance the victim is transported but the unlawful compulsion against the will to go somewhere. State v. Burchett, 107 Ariz. 185, 484 P.2d 181 (1971); State v. Padilla, 106 Ariz. 230, *225 474 P.2d 821 (1970); State v. Jacobs, supra.
Likewise, the essence of kidnap for rape under the statute in effect at the time is the asportation with intent to rape or holding with the intent to rape, and while the fact of the rape is itself good evidence of the defendant's intentions, the actual rape in itself is not a necessary element of the crime of kidnap for rape. It is the intention that is controlling. We hold, therefore, that a person may be guilty of both kidnap for rape and rape or, as here, armed rape.
Williams argues that many violent crimes, of necessity, involve a technical kidnap which was never thought of by the criminal. That defendants are often not charged does not make the statute less applicable under proper circumstances. It is entirely possible to commit a crime of violence without adding kidnap to it. As we observed in State v. Soders, 106 Ariz. 79, 471 P.2d 275 (1970), it is conceivable to rob a person where he stands rather than first asporting him and then robbing him.
Judgments affirmed.
HAYS, C.J., and HOLOHAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609723/ | 111 Ariz. 178 (1974)
526 P.2d 717
Virgil David BURNS, Appellant,
v.
Beverly J. BURNS, Appellee.
No. 11549-PR.
Supreme Court of Arizona, In Banc.
September 20, 1974.
*179 Miller, Pitt & Feldman, P.C., by Barry N. Akin, Tucson, for appellant.
Lesher & Scruggs, P.C., by Robert O. Lesher, Tucson, for appellee.
CAMERON, Vice Chief Justice.
This is a petition for review of an opinion and decision of the Court of Appeals, Division Two, 21 Ariz. App. 337, 519 P.2d 190 (1974), which reversed an order of the Superior Court of Pima County granting summary judgment in favor of the defendant-appellee Beverly J. Burns on the ground that the suit against her was barred by the doctrine of interspousal tort immunity.
We consider only one question on review, and that is whether a divorced spouse may, after a divorce, sue his former spouse for a negligent tort committed during the marriage.
The facts necessary for a determination of the question before us are quoted in part from the opinion of the Court of Appeals as follows. "On May 27, 1972, appellant, while a passenger in an automobile driven by appellee, was seriously injured in an automobile accident caused by appellee's negligence. Although married at the time of the accident, apparently they were not happy as they had separated one month before and appellee had consulted an attorney about a divorce. The accident did not restore connubial bliss and on September 1, 1972, they were divorced. Appellee remarried three weeks after the divorce. Appellant filed suit against appellee on October 17, 1972, to recover damages for his injuries sustained prior to divorce." 21 Ariz. App. at 338, 519 P.2d at 191. The trial court granted summary judgment in favor of defendant, and plaintiff appealed, urging that the doctrine of interspousal tort immunity should not apply after the parties are divorced. After an exhaustive analysis of the history and theory of the doctrine of interspousal tort immunity the Court of Appeals held that after a divorce a spouse may maintain an action against his former spouse for a negligent tort and that such cause of action arises upon the divorce. Appellee timely petitioned this court for review, and we granted the petition.
In Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968) this court re-affirmed that Arizona followed the doctrine of interspousal tort immunity. Later, in Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971), we partially abrogated the doctrine and held that a divorced spouse could sue her former spouse for an intentional tort committed during the marriage. In so holding we wrote:
"* * * As recently as 1968 the Arizona Supreme Court observed in Schwartz v. Schwartz, 103 Ariz. 562, 447 P.2d 254 (1968), `Arizona has adhered to the common law position that interspousal tort suits are not permitted.' 103 Ariz. p. 563, 447 P.2d p. 255. However, an intentional tort inflicted by one spouse on another so clearly destroys the concept of unity that the basis for the doctrine is lost.
* * * * * *
"We pause briefly to point out the fact that in a community property state such as ours a complete abrogation of interspousal tort immunity is fraught with many problems. One which comes to mind immediately is our Arizona Rule that damage for personal injuries to a spouse are community property. Fox Tucson Theatres Corporation v. Lindsay, 47 Ariz. 388, 56 P.2d 183 (1936). Our sister state of California abrogated the interspousal tort immunity rule only after the legislature had made damages for personal injuries the separate property of the injured person. Self v. Self, 58 Cal. 2d 683, 26 Cal. Rptr. 97, 376 P.2d 65 (1962); Klein v. Klein, 58 Cal. 2d 692, 26 Cal. Rptr. 102, 376 P.2d 70 (1962). The dissent in Klein, supra, makes sense with his argument that this is a matter much better handled by legislative action on a broad front covering all affected areas *180 of substantive law." 107 Ariz. at 267-268, 485 P.2d at 1157-1158.
Our holding in Windauer, supra, however, was carefully limited to the facts of that case, a case of an intentional as opposed to a negligent tort.
More recently, in Huebner v. Deuchle, 109 Ariz. 549, 514 P.2d 470 (1973) we held that since the doctrine of interspousal tort immunity would not have permitted an action by a wife against her husband for her injuries sustained during the marriage, the wife's estate could not maintain an action against the husband under our wrongful death statute, § 12-611 A.R.S. In again declining to abrogate interspousal tort immunity we wrote:
"At the common law there could be no such thing as a tort obligation between husband and wife, and in no event could there be a suit by the one against the other to enforce it. 1 Harper and James, Law of Torts, § 8.10. The common law, so far as it is not repugnant to the Constitution of the United States, the constitution or laws of this state, or established customs of the people of this state, was adopted by the Legislature and is `the rule of decision in all courts of this state.' A.R.S. § 1-201. While we recognize that there are courts which have enlarged their wrongful death acts by judicial decision to include interspousal suits, we think that the abolishment of immunity from suit should be predicated only upon clear and unequivocal legislative language. Cf. Saunders v. Hill [Del.] 202 A.2d 807 (1964)." 109 Ariz. at 550, 514 P.2d at 471.
The Court of Appeals, in holding as it did, reasoned that "the facts of the [instant] case sub judice, are more akin to Windauer v. O'Connor, supra, and can be decided without violence to Schwartz." 21 Ariz. App. at 337, 519 P.2d at 194. The court wrote:
"* * * Appellee claims that Windauer is distinguishable because the tort was intentional. We do not believe any distinction can be made between an intentional or negligent tort. The fact that the tort was intentional in Windauer was a make-weight but was not the touchstone of the decision. The real key to Windauer is that when the reasons for the disability to sue fail the tort becomes actionable." 21 Ariz. App. at 341, 519 P.2d at 194.
We are constrained to disagree with the appellate court's conclusion that there is no distinction between an intentional and a negligent tort. We further disagree with the inference of the Court of Appeals that the reasons for interspousal tort immunity exist only when there is a marital status to protect.
Although there are good and for some courts persuasive reasons why the doctrine of interspousal tort immunity should be abolished by court action, there are also good and for this court at least, persuasive reasons why the doctrine should be retained. Among those are: (1) that tort suits between spouses would disrupt marital harmony; (2) that there would be a danger of fraud or collusion where the tort is covered by insurance; and (3) that the tortfeasor would share in the proceeds of a judgment, and thus benefit from his wrong. Windauer v. O'Connor, supra. See generally, Prosser, Torts (4th ed.), Ch. 23.
An intentional tort committed by a spouse upon the person of the other is in itself some evidence of an unharmonious marital relation, and obviously, once the parties are divorced, there is no longer a marital relationship to protect and preserve. A negligent tort, on the other hand, is no such evidence of disharmony between the spouses. While, in the instant case, there was no longer a marital relationship to preserve at the time suit was brought, appellee makes a persuasive argument that were divorce to be a prerequisite to maintaining an action for negligence, parties *181 might well be encouraged to obtain fraudulent divorces under our new no-fault divorce laws.
Also, intentional torts are not generally, if ever, covered by insurance, so the second argument in favor of the immunity was inapplicable to the situation in Windauer, supra. On the other hand, very many negligent torts are covered by insurance, and so the danger of fraud and collusion would still exist were we to extend the holding of Windauer to include actions for negligent torts.
Finally, since we held in Windauer that the cause of action for the intentional tort did not arise until the divorce, the proceeds of any judgment would be the separate property of the injured party. (But see Kenyon v. Kenyon, 5 Ariz. App. 267, 425 P.2d 578 [1967]) The same would be true were we to hold that a divorced spouse could sue his former spouse for a negligent tort. We are not persuaded that the mere absence of the marital status, which would make the judgment separate property, should remove the disability to sue.
We are of the opinion that any further erosion of the doctrine of interspousal tort immunity, short of complete abrogation, would create more problems that it would solve. Although we are not unaware of the many countervailing arguments in favor of complete abrogation, we still feel that such a measure should be accomplished by legislative action rather than through judicial fiat. See also Huebner v. Deuchle, supra.
Decision of the Court of Appeals is vacated; judgment of the Superior Court is affirmed.
HAYS, C.J., and STRUCKMEYER, LOCKWOOD and HOLOHAN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600305/ | 170 P.3d 691 (2007)
Brystal McCLOUD, an individual, Plaintiff/Appellant,
v.
STATE of Arizona, ARIZONA DEPARTMENT OF PUBLIC SAFETY, a political subdivision of the State of Arizona; and Thomas Max Kimbro, an individual, Defendants/Appellees.
No. 2 CA-CV 2007-0006.
Court of Appeals of Arizona, Division 2, Department A.
November 9, 2007.
*693 Stephen Gorey, Tucson, Attorney for Plaintiff/Appellant.
Terry Goddard, Arizona Attorney General By Bruce L. Skolnik, Tucson, Attorneys for Defendants/Appellees.
OPINION
BRAMMER, Judge.
¶ 1 Appellant Brystal McCloud appeals from the trial court's dismissal of her personal injury complaint against appellees Thomas Kimbro and the State of Arizona. She contends the trial court erred "in failing to equitably toll the one year statute of limitations governing claims against governmental bodies." Alternatively, she asserts that a question of fact existed as to whether Kimbro was acting within the course and scope of his employment when the vehicle he was driving struck her car, and, if he was not, her negligence claim was governed by a two-year statute of limitations. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings.
Factual and Procedural Background
¶ 2 The facts are essentially undisputed. Thomas Kimbro, a Department of Public Safety (DPS) officer, was searching for a restaurant on April 1, 2005, when his state-owned vehicle collided with the back of McCloud's vehicle. McCloud suffered injuries, incurred medical expenses, and lost earnings. Four days later, McCloud filed an administrative claim pursuant to A.R.S. § 12-821.01 against the State of Arizona, the Department of Public Safety, and Kimbro, but did not file the lawsuit against them until June 27, 2006.
¶ 3 Kimbro and the state moved to dismiss the complaint pursuant to Rule 12(b)(6), Ariz. R. Civ P., asserting McCloud's claim was barred because she had filed her complaint more than one year after the accident had occurred, the limitations period applicable to claims against a public entity or employee. See A.R.S. § 12-821. In response, McCloud argued the late filing of the complaint had been the result of "excusable neglect" and therefore the "statute of limitations should be equitably tolled."
*694 ¶ 4 McCloud stated in her response that "a truly bizarre and unusual set of circumstances [had] converged to prevent plaintiff's counsel from being able to concentrate on his work and resulted in the untimely filing." McCloud's counsel filed an affidavit stating that his sister, who had cared for their mother and brother, both of whom were disabled, had died in November 2005. Consequently, counsel had to make arrangements for his mother and brother to live at a facility. Counsel's wife, who was his secretary before she became disabled due to a heart condition, underwent open heart surgery. In February and March 2006, counsel underwent separate surgical procedures on both of his knees and subsequently was placed on pain medication and sleeping pills. Counsel's mother died unexpectedly in March, and counsel underwent gall bladder surgery later that month, which, according to counsel, was one day before the one-year limitations period applicable to McCloud's claim was to expire. Counsel was in bed on pain medication the day the limitations period expired. Counsel attached to his affidavit, which was filed with his response to the motion to dismiss, death certificates for his mother and sister, as well as doctors' and pharmacies' reports.
¶ 5 During this series of family health issues, in November 2005 counsel found a second attorney "to assist [him] by handling some of the day to day requirements of most of [his] files." This lawyer "was not a personal injury attorney" and counsel stated he "would guide him through the process," not expecting him "to learn the various statute of limitation requirements on his own." This backup attorney and his family were diagnosed with tuberculosis in November 2005, and he took an "extended leave of absence from [his] law practice beginning in February 2006." Although the backup attorney was judicially excused from meeting time requirements in his own cases, he did not inform counsel of this fact, nor did he do anything to seek relief from the court in McCloud's case. McCloud's counsel "did not ask [the backup attorney] to file the complaint" before the one-year limitations period expired "[d]ue to [counsel's] inability to concentrate on [his] work during this time."
¶ 6 In reply to McCloud's response to the motion to dismiss, the state argued that these circumstances did not constitute excusable neglect, asserting instead that these facts amounted to "attorney malpractice," and that attorney illness is "a garden variety claim of excusable neglect" that fails as a matter of law. After a hearing, the trial court concluded "as a matter of law under the unusual facts and circumstances of this case, there is no excusable neglect," granting the state's motion to dismiss. This appeal followed.
Discussion
Equitable Tolling
¶ 7 McCloud contends the trial court erred in failing to equitably toll the limitations period because she was diligent in pursuing her remedies, the delay in no way caused the state prejudice, and the "concurrent illnesses of plaintiff's attorney and [the] backup attorney . . . remove the case from the category of `garden variety excusable neglect.'" Section 12-821 states: "All actions against any public entity or public employee shall be brought within one year after the cause of action accrues and not afterward." Although McCloud timely filed her notice of claim pursuant to § 12-821.01 four days after the accident, and nearly six months before it was due, her complaint was not filed until nearly three months after it was due.
¶ 8 "The affirmative defense of statute of limitations is properly raised in a motion to dismiss where it appears from the face of the complaint that the claim is barred." Anson v. Am. Motors Corp., 155 Ariz. 420, 421, 747 P.2d 581, 582 (App.1987). The party opposing a motion to dismiss based on a statute of limitations defense "bears the burden of proving the statute has been tolled." Id.; see also Baden-Winterwood v. Life Time Fitness, 484 F.Supp.2d 822, 826 (S.D.Ohio 2007) ("It is the plaintiff's burden to demonstrate why he or she is entitled to equitable tolling of the statute of limitations.").
¶ 9 Although the state moved to dismiss pursuant to Rule 12(b)(6), Ariz. R. Civ. P., the trial court considered matters *695 outside the pleadings. Thus, normally, we would review the trial court's ruling as a grant of a motion for summary judgment. Ariz. R. Civ. P. 12(b); see also James v. State, 215 Ariz. 182, ¶ 5, 158 P.3d 905, 907 (App.2007). We conclude, however, that whether to apply equitable tolling is a question the trial court, not the jury, should determine. Cf. Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 579 (D.C.Cir.1998) ("[E]quitable tolling and estoppel, which ask whether equity requires extending a limitations period, are for the judge to apply, using her discretion, regardless of the presence of a factual dispute."). Indeed, although we find no Arizona authority squarely addressing this issue, there is some precedent from which we can draw to sanction this procedure. See Kosman v. State, 199 Ariz. 184, ¶ 12, 16 P.3d 211, 214 (App.2000) ("remand[ing] for findings" where plaintiff had raised factual questions relevant to whether equitable estoppel should be applied). Similarly, the related doctrine of equitable estoppel is properly determined by the trial court. See Nolde v. Frankie, 192 Ariz. 276, ¶ 20, 964 P.2d 477, 482 (1998) (trial court determines whether equitable estoppel applies).[1] And, because both equitable estoppel and equitable tolling by definition sound in equity, the trial court is the fact-finder. See City of Tucson v. Superior Court, 165 Ariz. 236, 242 n. 5, 798 P.2d 374, 380 n. 5 (1990) ("Although either party to litigation in the superior court is entitled to demand a jury trial as a matter of right, whether the case falls in equity or in law, in an equity case the verdict is merely advisory.") (internal citation omitted); Mullins v. Horne, 120 Ariz. 587, 591, 587 P.2d 773, 777 (App.1978) ("[I]n equity matters, the court may disregard the jury's verdict or answers to interrogatories. In such event, the court becomes the trier of all issues of fact and law."). Moreover, the facts related to the reasons for equitable tolling are frequently unrelated to the central facts relevant to the merits of the plaintiff's claim. See Pauling v. Sec'y of Dep't of Interior, 71 F.Supp.2d 231, 233 (S.D.N.Y.1999) (trial court should determine whether to apply doctrine of equitable tolling because there is no overlap of factual issues).
¶ 10 No Arizona case discusses the standard of review an appellate court should employ in addressing a trial court's refusal to apply the doctrine of equitable tolling. There is much disagreement among courts in other jurisdictions on this question. See, e.g., Belot v. Burge, 490 F.3d 201, 205-06 (2d Cir.2007) (discussing conflicting standards used by federal courts); Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir.2001) (same). We find the reasoning of the Second Circuit in Belot instructive.
[T]he appropriate standard of review depends on the aspect of the decision which is under review. A rule of law that gives the court discretion to grant an equitable exception in extraordinary circumstances seems almost inherently to invite the court's discretion in applying these standards. The balancing of factors involved in determining what result is equitable and the appraisal of whether the circumstances are sufficiently extraordinary seem to contemplate that in the same set of facts, different results could be acceptable. In such circumstances, courts often say that appellate review is for "abuse of discretion." But that label in a way obscures more than it reveals. The operative review standard in the end will depend on what aspect of the lower court's decision is challenged. If a district court denies equitable tolling on the belief that the decision was compelled by law, that the governing legal standards would not permit equitable tolling in the circumstances that aspect of the decision should be reviewed de novo. If the decision to deny tolling was premised on an incorrect or inaccurate view of what the law requires, the decision should not stand. Courts generally in such circumstances state that application of an incorrect standard of law is an "abuse of discretion." Considering a second aspect, if the decision to deny tolling was premised on a factual finding, the factual finding *696 should be reviewed for clear error. Finally, if the court has understood the governing law correctly, and has based its decision on findings of fact which were supported by the evidence, but the challenge is addressed to whether the court's decision is one of those within the range of possible permissible decisions, then appellate review will be, not only in name, but also in operation, for abuse of discretion. The reviewing court will recognize that in theory the lower court has numerous options open to it and its decision must be sustained unless the particular facts and circumstances are such as to make the particular decision an abuse of discretion. These three distinct potential aspects of a decision and the concomitant types of review are collected under the label "abuse of discretion."
Belot, 490 F.3d at 206-07 (internal citations omitted). Moreover, a trial court's application of other forms of equitable relief is typically reviewed for an abuse of discretion. See Flying Diamond Airpark, LLC v. Meienberg, 215 Ariz. 44, ¶ 27, 156 P.3d 1149, 1155 (App.2007) ("We review a trial court's decision not to apply [equitable] estoppel for an abuse of discretion."); Kromko v. City of Tucson, 202 Ariz. 499, ¶¶ 4, 5, 47 P.3d 1137, 1139 (App.2002) (trial court's determination of injunctive relief and application of laches reviewed for abuse of discretion); see also Maher v. Urman, 211 Ariz. 543, ¶ 21, 124 P.3d 770, 777 (App.2005) (ruling on relief for excusable neglect under Rule 60(c), Ariz. R. Civ. P., reviewed for abuse of discretion).
¶ 11 At oral argument before this court, the state conceded that attorney illness, under some circumstances, could warrant tolling of the statute of limitations. We agree. "Under equitable tolling, plaintiffs may sue after the statutory time period for filing a complaint has expired if they have been prevented from filing in a timely manner due to sufficiently inequitable circumstances." Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir.1999). "It is hornbook law that limitations periods are `customarily subject to equitable tolling.'" Young v. United States, 535 U.S. 43, 49, 122 S.Ct. 1036, 1040, 152 L.Ed.2d 79 (2002), quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990) (internal quotations omitted).
¶ 12 Arizona courts have recognized and applied the equitable tolling doctrine. See Hosogai v. Kadota, 145 Ariz. 227, 229, 700 P.2d 1327, 1329 (1985) (applying doctrine when second wrongful death claim untimely filed after successful verdict on first claim overturned on appeal due to defective service of process); Kosman, 199 Ariz. 184, ¶¶ 6, 10, 16 P.3d at 213 (applying doctrine where plaintiff prisoner failed to timely file notice of claim against state because he first pursued claim through prison's administrative grievance procedure); Kyles v. Contractors/Eng'rs Supply, Inc., 190 Ariz. 403, 404, 406, 949 P.2d 63, 64, 66 (App.1997) (applying doctrine when right-to-sue letter from Arizona Attorney General's office contained incorrect date by which plaintiff was required to sue on his claim).
¶ 13 Federal cases provide additional examples of situations in which a party might qualify for equitable tolling. See Seitzinger, 165 F.3d at 240 ("[E]quitable tolling may be appropriate when a claimant received inadequate notice of her right to file suit, where a motion for appointment of counsel is pending, or where the court has misled the plaintiff into believing that she had done everything required of her."). Courts have applied equitable tolling when "extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time." Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.1996); see also Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.2000) (same). For example, courts have found extraordinary circumstances when there is a lack of clarity in the law, Capital Tracing, Inc. v. United States, 63 F.3d 859, 862-63 (9th Cir. 1995), or when an attorney affirmatively lied to a diligent client, Seitzinger, 165 F.3d at 241-42. "To establish extraordinary circumstances, a petitioner must support his allegations with evidence; he cannot rely solely on personal conclusions or assessments." Collins v. Artus, 496 F.Supp.2d 305, 313 (S.D.N.Y.2007).
*697 ¶ 14 We are not aware of any Arizona cases that have considered whether the doctrine of equitable tolling excuses, based on an attorney's illness, the untimely filing of a complaint.[2] Many courts have taken the position that equitable tolling is not appropriate in such situations. See, e.g., Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir.2003) ("attorney incapacity is equivalent to attorney negligence for equitable tolling purposes" and is not grounds for equitable tolling in a habeas corpus proceeding); Yarborough v. Burger King Corp., 406 F.Supp.2d 605, 609 (M.D.N.C.2005) (attorney's illness and hospitalization "made it more difficult for Plaintiffs to file on time, but not impossible," and there was "no evidence in the record to show that Plaintiffs made any independent effort to safeguard their right to file") (internal quotations omitted); Gruber v. Unum Life Ins. Co. of Am., 195 F.Supp.2d 711, 716 (D.Md.2002) (attorney's illness and hospitalization "`is at best a garden variety claim of excusable neglect' and cannot justify excusing such a delay," particularly when attorney worked with other lawyers), quoting Irwin, 498 U.S. at 96, 111 S.Ct. at 458. And, some courts have found that a death in the family of the attorney also is not grounds for equitable tolling. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.2000) ("Though we sympathize with the attorney who suffered the loss of her father several weeks before the deadline, the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.").
¶ 15 Courts in other jurisdictions, however, have found that an attorney's illness could support equitable tolling. See Cantrell v. Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1179-80 (6th Cir.1995) (if plaintiff "pursued his claim diligently, yet was abandoned by his attorney due to his attorney's mental illness, equitable tolling may be appropriate"); Doherty v. Teamsters Pension Trust Fund of Phila. & Vicinity, 16 F.3d 1386, 1394 (3d Cir.1994) ("[S]ome mistakes in extraordinary circumstances merit forbearance, and this a filing in the wrong forum by a lawyer and law firm under the extreme duress caused by the illness and death of the lawyer during the proceedings may be such a mistake."); Fogg v. Carroll, 465 F.Supp.2d 336, 344, 346 (D.Del.2006) (applying doctrine where attorney filing late habeas corpus petition had "suffered at least one stroke during the course of her representation," "was undergoing medical treatment" during the relevant time period for filing, and passed away a few months after filing petition); Lewis v. Superior Court, 175 Cal.App.3d 366, 220 Cal. Rptr. 594, 595, 600 (1985) (applying doctrine where attorney struck by an automobile one week before he planned to file complaint, suffering severe injuries disabling him mentally and physically).
¶ 16 Although a typical attorney illness situation might qualify as "a garden variety claim of excusable neglect," Irwin, 498 U.S. at 96, 111 S.Ct. at 458, we agree with both the parties and those courts that have found, in certain rare cases, attorney illness to be the extraordinary circumstances in which the doctrine of equitable tolling should apply. It is clear, however, that this is a doctrine that should be used only sparingly. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002); Irwin, 498 U.S. at 96, 111 S.Ct. at 457. "[T]he principles of equitable tolling . . . do not extend to . . . a garden variety claim of excusable neglect." Irwin, 498 U.S. at 96, 111 S.Ct. at 458.
¶ 17 The trial court determined "that as a matter of law under the unusual facts and circumstances of this case, there is no excusable neglect." We interpret this ruling to mean the court correctly decided that equitable *698 tolling is available based on an attorney's disability, but further found the doctrine unavailable on these facts. Thus, the court's ruling invokes the third situation described in Belot, 490 F.3d at 206-07, which we will review for an abuse of discretion.
¶ 18 McCloud's counsel's affidavit provides significant detail about the events he asserts caused him to fail to file the complaint within the one-year limitations period. His affidavit, however, does not suggest he was so disabled during this time that he could not have taken steps to ensure his client was protected. For example, he was able, despite several surgeries and his wife's disability, to relocate his mother from Phoenix to Tucson and arrange for the care of his brother. And, following his mother's death, he was able to "handle the arrangements and the winding up of her financial affairs." Even assuming these events "prevented [him] from being able to properly concentrate on [his] work," as he asserts, he apparently did not attempt to contact his backup attorney for assistance. And he stated in his affidavit that he did not expect the backup attorney to "learn the various statute of limitation requirements," but instead planned to "guide [the backup attorney] through the process on [his] files." There is no evidence McCloud's attorney ever attempted to provide such guidance, and no evidence he lacked the opportunity.
¶ 19 We sympathize with McCloud's counsel and can understand why these events may have caused him to neglect his client's case. The trial court did not abuse its discretion, however, in concluding they were insufficient to permit tolling in the absence of any effort by McCloud's counsel to mitigate or address, despite opportunities to do so, the effect these events had on his practice. In the cases we have reviewed, courts have only applied the doctrine of equitable tolling where the attorney had suffered a significant incapacitating disability. See Cantrell, 60 F.3d at 1180 n. 1 (mental illness resulting in attorney's "remov[al] from the active practice of law"); Doherty, 16 F.3d at 1394 (attorney unable to work and "was in his home or the hospital until his death"); Fogg, 465 F.Supp.2d at 346 (attorney suffered stroke and "progressively debilitating illness" resulting in death); Lewis, 220 Cal.Rptr. at 595 (attorney struck by automobile, resulting in ten days of unconsciousness, including date of filing deadline). The disability suffered by McCloud's attorney, even if we view its combined effects with the illness of his wife and death of two family members, is not comparable with the near-total disability suffered by the attorneys in the cases we have examined.
¶ 20 McCloud also points to the fact that her attorney had surgery the day before the limitations period expired and was convalescing and "unable to work" the following day. Her attorney's affidavit, however, does not state whether the surgery was due to an emergency or if he had prior notice of the surgery and could have taken some steps to protect his client. Evidence his surgery had been unexpected might have supported equitably tolling the limitations period. See Lewis, 220 Cal.Rptr. at 595. In the absence of such evidence, however, the trial court was not required to do so. Thus, for the reasons stated above, we conclude McCloud has not demonstrated the trial court abused its discretion in failing to find "extraordinary circumstances" that would warrant tolling of the limitations period. Alvarez-Machain, 107 F.3d at 701; see also Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58. Thus, the trial court did not abuse its discretion by declining to apply the doctrine of equitable tolling in these circumstances. See Belot, 490 F.3d at 207-08.
Course and Scope of Employment
¶ 21 McCloud also argues her claim against Kimbro as an individual should be governed by the two-year statute of limitations, A.R.S. § 12-542, because a jury could conclude Kimbro was not acting in the course and scope of his employment when he struck McCloud's vehicle.[3] As noted above, a one-year limitations period applies to claims *699 against public entities and employees. See § 12-821. A personal injury claim against a private person or entity, however, is governed by the two-year statute of limitations. See § 12-542. Thus, unless McCloud's claim against Kimbro as a private person is governed by § 12-821, it was timely filed. "In reviewing the trial court's decision to dismiss for failure to state a claim, we assume as true the facts alleged in the complaint and affirm the dismissal only if, as a matter of law, the plaintiff would not be entitled to relief on any interpretation of those facts." Doe ex rel. Doe v. State, 200 Ariz. 174, ¶ 2, 24 P.3d 1269, 1270 (2001).
¶ 22 Although the parties apparently assume that the one-year statute of limitations in § 12-821 applies to a claim against a public employee only when that employee acts in the course and scope of his or her employment, the statute's language contains no such restriction.[4] Indeed, our legislature removed specific language to that effect when it amended the statute in 1994. 1994 Ariz. Sess. Laws, ch. 162, § 1. As we explain, however, to interpret § 12-821 to apply to claims against a public employee who was not acting in the scope of his or her employment at the time of the actionable event would be contrary to the legislature's intent and inconsistent with the interpretation of related statutes. See Bridgestone/Firestone N. Am. Tire, L.L.C. v. A.P.S. Rent-A-Car & Leasing Inc., 207 Ariz. 502, ¶ 15, 88 P.3d 572, 576 (App.2004) (primary goal of statutory interpretation "`is to discern and give effect to legislative intent.'"), quoting State v. Kearney, 206 Ariz. 547, ¶ 5, 81 P.3d 338, 340 (App.2003); Ruth Fisher Elementary Sch. Dist. v. Buckeye Union High Sch. Dist., 202 Ariz. 107, ¶ 12, 41 P.3d 645, 648 (App.2002) ("When we interpret the meaning and application of related statutes, we keep in mind that `[i]f reasonably practical, a statute should be explained in conjunction with other statutes to the end that they may be harmonious and consistent.'"), quoting State ex rel. Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970) (alteration in Ruth Fisher).
¶ 23 An earlier version of § 12-821, enacted in 1984, similarly contained no explicit language limiting it to claims based on the acts of a public employee in the scope of his or her employment. 1984 Ariz. Sess. Laws, ch. 285, § 5. Then, as now, a "public employee" includes an "officer, director, employee or servant, whether or not compensated or part time, who is authorized to perform any act or service," § 12-820(1), of any "public entity," § 12-820(5). In Johnson v. Superior Court, 158 Ariz. 507, 509 n. 1, 763 P.2d 1382, 1384 n. 1 (App.1988), we determined that, because the term "public employee" refers to "a person authorized to act," "the statutes [governing claims against public entities or employees] are applicable only in situations where public employees have acted in the scope of employment." Thus, under Johnson, the scope of employment language need not be present in § 12-821 because that restriction is encompassed by the definitions of "employee" and "public employee" in § 12-820(1) and (5).
¶ 24 The legislature modified § 12-821 in 1993, eliminating the notice of claim requirement and stating the one-year statute of limitations applied only to personal injury claims "involving acts that are alleged to have occurred within the scope of the public employee's employment." 1993 Ariz. Sess. Laws, ch. 90, § 8. In 1994, the legislature, without comment or explanation, removed the scope of employment language. 1994 Ariz. Sess. Laws, ch. 162, § 1. The legislature's alteration of § 12-821, however, does not suggest our interpretation of § 12-820's definitions in Johnson was error.
¶ 25 Furthermore, by the same bill that modified § 12-821 in 1994, the legislature enacted the notice of claim statute, § 12-821.01, which also contains no reference to the public employee's scope of employment. 1994 Ariz. Sess. Laws, ch. 162, § 2. The notice of claim statute has consistently been applied only to claims arising out of acts by public employees in the scope of their employment. See, e.g., Salerno v. Espinoza, 210 Ariz. 586, ¶ 11, 115 P.3d 626, 629 (App.2005); *700 Crum v. Superior Court, 186 Ariz. 351, 352-53, 922 P.2d 316, 317-18 (App.1996).[5] To interpret § 12-821 to encompass acts outside an employee's scope of employment would be inconsistent with those decisions. See Ruth Fisher, 202 Ariz. 107, ¶ 12, 41 P.3d at 648.
¶ 26 Moreover, although the legislature removed the scope of employment language from § 12-821, 1994 Ariz. Sess. Laws, ch. 162, § 1, the legislative history of that revision strongly suggests the legislature intended for that restriction to remain. The Senate's "final revised" fact sheet for that bill, S.B. 1284, states that the bill is to "[p]rovide[] for a one year statute of limitation on all actions brought against a public entity or public employee when acting in his capacity as a public employee." (Emphasis added.) Although the legislative history does not explain why the scope of employment language was removed from § 12-821, the fact sheet evidences a clear legislative intent for that statute to apply only to public employees acting in the scope of their employment. See Ardestani v. I.N.S., 502 U.S. 129, 135-36, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991) (clearly expressed contrary legislative intent rebuts presumption that plain language of statute best indicator of legislative intent); see also City of Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, ¶ 68, 105 P.3d 1163, 1178 (2005) (consideration of legislative fact sheets appropriate to determine legislative intent).
¶ 27 For the reasons stated above, we conclude, despite the legislature's decision to remove language explicitly limiting § 12-821 to acts within an employee's scope of employment, the statute can only be reasonably interpreted to solely encompass such actions. Thus, McCloud's claim against Kimbro is timely only if Kimbro was not acting within the scope of his employment at the time of the accident. Unlike in its ruling on equitable estoppel, the trial court did not consider any matters outside the pleadings related to this issue when it granted the state's motion to dismiss. See Ariz. R. Civ. P. 12(b)(6). We therefore "assume as true the facts alleged in the complaint and affirm the dismissal only if, as a matter of law, the plaintiff would not be entitled to relief on any interpretation of those facts." Doe ex rel. Doe, 200 Ariz. 174, ¶ 2, 24 P.3d at 1270.
¶ 28 In her complaint, McCloud alleged Kimbro was an "officer employed by DPS" and had been driving his "State of Arizona motor vehicle" when he struck her while he was "searching for a restaurant on his lunch break." The state argues these facts conclusively establish Kimbro was acting in the scope of his employment at the time of the accident. We disagree.
¶ 29 An employee's "[c]onduct falls within the scope [of employment] if it is the kind the employee is employed to perform, it occurs within the authorized time and space limits, and furthers the employer's business even if the employer has expressly forbidden it." Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, ¶ 17, 5 P.3d 249, 254 (App.2000). "Whether an employee's tort is within the scope of employment is generally a question of fact. It is a question of law, however, if the undisputed facts indicate that the conduct was clearly outside the scope of employment." Smith v. Am. Express Travel Related Servs. Co., 179 Ariz. 131, 136, 876 P.2d 1166, 1171 (App.1994) (internal citations omitted).
¶ 30 That Kimbro was on his lunch break does not resolve the question whether he was acting in the scope of his employment. See Restatement (Second) of Agency § 229 cmt. e (1958) ("The fact that the act is done at an unauthorized place or time or is actuated by a purpose not to serve the master indicates that the act is not within the scope of the employment."); see also id. §§ 233, 234; Restatement (Third) of Agency § 7.07(2) ("An employee's act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer."). Just because Kimbro was driving *701 a State of Arizona vehicle does not necessarily mean he had been acting within the scope of his employment. An employee could deviate from the scope of employment using an employer-provided vehicle as readily as when using a personal vehicle. Cf. Smithey v. Hansberger, 189 Ariz. 103, 107, 938 P.2d 498, 502 (App.1996) ("employer's conveyance exception" to typical rule that "when an employee is injured going to or coming from his work place, the accident and resulting injuries do not arise out of or occur in the course and scope of employment" depends on whether "travel time appears to benefit the employer").
¶ 31 We also find unavailing the state's argument based on A.R.S. § 41-1743 that Kimbro was necessarily acting within the scope of his employment because he was "authorized, if not duty-bound, to intervene if he had witnessed a crime, accident, or civil traffic violation while on his way to or even while eating lunch." Adopting the state's position would mean that an off-duty police officer would always be acting within the scope of his or her employment merely because some potential duty to act could arise, regardless of the attendant circumstances.
¶ 32 Additionally, the state's reliance on workers' compensation cases from a variety of jurisdictions is misplaced. Workers' compensation statutes are interpreted liberally to protect the injured worker. See Schuck & Sons Constr. v. Indus. Comm'n, 213 Ariz. 74, ¶ 13, 138 P.3d 1201, 1204 (App. 2006) ("We construe the Workers' Compensation Act liberally in order to effectuate its remedial purpose."). Thus, cases addressing those statutes may construe more broadly the scope of employment of an injured employee than is proper in this context. See Throop v. F.E. Young & Co., 94 Ariz. 146, 153, 382 P.2d 560, 564 (1963) ("Work[ers'] [c]ompensation cases and cases arising under similar social legislation are not necessarily authority for principles giving rise to common-law liability under the doctrine of respondeat superior."); but see Ortiz v. Clinton, 187 Ariz. 294, 298, 928 P.2d 718, 722 (App.1996) ("principles arising from workers' compensation cases may also be invoked in respondeat superior cases when they are appropriate," particularly when applied to tort action involving exclusive remedy provision of workers' compensation statute). Because the facts pled in McCloud's complaint do not compel the conclusion that Kimbro was acting in the scope of his employment at the time of the accident, the trial court erred in dismissing McCloud's individual claim against Kimbro. See Doe ex rel. Doe, 200 Ariz. 174, ¶ 2, 24 P.3d at 1270.
Disposition
¶ 33 The trial court's grant of the state's motion to dismiss McCloud's claim against the State of Arizona is affirmed. Its grant of the motion to dismiss McCloud's individual claim against Kimbro is reversed and we remand the case to the trial court for further proceedings consistent with this decision.
CONCURRING: JOSEPH W. HOWARD, Presiding Judge and JOHN PELANDER, Chief Judge.
NOTES
[1] "A defendant will be estopped from asserting the defense of the statute of limitations if by its conduct the defendant induces the plaintiff to forego litigation by leading plaintiff to believe a settlement or adjustment of the claim will be effected without the necessity of bringing suit." Roer v. Buckeye Irrigation Co., 167 Ariz. 545, 547, 809 P.2d 970, 972 (App.1990).
[2] Some Arizona cases have discussed attorney illness in the context of what constitutes excusable neglect to set aside a judgment pursuant to Rule 60(c), Ariz. R. Civ. P. See Walker v. Kendig, 107 Ariz. 510, 512, 489 P.2d 849, 851 (1971) ("[V]erified sudden illness usually presents exceptional circumstances under which a reasonably prudent attorney could be `excused' from properly carrying out his practice."); Resolution Trust Corp. v. Maricopa County, 176 Ariz. 631, 634-35, 863 P.2d 923, 926-27 (Tax 1993) (rejecting attorney's unsubstantiated claim that Chronic Fatigue Syndrome should constitute excusable neglect when attorney's illness not sudden, attorney did not seek help, and attorney maintained social and civic commitments). However, we find these cases inapposite to the situation here.
[3] Although McCloud made this argument below, the trial court did not address it in granting the state's motion to dismiss.
[4] McCloud asserts that "[s]imply being a public employee does not trigger the one year statute of limitations," but cites no authority in support of her position. The state does not discuss this issue.
[5] Admittedly neither Salerno nor Crum contains any analysis of this issue. In Crum, Division One of this court relied on Johnson v. Superior Court, 158 Ariz. 507, 763 P.2d 1382 (App.1988). 186 Ariz. at 352, 922 P.2d at 317. In Salerno, Division One relied on Crum. 210 Ariz. at 588, 115 P.3d at 628. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600306/ | 170 P.3d 782 (2007)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Richard Eugene STANLEY, a/k/a Rick Eugene Stanley, Jr., Defendant-Appellant.
No. 04CA2164.
Colorado Court of Appeals, Division V.
April 5, 2007.
Rehearing Denied June 14, 2007.
Certiorari Denied November 19, 2007.
*784 John W. Suthers, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Norman R. Mueller, Rachel A. Bellis, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge J. JONES.
Defendant, Richard Eugene Stanley, appeals his convictions for two counts of attempting to influence a public official, contending, among other things, that the statute he was convicted of violating, § 18-8-306, C.R.S.2006, was applied to him in violation of his right to freedom of speech under the First Amendment to the United States Constitution. We disagree with defendant's constitutional argument, and affirm the judgment of conviction.
I. Background
On September 7, 2002, defendant was charged with violating City of Thornton Municipal Code § 38-237 by carrying a dangerous weaponnamely, a loaded .357 magnum handgun. Thornton Municipal Judge Charles Rose presided at defendant's trial. Defendant, representing himself, argued that § 38-237 is unconstitutional in that it infringed on his rights under the Colorado Constitution to defend himself and to bear arms. Judge Rose found defendant guilty after a bench trial, and sentenced defendant to serve ninety days in jail and to pay a $500 fine.
Defendant appealed his conviction to the Adams County District Court, again arguing that § 38-237 is unconstitutional. Judge Donald W. Marshall, Jr. affirmed defendant's conviction. Defendant did not further appeal this conviction or sentence.
Defendant failed to appear on the date ordered to begin serving his sentence. Instead, *785 defendant's secretary, at defendant's direction, hand delivered a document to the City of Thornton Municipal Court labeled, "Notice and Order." The "Notice and Order" stated:
This NOTICE to Judge Charles Rose is in regard to Stanley's gun charge and arrest of openly carrying a weapon, in violation of Thornton Ordinance TRMC38-237. This ordinance violates Colorado Constitution Art. 2, Sec.3, by interfering with his natural, essential, and inalienable right to self defense, under the color of law, for the arrest, charge, and conviction against Rick Stanley. The signing of SB25 on March 18, 2003, affirms Article 2, Sec. 3, of the State Constitution, and preempts this ordinance. Rick Stanley demands that Judge Charles Rose, overturn this conviction of Stanley on constitutional grounds. Failure to do so will result in a treason charge against Charles Rose for failure to uphold the oath of office to defend the Constitutions, which this Court has a copy of, and Charles Rose swore to, as a "condition" of his office. This treason charge, will result in a Mutual Defense Pact Militia warrant for Charles Rose's arrest if the following conditions are not met:
1. Overturn the unconstitutional conviction of Rick Stanley for violation of TRMC 38-237 because TRMC 38-237 violates the constitutional rights of Rick Stanley, under the guise of "color of law."
2. Return the $1,500.00 bond to Rick Stanley.
3. Return Rick Stanley's property which consists of 1 each Smith and Wesson 6 shot .357 pistol and 6 each .357 bullets.
This court is notified, once more, as Stanley gave Notice from the beginning of the proceeding against him, Thornton Municipal Court has "NO" jurisdiction over him in this matter.
Accordingly, this ORDER is affirmed.
Rick Stanley
On the following day, defendant's secretary, again at defendant's direction, mailed a similar "Notice and Order" to Judge Marshall at the Adams County District Court and to the Adams County District Court.
Defendant was charged, in separate cases, with two counts of attempting to influence a public servant in violation of § 18-8-306, a class four felony. The two cases were subsequently consolidated.
Acting pursuant to § 18-1-1001, C.R.S. 2006, the court issued protection orders against defendant for the benefit of Judge Rose and Judge Marshall, both of which defendant refused to accept. In addition, both Judge Rose and Judge Marshall were placed under police and SWAT team protection.
Prior to trial, defendant moved to dismiss the charges on the ground § 18-8-306 is unconstitutionally overbroad as applied in this case because the "Notices" constituted speech protected by the First Amendment. Following a hearing, the court denied that motion.
Senior Judge Joseph R. Quinn, a former Chief Justice of the Colorado Supreme Court, presided at defendant's trial, at which defendant was represented by counsel. A jury found defendant guilty of both charges. Judge Quinn sentenced defendant to six years imprisonment in the Department of Corrections (three years for each offense, to run consecutively), plus three years of mandatory parole. Judge Quinn also assessed a total of $10,000 in fines ($5,000 for each offense), and ordered defendant to pay $8,249.64 in restitution.
II. Discussion
A. Section 18-8-306 is not Unconstitutionally Overbroad as Applied to Defendant's Statements
Defendant argues that his convictions must be reversed because the statements contained in the two "Notices" were protected by the Free Speech Clause of the First Amendment of the United States Constitution. Specifically, defendant argues that § 18-8-306 is unconstitutionally overbroad as applied in this case because his statements did not constitute "true threats." While we agree that the threats of violence prohibited by § 18-8-306 are limited to "true threats," *786 as that term is properly understood in the First Amendment context, we disagree with defendant's contention that the People did not prove that his statements constituted true threats. Accordingly, we conclude that § 18-8-306 was not unconstitutionally applied to defendant.
1. Section 18-8-306
Section 18-8-306 provides:
Any person who attempts to influence any public servant by means of deceit or by threat of violence or economic reprisal against any person or property, with the intent thereby to alter or affect the public servant's decision, vote, opinion, or action concerning any matter which is to be considered or performed by him or the agency or body of which he is a member, commits a class 4 felony.
"The critical elements of this offense are (1) an attempt to influence a public servant (2) by means of deceit or by threat of violence or economic reprisal (3) with the intent to alter or affect the public servant's decision or action." People v. Norman, 703 P.2d 1261, 1269 (Colo.1985); accord People v. Janousek, 871 P.2d 1189, 1194 (Colo.1994); People v. Schupper, 140 P.3d 293, 298 (Colo. App.2006).
2. The "True Threat" Requirement
While the First Amendment protects the right to free speech, its protection is not absolute. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 1547, 155 L.Ed.2d 535 (2003). Some categories of speech are unprotected by the First Amendment, and the government may permissibly regulate speech that falls within these categories. Black, supra, 538 U.S. at 358, 123 S.Ct. at 1547; People v. Hickman, 988 P.2d 628, 638 (Colo. 1999). One such category is "true threats." Black, supra, 538 U.S. at 359, 123 S.Ct. at 1547-48; Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (identifying several types of statements that have "never been thought to raise any Constitutional problem"); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992); Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969); Janousek, supra, 871 P.2d at 1193 (person "has no constitutionally protected right to make threats of violence to a public servant").
The "true threat" requirement is generally regarded as having its origin in the Supreme Court's decision in Watts, supra. The defendant in that case was convicted of violating 18 U.S.C. § 871, which proscribes making a threat against the President. The conviction was based on the defendant's statement at a political rally against the Vietnam War that "[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Watts, supra, 394 U.S. at 706, 89 S.Ct. at 1401. While the Court held that the statute was constitutional on its face, it also held that it must be interpreted to distinguish between "true threats," which may be proscribed, and "political hyperbole," which may not be. Watts, supra, 394 U.S. at 707-08, 89 S.Ct. at 1401. Because the Court determined that the statement, considered in context, could not be interpreted as other than political hyperbole, it reversed the defendant's conviction. Watts, supra, 394 U.S. at 708, 89 S.Ct. at 1402.
Since Watts, the Supreme Court has not definitively articulated the meaning of "true threats." In Black, supra, however, the Supreme Court said: "`True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Black, supra, 538 U.S. at 359, 123 S.Ct. at 1548; see also Janousek, supra, 871 P.2d at 1198 (Mullarkey, J., specially concurring) ("A `true threat' is a serious threat, as opposed to mere political argument, talk or jest. . . . ").
Any statute that criminalizes threats must, of course, be applied and interpreted consistently with the First Amendment. Watts, supra, 394 U.S. at 707, 89 S.Ct. at 1401; Hickman, supra, 988 P.2d at 639-41. Accordingly, we agree with the parties that § 18-8-306 must be interpreted to limit criminal culpability to statements constituting "true threats." See Watts, supra, 394 U.S. at 708, 89 S.Ct. at 1401; Hickman, *787 supra, 988 P.2d at 639-41; State v. Johnston, 156 Wash.2d 355, 127 P.3d 707, 711-12 (2006). Indeed, in Janousek, supra, our supreme court appears to have interpreted § 18-8-306 as so limited.
We turn, then, to defendant's principal contention: namely, that the Supreme Court in Black altered the true threat analysis so as to require proof that the maker of the threat subjectively intended to threaten, and that his conviction cannot stand because there was no evidence that he subjectively intended to threaten Judge Rose or Judge Marshall.
3. Intent
Defendant testified in the trial court that he sent the "Notices" with the intent of influencing Judge Rose and Judge Marshall to reverse his conviction for violating Thornton Municipal Code § 38-237. Thus, the record reveals that defendant possessed the specific intent required by the plain language of § 18-8-306 ("with the intent . . . to alter or affect the public servant's decision"), and defendant does not contend otherwise on appeal.
Defendant nevertheless argues that the First Amendment, as applied by the Supreme Court in Black, requires an additional showing of specific intent to secure a conviction under § 18-8-306; specifically, that the speaker must have subjectively intended to make a threat of unlawful violence. We are not persuaded.
Defendant's argument presents a question of law which we review de novo. Lewis v. Colo. Rockies Baseball Club, Ltd., 941 P.2d 266, 270-71 (Colo.1997); Holliday v. Reg'l Transp. Dist., 43 P.3d 676, 681 (Colo.App. 2001).
Section 18-8-306 has been construed as criminalizing certain threats as viewed from an objective, reasonable person's perspective. See Janousek, supra, 871 P.2d at 1198 (Mullarkey, J., specially concurring) (threat evaluated by "whether those who hear or read the threat reasonably consider that an actual threat has been made"); People v. McIntier, 134 P.3d 467, 472 (Colo.App.2005)(same). After Watts, and prior to Black, courts construing other criminal statutes proscribing certain types of threats almost uniformly applied an objective standard (from either the speaker's or the recipient's perspective) to determine whether a statement was a true threat. See, e.g., People v. Baer, 973 P.2d 1225, 1231, 1233 (Colo.1999) (threat cognizable under § 18-9-111, criminalizing harassment by stalking, assessed under "an objective `reasonable person' standard"); United States v. Fulmer, 108 F.3d 1486, 1490-91 (1st Cir.1997); United States v. Aman, 31 F.3d 550, 553-56 (7th Cir.1994); United States v. Malik, 16 F.3d 45, 49 (2d Cir.1994); United States v. Kosma, 951 F.2d 549, 556-57 (3d Cir.1991); United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990). But see United States v. Patillo, 438 F.2d 13, 15 (4th Cir.1971) (en banc) (in prosecution for threatening the President, the prosecution must prove a present intent to do injury if the threat is communicated to someone other than the President). See generally Note, "True Threats" and the Issue of Intent, 92 Va. L.Rev. 1225 (2006). Indeed, even prior to Watts, courts typically interpreted statutes proscribing threats as requiring proof that a reasonable person would perceive the statement as a threat. See, e.g., Ragansky v. United States, 253 F. 643, 644-45 (7th Cir. 1918).
In Black, the Supreme Court examined three defendants' convictions under a Virginia statute which made it unlawful for a person "with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place." Black, supra, 538 U.S. at 348, 123 S.Ct. at 1541. The Court concluded that the statute was not constitutionally overbroad, but was unconstitutional insofar as it provided that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate," because the presumption would permit conviction for cross burnings that merely constituted political speech. In addressing the overbreadth question, the Court briefly discussed the concept of true threats:
"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent *788 to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders," in addition to protecting people "from the possibility that the threatened violence will occur."
Black, supra, 538 U.S. at 359-60, 123 S.Ct. at 1548 (citations omitted)(quoting in part R.A.V., supra, 505 U.S. at 388, 112 S.Ct. at 2546). The Court then proceeded to define intimidation, the object proscribed by the statute at issue, as follows: "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Black, supra, 538 U.S. at 360, 123 S.Ct. at 1548.
Since Black was decided, only a few courts have directly addressed the argument that Black requires proof of the speaker's subjective intent to threaten. Compare United States v. D'Amario, 461 F.Supp.2d 298, 301 (D.N.J.2006) (no such proof required); New York ex rel. Spitzer v. Cain, 418 F.Supp.2d 457, 478-79 (S.D.N.Y.2006) (same); United States v. Bly, (W.D.Va. No. CRIM.3:04CR00011, Oct. 14, 2005), 2005 WL 2621996 (same); United States v. Ellis, (E.D.Pa. No. CR.02-687-1, July 15, 2003), 2003 WL 22271671 (same); and People v. Pilette, (Mich.Ct.App. No. 266395, Nov. 21, 2006), 2006 WL 3375200 (same), with United States v. Cassel, 408 F.3d 622, 631-33 (9th Cir.2005) (such proof is required under 18 U.S.C. § 1860, which prohibits intimidating a person not to bid on or buy federal land). See also United States v. Hankins, 195 Fed. Appx. 295, 2006 WL 2787074 (6th Cir.2006) (not selected for publication) (citing Black as support for the objective test); United States v. Romo, 413 F.3d 1044, 1051 & n. 6 (9th Cir.2005) (applying objective standard to statute proscribing threats against the President, and interpreting the holding in Cassel as inapplicable to such threats), cert. denied, ___ U.S. ___, 126 S.Ct. 1638, 164 L.Ed.2d 348 (2006); Porter v. Ascension Parish School Bd., 393 F.3d 608, 616 & nn. 25-27 (5th Cir.2004) (continuing to apply objective test while acknowledging Black's definition of true threats), cert. denied, 544 U.S. 1062, 125 S.Ct. 2530, 161 L.Ed.2d 1112 (2005); United States v. Carmichael, 326 F.Supp.2d 1267, 1280 (M.D.Ala.2004) (acknowledging the decision in Black, but concluding that "[t]he Supreme Court has not settled on a definition of a `true threat'"); Citizen Publ'g Co. v. Miller, 210 Ariz. 513, 115 P.3d 107, 114-15 (2005) (treating the "reasonable person" test applied in earlier cases as "substantially similar" to the test articulated in Black); State v. DeLoreto, 265 Conn. 145, 827 A.2d 671, 680 (2003) (acknowledging Black's formulation of a true threat and applying objective test).
We are persuaded by the reasoning of the cases rejecting the subjective speaker standard.
Fundamentally, the reason threats of violence are not protected by the First Amendment is because they serve none of the purposes of the First Amendment: they do not express ideas or opinions, and are not part of the marketplace of ideas in which there is dialogue. Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir.1991); United States v. Velasquez, 772 F.2d 1348, 1356-57 (7th Cir.1985) (cited with approval in Hickman, supra, 988 P.2d at 638 n. 7). The First Amendment does not protect a statement that a reasonable speaker or a reasonable recipient would perceive as a threat of harm (as opposed to mere political hyperbole) on the basis that, notwithstanding the content of the statement, the speaker may not have intended the recipient to perceive a threat. Such a threat of violence is no more an idea, opinion, or part of a dialogue in the marketplace of ideas than if it had been made with such intent. The threat remains, in either event, devoid of content protected by the First Amendment.
Moreover, prohibitions against threats of violence serve the legitimate purpose of protecting the recipient of the statement "from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." R.A.V., supra, 505 U.S. at 388, 112 S.Ct. at 2546; see *789 also Black, supra, 538 U.S. at 360, 123 S.Ct. at 1548; Cain, supra, 418 F.Supp.2d at 479; Hickman, supra, 988 P.2d at 638.
This purpose is not served by hinging constitutionality on the speaker's subjective intent or capacity to do (or not to do) harm. Rather, these factors go to how reasonably foreseeable it is to a speaker that the listener will seriously take his communication as an intent to inflict bodily harm.
Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1076 (9th Cir.2002) (en banc); see also Kosma, supra, 951 F.2d at 556-57; D'Amario, supra, 461 F.Supp.2d at 301; Cain, supra, 418 F.Supp.2d at 479 ("A standard for [true] threats that focused on the speaker's subjective intent to the exclusion of the effect of the statement on the listener would be dangerously under inclusive with respect to the first two rationales for the exemption of threats from protected speech.").
Contrary to defendant's contention, Black does not hold that subjective intent to threaten must be proved. Defendant relies on two statements in Black. The first is the formulation of a true threat quoted above: "`True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Black, supra, 538 U.S. at 359, 123 S.Ct. at 1548. This formulation requires an intent "to communicate a serious expression of" a threat, not the specific intent that the language be perceived by others as threatening. Cain, supra, 418 F.Supp.2d at 479; People v. Pilette, supra; see also Fogel v. Grass Valley Police Dep't, 415 F.Supp.2d 1084, 1087 (E.D.Cal.2006).
The second statement in Black on which defendant relies is the Court's definition of "intimidation" quoted above: "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Black, supra, 538 U.S. at 360, 123 S.Ct. at 1548. This statement, however, must be read in context of the Court's statement just three sentences earlier characterizing the relevant intent as an intent to communicate. Further, we do not read this statement as precluding a determination of the speaker's intent based on an objective standardthat is, how a reasonable speaker would anticipate the statement would be perceived by those to whom it was communicated. Finally, the statement merely defines "intimidation," the type of true threat proscribed by the statute at issue in Black. We do not read Black as requiring a similar definition for all types of true threats. Here, § 18-8-306 proscribes not intimidation, but attempting to influence a public servant by means of deceit, threat of violence, or economic reprisal.
We acknowledge that reasonable persons can read Black differently. However, given that courts have, prior to Black, defined "true threat" in numerous contexts according to an objective standard, and have done so virtually unanimously, we think it highly unlikely the Supreme Court in Black intended to effectively overrule that vast body of precedent sub silentio.
In sum, we reject defendant's argument that the First Amendment required the People to prove that he subjectively intended to threaten Judge Rose and Judge Marshall.
4. No Privilege for Making Threats in Judicial Proceedings
Defendant also contends his statements are privilegedthat is, he is immune from prosecution for the statementsbecause they were made "in pleadings filed by a pro se litigant attempting to forcefully, albeit belligerently, make his point." Again, we disagree.
This contention also presents a question of law subject to de novo review. See NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6, 11 (Colo.1994) (whether defamatory language is constitutionally privileged is a question of law subject to de novo review).
True threats, "however communicated," are not protected by the First Amendment. Hickman, supra, 988 P.2d at 638 (quoting Madsen v. Women's Health *790 Center, Inc., 512 U.S. 753, 773, 114 S.Ct. 2516, 2529, 129 L.Ed.2d 593 (1994)). Such threats are not entitled to heightened constitutional protection simply because they are made in the context of a pleading, or in any other public forum, as opposed to in a private setting, because, as noted, they do not further any of the purposes of the First Amendment. See Shackelford, supra, 948 F.2d at 938; Velasquez, supra, 772 F.2d at 1356-57.
The cases cited by defendant in support of this argument are inapposite. All of them concerned immunity from defamation liability. None involved prosecution for true threats. See McDonald v. Lakewood Country Club, 170 Colo. 355, 364, 461 P.2d 437, 442 (1969); Renner v. Chilton, 142 Colo. 454, 455-56, 351 P.2d 277, 277 (1960); Club Valencia Homeowners Ass'n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1027 (Colo.App.1985). Defendant cites no case, and we have not found one, holding that a criminal defendant has a First Amendment privilege to threaten violence against a judge if he does so in the context of a court proceeding.
5. Sufficiency of the Evidence
Defendant also contends that the statements in his "Notices," when viewed in context, were not "true threats." We disagree.
Essentially, this contention is a challenge to the sufficiency of the evidence. "When the sufficiency of the evidence is challenged on appeal, the reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt." McIntier, supra, 134 P.3d at 471.
While the question whether a statement is a "true threat," as opposed to protected speech, is, in the first instance, one of fact to be determined by the fact finder, see McIntier, supra, 134 P.3d at 474; Johnston, supra, 127 P.3d at 712, where First Amendment concerns are implicated, we have an obligation to make an independent review of the record as a whole in order to assure that the judgment does not impermissibly intrude on the field of free expression. See Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); Lewis, supra, 941 P.2d at 270-71; DeLoreto, supra, 827 A.2d at 679; Johnston, supra, 127 P.3d at 712.
In determining whether a statement constitutes a true threat, we first consider the plain import of the words used. See Janousek, supra, 871 P.2d at 1193, 1195 (noting the forceful language of the statement and the explicit and implicit threat expressed thereby); McIntier, supra, 134 P.3d at 472. We must also consider the context in which the statement was made. McIntier, supra, 134 P.3d at 472; see Black, supra, 538 U.S. at 367, 123 S.Ct. at 1551; Watts, supra, 394 U.S. at 708, 89 S.Ct. at 1402; Hickman, supra, 988 P.2d at 639; Janousek, supra, 871 P.2d at 1198 (Mullarkey, J., specially concurring). Some of the contextual factors that may be considered include (1) to whom the statement is communicated; (2) the manner in which the statement is communicated; and (3) the subjective reaction of the person whom the statement concerns. See R.A.V., supra, 505 U.S. at 388, 112 S.Ct. at 2546; Watts, supra, 394 U.S. at 708, 89 S.Ct. at 1402; Cain, supra, 418 F.Supp.2d at 475; Janousek, supra, 871 P.2d at 1194-95; McIntier, supra, 134 P.3d at 472; Citizen Publ'g Co., supra, 115 P.3d at 115.
We conclude that a reasonable juror could find, based on the evidence submitted, and consistent with the First Amendment, that the Notices contained true threats, whether viewed from the perspective of a reasonable speaker or a reasonable recipient.
Contrary to defendant's contention, the language in the Notices is not merely "a prediction of political theater" or "metaphorical." See Watts, supra, 394 U.S. at 706-08, 89 S.Ct. at 1401-02 (threats of violence that are merely "political hyperbole" are protected speech); Hickman, supra, 988 P.2d at 639 (same). Rather, the Notices expressly threatened the judges with "arrest" by a "Mutual Defense Pact Militia," an act in which the prospect of physical violence is inherent. Cf. Malik, supra, 16 F.3d at 49-50 (threat of armed robbery unless judges reversed decisions was, together with other *791 statements, a true threat). They also threaten a "charge" of treason, an offense punishable by death. Cf. United States v. Schiefen, 139 F.3d 638 (8th Cir.1998) (upholding conviction for threatening a federal judge where letter defendant mailed to judge stated that the punishment for treason is death); United States v. Daughenbaugh, 49 F.3d 171, 173-74 (5th Cir.1995) (letters to judges threatening treason charges and death sufficient to support convictions for mailing threatening statements); see also 18 U.S.C. § 2381 (treason is punishable by death).
The Notice to Judge Rose was filed in the case in which Judge Rose had presided, and the Notice to Judge Marshall was mailed to the judge. Thus, the threats were conveyed directly to the persons threatened; defendant did not merely communicate them to a stranger to his court proceedings. See McIntier, supra, 134 P.3d at 472.
Moreover, both judges felt threatened by the Notices. Judge Rose testified that he was afraid for his life as a result of defendant's "Notice." Judge Marshall testified that he was alarmed by the "Notice" and perceived the document as a direct and immediate threat to his personal safety. The subjective reactions of the persons to whom the Notices were directed support (but do not compel) the conclusion that statements therein were true threats. United States v. Alaboud, 347 F.3d 1293, 1298 (11th Cir.2003); Fulmer, supra, 108 F.3d at 1499-500.
We reject defendant's contention that his statements necessarily constituted mere "criticism" of the judges. Defendant cites In re Green, 11 P.3d 1078 (Colo.2000), for the proposition that criticism of judges is protected speech. In re Green is inapposite, however. A merely critical remark and a threat of violence (if a true threat) are substantially different in a constitutionally meaningful way. A statement of critical opinion about a judge is protected (assuming it does not imply a false statement of fact) because it serves the principal purpose of the First Amendmentto safeguard public discussion of governmental affairs. In re Green, supra, 11 P.3d at 1084-85. A threat of violence against a judge, on the other hand, is not an expression of an idea or opinion, or part of a public dialogue in the marketplace of ideas. The statements at issue here threaten violence.
In sum, we conclude that the evidence is sufficient to support defendant's convictions.
B. The Jury Instructions Were Not Erroneous
Defendant contends that the jury instructions setting forth the elements of the offense and defining a threat were constitutionally deficient because they (1) incorrectly stated that a "threat of violence" is not protected by the First Amendment; (2) failed to include the "new" element of the speaker's subjective intent to threaten; and (3) established a conclusive presumption that the statements in the Notices were not true threats. We disagree with all three contentions.
1. Instructions Nos. 10 and 11
Instruction No. 10 stated:
The elements of the crime of Attempt to Influence a Public Servant are:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. with intent to alter or affect the public servant's decision, vote, opinion or action,
4. concerning any matter which is to be considered or performed by the public servant,
5. knowingly,
a. attempts to influence the public servant,
b. by means of deceit, or by threat of violence.
After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of Attempt to Influence a Public Servant.
After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of Attempt to Influence a Public Servant.
*792 Instruction No. 11 defined "threat" as follows:
"Threat" means a statement or statements that are likely to induce a belief in a reasonable person that the stated act or actions of unlawful violence will be carried out. The speaker or author need not intend to carry out the threat. A threat of violence is not protected under the free speech provisions of the Colorado or Federal Constitutions, nor under the constitutional provisions regarding the right to petition the government for redress of grievances. Words used as mere political argument, or as idle talk or in jest, even if made in a very crude or offensive manner, do not constitute a threat.
2. Standard of Review
We agree with the parties that because defendant failed to object to these particular jury instructions at trial, defendant's contention of error with respect thereto is reviewable only for plain error. Crim. P. 30, 52(b); People v. Miller, 113 P.3d 743, 749, 751 (Colo.), cert. denied, ___ U.S. ___, 126 S.Ct. 663, 163 L.Ed.2d 536 (2005); People v. Grant, ___ P.3d ___, ___, 2007 WL 177679 (Colo.App. No. 03CA1034, Jan. 25, 2007).
Plain error is obvious and substantial error that "so undermined the fundamental fairness of the trial itself . . . as to cast serious doubt on the reliability of the judgment of conviction." Miller, supra, 113 P.3d at 750 (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)). "As applied to jury instructions, the defendant must `demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction.'" Miller, supra, 113 P.3d at 750 (quoting in part People v. Garcia, 28 P.3d 340, 344 (Colo.2001)).
When reviewing jury instructions for plain error, we must look at the instructions as a whole. Miller, supra, 113 P.3d at 751; Grant, supra, ___ P.3d at ___.
"The trial court has the duty to instruct the jury properly on all matters of law, and the failure to do so with respect to the essential elements of the offense constitutes plain error." People v. Freeman, 668 P.2d 1371, 1382 (Colo.1983); see also People v. Montoya, 141 P.3d 916, 920 (Colo.App. 2006). At the same time, however, a trial court's "failure to instruct the jury properly does not constitute plain error if the relevant instruction, read in conjunction with other instructions, adequately informs the jury of the law." Miller, supra, 113 P.3d at 750. "Moreover, an erroneous jury instruction does not normally constitute plain error where the issue is not contested at trial or where the record contains overwhelming evidence of the defendant's guilt." Miller, supra, 113 P.3d at 750.
3. Threat of Violence
Defendant argues that Instruction No. 11 incorrectly stated that a threat of violence is not protected by the First Amendment. We conclude that the instruction, considered in its entirety, is not erroneous.
In some circumstances, a threat of violence may be protected by the First Amendment. See Watts, supra, 394 U.S. at 706-08, 89 S.Ct. at 1401-02; Hickman, supra, 988 P.2d at 639. That protection exists where the threat of violence is, viewed in context, nothing more than "political hyperbole." Watts, supra, 394 U.S. at 706-08, 89 S.Ct. at 1401-02; Hickman, supra, 988 P.2d at 639; see also Janousek, supra, 871 P.2d at 1198 (Mullarkey, J., specially concurring) (threats that are "mere political argument, talk or jest" are protected).
Here, while Instruction No. 11 stated that threats of violence are not protected free speech, it also stated in the next sentence that words "used as mere political argument, or as idle talk or in jest" are not threats. Thus, Instruction No. 11 properly distinguished between threats of violence that are true threats and those that are not.
4. Speaker's Intent to Threaten
Defendant contends the instructions should have included the "new" element of the offense that the speaker subjectively intended to threaten. We have concluded, however, that the objective standard applies to determine whether a statement is a true threat. *793 Thus, the trial court did not err in failing to instruct the jury that the People were required to prove defendant's subjective intent to threaten.
5. Conclusive Presumption
Defendant argues that because the trial court failed to properly define "threat" in the jury instructions, the instructions compelled the jury to conclusively presume that he intended his statements to threaten. However, this argument also presupposes, erroneously, that the People were required to prove such intent. Further, we do not perceive any conclusive presumption suggested by the instructions.
Conclusive presumptions "relieve[] the prosecution of its burden of persuasion by removing the presumed element from the case entirely when the prosecution proves the predicate fact on which the presumption is based." Jolly v. People, 742 P.2d 891, 896 (Colo.1987). Conclusive presumptions violate the due process rights of defendants because they "can reasonably be interpreted by the factfinder as a mandate to find the presumed element of the crime upon proof of the predicate fact, and thus clash[] directly with the presumption of innocence and the constitutional requirement of prosecutorial proof beyond a reasonable doubt." Jolly, supra, 742 P.2d at 897; see also People v. Felgar, 58 P.3d 1122, 1124 (Colo.App.2002). "The critical consideration in determining the validity of [the instruction] is whether a reasonable jury could have understood the instruction as relieving the state of its burden of persuasion on an essential element of the crime." Jolly, supra, 742 P.2d at 898. The focus of this analysis "must be on the specific language of the instruction itself." Jolly, supra, 742 P.2d at 898.
Here, the jury instruction defining "threat"Instruction No. 11did not mandate or compel the jury to conclude that the Notices contained "true threats." See Jolly, supra, 742 P.2d at 898 (jury instruction established a conclusive presumption where it used language such as "shall"). Rather, it distinguished between such threats and those that are merely political argument, idle talk, or made in jest. Moreover, Instruction No. 10 specifically told the jurors that they could find defendant guilty only if they found that the People proved all elements of the offense beyond a reasonable doubt. Thus, we conclude that a reasonable juror could not have interpreted Instructions Nos. 10 and 11 as relieving the prosecution of its burden of proof as to the element of a threat. See Montoya, supra, 141 P.3d at 920-21; cf. People v. Bostic, 148 P.3d 250, 258-59 (Colo.App. 2006) (instruction that told jurors where illegal drugs were found did not relieve prosecution of its burden of proof).
C. Judge's Oath of Office
Defendant contends that his convictions are void for lack of jurisdiction because Judge Quinn did not preside over his trial under a valid oath of office and was therefore unauthorized to serve as a judge. We disagree.
The People have filed a motion with this court asking us to take judicial notice that Judge Quinn executed a valid oath of office as a senior judge on January 13, 2003 (one and one half years before defendant's trial), or, in the alternative, to supplement the record to include Judge Quinn's written oath of office and two year contract of employment as a senior judge, both of which were signed in January 2003. Defendant filed a response opposing the People's motion. The People's motion was deferred to this division. We grant the motion to take judicial notice.
Colorado Rule of Evidence 201 allows a court, "at any stage of the proceeding," to take judicial notice of adjudicative facts, so long as those facts are "not subject to reasonable dispute" and are "either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." CRE 201(a), (b), (f); see also Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 853 (Colo.1983) (appellate court may take judicial notice of facts under CRE 201(f)).
The dates of a public official's term of office are adjudicative facts within the meaning of this rule. See Larsen v. Archdiocese of Denver, 631 P.2d 1163, 1164 (Colo.App. *794 1981) (court may take judicial notice of term of public office); cf. Lovato v. Johnson, 617 P.2d 1203, 1204 (Colo.1980) (court properly took judicial notice that Utah judge was a "magistrate" under Utah law); People ex rel. Flanders v. Neary, 113 Colo. 12, 16, 154 P.2d 48, 50 (1944) (supreme court took judicial notice of district attorney's term of office).
Further, Judge Quinn's written oath of office and contract of employment for January 2003 through January 2005 are public records of an administrative agency, specifically the Office of the State Court Administrator. We may take judicial notice of such records. See Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 866 n. 1 (9th Cir.2004) (court took judicial notice of state agency's contract with private entity); cf. Vento v. Colo. Nat'l Bank, 985 P.2d 48, 52 (Colo.App.1999) (court may take judicial notice of court's records in related proceeding); see generally 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 201.12[13] (2d ed.2006).
The oath of office and contract Judge Quinn executed show that he was authorized to serve as a senior judge throughout the course of defendant's trial court proceedings. Thus, Judge Quinn was authorized to preside over defendant's trial, and defendant's convictions are not void for lack of jurisdiction. Cf. People v. Jachnik, 116 P.3d 1276, 1277-78 (Colo.App.2005) (county court judge lacked jurisdiction to preside over trial in district court where People failed to identify any order authorizing such action).
Defendant nevertheless argues that the trial court lacked jurisdiction and his convictions are void because, even if Judge Quinn presided under a current and valid oath of office, he failed to file his oath of office with the secretary of state. We disagree.
District court judges are required by art. XII, § 9 of the Colorado Constitution to "file their oaths of office with the secretary of state." See also Chief Justice Directive 85-25. Though the People argue that this requirement did not apply to Judge Quinn because he was a "senior" judge rather than a "district court" judge, we will assume that the requirement was applicable to Judge Quinn.
However, even assuming such a filing requirement, when a public officer signs a valid oath of office but misses the deadline for filing the oath with the secretary of state, the officer still possesses the authority to carry out his or her duties as a de facto officer. People v. Scott, 116 P.3d 1231, 1232-33 (Colo.App.2004); see also Nguyen v. United States, 539 U.S. 69, 77-78, 123 S.Ct. 2130, 2135-36, 156 L.Ed.2d 64 (2003) (when a legal deficiency in a judge's appointment is merely technical, a properly appointed judge still acts under valid de facto authority); Relative Value Studies, Inc. v. McGraw-Hill Cos., 981 P.2d 687, 688 (Colo.App.1999) ("a properly appointed judge, despite even a conceded violation of [a] constitutional . . . requirement, does not lose his or her authority to act as judge merely because of the violation"). Thus, any failure to file Judge Quinn's oath of office with the secretary of state did not deprive the court of jurisdiction.
III. Conclusion
For the foregoing reasons, defendant's judgment of conviction is affirmed.
Judge CARPARELLI concurs.
Judge VOGT specially concurs.
Judge VOGT specially concurring.
I agree with the majority that the judgment of conviction should be affirmed, but I reach that conclusion for reasons other than those relied on by the majority.
In my view, Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), requires a showing that defendant subjectively intended to make a threat in order for his conviction to pass constitutional muster. Under Black as I read it, speech may not be constitutionally punished simply because a reasonable person would understand it as a threat, if the speaker did not mean for the speech to be so understood.
I reach this conclusion based on the Black Court's statement that "true threats" encompass "those statements where the speaker means to communicate a serious expression *795 of an intent to commit an act of unlawful violence to a particular individual or group of individuals," and on its statement that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Black, supra, 538 U.S. at 359-60, 123 S.Ct. at 1548. Although the majority suggests that the Court's statement regarding "intimidation" is inapplicable to this case, I believe that the acts of which defendant was convicted may fairly be characterized as intimidation, and I note that, at oral argument here, the People did not disagree with that proposition.
Further, the holding in Black supports the conclusion that the inquiry is subjective rather than objective. It is difficult to conceive of a situation in which an objectively reasonable viewer would not perceive cross burning as a threat; yet the Court struck down, as facially unconstitutional, a statute providing that burning a cross on the property of another, or on public property, was prima facie evidence of intent to intimidate.
I also disagree with the majority's analysis to the extent it suggests that most post-Black decisions have continued to apply an objective standard to determine whether speech constitutes a true threat. As the majority correctly points out, since Black was decided, only a few courts have directly considered whether Black requires proof of the speaker's subjective intent to threaten. One case cited by the majority, United States v. Cassel, 408 F.3d 622 (9th Cir.2005), holds that Black requires such subjective intent; see also United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir.2005)(recognizing that Black requires "an intent to threaten," but holding that defendant's claim that jury instructions erroneously failed to include such requirement was procedurally barred). Of the five cases that the majority cites as standing for the proposition that subjective intent is not required, only two are published decisions. In the first, United States v. D'Amario, 461 F.Supp.2d 298 (D.N.J.2006), the issue was whether the prosecution had to prove that the defendant actually intended to carry out his threat. The court correctly recognized that, under Black, no such intent was required; however, that is not the issue presented here. The other published case cited by the majority, New York ex rel. Spitzer v. Cain, 418 F.Supp.2d 457 (S.D.N.Y. 2006), disagreed with the defendants' subjective intent argument, but ultimately concluded that the argument was "irrelevant" because: "Testimony offered at the hearing suffices to establish that defendants' statements were threats under the proposed standard. . . . Under any standard, objective or subjective, . . . the defendants' statements were true threats." Cain, supra, 418 F.Supp.2d at 479-80. Thus, I do not view either D'Amario or Cain as persuasive authority for adhering to an objective standard.
Although I disagree with the majority's conclusion that, notwithstanding Black, speech may be punished without a showing that the speaker subjectively intended to make a threat, I do not believe it is necessary to decide the issue in this case. I am persuaded that the evidence here was sufficient to establish that defendant subjectively intended to threaten the judges, and that his conviction was therefore not unconstitutional.
The jury found beyond a reasonable doubt that defendant acted with the intent to alter or affect the judges' decisions, and its finding was supported by defendant's trial testimony conceding that he sent the notices to the judges with the intent to influence them to "change their mind." This finding alone potentially satisfies the subjective intent requirement of Black. After explaining that requirement, the Black Court went on to conclude that "Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate," and that "[a] ban on cross burning carried out with the intent to intimidate is . . . proscribable under the First Amendment." Black, supra, 538 U.S. at 363, 123 S.Ct. at 1549-50.
That a finding of specific intent may obviate First Amendment concerns about "true threats" was recognized in United States v. Stewart, 420 F.3d 1007 (9th Cir.2005). After discussing the "tension" between Black and its earlier holdings applying an objective *796 "true threat" definition, the Stewart court concluded that it need not decide whether the objective or subjective definition should apply because the evidence established that the defendant's statement was a true threat under either definition. In so concluding, the court observed that the statute under which the defendant was convicted contained a specific intent element: it punished only threats against officials made "with the intent to impede, intimidate, interfere with, or retaliate against such officials" on account of their performance of their duties. Thus, the court reasoned,
[A] conviction under that statute could only be had upon proof that the speaker intended the speech to impede, intimidate, interfere with, or retaliate against the protected official. Such proof would seem to subsume the subjective "true threat" definition announced in Black . . .; one cannot have the intent required under [the statute] without also intending to make the threat.
Stewart, supra, 420 F.3d at 1017. Similarly here, it is at least arguable that the specific intent requirement of § 18-8-306 subsumes the subjective "true threat" intent addressed in Black.
However, even if it does not, there was ample additional evidence presented at trial that defendant subjectively intended his notices to the judges to be threats. As the majority points out, the notices expressly threatened the judges with arrest by a militia; they referenced a charge of treason, an offense punishable by death; and they were conveyed directly to the judges, as opposed to being mere "political hyperbole" intended for public consumption. Additionally, defendant testified that he wanted to convey to the judges that, if they did not return his gun and bullets and overturn his conviction, they would be arrested.
He also testified regarding a "preliminary militia alert" that he had sent out to members of his militia. The alert, which was admitted into evidence, is replete with references to the weapons defendant and the militia would use if defendant were to find himself in a standoff with the government ("As long as I am alive and have ammo, and yes I have lots of ammo, I will hold them at bay. . . . Once you take up with force of arms and deploy as an individual or a unit, you are in the game. . . . I will be well armed. . . . I hope all of you will come prepared with force of arms. . . ."). Although the "preliminary militia alert" was sent out before defendant sent his notices to the judges and would not itself rise to the level of a true threat, it was relevant to the determination of defendant's subjective intent in sending out the notices.
The evidence thus establishes that, even assuming subjective intent is required, defendant's notices were "true threats," and, as such, were not protected by the First Amendment. In light of the evidence, I further conclude that the deficiencies in the jury instructions of which defendant complains did not rise to the level of plain error. For these reasons, and because I concur in the majority's resolution of defendant's additional contentions, I agree that the judgment of conviction should be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2594652/ | 670 F.Supp. 357 (1987)
HYUNDAI PIPE CO., LTD., Union Steel Mfg. Co., Ltd., Pusan Pipe Co., Ltd. and Korea Steel Pipe Co., Ltd., Plaintiffs,
v.
U.S. INTERNATIONAL TRADE COMMISSION and the United States, Defendants.
Court No. 84-6-00763.
United States Court of International Trade.
February 23, 1987.
*358 Mudge, Rose, Guthrie, Alexander & Ferdon, N. David Palmeter, Donald B. Cameron, Jeffrey S. Neeley and Kevin B. Dwyer, Washington, D.C., for plaintiffs.
Lyn M. Schlitt, General Counsel, Michael P. Mabile, Asst. Gen. Counsel, U.S. Intern. Trade Com'n, Edwin J. Madaj, Jr., Washington, D.C., for defendant.
Schagrin Associates, Roger B. Schagrin and Paul W. Jameson, Washington, D.C., for amicus curiae The Committee on Pipe and Tube Imports.
Memorandum Opinion and Order
DiCARLO, Judge:
Plaintiffs bring an action pursuant to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (Supp. III 1985), to contest the final affirmative injury determination of the United States International Trade Commission (Commission) in the antidumping investigation of Certain Welded Carbon Steel Pipes and Tubes From the Republic of Korea and Taiwan, 49 Fed. Reg. 19,747 (May 9, 1984). The Court has jurisdiction under 28 U.S.C. § 1581(c) (1982). The Court holds that the determination is supported by substantial evidence and in accordance with law.
I. Background
Following the final determination by the United States Department of Commerce, International Trade Administration (Commerce) that certain small diameter circular welded carbon steel pipes and tubes from Korea and Taiwan, and certain welded carbon steel pipes and tubes of light-walled rectangular (including square) cross sections from Korea were being sold in the United States at dumping margins of .90% and 1.47%, the Commission made its final determination that an industry in the United States is materially injured by reason of such imports. The average underselling margins for these classes of merchandise were 30% and 19%.
Plaintiffs challenge the Commission's determination as not supported by substantial evidence or otherwise in accordance with law because the Commission failed to engage in "margins analysis", i.e., the Commission did not consider in connection with its causation analysis under 19 U.S.C. § 1677(7)(B) (1982), the size of the dumping margins compared to the average underselling margins.
II. Discussion
The question presented is whether the Trade Agreements Act of 1979 and the practices established by the Commission require the Commission to consider the size of dumping margins in making its final determination.
Section 101 of the Trade Agreements Act of 1979 (1979 Trade Act), 19 U.S.C. § 1673d(b)(1) (1982) (amended 1984) states:
The Commission shall make a final determination of whether
(A) an industry in the United States
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded,
by reason of imports of the merchandise with respect to which the administering authority has made an affirmative determination under subsection (a)(1) of this section.
Section 101 of the 1979 Trade Act, 19 U.S. C. § 1677(7)(B) (1982) states:
In making its determinations under sections 1671b(a), 1671d(b), 1673b(a), and 1673d(b) of this title, the Commission shall consider, among other factors
(i) the volume of imports of the merchandise which is the subject of the investigation,
(ii) the effect of imports of that merchandise on prices in the United States for like products, and
*359 (iii) the impact of imports of such merchandise on domestic producers of like products.
Using these criteria, the Commission majority found injury to a domestic industry based on findings of increased volume and market penetration of the subject imports, declining import prices, underselling, and sales lost by the domestic industry because of lower import prices. Certain Welded Carbon Steel Pipes and Tubes from the Republic of Korea and Taiwan, Inv. Nos. 731-TA-131, 132, and 138 (Final) USITC Pub. 1519 (April 1984). The one dissenting Commissioner found no causal link between imports and injury to the domestic industry because dumping accounted for only a small part of the underselling margins. Id. at 20-27 (Stern, dissenting).
Two of the three commissioners constituting the Commission majority expressed their views on why margin size did not play a role in the injury determination. Chairman Eckes noted (1) the statute specifically requires the Commission to consider the effect of imports in determining causation, (2) despite an ambiguous legislative history, the statute does not mention margins or suggest that the size of margins is dispositive of the causation issue, and (3) while the value of an antidumping order based on a low margin may be subject to question, it is the function of Commerce, and not the Commission, to determine if margins are de minimis. Id. at 11, n. 46. Commissioner Haggart stated, "there is no suggestion in the statutory definition of material injury, which applies both to countervailing and antidumping duty determinations, that the Commission should base its injury finding on the price effect of the subsidy or the LTFV [Less Than Fair Value] margins." Id. n. 47. Commissioner Haggart also referred to her additional views in Certain Carbon Steel Products from Spain, Inv. Nos. 701-TA-155, 157-160, 162 (Final), USITC Pub. 1331 at 26-36 (December 1982), which contains extensive reasoning why the Commission is required to find a causal nexus between imports and material injury, and not between the margin and material injury.
Plaintiffs contend that the interpretation of the Commission majority would contravene legislative history, violate the international agreement which the statute was intended to implement, and reverse established prior practice.
1. Legislative History
Plaintiffs argue that portions of the legislative history of the 1979 Trade Act demonstrate that Congress intended that the Commission consider margins in making its determinations. The Senate Report states:
The current practice by the ITC with respect to causation will continue under section 735. In determining whether injury is "by reason of" less-than-fair-value imports, the ITC now looks at the effects of such imports on the domestic industry.... It also considers, among other factors, the quantity, nature, and rate of importation of the imports subject to the investigation, and how the effects of the margin of dumping relate to the injury, if any, to the domestic industry. Current ITC practice with respect to which imports will be considered in determining the impact on the U.S. industry is continued under the bill.
S.Rep. No. 249, 96th Cong., 1st Sess. 74 (1979), U.S.Code Cong. & Admin.News 1979, pp. 381, 460. The report further states:
For one industry, an apparently small volume of imports may have a significant impact on the market; for another the same volume might not be significant. Similarly, for one type of product, price may be the key factor in making a decision as to which product to purchase and a small price differential resulting from the amount of the subsidy or the margin of dumping can be decisive; for others, the size of the differential may be of lesser significance.
Id. at 88, U.S.Code Cong. & Admin.News 1979, p. 474. A third reference to margins analysis is provided in the House Report:
The ITC must complete its investigation within 120 days. This time frame provides the ITC with at least 45 days after the final affirmative determination by *360 the Authority to complete its investigation in order to allow it to take into account any differences between the Authority's preliminary and final determination (e.g., in dumping margins).
H.R.Rep. No. 317, 96th Cong. 1st Sess. 68 (1979).
Defendant argues that even if ambiguity required the Court to look beyond the statutory language, legislative history does not show that Congress intended to require the Commission to consider the size of margins. "At most, the legislative history, read in light of the statute, might indicate that the size of the LTFV margin may be an appropriate `other' factor under section 771(7)(B) if the Commission deems that factor to be relevant or probative." Brief for defendant at 22.
The Committee on Pipe and Tube Imports, representing domestic producers of the merchandise, argues as amicus curiae that the size of margins may never be considered, based on the language of the statute and parts of the legislative history which state that the Commission must determine whether an industry in the United States is materially injured by reason of imports. However, neither the statute nor those parts of the legislative history cited by amicus curiae specifically prohibit the use of margins analysis as a factor in determining injury.
Based on the language of the statute and relevant legislative history, the Court holds that the Commission is not barred from examining margins in carrying out its duties under the 1979 Trade Act. But neither must the Commission always examine margins in making determinations under section 1673d(b)(1). Since Congress identified those factors which the Commission must consider, and did not include margins among those factors, Congress did not mandate that margins analysis be used. See Maine Potato Council v. United States, 613 F.Supp. 1237, 9 CIT ___ (1985). At most, the views contained in the Senate and House Reports show that margins may be given weight by the Commission in its determinations.
Since Congress has not required or prohibited margins analysis under the 1979 Trade Act, the Court holds that the statute grants the Commission discretion in determining whether and when it is appropriate to consider margins "among other factors." 19 U.S.C. § 1677(7)(B).
2. International Obligations
Plaintiffs argue that a purpose of the 1979 Trade Act was to implement the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (Antidumping Code or Code), reprinted in H.R.Doc. No. 153, 96th Cong., 1st Sess. pp. 309-337 (1979). According to plaintiffs, article 3, paragraph 4 of the Antidumping Code requires the Commission to consider the size of dumping margins:
It must be demonstrated that the dumped imports are, through the effects of dumping, causing injury within the meaning of this Code. There may be other factors which at the same time are injuring the industry, and the injuries caused by other factors must not be attributed to the dumped imports.
Antidumping Code at 5, reprinted in H.R. Doc. No. 153, 96th Cong., 1st Sess. at 315 (emphasis added) (footnotes omitted).
Defendant says that the Antidumping Code need not be interpreted to require consideration of margins since a footnote clarifying the phrase "through the effects of dumping" refers to Article 3, paragraph 2 of the Code, which does not refer to margins:
With regard to volume of the dumped imports the investigating authorities shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the importing country. With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing country, or whether the effect of such imports is otherwise to depress prices to a significant *361 degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance.
Defendant further contends that if the Code did require that margins be considered, it would conflict with the statute. In that case, the language of the statute would prevail, under section 3(a) of the 1979 Trade Act, 19 U.S.C. § 2504(a), which states:
No provision of any trade agreement approved by the Congress under section 2503(a) of this title, nor the application of any such provision to any person or circumstance, which is in conflict with any statute of the United States shall be given effect under the laws of the United States.
The Court holds that the Code does not unambiguously require that margins be considered as a mandatory factor in the Commission's determinations. The Commission is within its discretion in administering the material injury test so long as its policies are consistent with the terms of the statute. Therefore the Commission's decision not to use margins analysis in this case is not rendered unlawful by the Antidumping Code.
3. Past Commission Practice
Plaintiffs argue that the Commission has used margins analysis in the past and must continue that practice under the rule that "[a]n agency in its deliberations is under an obligation to follow, distinguish, or overrule its own precedent." Local 777, Democratic Union Organizing Comm. v. NLRB, 603 F.2d 862, 872 (D.C.Cir.1978); see M.M. & P. Maritime Advancement, Training, Educ. and Safety Program v. Department of Commerce, 729 F.2d 748, 755 (Fed.Cir.1984); Greater Boston T.V. Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir. 1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
Margins analysis was used in some injury determinations under the Antidumping Act of 1921, Ch. 14, tit. II, 42 Stat. 11 (1921) (previously codified as amended at 19 U.S.C. § 160 et seq. (1976)). Plaintiffs say that the first such determination was in Vital Wheat Gluten from Canada, Inv. No. AA 1921-37, TC Pub. 126 (Apr.1964), where the Commission found no injury to a domestic industry since import prices and quantities would not have been significantly different had the imports been sold at fair value. Plaintiffs argue that in 53 instances under the 1921 Act and several instances under the 1979 Act, margins were considered as a factor in Commission determinations.
According to defendant, the last determination in which a majority of Commissioners used margins analysis was in Anhydrous Sodium Metasilicate from France, Inv. No. 731-TA-25 (Final), USITC Pub. 1118 (December 1980). In Certain Carbon Steel Products from Spain, Inv. Nos. 701-TA-155, 157-160 and 162 (Final), USITC Pub. 1331 at 14 (December 1982), the following reason was given for not using margins analysis:
The statute does not direct the Commission to consider the amount of the net subsidy in determining whether there is material injury. At most, the amount of the net subsidy is a factor which the Commission may consider under section 771(7)(B) of the Act.
It is the perpetuation of this policy which plaintiffs allege to be an unlawful violation of past agency practice.
The Court holds that the reasoning given in the Spanish Steel case does not contravene legislative intent. The Court further holds that the determination challenged by plaintiffs does not violate a consistent agency practice since margins analysis has never been more than a discretionary factor in determining injury.
Plaintiffs nonetheless argue that in view of the Commission's position that margins may carry some weight in some circumstances, see Transcript of Oral Argument at p. 16, the Commission has an obligation to articulate the circumstances when margins will be taken into consideration, and to determine whether those circumstances are present in this case. In other *362 words, plaintiffs would have the Court remand the case to the Commission with instructions that the Commission must discuss the relevance or irrelevance of margins in its determination.
Plaintiffs cite no authority obligating the Commission to expound on discretionary factors not deemed relevant to its determinations. To require the Commission to do so would, in the Court's opinion, elevate margins analysis to the status of a factor which the Commission must consider, contrary to the plain language of the statute.
III. Conclusion
The statute does not require the Commission to address margins in injury determinations. Nor has the Commission established a practice requiring margins analysis in determining injury. The Commission is not obligated by statute or by past practice to discuss why margins analysis was not used in a particular determination.
The action is dismissed. Judgment will be entered accordingly. So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2129723/ | 366 N.E.2d 1160 (1977)
Donald Eugene WOODARD, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 676S162.
Supreme Court of Indiana.
September 6, 1977.
*1162 Keith A. Dilworth, Public Defender, Richmond, for appellant.
Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.
HUNTER, Justice.
The defendant, Donald Eugene Woodard, was charged by way of information with armed robbery. His case was tried before a jury which found him guilty and fixed his punishment of imprisonment at 18 years. The defendant's motion to correct errors was overruled, from which he appeals, raising the following issues:
1. Whether it was error for the prosecution to introduce evidence of another crime in its opening statement and its case-in-chief;
2. Whether there was prosecutorial misconduct during final argument;
3. Whether it was error for the trial court to refuse defendant's instructions on intoxication; and
4. Whether it was error to introduce certain items of physical evidence.
I.
During his opening statement, the prosecutor summarized the evidence he intended to produce. The armed robbery charged in this case occurred when the defendant and three other black men entered a Burger Chef restaurant in Richmond, Indiana, with guns, and took $718 and robbed each of the four persons who were there. Larry Smith's expected testimony is also summarized. Smith's car was taken from him at gunpoint in Dayton, Ohio, and he was locked in the trunk. On the road to Richmond he overheard certain conversations of the defendant relating to a proposed robbery of a Burger Chef. In Richmond, he declined to participate in the robbery and was not released from the trunk until the car was stopped by the Ohio State Police.
Defense counsel sought a mistrial at the conclusion of the prosecutor's statement, and at the time Smith's testimony was offered he objected that evidence or statements concerning the kidnapping were inadmissible.
It is true that evidence tending to show the commission of crimes, separate and distinct from the crime charged, is generally inadmissible to prove the guilt of the accused. But, evidence, which is otherwise relevant to the facts in issue, is not inadmissible despite its tendency to show guilt of another crime, especially if the two crimes are related. Maldonado v. State (1976), Ind., 355 N.E.2d 843.
"It is always proper to show that the instruments used in a crime were owned or possessed by the defendant. Corroborative evidence of how and where he obtained such instruments is clearly proper."
Byrd v. State (1965), 246 Ind. 255, 256, 204 N.E.2d 651, 651. Evidence is also admissible of "happenings near in time and place" which "complete the story of the crime on trial by proving its immediate context." Maldonado, supra; McCormick, Evidence § 190 at 448 (2d ed. 1972).
Here, the evidence of kidnapping placed the testimony of Smith in its proper context and explained the defendant's possession of the car. As was stated by the prosecutor, "[I]t would be very difficult to leave the Jury with the impression that we have a man ... in the trunk of an automobile at night and leave it to them to guess how in the heck he got there."
There was no error in the admission of this evidence.
II.
During final argument, the deputy prosecutor posed three questions for the *1163 jury, which were objected to by defense counsel, as being outside the evidence presented. First, he asked them, "What would have happened if the defendant had gotten back into the Burger Chef Restaurant? ... Why were you [the defendant] armed with a handgun that was loaded and attempted to get back in there?" There was evidence that the defendant attempted to re-enter the restaurant after the robbery. The prosecutor also asked, "What would happen to Larry Smith if Trooper Kirker had not spotted the automobile?" This also was in evidence. Lastly, the prosecutor asked, "[D]o you want people . . under the influence ... of drugs with a loaded handgun in Richmond, Indiana?" The defendant admitted to being under the influence of drugs at the time of the offense. All of these were permissible argument based upon the evidence presented.
The prosecutor during his argument stated that he teaches criminal law. This was objected to as being irrelevant. The objection was overruled but shortly thereafter (one transcript page) the trial judge reversed his ruling and admonished the jury to disregard the statement. This was sufficient to cure the harm, if any, of the prosecutor's statement. DeHority v. State (1938), 215 Ind. 390, 19 N.E.2d 945.
III.
The defendant tendered two instructions on intoxication. One of these instructions was modified by the court to include the use of drugs and was given as modified:
"Voluntary intoxication by the use of alcohol or drugs is no defense or excuse to a crime. It will be presumed, if the case is otherwise made out beyond a reasonable doubt, that the defendant intended the natural consequences of his own act. Mere intoxication does not excuse an offense, but it may produce a state of mind which incapacitates a party from forming or entertaining a specific intent.
"The jury may consider the intoxication of the defendant, if any be shown by the evidence, in determining whether said defendant did commit any crime charged in the information against him, with the necessary intent as herein stated."
The defendant's other instruction was refused:
"One statute which the defendant is charged with violating requires a criminal intent, or mens rea. The defendant cannot possess such requisite intent if he was too intoxicated for a conscious exercise of his will, or in other words, too intoxicated to hold and entertain the necessary criminal intent."
The instruction given correctly stated the law with respect to intoxication. Snipes v. State (1974), 261 Ind. 581, 307 N.E.2d 470. It is not error to refuse an instruction the substance of which is covered by another instruction.
The defendant also maintains that there was a variance between proof, pleadings and instructions, citing Wilson v. State (1975), Ind. App., 330 N.E.2d 356. He points to no specific instance stating only that there was a variance between the acts charged and the instructions given. His argument is general, inspecific and opaque in its relation to these instructions. Concerning the intoxication instruction, we can only say that the effect of intoxication was adequately explained to the jury.
IV.
At trial the prosecution sought to introduce certain items of physical evidence, which had been identified as being taken either from the defendant and his confederates or from the area where their car was stopped by the Ohio State Police. The defendant objected that a complete chain of custody had not been established and that the evidence was tampered with.
The items of evidence offered were a money bag, a check, a deposit ticket, a change purse, a wristwatch, a necklace, a denim hat, two revolvers, an electrical cord, and a black pouch containing two shotgun shells and several revolver shells. The Ohio State Police officer identified each of the *1164 items as having been taken from the defendant, his confederates, their car, or the area where the car was stopped. He testified that he had placed the shotgun shells in the black pouch himself. Upon objection this pouch and the shells were withdrawn by the state. This officer testified that all of the items were placed in an evidence locker at a State Highway Patrol Post. The items were later taken to Richmond and placed in a police locker there until trial.
These items were all hard physical evidence whose characteristics were capable of eyewitness identification, unlike the fungible narcotics involved in Graham v. State (1970), 253 Ind. 525, 255 N.E.2d 652. It is a sufficient foundation for the introduction of such items into evidence that a witness identifies the item and it has relevance to the issues of the case. Owens v. State (1975), 263 Ind. 487, 333 N.E.2d 745.
"If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition."
McCormick, Evidence § 212 at 527 (2d ed. 1972).
Any evidence of tampering or the possibility of tampering goes to the weight of the evidence. It was not error for the trial court to admit these items of evidence.
For all the foregoing reasons the judgment of the trial court should be affirmed.
Judgment affirmed.
GIVAN, C.J., and DeBRULER, PRENTICE and PIVARNIK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2609724/ | 526 P.2d 563 (1974)
STATE of Oregon ex rel. Ernest Thesman and Portland Dance Studios, Inc., an Oregon Corporation, Dba Fred Astaire Dance Studio, Plaintiffs,
v.
The Honorable Patrick E. DOOLEY, Presiding Judge of the Circuit Court of the State of Oregon for the County of Multnomah, Defendant, and Elfreide Schweizer, Intervenor.
Supreme Court of Oregon.
Argued and Submitted September 5, 1974.
Decided September 26, 1974.
*564 Garry Kahn, Portland, argued the cause for intervenor. With him on the briefs were Elden M. Rosenthal, and Pozzi, Wilson & Atchison, Portland.
Walter J. Cosgrave, Portland, argued the cause for plaintiffs. With him on the brief were Austin W. Crowe, Jr., and Cosgrave & Kester, Portland.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON[*] and SLOPER, JJ.
HOWELL, Justice.
This is an original proceeding in mandamus to compel the defendant, Patrick E. Dooley, a circuit judge of Multnomah County, to vacate or modify certain orders allowing pertrial discovery.
The plaintiffs are the defendants in an action filed by the intervenor, Elfreide Schweizer, against Portland Dance Studios, Inc., and its president and principal shareholder, Ernest Thesman. The complaint alleges fraud and misrepresentation concerning certain dancing lessons sold to the intervenor by Portland Dance Studios. The complaint seeks general damages and punitive damages.
The intervenor Schweizer's complaint was filed in December, 1973. On January 28, 1974, her attorney took the deposition of Ernest Thesman, president of Portland Dance Studios. On advice of his attorney, Thesman refused to answer questions relating to his financial condition and that of Portland Dance Studios. The intervenor submitted a motion to the trial court to require Thesman to answer the questions, and on March 12, 1974, the court entered an order directing Thesman to answer questions "concerning the present assets of the Portland Dance Studio, Inc., the personal assets and income of Ernest Thesman, * * *." At the same time the trial court also entered an order requiring Thesman to produce his income tax records and the tax records and balance sheets of Portland Dance Studios.
The issue presented to the court is whether, in an action for fraud and deceit where the complaint alleges the defendant acted willfully and maliciously and requests punitive damages, the plaintiff is entitled to pretrial discovery of defendant's financial worth including the defendant's income tax records and balance sheets.
As a preliminary matter the plaintiffs herein contend that there is no statutory authority for a motion to require a deponent to answer certain questions.
Our statute ORS 45.010 states that a deposition is "testimony" of a witness. ORS 44.190 establishes the procedure when a witness refuses to cooperate in the taking of testimony:
"Disobedience to a subpena, or a refusal to be sworn or answer as a witness or subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer before whom he is required to attend or the refusal *565 takes place, and if the witness is a party, his complaint, answer or reply may be stricken."
When counsel are taking the deposition of a party and disagree whether the deponent is required to answer a question, we know it is a common practice for counsel to orally request the trial court to decide whether or not the witness should answer. Under ORS 44.190 the court may order the deponent to answer. We see no reason why a decision from the trial court could not be requested by a written motion as well as by oral motion. Defendant's contention that the court cannot require the defendant to answer because the motion was in writing is untenable.
Oregon has no specific statute delineating the scope of pretrial discovery. ORS 45.151 sets out the persons from whom a deposition may be taken, and the time and place of the taking. ORS 45.181 provides for protection by the court against abuse or hardship to the deponent. And ORS 45.185 allows a motion to terminate or limit examination. ORS 45.151 and 45.181 are made applicable to orders to inspect documents through ORS 41.615.[1]
The scope of the deposition statute was set out in Armstrong v. Portland Ry. Co., 52 Or. 437, 439-440, 97 P. 715, 716 (1908):
"* * * The statute provided [sic] for the taking of the deposition of a party to an action by the adverse party (B. & C. Comp. § 826) was intended to allow his examination only when the evidence sought is pertinent to the issue, and probably only when material and necessary to make out the case of the party calling him. * * *"
B. & C. Comp. § 826 is substantially the same as ORS 45.151. This case has been interpreted to mean:
"The rule in Oregon is that the only matters that can be sought by discovery are those matters which would be competent, relevant, and material evidence at the trial of the case. * * *" Denecke, Discovery in State and Federal Courts, 31 Or.L.Rev. 197, 213 (1952).[2]
Oregon has not enacted a statute similar to Rule 26(b)(1) of the Federal Rules of Criminal Procedure which is a more liberal rule, in that discovery is not restricted to those matters which would be competent evidence in the trial of the cause.[3] However, *566 we stated in Oregon Orchards v. Ins. Co. of N.A., 239 Or. 192, 397 P.2d 75 (1964), that trial courts should be liberal in ruling on motions for the inspection of nonprivileged documents. In Richardson-Merrell, Inc. v. Main, 240 Or. 533, 537, 402 P.2d 746, 748 (1965), we stated that in adopting the discovery statute it was "the intention of the legislature * * * to bring Oregon procedural law into line with the modern and, in the opinion of many, including this Court, better view of the value of discovery in litigation, as exemplified in particular by the Federal Rules of Civil Procedure."
In a case where punitive damages are alleged, the wealth of the defendant is pertinent to the issue, and material and necessary. "The wealth of defendants is a matter to be considered upon the question of punitive and exemplary damages." Lamb v. Woodry, 154 Or. 30, 47, 58 P.2d 1257, 1264, 105 A.L.R. 914 (1936). Thus it is a proper subject for pretrial discovery. See Annot., 27 A.L.R. 3d 1375 (1969).
The plaintiffs contend that the court should have required a prima facie showing at the time of the discovery that the case was a proper one for punitive damages before requiring Thesman to disclose his financial worth. Where the fraud and misrepresentation were willful or wanton, the action is a proper basis for punitive damages. Otte v. Ron Tonkin Chevrolet Co., 264 Or. 265, 503 P.2d 716 (1973). The intervenor here alleged in her complaint that the fraud was malicious and willful. In a similar situation the court in Hughes v. Groves, 47 F.R.D. 52, 55 (W.D. Mo. 1969) stated:
"* * * He [the defendant] objects that `more than a simple allegation and claim for punitive damages should be necessary to allow plaintiffs to discover information about the defendant's finances and "how much he is to be punished."' The law, however, is well settled and contrary to that position. * * * No prima facie showing in punitive damages is required to justify discovery."
See also State ex rel. Kubatzky v. Holt, 483 S.W.2d 799 (Mo. App. 1972). A contrary conclusion was reached in Gierman v. Toman, 77 N.J. Super. 18, 185 A.2d 241 (1962).
Where the plaintiff's cause of action is for fraud and deceit, we do not believe the plaintiff should be required to call witnesses and offer evidence to prove the fraudulent acts and then prove they were done willfully before he can inquire into the defendant's financial worth in a discovery proceeding. In effect it would be requiring the plaintiff to prove his case twice. We believe that the efficient administration of justice would be satisfied if the plaintiff be allowed to inquire into the defendant's financial status at the time of the deposition without the necessity of first establishing the acts of fraud and that they were done maliciously.
The plaintiffs herein also object to disclosing the tax records and balance sheets. ORS 41.615 provides that the court may order inspection of documents in possession of the other party "upon motion of any party showing good cause therefor * * *." Plaintiffs contend that the intervenor Schweizer failed to show good cause for the production of the documents. Intervenor, in her affidavit in support of her motion to produce, states: "I represent that said records are relevant to the issues of punitive damages, which have been prayed for in this case."
ORS 41.615, requiring a showing of good cause for the production of the requested documents, is identical to a portion of former Rule 34 of the Federal Rules of Civil Procedure. Cases interpreting the federal rule are highly persuasive in interpreting ORS 41.615. Roebling v. Anderson, 103 U.S.App.D.C. 237, 257 F.2d 615, *567 620-621 (1958), summarizes the "good cause" requirement of the former federal rule:
"What constitutes good cause takes into account considerations of practical convenience. Barron & Holtzoff state that `the court should be satisfied that the production of the requested document is necessary to enable a party to prepare his case or that it will facilitate proof or aid in the progress of the trial.' [2 Barron & Holtzoff, Federal Practice and Procedure 497 (Rules ed. 1950).] Moore summarizes it as follows:
"`There should be a showing that the documents sought to be inspected will in some way aid the moving party in the preparation of his case; that the documents are relevant to the issues; that the moving party must establish his claim or defense by documents, most of which are in the adverse party's possession; or that denial of production would unduly prejudice the preparation of the party's case or cause him hardship or injustice.' [4 Moore, Federal Practice 2450 (2d ed. 1950).]"
The documents requested are clearly relevant to the question of the wealth of the plaintiffs, and wealth, as a matter of law, is relevant to the issue of punitive damages. Lamb v. Woodry, supra. The affidavit in this case adequately supports the motion to produce.
Finally, the plaintiffs contend that the tax records are privileged. ORS 41.615 provides that privileged documents may not be discovered. Plaintiffs cite ORS 314.835 in support of their position that copies of income tax returns are privileged. That statute provides generally that officers or employees of the Department of Revenue shall not divulge information on tax returns.
The rule is almost universal that it is discretionary with a court in which a civil action is pending to require one party to produce a copy of a federal or state tax return for inspection by an adverse party in a discovery proceeding. Annot., 70 A.L.R. 2d 240 (1960).
The United States Supreme Court, in a case involving census returns, has said:
"* * * Moreover, although tax returns, like these census reports, are made confidential within the government bureau, Internal Revenue Code of 1954, §§ 6103, 7213(a), copies in the hands of the taxpayer are held subject to discovery." St. Regis Paper Co. v. United States, 368 U.S. 208, 218-219, 82 S. Ct. 289, 295-296, 7 L. Ed. 2d 240 (1961).
We agree with the majority of jurisdictions that hold that statutes such as ORS 314.835 are intended to prevent government officials from disclosing information from a tax return except as provided by the statute. They do not prevent a trial court in a proper case from ordering a party to the litigation to produce copies of his tax returns.
The peremptory writ is disallowed.
NOTES
[*] BRYSON, J., did not participate in the decision of this case.
[1] 41.615: "Court order for inspection of documents and tangible things in possession of other party or permitting entry upon property of other party. (1) Upon motion of any party showing good cause therefor, and upon notice to all other parties, and subject to the provisions of ORS 45.181, the court in which a proceeding is pending may:
"(a) Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by ORS 45.151 and which are in his possession, custody or control; or
"(b) Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying or photographing the property or any designated object or operation thereon within the scope of the examination permitted by ORS 45.151. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.
"* * *."
[2] This restrictive rule has been the subject of criticism. See Knudsen, The Time has Come for a Major Change in Oregon's Jabberwocky Code of Civil Procedure, 8 Will. L.J. 299, 317 (1972). And some have advocated adoption of rules similar to the federal rules in the area of discovery. Goodwin, Code Pleading in Oregon in the Twenty-First Century, 2 Env.L. 145, 149 (1971).
[3] Rule 26(b)(1): "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611980/ | 459 P.2d 148 (1969)
80 N.M. 622
STATE of New Mexico, Plaintiff-Appellee,
v.
John Lavurn McFERRAN, Defendant-Appellant.
No. 301.
Court of Appeals of New Mexico.
August 29, 1969.
Certiorari Denied November 10, 1969.
*150 William C. Marchiondo, Robert C. Hanna, Albuquerque, for defendant-appellant.
James A. Maloney, Atty. Gen., Santa Fe, Ray Shollenbarger, Asst. Atty. Gen., for plaintiff-appellee.
OPINION
WOOD, Judge.
Defendant was convicted of second degree murder in the killing of Rafael Griego. Appealing, he raises 14 issues. These issues concern: (1) loss of evidence; (2) admonitions to the prosecutor; (3) the court's refusal to call two men as witnesses of the court; (4) cross-examination of witnesses as to their misconduct; (5) the basis for questioning as to witness misconduct and claiming the privilege against self-incrimination during such questioning; (6) improper reference to defendant during cross-examination of a witness; (7) refusing defendant's requested instruction concerning defendant's association with two witnesses; (8) questioning defendant concerning prior convictions; (9) failure of the court to instruct the jury to disregard a question to which an objection had been sustained; (10) rebuttal evidence as to deceased's peaceful disposition; (11) conversation between a juror and a witness; (12) evidence of and instruction on malice; (13) the instruction on intent to kill; and, (14) fundamental error.
Defendant, Mapys and Koch were afoot, at night, in Tijeras Canyon east of Albuquerque. Mapys took a bale of hay from the property of Griego. The men spread the hay on the ground across an arroyo from the Griego property and went to sleep. Griego's son discovered the men and called his father. Griego told the men to go to his house. Griego followed the men. Without their knowledge, Griego picked up a rock and put it in his pocket. (See issues 1 and 12). While at the house, a fight occurred. During the fight, defendant shot Griego. The wounds were fatal.
Issue 1. Loss of evidence.
In the fight, Griego struck defendant with the rock. The rock was taken into custody by investigating officers. Subsequently, the rock was lost. Defendant moved to dismiss because of the State's failure to produce the rock. In denying *151 the motion, the court stated: "* * * I feel that with the testimony being available to the defendant as to the existence of the rock, the description of the size of the rock by the deceased's own son, plus the fact that the district attorney is willing to stipulate that the deceased struck the defendant with the rock prior to the shooting * * * that there is no denial of due process."
The State admitted, to the jury, "* * that the defendant, John McFerran, was struck * * * with a rock by Rafael Griego. * * *" This admission did not state that defendant was hit with the rock before the shooting, however, no objection was made to this omission. We do not consider the omission crucial. There is evidence that Griego hit defendant with the rock before defendant shot him. The conflict in the evidence is whether defendant had the gun out and pointed at Griego before Griego hit defendant.
Defendant claims the loss of the rock deprived him of due process. He relies on Trimble v. State, 75 N.M. 183, 402 P.2d 162 (1965). In Trimble the police lost a letter and some tape recordings which had been taken from the defendant. The State's evidence cast doubt on the existence of the letter. It introduced evidence that the tapes contained nothing concerning the case. Production of the letter and tapes would have corroborated, to some extent, defendant's account of the events leading to the shooting. Loss of these items prejudiced the defense and deprived the defendant of due process.
Trimble is not applicable. It is not disputed that Griego struck defendant with the rock. There was testimony concerning its size and shape. The dispute is over whether defendant pulled the gun before or after being hit with the rock. The presence of the rock would have contributed nothing to resolving this dispute. With information available as to the size and shape of the rock, the loss of the rock did not deprive defendant of evidence tending to show his innocence. The loss of the rock did not deprive defendant of due process. Compare State v. Morris, 69 N.M. 244, 365 P.2d 668 (1961).
Issue 2. Admonitions to the prosecutor.
Defendant asserts the prosecutor made improper and prejudicial comments in the presence of the jury and that the court repeatedly admonished the prosecutor because of these comments. He contends these remarks of the prosecutor, of sufficient gravity to result in admonition by the court, deprived him of due process. He relies on five instances. They are:
(a) The prosecutor moved to withdraw certain items from evidence in order to conduct an experiment. Out of the presence of the jury, the prosecutor was cautioned against making that type of motion in the presence of the jury. In the presence of the jury, the prosecutor was advised that the experiment would not be permitted. The jury was told not to consider the prosecutor's remark; further, that the prosecutor's remarks were not evidence.
(b) Mapys was on the witness stand; his attorney, Mr. Tapia, was nearby. Mr. Tapia requested permission to approach the bench. The prosecutor remarked: "Your Honor, anything Mr. Tapia says I want it said loud enough so the Court and everyone can hear." The court immediately ordered the prosecutor's remarks stricken, stating: "* * * This is the last time I am going to caution counsel in this case about making those kinds of statements in this Court."
(c) During cross-examination of the defense witness, Mapys, an objection was sustained to one of the prosecutor's questions (see issue 6). The question went beyond the prosecutor's stated purpose of testing the credibility of the witness. The court told the prosecutor to proceed with testing the witness's credibility.
(d) At another point in the cross-examination of Mapys, a defense objection was sustained. However, contrary to defendant's assertion, there was no admonition to the prosecutor.
*152 (e) The testimony of a rebuttal witness for the State was stricken. The jury was instructed to disregard the testimony. Again, contrary to defendant's assertion, the prosecutor was not admonished.
At the most, there are three instances of prosecutor misconduct. In each instance the prosecutor was admonished. The instructions told the jury that remarks of counsel were not to be considered as evidence (items (a) and (b)). The jury was instructed not to consider what would have been the answers to questions which the court ruled could not be answered (items (c) and (d)). It was instructed not to consider the court's reasons for its rulings on evidence (item (e)). Further, it was instructed that it must follow the law as stated by the court.
If the three instances of prosecutor misconduct tended to prejudice the defendant, that tendency was offset by the admonitions and instructions. We hold the prosecutor's misconduct did not deprive defendant of a fair trial. See State v. Anaya, 79 N.M. 43, 439 P.2d 561 (Ct.App. 1968); compare State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953). In so holding, we do not condone the improper conduct of the prosecutor.
Issue 3. The court's refusal to call Mapys and Koch as witnesses of the court.
Mapys and Koch were eye witnesses to the killing. Defendant asked the court to call them as witnesses of the court. Because the court refused to do so, defendant contends he was denied due process.
City of Portales v. Bell, 72 N.M. 80, 380 P.2d 826 (1963) refers to an instance where it may be proper for the court to call a witness. It states:
"* * * One of the rare cases where the action of the trial judge in calling a witness in a criminal case has been approved was when the prosecuting attorney informed the court that the witness was available, but the prosecutor declined to call him because he could not vouch for his truthfulness and veracity. * * *"
That is not the situation here. Defendant did not question that Mapys and Koch would "* * * tell the truth about the events. * * *" Absent such a rare instance, City of Portales makes it clear that, generally, the trial court should not call a witness in a criminal case, particularly where the case is being tried before a jury. It states:
"* * * in a criminal proceeding, such a practice should rarely be followed, as the court must be extremely careful to preserve an attitude of impartiality. * *
"* * * We would observe, however, that the discretionary power of the court to call a witness is one that should be exercised cautiously and is fraught with great danger which might improperly influence a jury if it were present. * *"
In following the admonitions of City of Portales, the trial court did not deprive defendant of due process.
Issue 4. Cross-examination of Mapys and Koch as to misconduct.
Defendant's request that the court call Mapys and Koch as witnesses of the court included a request that both the State and the defense be allowed to cross-examine, but that no cross-examination be allowed concerning prior convictions or misconduct. Defendant contends the State's cross-examination of Mapys and Koch, as to their misconduct, was so prejudicial that it should not have been permitted.
Section 20-2-4, N.M.S.A. 1953 provides that the bad moral character of a witness may be shown for the purpose of attacking his credibility. Martinez v. Avila, 76 N.M. 372, 415 P.2d 59 (1966) and cases therein cited. Where the witness is the defendant: "* * * The trial court * * * should limit the cross-examination where its legitimate probative value on the credibility of the accused as a witness seems obviously outweighed by its illegitimate tendency, effect and often purpose, to prejudice him as a defendant." State v. Holden, 45 N.M. 147, 113 P.2d 171 (1941). See State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); State v. Waller, 80 N.M. 380, 456 P.2d 213 *153 (Ct.App. 1969); State v. Coca, 80 N.M. 95, 451 P.2d 999 (Ct.App. 1969).
This issue, however, is not concerned with the defendant as a witness. Here we are concerned with the asserted prejudicial effect upon a defendant by a cross-examination of non-defendant witnesses as to their misconduct. We assume, but do not decide, that in this situation the same rule applies that the legitimate probative value of such questioning on the credibility of the witness must be weighed against a tendency of such questioning to prejudice the defendant.
Applying this assumed rule, the trial court did not err in permitting the cross-examination as to misconduct. Except for one instance, discussed in issue 6, none of the questions involved the defendant. Credibility was crucial in this case; the defense version of events differed materially from the State's version. In this situation, the trial court did not err in ruling that the right afforded by § 20-2-4, supra, should not be limited. Our view is expressed in State v. Holden, supra. It states:
"* * * [T]he primary responsibility is that of the trial judge whose discretion in such matters is not to be lightly disturbed, even though we may feel that as trial judges our own discretions might have been moved oppositely. This is not the test. Rather it is whether the trial judge's action seems obviously erroneous, arbitrary and unwarranted. We are unable to say as much of his exercise of discretion here reviewed."
Issue 5. The basis for questioning as to witness misconduct and claiming the privilege against self-incrimination during such questioning.
Defendant claims the prosecutor deprived defendant of due process in questioning Mapys and Koch as to their misconduct. This issue has two parts.
The first part is concerned with the basis for the questions as to misconduct. The prosecutor had a basis for asking the questions; the questions were derived from information contained in the written statement of Mapys. Compare State v. Garcia, 80 N.M. 247, 453 P.2d 767 (Ct.App. 1969). Defendant contends he was denied due process by the questioning because Mapys gave the statement after being interrogated by law enforcement officers. Defendant claims the statement was "illegally obtained." He makes no showing, in this appeal, in support of this claim. Further, we find nothing in the record indicating this issue that Mapys' statement was obtained improperly was ever presented to the trial court. See State v. Baca 80 N.M. 488, 458 P.2d 92 (Ct.App. 1969).
The second part is concerned with the witnesses' responses to questions as to their misconduct. They refused to answer such questions, instead, they invoked their privilege against self-incrimination. The issue, here, does not involve a loss of the right of cross-examination. See State v. Rogers, 80 N.M. 230, 453 P.2d 593 (Ct.App. 1969). Nor does it involve the questioning of a witness as to why he invoked his constitutional privilege. See State v. Hovey, 80 N.M. 373, 456 P.2d 206 (Ct.App. 1969). Defendant contends the prosecutor knew Mapys and Koch would invoke their constitutional privilege when questioned about misconduct. Defendant asserts questioning in this circumstance denied him due process.
We assume the prosecutor knew that Mapys and Koch would invoke their constitutional privilege when questioned as to their misconduct. We also assume the repeated refusal to answer on constitutional grounds as effectively destroyed their credibility as admissions would have done. But what were the other circumstances involved in such questioning? Defendant called Mapys and Koch as witnesses. Their testimony was favorable to the defense. As a general rule, a party calling a witness vouches for the credibility of the witness. Romero v. Turnell, 68 N.M. 362, 362 P.2d 515 (1961). Here, defendant had declined to question the truthfulness of Mapys and Koch. See issue 3.
*154 On one hand we have the State proceeding under § 20-2-4, supra, knowing its questions would not be answered; knowing the privilege against self-incrimination would be invoked. On the other hand we have the defense obtaining the benefit of the witnesses' testimony yet attempting to prohibit any attack on their credibility on the basis of their misconduct.
In such circumstances, our view is the same as expressed in issue 4. The trial court was required to consider whether the legitimate effect of such questioning the attack on credibility was outweighed by prejudice to the defendant. So viewed, the prosecutor's questioning was not improper. Only one of the questions as to misconduct pertained to the defendant. See issue 6. If that one question had a tendency to prejudice the defendant, its effect was cured. The court informed the jury that Mapys and Koch had refused to answer questions upon the advice of their own attorneys; that this advice did not come from defendant's counsel. The jury was instructed not to draw any inference as to the guilt or innocence of the defendant from the fact that witnesses had refused to testify but had claimed their constitutional privilege. Compare State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969).
Issue 6. Improper reference to defendant during cross-examination of Mapys.
The record shows:
"Q Did the defendants, McFerran and Mr. Koch, ride to [sic] you to Albuquerque in a 1965 white Oldsmobile with Texas license plates?
"MR. MARCHIONDO: To which we object, if the Court please.
"THE COURT: Sustained.
"MR. MARCHIONDO: We ask that the jury be instructed to disregard the question.
"THE COURT: The jury will be instructed to disregard the question just asked and not to consider it in arriving at any verdict in this case."
Defendant asserts "* * * that because of the conduct of these two witnesses and their taking the Fifth Amendment * * *" the jury was in the position of inferring that defendant was "* * * part and parcel * * *" of the conduct of Mapys and Koch. Defendant claims the above quoted question was a deliberate attempt on the part of the State to have the jury draw such an inference.
The wording of the question indicates the prosecutor was attempting to tie defendant to Mapys' misconduct. We assume the question was improper. Since it was not answered, the issue is whether the asking of the question was prejudicial to defendant.
There are instances where the asking of a question is so prejudicial that an admonition to the jury to disregard the question is insufficient to cure the prejudicial effect. State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966). Generally, however, when the question is not answered and the jury is admonished to disregard the question, any prejudicial effect is cured. State v. Anaya, supra; see State v. Pace, supra; State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967).
Here, we cannot say that the question, in itself, was prejudicial. Defendant testified that he hitch-hiked a ride to Albuquerque with Mapys and Koch in the white Oldsmobile. The question to Mapys was directed to the same ride.
But if prejudicial, the question was such that its effect could be disregarded by the jury. The trial court not only gave the admonition appearing in the quotation, it instructed the jury not to draw any inference of defendant's guilt from his association with Mapys and Koch. If the question was prejudicial, the prejudicial effect was cured by the admonition and instruction. State v. Ferguson, supra; State v. Anaya, supra.
Issue 7. Refusing defendant's requested instruction concerning defendant's association with Mapys and Koch.
*155 The trial court gave the following instruction:
"You are instructed that the defendant's association with the witnesses Koch and Mapys and the fact that charges against the witnesses Koch and Mapys have been dismissed is not evidence of the guilt of the defendant McFerran and you are not to draw from such facts any inference to the defendant's guilt of the crime charged."
Every element of defendant's requested instruction was covered in the instruction given by the court. It was not error to refuse the requested instruction. Apodaca v. Miller, 79 N.M. 160, 441 P.2d 200 (1968).
Issue 8. Questioning defendant concerning prior convictions.
On cross-examination, defendant admitted that he had been convicted of "robbery by assault" and in the same proceeding had been convicted of "assault to murder." These convictions occurred in 1955. Defendant's trial was in 1967. Defendant contends the questioning as to prior convictions was prejudicial because the 1955 convictions were "* * * too remote to have any probative value. * * *"
Section 20-2-3, N.M.S.A. 1953 permits questions as to prior convictions. State v. Williams, supra. The statute does not limit this questioning to convictions within a specified time prior to when the question is asked.
The issue is whether the legitimate probative value of such questioning is outweighed by the tendency of the questioning to prejudice the defendant. The trial court ruled the question could be asked in spite of defendant's claim of prejudice. This discretionary ruling is not to be reversed unless "* * * obviously erroneous, arbitrary and unwarranted. * * *" State v. Holden, supra. The ruling in this case is not in that category. Compare State v. Coca, supra.
In addition, the trial court gave a limiting instruction. The jury was told the prior conviction was not to be considered as evidence of defendant's guilt; that the purpose of this evidence as to a prior conviction pertained solely to defendant's credibility. Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967), rehearing denied 386 U.S. 969, 87 S. Ct. 1015, 18 L. Ed. 2d 125 (1967) states:
"* * * The defendants' interests are protected by limiting instructions, * * and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence. * * *"
Issue 9. The court's failure to instruct the jury to disregard a question to which an objection had been sustained.
On cross-examination, defendant was asked if the gun was ever out of his possession from the time he left the Griego home "* * * until you dropped it on the mesa at Sandia Base?" Defendant objected. The prosecutor, rephrasing the question, asked defendant if he dropped the gun when he saw the military police. Defendant objected. After a conference at the bench the court sustained the objection.
Defendant then asked the court to instruct the jury to disregard the questions. The court commented: "They weren't answered, they certainly can't base their verdict on questions asked by counsel."
Defendant claims the court erred in failing to instruct the jury to disregard the questions. We disagree. The court's comment, in the presence of the jury, was, in effect, an admonition. Further, the instructions told the jury they were to determine the facts from the evidence, that the evidence consisted of the testimony of the witnesses and the exhibits. The jury was told not to consider what might have been the answers to questions which the court ruled could not be answered.
If an admonition to the jury was required, the court's comment about the specific question, and its instruction, was sufficient.
Issue 10. Rebuttal evidence as to the peaceful disposition of Griego.
*156 On rebuttal, two witnesses testified that Griego had a good reputation in his community for "peacefulness and quietude". Defendant contends such evidence is inadmissible until the defense has introduced evidence of the bad reputation of the deceased. Evidence of bad reputation is not required. State v. Brock, 56 N.M. 338, 244 P.2d 131, 34 A.L.R. 2d 447 (1952). State v. Pace, supra, states:
"* * * although not admissible in the first instance, when defendant in his defense undertook to question decedent's character in any respect, the State on rebuttal could then offer proof of reputation that would cast doubt that decedent would have acted in the manner claimed. * * *
"The rule has been applied where a defendant claims self-defense and asserts decedent acted violently toward him, thus opening the door to proof of reputation of the deceased, as to peace and quietude. * * *"
Here defendant claimed self-defense and introduced testimony that Griego acted violently toward him. This opened the door to the rebuttal testimony on Griego's reputation as to "peacefulness and quietude."
Issue 11. Conversation between a juror and a witness.
During a noon recess, in the hallway outside the courtroom, a juror initiated a conversation with a witness. Such an unauthorized communication was presumptively prejudicial. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App. 1967).
Here, however, the presumption of prejudice was overcome. The trial court took testimony concerning the incident. The juror had told the witness that when he testified he was to "* * * talk up so everybody can hear you * * *" and indicated that if he did speak up "* * * we'll stand up and cheer for you." The case was not discussed. Nothing was said which reflected on the guilt or innocence of defendant or in any way indicated any prejudice against the defendant.
The court informed the jury that the conversation had been brought to its attention and told the jurors that if they couldn't hear to raise their hand and the court would see to it that the witness speaks loud enough to hear.
The court did not err in denying the motion for a mistrial because this conversation took place. See State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App. 1969); State v. Gutierrez, supra; compare State v. Sanchez, 79 N.M. 701, 448 P.2d 807 (Ct. App. 1968).
Issue 12. Malice evidence and instructions.
Malice is required for a killing to be murder. Section 40A-2-1, N.M.S.A. 1953 (Repl. Vol. 6). "The malice necessary to sustain a conviction of murder in the second degree may be implied. * * *" State v. Ochoa, 61 N.M. 225, 297 P.2d 1053 (1956).
Defendant contends the trial court should have sustained his motions for a dismissal of the second degree murder charge. He asserts there is no evidence of malice and therefore the trial court erred in instructing the jury concerning malice. He contends that if it was proper to instruct on malice, a portion of the instruction on the subject is an incorrect statement of law.
The instruction told the jury that "* * [m]alice shall be implied when no adequate provocation exists for the killing, * * *" Defendant does not contend this portion of the instruction improperly states the law. See § 40A-2-2(B), N.M.S.A. 1953 (Repl. Vol. 6). The claimed incorrect portion of the instruction states: "You may imply malice in this case if you find beyond a reasonable doubt that the killing was perpetrated by means of a deadly weapon. * * *" Defendant's objection to this language is without merit. State v. Gilbert, 37 N.M. 435, 24 P.2d 280 (1933) states:
"* * * it is within the province of the jury to imply malice in a case where a killing with a deadly weapon has been established. * * *"
But, says defendant, there is no evidence of malice and thus the jury should not have been *157 instructed as to either of the bases for implying malice no adequate provocation and killing by means of a deadly weapon. This contention relies on State v. Kuykendall, 37 N.M. 135, 19 P.2d 744 (1933). There, a second degree murder conviction was reversed on the basis the defendant killed under the provocation of an attempt to illegally arrest him. In such a situation the killing is in the heat of passion, and being without malice, is manslaughter. This rule is no more than the application of our statutory definition of voluntary manslaughter to special facts. See § 40A-2-3 (A), N.M.S.A. 1953 (Repl. Vol. 6).
Under State v. Kuykendall, supra, if defendant killed Griego under the provocation of an attempted illegal arrest, the killing would be manslaughter. In support of this view, defendant relies on the following evidence, most of which was testified to by defendant, Mapys and Koch.
Griego had told the men to go to the house. On the way to the house, Griego was overheard telling his son to call the police. The three men entered the house but almost immediately started to leave because they didn't want to go to jail over a bale of hay. When defendant started to leave, Griego grabbed him and told him he wasn't going anywhere, that he was to wait for "the law". Griego then took the rock from his pocket, and using it as a bludgeon, hit defendant on the head, knocking him to a squatting position. Defendant then drew the gun. Griego was warned to leave defendant alone. Griego continued to attack with the rock. The fatal shots were fired in the ensuing struggle.
Defendant says this evidence shows that Griego was attempting an illegal arrest (either when he required the men to go to the house or when he attempted to prevent defendant from leaving). Defendant asserts this evidence requires us to hold that defendant killed under the provocation of the attempted illegal arrest. We disagree.
Kuykendall reviewed the record to determine whether the evidence showed the killing was done under the heat of passion or with malice. Because there was no evidence that the killing was with malice, the killing was manslaughter. Kuykendall is not applicable here because there is evidence from which the jury could infer an absence of provocation. That being true, malice could be implied from the absence of provocation or from the undisputed fact that the killing was with a deadly weapon.
Mrs. Griego's testimony supports the inference that the killing was without provocation. She testified that when the three men entered the house, followed by her husband, Griego told her to make some coffee. "* * * I was going to get it, [the coffee pot] and then I turned back and I saw the middle man point the gun to my husband." She identified defendant as the man with the gun. She was facing the three men when she saw the gun. The three men were seven feet from her husband. She heard no conversation either between the men and her husband or between the three men. She did not see her husband strike any of the men. When she saw the man pointing the gun, she ran outside.
Did Griego initiate the fracas? Did defendant pull the gun after being struck or did he point the gun at Griego before any blow was struck? Mrs. Griego's testimony permits the inference that defendant provoked the fight by pulling the gun. Her testimony, if believed, is a basis for implying malice.
Defendant claims Mrs. Griego's testimony is not worthy of belief, and therefore not substantial. He points to confusion, and possibly some contradiction, in her testimony. He also relies on her admission that she felt vindictive toward the three men. Her credibility, and the weight to be given her testimony, was for the jury to decide. State v. Torres, 78 N.M. 597, 435 P.2d 216 (Ct.App. 1967). It is not for the reviewing court to make that determination. State v. Fagan, 78 N.M. 618, 435 P.2d 771 (Ct.App. 1967).
There being evidence from which malice could be implied, the trial court did not err in submitting the issue of second *158 degree murder to the jury and did not err in instructing the jury as to the basis on which they could imply malice.
Issue 13. Instruction intent to kill.
The instruction on malice told the jury they could imply malice if the killing was with a deadly weapon. "Deadly weapon" was then defined.
The instruction on malice was followed by an instruction on intent to kill. The jury was told an intent to kill is an essential element of homicide and that such an intent must be proved before defendant could be convicted of second degree murder. The instruction then states:
"In determining whether there was an intent to kill, it is proper for you to consider whether a weapon was used in the killing, and if a weapon was used the character of such weapon, and the part of the body upon which the wound was inflicted."
Defendant contends that the above instruction, following immediately after the instruction permitting malice to be implied from a killing with a deadly weapon and defining that term, gives a misleading impression. He contends the two instructions emphasize the idea "* * * that the presence of a weapon in connection with the homicide is sufficient in and of itself to establish the commission of a crime. * * *"
To achieve such an impression one would have to ignore the instructions of the court which defined the elements to be proved in order to establish second degree murder, the definition of all the terms used, the instructions on reasonable doubt and self-defense. Specifically, defendant emphasizes a portion of two instructions and ignores all the others.
Instructions are to be considered as a whole. Roybal v. Lewis, 79 N.M. 227, 441 P.2d 756 (1968). The jury was instructed to "* * * consider these instructions as a whole, not picking out one instruction or parts thereof and disregarding others." There is nothing to indicate that the jury failed to comply with this instruction or was in any way misled.
Defendant also asserts that as worded, the instruction permits the jury to "* * * infer intent to kill merely because a weapon was used in the killing." He contends this instruction is incomplete in that it fails to tell the jury they "* * * must consider all other facts and circumstances, * * *"
We agree that the instruction on intent to kill did not tell the jury they must consider all the facts and circumstances in determining whether defendant had such an intent. Each instruction, however, need not contain within its limits all the elements to be considered. The instructions are sufficient if, considered as a whole, they fairly present the issues and the applicable law. Roybal v. Lewis, supra.
The instructions as a whole clearly told the jury to consider the facts and circumstances of the case in deciding the issues presented to them. Considered as a whole, the jury was not told that intent to kill was to be determined solely on the basis that defendant used a gun in the killing. We do not need to review each of the instructions. One example suffices. One of the self-defense instructions told the jury if "* * * it reasonably appeared to the defendant, * * * situated as he then was, and that he honestly believed that he was in imminent danger of losing his life, or receiving great bodily injury, and that he fired the shots to protect himself from the threatened danger, then the shooting would be justifiable. * * *" The failure to refer to "all the facts and circumstances" in the instruction on intent to kill was not error.
Issue 14. Fundamental error.
Defendant contends the "combined effect" of the various errors asserted, and previously discussed in this opinion, amount to fundamental error. We disagree. There is no basis for the doctrine of fundamental error unless the innocence of the defendant appears indisputable or the question of defendant's guilt is so doubtful that it would *159 shock the conscience to permit the conviction to stand. State v. Torres, supra. That is not the situation in this case.
The judgment and sentence are affirmed.
It is so ordered.
SPIESS, C.J., and OMAN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611981/ | 459 P.2d 448 (1969)
Lorance Omer Victor ENDSLEY, Appellant,
v.
Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent.
Court of Appeals of Oregon.
Argued and Submitted July 8, 1969.
Decided October 3, 1969.
*449 J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause and filed the brief for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
David H. Blunt, Salem, argued the cause for respondent. On the brief were Helen B. Kalil, Asst. Atty. Gen., and Robert Y. Thornton, Atty. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY, FOLEY, FORT and BRANCHFIELD, JJ.
BRANCHFIELD, Judge.
In 1950 the petitioner pleaded guilty to the crime of second degree murder. This is a proceeding for post-conviction relief, wherein he contends that his confession and plea of guilty were not voluntarily made. The post-conviction court held a hearing and denied the petition. Petitioner claims error in the court's findings of voluntariness.
On August 15, 1950, petitioner was taken into custody by two Multnomah County deputy sheriffs. Upon his arrival at the Multnomah County Courthouse he was immediately interrogated about the killing of one Howard Kingsland. The questioning continued until late afternoon of August 17, with the petitioner being given time out to sleep, to eat meals, and to consult with a Catholic priest. Several persons, perhaps as many as twelve, took part in the interrogation. The first time petitioner saw an attorney was on August 17, after he had confessed to the killing.
The trial court in the instant case was faced with direct conflicts of testimony. Petitioner claims that during the course of his interrogation he asked Howard Kelly, Captain of the Detective Division of the Multnomah County Sheriff's Department, for an attorney and for a doctor. He said he was hit on the head and kidneys four or five times by Officer Kelly's bare hand. Kelly testified, and denied that any request for a doctor or for an attorney was made to him. He also denied striking the petitioner. There were no bruises or other marks on Endsley's head or body. When he was taken to a doctor, he did not complain that he had been struck. The witnesses agree that petitioner asked Kelly for permission to go see a priest, and Kelly arranged for him to do so.
Petitioner testified that he told all three of his court-appointed attorneys that he was slapped around while being interrogated, that he was denied an attorney and that he was denied a doctor until after he confessed. He further testified that all three attorneys, his mother and the priest advised him to enter a plea of guilty to a charge of second degree murder.
Although petitioner claims that Officer Kelly urged him to enter a plea of guilty, he denied that he pleaded guilty because the officer told him to. He further testified that his guilty plea was not based upon his attorney's advice but upon his mother's advice. He said that he pleaded guilty to second degree murder because he was afraid of the gas chamber if convicted of first degree murder. His last attorney indicated to him that a plea of guilty to a charge of second degree murder would be a compromise plea.
Petitioner here first consulted with an attorney on August 17, 1950. That attorney was later appointed to represent him. He was indicted on the 29th day of September. *450 He was arraigned on October 3. He appeared in court with his two court-appointed attorneys on October 13. At that time he entered a plea of not guilty of the crime of first degree murder. On November 16 his two court-appointed attorneys resigned. His third attorney was appointed on November 24. That attorney saw petitioner almost daily. On December 5, 1950, petitioner, accompanied by his attorney, appeared in court and entered a plea of guilty to the charge of second degree murder. No challenge was made to the competence of counsel, and the post-conviction court made a finding that counsel was competent.
Petitioner first contested the validity of his conviction in 1956, when he filed a petition for a Writ of Error Coram Nobis in the circuit court for Multnomah County. The court denied the writ, and on appeal the Oregon Supreme Court held that an order denying a petition for a Writ of Error Coram Nobis was not an appealable order. State v. Endsley, 214 Or. 537, 331 P.2d 338 (1958). In July 1966, Endsley filed a petition for post-conviction relief in the circuit court for Marion County. In that petition he contended that his confession was coerced and that he did not voluntarily and understandingly enter his plea. He stipulated to the dismissal of the petition without prejudice because the Public Defender informed him that the Oregon Supreme Court's decision in Richardson v. Williard, 241 Or. 376, 406 P.2d 156 (1965), precluded any possibility that he would obtain relief in post-conviction proceedings. In December 1966, Endsley filed a Petition for Habeas Corpus in the United States District Court for the District of Oregon. That court ruled that Richardson did not prevent consideration of his claim, and that he must pursue his remedies under state law before seeking relief in the federal court. In this proceeding, for the first time, petitioner's claim of coercion is presented in a manner permitting its consideration upon the merits.
Richardson v. Williard, supra, involved a claim by Richardson that he had failed to appeal his conviction, based upon a guilty plea, because he was ignorant of his right to appeal. At page 378, 406 P.2d at page 158 the court said:
"* * * Whether or not defendant knew the confession was admissible was irrelevant because the plea of guilty with the advice of counsel was a judicial admission of all the material allegations of the indictment in a most indisputable form * * *."
We agree with the United States District Court that Richardson does not preclude relief in every case, but we are convinced that this defendant has not made a case requiring that he be set free.
The post-conviction court resolved the conflicting evidence gainst Endsley, and found affirmatively that he failed to prove his confession was in fact coerced, and further found that petitioner's plea of guilty was freely and voluntarily entered and was not the result of nor tainted by the prior confession. We are not authorized to retry disputed questions of fact in post-conviction cases where there is evidence to support the trial court's findings. In Alcorn v. Gladden, 237 Or. 106, 111, 390 P.2d 625 (1965), the Oregon Supreme Court said,
"* * * These findings of the trial court on the issues of fact are conclusive. ORS 138.650 provides that the scope of our review in post-conviction proceedings is `the same as that provided by law for appeals in criminal actions.' ORS 138.220 provides that in criminal actions `the judgment or order appealed from can be reviewed only as to questions of law appearing upon the record' * * *."
Boykin v. Alabama (June 2, 1969), 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, was decided after briefs were filed herein, but was discussed in the oral arguments. We do not interpret that case as requiring a reversal here. Boykin was indicted on *451 five counts of common law robbery. Counsel was appointed by the court, and three days later guilty pleas were entered in all five cases. A jury was later empanelled to hear evidence and assess penalties. Boykin was sentenced to death on each of the five charges. The lack of any record showing that the trial judge inquired as to whether the defendant clearly understood the options available to him, coupled with the cursory cross-examination conducted by his counsel at the sentencing trial, led the Supreme Court to reverse the convictions. Boykin is unlike the present case, which contains affirmative evidence that Endsley and his attorneys had discussed the case extensively, and that Endsley understood the consequences of either entering a plea of guilty to second degree murder or going to trial on a charge of first degree murder.
Boykin illustrates the necessity for a trial court to make careful inquiry into the knowledge and state of mind of an accused person who pleads guilty. The case does not specify precise rules of procedure for state trial courts to follow, but does require that a court ascertain whether the accused is aware of his constitutional rights and whether he knowingly waives those rights. To the extent that this case may be said to require more careful attention to procedures in state courts, it would appear that Boykin is not retroactive. In McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), the court required federal district courts to achieve full compliance with Rule 11 of the Federal Rules of Criminal Procedure.[1] In the McCarthy case a judgment based upon a guilty plea was reversed because the court had not personally addressed the defendant to determine if he understood the nature of the charge against him. At page 1170 the court said,
"* * * First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant's guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination * * *."
In Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16 (1969), the Supreme Court refused to apply McCarthy retroactively. Application of McCarthy to federal courts was limited to cases after April 2, 1969, the date the McCarthy opinion was handed down. The situation in Boykin is analogous to the McCarthy ruling. It is our interpretation of these cases that the United States Supreme Court will not require retrospective application of the holding in Boykin.
There was evidence to support the trial court findings in this case.
The judgment is affirmed.
NOTES
[1] 11.
"Pleas
"A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
"As amended Feb. 28, 1966, eff. July 1, 1966." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611984/ | 459 P.2d 858 (1969)
HALL JONES OIL CORPORATION, Brooks Hall and Oklahoma and Northwestern Co., Plaintiffs in Error,
v.
Anthony CLARO, for himself and for all others similarly situated, Defendants in Error.
No. 41908.
Supreme Court of Oklahoma.
July 22, 1969.
Rehearing Denied October 21, 1969.
Monnet, Hayes, Bullis, Grubb & Thompson, Oklahoma City, William Vassar, Chandler, for plaintiffs in error.
Bert Barefoot, Jr., Edward Moler, and John Claro, Oklahoma City, Richard James, Stroud, for defendants in error.
*860 HODGES, Justice.
Parties will be referred to as they appeared in the trial court. Plaintiffs filed suit in the district court of Lincoln County on behalf of himself and all others similarly situated. Plaintiff is the owner of approximately 26 acres of undivided minerals in the NW/4 of Section 18-T13N-R2E, Lincoln County and the other parties in this class action are the remainder of the mineral owners in the 158.64 acres contained in the NW/4 of Section 18. Defendants are the owners of oil and gas leases on NW/4 of Section 18, and the operator of a gas well known as Kimmel No. 1, that is located on the SW/4 of Section 7, which together with the NW/4 of Section 18 forms a 320 acre gas spacing unit in the lower Skinner formation. Defendants are also the owners of leases and operators of an offset well known as Petchinsky No. 1, located on the E/2 of Section 13-T13N-R1E, which forms an adjacent gas spacing unit.
Plaintiff's action is based upon the tortious breach of an implied covenant of an oil and gas lease to prevent drainage. A second cause of action is alleged for punitive damages for the willful, malicious and fraudulent acts of the defendants in illegally producing oil from the Petchinsky well which drained oil from their land. The case tried to a jury resulted in a verdict for the plaintiffs for actual or compensatory damages in the amount of $29,388.86 and punitive damages in the amount of $25,000.00
Defendants appeal from this jury verdict asserting sixty-six assignments of error which are briefed under thirteen separate propositions. Many of the propositions are directly related to the defendant's argument that plaintiff's cause of action is founded on fraud and misrepresentation, and can be disposed of upon a determination of that issue.
Plaintiff contends that his cause of action is based upon a tortious breach by the defendants of an implied covenant to protect against drainage. Defendants retort that plaintiff's designation of their cause of action "is mere double talk." They argue that regardless of the label, whether as one based upon fraudulent misrepresentation as proposed by the defendants, or based upon a tortious breach of an implied covenant as argued by plaintiff, it is still a cause of action in which plaintiff must prove the tort or fraudulent misrepresentation, and that he relied upon it.
As pointed out in the beginning, the defendants were the lessees of oil and gas leases on lands underlying the minerals of the plaintiffs, and were the operators of the Kimmel No. 1 gas well permitted under a 320 acre gas spacing unit. Based upon this relationship there is a contractual relationship with an implied covenant to protect against drainage. The plaintiff's petition alleges damages against the defendants for an intentional breach of this covenant. The petition stated that the defendants *861 were also the owners and operators of a well known as Petchinsky No. 1, which was located adjacent to their property under a separate gas spacing unit. They allege that this offset well drained oil from their property in violation of the implied covenant, and that this drainage was done deliberately and intentionally by the defendants, and that such acts amounts to a tortious breach of the lease contract. The petition also alleges that when the Petchinsky well was completed the defendants did not notify the Oklahoma Corporation Commission that the well was, in fact, an oil producing well, but instead "fraudulently and intentionally falsified its Completion Report" and reported it as a gas well, and then proceeded to "fictitiously" operate the well for 18 months and produced oil in excess of 125 barrels per day.
Defendants contend that if plaintiff's petition alleges a tort, it is a tort in fraud or misrepresentation. If so, it is a necessary prerequisite for recovery that plaintiff prove that he relied upon the fraud or misrepresentation, citing Jones v. Spencer, 197 Okl. 608, 173 P.2d 745; Allen v. Pendarvis, 60 Okl. 216, 159 P. 1117; Thompson v. Teel (1950), 204 Okl. 105, 227 P.2d 395; Littlefield v. Aiken, 130 Okl. 142, 265 P. 1054, to his detriment.
Defendants further contend that plaintiff knew of the oil production from the Petchinsky well before he purchased his minerals, and because of this knowledge the plaintiff was not mislead by the Completion Report and placed no reliance upon it when he purchased his mineral interest in the adjoining property. The fallacy of this defense is that plaintiff's cause of action is not based upon the intentional falsification of the Completion Report by the defendants, but rather their deliberate and intentional breach of an implied covenant to protect against drainage. The Completion Report submitted to the Corporation Commission is merely evidence to show a tortious conduct by the defendants in breaching their implied covenant against drainage. The fact that defendants attempted to conceal their tortious conduct is of no consequence. The liability would be the same if the intentional breach had been committed openly and in public display. The cause of action is not based upon fraud, misrepresentation or concealment upon which reliance thereon is a prerequisite for liability.
In discussing plaintiff's cause of action a further characterization is necessary. Defendants have also charged that this is not a case in which punitive damages are allowable. While the defendants argued under the proposition above discussed that plaintiff's cause of action sounds in tort for fraud and misrepresentation, they now argue that plaintiff's action is founded upon contract. In Colby v. Daniels, 125 Okl. 202, 257 P. 298, we construed our punitive damage statute and held that in an action for a breach of an obligation arising from contract, exemplary or punitive damages are not recoverable.
Conduct that is merely a breach of contract is, of course, not a tort. Nevertheless, a tort may arise in the course of the performance under a contract so that a breach of the contract may not be the gravamen of the action, but an intentional wrong may be. The contract in such case is the mere incident creating the relation furnishing the occasion for the tort and giving rise to an action ex delicto, especially where the acts constituting the breach are willful, designed, intentional, or malicious. Jackson v. Central Torpedo Co., 117 Okl. 245, 246 P. 426, 46 A.L.R. 338; Independent Torpedo Co. v. Carder, 165 Okl. 87, 25 P.2d 62; Morriss v. Barton, 200 Okl. 4, 190 P.2d 451. "[It] is well established that, where a breach of contract is permeated with tort, the injured person may elect to waive the contract and recover in tort; or, differently stated, although the relation between the parties may have been established by contract, express or implied, if the law imposes certain duties because of the existence of that relation, the contract obligation may be waived and an action in tort maintained for the violation of *862 such imposed duties." Hobbs v. Smith, 27 Okl. 830, 115 P. 347, 34 L.R.A., N.S., 697. The key in the present instance is the infliction of intentional harm resulting in damage by means of an illegal act, without excuse or justification. Here the defendants knowingly and intentionally attempted to subvert and destroy the implied covenant to protect against drainage by the illegal production of oil on adjoining property. Under such circumstances, this conduct amounts to more than a contractual breach of the implied covenant. Such conduct is a tortious violation of their contractual obligations.
Defendants attack the judgment of the trial court in allowing the action to be brought as a class action inasmuch as there are only eleven royalty owners. Title 12 O.S. § 233, states as follows:
"When the question is one of common or general interest of many persons, or when the parties are very numerous and it may be impractical to bring them all before the court, one or more may sue or defend for the benefit of all."
In the case of Young v. West Edmond Hunton Lime Unit, Okl., 275 P.2d 304, this court interpreted the above statute in light of a suit involving royalty owners. In that case we said:
"Herein, there appears to be a complete similarity of the situation of the plaintiffs, royalty owners, and numerous others, owners of royalty interests within the unit. The legal questions raised in this action are of common or general interest to the many owners of royalty interests within the unit, and the character of the relief sought appears to be applicable to all. In these circumstances we hold the case is one falling within the provisions of the statute, supra, authorizing one to sue for the benefit of all."
In a case arising in the Western District of Oklahoma, Judge Bohannon, in applying the provisions of 12 O.S. § 233, to an action of accounting by fifteen named plaintiffs and other lessors similarly situated against common lessee for gas runs produced from certain oil and gas leases, held that the action was properly brought as a class action. Harding v. Cameron, 220 F. Supp. 466 (1963). In the present case we are also involved with lessors similarly situated who have been allowed to file a class action against a common lessee.
While we do not look with favor upon a class action with such a small number of members (eleven) as in the present case, we find no prejudicial error. We are of the opinion that any error of the trial court in allowing a class action was harmless in view of the circumstances present in the case. Here the issues and legal question are common to all, the defenses are the same, and the character of relief is applicable to all members of the class. Also, defendants objected to an attempt of the plaintiff to add party plaintiffs to the action. At the beginning of the trial plaintiff moved to join 5 additional royalty owners as party plaintiffs. Defendants objected, and plaintiff withdrew his motion. Under the facts and circumstances of this case and the failure of the defendants to show any prejudice resulting therefrom, we find no reversible error.
Defendants complain that a number of the instructions given by the court were erroneous. An examination of the instructions given and those refused, demonstrate that the trial court performed its function in giving instructions which covered the law of the case and amply presented the case to the jury.
Defendants complain of the compensatory damages as being excessive in accordance with the evidence and the court's instructions. There is evidence that the Petchinsky No. 1 drained oil from under plaintiff's land and that a prudent operator would have drilled a well on plaintiff's land. Considering this evidence together with the amount of oil illegally produced, we can not say that the jury was not justified in awarding the amount of compensatory damages it did.
*863 The next question to be considered is whether the trial court excluded certain evidence of the defendants improperly. Defendants set out numerous examples of such evidence and offers of proof in their 123 page brief filed herein and it is sufficient for the purposes of this appeal to state that none of the defendants' evidence excluded by the learned trial judge was error of such nature as to require reversal of the judgment.
Defendants further raise the defense that a valid order of the Corporation Commission setting well spacing, prohibits them from drilling on the plaintiff's property to prevent drainage, inasmuch as plaintiff's property, the NW/4 of Section 18, and the SW/4 of Section 7, compose a gas well spacing unit that contains a producing gas well. Defendants assert that even if there had been a proper demand for drilling an offset well, that their experts had advised them that drainage occurred (which they deny), and that a prudent operator would have drilled the well, they still would have been prohibited from drilling such well for the reason that the well spacing as set forth by the Corporation Commission would have barred such drilling. Plaintiff in reply asserts that the defendants are required to seek administrative relief from orders that prohibit them from drilling additional wells to prevent drainage. Oklahoma has not decided this specific question. We feel, however, in view of the conduct of the defendant lessee, that it is not necessary to resolve this question. Here there was a falsification of the Completion Report filed with the Corporation Commission, and the defendants illegally produced more oil than their fair share under conditions that amounted to oppression, fraud or malice. Professor Merrill in Covenants Implied in Oil and Gas Leases, 2d Edition (1940) Section 111, pp. 259 and 260, in referring to fraudulent drainage said:
"* * * no doubt if the lessee owns the fee, or royalty interest, in the adjoining land and operates thereon to draw oil or gas from beneath the leased premises because he will get a larger share, at the same time blocking development on part of others by keeping the lease alive, there is both harsh dealings and sharp practice properly deserving to be called by the hard name of fraud. Similar comment may be made if his purpose is to favor one lessor at the expense of another."
We feel defendants' conduct amounts to harsh dealings and sharp practice properly deserving to be labeled fraudulent drainage.
The Corporation Commission's orders regarding spacing in the lower Skinner formation was in part based or continued on information that the defendants furnished. The defendants falsified and concealed information, as found by the jury. The defendants should not be permitted to benefit from their wrongdoing. Pan American Petroleum Corporation v. Hardy, Tex.Civ.App., 370 S.W.2d 904. Defendants surreptitiously produced more than five times the normal oil allowable for 18 months without informing the Corporation Commission of its productivity. To allow defendants to set up a defense that the rules and regulations of the Corporation Commission prevented them from complying with the request of plaintiff to drill an offset well on their property, and on the other hand themselves violate the rules and regulations of the Commission by knowingly and intentionally falsifying and concealing the true oil production from adjoining land, would be to reward wrongdoing.
Judgment affirmed.
IRWIN, C.J., and WILLIAMS, LAVENDER and McINERNEY, JJ., concur.
BLACKBIRD, J., concurs in part and dissents in part.
DAVISON and JACKSON, JJ., dissent.
DAVISON, Justice (dissenting in part).
I am unable to agree with the majority opinion insofar as it holds that the present case presents proper and legal grounds for the maintenance of a class action.
*864 In the present case there were eleven royalty owners who were proper parties to the action, seven of whom were residents of Oklahoma and the other four were residents of other states whose addresses were either known or easily ascertainable to the sole plaintiff.
The pertinent statute relied on by plaintiff for the maintenance of the suit in a Class Action is 12 Ohio St. 1961, § 233, which provides:
"When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." (Emphasis added.)
The majority opinion relies heavily on the case of Young v. West Edmond Hunton Lime Unit, Okl., 275 P.2d 304. This case, in my opinion, is distinguishable from the present case because in the cited case it was stated that there were several hundred royalty owners in similar situations as the two plaintiffs, Young and his wife.
In the case of State ex rel. Tharel v. Board of County Commissioners of Creek County, 188 Okl. 184, 107 P.2d 542, a case which permitted a class action against many defendants it was stated:
"The statute was intended to cover just such a case as is here presented. There are several hundred, if no several thousand, members of the class. To join them all in one action would mean that the case could probably never be tried, as deaths, absences, and changes of interest would make it impossible to get service on all the parties and the case at issue as to all so it could be tried. To require that separate suits be filed against the members of the class would entail a multiplicity of suits so great as to clog the dockets of the courts of the county for many months and cause needless expense to the county. * * *"
In the case of Campbell v. Webb, 363 Mo. 1192, 258 S.W.2d 595, the court was dealing with twenty persons, who were sought to be represented in a class action. The court stated:
"Upon the record here, we must hold that the parties constituting the class action are not `very numerous' within the meaning of Section 507.070, and that it was not for any other reason impracticable to bring them into court."
In Restatement, Judgments, Sec. 86, p. 416, defines a class action as follows:
"A class action is an illustration of a situation where it is not feasible for all persons whose interests may be affected by an action to be made parties to it. It was invented by equity for situations in which the number of persons having substantially identical interest in the subject matter or litigation is so great that it is impracticable to join all of them as parties, in accordance with the usual rules of procedure, and in which an issue is raised which is common to all of such persons. * * *"
In my opinion the case of Harding v. Cameron, D.C., 220 Federal Supp. 466, cited in the majority opinion, is not decisive of this particular question. In that case fourteen named plaintiffs brought the action for themselves and others similarly situated. The case involved a tort action by the fourteen named plaintiffs and who were royalty owners against the lessee for damages. The opinion relied on the case of Young v. West Edmond Hunton Lime Unit, supra. The opinion is silent as to the number of lessors or as to the impracticability of making all royalty owners parties. The trial court held that the cause was a proper class action maintainable by the plaintiffs. At the end of the opinion it was stated:
"Assuming, arguendo, that this case is not a class action, the rights of the named plaintiffs, and duties of the defendant, are as set forth above."
In my opinion it was not impracticable in the present action to have made the four non-residents of the state parties. It could have been that for some state reason the four non-residents were not desirous of becoming *865 parties to the action. At least they should have been given an opportunity to determine the advisability of their entering the suit.
It is noted however that the seven residents of Oklahoma were present at the trial, either in person or by their respective spouses. On the day of trial they asked to be made parties plaintiff but for fear of error or a continuance being granted their request was withdrawn. Three of these parties testified for themselves and their wives, who were also royalty owners, that they had employed the attorneys who prosecuted the case to represent them.
I am of the view that, under the facts presented, the seven resident royalty owners should be entitled to share in the judgment in the proportion their respective interest bears to the 160 acres involved. I am of the further opinion that the class action was not proper for the four nonresident royalty owners and that they should be left in the position as if the present action had not been filed.
I therefore respectfully dissent in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2615239/ | 347 P.2d 1002 (1959)
66 N.M. 335
EL PASO ELECTRIC CO., a Corporation, Petitioner-Appellee,
v.
Robert MILKMAN, Defendant-Appellant.
No. 6573.
Supreme Court of New Mexico.
December 15, 1959.
J.B. Newell, Las Cruces, for appellant.
J.D. Weir, J.R. Crouch, Las Cruces, for appellee.
MOISE, Justice.
Involved in this case is the single question of whether or not under the provisions of § 22-9-8, N.M.S.A. 1953, a defendant in a condemnation action is entitled to appeal to the district court from the order and confirmation provided for in § 22-9-6, N.M.S.A. 1953, and obtain a trial de novo therein as other civil causes are tried, without first having filed exceptions to the report of commissioners filed pursuant to said § 22-9-6.
The pertinent parts of the two sections in question read as follows:
22-9-6. "Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall forthwith notify * * * of the filing of such report, * * *. The report of such commissioners may be reviewed by the court in which the proceedings are had on written exceptions filed in the clerk's office, by either or any party within thirty (30) days after the time of the filing of such report in the clerk's office; and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown to be made, either by the commissioners already appointed or by three (3) other qualified commissioners to be appointed for that purpose. * * *."
§ 22-9-8. "Within twenty (20) days after the final confirmation of any report of such commissioners, as provided for in section 2103 (22-9-6), any person interested therein may appeal from the said order and confirmation to the district court of the proper *1003 county, by filing a notice with the clerk of said court that an appeal has been so taken, and thereupon the clerk shall docket said cause in the district court and it shall stand for trial in said court as other civil causes are tried and shall be tried de novo, and the parties, unless they shall waive the same, shall be entitled to a trial by jury as in ordinary cases. * * *."
Plaintiff commenced its action by filing a Petition and defendant appeared by attorney at the hearing for appointment of commissioners. Commissioners were appointed and they reported in due time. When the report was filed the clerk immediately mailed copies as required by the statute. More than thirty days having elapsed the commissioners' report was confirmed. Thereupon, defendant filed notice of appeal, which after hearing was dismissed and this appeal followed.
This Court has considered these statutory provisions in the cases of State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937, and State ex rel. City of Albuquerque v. Johnson, 45 N.M. 480, 116 P.2d 1021. Although in the first of these cases there is dictum to the effect that [42 N.M. 405, 79 P.2d 940] "if no exceptions are taken to the commissioners' report within thirty days after the time for filing, it becomes final and in effect a judgment enforceable by execution," the case was one where exceptions had in fact been filed. In the later case wherein exceptions were filed after the passage of thirty days, the court refused to prohibit the trial judge from entering an order confirming the report stating that [45 N.M. 480, 116 P.2d 1023] "a confirmation of the commissioner's report by the court is essential before a judgment can be entered and an execution issued" and that "orderly procedure requires confirmation of the report." In neither of these cases was the question here raised discussed.
We are given some small amount of help in a search for the answer to our problem in the case of State ex rel. Weltmer v. Taylor, supra, in the conclusion and holding that an "appeal" provided for in the statute (§ 22-9-8, N.M.S.A. 1953) is a "continuation and part of the same proceeding" and the judgment for damages "is the final judgment" in a judicial proceeding. In the opinion in this case Justice Brice explains how certain inconsistencies crept into Ch. 97, N.M.S.L. 1905.
Our attention has been directed to the case of State ex rel. Root Levee Dist. of Carroll County v. Root, Kansas City Court of Appeals, Missouri 1949, 219 S.W.2d 298. That was a case in which exceptions were filed more than ten days after service of notice of the filing of the commissioners' report contrary to the requirement of the statute. The court dismissed the exceptions and confirmed the report and on appeal it was held that failure to timely file the exceptions amounted to a waiver and accordingly the condemnation became complete and the proceedings were at an end. To this effect the court cites the earlier cases of Leavenworth Terminal Ry. & Bridge Co. v. Atchison, 137 Mo. 218, 37 S.W. 913, and Rothan v. St. Louis, O.H. & C. Railroad Co., 113 Mo. 132, 20 S.W. 892. It should be noted that although the similarity in these cases to the issue here present is apparent, the facts are different.
We have also considered the Texas cases of Miers v. Housing Authority of City of Dallas, Tex.Civ.App. 1954, 268 S.W.2d 796, and Pearson v. State, Tex. 1958, 315 S.W.2d 935, cited by appellee, but do not believe they are of assistance because of material differences in procedure and jurisdiction as evidenced by the decisions. Likewise, other cases cited by appellee we do not consider in point.
We believe a better rule is the one adopted in the state of Tennessee in the old case of Overton County R. Co. v. Eldridge, 118 Tenn. 79, 98 S.W. 1051, and the more recent case of Pound v. Fowler, 175 Tenn. 220, 133 S.W.2d 486.
Although the statutes being interpreted in these two cases differ from ours in many respects, they provide for an assessment of damages by commissioners (there *1004 called a "jury of inquiry"), the right to file exceptions, a right of either party to appeal and obtain a "trial anew before a jury in the usual way." In the first case above it was argued that having excepted to the jury report, the right to appeal is not lost, the court holding that the "remedies by exception and appeal are concurrent."
In the second case there had likewise been exceptions filed, and the question was one of timely appeal. The court pointed out that the statute should be construed liberally in favor of the right to trial de novo by jury. The cases of State ex rel. v. Oliver, 167 Tenn. 154, 67 S.W.2d 146, and Officer v. East Tennessee Natural Gas Co., 192 Tenn. 184, 239 S.W.2d 999, also support the result here announced.
Although we do not consider the decision in City of Seward v. Gruntorad, 158 Neb. 143, 62 N.W.2d 537, cited by appellee, to be pertinent here because the statutes there being construed were materially different from ours, the following language quoted therein from the case of In re Application of Silberman, 153 Neb. 338, 44 N.W.2d 595, 599, is pertinent:
"In construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent as deduced from the whole will prevail over that of a particular part considered separately.
"Provided always that the interpretation of a statute is reasonable and not in conflict with legislative intent, it is a cardinal rule of construction of statutes that effect must be given, if possible, to the whole statute and every part thereof and it is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. Just as an interpretation which gives effect to the statute will be chosen instead of one which defeats it, so an interpretation which gives effect to the entire language will be selected as against one which does not."
We are of the opinion that there is no reason for straining to arrive at a construction which would deny the appellant the right to jury trial de novo, whereas there are compelling reasons to the contrary.
The statute (§ 22-9-8) gives the right to appeal to any person "interested" at any time "within twenty (20) days after the final confirmation of any report." The statute does not say this right is limited to situations where exceptions had been filed, but grants it in all instances when the order of confirmation has been entered.
Where is the harm in so construing the statute? The appellee is not delayed and may proceed with its improvements (§ 22-9-6). On the other hand, the property owner appellant, by the plain language of the statute, is entitled to a jury trial limited to the issue of the amount of compensation if he appeals within twenty days after confirmation of the commissioners' report. § 22-9-6; also see State ex rel. Deering v. District Court, 54 N.M. 292, 222 P.2d 609. There being no compelling reasons to the contrary, that we should interpret the plain language of the legislature so as to preserve this right would seem to go without saying. Sound legal reasoning supports this conclusion. See George v. Miller & Smith, Inc., 54 N.M. 210, 219 P.2d 285; Scott v. United States, 54 N.M. 34, 213 P.2d 216; Cox v. City of Albuquerque, 53 N.M. 334, 207 P.2d 1017.
We therefore hold that the court erred in denying the appellant an appeal, and accordingly reverse the judgment of the trial court, with instructions to reinstate the case on the docket and grant to appellant a jury trial de novo on the issue of damages, and
It is so ordered.
LUJAN, C.J., and McGHEE, COMPTON and CARMODY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3100656/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00431-CR
Arturo Armijo § From Criminal District Court No. 2
§ of Tarrant County (1224396D)
§ August 1, 2013
v.
§ Opinion by Justice Dauphinot
§ Concurrence by Justice Gabriel
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By _________________________________
Justice Lee Ann Dauphinot | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2600316/ | 170 P.3d 676 (2007)
In re the Marriage of Kathy I. PALMER, Petitioner/Appellee,
v.
Sydney N. PALMER, Respondent/Appellant.
No. 1 CA-CV 06-0674.
Court of Appeals of Arizona, Division 1, Department E.
November 6, 2007.
*678 Doyle-Best, P.C. by John C. Doyle, Scottsdale, Attorneys for Petitioner/Appellee.
Pearlstein Law Offices, P.L.L.C. by Suzan V. Pearlstein, Phoenix, Attorneys for Respondent-Appellant.
OPINION
GEMMILL, Chief Judge.
¶ 1 After the dissolution of a marriage, a person's obligation to pay future maintenance to a former spouse terminates upon the death of either party or upon the remarriage of the party receiving maintenance, unless the decree of dissolution expressly provides to the contrary or the parties have otherwise agreed in writing. Ariz.Rev.Stat. ("A.R.S.") § 25-327(B) (2007). In this appeal we decide whether a decree of dissolution "expressly" provides that the former husband's spousal maintenance obligation will continue beyond the remarriage of the former wife.
¶ 2 Sydney M. Palmer ("Husband") appeals the family court's ruling that his spousal maintenance obligations must continue notwithstanding the remarriage of Kathy I. Palmer ("Wife"). Husband also argues that the court erred by awarding attorneys' fees to Wife without an evidentiary hearing. For the following reasons, we reverse and remand for entry of an order terminating Husband's spousal maintenance obligation and for further proceedings regarding attorneys' fees.
FACTS AND PROCEDURAL BACKGROUND
¶ 3 Husband's marriage to Wife was dissolved on November 9, 2004. According to the decree of dissolution ("Decree"), Husband is obligated to provide spousal maintenance to Wife in the sum of $3,100.00 per month until October 31, 2008. The relevant portion of the Decree provides that:
Commencing this date, and payable on the first (1st) day of each month hereafter, [Husband] shall pay [Wife] as and for spousal maintenance, the sum of Three Thousand One Hundred Dollars ($3,100.00) per month until October 31, 2008. Said term and amount of spousal maintenance is non-modifiable until October 31, 2008, except such shall end upon the death of [Wife].
¶ 4 Wife remarried in March 2005. In September 2005, Husband filed a petition to terminate spousal maintenance based upon Arizona Revised Statute ("A.R.S.") section 25-327(B): "Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated on the death of either party or the remarriage of the party receiving maintenance." In May 2006, while Husband's motion was still pending, the parties submitted a joint pretrial statement that set forth pertinent undisputed facts. On June 7, 2006, the parties appeared before the family court for an evidentiary hearing. The court concluded that there were no factual issues to be determined and that the issue of Husband's continuing obligation for spousal maintenance could be decided as a matter of law. The court heard argument from each party as though cross-motions for summary judgment were pending.
¶ 5 The family court determined that Husband must continue providing spousal maintenance to Wife until October 31, 2008, as required by the Decree, notwithstanding A.R.S. § 25-327(B). The court also awarded attorneys' fees to Wife. After entry of formal judgment, Husband filed motions for new trial that were denied.
¶ 6 We have jurisdiction to consider Husband's appeal pursuant to A.R.S. § 12-2101(B) (2003).
ANALYSIS
¶ 7 We apply a de novo standard when reviewing a trial court's grant of summary judgment. Urias v. PCS Health Sys., Inc., 211 Ariz. 81, 85, ¶ 20, 118 P.3d 29, 33 (App.2005). We also apply a de novo standard regarding the interpretation of statutes and decrees of dissolution. Maycock v. Asilomar Dev., Inc., 207 Ariz. 495, 500, ¶ 24, 88 P.3d 565, 570 (App.2004) (applying de novo standard when reviewing issues of statutory interpretation); Cohen v. Frey, 215 Ariz. 62, 66, ¶ 11, 157 P.3d 482, 486 (App.2007) (applying same standard regarding interpretation *679 of dissolution decree); Danielson v. Evans, 201 Ariz. 401, 406, ¶ 13, 36 P.3d 749, 754 (App.2001) (same). The material facts in this case are undisputed. What remains to be determined is the legal question whether the Decree expressly provides, as required by A.R.S. § 25-327(B), that Husband's obligation to make monthly spousal support payments will continue after Wife's remarriage.
¶ 8 Husband argues that under § 25-327(B) his spousal maintenance obligation ended when Wife remarried because the Decree does not contain the express language required to impose a continuing obligation. That is, the Decree does not expressly state that his obligation to continue paying spousal maintenance survives Wife's remarriage. Wife argues that the Decree should be viewed as a contract and, as such, this court should read the "contract" in light of the parties' intentions. Additionally, Wife argues that because the Decree provides that spousal maintenance is non-modifiable and terminable only upon her death, it does in fact expressly provide that spousal maintenance must continue after Wife's remarriage.
¶ 9 The family court determined that § 25-327(B) did not mandate termination of Husband's payments "because the termination of spousal maintenance was expressly provided in the Decree: `[Said] term and amount of spousal maintenance is non-modifiable until October 31, 2008 except such shall end upon the death of [Wife].'" Thus, the court concluded that the express inclusion in the Decree that Husband's spousal maintenance obligations would terminate upon the death of Wife was tantamount to expressly providing that the remarriage of Wife would not terminate Husband's spousal maintenance obligations. Based on the language of the statute and guidance from our supreme court, we disagree.
¶ 10 The Arizona Supreme Court has considered the meaning of the word "expressly" in § 25-327(B) and has explained that "[t]he word `expressly' is customarily defined as: `directly and distinctly stated; expressed, not merely implied or left to inference.'" In re Estelle's Estate, 122 Ariz. 109, 113, 593 P.2d 663, 667 (1979) (quoting State ex rel. Ashauer v. Hostetter, 344 Mo. 665, 670, 127 S.W.2d 697, 699 (Mo.1939)). Similarly, the New Oxford American Dictionary defines "express" as "definitely stated, not merely implied" and "precisely and specifically identified to the exclusion of anything else." NEW OXFORD AMERICAN DICTIONARY 595 (2d ed.2005). The word "express" is derived from the Latin word expressus which literally means "distinctly presented." Id. Under the plain language of § 25-327(B), therefore, an obligation to continue paying spousal maintenance will be terminated upon the remarriage of the spouse receiving the payments unless the decree distinctly expresses, without the need of implication or inference, that the spousal maintenance will continue notwithstanding remarriage. See also Johnson v. Hispanic Broadcasters of Tucson, Inc., 196 Ariz. 597, 601, ¶ 9, 2 P.3d 687, 691 (App.2000) (similarly construing the word "expressly" in a different statute).
¶ 11 The Decree states that the "term and amount of spousal maintenance is non-modifiable until October 31, 2008 except such shall end upon the death" of Wife. To conclude that such language means that spousal maintenance will continue after Wife's remarriage requires at least one level of inference. One must reason from "non-modifiable" and "except such shall end upon the death of Wife" to the conclusion that spousal maintenance was intended to continue notwithstanding Wife's remarriage.
¶ 12 The inference or reasoning that is required to arrive at this conclusion is precisely that which Wife urges and the family court adopted. Namely, because the Decree specifically mentions the death of Wife as a reason for terminating the spousal maintenance obligation but omits any mention of Wife's remarriage, this is equivalent to an express provision in the Decree that spousal maintenance shall continue despite Wife's remarriage. Such an inference may be entirely reasonable, especially if we were engaging in routine interpretation of the intent of the Decree. But A.R.S. § 25-327(B) mandates a different standardan express provision regarding the effect of remarriagewhich this Decree does not contain.
*680 ¶ 13 "Because even the intentional omission of termination language . . . is not equivalent to an affirmative, unambiguous statement that the parties intended the spousal maintenance obligations to continue, we hold that, when former spouses seek to avoid the application of § 25-327(B), they must make their intention unmistakably clear." Diefenbach v. Holmberg, 200 Ariz. 415, 418, ¶ 8, 26 P.3d 1186, 1189 (App.2001) (emphasis added). Because the Decree does not expressly state that spousal maintenance shall not be terminated upon the remarriage of Wife, we conclude that Husband's obligation to pay spousal maintenance terminated upon Wife's remarriage by operation of law under § 25-327(B). See In re Estelle's Estate, 122 Ariz. at 113, 593 P.2d at 667; Diefenbach, 200 Ariz. at 417-18, ¶¶ 5-8, 26 P.3d at 1188-89.
¶ 14 Several courts from other jurisdictions have reached similar conclusions under similar statutes and decrees. See, e.g., Messer v. Messer, 134 S.W.3d 570, 573 (Ky.2004) ("We conclude that absent a specific statement in the written agreement or in the decree that maintenance will not terminate upon the death of either party or the obligee's remarriage, the occurrence of one of those statutory contingencies terminates the maintenance obligation by operation of law."); Moore v. Jacobsen, 373 Md. 185, 817 A.2d 212, 218 (2003) ("An agreement must mention marriage expressly; other agreements, such as those in this case addressing nonmodification, will not suffice. The parties here did not agree so as to avoid the operation of § 11-108; therefore, alimony terminated upon respondent's remarriage."); Gunderson v. Gunderson, 408 N.W.2d 852, 853 (Minn. 1987) ("[E]vidence of how parties view a maintenance obligation, whether taken from negotiations or a stipulation, is irrelevant to the issue of whether maintenance should continue past remarriage given section 518.64, subdivision 3's requirement that any such provision be positively expressed in the decree."); Reeves v. Reeves, 890 S.W.2d 369, 372 (Mo.App.1994) ("Where the decree and separation agreement are silent with respect to the effect of remarriage on the maintenance obligation, no further inquiry into the intent of the parties concerning maintenance is permitted; the statute controls and the obligation is terminated."); MacNelly v. MacNelly, 17 Va.App. 427, 437 S.E.2d 582, 584 (1993) ("[A]ny attempt to abrogate the effect of the statute requires express language either citing the statute or expressly stating that remarriage does not terminate the obligation."); In re Marriage of Roth, 72 Wash.App. 566, 865 P.2d 43, 46 (1994) ("`[E]xpress provision' means use of the word `remarriage'. Here, neither the dissolution agreement nor any other agreement provides that maintenance is to continue past remarriage; remarriage therefore terminated the obligation."). But see In re Marriage of Hahn, 628 P.2d 175, 176 (Colo.Ct.App. 1981) ("In our view, the quoted language of the separation agreement is such an express provision. Although it does not explicitly provide for continuation or termination of maintenance in the event of remarriage, nevertheless, it indicates that it was the contemplation of the parties that only the wife's death would absolve the husband of liability for payment of maintenance.").
¶ 15 By enacting A.R.S. § 25-327(B), the Arizona legislature established that spousal maintenance will be terminated upon the remarriage of the receiving spouse unless the decree expressly provides otherwise or the parties have agreed in writing to the contrary. A decree lacking express language is not sufficient to prevent termination, nor is an oral agreement between the parties. It is apparent to us that the legislature intended to minimize ambiguity, uncertainty, and accompanying litigation by requiring either express language in the decree or a written agreement between the parties. Our determination that this Decree lacks the requisite language is consistent with this purpose. See Moore, 817 A.2d at 215 ("The public policy set forth in § 11-108 clearly states that alimony does not survive the remarriage of the recipient. To create an exception to that policy, an agreement must be equally clear. We think a bright-line rule requiring an express provision providing that support shall not terminate upon remarriage fosters certainty, resolves ambiguity and reduces litigation."); In re Marriage of Roth, 865 P.2d at 46 ("In the hopes of discouraging dubious *681 interpretation of questionable decretal language, we hold further that the decree must specifically mention remarriage in order to overcome the presumption"); see also Towne Dev. of Chandler, Inc. v.Super. Ct., 173 Ariz. 364, 368, 842 P.2d 1377, 1381 (App.1992) (explaining that Arizona Rule of Civil Procedure 80(d) "serves to relieve the courts from choosing between conflicting recollections of advocates whose interests diverge"); Canyon Contracting Co. v. Tohono O'Odham Hous. Auth., 172 Ariz. 389, 393, 837 P.2d 750, 754 (App.1992) (similarly noting that Rule 80(d) advances the policy of "reliev[ing] the trial court from having to resolve factual disputes as to the existence and terms of an alleged settlement agreement.").
¶ 16 The family court decided that Diefenbach was not applicable in this case, stating that the decree in Diefenbach contained only modification language and not termination language, whereas the Decree here contains both modification and termination provisions. This distinction, however, does not undermine the statutory foundation of Diefenbach: § 25-327(B) requires that, for a spousal maintenance obligation to continue after remarriage, the decree must contain an "express" provision to that effect. Although the decree at issue in Diefenbach differs from the Decree in this appeal, Diefenbach is consistent with and supportive of our decision here.
¶ 17 The Decree states that Husband's obligation to provide spousal maintenance is non-modifiable, but such language does not satisfy the statutory standard of § 25-327(B). The terms "modify" and "terminate" embody two distinct concepts. The word "modify" means to "make partial or minor changes to (something), typically so as to improve it or to make it less extreme." NEW OXFORD AMERICAN DICTIONARY 1090 (2d ed.2005). In contrast, the word "terminate" means to "bring to an end." Id. at 1741. Hence, by their very meanings, "modify" and "terminate" represent two discrete notions. See Urias, 211 Ariz. at 85, ¶ 22, 118 P.3d at 33 (explaining that we will consider respected dictionary definitions if the legislature has not defined a word or phrase in a statute).
¶ 18 Therefore, even though the Decree states that Husband's spousal maintenance obligation is non-modifiable, such language does not specifically address termination and does not satisfy the statutory requirement of an express statement. See Diefenbach, 200 Ariz. at 417, ¶ 5, 26 P.3d at 1188 (stating that language specifying that spousal maintenance is "non-modifiable" does not satisfy the strict requirement of § 25-327(B) because "non-modifiable" does not mean, in this context, "non-terminable"); see also In re Marriage of Rufener, 52 Wash.App. 788, 764 P.2d 655, 656 ("Upon remarriage, the maintenance obligation terminates automatically by operation of law. Termination thus is not a form of modification, but is the statutory result of remarriage.").
¶ 19 This conclusion is further supported by examination of the language and scope of subsection A of § 25-327 compared to subsection B. By addressing both "modification" and "termination" in subsection A but only "termination" in subsection B, the legislature has signaled that these two terms have separate meanings in this context. See In re Stephanie N., 210 Ariz. 317, 320, ¶ 17, 110 P.3d 1280, 1283 (App.2005) ("We must consider all pertinent statutory provisions in reaching a decision, and related statutes must be interpreted consistently and harmoniously with one another.") (citation omitted). Accordingly, to come within the exception to the general rule of termination under § 25-327(B), a decree must contain express language relating to termination, to the effect that the spousal maintenance obligation will not cease upon death or upon remarriage. Use of "non-modification" or similar modification language will not suffice. See Diefenbach, 200 Ariz. at 417, ¶ 5, 26 P.3d at 1188.
¶ 20 Wife also raises the argument that the Decree should be viewed as a contract and this court should apply contract principles to interpret the Decree. Our supreme court rejected a similar argument in In re Marriage of Zale, 193 Ariz. 246, 972 P.2d 230 (1999). In that case, a decree of dissolution was entered containing language that departed from the language that had been drafted by plaintiff's counsel, a draft to which defendant offered no objection. Id. at 248, ¶ 4, 972 *682 P.2d at 232. Plaintiff argued that the trial court should consider extrinsic evidence to interpret the decree. Id. at ¶¶ 6, 7, 972 P.2d at 232. The supreme court held that "the parol evidence rule, a rule of substantive contract law, does not apply to a judgment." Id. at ¶ 15, 972 P.2d at 234. The court explained that "it is error to conclude that the parol evidence rule applies to judgments. A judgment is not an agreement between . . . the parties. Rather, it is an `act of a court which fixes clearly the rights and liabilities of the respective parties to litigation and determines the controversy at hand.'" Id. at ¶ 10, 972 P.2d at 233 (quoting Wolf Corp. v. Louis, 11 Ariz.App. 352, 355, 464 P.2d 672, 675 (1970)).
¶ 21 The Decree before us is a final judgment. The family court correctly ruled that it was precluded from considering extrinsic evidence for the purpose of interpreting the Decree. We similarly reject Wife's contention that the court should consider the intent of the parties and interpret the Decree as though it is a contract.[1]
¶ 22 Husband further argues that the family court erred by awarding Wife attorneys' fees without permitting Husband an evidentiary hearing for the purposes of determining whether Wife was entitled under A.R.S. section 25-324 (2007) to receive attorneys' fees and whether Wife's requested fees were reasonable. In light of our reversal on the issue of continued spousal maintenance, we also reverse the court's award of attorneys' fees to Wife. Our substantive ruling in favor of Husband may affect the factors that were considered by the family court under § 25-324. Because the question of attorneys' fees must be considered anew, we need not reach Husband's procedural arguments at this time.
CONCLUSIONS
¶ 23 We reverse the family court's determination that Husband's spousal maintenance obligation is not terminated by operation of law under A.R.S. § 25-327(B). The Decree does not explicitly address remarriage and does not "expressly" provide that Husband shall have a continued obligation to make spousal maintenance payments notwithstanding Wife's remarriage.
¶ 24 "When cross-motions for summary judgment have been filed, this court may evaluate the cross-motions and, if appropriate, remand with instructions that judgment be entered in favor of the appellants." Burke v. Voicestream Wireless Corp. II, 207 Ariz. 393, 400, ¶ 37, 87 P.3d 81, 88 (App.2004). Accordingly, we remand for entry of an order terminating Husband's spousal maintenance obligations and for a determination of the amount of remittance owed to Husband for those payments made after Wife's remarriage.
¶ 25 We also reverse the award of attorneys' fees to Wife and remand for further consideration of attorneys' fees in accordance with A.R.S. § 25-324.
¶ 26 Regarding attorneys' fees on appeal, Husband did not request an award. Wife has requested an award of attorneys' fees on appeal, citing § 25-324 and Arizona Rule of Civil Appellate Procedure (ARCAP) 25. We lack evidence of the parties' current financial resources, and in our discretion we decline to award Wife any fees under § 25-324. ARCAP 25 authorizes us to award fees against a party who brings a frivolous appeal. Wife requests an award of attorneys' fees "for having to defend Husband's frivolous appeal." As our resolution of this appeal demonstrates, the issue presented by Husband is not the least bit frivolous. No fees will be awarded to Wife under Rule 25.
¶ 27 Upon compliance with ARCAP 21, Husband will be awarded his taxable costs on appeal.
*683 CONCURRING: PATRICK IRVINE, Presiding Judge and SHELDON H. WEISBERG, Judge.
NOTES
[1] Wife also argues that "to assume that the language or lack thereof as set forth in the Decree provides that spousal maintenance terminates both upon Wife's remarriage and her death would render meaningless the provision that spousal maintenance shall end upon Wife's death." We first note that Wife makes this argument in the context of her contention that the court should view the Decree as a contract, an approach we must reject. Furthermore, even if our holding today does render meaningless the provision in the Decree that spousal maintenance ends upon Wife's death, an ordinary canon of construction cannot trump the plain language of the statute requiring an express provision in the Decree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600331/ | 170 P.3d 1137 (2007)
215 Or. App. 702
HOBBS
v.
BLACKETTER.
Court of Appeals of Oregon.
October 31, 2007.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600333/ | 170 P.3d 517 (2007)
Anthony Tyrell NELSON, Appellant,
v.
The STATE of Nevada, Respondent.
No. 46353.
Supreme Court of Nevada.
November 8, 2007.
*520 Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
OPINION
By the Court, HARDESTY, J.:
In this appeal, we consider the constitutionality of NRS 484.348(3)(b), which prohibits drivers from operating a motor vehicle in such a manner as to endanger other persons or property while fleeing a police officer who has signaled for the driver to stop. Appellant Anthony Tyrell Nelson contends that the term "endangers" as contained in NRS 484.348(3)(b) is vague. Although NRS 484.348(3)(b) does not define specific acts that are prohibited under the statute, we conclude that the statute is not unconstitutionally vague because individuals of ordinary intelligence can easily discern whether their operation of a vehicle while fleeing from a police vehicle places life or property in danger. Further, we determine that Nelson's additional claims are without merit. We therefore affirm the district court's judgment of conviction.
PROCEDURAL HISTORY AND FACTS
Carolyn Paquette and her friends, Jason Minkler and Alisha Chugg, were driving to Paquette's condominium after spending the evening at a club. As they entered Paquette's gated community, the group noticed that another vehicle followed them into the community before the gates closed. Minkler stopped the vehicle in front of Paquette's condominium; Paquette exited the vehicle and approached the door to her home.
A black two-door vehicle with a red stripe and two people inside stopped behind Paquette. A man quickly exited the vehicle, approached Paquette, and demanded her purse. Paquette asked the man if he was kidding. The man replied that he was not kidding and held a handgun in front of Paquette's face.
Minkler and Chugg exited their vehicle. Chugg ran towards the man and inquired what was happening, but turned around and returned to her vehicle when the man displayed the gun to her. Minkler approached the man, pulled out his cell phone, and began dialing 911. After taking Paquette's purse, the gunman and the driver quickly drove out of the complex.
Shortly after the incident, an officer arrived at the scene and obtained statements from Paquette, Minkler, and Chugg. At trial, the officer testified that when he interviewed Minkler he did not notice the smell of alcohol on Minkler's breath and Minkler did not appear to be intoxicated. The officer testified that Paquette had been drinking that evening, but that she did not appear to be "overly intoxicated." The officer also testified *521 that Chugg had been drinking and appeared to be heavily intoxicated.
About 20-25 minutes after Paquette's purse was stolen, Officer Francis Shipp located a black Thunderbird with a red stripe parked on the shoulder of Boulder Highway that matched the description given by Minkler. Officer Shipp made a U-turn and positioned his vehicle almost three feet behind the Thunderbird when the vehicle began moving north on Boulder Highway. Officer Shipp then followed the Thunderbird with his lights off because he was alone and the vehicle was reportedly involved in an armed robbery. The Thunderbird eventually exited Boulder Highway and gradually increased its speed to between 40 and 60 miles per hour as it traveled through housing developments. During this time, Officer Shipp reported to police dispatch that he was following a vehicle matching the description of the one used in Paquette's purse robbery, and he requested assistance.
The Thunderbird re-entered Boulder Highway traveling northbound when extra patrol cars joined the pursuit with lights and sirens activated. Officer Shipp recognized that he now had assistance so he activated his lights and sirens. However, the Thunderbird did not yield. Officer Shipp accelerated to approximately 90 miles per hour but was unable to keep pace with the Thunderbird. Another police vehicle, driven by Officer Jonathan Boucher, passed Officer Shipp as they both continued to pursue the Thunderbird. The Thunderbird proceeded to speed through two red lights before turning onto a road that terminated in a fence, which was erected at the edge of a construction site.
By the time Officer Shipp had stopped his vehicle, Officer Boucher had his gun drawn on Mathew Neifeld who was standing near the passenger side of the Thunderbird and Nelson who was lying on the ground near the driver side. The officers arrested both Nelson and Neifeld. During the arrest, Officer Boucher found a stocking in the front right pocket of Neifeld's pants. A search of the car recovered Paquette's cell phone, Paquette's credit card, and three sets of black gloves. After the arrest, Officer Shipp retraced the path the Thunderbird traveled after he pulled his vehicle behind it. Officer Shipp searched for a discarded weapon, but never found one.
Nelson was later tried by a jury and found guilty of count 1conspiracy to commit robbery, count 2robbery with the use of a deadly weapon, and count 3failure to stop on signal of a police officer, a violation of NRS 484.348(3)(b). The district court sentenced Nelson for count 1, to a minimum of 60 months and a maximum of 190 months; for count 2, to life with the possibility of parole after serving 120 months;[1] and for count 3, to a minimum of 60 months and a maximum of 190 months. All counts are to run concurrently. Nelson appeals the judgment of conviction.
DISCUSSION
NRS 484.348(3)(b) is not unconstitutionally vague
Nelson argues that the conviction for "failure to stop" under NRS 484.348(3)(b) is constitutionally unfair. NRS 484.348(1) makes it a crime for the driver of a motor vehicle to fail to stop or otherwise flee from a police officer when signaled to stop:
[T]he driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a peace officer in a readily identifiable vehicle of any police department or regulatory agency, when given a signal to bring his vehicle to a stop is guilty of a misdemeanor.
The offense becomes a felony under NRS 484.348(3)(b) when, in addition to failing to stop when signaled, the driver "[o]perates the motor vehicle in a manner which endangers or is likely to endanger any person other than himself or the property of any person other than himself." Specifically, *522 Nelson argues that the term "endangers" in NRS 484.348(3)(b) is unconstitutionally vague because the term is not defined and is inadequate to give a person fair notice of what conduct is prohibited or to restrain arbitrary enforcement of the statute. We disagree.
The constitutionality of a statute is reviewed by this court de novo.[2] In addition, statutes enjoy a presumption of validity, and the challenger has the burden of demonstrating their unconstitutionality.[3]
A statute is void for vagueness and therefore repugnant to the Due Process Clause of the Fourteenth Amendment if it fails to sufficiently define a criminal offense such that a person of ordinary intelligence would be unable to understand what conduct the statute prohibits.[4] In addition, a statute is unconstitutionally vague if it encourages arbitrary and discriminatory enforcement because it lacks specific standards.[5] However, "a statute will be deemed to have given sufficient warning as to proscribed conduct when the words utilized have a well settled and ordinarily understood meaning when viewed in the context of the entire statute."[6] Although "there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls," such a limitation is not sufficient to determine that a criminal statute is unconstitutional.[7]
Although several states have determined that similarly worded statutes are indefinite and vague, a majority have determined that the term "endangerment" is sufficiently specific to withstand constitutional scrutiny.[8] For example, in State v. Sarriugarte, the Oregon Court of Appeals rejected a constitutional challenge to an Oregon statute that proscribed driving a vehicle "`in a manner that endangers or would be likely to endanger any person or property.'"[9] The court determined that this statutory language is "at least as informative about the conduct it proscribes and at least as capable of objective adjudicative application as are many standard civil or criminal jury instructions, e.g., those relating to negligence, recklessness and certain culpable mental states."[10] Upon review of a similar statute, the Supreme Judicial Court of Maine held that when the statute is read to include as an element criminal negligence, which is defined as the lowest culpable state of mind, the *523 statute withstands constitutional scrutiny.[11] Finally, when addressing this issue, the New Jersey Supreme Court recognized that "`[w]here the legislative regulatory object is appropriate and the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use.'"[12] We are persuaded by the majority position.
To violate NRS 484.348(3)(b), an individual first must flee from a police officer who is signaling the individual to stop his vehicle. Next, the individual must operate his vehicle in such a manner that it endangers or is likely to endanger other persons or property.
The term "endangers," as used in NRS 484.348(3)(b), is not unconstitutionally vague when considered in the context of the entire statute. The statute gives fair notice to people of ordinary intelligence that an individual is committing a felony when he or she drives in such a manner as to endanger persons or property while fleeing from a police vehicle with its lights and sirens activated. Although innumerable specific acts could be listed that would constitute felonious behavior under this statute, the statute provides clear guidelines for an adjudicative body to determine whether a violation has occurred. Additionally, an individual of average intelligence could easily discern whether he is endangering another person or property while fleeing a pursuing police vehicle. As the Supreme Judicial Court of Massachusetts stated in Commonwealth v. Pentz, "[t]o endanger the lives and safety of the public by the operation of an automobile on a public way is not an intangible and shadowy act. It has specific relation to possible contact with human beings."[13] Thus, we determine that NRS 484.348(3)(b) is not unconstitutionally vague.
The State presented sufficient evidence that Nelson operated his vehicle in a manner that endangered or was likely to endanger the life or property of another while fleeing from a police officer who had signaled him to stop
Nelson also argues that the State failed to establish that he endangered or was likely to endanger any person other than himself or the property of any person other than himself. We disagree.
The State presented evidence that Nelson failed to stop on the signal of a police officer and fled from the officer while speeding in excess of 90 miles per hour through red traffic lights. The jury could reasonably infer from this evidence that Nelson operated his vehicle in a manner that endangered or was likely to endanger the lives or property of others while fleeing from a police officer who had signaled him to stop.[14] The violation of a traffic signal indicating that a stop is requiredat speeds in excess of 90 miles per hourclearly creates the potential for violent contact with human beings and other vehicles. Thus, we conclude that the State proved beyond a reasonable doubt that Nelson endangered other lives and property in violation of NRS 484.348(3)(b).[15]
The fact that a juror is the victim in an unrelated pending case being prosecuted by the same office prosecuting the defendant does not, by itself, cause that juror's disqualification
Nelson argues that the district court erred by not excluding a veniremember who *524 allegedly had a close relationship with the Clark County District Attorney's Office. In particular, Nelson complains that the veniremember was a victim in an unrelated identity theft case that the Clark County District Attorney's Office was prosecuting. According to Nelson, this relationship between a veniremember and a party in the case is a ground for a challenge for cause. Although Nelson chose not to challenge the veniremember for cause, Nelson now contends that the district court erred by not excluding the veniremember on its own motion.
This issue was not preserved for appeal, so we must determine whether the error is plain and affected Nelson's substantial rights. "To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record."[16] As a general rule, an appellant must demonstrate that the error was prejudicial in order to prove that it affected his substantial rights.[17]
The test for determining if a veniremember should be removed for cause is whether a veniremember's views "`would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"[18] Additionally, this court has concluded that whether a juror should be disqualified is a question of fact for the trial judge.[19]
The question, then, is whether the fact that the State was prosecuting an unrelated criminal case in which the veniremember was the victim leads to the conclusion that the veniremember could not adjudicate the facts fairly. The record does not support such a conclusion.
During voir dire, the district court asked the veniremember, "Do you know of any reason at all why you cannot be completely fair and completely impartial in hearing this matter?" The veniremember responded, "Absolutely not." The district court then questioned the veniremember thoroughly concerning her ability to perform her duties and determined that her answers did not reveal that she was biased. Given this record, we conclude that the district court did not err by failing to sua sponte excuse the veniremember for cause.[20]
The use of leg restraints during jury selection did not cause error
Nelson argues that the use of leg bracelets, which may have been visible to at least one juror, undermined the presumption of innocence and interfered with his ability to communicate with counsel. Nelson also contends that because he was in shackles and his codefendant was not, the jury was given the impression that he was more dangerous than his codefendant.
During the first day of jury selection, Nelson entered the courtroom in leg bracelets before the prospective jurors entered the courtroom. Nelson objected to the use of leg bracelets during trial because the jurors would likely be able to see and hear them. The district court overruled Nelson's objection and stated that "the indication is that he has quite a criminal record" and "I don't know how the jury is going to see [the leg bracelets] as long as they stay under the table."
Prior to the second day of jury selection, Nelson reiterated his objection to the leg bracelets and moved for a mistrial because, according to Nelson's attorney, juror number 7 was "at one point gazing down at Mr. Nelson's bracelets." The district court again stated that if Nelson wanted to hide the bracelets under the table, he could have. *525 The district court then inquired of Court Services why the leg bracelets were necessary. Notably, the district court even admitted that it was not aware of Nelson's record. Court Services responded that Nelson was not dangerous. The court then sustained Nelson's objection and had the leg bracelets removed but denied the motion for a mistrial.
This court has recognized that a defendant has the right to appear before the jury in the clothing of an innocent person because "[t]he presumption of innocence is incompatible with the garb of guilt."[21] The garb of guilt necessarily includes physical restraints as such restraints, like prison clothing, erode the presumption of innocence.[22] Thus, as this court has acknowledged, the use of visible restraints during trial is unconstitutional unless "justified by an essential state interest, such as courtroom security that is specific to the defendant."[23] "District courts are allowed sufficient discretion to determine whether to physically restrain a defendant during the guilt phase of a trial" after "carefully balanc[ing] the defendant's constitutional rights with the security risk that the defendant poses."[24] That balance requires that a defendant be restrained only "as a last resort."[25] If the district court fails to balance the appropriate considerations or abuses its discretion in ordering that the accused be restrained during trial, this court must reverse the conviction unless the error was harmless beyond a reasonable doubt.[26]
In this case, the district court erred when it denied Nelson's request to have the leg bracelets removed on the first day of jury selection because the court failed to weigh the defendant's constitutional rights with any security risk. We conclude, however, that the error was harmless. Despite defense counsel's representations, there is no evidence in the record that any juror actually saw Nelson wearing the leg bracelets. And Nelson was not made to walk in front of the jury wearing the bracelets. Indeed, Nelson was free to keep the bracelets hidden under the table during the jury selection process. Thus, we conclude that it is clear beyond a reasonable doubt that the limited use of the leg bracelets during the first day of jury selection constituted harmless error.[27]
Nelson was not entitled to eight peremptory challenges
Nelson contends that the district court violated his right to due process and equal protection by denying him eight peremptory challenges. Relying on our decision in Morales v. State,[28] Nelson argues that he was entitled to eight peremptory challenges because he was facing the possibility of life imprisonment as a result of the habitual criminal allegation.[29] In contrast, the State argues that a defendant is entitled to eight peremptory challenges when the primary offense charged carries a sentence of life imprisonment or death. We agree with the State that the number of peremptory challenges *526 allowed to a defendant depends on the sentence he faces if convicted of the primary offense, not the sentence he faces if adjudicated as a habitual criminal.
This court reviews questions of statutory construction de novo.[30] We previously have interpreted NRS 175.051(1) in the context of habitual criminal proceedings. In our 1981 decision in Schneider v. State, this court focused on the statute's reference to the "offense charged" and concluded that because adjudication is a status determination rather than a separate offense, habitual criminal proceedings do not control the number of peremptory challenges allowed under NRS 175.051(1).[31] Consistent with Schneider, Nelson would not be entitled to eight peremptory challenges under NRS 175.051(1) because none of the offenses chargedconspiracy to commit robbery, robbery, and felony failure to stopcarried the possibility of a life sentence.[32]
Nelson invites us to revisit our holding in Schneider and relies on this court's holding in Morales as support for the proposition that he was entitled to eight peremptories because, as a result of the habitual criminal allegations, he faced a life sentence for the charged offenses. We decline to overrule Schneider. And we conclude that Nelson's reliance on Morales is misplaced because it did not address habitual criminal adjudication; rather, Morales holds that a defendant is entitled to eight peremptories when a life sentence may be imposed for the charged offense, even if a shorter sentence is also available.[33]Morales does not alter or conflict with the Schneider decision. Accordingly, we conclude that the district court did not err when it declined to allow Nelson eight peremptory challenges.
The unreliable identification of Nelson as the gunman was irrelevant
Nelson also argues that Paquette's and Chugg's identifications of him as the gunman were unreliable because they were intoxicated the night of the incident and they were able to discuss their identifications while waiting in a police car together. The State agrees but contends that the identifications are irrelevant because the State argued that Nelson was the driver, not the gunman. Nelson takes issue with the State's description of its theory and points out that jury instruction number 3, which quoted the information filed by the State, stated that Nelson "and/or" Neifeld approached Paquette and displayed a firearm. Additionally, Nelson claims that since the State admits that the identifications were unreliable, this court must reverse his convictions. We disagree.
A constitutional error may be considered harmless where it may be determined beyond a reasonable doubt that the verdict was "`surely unattributable to the error.'"[34] In this case, the State argued during closing arguments that Nelson was the driver of the vehicle. The State offered Nelson's own testimony to establish this fact along with Officer Boucher's testimony that Nelson exited the driver's side of the vehicle after the Thunderbird was stopped.
It is clear that the State's case, as presented to the jury, only alleged that Nelson was the driver, not the gunman. Thus, we conclude that the unreliable identifications were irrelevant and that other evidence that Nelson was the driver supported his convictions.
The district court did not abuse its discretion in rejecting Nelson's proposed jury instructions
Nelson argues that the district court erred when it declined to use his recommended *527 jury instructions. Nelson contends that the recommended jury instructions were not duplicative and were necessary to more fully explain aiding and abetting law. Nelson asserts that if the jury had received his proposed instructions, he could not have been convicted because there was no testimony that he knew the gunman had a gun, or that he had made an agreement to aid or abet or cooperate with the gunman.
District courts enjoy broad discretion to settle jury instructions, and we will not overturn a district court's decision concerning a particular instruction absent an abuse of discretion or judicial error.[35] Nelson offered the following proposed jury instructions:[36]
[Proposed Instruction 2] In order for a person to be held accountable for the crime of another under an aiding and abetting theory of principal liability, the aider or abettor must have knowingly aided the other person with the intent that the other person commit the crime charged.
[Proposed Instruction 3] Unarmed defendant, charged as an aider or abettor or co-conspirator, cannot be held criminally responsible for use of a deadly weapon unless he has actual or constructive control over the deadly weapon. An unarmed defendant does not have constructive control over a weapon unless the State proves he had knowledge the armed offender was armed and he had the ability to exercise control over the firearm.
Instruction number 8, which was submitted to the jury, states, in pertinent part, that
A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice, or by act and advice, the commission of such crime with the intention that the crime be committed.
The State is not required to prove precisely which defendant actually committed the crime and which defendant aided and abetted.
In Sharma v. State, this court held that "in order for a person to be held accountable for the specific intent crime of another under an aiding or abetting theory of principal liability, the aider or abettor must have knowingly aided the other person with the intent that the other person commit the charged crime."[37] However, in Bolden v. State, this court held that to convict a defendant of a general intent crime under the theory of vicarious coconspirator liability, the State is only required to prove that the crime in question was a "`reasonably foreseeable consequence'" of the object of the conspiracy.[38]
Additionally, this court held in Jones v. State that "`[c]onstructive or joint possession may occur only where the unarmed participant has knowledge of the other offender's being armed, and where the unarmed offender has . . . the ability to exercise control over the firearm.'"[39] This court also recognized that if an "`unarmed assailant has knowledge of the use of the gun and by his actual presence participates in the robbery, the unarmed offender benefits from the use of the other robber's weapon, adopting derivatively its lethal potential.'"[40]
We conclude that proposed jury instructions 2 and 3 are duplicative because they reiterate the principles of aider and abettor liability also discussed in jury instruction number 8. Additionally, proposed jury instruction number 3 is not the law in Nevada. While Nelson contends that proposed *528 jury instruction number 3 states the law concerning an unarmed defendant charged with aiding and abetting an armed defendant, the instruction fails to recognize that an unarmed defendant with knowledge of the firearm who benefits from its use may be held liable for aiding and abetting the armed defendant.[41] Under Nevada law, an unarmed defendant who benefits from the firearm even though he does not have the ability to exercise control over the firearm may be held criminally responsible for the actions of the armed defendant. Because Nelson's proposed jury instructions are duplicative and misstate Nevada law, we determine that the district court did not err when it declined to use Nelson's proposed jury instructions.
Nelson's habitual criminal sentence was authorized by statute
The judgment of conviction states that Nelson was adjudicated under the "Large Habitual Criminal Statute." While Nelson contends that he was improperly adjudicated with respect to count 2, robbery with the use of a deadly weapon, under NRS 207.010(1)(b),[42] the State contends that Nelson was adjudicated under NRS 207.012(1).[43] The statutes are similar but contain a significant difference. To be adjudicated a habitual criminal under NRS 207.010(1)(b), the State must prove that the defendant has been convicted of three prior felonies. In contrast, NRS 207.012 indicates that the district court shall sentence a defendant convicted of certain offenses as a habitual felon if two qualifying prior convictions are found.
In this case, the State filed an amended information on the first day of trial to provide notice of its intent to seek enhanced adjudication for count 2 under NRS 207.012 and for counts 1 and 3 under NRS 207.010. The amended information stated that Nelson had been previously convicted twice for robbery, and the State presented evidence of the two prior convictions. The first robbery conviction occurred on June 18, 2001, and the second robbery conviction occurred *529 on June 21, 2001.[44] The district court stated that it was sentencing Nelson under the "Large Habitual Criminal Statute." While that statement lacks clarity, the sentences imposed are consistent with NRS 207.012 for count 2 and NRS 207.010(1)(a) for counts 1 and 3, as the State had noticed the habitual criminal allegations in the amended information. Accordingly, we conclude that the district court sentenced Nelson within the scope of the applicable statutes.
CONCLUSION
We conclude that NRS 484.348(3)(b) is not unconstitutionally vague. Nelson's remaining arguments on appeal similarly lack merit, and we therefore affirm the district court's judgment of conviction. However, we remand to the district court to correct the language in the judgment of conviction as required by NRS 176.105 so as to properly identify the habitual criminal provisions that were applied to each count.
We concur: MAUPIN, C.J., and GIBBONS, PARRAGUIRRE, DOUGLAS, CHERRY, and SAITTA, JJ.
NOTES
[1] The court did not impose consecutive sentences for the deadly weapon enhancement as alleged in count 2 because Nelson was sentenced as a habitual criminal. Odoms v. State, 102 Nev. 27, 34, 714 P.2d 568, 572 (1986) (holding that the district court may enhance a sentence for the use of a deadly weapon or under the habitual criminal statute, but not both).
[2] Zabeti v. State, 120 Nev. 530, 534, 96 P.3d 773, 775 (2004).
[3] State v. Colosimo, 122 Nev. ___, ___, 142 P.3d 352, 355 (2006); Williams v. State, 118 Nev. 536, 546, 50 P.3d 1116, 1122 (2002).
[4] Colosimo, 122 Nev. at ___, 142 P.3d at 355; see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); Sheriff v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486-87 (2002); Woofter v. O'Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975).
[5] Colosimo, 122 Nev. at ___, 142 P.3d at 355.
[6] Williams, 118 Nev. at 546, 50 P.3d at 1122; see also Colosimo, 122 Nev. at ___, 142 P.3d at 355.
[7] United States v. Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947).
[8] Judy E. Zelin, Annotation, Statute Prohibiting Reckless Driving: Definiteness and Certainty, 52 A.L.R. 4th 1161 (1987). Compare State v. Pigge, 79 Idaho 529, 322 P.2d 703, 704-05 (1957) (determining that language analogous to NRS 484.348(3)(b) is unconstitutional because it fails to identify any general or specific act or acts that are prohibited), State v. Huffman, 202 Neb. 434, 275 N.W.2d 838, 840 (1979) (holding that a statute prohibiting the operation of a motor vehicle in such a manner as to likely endanger persons or property is open to conjecture and unconstitutionally vague), and People v. Firth, 3 N.Y.2d 472, 168 N.Y.S.2d 949, 146 N.E.2d 682, 683-84 (1957) (determining that a prohibition against driving at speeds that endanger life, limb, or property is meaningless because a motor vehicle driven at any speed creates such a risk); with State v. Thurston, 112 N.H. 288, 293 A.2d 770, 771-72 (1972) (recognizing that although it is impossible for some crimes to be defined with mathematical preciseness, a crime may be properly defined by the well-known terms "reckless" and "endanger"), State v. Joas, 34 N.J. 179, 168 A.2d 27, 31 (1961) (determining that similar endangerment language expressed "ideas which find adequate interpretation in common usage and understanding" and was not unconstitutionally vague), and State v. Sarriugarte, 66 Or.App. 406, 674 P.2d 82, 83 (1984) (determining that such language is as informative and capable of adjudicative application as are many jury instructions).
[9] 674 P.2d at 82 (quoting Or.Rev.Stat. § 487.235(1) (1977) (repealed 1983)).
[10] Id. at 83.
[11] State v. Davis, 398 A.2d 1218, 1219 (Me.1979).
[12] Joas, 168 A.2d at 31 (quoting State v. New York Central Railroad Company, 37 N.J.Super. 42, 116 A.2d 800, 803 (App.Div.1955)); see also Petrillo, 332 U.S. at 7, 67 S. Ct. 1538.
[13] 247 Mass. 500, 143 N.E. 322, 324 (1924).
[14] See Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998) (explaining that in resolving a challenge to the sufficiency of the evidence to support a jury verdict, this court views the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt).
[15] Nelson also contends he was deprived of the right to due process because the information did not contain any facts to support the "endangering" element. We reject this argument because Nelson was not prejudiced by any lack of specificity in the information. See Watkins v. Sheriff, 87 Nev. 233, 236, 484 P.2d 1086, 1088 (1971). In particular, the record reflects that Nelson was made aware of the specific details proving the endangering element during a preliminary hearing.
[16] Garner v. State, 116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000), overruled on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002).
[17] See Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001).
[18] Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005) (quoting Leonard, 117 Nev. at 65, 17 P.3d at 405), cert. denied, 546 U.S. 1216, 126 S. Ct. 1433, 164 L. Ed. 2d 136 (2006); see also NRS 175.036(1).
[19] Hall v. State, 89 Nev. 366, 371, 513 P.2d 1244, 1247 (1973).
[20] See id. at 370-71, 513 P.2d at 1247 (concluding that the fact that a juror was the victim of a burglary did not require removal of a juror whose voir dire answers demonstrated she was unbiased).
[21] Grooms v. State, 96 Nev. 142, 144, 605 P.2d 1145, 1146 (1980); see also Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) (holding that state cannot, consistent with due process and equal protection, require an accused to stand trial while wearing identifiable prison clothes).
[22] Hymon v. State, 121 Nev. 200, 207-08, 111 P.3d 1092, 1098 (2005).
[23] Id. at 208, 111 P.3d at 1098 (citing Deck v. Missouri, 544 U.S. 622, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005)).
[24] Id. at 207, 111 P.3d at 1098.
[25] Id.
[26] Id. at 210, 111 P.3d at 1099; Grooms, 96 Nev. at 144, 605 P.2d at 1146.
[27] Nelson also argues that the error caused by potential jurors viewing Nelson in leg bracelets is compounded by the fact that during trial, the State displayed a picture of Nelson in handcuffs sitting in a police car. However, we determine that this argument is without merit. The use of the picture was not prejudicial because the picture did not actually depict Nelson wearing restraints and the jury would learn during trial that Nelson had been arrested.
[28] 116 Nev. 19, 992 P.2d 252 (2000).
[29] See NRS 175.051(1) ("If the offense charged is punishable by death or by imprisonment for life, each side is entitled to eight peremptory challenges."); see also NRS 207.010.
[30] Zabeti v. State, 120 Nev. 530, 534, 96 P.3d 773, 775 (2004).
[31] 97 Nev. 573, 574-75, 635 P.2d 304, 304-05 (1981) ("adjudication under the habitual criminal statute constitutes a status determination and not a separate offense").
[32] See NRS 200.380; NRS 199.480; NRS 484.348.
[33] 116 Nev. at 21, 992 P.2d at 253 (overruling Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966)).
[34] Summers v. State, 122 Nev. ___, ___, 148 P.3d 778, 789-90 (2006) (Rose, C.J., concurring and dissenting) (quoting Flores v. State, 121 Nev. 706, 721, 120 P.3d 1170, 1180 (2005)).
[35] Insurance Co. of the West v. Gibson Tile, 122 Nev. 455, 463, 134 P.3d 698, 702-03 (2006); Ringle v. Bruton, 120 Nev. 82, 90, 86 P.3d 1032, 1037 (2004).
[36] Nelson's first offered instruction concerned conspiracy. However that instruction duplicated jury instructions 5, 6, and 7 submitted to the jury by the court.
[37] 118 Nev. 648, 655, 56 P.3d 868, 872 (2002). We note that the robbery charged in count 2 is a general intent crime, see Hickson v. State, 98 Nev. 78, 79, 640 P.2d 921, 922 (1982), while the conspiracy to commit robbery charged in count 1 is a specific intent crime. See generally Garner v. State, 116 Nev. 770, 786, 6 P.3d 1013, 1023 (2000), overruled on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002).
[38] 121 Nev. 908, 923, 124 P.3d 191, 201 (2005).
[39] 111 Nev. 848, 852, 899 P.2d 544, 546 (1995) (alteration in original) (quoting Anderson v. State, 95 Nev. 625, 630, 600 P.2d 241, 244 (1979)).
[40] Id.
[41] See id.
[42] NRS 207.010(1) states, in pertinent part,
Unless the person is prosecuted pursuant to NRS 207.012 or 207.014, a person convicted in this State of:
(a) Any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who has previously been two times convicted, whether in this State or elsewhere, of any crime which under the laws of the situs of the crime or of this State would amount to a felony, or who has previously been three times convicted, whether in this State or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, is a habitual criminal and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 20 years.
(b) Any felony, who has previously been three times convicted, whether in this State or elsewhere, of any crime which under the laws of the situs of the crime or of this State would amount to a felony, or who has previously been five times convicted, whether in this State or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or the intent to defraud is an element, is a habitual criminal and shall be punished for a category A felony by imprisonment in the state prison:
(1) For life without the possibility of parole;
(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
(3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.
(Emphases added.)
[43] NRS 207.012(1) states, in pertinent part,
A person who:
(a) Has been convicted in this State of a felony listed in subsection 2; and
(b) Before the commission of that felony, was twice convicted of any crime which under the laws of the situs of the crime or of this State would be a felony listed in subsection 2, whether the prior convictions occurred in this State or elsewhere,
is a habitual felon and shall be punished for a category A felony by imprisonment in the state prison:
(1) For life without the possibility of parole;
(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
(3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.
(Emphases added.)
[44] Nelson also argues that these robbery convictions do not constitute two separate felonies for the purposes of habitual criminal adjudication because they were entered three days apart and may involve negotiations that took into consideration both cases. In response, the State asserts that the crimes were entirely separate and involved separate victims. However, the record is devoid of evidence to support the assertions from either party. Accordingly, we determine that because the convictions were entered on different days and there is no evidence to establish that they were part of the same act, transaction, or occurrence, the convictions represent separate felonies for the purposes of habitual criminal adjudication. See Halbower v. State, 96 Nev. 210, 211-12, 606 P.2d 536, 537 (1980) ("[W]here two or more convictions result from the same act, transaction or occurrence, and are prosecuted in the same indictment or information, those several convictions may be utilized only as a single prior conviction for purposes of the habitual criminal statute."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600594/ | 186 P.3d 587 (2008)
Manu DUBE, Plaintiff/Appellant,
v.
Chandra S. DESAI and Patricia Desai, husband and wife, Defendants/Appellees.
No. 2 CA-CV 2007-0084.
Court of Appeals of Arizona, Division 2, Department A.
January 11, 2008.
Raven, Awerkamp & Clancy, PC By Don Awerkamp and Ivelisse Bonilla-Torrado, Tucson, Attorneys for Plaintiff/Appellant.
Sandra S. Froman, P.L.C. By Sandra S. Froman, Tucson, Attorney for Defendants/Appellees.
OPINION
HOWARD, Presiding Judge.
¶ 1 Appellant Manu Dube appeals the grant of summary judgment in favor of appellees Chandra S. Desai and Patricia Desai in Dube's tortious interference action. He claims genuine issues of material fact exist concerning whether Desai acted in the scope of his employment with the University of Arizona, precluding summary judgment based on his failure to file a timely notice of claim under A.R.S. § 12-821.01. Finding no error, we affirm.
Facts and Procedural History
A. Background Facts
¶ 2 We view the facts in the light most favorable to the party opposing summary judgment and draw all reasonable inferences arising from the evidence in favor of that party. Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996). In reviewing the trial court's decision, we consider only the evidence presented to the trial court when it addressed the motion for summary judgment. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App.2007).
¶ 3 In 1998, Dube transferred to the University of Arizona to continue his post-graduate studies in engineering mechanics. Chandra Desai served as Dube's doctoral advisor, *588 research advisor, and course professor, as well as an academic advisor for Dube's technical work in his Curricular Practical Training.
¶ 4 Under the name of C. Desai, Inc., Chandra Desai marketed certain engineering codes he had developed. Desai hired Dube to work on a contract for a corporate client of C. Desai, Inc. The client paid C. Desai, Inc. for the work, and C. Desai, Inc. paid Dube. Dube signed a consultant agreement. Because Dube was an international student, Desai submitted information so that the University could secure immigration Work authorization for Dube.
¶ 5 Part of Dube's assignment as a consultant was to use a "yield function model," developed and licensed by Desai through C. Desai, Inc., to perform work for the client. Dube alleges that, while working with this model, he detected problems with it. Dube brought the problems to Desai's attention and proposed solutions. According to Dube, Desai "reacted with hostility" and was dismissive of Dube's suggestions. Dube then decided to focus his dissertation in a way that he believed would "undermine" Desai's yield function model. Dube avows that Desai was not supportive of Dube's dissertation plan and attempted to take credit for the new equation that Dube had developed.
¶ 6 In the fall of 2002, Dube requested that Desai be removed from his dissertation committee, alleging that Desai was making improper requests for acknowledgment of credit for Dube's work and was attempting to misappropriate Dube's work for himself. According to Dube, Desai was subsequently removed from the dissertation committee at a meeting held on November 4, 2002. After this meeting, Desai no longer had decision-making power with respect to Dube's dissertation, but he was still to have some input on Dube's citations.
B. Facts Relevant to Appeal
¶ 7 In his "Reply to Defendants' Statement of Facts," Dube stated that "at the time of the actions for which relief is sought in the Amended Complaint, Desai was no longer Dube's advisor." Also, in his "Opposition to Defendants' Motion for Summary Judgment," Dube argued he had proffered facts that show Desai was acting for his own profit when, "after Desai was removed from Dube's dissertation committee, Desai continued to interfere with Dube's obtaining his Ph.D., getting his dissertation published and going on with his career." Accepting Dube's assertion that Desai was removed as his advisor on November 4, 2002, we review the following evidence of Desai's actions after that date:[1]
1. On November 18, 2002, Desai sent a letter to the Dean of Students, stating that Desai was concerned that Dube had engaged in disruptive actions. A copy of this letter was sent to the University police department and two other University administrators. This letter was sent on University letterhead and was signed "Chandrakant S. Desai, Regents' Professor."
2. Also on November 18, 2002, Desai sent a memorandum to Richard P., the University's Vice President for Research and Graduate Studies. This memorandum was a response to a memorandum from Richard P. informing Desai that "[i]ndividuals ha[d] expressed concern . . . with regard to companies [Desai] may [have] be[en] operating . . . and the employment of students in those companies." In Desai's response, he asserted he had "fulfilled all the requirements" for engaging in his consulting work, including obtaining proper permission when employing foreign students. This memorandum was sent on University letterhead. The caption stated it was from "Chandrakant S. Desai, Regents' Professor, CEEM Department."
3. On November 22, 2002, the chairperson of Dube's dissertation committee *589 sent an e-mail to Dianne H., Associate Dean of the Graduate College, expressing concern over Desai's accusations and demands regarding Dube's dissertation. The chairperson stated that Desai was questioning the quality of Dube's dissertation and was objecting to the faculty members who had been proposed to replace Desai on Dube's committee.
4. On May 12, 2003, Desai sent a memorandum to Dube's committee and copied other administrators. In this memorandum, Desai asked that he be given a draft copy of Dube's dissertation so he could check for proper acknowledgments and citations. Desai expressed concern over the quality of Dube's dissertation and his purported failure to meet the requirements of a research sponsor. Desai also asserted that Dube could not claim ownership of the equation for which Dube had developed a modification because the equation itself was the product of many years' work and contributions by Desai and many of his students. This memorandum was printed on University letterhead. The caption indicated it was from "Chandrakant S. Desai, Regents' Professor."
5. On May 16, 2003, Desai sent an e-mail to Dianne H. in response to an e-mail she had written. Dianne's original e-mail stated that a draft of Dube's dissertation had been sent to Desai, that she and other administrators would carefully review Desai's written comments, and that they would not award the degree unless Dube properly acknowledged Desai's work. She also stated that another person would ensure the sponsor's requirements were met. She asked that Desai not have direct contact with Dube's committee. Desai's reply e-mail indicated he had received the draft and would send his comments directly to Dianne H. Desai also expressed concern that there were no "external members" to review Dube's dissertation. These e-mails originated from arizona.edu e-mail addresses.
6. On June 9, 2003, Desai sent a memorandum to Dianne H. and copied other administrators. Desai stated that he had prepared the memorandum in response to a request from Dianne H. that he review Dube's draft dissertation and provide comments. Desai then listed a series of detailed criticisms of Dube's citations and acknowledgments, including a suggestion that Dube had committed plagiarism. Desai also stated that Dube's work did not satisfy the requirements of a research sponsor. This memorandum was printed on University letterhead. The caption stated it was from "Chandra S. Desai, Regents' Professor, CEEM Department."
7. On June 25, 2003, Desai sent another memorandum to Dianne H. and copied other administrators. Desai indicated he was responding to a request from Dianne H. for details on his comments in the June 9 memorandum. Desai apparently attached materials to this memorandum and also set forth additional criticisms of both Dube and the dissertation committee. Desai's comments were in part directed at the quality of the dissertation and its reflection on the research by Desai and others at the University. He suggested the dissertation should be reviewed by a committee of external experts. This memorandum was printed on University letterhead. The caption stated it was from "Chandra Desai, Regents' Professor."
8. On January 14, 2006, Desai sent an e-mail from an arizona.edu e-mail address, apparently to another scholar regarding a paper authored by "Dube and Kundu."
C. Procedural History
¶ 8 Dube sued Chandra Desai and Patricia Desai, his wife, alleging "Tortious Interference with Business Relationships and/or Expectancies."[2]*590 He claimed that Chandra Desai interfered with Dube's obtaining his Ph.D. and employment. The Desais moved for summary judgment based on the notice-of-claim statute, § 12-821.01, arguing that, during all relevant times, Chandra Desai was acting within the course and scope of his employment with the state. They relied on § 12-821.01(A), which requires that any claim against a public entity or public employee must be filed with the representative authorized to accept service for that public entity or employee "within one hundred eighty days after the cause of action accrues." It was undisputed that Dube had not complied with the notice-of-claim statute. The trial court found "uncontroverted evidence . . . that all of Mr. Dube's actionable claims [arose] from his relationship with Dr. Desai as his academic advisor" and therefore the Desais were entitled to summary judgment and dismissal of Dube's claim.
Discussion
¶ 9 On appeal, Dube argues the trial court erred by granting summary judgment because genuine issues of material fact exist concerning whether Desai was acting within the scope of his employment when he allegedly interfered with Dube's graduation and employment. He contends that only if Desai was acting within the scope of employment is summary judgment based on § 12-821.01 appropriate.
¶ 10 Summary judgment is proper when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(c)(1). A court should grant summary judgment "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990). We review de novo whether there are any genuine issues of material fact and whether the trial court applied the law properly. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, ¶ 8, 156 P.3d 1157, 1160 (App.2007). A mere scintilla of evidence or a slight doubt as to whether a material factual dispute exists is not sufficient to overcome summary judgment. Orme Sch., 166 Ariz., at 309, 802 P.2d at 1008. When the material facts are not disputed, a "trial court may decide as a matter of law whether an employee was acting in the scope of employment at the relevant time." Ortiz v. Clinton, 187 Ariz. 294, 298, 928 P.2d 718, 722 (App.1996).
¶ 11 Although A.R.S. § 12-820(1) was not cited by either party, it defines an employee, for purposes of the notice-of-claim statute, § 12-821.01, as "an officer, director, employee or servant, whether or not compensated or part time, who is authorized to perform any act or service." In McCloud v. State, 217 Ariz. 82, ¶ 25, 170 P.3d 691, 699 (App.2007), we noted that § 12-821.01 "has consistently been applied only to claims arising out of acts by public employees in the scope of their employment." We further observed that an "employee's '[c]onduct falls within the scope [of employment] if it is the kind the employee is employed to perform, it occurs within the authorized time and space limits, and furthers the employer's business even if the employer has expressly forbidden it." Id. ¶ 29, 170 P.3d 691, quoting Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phoenix, Inc., 197 Ariz. 535, ¶ 17, 5 P.3d 249, 254 (App.2000) (alteration in McCloud); see also Love v. Liberty Mut. Ins. Co., 158 Ariz. 36, 38, 760 P.2d 1085, 1087 (App.1988) (conduct within scope of employment if, inter alia, "it is actuated at least in part by a purpose to serve the master"). An employee's improper actions, even those serving personal desires, will be deemed motivated to serve the employer if those actions are incidental to the employee's legitimate work activity. See State v. Schallock, 189 *591 Ariz. 250, 258, 941 P.2d 1275, 1283 (1997) (an employee may act within scope of authorized employment when sexually harassing subordinates).
¶ 12 Dube correctly observed at oral argument that, to prevail on summary judgment, Desai had the burden to show evidence supporting his assertion that he was acting within the "authorized" scope of his employment, thus triggering the notice-of-claim requirement. See Orme Sch., 166 Ariz., at 310, 802 P.2d at 1009. To defeat summary judgment, Dube then had to show evidence creating a genuine issue of fact on this question. See id. But, as noted above, when the material facts are undisputed, we may decide as a matter of law whether Desai was acting within the scope of his employment. See Ortiz, 187 Ariz., at 298, 928 P.2d at 722.
¶ 13 The parties do not dispute what Desai did. What they do dispute is whether Desai's actions were motivated, at least partially, to serve Desai's employer. See Schallock, 189 Ariz., at 258, 941 P.2d at 1283. Dube contends that a jury could "easily find that [Desai's] interference was in no way motivated by [his] University position." The undisputed facts, taken together with any disputed facts resolved in Dube's favor, do not support this assertion.
¶ 14 Desai first alerted administrators and authorities to his concern over what he alleged to be the disruptive actions of a student, Dube. Almost all of Desai's subsequent actions involved communications relating to the dissertation of that student; were printed on University letterhead or sent to and from University-based e-mail accounts; were directed to other members of the University; and identified Desai as a regents' professor of the University.[3] Dube has not produced any evidence that Desai's job as a University professor did not include commenting on a disruptive student or on a student's dissertation or communicating with other members of the University. In fact, other members of the University specifically requested that Desai comment on the dissertation.[4] Thus, his actions were at least incidental to his employment and therefore were motivated in part by a desire to serve his employer. See Schallock, 189 Ariz., at 258, 941 P.2d at 1283.
¶ 15 The sexual harassment analysis in Schallock is conceptually analogous to the issue in the present case. In Schallock, our supreme court observed that, when a supervisor harasses employees while performing his authorized duties, the harassment can be incidental to his work and thus within the scope of his employment. Id. at 258, 941 P.2d at 1283. Even though a supervisor may harass from some personal desire, he commits the harassment in the course and scope of performing his duties, so long as he is *592 authorized to perform those duties. Id. In this case, Desai may have had a desire to protect C. Desai, Inc. and may have used his position at the University to advance a personal agenda. But even if this is true, all the actions of which Dube complains were incidental to Desai's work for the University.[5]
¶ 16 At oral argument, Dube correctly noted that the supreme court in Schallock found issues of fact that made summary judgment inappropriate. Id. at 262-63, 941 P.2d at 1287-88. But here, Dube has failed to produce any evidence showing that Desai's acts were not at least incidental to his job. Therefore, he has failed to raise any issue of fact. See Ortiz, 187 Ariz. at 298, 928 P.2d at 722 (court may decide whether conduct within scope of employment as matter of law when material facts undisputed). Dube also cited E-Z Livin' Mobile Homes, Inc. v. Tommaney, 27 Ariz.App. 11, 15-16, 550 P.2d 658, 662-63 (1976), for the proposition that use of a principal's stationery is insufficient to create an agency relationship. He claimed therefore that the use of University letterhead is insufficient to place Desai within the scope of his employment. But the evidence presented by Dube involves far more than mere use of the University's letterhead. The evidence shows multiple reciprocal communications between Desai and University administrators about subjects that directly related to Desai's position as a professor at the University. On the other hand, Dube produced no evidence suggesting that Desai's actions were not incidental to his employment.
¶ 17 Dube argues that to find Desai was acting within the scope of his employment would be tantamount to saying Desai "was employed by the University . . . to tortiously interfere with the academic and employment opportunities of his students." But, in Schallock, the supreme court observed that "[t]he relevant purpose to be ascertained is not whether [the supervisor] had authority to harassno supervisor has that authority but whether he had authority to run and was running [the employer's] business." Id. at 258, 941 P.2d at 1283. In the present case, the relevant inquiry is not whether Desai had the authority to commit tortious interference but whether he had the authority to communicate with other members of the University about Dube.
¶ 18 Dube suggested in his statement of facts filed below that some of Desai's communications were in defiance of Dianne H.'s instructions. The evidence Dube proffered in support of that assertion does not substantiate such an inference. But, even assuming Dube were correct in this regard, the fact that Desai's actions may have displeased his employer or contravened his employer's instructions does not remove him from the scope of his employment. See Baker, 197 Ariz. 535, ¶ 17, 5 P.3d at 254 (even expressly forbidden actions may be within scope of employment). To the contrary, the evidence suggests Desai's employer was actively overseeing his actions, reinforcing the conclusion that Desai was acting within his scope of employment. And Dube acknowledges that, after Desai was no longer serving on his dissertation committee, Dianne H. still expected Desai to provide comments on Dube's citations.
¶ 19 Dube argues that "[a]ny scholar from any University with some expertise on the area can discredit and/or criticize research being performed" and can ask that he be given credit he believes is due for any research. He also contends that "there is no difference" between interference by Desai and interference by an employee of the corporate client who might have learned of Dube's work and tried to appropriate it. But Dube's contentions are mere conclusory suppositions, which are not supported in the record.[6] And the fact that others could commit the same tort does not mean that Desai was not acting within the scope of his employment when he allegedly committed it. *593 This case does not involve "any scholar" or random employee of another company. It involves a University professor, sending communications on University letterhead or from University-based e-mail accounts to other members of the University, regarding the work of a student with whom that professor had had a formal academic relationship. And the evidence shows the University expected Desai to continue to play some kind of role in the dissertation process even after he was no longer Dube's advisor.
¶ 20 Dube also contends he has shown that Desai was attempting to mislead the University about C. Desai, Inc. and suggests the only explanation for this subterfuge was that any work for C. Desai, Inc. was not intended to serve the University. Similarly, Dube argues that, because Desai required, as a condition of doing consulting work, that his students sign an agreement releasing to C. Desai, Inc. any codes they might develop, this also proves Desai's work for C. Desai, Inc. was not intended to serve the interest of the University. But the actions Dube complains of as constituting tortious interference do not include Desai's own work or his students' work for C. Desai, Inc. As noted above, Dube asserted that all actions that underlie his claim of interference took place after November 4, 2002. Those actions are outlined above and do not involve any releases signed by Dube or any other student with respect to work done for C. Desai, Inc. After November 4, Desai's only action that appears to refer to C. Desai, Inc. is the memorandum he sent to Richard P. As we have discussed, the contents of this memorandum address only Desai's compliance, as a University employee, with University policy with respect to his outside consulting work and employment of international students. Irrespective of whether this memorandum was misleading, it was written within the scope of Desai's employment.[7]
Conclusion
¶ 21 Viewing the evidence in the light most favorable to Dube, we conclude the trial court did not err in finding no genuine issue of material fact as to whether Desai was acting within the scope of his employment and that, therefore, Dube's failure to comply with § 12-820.01 required dismissal of his complaint. There is no more than a scintilla of evidence to suggest that Desai was not "authorized to perform any act or service," § 12-820(1), when he engaged in the conduct upon which Dube's claims of tortious interference are based. Nor is there any admissible evidence to suggest that Desai was acting solely on behalf of C. Desai, Inc. or that his actions were not at least incidental to his employment and therefore motivated by the University's interests. We further conclude that "the trial judge would not have been required to pass on the credibility of witnesses with differing versions of material facts, would not have been required to weigh the quality of documentary or other evidence, and was not required to choose among competing or conflicting inferences." Orme Sch., 166 Ariz., at 311, 802 P.2d at 1010.
¶ 22 In light of the foregoing, we affirm the trial court's grant of summary judgment, dismissing Dube's complaint against Chandra Desai and Patricia Desai.
CONCURRING: JOHN PELANDER, Chief Judge, and J. WILLIAM BRAMMER, JR., Judge.
NOTES
[1] This evidence is taken from the statement of facts that Dube submitted to the trial court. At oral argument, Dube suggested that ¶¶ 88-113 of this statement contain the facts that support his claim for interference with his business relationships or expectancies. The court has reviewed these paragraphs and has included all facts that could possibly constitute admissible evidence of interference by Desai.
[2] Dube included additional parties in the action but included Patricia Desai only because any judgment might affect the community property interests of both Chandra and Patricia Desai. With respect to the summary judgment at issue in tills appeal, the trial court ordered judgment as to Chandra Desai and Patricia Desai only, finding "no just reason for delay." Ariz. R. Civ. P. 54(b). We therefore address only the relevant issues that involve the individual Desai defendants.
[3] One exception is the e-mail Desai sent in 2006, which Dube cites as support for his allegation that Desai has interfered with Dube's efforts to publish the research from his dissertation. Dube also cites to an excerpt from Desai's deposition, but the pages that he cites are not included in the attachments to his statement of facts filed with the trial court. Dube was responsible for ensuring the record on appeal contained all documents necessary for us to consider the issues he raises. When the necessary items are omitted, "we assume they would support the court's findings and conclusions." Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App.1995). In the e-mail, which is included in the record, Desai does not identify himself as a regents' professor, and it is unclear whether the recipient is a member of the University. The e-mail was sent from a University-based e-mail account. Without additional information, the significance of the e-mail is unclear. Dube has not submitted any evidence that Desai was not "authorized" to communicate with this person. At oral argument, Desai asserted that the 2006 e-mail could not have interfered with publication because Dube's dissertation had already been published by that time. Dube responded that the e-mail interfered with additional publication efforts. But other than this e-mail, there was no admissible evidence offered below by Dube regarding attempted or successful publication. We find at most that this e-mail amounts to a scintilla of evidence suggesting Desai might have been acting outside the scope of his employment and is insufficient to overcome summary judgment. See Orme Sch., 166 Ariz. at 309, 802 P.2d at 1008.
[4] The only communication that does not refer to Dube by name is the memorandum Desai sent to Richard P. However, this document was on University letterhead, sent to an administrator of the University, and sent in Desai's capacity as a "Regents' Professor." In addition, the subject matter pertains entirely to the issue of compliance with University policy. Dube has offered nothing to suggest Desai was not authorized to write this memorandum.
[5] Dube cites Demas v. Levitsky, 291 A.D.2d 653, 738 N.Y.S.2d 402, 409-10 (App.Div.2002), asserting that the plaintiff there made allegations similar to his own and that the court determined that a professor who takes credit for a student's research for personal fame and recognition is not acting within the scope of his employment for a university. We decline to adopt the reasoning in Demas as it is inconsistent with Arizona's case law addressing the issue of motivation to serve the employers interests.
[6] In his statement of facts, Dube cited a portion of Desai's deposition as support for the proposition that anyone can submit comments to a dissertation committee. But the testimony cited actually suggests the opposite conclusion.
[7] On appeal Dube cites Balson v. Ohio State Univ., 112 Ohio App. 3d 33, 677 N.E.2d 1216 (1996), in support of his assertion that Desai was acting on behalf of C. Desai, Inc. As the Desais observe in their answering brief, Theobald v. Univ. of Cincinnati, 160 Ohio App. 3d 342, 827 N.E.2d 365 (2005), calls into doubt the analysis in Balson. But, in any event, Balson involved the question whether a physician-faculty member of a state university, who was also a member of a private corporation, was acting within the scope of his employment for the university when he performed a particular surgery. 677 N.E.2d at 1218-19. Balson would only be applicable to the question whether Desai's research for C. Desai, Inc., or his supervision of students performing that research, was conducted within the scope of his employment for the University. Again, the actions complained of do not include research performed for C. Desai, Inc.; the actions that form the basis of the complaint are the communications Desai sent after November 4, 2002. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600599/ | 186 P.3d 568 (2008)
Gerald EDENSHAW, Plaintiff,
v.
SAFEWAY, INC.; Carr's Quality Center; and Safeway Food & Drug, Defendants.
No. S-12583.
Supreme Court of Alaska.
July 3, 2008.
Peter R. Ellis, Ellis Law Offices, Inc., Ketchikan, and Jack B. McGee, Juneau, for Plaintiff.
*569 Paul M. Hoffman and Amy Gurton Mead, Hoffman Silver Gilman & Blasco, P.C., Juneau, for Defendants.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
We accepted certification in this case to determine whether actual or constructive notice of a hazardous condition is an element of a prima facie case in an action against a grocery store owner in a slip-and-fall case. We hold that it is not.
II. FACTS AND PROCEEDINGS
The facts presented to us are sparse. Gerald Edenshaw slipped and fell at the Carr's store in Ketchikan on May 10, 2003. He brought a negligence action against Safeway, Inc. and Carr's. After removal to federal court, Safeway moved for summary judgment, alleging (1) that it had fulfilled any duty of care that it owed because it had a "regularized method of finding hazards," and (2) that it had no notice, either actual or constructive, that there was a hazard in the area where Edenshaw slipped and fell. The United States District Court for the District of Alaska denied summary judgment, deciding that there was a dispute of fact whether Safeway acted reasonably in maintaining its premises. Safeway moved for reconsideration, citing cases from several jurisdictions in which negligence actions were dismissed because the business had no actual or constructive knowledge of the condition causing the mishap. After the federal court noted that Alaska does not have specialized rules to deal with premises liability, Safeway moved, citing to Alaska Rule of Appellate Procedure 407,[1] to certify the question, "Is actual or constructive notice that an unsafe condition exists an element of a prima facie case in an action against a grocery store owner in slip and fall cases?"
We agreed to accept certification and now answer the question.
III. STANDARD OF REVIEW
Appellate Rule 407(a) permits us to answer questions of law certified to us by federal courts. Under that rule, we may answer certified questions of law if there are before the certifying court "questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent" in our decisions.[2] A certified question therefore necessarily involves determinative questions of Alaska law for which in the opinion of the certifying court there is no controlling precedent. In deciding a certified question of law we must "stand in the shoes of the certifying court, yet exercise our independent judgment."[3] Therefore, we select the rule of law that is most persuasive in light of precedent, reason, and policy.[4]
IV. DISCUSSION
In Webb v. City & Borough of Sitka, we abolished the common law distinctions between trespassers, licensees, and invitees.[5]*570 We adopted a general rule of negligence, holding that a landowner "must act as a reasonable person in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties of avoiding the risk."[6] We went on to say that in general, issues of negligence are "not susceptible to summary determination" and are better left to the trier of fact because of the question of reasonableness.[7]
Relying on our decisions in highway maintenance cases, Safeway argues that actual or constructive notice of a hazardous condition should be an element of a prima facie case in a slip-and-fall action. In Johnson v. State, we examined the elements of a plaintiff's case in an action against the state for negligent maintenance of a road.[8] We held that when the state did not create the hazardous condition, the plaintiff had to establish either actual or constructive notice of the condition.[9] Safeway urges us to extend this rule to cover grocery stores. We decline to do so.
A grocery store is a more confined space and a more intensely managed environment than a highway. As other courts have noted, the owner of a grocery store can monitor the premises and take steps to minimize risks to customers, particularly in areas that have frequent spills or other hazards.[10]
We adhere to the general rule of negligence we announced in Webb. We hold that while actual or constructive notice of a hazardous condition is one factor that a factfinder may consider in determining reasonableness, it is not an element of a prima facie case in a slip-and-fall action against a grocery store in Alaska. Rather than enter into a maze of legal rules and exceptions about what may constitute actual or constructive notice for the disposition of cases on summary judgment, we continue to trust that factfinders can best ascertain whether the proprietor of a grocery store acted reasonably in maintaining the store's premises considering all of the circumstances. We see no reason to tilt the contest between plaintiffs and defendants at the outset of a case.
Both parties asked us to consider adopting the "mode of operation" rule, adopted in a number of jurisdictions.[11] That rule provides for liability if the plaintiff shows that the hazard was reasonably foreseeable from the owner's method of doing business.[12] Courts that have adopted the mode of operation rule view it as an exception to the requirement of actual or constructive notice[13] or as a type of constructive notice.[14] But because actual or constructive notice is not an element of a prima facie case in a slip-and-fall action, there is no need for a mode of operation rule. We therefore decline to adopt it.
Proof that the grocery store owner knew or should have known of the hazard would bolster a plaintiff's case and make it more likely that the owner would be held liable in a given case, but notice is only one factor of many that a factfinder should consider in evaluating the reasonableness of the actions of the parties. Safeway claimed at *571 oral argument before us that not requiring actual or constructive notice as an element of a prima facie case effectively makes a store owner the insurer of his property or puts the burden of proving notice or reasonableness on the store owner. We disagree with these assertions. We held in Webb that in adopting a general standard of negligence, we were not making a landowner the insurer of his property.[15] As in any negligence case, the plaintiff still has the burden of showing that the defendant owed him a duty, that the defendant breached that duty, that he was injured, and that the breach of duty was the proximate cause of his injury.[16] Evidence of notice or lack thereof may be relevant to the question whether a defendant breached a duty of care and therefore should go to the fact finder.[17]
V. CONCLUSION
We HOLD that actual or constructive notice of a hazardous condition is not an element of a prima facie case in a slip-and-fall action against a grocery store owner in Alaska.
NOTES
[1] Rule 407(a) provides:
The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, a United States district court, a United States bankruptcy court or United States bankruptcy appellate panel, when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
[2] Alaska R.App. P. 407(a).
[3] Berg v. Popham, 113 P.3d 604, 607 (Alaska 2005) (quoting FDIC v. Laidlaw Transit, Inc., 21 P.3d 344, 346 (Alaska 2001)).
[4] Kallstrom v. United States, 43 P.3d 162, 165 (Alaska 2002) (citing M.A. v. United States, 951 P.2d 851, 853 (Alaska 1998); Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).
[5] 561 P.2d 731, 732-33 (Alaska 1977), superceded in part by statute, AS 09.65.200, as recognized in Univ. of Alaska v. Shanti, 835 P.2d 1225, 1228 n. 5 (Alaska 1992) (discussing AS 09.45.795, which was subsequently renumbered AS 09.65.200).
[6] Id. at 733.
[7] Id. at 735.
[8] 636 P.2d 47, 52-53 (Alaska 1981).
[9] Id. at 52.
[10] See Ortega v. Kmart Corp., 26 Cal. 4th 1200, 114 Cal. Rptr. 2d 470, 36 P.3d 11, 15 (2001) (noting that owner exercises reasonable care by making inspections); Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970) (holding that open produce displays place greater burden on store owner to remove debris from floor).
[11] See Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 863 N.E.2d 1276, 1282-83 (2007) (discussing mode of operation rule and jurisdictions adopting it).
[12] See Jackson v. K-Mart Corp., 251 Kan. 700, 840 P.2d 463, 470 (1992) (plaintiff who slipped and fell in spilled soda in store with in-store cafeteria, and who showed that manner of operation of store made spillage foreseeable, established store liability).
[13] Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz. 398, 733 P.2d 283, 285 (1987); Pimentel v. Roundup Co., 100 Wash.2d 39, 666 P.2d 888, 888-89 (1983).
[14] Rhoades v. K-Mart Corp., 863 P.2d 626, 631 (Wyo.1993).
[15] Webb v. City and Borough of Sitka, 561 P.2d 731, 734 (Alaska 1977).
[16] Alvey v. Pioneer Oilfield Servs., Inc., 648 P.2d 599, 600 (Alaska 1982) (citing Larman v. Kodiak Elec. Ass'n, 514 P.2d 1275, 1279 (Alaska 1973)).
[17] See Wickwire v. Arctic Circle Air Servs., 722 P.2d 930, 931, 933 (Alaska 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/109765/ | 434 U.S. 335 (1978)
NATIONAL LABOR RELATIONS BOARD
v.
LOCAL UNION NO. 103, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL-CIO, ET AL.
No. 76-719.
Supreme Court of United States.
Argued October 31, 1977.
Decided January 17, 1978.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.
*336 Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Richard A. Allen, John S. Irving, Carl L. Taylor, and Linda Sher.
Sydney L. Berger argued the cause for respondents. With him on the brief was Charles L. Berger.[*]
*337 MR. JUSTICE WHITE delivered the opinion of the Court.
Sections 8 (b) (7) and 8 (f) were added to the National Labor Relations Act in 1959.[1] Section 8 (f), permitting so-called *338 "prehire" agreements in the construction industry, provides that it shall not be an unfair labor practice to enter into such an agreement with a union that has not attained majority status prior to the execution of the agreement. Under § 8 (b) (7) (C), a union that is not the certified representative of the employees in the relevant unit commits an unfair labor practice if it pickets an employer with "an object" of "forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees" and if it does not within 30 days file a petition for an election under § 9 (c). The National Labor Relations Board (Board) held that it is an unfair labor practice within the meaning of § 8 (b) (7) (C) for an uncertified union not representing a majority of the employees to engage in extended picketing in an effort to enforce a prehire agreement with the employer.[2] The issue here is whether this is a misapplication of the section, as the Court of Appeals held in this case.[3]
*339 I
Higdon Construction Co. and Local 103 of the International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO (hereinafter Local 103), had a history of collective bargaining dating back to 1968. A prehire agreement was reached by Local 103 and Higdon on July 31, 1973, obliging Higdon to abide by the terms of the multiemployer understanding between Local 103 and the Tri-State Iron Workers Employers Association, Inc. No union security clause provision was contained in the Local 103-Higdon agreement. At about the same time, Higdon Contracting Co. was formed for the express purpose of carrying on construction work with nonunion labor. Local 103 picketed two projects subsequently undertaken by Higdon Contracting Co., in Kentucky and Indiana, with signs which read: "Higdon Construction Company is in violation of the agreement of the Iron Workers Local Number 103." Picketing at one jobsite persisted for more than 30 days, into March 1974. Local 103 had never represented a majority of the employees at either site and, although it was free to do so, it did not petition for a representation election to determine the wishes of the employees at either location.
On March 6, 1974, Higdon Contracting Co. filed a charge with the Regional Director of the Board, alleging that Local 103 was violating § 8 (b) (7) of the Labor Act. The Administrative Law Judge found that Higdon Contracting Co. and Higdon Construction Co. were legally indistinct for purposes of the proceedings. In an opinion issued August 23, 1974, he concluded that Local 103's picketing did not constitute an unfair labor practice. Higdon had entered into a lawful § 8 (f) prehire contract with Local 103 by which it promised to abide by the multiemployer standard. The picketing was for purposes of obtaining compliance with an existing contract, rather than to obtain recognition or bargaining as an initial matter. Only the latter was a purpose forbidden by § 8 (b) (7).
*340 The Board did not agree with the Administrative Law Judge. Relying on its R. J. Smith decision,[4] the Board emphasized the fact that Local 103 had never achieved majority status, and the § 8 (f) agreement thus had no binding force on the employer. For this reason, Local 103's picketing was not simply for the purpose of forcing compliance with an existing contract, even though the Board accepted the finding that only a single employer was involved. Under the Board's view of the law and the evidence, an object of the picketing was "forcing and requiring Higdon Contracting Company, Inc., to bargain with [Local 103], without being currently certified as the representative of Higdon Contracting Company, Inc.'s employees and without a petition under Section 9 (c) being filed within a reasonable period of time . . . ."
Local 103 sought review in the United States Court of Appeals for the District of Columbia Circuit. That court set aside the order, as it had set aside the Board's R. J. Smith order three years previously.[5] The Court of Appeals ruled that the validity of a § 8 (f) prehire contract carried with it the right to enforce that contract by picketing, and the right as well, when breach of the agreement occurs, to file and prevail on an unfair labor practice charge against the employer for failure to bargain. This elevation of a nonmajority union to the rights of majority status was acceptable, in the court's view, because of the second proviso to § 8 (f), which denies the usual contract bar protection to prehire agreements and permits a representation election to be held at the instance of either party at any time during the life of the agreement.
The Board's subsequent petition to this Court for a writ of certiorari was granted.[6] We reverse.
*341 II
It is undisputed that the union was not the certified representative of Higdon's employees and that it did not file an election petition within 30 days of the onset of the picketing. The issue for the Board was whether for the purposes of § 8 (b) (7) (C), the union pickets carrying signs asserting that Higdon was violating an agreement with the union were picketing with the forbidden purpose of requiring Higdon to recognize or bargain with the union. Under the Board's view of § 8 (f), a prehire agreement does not entitle a minority union to be treated as the majority representative of the employees until and unless it attains majority support in the relevant unit. Until that time the prehire agreement is voidable and does not have the same stature as a collective-bargaining contract entered into with a union actually representing a majority of the employees and recognized as such by the employer. Accordingly, the Board holds, as it did here, that picketing by a minority union to enforce a prehire agreement that the employer refuses to honor, effectively has the object of attaining recognition as the bargaining representative with majority support among the employees, and is consequently violative of § 8 (b) (7) (C). The Board and the Court of Appeals thus differ principally on the legal questions of how § 8 (f) is to be construed and of what consequences the execution of a prehire agreement has on the enforcement of other sections of the Act, primarily §§ 8 (a) (5) and 8 (b) (7) (C). We have concluded that the Board's construction of the Act, although perhaps not the only tenable one, is an acceptable reading of the statutory language and a reasonable implementation of the purposes of the relevant statutory sections.[7]
*342 Although on its face, § 8 (b) (7) (C) would apply to any extended picketing by an uncertified union where recognition or bargaining is an object, the section has not been literally *343 applied. The Board holds that an employer's refusal to honor a collective-bargaining contract executed with the union having majority support is a refusal to bargain and an unfair labor practice under § 8 (a) (5).[8] Extended picketing by the union attempting to enforce the contract thus seeks to require bargaining, but as the Board applies the Act, § 8 (b) (7) (C) does not bar such picketing. Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086 (1964); Bay Counties District Council of Carpenters (Disney Roofing & Material Co.), 154 N. L. R. B. 1598, 1605 (1965). The prohibition of § 8 (b) (7) (C) against picketing with an object of forcing an employer "to recognize or bargain with a labor organization" should not be read as encompassing two separate and unrelated terms, but was "intended to proscribe picketing having as its target forcing or requiring an employer's initial acceptance of the union as the bargaining representative of his employees." Sullivan Electric, supra, at 1087.
As the present case demonstrates, however, the Sullivan Electric rule does not protect picketing to enforce a contract *344 entered into pursuant to § 8 (f) where the union is not and has never been the chosen representative of a majority of the employees in a relevant unit. Neither will the Board issue a § 8 (a) (5) bargaining order against an employee refusing to abide by a § 8 (f) contract unless the complaining union can demonstrate its majority status in the unit. R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971).
The Board's position is rooted in the generally prevailing statutory policy that a union should not purport to act as the collective-bargaining agent for all unit employees, and may not be recognized as such, unless it is the voice of the majority of the employees in the unit. Section 7 of the Act, 61 Stat. 140, 29 U. S. C. § 157, guarantees the employees the right to bargain collectively with representatives of their own choosing. Section 9 (a), 29 U. S. C. § 159 (a), provides that the bargaining agent for all of the employees in the appropriate unit must be the representative "designated or selected for the purposes of collective bargaining by the majority of the employees . . . ."
It is thus an unfair practice for an employer under §§ 8 (a) (1) and (2) and for a union under § 8 (b) (1) (A) to interfere with, restrain, or coerce employees in the exercise of their right to select their representative. The Court has held that both union and employer commit unfair practices when they sign a collective-bargaining agreement recognizing the union as the exclusive bargaining representative when in fact only a minority of the employees have authorized the union to represent their interests. "There could be no clearer abridgment of § 7 of the Act, assuring employees the right `to bargain collectively through representatives of their own choosing' or `to refrain from' such activity" than to grant "exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority." Garment Workers v. NLRB, 366 U. S. 731, 737 (1961). This is true even though the employer and the union believe in good faith, but mistakenly, that the union *345 has obtained majority support. "To countenance such an excuse would place in permissibly careless employer and union hands the power to completely frustrate employee realization of the premise of the Actthat its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives." Id., at 738-739.
Section 8 (f) is an exception to this rule. The execution of an agreement with a minority union, an act normally an unfair practice by both employer and union, is legitimated by § 8 (f) when the employer is in the construction industry. The exception is nevertheless of limited scope, for the usual rule protecting the union from inquiry into its majority status during the terms of a collective-bargaining contract does not apply to prehire agreements. A proviso to the section declares that a § 8 (f) contract, which would be invalid absent the section, "shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e)." The employer and its employeesand the union itself for that mattermay call for a bargaining representative election at any time.
The proviso exposing unions with prehire agreements to inquiry into their majority standing by elections under § 9 (c) led the Board to its decision in R. J. Smith: An employer does not commit an unfair practice under § 8 (a) (5) when he refuses to honor the contract and bargain with the union and the union fails to establish in the unfair labor practice proceeding that it has ever had majority support. As viewed by the Board, a "prehire agreement is merely a preliminary step that contemplates further action for the development of a full bargaining relationship." Ruttmann Construction Co., 191 N. L. R. B. 701, 702 (1971). The employer's duty to bargain and honor the contract is contingent on the union's attaining majority support at the various construction sites. In NLRB v. Irvin, 475 F. 2d 1265 (CA3 1973), for example, the prehire contract was deemed binding on those projects at which the union had secured a majority but not with respect to those *346 projects not yet begun before the union had terminated the contract.
Applying this view of § 8 (f) in the § 8 (b) (7) (C) context, the Board held in this case that when the union picketed to enforce its prehire agreement, Higdon could challenge the union's majority standing by filing a § 8 (b) (7) charge and could prevail, as Higdon did here, because the union admittedly lacked majority credentials at the picketed projects. Absent these qualifications, the collective-bargaining relationship and the union's entitlement to act as the exclusive bargaining agent had never matured. Picketing to enforce the § 8 (f) contract was the legal equivalent of picketing to require recognition as the exclusive agent, and § 8 (b) (7) (C) was infringed when the union failed to request an election within 30 days.
Nothing in the language or purposes of either § 8 (f) or § 8 (b) (7) forecloses this application of the statute. Because of § 8 (f), the making of prehire agreements with minority unions is not an unfair practice as it would be in other industries. But § 8 (f) itself does not purport to authorize picketing to enforce prehire agreements where the union has not achieved majority support. Neither does it expand the duty of an employer under § 8 (a) (5), which is to bargain with a majority representative, to require the employer to bargain with a union with which he has executed a prehire agreement but which has failed to win majority support in the covered unit.
As for § 8 (b) (7), which, along with § 8 (f), was added in 1959, its major purpose was to implement one of the Act's principal goalsto ensure that employees were free to make an uncoerced choice of bargaining agent. As we recognized in Connell Construction Co. v. Plumbers & Steamfitters, 421 U. S. 616 (1975), "[o]ne of the major aims of the 1959 Act was to limit `top down' organizing campaigns, in which unions used economic weapons to force recognition from an employer *347 regardless of the wishes of his employees." Id., at 632, and references cited therein. The use of picketing was of particular concern as a method of coercion in three specific contexts: where employees had already selected another union representative, where employees had recently voted against a labor union, and where employees had not been given a chance to vote on the question of representation. Picketing in these circumstances was thought impermissibly to interfere with the employees' freedom of choice.[9]
Congressional concern about coerced designations of bargaining agents did not evaporate as the focus turned to the *348 construction industry.[10] Section 8 (f) was, of course, motivated by an awareness of the unique situation in that industry. Because the Board had not asserted jurisdiction over the construction industry before 1947, the House Committee Report observed that concepts evoked by the Board had been "developed without reference to the construction industry." H. R. Rep. No. 741, 86th Cong., 1st Sess., 19 (1959), 1 Leg. Hist. 777. There were two aspects peculiar to the building trades that Congress apparently thought justified the use of prehire agreements with unions that did not then represent a majority of the employees:
"One reason for this practice is that it is necessary for the employer to know his labor costs before making the estimate upon which his bid will be based. A second reason is that the employer must be able to have available a supply of skilled craftsmen ready for quick referral." Ibid.
*349 The Senate Report also noted that "[r]epresentation elections in a large segment of the industry are not feasible to demonstrate. . . majority status due to the short periods of actual employment by specific employers." S. Rep. No. 187, 86th Cong., 1st Sess., 55 (1959), 1 Leg. Hist. 541-542. Privileging unions and employers to execute and observe prehire agreements in an effort to accommodate the special circumstances in the construction industry may have greatly convenienced unions and employers, but in no sense can it be portrayed as an expression of the employees' organizational wishes. Hence the proviso that an election could be demanded despite the prehire agreement. By the same token, because § 8 (b) (7) was adopted to ensure voluntary, uncoerced selection of a bargaining representative by employees, we cannot fault the Board for holding that § 8 (b) (7) applies to a minority union picketing to enforce a prehire contract.
The Board's position does not, as respondents claim, render § 8 (f) meaningless.[11] Except for § 8 (f), neither the employer nor the union could execute prehire agreements without committing unfair labor practices. Neither has the Board challenged the voluntary observance of otherwise valid § 8 (f) contracts, which is the normal course of events. It is also *350 undisputed that when the union successfully seeks majority support, the prehire agreement attains the status of a collective-bargaining agreement executed by the employer with a union representing a majority of the employees in the unit.
The Board's resolution of the conflicting claims in this case represents a defensible construction of the statute and is entitled to considerable deference. Courts may prefer a different application of the relevant sections, but "[t]he function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." NLRB v. Truck Drivers, 353 U. S. 87, 96 (1957); NLRB v. Insurance Agents, 361 U. S. 477, 499 (1960). Of course, "recognition of the appropriate sphere of the administrative power . . . obviously cannot exclude all judicial review of the Board's actions." Ibid. But we cannot say that the Board has here "[moved] into a new area of regulation which Congress [has] not committed to it." Ibid. In American Ship Building Co. v. NLRB, 380 U. S. 300, 318 (1965), the Court was "unable to find that any fair construction of the provisions relied on by the Board . . . can support its finding of an unfair labor practice . . . [T]he role assumed by the Board . . . [was] fundamentally inconsistent with the structure of the Act and the function of the sections relied upon." As we have explained, this is not the case here.
The union suggests that the Board's construction of § 8 (f) deserves little or no deference because it is merely an application in the § 8 (b) (7) context of the decision in R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971), which itself was inconsistent with a prior decision, Oilfield Maintenance Co., 142 N. L. R. B. 1384 (1963). It is not at all clear from the latter case, however, that the union involved there had never had majority status. The issue received only passing attention at the time; and the case was distinguished by the Board *351 in Ruttmann Construction Co., 191 N. L. R. B., at 701 n. 5, decided the same day as R. J. Smith, supra, as being "primarily concerned" with "the right of a successor-employer to disavow contracts made by a predecessor with five different unions and substitute the terms of a contract it had with another union." In any event, if Oilfield Maintenance represents a view that the majority status of the union executing a prehire agreement may not be challenged in unfair labor practice proceedings, the Board has plainly not adhered to that approach. Its contrary view has been expressed on more than one occasion.[12] An administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes.
The union argues that the Board's position permitting an employer to repudiate a prehire agreement until the union attains majority support renders the contract for all practical purposes unenforceable, assertedly contrary to this Court's decision in Retail Clerks v. Lion Dry Goods, Inc., 369 U. S. 17 (1962). There, the Court's opinion recognized that § 301 of the Labor Management Relations Act confers jurisdiction on the federal courts to entertain suits on contracts between an employer and a minority union, as well as those with majority-designated collective-bargaining agents. Section 8 (f) contracts were noted as being in this category. The Court was nevertheless speaking to an issue of jurisdiction. That a court has jurisdiction to consider a suit on a particular contract does not suggest that the contract is enforceable. It would not be inconsistent with Lion Dry Goods for a court to hold that the *352 union's majority standing is subject to litigation in a § 301 suit to enforce a § 8 (f) contract, just as it is in a § 8 (a) (5) unfair labor practice proceeding, and that absent a showing that the union is the majority's chosen instrument, the contract is unenforceable.
It is also clear from what has already been said, that the decision here is not inconsistent with Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086 (1964). That case merely permits picketing to enforce contracts with a union actually representing a majority of the employees in the unit. Here, the union did not represent the majority, and in picketing to enforce the prehire agreement, it sought the privileges of a majority representative. The conclusion that § 8 (b) (7) was violated is legally defensible and factually acceptable.
The judgment of the Court of Appeals is reversed.
So ordered.
MR. JUSTICE STEWART, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE STEVENS join, dissenting.
An employer in the construction industry, like any other employer, is under no obligation to bargain with a labor organization that does not represent a majority of his employees.[1] See NLRB v. Philamon Laboratories, Inc., 298 F. 2d 176, 179 (CA2). But unlike other employers, he is free to do so, and may under § 8 (f) sign a contract with a union whose majority status has not been established without risking liability under *353 § 8 (a) (1) for interfering with the organizational rights of employees by recognizing a minority union.[2] Cf. Garment Workers v. NLRB, 366 U. S. 731. When an employer in the construction industry does choose to enter a § 8 (f) prehire agreement, there is nothing in the provisions or policies of national labor law that allows the employer, or the Board, to dismiss the agreement as a nullity. Yet in this case the Court holds that both the Board and the employer may do precisely that.
Whether or not it has the "same stature as a collective-bargaining contract" with a majority union, ante, at 341, or may be the subject of a § 8 (a) (5) bargaining order, R. J. Smith Construction Co., 191 N. L. R. B. 693, enf. denied sub nom. Engineers Local 150 v. NLRB, 156 U. S. App. D. C. 294, 480 F. 2d 1186, a § 8 (f) prehire agreement is a contract embodying correlative obligations between two parties. The Board in this case concedes that the employer could lawfully have chosen to adhere to the agreement even though the union had not attained majority status. Thus even if Higdon was under no legal duty to abide by the terms of the prehire agreement, that fact does not establish that Higdon was immune from economic pressure aimed at encouraging it to do so.
Peaceful primary picketing in pursuit of lawful objectives, even by a minority union, is not forbidden by the National Labor Relations Act unless it falls within an express statutory prohibition. NLRB v. Teamsters, 362 U. S. 274, 282. The *354 only such statutory provision that the Board believes to be applicable to this case is § 8 (b) (7), which prohibits most organizational and recognitional picketing.[3] But the Board's contention that § 8 (b) (7) prohibits picketing to compel compliance with an existing prehire agreement is not supported by the language of that section or by the Board's prior interpretations of it.
Section 8 (b) (7) prohibits "picketing to force an employer `to recognize or bargain with a labor organization as the representative of his employees.' " Building & Construction Trades Council of Santa Barbara County (Sullivan Electric Co.), 146 N. L. R. B. 1086, 1087 (quoting statute, emphasis in Board's opinion). As interpreted by the Board, this section does not prohibit picketing to enforce an existing collective-bargaining contract, even though enforcement would require actual bargaining, since it was intended to proscribe only "picketing having as its target forcing or requiring an employer's initial acceptance of the union as the bargaining representative of his employees." Ibid. (Emphasis supplied.)
However one may view the relationship established by a § 8 (f) agreement, it is established when the agreement is signed. Only by the most strained interpretation of the terms can picketing to enforce the agreement be said to be for the *355 purpose of gaining "initial acceptance" or recognition.[4] And such a tortured construction would be patently inconsistent with § 13 of the Act, 29 U. S. C. § 163, which "is a command of Congress to the courts to resolve doubts and ambiguities in favor of an interpretation . . . which safeguards the right to strike as understood prior to the passage of the Taft-Hartley Act." NLRB v. Teamsters, supra, at 282.
Since I think neither § 8 (b) (7) nor any other provision of the Act rendered illegal the union's peaceful primary picket protesting Higdon's unilateral and total breach of its prehire agreement, I would affirm the judgment of the Court of Appeals.
NOTES
[*] J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.
[1] Section 8 (b) (7), 73 Stat. 544, 29 U. S. C. § 158 (b) (7), provides:
"It shall be an unfair labor practice for a labor organization or its agents . . . to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:
"(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9 (c) of this Act,
"(B) where within the preceding twelve months a valid election under section 9 (c) of this Act has been conducted, or
"(C) where such picketing has been conducted without a petition under section 9 (c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9 (c) (1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.
"Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8 (b)."
Section 8 (f), 73 Stat. 545, 29 U. S. C. § 158 (f), provides:
"It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in section 8 (a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreements, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day following the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the employer to notify such labor organization of opportunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employment, or (4) such agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to section 8 (a) (3) of this Act: Provided further, That any agreement which would be invalid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 9 (c) or 9 (e)."
[2] Iron Workers Local 103 (Higdon Contracting Co.), 216 N. L. R. B. 45 (1975).
[3] Iron Workers Local 103 v. NLRB, 175 U. S. App. D. C. 259, 535 F. 2d 87 (1976).
[4] R. J. Smith Construction Co., 191 N. L. R. B. 693 (1971), enf. denied sub nom. Engineers Local 150 v. NLRB, 156 U. S. App. D. C. 294, 480 F. 2d 1186 (1973).
[5] Engineers Local 150 v. NLRB, supra.
[6] 429 U. S. 1089 (1977).
[7] As will appear, the Board's conclusion that an object of the picketing was to obtain recognition even though Local 103 sought only to enforce the § 8 (f) contract, flows from the Board's view that a prehire contract is not the equivalent of recognizing the union as the majority representative of the employees, and that an attempt to enforce the prehire agreement by picketing to require the employer to treat with the union is recognitional picketing.
Determining the object, or objects, of labor union picketing is a recurring and necessary function of the Board. Its resolution of these mixed factual and legal questions normally survives judicial review. A type of activity frequently found to violate § 8 (b) (7) is picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers. Even in cases where the union expressly disavows any recognitional intent, acceptance of the uniform terms proposed by the union can have the "net effect" of establishing the union "as the negotiator of wage rates and benefits." Centralia Building & Construction Trades Council v. NLRB, 124 U. S. App. D. C. 212, 214, 363 F. 2d 699, 701 (1966). "The Board has held that informing the public that an employer does not employ members of a labor organization indicates an organizational object, and that stating that an employer does not have a contract with a labor organization similarly implies an object of recognition and bargaining." Carpenters Local 906, 204 N. L. R. B. 138, 139 (1973). Hence, picketing to enforce area standards, where an employer had been assured by notice from the union that "while we expect you to observe the wages, hours, and other benefits set forth in these documents, we do not expect or seek any collective bargaining relationship with your firm," has been held to violate § 8 (b) (7). Hotel & Restaurant Employees (Holiday Inns of America, Inc.), 169 N. L. R. B. 683, 684 (1968).
The Courts of Appeals have upheld the Board in these inferences. "Though this legend [`Non-Union Conditions'] could be interpreted as merely a protest of the restaurant's working conditions, it was reasonable for the NLRB to conclude that the message . . . was at least in part that the union desired to alter a non-union working situation by obtaining recognition. In the absence of any countervailing evidence, the NLRB could thus determine that the purpose of the picketing was recognitional." San Francisco Local Joint Board v. NLRB, 163 U. S. App. D. C. 234, 239, 501 F. 2d 794, 799 (1974). See also NLRB v. Carpenters, 450 F. 2d 1255 (CA9 1971), and cases cited therein.
In the present case, the Local's business agent contacted Higdon Contracting's general manager, asking "if `we' were going to use union people on the job." The general manager answered in the negative; the business agent replied, "I'll get right on it," and the pickets materialized. The message on the picket signs announced that Higdon was not in compliance with the terms of its agreement with Local 103. The inference is certainly sustainable that Local 103 wished Higdon to abide by those terms.
Hence, if the Board is correct in its view of the interaction of §§ 8 (f) and 8 (b) (7) (C), the Board's decision here was within settled precedent in concluding that a purpose of the picketing was to force Higdon Contracting to recognize or bargain with the union. The picketing carried on in this case, unless § 8 (f) required a contrary conclusion as a matter of law, was in clear violation of § 8 (b) (7) (C).
[8] See NLRB v. Hyde, 339 F. 2d 568, 571-573 (CA9 1965). A contract with a majority representative also carries with it the presumption that the union's majority status still obtains. Dayton Motels, Inc., 192 N. L. R. B. 674, 678 (1971), remanded, 474 F. 2d 328 (CA6 1973), enf'd, 525 F. 2d 476 (CA6 1976).
[9] "The total effect of these proposals in the administration bill would be to regulate picketing so that employers and their employees will not be subject to the continuous coercion of an organizational picket line." 105 Cong. Rec. 1731 (1959) (remarks of Sen. Dirksen), 2 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 994 (hereinafter cited as Leg. Hist.).
The administration bill had added the provisions that would become § 8 (b) (7). The Department of Labor's explanatory statement grouped together the ways in which unfair picketing pressure could be exerted, and noted that the bill would make it "an unfair labor practice, subject to mandatory injunction, for a union to picket in order to coerce an employer to recognize it as bargaining representative of his employees. . . ." 105 Cong. Rec. 1281 (1959), 2 Leg. Hist. 977.
The President's transmittal letter had stated:
"I recommend legislation . . . [t]o make it illegal for a union, by picketing, to coerce an employer to recognize it as the bargaining representative of his employees or his employees to accept or designate it as their representative where the employer has recognized in accordance with law another labor organization, or where a representation election has been conducted within the last preceding 12 months, or where it cannot be demonstrated that there is a sufficient showing of interest on the part of the employees in being represented by the picketing union or where the picketing has continued for a reasonable period of time without the desires of the employees being determined by a representation election; and to provide speedy and effective enforcement measures." S. Doc. No. 10, 86th Cong., 1st Sess., 2-3 (1959), 1 Leg. Hist. 81-82 (emphasis added).
[10] Congress was careful to make its intention clear that prehire agreements were to be arrived at voluntarily, and no element of coercion was to be admitted into the narrow exception being established to the majority principle. Representative Barden, an important House floor leader on the bill and a conferee, introduced as an expression of legislative intent Senator Kennedy's explanation the year before of the voluntary nature of the prehire provision:
"Mr. Kennedy: I shall answer the Senator from Florida as followsand it is my intention, by so answering, to establish the legislative history on this question: It was not the intention of the committee to require by section 604 (a) the making of prehire agreements, but, rather, to permit them; nor was it the intention of the committee to authorize a labor organization to strike, picket, or otherwise coerce an employer to sign a prehire agreement where the majority status of the union had not been established. The purpose of this section is to permit voluntary prehire agreements." 105 Cong. Rec. 18128 (1959), 2 Leg. Hist. 1715.
The House Conference Report similarly stressed that "[n]othing in such provision is intended . . . to authorize the use of force, coercion, strikes, or picketing to compel any person to enter into such prehire agreements." H. R. Rep. No. 1147, 86th Cong., 1st Sess., 42 (1959), 1 Leg. Hist. 946.
[11] A comparable situation obtains concerning hot-cargo clauses, which are permitted in the construction industry by § 8 (e), 29 U. S. C. § 158 (e), but which cannot be enforced by picketing, Before the enactment of the proviso, this Court held that it was a violation of the secondary boycott provisions of the Act, § 8 (b) (4) (A), 61 Stat. 136, to enforce a lawful hot-cargo clause in a contract by refusing to work. Carpenters v. NLRB, 357 U. S. 93 (1958). After the adoption of § 8 (e), it has remained the Board's position that a hot-cargo clause in the construction industry, which is exempted from the ban of § 8 (e), may not be enforced by conduct forbidden by § 8 (b) (4). Northeastern Indiana Building & Construction Trades Council, 148 N. L. R. B. 854 (1964), remanded on other grounds, 122 U. S. App. D. C. 220, 352 F. 2d 696 (1965). Cf. NLRB v. Pipefitters, 429 U. S. 507 (1977) (valid work preservation agreement does not privilege secondary boycott picketing).
[12] In R. J. Smith, the Board expressly limited any such implication from Oilfield Maintenance to cases where a rebuttable presumption of majority status, or majority status in fact, existed. One-time majority status, coupled with a union security clause that has been enforced, gives rise to a rebuttable presumption of continued majority status, in the Board's view. See R. J. Smith, 191 N. L. R. B., at 695.
[1] Section 8 (a) (5) of the National Labor Relations Act, as set forth in 29 U. S. C. § 158 (a) (5), provides that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title." Section 9 (a), 29 U. S. C. § 159 (a), provides in pertinent part that "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining . . . ."
[2] Section 8 (f) of the National Labor Relations Act, as set forth in 29 U. S. C. § 158 (f), provides in pertinent part:
"It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members . . . because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such agreement . . . ."
[3] Section 8 (b) (7) of the National Labor Relations Act, as set forth in 29 U. S. C. § 158 (b) (7), provides in pertinent part that it shall be an unfair labor practice for a labor organization
"to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective-bargaining representative, unless such labor organization is currently certified as the representative of such employees:
.....
"(C) where such picketing has been conducted without a petition under section 159 (c) of this title being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing . . . ."
[4] The Board and the Court rely on cases holding that "picketing ostensibly for the purpose of forcing an employer to abide by terms incorporated into agreements between the union and other employers" may in fact have a recognitional purpose in violation of § 8 (b) (7). Ante, at 342 n. 7. See, e. g., Carpenters Local 906, 204 N. L. R. B. 138; Hotel & Restaurant Employees (Holiday Inns of America, Inc.), 169 N. L. R. B. 683. But in none of these cases did the union and the employer have a pre-existing relationship under a § 8 (f) agreement. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1613910/ | 23 So.3d 190 (2009)
A.L.B., a minor child, Appellant,
v.
STATE of Florida, Appellee.
No. 1D09-2036.
District Court of Appeal of Florida, First District.
November 5, 2009.
*191 Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Tallahassee, for Appellee.
BENTON, J.
On this direct appeal in a juvenile case, we affirm the disposition order committing A.L.B. to a moderate-risk facility despite a recommendation by the Department of Juvenile Justice that adjudication be withheld and that she be placed on probation. We do not affirm, however, without "misgivings and concerns," Washington v. State, 814 So.2d 1187, 1189 (Fla. 5th DCA 2002), regarding whether the trial court complied with the strict standard set forth in E.A.R. v. State, 4 So.3d 614 (Fla.2009). See id. at 638 (requiring juvenile courts, in departure dispositions, to "[a]rticulate an understanding" and "[t]hen logically and persuasively explain why" departure is appropriate). These misgivings arise from uncertainty about the interplay of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), State v. Causey, 503 So.2d 321 (Fla.1987), and Florida Rule of Juvenile Procedure 8.135(b)(2).
Like the Washington court, we conclude that the absence of any objection at the time of sentencing, followed by the failure to file a motion to correct sentencing error before the initial brief was filed, precludes correction even of "fundamental" sentencing errors on direct appeal. See 814 So.2d at 1189-90. See also Maddox v. State, 760 So.2d 89, 102, 110 (Fla.2000) (holding "improper habitualization" to be fundamental error, although not susceptible to correction on direct appeal after the "window period [following] the enactment of the Criminal Appeal Reform Act" had closed); Colon v. State, 869 So.2d 1290, 1290 (Fla. 4th DCA 2004) (affirming convictions and sentences because "unpreserved sentencing error cannot be corrected in an Anders case"). But a motion to correct sentencing error "may be filed by appellate counsel." Fla. R.Crim. P. 3.800(b)(2). Similarly, as to motions for correction of disposition or commitment orders, Florida Rule of Juvenile Procedure 8.135(b)(2) provides that the "motion may be filed by appellate counsel and must be served before the party's first brief is served."
No such motion was filed in the present case. In a juvenile case that is closely analogous to the present case, we certified as questions of great public importance the following:
NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR *192 IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAUSEY IN SUCH A CASE?
A.F.E. v. State, 853 So.2d 1091, 1095 (Fla. 1st DCA 2003) (affirming departure disposition in Anders case despite error because appellant failed to preserve the issue for review on direct appeal). We certify the same questions in the present case.
Today's affirmance is without prejudice to appellant's right to seek relief collaterally, see Wilson v. State, 898 So.2d 191, 193 (Fla. 1st DCA 2005); Colon, 869 So.2d at 1290, although such relief may be of little practical use to appellant. See A.F.E., 853 So.2d at 1093 ("That a party may seek collateral relief ... is of little practical assistance in juvenile cases, where the sentence imposed may be completed before any relief is granted.").
Affirmed. Questions certified.
KAHN and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2178114/ | 86 Cal.App.3d 905 (1978)
150 Cal. Rptr. 676
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL DAVID CRAIG et al., Defendants and Appellants.
Docket No. 9364.
Court of Appeals of California, Third District.
December 1, 1978.
*909 COUNSEL
Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Gary S. Goodpaster and Ezra Hendon, Chief Assistant State Public Defenders, Richard L. Phillips, James G. Wright, Michael Lee Pinkerton, and Laurance Smith, Deputy State Public Defenders, Hayne R. Moyer and Rebecca W. Phillips, under appointments by the Court of Appeal, for Defendants and Appellants.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Gregory W. Baugher and Robert F. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
REGAN, Acting P.J.
These are appeals from judgments entered upon jury convictions for violations of Penal Code sections 211 (robbery), 496 (possession of stolen property), and 1203.6, subdivision (a)(1), and 12022.5 (use of a firearm during the commission of one of the robberies).
On January 30, 1977, about 8:30 p.m., Melinda Duncan was walking through the parking lot of a food market at Stockton and Fruitridge in Sacramento, California, when she was approached from behind by a black male. She was carrying a purse over her left arm. The man seized the purse and then struck Ms. Duncan in the face. She refused to relinquish the purse and the man dragged her by the purse across the parking lot until the purse strap broke; he then ran with the purse to a car.
Ms. Duncan followed the suspect to the car which contained two other black men whom she was unable to identify. She and the suspect reached the car about the same time and they ended up facing each other over the open door on the passenger side. The suspect then struck Ms. Duncan repeatedly in the face with his fist. When she fell to the ground, he entered the car and they drove away. Ms. Duncan identified defendant Cunningham as the man who struck her and took her purse. She described the car as an older, white Nova, with red interior. When shown a picture of the car, she identified it as the one the suspect used. The car was later proved to be a stolen vehicle.
*910 About 10:45 that same night, a white Nova, containing three black males, was driven to the gas-pump location of a car wash at Florin and Franklin in Sacramento. The driver requested gasoline. While the pump was running, Michael Fox, the attendant and a subsequent victim, was in the attendant's booth and had occasion to observe, for a few seconds, the face of the man on the passenger side of the front seat. He subsequently identified him as defendant Turner.
After stopping the pump, Fox requested payment from the driver. The driver, pointing a revolver at Fox, said something to the effect of "give me the money." Fox opened the cash drawer, telling him to "go ahead, take it." As the driver raided the cash drawer, Fox backed away and ran to call the police. Upon returning to the booth, after the suspects had fled, he noticed the liner of the cash drawer and an estimated $100 were missing. Fox subsequently identified defendant Craig as the driver.
Observing Fox running toward the office, a coworker, Mitch Willey, asked what happened. Fox said: "I've been robbed." Willey, and two others, Richard Mason and Ken Pritten, then pursued the white Nova in two vehicles. At an apartment complex on 29th Street, the Nova entered the south driveway bordering the complex and stopped. The three suspects exited, running into the complex. Mason, who had followed the Nova to the complex, went to a nearby apartment and asked the occupants to call the police. Mason did not see any person moving around the grounds of the complex.
When the police arrived, they began to surround the complex. One of the first units to arrive was Officer Reed with an experienced, trained police dog. Reed was driving slowly when the dog alerted and barked and Reed stopped the car. He then sighted three black males together at an exit to 29th Street near the center of the complex. The three persons turned and reentered the complex. Reed radioed a report of the sighting to other officers who, by now, had a brief description of the suspects.
Officers Hagio and Strassberg were in a marked squad car driving along the northern perimeter of the complex. Shortly after they heard Reed's broadcast, they observed three black males moving inside the complex. Hagio stopped the vehicle and he and Strassberg exited and attempted to follow the three subjects. However, the subjects disappeared. The officers were returning to their squad car when the three subjects reappeared and were ordered to approach the squad car, which they did.
*911 The officers conducted a pat-down search for weapons and the subjects were advised of the officers' participation in a robbery investigation. The subjects were questioned, then placed into the lighted back seat of the squad car. The robbery victim, Fox, was transported to the scene in an attempt to make an in-the-field identification. Fox was driven past the lighted squad car and was able to identify Craig and Turner, whereupon all the subjects were taken to the police station.
The Nova was searched and found to contain Ms. Duncan's purse and some of its contents. Officers then searched the complex for the cash-drawer liner, gun and other evidence, but found nothing. Officer Reed and the dog were ordered to track from the interior of the vehicle. After being allowed to smell inside the Nova, the dog followed the path of the suspects from that point to the point where the detention occurred.
Defendants contend the stop, pat-down search, detention and arrest were all unlawful; and their suppression motions pursuant to Penal Code section 1538.5 should have been granted.
(1) It is well established that a temporary detention may be justified by circumstances falling short of probable cause to arrest. An officer may stop and question persons on public streets when the circumstances indicate to a reasonable man in a like position that such a course of action is called for in the proper discharge of the officer's duties. The good-faith suspicion which warrants an officer's detention of a person for investigative reasons is necessarily of a lesser standard than required to effect an arrest. Where there is rational belief of criminal activity connected to the suspect, a detention for reasonable investigative procedures infringes no constitutional restraint. (People v. Harris (1975) 15 Cal.3d 384, 388-389 [124 Cal. Rptr. 536, 540 P.2d 632]; People v. Flores (1974) 12 Cal.3d 85, 91 [115 Cal. Rptr. 225, 524 P.2d 353]; cf. In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal. Rptr. 366, 582 P.2d 957].)
The officers here were acting on a general description of the robbery suspects. However, a general description has been held sufficient justification for stopping and questioning persons meeting that description. (See People v. Curtis (1969) 70 Cal.2d 347, 358 [74 Cal. Rptr. 713, 450 P.2d 33]; People v. Blackmon (1969) 276 Cal. App.2d 346, 348 [80 Cal. Rptr. 862].)
(2) Defendants did not perfectly match the general description given, however, since the descriptions and appearances were substantially the same, and coincided in the discernable factors (race, sex, build, number), *912 we hold the officers acted reasonably, under the circumstances, in stopping and initially detaining the defendants.[1]
(3) That officers have the right to conduct a pat-down search, under the proper circumstances, cannot be denied. (Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2d 889, 909, 88 S.Ct. 1868]; People v. Lawler (1973) 9 Cal.3d 156, 161 [107 Cal. Rptr. 13, 507 P.2d 621]; People v. Superior Court (1972) 7 Cal.3d 186, 204 [101 Cal. Rptr. 837, 496 P.2d 1205].) The officers were aware the crime involved was armed robbery, and a revolver had been used. We hold such knowledge sufficient, under the circumstances, to warrant the pat-down search.
(4) Defendants next argue that their placement in the back seat of the patrol vehicle was in effect an arrest, and unlawful as being without probable cause. The People argue this was reasonable detention, warranted by the circumstances, for the purpose of in-field witness identification. We agree.
In People v. Harris, supra, 15 Cal.3d at page 389, the courts first noted the existence of a gray area, where the facts justify measures beyond detention but short of arrest. The facts in Harris were similar to those here, where suspects had been properly stopped a few blocks from the crime scene, had aroused further suspicion in the officers (but short of probable cause), and where the officers desired a witness-identification of the suspects to bolster the case. The Harris court was disinclined to hold that circumstances short of probable cause are never sufficient to warrant transportation of a suspect back to the crime scene for identification. (Id., at p. 390.) The court indicated instances in which such transportation might be reasonable, then said: "Ordinarily there exist less intrusive and more reasonable alternatives to pre-arrest transportation. The officers may call or escort the witness to the detention scene for an immediate viewing of the suspect...." (Italics added.) (Id., at p. 391.) The Harris court, noting the failure of the officers to use an alternative to transportation of the suspect, and the total lack of exigent circumstances which would justify the transportation of the suspect, held the officers' taking the suspect back to the scene of the crime for identification violated the suspect's constitutional rights. (Id., at p. 391.)
*913 The facts and circumstances here fit squarely within the suggested alternative of Harris. Implicit in that decision is the belief of the Supreme Court in the right of officers to detain a suspect for a reasonable period of time for identification. Accordingly, we hold the officers' detention of defendants, for the purpose of identification by the victim was reasonable where the period of detention was only a few minutes (5-10), and the victim was brought to the suspect. It was proper, under the circumstances, for defendants to be held inside a police vehicle while awaiting the victim. If Harris would allow transportation of a suspect in a police vehicle, the similar placement of a suspect in a police vehicle would not, in our view, be improper where the vehicle is immobile.
(5) Once Fox had identified defendants Craig and Turner, there was ample probable cause to arrest all defendants. Cunningham's contention that he should have been released because he was not identified is totally without merit. There had been a crime involving three male Negroes, who had committed an armed robbery, were pursued by witnesses to an apartment complex, where, a few minutes later, three male Negroes were apprehended by officers. A positive identification was made of two of the three, only about thirty minutes having elapsed between the robbery and the identification. In fact, the men were not out of the sight of witnesses or officers for more than about five or ten minutes. We are asked to believe one suspect split off from the others and was replaced by Cunningham without either person being seen alone in the complex. There was ample probable cause to arrest Cunningham as the third, unidentified subject.
Having held all defendants' arrests valid, it naturally follows the subsequent identification of Cunningham by Ms. Duncan was therefore not the fruit of an illegal arrest.
(6) Defendants next contend the field identification by the victim, Fox, was unconstitutionally suggestive and should have been excluded. The propriety of such an identification has been upheld repeatedly. (See People v. Rodriguez (1970) 10 Cal. App.3d 18, 29-30 [88 Cal. Rptr. 789]; People v. Anthony (1970) 7 Cal. App.3d 751, 764-765 [86 Cal. Rptr. 767]; People v. Levine (1969) 276 Cal. App.2d 206, 208 [80 Cal. Rptr. 731]; People v. Colgain (1969) 276 Cal. App.2d 118, 125-127 [80 Cal. Rptr. 659].) Where the defendant claims the pretrial identification was unnecessarily suggestive, he must show it gave rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968) 390 U.S. 377, 384 [19 L.Ed.2d 1247, 1253, 88 S.Ct. 967].)
*914 Defendants argue the in-field identification was too suggestive in that it exhibited only the defendants, they were inside a police car, police officers were around the car, and the victim had seen the escape vehicle abandoned in the parking lot. Defendants cite People v. Sandoval (1977) 70 Cal. App.3d 73, 85 [138 Cal. Rptr. 609], for the proposition a "single person showup" should not be used without a compelling reason. Sandoval did not involve an in-the-field identification, and the rationale of cases upholding these in-field identifications (e.g., People v. Anthony, supra, 7 Cal. App.3d at pp. 764-765) justifies single person showups, so long as the procedures used do not give rise to impermissible suggestion, a determination to be made in light of all the circumstances of the case. (People v. Sandoval, supra, at p. 85.)
We hold the procedures used by the police were justified by the nature of the circumstances. The identification was not unnecessarily suggestive.
Defendants contend there was error in allowing their in-court identification, due to an unnecessarily suggestive showup with Fox at the police station on the night of the crime. Fox was shown recent photographs of the three suspects and asked to identify which of the three he recognized.[2] He pointed out the two suspects he had identified earlier.
(7) A tainted pretrial identification makes an in-court identification inadmissible unless it can be shown the in-court identification had an origin independent of the pretrial identification. (People v. Williams (1973) 9 Cal.3d 24, 37 [106 Cal. Rptr. 622, 506 P.2d 998].)
After much questioning the trial court was satisfied Fox could make an independent in-court identification of the defendants without resorting to anything but the circumstances of the robbery itself. Though Fox admitted he could not completely wipe the other identifications from his mind, he stated he could also identify defendants solely from his perception of the crime itself. We find the trial court's determination of independent identification supported by substantial evidence and, therefore, hold the in-court identification proper and the effects of any possible taint from the showup harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Sandoval, supra, 70 Cal. App.3d at p. 86.)
*915 (8) Defendants next contend the evidence of dog trailing was improperly admitted at trial. Defendants rely on People v. Kelly (1976) 17 Cal.3d 24, 37-40 [130 Cal. Rptr. 144, 549 P.2d 1240], which held that evidence of voiceprint analysis was improperly admitted due to a lack of proper foundation. This is apparently a case of first impression in California. The nationwide authority on the subject of dog tracking is conflicting and of doubtful value, since we view the problem as one to be solved on an individual basis rather than a blanket acceptance or rejection of all such evidence.
The People argue Kelly is distinguishable because that case dealt with "the demonstrable reliability of a newly developed scientific technique." The argument is not without merit.
Were we to consider dog trailing to be on the same level as voiceprints, we could be compelled to judge its reliability by the standards set forth in Kelly. However, there is a basic distinction in the nature of the subject matter at hand.
In the area of new scientific techniques, especially dealing with electronic gadgetry, one piece of testing apparatus is essentially the same as another of similar design, make and purpose.
When dealing with animate objects, however, we must assume each and every unit is an individual and is different from all others. Within one breed of dog, or even with two dogs of the same parentage, it cannot be said each dog will have the same exact characteristics and abilities. Therefore, while the reliability of a machine can be duplicated and passed down the assembly line with relative ease, the abilities and reliability of each dog desired to be used in court must be shown on an individual basis before evidence of that dog's efforts is admissible. We simply cannot say all dogs can trail a human, or even that all dogs of specific breeds can do so.
Therefore, rather than attempt to identify certain specific criteria as being indicative of the ability of dogs, in general, to trail a human, we choose to require each particular dog's ability and reliability be shown on a case-by-case basis. We are not merely assuming a well-trained dog can trail a human; we say that this ability is a fact which, like other facts, may be proven by expert testimony.
This testimony should come from a person sufficiently acquainted with the dog, his training, ability and past record of reliability. If the testimony comes from an expert in the area of training, trailing, and operational performance of such dogs, that expert is qualified to state an opinion as to *916 the ability of that particular dog in question to trail a human.[3] We feel People v. Kelly, supra, and People v. King (1968) 266 Cal. App.2d 437, 458 [72 Cal. Rptr. 478], are distinguishable in that both cases deal with problems of general acceptance in the scientific community of inanimate scientific techniques, rather than specific recognition of one animal's ability to utilize a subjective, innate capability.
The reliability of each dog must be shown when the dog's ability is to be used as evidence in court. This subjective, innate ability depends upon many variables within the animal itself, which may become changed, damaged, or lost, whereby a once proven ability suffers impairment.
There was extensive testimony taken as to the expert qualification of Robert Outman, a dog trainer, and the training and skills of the dog. Outman was deemed an expert witness by the court, based on his evidenced qualification in the area. Based on the totality of the testimony, the dog was deemed able to follow a human trail. The evidence of his following defendants in this case was deemed competent. The court held a sufficient foundation had been laid and the evidence would be admitted.
Initially, we hold there was substantial evidence upon which the trial court could conclude Outman was a qualified expert. The evidence as to his qualification was so extensive and conclusive we deem it unnecessary to repeat it in detail here. We are careful to limit this qualification to Outman's proven expertise in dog training and handling, with particular emphasis on the training and handling of police dogs. Outman had trained the dog involved in this case.
Since Outman is a qualified expert in this area, we hold his opinion, based on a hypothetical situation substantially similar to the facts in the case at hand, is admissible expert testimony. Outman stated that Bobby (the dog) was able to follow a trail from beginning to end, to the exclusion of all other trails that may have intervened. He also stated Bobby and Officer Reed had been trained by him to work together, and performed in an excellent manner as a team. Bobby was performing at the 100 percent level in explosives detection, and work with humans. *917 Bobby and Reed rated 100 percent when started from a vehicle, and they maintained that proficiency level through subsequent evaluations conducted by Outman. Their overall performance had improved since the end of Outman's training.
After Outman's training, Bobby was further tested on a regular basis, about twice weekly by Reed. Besides the regular training, Reed utilized Bobby on at least four similar occasions prior to the events here in question.
In addition to these full-blown searches, Bobby had, on numerous occasions, followed suspects to a point where the evidence showed the suspects had entered vehicles and driven away. We believe there is substantial evidence to support the trial court's finding of reliability. (9) (See fn. 4.) We, therefore, hold the trial court properly admitted the evidence.[4]
(10) Defendants' next contention of error deals with the trial court's jury instruction regarding the evidence of dog trailing.
The proposed instruction read: "Testimony of dog trailing has been presented in this case. Such dog trailing evidence must be viewed with the utmost of caution and is of slight probative value. Such evidence must be considered, if found reliable, not separately, but in conjunction with all other testimony in the case, and in the absence of some other direct evidence of guilt, dog trailing evidence would not warrant conviction."
The instruction was modified and given as follows: "Testimony of dog trailing has been presented in this case. Such dog trailing evidence must be viewed with the utmost of caution. Such evidence must be considered, if found reliable, not separately, but in conjunction with all other evidence in the case. Dog trailing evidence alone is not sufficient to warrant conviction. In determining what weight to give such evidence you should consider the training, proficiency, experience, and proven ability, if any, of the dog, its trainer, and its handler, together with all the circumstances surrounding the trailing in question."
*918 Defendants contend the modifications allow the evidence too much weight. We hold it is not necessary to say there must be some other evidence of guilt, if you say dog trailing, by itself, is not sufficient to warrant conviction. The latter statement carries with it, by necessary implication, the fact that the evidence could only be sufficient to warrant conviction if supported by other evidence.
The only difference of substance between the proposed and modified instruction is in the deletion of the "slight probative value" wording. This deletion changes the effect of the instruction by allowing the evidence to be given more than just slight probative value. However, the modified instruction more closely states the law on this point. It treats evidence of dog trailing the same as any other evidence by allowing the weight given to the evidence to be left to the discretion of the finder of fact. (Evid. Code, § 312.) We hold there was no error in giving the modified instruction.
(11) Defendants' next contentions deal with the denial of mistrial motions, which were based on jury and spectator misconduct, and with the cumulative effect of such conduct. The misconduct alleged is twofold. Initially, a juror asked Officer Reed in the hallway outside the courtroom if the jury would be able to see the dog. Reed answered no, and the juror asked where the dog was. Reed replied that the dog was in the hospital.
Defendants argue this unauthorized communication was prejudicial to their defense, in that it alerted the prosecution to the jury's desire to know why the dog was not brought into court for their observation. Since the prosecution subsequently told the jury the dog had been injured, there is also a question, raised by defendants, as to whether the prosecution should be allowed to profit by the asserted misconduct, which they allege to be a deprivation of due process and impartial jury guarantees.
The trial court, in its discretion, denied the motion for mistrial, and our duty is to determine whether such action was an abuse of discretion. (People v. Roy (1971) 18 Cal. App.3d 537, 554 [95 Cal. Rptr. 884].) We hold any possibility of misconduct by unauthorized receipt of evidence was cured by the subsequent exposure of the entire jury to the evidence of the dog's whereabouts. Since defendants do not appeal the trial court's decision allowing the prosecution to show the dog's present whereabouts, we do not decide whether that evidence was properly admitted.
*919 (12) Defendants, additionally, argue there was reversible error in the trial court's denial of the motion for mistrial based on further juror misconduct, in that six of the jurors read a newspaper article on the accuracy of dogs used by the Sacramento Police Department. The article made no mention of the trial.
The court questioned the jury as a whole to determine if any of the jurors had seen the newspaper article. Six jurors had seen it. The jury was admonished to disregard it, or not to read it if it had not already been read. The judge also asked if those jurors who read it would have any problem disregarding its contents in their determination of the case. They were asked if they would have any difficulty in setting aside the article from their minds. None answered negatively. Defense counsel at that point appeared satisfied with the judge's handling of the matter and did not move for mistrial until sometime later.
Setting aside the question of waiver by failure to object timely, we are of the opinion any prejudice to defendants was cured by the court's admonition and assurance from the jurors that they would have no difficulty disregarding the article in the determination of the facts.
"It is misconduct for a juror to read newspaper accounts of a case on which he is sitting." (People v. Lambright (1964) 61 Cal.2d 482, 486 [39 Cal. Rptr. 209, 393 P.2d 409].) When misconduct is shown, it is presumed injurious to defendant unless shown otherwise. (People v. Wong Loung (1911) 159 Cal. 520, 529 [114 P. 829].) But here the article did not relate to the case upon which the jurors were sitting. Moreover, the court's immediate admonition, along with the jury's negative response sufficiently shows nonprejudice. Any misconduct being sufficiently cured, there was no error in denying a motion for mistrial. The trial court was satisfied no injustice would result, and we are as well. (People v. Romero (1977) 68 Cal. App.3d 543, 548 [137 Cal. Rptr. 675]; People v. Slocum (1975) 52 Cal. App.3d 867, 884 [125 Cal. Rptr. 442].)
As to the question of spectator misconduct, the first of two motions for mistrial came as a result of picketing inside the courthouse, which the jury had observed. The other motion for mistrial, based on spectator misconduct, came when a spectator was seen by jurors to be making motions with his hands during some defense-witness testimony. Defendants argue a necessary implication of the motions is the testimony of the defense witness was being coached, or was fabricated.
*920 (13) Misconduct on the part of a spectator constitutes a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. (Ibid.) However, a motion for mistrial may properly be refused where the court is satisfied no injustice has or will result from the conduct. (People v. Romero, supra, at p. 548; People v. Slocum, supra, at p. 884.)
The trial court indicated its satisfaction with the ability of the jury to render a fair and impartial verdict. The jury was promptly admonished to disregard outside influences. The trial court took proper, immediate action in each instance to insure against prejudice. (People v. Slocum, supra, at p. 883.) We hold the denial of motions for mistrial based on incidents of spectator misconduct was proper. We likewise hold the cumulative effect of claimed juror and spectator misconduct insufficient to constitute a denial of a fair trial. There simply was no showing of prejudice, other than by speculation of defense counsel, which speculation was easily overcome by the actions of the trial court. Even were we to concede error in any or all of these alleged misconduct instances, we would hold such error harmless since we are satisfied beyond a reasonable doubt they did not contribute to the verdict. (Chapman v. California (1967) supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
(14) At the beginning of trial, Cunningham moved for severance of his trial from that of his codefendants and contends the denial of this motion was reversible error.
A motion for severance is directed to the sound discretion of the trial court whose ruling will not be reversed on appeal in the absence of an abuse of discretion. (People v. Floyd (1970) 1 Cal.3d 694, 720 [83 Cal. Rptr. 608, 464 P.2d 64].)
Defendant argues there was such an abuse, since he was not charged with the armed robbery of the gas station (count II), yet the court failed to limit the use of the evidence on that count to the other defendants. This argument misses the mark. The evidence relating to count II also applies in greatest measure to the charge in count III, possession of a stolen vehicle. Logical inferences may be drawn from the count II evidence to the effect defendant was the third person in the suspect vehicle during the robbery, whereby defendant is definitely linked to the stolen vehicle which was the subject matter of the count III charge. We hold there was no abuse of discretion and no error in the denial of the severance motion.
*921 Finally, defendants contend the cumulative effect of error and misconduct requires reversal. Although in a proper case this is a ground for reversal (see People v. Buffum (1953) 40 Cal.2d 709, 726 [256 P.2d 317]; People v. Hatchett (1944) 63 Cal. App.2d 144, 152 [146 P.2d 469]), this is not such a case. We have not found error; and as we have stated on occasion, any possible error would be harmless beyond a reasonable doubt. There was no error in denying motions for mistrial based on both juror and spectator misconduct. Our review of the record discloses nothing of substance upon which to base a cumulative error contention. We hold such contention to be without merit.
The judgments are affirmed.
Paras, J., and Evans, J., concurred.
On December 26, 1978, the opinion was modified to read as printed above. Appellants' petitions for a hearing by the Supreme Court were denied February 1, 1979.
NOTES
[1] The suspects had been described by the victim, Fox. The first was a male Negro, small Afro, five feet, nine inches tall, medium build, blue levis. The second, a male Negro, medium Afro, yellow beanie-type hat with "Cheerios" on the back, and a torn shirt. The third, a male Negro with a small Afro. When stopped, at least one suspect had pink curlers in his hair. There was no "Cheerios" beanie, and no torn shirt.
[2] At the in-field identification, Fox indicated "that's them," but a short time later indicated he could only identify two of the three suspects (defendants Craig and Turner). The officer preparing to interrogate the suspects desired to know first which of the three was unidentified and where were the two identified suspects sitting in the car at the time of the robbery.
[3] We note the possible pecuniary interest of such experts in having their own dogs proven reliable in court. We feel this interest is not sufficient of itself to make the testimony unreliable as a matter of law, but is merely a factor going to the weight of such evidence, to be evaluated by the finder of fact.
[4] Defendants contend the evidence is inadmissible hearsay. Since a hearsay declarant is defined as "a person" (Evid. Code, § 135), and since the reliability of the evidence has already been extensively proven, and the defendants were given the opportunity to cross-examine the expert witness and officer who handled the dog, we feel the contention is without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600601/ | 186 P.3d 317 (2008)
220 Or. App. 366
STATE of Oregon, Plaintiff-Respondent, Cross-Appellant,
v.
Gregory James HOPSON, Defendant-Appellant, Cross-Respondent.
03CR0270, A126720.
Court of Appeals of Oregon.
Submitted on Remand January 3, 2008.
Decided June 11, 2008.
*318 Peter Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, for appellant-cross-respondent.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, for respondent-cross-appellant.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
HASELTON, P.J.
Defendant was convicted of first-degree sodomy, ORS 163.405, and first-degree kidnapping, ORS 163.235. At sentencing, the court determined that, under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), it could not make factual findings in support of consecutive sentences, ORS 137.123, but that it could make factual findings in support of a sexually violent dangerous offender sentence, under ORS 137.767, on the sodomy conviction. Defendant appealed, arguing that the court erred in imposing a sexually violent dangerous offender sentence because Blakely and Apprendi required jury findings to support such a sentence; the state cross-appealed, arguing that the court erred in concluding that it could not impose consecutive sentences on the convictions in light of Blakely and Apprendi. We reversed and remanded for resentencing on cross-appeal in light of our then-recent decision in State v. Tanner, 210 Or.App. 70, 150 P.3d 31 (2006), and, consequently, did not reach the issue raised on appeal. State v. Hopson, 214 Or.App. 288, 164 P.3d 342 (2007). The Oregon Supreme Court allowed review, vacated our decision, and remanded the case for reconsideration in light of State v. Ice, 343 Or. 248, 170 P.3d 1049 (2007), cert. granted, ___ U.S. ___, 128 S. Ct. 1657, 170 L. Ed. 2d 353 (2008). State v. Hopson, 343 Or. 366, 170 P.3d 1064 (2007).
In Ice, the Oregon Supreme Court held that judicial factfinding in support of consecutive sentences pursuant to ORS 137.123 violated the rule of law announced in Blakely and Apprendi. Consequently, and contrary to our original disposition, the trial court in this case was correct in concluding that it lacked the ability to make factual findings in support of a consecutive sentence.
Given that conclusion, we must now address defendant's assignment of error on appeal: Does judicial factfinding in support of a sexually violent dangerous offender sentence pursuant to ORS 137.765 likewise run afoul of Blakely and Apprendi? As explained below, we conclude that the answer is yes. Accordingly, we remand for resentencing.
ORS 137.767 allows a sentencing court to impose a sentence that includes a lifetime period of post-prison supervision for certain *319 offenses, but only if the court finds that the "person is a sexually violent dangerous offender." ORS 137.765(2)(b). "Sexually violent dangerous offender," in turn, is defined in ORS 137.765(1)(b) as "a person who has psychopathic personality features, sexually deviant arousal patterns or interests and a history of sexual assault and presents a substantial probability of committing a crime listed in subsection (3) of this section."[1]
In this case, defendant argued at sentencing that judicial factfinding in support of a sexually violent dangerous offender sentence would run afoul of the rule of law announced in Blakely, as interpreted in our then-recent case, State v. Warren, 195 Or.App. 656, 98 P.3d 1129 (2004), rev. den., 340 Or. 201, 131 P.3d 195 (2006) (regarding dangerous offender sentences). The sentencing court disagreed, and proceeded to find that defendant displayed psychopathic personality features and sexually deviant arousal patterns of interest, that he had a history of sexual assaults, and that he presented a substantial probability of committing crimes listed in ORS 137.765(3).
Defendant renews his challenge on appeal, reiterating the basic tenets from Blakely and Apprendi: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S. Ct. 2348. Moreover, a "statutory maximum" is the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S. Ct. 2531 (emphasis omitted).
The determination that a convicted defendant is a sexually violent dangerous offender has very substantial practical consequences. In this case, for example, but for defendant's designation as a sexually violent dangerous offender, he would have been required to serve only a three-year term of post-prison supervision after his incarceration term. OAR XXX-XXX-XXXX(2). As sanction for violation of the terms of post-prison supervision, an offender serving a three-year term of post-prison supervision may be required to serve up to a maximum of 12 months' incarceration. OAR XXX-XXX-XXXX(3)(c).
In contrast, as a sexually violent dangerous offender, defendant is required to serve a lifetime term of post-prison supervision after his incarceration. OAR XXX-XXX-XXXX(2)(b)(B); OAR XXX-XXX-XXXX(3). Moreover, the limits on sanctions provided in OAR XXX-XXX-XXXX(3) do not apply. OAR XXX-XXX-XXXX(4). Rather, for violations of post-prison supervision, defendant "may be incarcerated up to 180 days for any violation of post-prison supervision. The sanction may be imposed repeatedly during the term of the post-prison supervision for subsequent post-prison supervision violations." OAR XXX-XXX-XXXX(5). In addition, as a sexually violent dangerous offender, defendant "shall be subject to intensive supervision for the full period of post-prison supervision[.]" OAR XXX-XXX-XXXX(2). He "may not reside near locations where children are the primary occupants or users." OAR XXX-XXX-XXXX(1); see also OAR XXX-XXX-XXXX(1).
Despite those enhanced aspects of defendant's sentence, the state argues that the rule of law from Blakely and Apprendi should not apply, because that rule should be applicable only when an "enhanced punishment involves a particularly heightened stigma and liberty deprivation"and, in the state's view, lifetime intensive post-prison supervision does not meet that standard. In support of that view, the state relies on United States v. Nachtigal, 507 U.S. 1, 113 S. Ct. 1072, 122 L. Ed. 2d 374 (1993). As explained below, we do not view Nachtigal as supporting the state's contention.
In Nachtigal, the defendant, who was charged with a misdemeanor offense of driving under the influence, argued that he should be entitled to a jury trial because, even though the offense only carried a maximum term of imprisonment of six months, the court could alternatively impose a five-year *320 probationary term and could also impose numerous discretionary conditions of probation. 507 U.S. at 2, 113 S. Ct. 1072. The Supreme Court rejected that argument.
In so holding, the Court observed that whether a defendant is entitled under the Sixth Amendment to a jury trial depends on "objective indications of the seriousness with which society regards the offense." Id. at 3, 113 S. Ct. 1072 (quoting Blanton v. North Las Vegas, 489 U.S. 538, 541, 109 S. Ct. 1289, 103 L. Ed. 2d 550 (1989)). The Court then reiterated the analysis that it had employed in Blanton:
"The best indicator of society's views is the maximum penalty set by the legislature. Ibid. While the word `penalty' refers both to the term of imprisonment and other statutory penalties, we stated that `[p]rimary emphasis * * * must be placed on the maximum authorized period of incarceration.' [Blanton, 489 U.S.] at 542[, 109 S. Ct. 1289]. We therefore held that offenses for which the maximum period of incarceration is six months or less are presumptively `petty.' A defendant can overcome this presumption, and become entitled to a jury trial, only by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a `serious' one. Id. at 543[, 109 S. Ct. 1289]."
Nachtigal, 507 U.S. at 3-4, 113 S. Ct. 1072 (first brackets and ellipsis in original). Applying that analysis, the Court in Nachtigal concluded that, "[b]ecause the maximum term of imprisonment is six months, [the DUII] is presumptively a petty offense to which no jury trial right attaches." Id. at 4, 113 S. Ct. 1072. The Court further concluded that the fact that the defendant in Nachtigal was subject to, inter alia, a maximum five-year term of probation as an alternative to incarceration did not overcome the Blanton presumption because,
"[l]ike a monetary penalty, the liberty infringement caused by a term of probation is far less intrusive than incarceration. The discretionary probation conditions do not alter this conclusion; while they obviously entail a greater infringement on liberty than probation without attendant conditions, they do not approximate the severe loss of liberty caused by imprisonment for more than six months."
Id. at 5, 113 S. Ct. 1072 (citation omitted).
The state here, invoking Nachtigal, argues that "any liberty deprivation or stigma" associated with the enhanced supervision term resulting from the judicial imposition of a sexually violent dangerous offender designation is more closely analogous to the probationary term and conditions implicated in Nachtigal than to an increased period of incarceration, as in Apprendi and Blakely.
We note, as an initial matter, that Nachtigal does not purport to describe when a defendant who was entitled to a jury trial on a felony charge is entitled to have a jury find sentence enhancement factors. Rather, Blakely and Apprendi do thatand they do it without reference to Nachtigal, Blanton, or any other case about discerning the difference between a "petty" and a "serious" offense. Moreover, the test announced in Blakely and Apprendi bears no resemblance to the test described in Nachtigal and Blanton.
Further, and in a related sense, the Blanton/Nachtigal formulation is predicated on an assessment of the maximum totality of punishment to which the defendant is exposed. That inquiry does not purport to permit a court, in a sentencing context, to segregate and remove from the jury's consideration "nonserious," as opposed to "serious," sanctions. Thus, even under its own terms, if we were to apply the Blanton/Nachtigal "seriousness" formulation here, we would be obligated to consider the entire putative sentencing "package"that is, the combination of the "additional penalties" attending the sexually violent dangerous offender designation (viz., lifetime intensive post-prison supervision with unlimited incarcerative sanctions) and the "maximum prison term." Nachtigal, 507 U.S. at 4, 113 S. Ct. 1072.
In this case, defendant received a mandatory minimum sentence on his sodomy conviction of 100 months pursuant to ORS 137.700(2)(a)(L) (Measure 11). Because, under ORS 137.700(1), he will not be eligible for *321 any reductions in that term, that is his "prison term" for purposes of the test set forth in Nachtigal. Under Oregon law, there are only a handful of crimes that carry sanctions as severe or more severe. See generally ORS 137.700 (murder, attempted aggravated murder, manslaughter, and certain first-degree sexual offenses); ORS 163.095 (aggravated murder). In addition, the only crimes for which a defendant must serve lifetime post-prison supervision are aggravated murder and murder, unless the defendant has been found to be a sexually violent dangerous offender. OAR XXX-XXX-XXXX. Given the seriousness of the offense and the extent of the sanctions involved, the state's suggestion, under Nachtigal, that the sanctions at issue here are "petty" rather than "serious" is not well taken.
Conversely, application of Blakely and Apprendi here is straightforward. Post-prison supervision is part of a sentence. See, e.g., Haskins v. Palmateer, 186 Or.App. 159, 63 P.3d 31, rev. den., 335 Or. 510, 73 P.3d 291 (2003); OAR XXX-XXX-XXXX(3); OAR XXX-XXX-XXXX. A court is limited to the "statutory maximum" sentence that can be imposed based on the facts found by the jury or admitted by defendant, other than prior convictions. In particular, as the Court noted in Blakely, the statutory maximum is the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303, 124 S. Ct. 2531 (original emphasis omitted; emphasis added). In order to impose post-prison supervision beyond the three-year term otherwise authorized by OAR XXX-XXX-XXXX(2) (that is, the "statutory maximum"), the sentencing court needed to make additional factual findingsthose required by ORS 137.765(2)(b). Because those facts were not found by a jury beyond a reasonable doubt, the court erred in imposing a sexually violent dangerous offender sentence.
On appeal, sentence vacated; remanded for resentencing; otherwise affirmed. On cross-appeal, affirmed.
NOTES
[1] ORS 137.767(6) and (7) currently make provisions for jury determination of facts relevant to sexually violent dangerous offender sentencing, but those provisions were not in place when defendant was sentenced. Or. Laws 2007, ch. 16, § 7. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600602/ | 186 P.3d 39 (2008)
Gary CRIDER, Petitioner
v.
The PEOPLE of the State of Colorado, Respondent.
No. 06SC799.
Supreme Court of Colorado, En Banc.
June 2, 2008.
Rehearing Denied June 30, 2008.[*]
*40 Douglas K. Wilson, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
John W. Suthers, Colorado Attorney General, Wendy Ritz, First Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.
Justice COATS delivered the Opinion of the Court.
Crider sought review of the court of appeals' judgment affirming his convictions for attempted second degree murder and first degree assault. The court of appeals found that the district court erred in permitting the prosecuting attorney to refer to him during rebuttal closing argument as having lied to the jury in specific portions of his testimony. Under the circumstances of this case, however, it found the error to be harmless.
Although it is improper for an attorney to tell a jury that a witness has lied to them or to characterize the witness's testimony as a lie, the court of appeals applied the appropriate standard of review for harmlessness and correctly found that the error in this case did not warrant reversal. Its judgment is therefore affirmed.
I.
The defendant, Gary Crider, was charged with attempted first degree murder and first degree assault, for repeatedly striking his neighbor, Robert Gaudio, in the head with a hammer. He was acquitted of attempted first degree murder but was convicted of attempted second degree murder and first degree assault. He was sentenced to concurrent terms of eighteen years in prison.
The defendant and the victim both testified at trial and gave widely differing accounts of what transpired. In addition to the victim, the prosecution also presented the testimony of three witnesses to the latter part of the incident; several police officers, who responded to the emergency call, investigated the scene, and/or arrested the defendant; and the physician who provided emergency care for the victim.
The victim testified that the defendant, a neighbor in the same apartment complex with whom he had had only brief conversational exchanges in the past, came to his apartment asking to use his phone; and after chatting about golf and going into the kitchen for a glass of water, suddenly and without provocation attacked the victim with a hammer, striking him a number of times in the head. The victim described the two as wrestling around on the floor before he eventually managed to expel the defendant from the apartment, only to have him return and resume his attack as soon as the victim retreated to the kitchen to staunch the profuse bleeding from his head. According to the victim's account, he eventually managed to escape to the front lawn, where he fell and was forced to assume a fetal position in an attempt to ward off the barrage of hammer blows, which the defendant continued to inflict upon him.
One of the witnesses testified that he heard screaming and saw one man standing over another and continuously hitting him in the head with a hammer, with blood visibly flying into the air. When he yelled "police," the assailant fled, and although the witness initially gave chase, he quickly returned to assist the victim. At the same time, the witness's roommate called 911. A third witness testified to seeing the two figures from a distance, and when the one fled, the witness indirectly pursued him, cutting him off and tackling him, and unsuccessfully tried to return him to the scene. The witness testified that before the assailant got away, he demanded to know whether the witness had seen what the other man had done to him.
The victim was taken to the hospital and treated for multiple lacerations on his head and hands. His wounds required between sixty and seventy stitches, and the treating physician determined that he lost about eight percent of his blood volume. The defendant was arrested at his residence several days later, without having complained or otherwise reported the incident to the police. The arresting officer also testified that the defendant showed no signs of facial injuries, despite his testimony that the victim had initially struck him in the mouth with the hammer.
*41 The defendant defended against the charges on grounds of provocation and self-defense. In sharp contrast to the victim, the defendant testified that he was in the victim's apartment at the victim's request, to be repaid money the victim had borrowed from him. He claimed that when the victim indicated his inability to repay the loan after all, and the defendant pressed him for repayment, the victim threatened the defendant with a hammer. After himself being struck in the mouth and finally wresting the hammer from the victim, the defendant admitted striking the victim with it several times, but only in the course of defending himself. The defendant explained the continuing struggle and the actions and movement of both men to the front lawn in terms of his own attempts to escape from the victim's unrelenting attack, and he further explained that only after he finally managed to gain the upper hand, did he "snap" and begin hitting the victim with the hammer. Although their descriptions differed widely, both men gave detailed accounts of the progress of the struggle and their respective positions, movements, and motivations.
In closing argument, both counsel relied on photographs of the scene to corroborate one or the other version of the events. During her closing argument, defense counsel attempted to demonstrate that the presence, and absence, of blood stains in various police photographs of the scene contradicted the victim's account, telling the jury that "pictures do not lie." The prosecutor's objection that the photographs had been excluded from evidence at the insistence of the defendant was overruled with the explanation that it would be sufficient for the prosecution to be given an opportunity to respond in its rebuttal argument. In his rebuttal closing, the prosecuting attorney did respond by arguing that particular blood spatter evidence visible in the photographs actually contradicted key portions of the defendant's, rather than victim's, testimony.
The prosecuting attorney went further, however, and expressly drew the inference for the jury that the defendant therefore lied to them. Over contemporaneous objections that his argument amounted to an expression of personal opinion, the prosecutor characterized the defendant as lying or as having lied, and portions of his testimony as being lies, with regard to a handful of statements the prosecutor asserted to be indisputably contradicted by the blood evidence. Defense counsel's objections were overruled by the trial court on the grounds that each of these characterizations by the prosecuting attorney was directly related to specific physical evidence and therefore could not have been misunderstood as an expression of his personal opinion about the defendant's veracity or a suggestion that he was privy to information of which the jury was unaware.
On direct appeal, the court of appeals found the prosecutor's argument improper and the trial court's ruling erroneous, although it considered both understandable in light of subsequently overruled case law in the jurisdiction. It concluded, however, that reversal was not warranted in this case because it was highly unlikely, in light of the overwhelming evidence of the defendant's guilt, that this argument affected the jury's verdict.
The defendant petitioned for a writ of certiorari.
II.
In this jurisdiction it is improper for a lawyer to use any form of the word "lie" in characterizing for a jury a witness's testimony or his truthfulness. See Domingo-Gomez v. People, 125 P.3d 1043, 1050-51 (Colo.2005). As we have recently made abundantly clear, such usage is disapproved for a number of reasons. It is prohibited not only because it poses a risk of communicating the lawyer's personal opinion about the veracity of a witness and implying that the lawyer is privy to information not before the jury, but also simply because the word "lie" is an inflammatory term, likely (whether or not actually designed) to evoke strong and negative emotional reactions against the witness. See id.; see also Colo. RPC 3.4(e) (barring counsel from offering "personal opinion, personal knowledge, or inflammatory comments").
Although the appellate courts of this jurisdiction have long criticized jury arguments *42 including the word "lie" or related terms, see, e.g., Wilson v. People, 743 P.2d 415, 420 (Colo.1987); People v. Salter, 717 P.2d 976, 978 (Colo.App.1985); People v. Trujillo, 624 P.2d 924, 925-26 (Colo.App.1981); some case law in the jurisdiction had, until very recently, appeared to sanction the characterization of witness testimony as a lie, as long as the attorney's argument was related to specific evidence that tended to demonstrate that to be the case. See People v. Dashner, 77 P.3d 787, 792 (Colo.App.2003) (holding that prosecutor's argument that defendant lied on the stand was not error where prosecutor pointed to specific evidence refuting the defendant's testimony, which supported an inference that defendant was untruthful); see also People v. Kerber, 64 P.3d 930, 935 (Colo.App. 2002) (relying on other jurisdictions for proposition that prosecutors may refer to statements and testimony as a lie if the evidence supports that inference and the prosecutor relates the argument to specific evidence). As noted by the court of appeals, these precedents had not yet been overruled at the time of the trial in this case. While their continuing vitality at the time suggests why the prosecuting attorney carefully structured his argument as he did, and why the trial court overruled the defendant's objection to it, nevertheless permitting the use of the terms "lie," "lying," and "lied" was no less erroneous.
Error in the trial process, as distinguished from structural error, however, does not warrant the reversal of a conviction if it can be shown to have been harmless. Arteaga-Lansaw v. People, 159 P.3d 107, 110 (Colo.2007). With regard to prosecutorial misconduct in closing argument in particular, where the doctrine of harmless error has at times been criticized as lacking effectiveness, we have expressly rejected any per se rule requiring reversal as a sanction or deterrent, in favor of the case-by-case consideration of prejudice that is applicable to other non-structural errors. See Harris v. People, 888 P.2d 259, 267 n. 7 (Colo.1995); cf. United States v. Hasting, 461 U.S. 499, 505, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (finding use of Supreme Court's supervisory powers inappropriate in the context of closing argument, where competing interests of the criminal justice system are better protected by the harmless error doctrine).
We have evaluated the harmfulness of trial errors in varying terms, but we have consistently held that even properly objected-to trial error will be disregarded as harmless whenever there is no reasonable probability that it contributed to the defendant's conviction. People v. Garcia, 28 P.3d 340, 344 (Colo.2001); Salcedo v. People, 999 P.2d 833, 841 (Colo.2000). If the error amounts to a constitutional violation, or is of constitutional dimension, however, before disregarding it as harmless, a reviewing court must be convinced beyond a reasonable doubt of its lack of prejudicial impact. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); People v. Miller, 113 P.3d 743, 748 (Colo.2005); People v. Fry, 92 P.3d 970, 980 (Colo.2004).
Although virtually any trial error capable of prejudicing a criminal defendant could in some sense be characterized as affecting his right to a fair trial, neither this court nor the Supreme Court has ever designated broad categories of error, such as prosecutorial misconduct or even prosecutorial misconduct in closing argument, as error of constitutional magnitude. Depending upon the way in which argument is improper, and the particular risk it poses or right upon which it infringes, prohibited comments during closing argument may well, but need not, amount to constitutional error. Impermissible comment on a defendant's exercise of a specific constitutional right, such as his right not to testify, see Chapman, 386 U.S. at 24-25, 87 S. Ct. 824, his right to be tried by a jury, see People v. Rodgers, 756 P.2d 980, 985 (Colo.1988), or his right to post-arrest silence, see People v. Taylor, 159 P.3d 730, 740 (Colo.App.2006), have been addressed as constitutional error.
But exceeding less well-defined ethical boundaries by threatening to mislead a jury with expressions of personal opinion or inflammatory comments is broadly accepted as being subject to the discretion of the trial court, which does not rise to the level of constitutional error. See United States v. Martin, 815 F.2d 818, 823 (1st Cir.1987) *43 (vouching subject to harmless error analysis); People v. Hernandez, 267 Ill.App.3d 429, 206 Ill. Dec. 1, 644 N.E.2d 769, 776 (1994) (prosecutor's improper and inflammatory remarks comparing defendant to Al Capone subject to harmless error analysis); People v. Brosnan, 31 A.D.2d 975, 299 N.Y.S.2d 263, 266 (1969) (prosecutor's improper and inflammatory remarks characterizing defendant as an "animal," "liar," and "beast" subject at most to harmless error standard). Although such questions have generally arisen in this jurisdiction in the context of unobjected-to argument, this court had regularly undertaken a plain error analysis, rather than a harmless constitutional error analysis, long before we resolved in People v. Miller that a contemporaneous objection will be required even for error of constitutional magnitude. Compare Wilson, 743 P.2d at 419 (applying plain error analysis to prosecutor's remarks that defendant and his wife "lied" in their testimony), and Harris, 888 P.2d at 267 (applying plain error analysis to prosecutor's improper comparison of defendant to Saddam Hussein), with Rodgers, 756 P.2d at 984 (applying harmless beyond a reasonable doubt analysis to prosecutor's improper comment on defendant's exercise of his constitutional right to jury trial).
We have often indicated that the question of prejudicial impact cannot be reduced to a specific set of factors, determinative in every case, but instead that the likelihood of prejudice must be evaluated in the totality of the circumstances, on a case-by-case basis. While the strength of admissible evidence supporting the verdict is clearly one important consideration, see Domingo-Gomez, 125 P.3d at 1050, so too is the specific nature of the error committed and the nature of the prejudice or risk of prejudice associated with it. See Golob v. People, 180 P.3d 1006, 1013-14 (Colo.2008). Here not only was there strong evidence supporting the jury's verdicts, but the likelihood that they were improperly affected by the prosecutor's choice of language, under the circumstances of this case, was negligible.
In this case, physical evidence and the testimony of uninvolved bystanders, as well as the admissions of the defendant himself, left no doubt that he continued beating the victim with a hammer, on the front lawn of their apartment complex, until he was driven off by the bystanders. His testimony merely raised a question whether he was at that point continuing an attack he had begun inside or was himself initially attacked by the victim and only lost control and turned on the victim as the result of legally cognizable provocation. The prosecutor's characterizations of the defendant's testimony in rebuttal closing were expressly directed at the irreconcilability of certain of his assertions and the presence or absence of blood stains, smearing, and imprints in the photographs taken of the scene shortly after the incident.
The prosecutor walked the jury through the testimony, explaining why the victim's account of events was not inconsistent with the blood evidence and why the defendant's was. He recounted a number of specific movements described by the defendant and drew the jury's attention to areas in which blood, or smears in blood, should but did not appear. Most critically, he focused on the defendant's assertion that when he tried to leave the apartment and was followed by the victim in a rage, he ducked and the victim tumbled over him, with both men landing in the door area and struggling for the hammer. The prosecutor emphasized that the absence of blood on the concrete where, according to the defendant's account, it should have been, proved that the defendant was lying.
Although the language he chose has been disapproved as posing too great a risk, in the general case, of misleading or inflaming the passions of the jury, the prosecutor carefully structured his argument to avoid any suggestion that he was offering his personal opinion, based either on some greater experience in judging veracity or, even worse, on some greater knowledge of what actually occurred. For purposes of evaluating its impact, as distinguished from its propriety, it was significant that the prosecutor did not refer to the defendant as a "liar;" and when he did address the defendant's character for truthfulness generally, the prosecutor again carefully reminded the jury only of the inferences they were permitted to draw from the defendant's *44 two prior felony convictions. See § 13-90-101, C.R.S. (2007).
Because the impropriety in this case was limited to the prosecutor's use of an inflammatory term, as distinguished from drawing the jury's attention to the contradictory physical evidence in more neutral terms, the task of assessing the harmfulness of the error is similarly limited. The error must therefore be accounted harmless if there is no reasonable probability, in light of the physical evidence, that the differences between arguing that the defendant's contradictory statements were lies and arguing simply that they could not reasonably be believed, contributed to the jury's verdict. Viewed against this backdrop, we are quite convinced, as was the court of appeals, that there is no reasonable probability that the improper use of the words "lie," "lying," or "lied" contributed to the jury's verdicts in this particular case. Cf. Moore v. United States, 934 F. Supp. 724, 728-29 (E.D.Va. 1996) (collecting federal jurisdictions declining to reverse for using the word "liar" or its variants, as long as inference was justified by the evidence and prosecutor did not "suggest that this is a personal opinion or that it is based on extra-record government information").
After our holding in Domingo-Gomez, and again today, there should be no question that it is improper in this jurisdiction for an attorney to characterize a witness's testimony or his character for truthfulness with any form of the word "lie." This remains true regardless of the extent to which that testimony is contradicted by demonstrative or scientific evidence. A violation of this prohibition, although sanctionable in other ways, however, does not warrant reversal if it was harmless.
III.
Under the circumstances of this case, reversal of the defendant's convictions is not warranted. The judgment of the court of appeals is therefore affirmed.
Justice BENDER dissents, and Chief Justice MULLARKEY and Justice MARTINEZ join in the dissent.
Justice BENDER, dissenting.
While I agree with the majority that the prosecutor's repeated assertion that the defendant lied to the jury was improper, I disagree with the majority's holding that this error was harmless. I believe that there is a reasonable probability that the prosecutor's misconduct contributed to the defendant's conviction, and therefore I respectfully dissent.
Initially, I note that the majority's characterization of the prosecutor's rebuttal closing argument minimizes the egregiousness and the repetitive nature of the prosecutor's numerous violations. See maj. op. at 41. The prosecutor used some form of the word "lie" at least 13 times over the course of the rebuttal. A sampling of the prosecutor's statements include:
And that's how you know this man is lying to you, and that is what he did, he took an oath and he lied.
He lied. He lied. . . . He's lying to you.
He's lying to you about something else, he's lying to you about them rolling around out there on the concrete.
The lack of evidence proves he is lying to you and [the victim] is telling you the truth.
Again, he's lying to you.
The blood evidence supports the victim and shows the defendant is lying.
This man is guilty, he is guilty as charged. He got up there and tried to give you one of his excuses and he lied to you.
In addition, the prosecutor stated twice that the defendant "was not telling you the truth," and characterized the defendant's testimony as "ridiculous, not true." Further, while the prosecutor purported to remind the jury to consider Crider's two felony convictions only for the purpose of weighing credibility, his description of Crider as a "two-time loser" appears to border on improper use of character evidence.
I highlight these statements to make clear that the prosecutor's comments concerning the defendant's testimony as a lie were not isolated but rather permeated the entire rebuttal *45 argument, which is, of course, the last argument the jury hears before deliberation.
We have previously noted that the prosecutor's obligation to refrain from improper methods in pursuit of a conviction is rooted in the defendant's right to a fair and impartial jury as guaranteed by the United States and Colorado Constitutions. Harris v. People, 888 P.2d 259, 263 (Colo.1995). We have also held that a jury that has been misled by improper argument cannot be considered impartial. Id. at 264. Thus, while I agree with the majority that the weight of precedent from other jurisdictions holds that prosecutorial misconduct should not be reviewed under the constitutional harmless error standard, but rather under the general harmless error standard, I would apply the harmless error standard consistent with our earlier case law pronouncements which reflect the need to sanction this type of prosecutorial misconduct in order to ensure an accused's right to a fair and impartial trial.
Further, I disagree with the majority's articulation of the harmless error standard and its application in this case. The standard discussed by the majority improperly and unnecessarily narrows the prism of our analytical appellate review and is applied erroneously here on the issue of provocation.
The majority correctly notes that the question of prejudicial impact must be evaluated on a case-by-case basis and cannot be reduced to a specific set of factors. See maj. op. at 43. However, the majority posits that we must consider "the specific nature of the error committed and the nature of the prejudice or risk of prejudice associated with it." See maj. op. at 43. This language, which is purportedly derived from Golob v. People, 180 P.3d 1006 (Colo.2008), does not actually appear in that case and is, in my view, an inaccurate paraphrase of our holding in that case. The majority adds language to the harmless error standard which unnecessarily narrows the standard's already limited deterrent effect on prosecutorial misconduct. See Harris, 888 P.2d at 267 n. 7 ("[E]ven the application of the doctrine of harmless error in cases wherein prosecutors have engaged in improper argument has been criticized as too often rewarding such conduct while purporting to deter it.").
An error is harmless if it "does not affect substantial rights" of the defendant. Crim. P. 52(a). The error may be disregarded "if there is not a reasonable probability that the error contributed to the defendant's conviction." Salcedo v. People, 999 P.2d 833, 841 (Colo.2000) (quotations omitted). Thus, the proper inquiry is "whether the error substantially influenced the verdict or affected the fairness of the trial proceedings," id., and not merely whether there was sufficient evidence to support the verdict without the impropriety. People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989). If the error leaves the reviewing court "in grave doubt" as to the fairness of the proceedings, the conviction cannot stand. People v. Welsh, 80 P.3d 296, 310 (Colo.2003).
In this case, the jury was instructed to consider both whether Crider acted in self defense and whether he acted under provocation. As to the issue of self defense, I agree that the error was likely harmless. Crider himself admitted that after the two men struggled for the hammer, the victim ended up on the ground, and that he repeatedly struck the victim on the head with the hammer. Eyewitness accounts of Crider's conduct also negate the self-defense argument, at least after the attack continued outside the apartment. Additionally, the physical evidence, including the lack of any serious injury to Crider, negates this claim that the victim struck the first blow with the hammer.
However, as to the issue of provocation, I would conclude that the error was not harmless. First, on the issue of provocation, the credibility of the witnesses' testimony was of paramount importance. The claim went to the jury based on the word of one man against another regarding events that occurred while they were inside the apartment and which cannot be corroborated by physical evidence or eyewitness testimony a situation in which the jury's assessment of the witnesses' credibility may be the deciding factor. The prejudice of the prosecutor's statements that Crider was lying takes added significance under these circumstances. See Wilson v. People, 743 P.2d 415, 420 (Colo. *46 1987) (stating that where issue of credibility was of critical significance, prosecutor's characterization of witnesses' testimony as lies has added significance). The jury's decision on the issue of provocation turned on whether the jury chose to believe the testimony of Crider or the victim. In the absence of physical evidence or eyewitness testimony, this decision was not clear cut. Even the trial court noted that neither version of the events made sense. This would indicate that the victim's testimony was something less than compelling. Thus, it is difficult to conclude that the prosecutor's statements did not influence the jury on this matter.
Second, while it is improper for any attorney to characterize witness testimony as a lie, this error carries a greater risk of prejudice when committed by a prosecuting attorney because "the prosecutor represents the State and the People of Colorado," and the jury may "give greater weight to the prosecutor's arguments because of the prestige associated with the office." Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.2005).
Third, this is not a case where the prosecutor's improper comments were isolated. In Wilson, we held that it was reversible error for the prosecutor to call the defendant and defense witnesses liars eight times in a case that turned on whether to believe the victim or the defendant. 743 P.2d at 421. In that case, there were no contemporaneous objections, and the conviction was reversed under the plain error standard of review a higher bar than the harmless error standard in this case. Here, by contrast, the prosecutor used a form of the word "lie" at least thirteen times, and he did so in the rebuttal closing argument immediately before the jury left to deliberate. The repeated use of the improper argument at a time when the defendant had no opportunity to respond makes the misconduct particularly egregious.
For all of these reasons, I cannot say there is no reasonable probability that the prosecutor's misconduct in this case did not contribute to the jury's verdict finding no provocation. An error which prevents the jury from fully considering the issue of provocation, which mitigates the penalties for attempted second-degree murder and first-degree assault, is reversible error. See People v. Garcia, 28 P.3d 340 (Colo.2001) (reversing defendant's conviction under plain error standard where trial court gave incorrect jury instruction on provocation). I would therefore reverse the court of appeals. Accordingly, I respectfully dissent.
I am authorized to state that Chief Justice MULLARKEY and Justice MARTINEZ join in this dissent.
NOTES
[*] Chief Justice Mullarkey, Justice Martinez and Justice Bender would grant the Petition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2244431/ | 106 Cal. Rptr. 2d 926 (2001)
89 Cal. App. 4th 402
In re DANI R., a Person Coming Under the Juvenile Court Law.
Orange County Social Services Agency, Plaintiff and Respondent,
v.
Dan R. et al., Defendants and Appellants.
No. G027802.
Court of Appeal, Fourth District, Division Three.
May 23, 2001.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Dan R.
*927 Marsha Faith Levine, under appointment by the Court of Appeal, Irvine, for Defendant and Appellant Geraldine W.
Laurence M. Watson, County Counsel, and Julie J. Farber, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, Los Angeles, for the Minor.
OPINION
RYLAARSDAM, J.
Dan R. and Geraldine W., father and mother of 19-month-old Dani, appeal from a judgment declaring their son a dependent of the court and removing him from their parental custody. Father contends the juvenile court's jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b) and order removing Dani from his physical custody are not supported by substantial evidence. (All further statutory references are to the Welfare and Institutions Code.) In addition, he argues the court abused its discretion by granting him only monitored visitation. Mother joins in the issues raised by father and, in addition, contends the juvenile court erroneously denied her reunification services.
Minor's counsel informed us the juvenile court subsequently granted mother's section 388 petition for reunification services. On our own motion, we requested letter briefs addressing the issue of mootness. Respondent argues mother's appeal is moot and the remaining issues on appeal should also be dismissed as moot based on the parents' stipulation to various findings at the six-month review hearing. We agree and therefore dismiss.
DISCUSSION
The juvenile court sustained the allegations in the petition for the parents' failure to adequately protect Dani and for mother's prior abuse or neglect of his half siblings. The court also found "to vest custody with the parents at this time would be detrimental to the minor, and to vest custody with social services director is required to serve in the minor's best interests." Reunification services were ordered for father, but not for mother.
After the appeal was filed, mother petitioned the juvenile court for reunification services, and her petition was granted. The six-month review hearing took place on March 19, 2001, and the parents stipulated to the findings "that return of minor to parents would create a substantial risk of detriment to the physical or emotional well being of the minor" and "that there has been some progress made toward alleviating or mitigating the causes necessitating placement...."
"[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.) The question of mootness in a dependency case should be decided on a case-by-case basis, particularly when an error in the juvenile court's initial jurisdictional finding has been alleged. (In re Kristin B. (1986) 187 Cal. App. 3d 596, 605, 232 Cal. Rptr. 36; see also In re Joshua C. (1994) 24 Cal. App. 4th 1544, 1547, 30 Cal. Rptr. 2d 10.)
We previously held a parent does not waive the right to challenge the juvenile court's jurisdictional findings merely because the parent stipulates to a dispositional order. (In re Jennifer V. (1988) 197 Cal. App. 3d 1206, 1209-1210, 243 Cal. Rptr. 441.) In Jennifer V., we concluded waiver *928 would only be found in the event of an unambiguous stipulation to the jurisdictional findings. (Id. at p. 1209, 243 Cal. Rptr. 441.) Because the stipulation in that case contained no admission by the parents to the truth of the jurisdictional allegations of child abuse and neglect, we concluded the father had not waived his right to challenge the jurisdictional findings. (Id. at p. 1210, 243 Cal. Rptr. 441.)
More recently we concluded a parent had waived the right to challenge the juvenile court's jurisdictional findings by unambiguously stipulating to those jurisdictional findings at the six-month review hearing. (In re Eric. A. (1999) 73 Cal. App. 4th 1390, 1394-1395, 87 Cal. Rptr. 2d 401.) In Eric A, the father's attorney checked the box on the stipulation form stating "`pursuant to Section 364(c) ... [that] conditions still exist which would justify initial assumption of jurisdiction under Sec. 300...."' (Id. at p. 1394, 87 Cal. Rptr. 2d 401.) After concluding the father's stipulation constituted an express waiver, we further explained our "decision should serve notice that such stipulations are fatal to pending appeals." (Id. at p. 1395, 87 Cal. Rptr. 2d 401.)
The facts regarding the stipulation in this case are not directly analogous to the facts in either of our earlier decisions. Unlike Jennifer V., the parents here did more than simply stipulate to a dispositional order. But, unlike the father in Eric A, the parents refrained from checking the box stating "conditions still exist which would justify initial assumption of jurisdiction under Sec. 300." Respondent nonetheless argues Eric A. applies because the parents checked the boxes stating "that return of minor to parents would create a substantial risk of detriment to the physical or emotional well being of the minor" and "that there has been some progress made toward alleviating or mitigating the causes necessitating placement...." We agree.
The parents stipulated to express findings, made by "clear and convincing evidence," that it would be detrimental to return Dani to them and that continued placement is appropriate and necessary based on the progress they have made in alleviating or mitigating the causes necessitating Dani's placement. Read together, these findings amount to an unqualified admission that the initial jurisdictional findings and dispositional order are supported by substantial evidence. In addition, the parents stipulated to the visitation plan set forth in the social services reports filed with the juvenile court after the appeal was initiated. These subsequent acts directly contradict, and therefore moot, the issues raised in father's appeal. The sole issue raised by mother on appeal is also undeniably moot, because she has since been offered reunification services. (In re Pablo D. (1998) 67 Cal. App. 4th 759, 761, 79 Cal. Rptr. 2d 247.)
Father's counsel on appeal makes the unsupported argument the attorney at the six-month review hearing signed the stipulation without father's consent. While we note father did not personally attend the hearing, mother was present. The parents live together, father previously expressed his devotion to both mother and child, and there is no reason to believe father would not have consented to the stipulation even if he had personally `attended the six-month review hearing.
DISPOSITION
The appeal is dismissed.
SILLS, P.J., and O'LEARY, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600615/ | 186 P.3d 957 (2008)
STONE
v.
MEDLEY.
No. 20070912.
Supreme Court of Utah.
January 16, 2008.
Petition for certiorari denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2600335/ | 170 P.3d 815 (2007)
John HOLCOMB, Plaintiff-Appellant,
v.
STEVEN D. SMITH, INC.; Design Benefits, Inc.; America's Health Care/Rx Plan Agency, Inc.; and Does 15, Defendants-Appellees.
No. 06CA0997.
Colorado Court of Appeals, Div. IV.
September 6, 2007.
Lisa W. Stevens, Monument, Colorado, for Plaintiff-Appellant.
*816 No Appearance for Defendants-Appellees.
Opinion by Judge GRAHAM.
Plaintiff, John Holcomb, appeals the district court's partial summary judgment in favor of defendants, Steven D. Smith, Inc., Design Benefits, Inc., America's Health Care/Rx Plan Agency, Inc., and Does 1-5. We reverse and remand.
Plaintiff has a residential services telephone number that has been registered on the Colorado no-call list since July 2003. He uses the telephone number as a residential number but also publishes it as a business number in advertisements. Between February and April 2005, defendants, without plaintiff's consent, called plaintiff's telephone number for the purposes of telemarketing. Thereafter, plaintiff filed suit under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and the Colorado Consumer Protection Act (CCPA), specifically, the Colorado No-Call List Act, §§ 6-1-901 to -908, C.R.S.2006.
The district court entered partial summary judgment for defendants, concluding that a telephone number that is used for both personal and business purposes is not covered by the TCPA or the Colorado No-Call List Act. The court also noted that if "Plaintiff had not published his telephone number as a business number, perhaps the ruling would be different." After the court certified its partial summary judgment as final under C.R.C.P. 54(b), plaintiff appealed.
I.
Summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo.1999). We review a grant of summary judgment de novo. Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 298-99 (Colo.2003).
II.
Plaintiff contends that the district court erred in concluding that residential subscriber home telephone numbers that are registered on the no-call list are not protected under the Colorado No-Call List Act if they are also listed or published as a person's business telephone number and used for both personal and business purposes. We agree.
Initially, we note that in Holcomb v. Jan-Pro Cleaning Systems, 2007 WL 510198 (Colo. No. 06SC757, Feb. 20, 2007), the supreme court has granted certiorari on this same issue in a companion case, El Paso County District Court Case No. 06CV1687, in which the district court ruled as it did here. However, the supreme court has not yet issued a decision.
When interpreting a statute, we must give effect to the General Assembly's intent and adopt the statutory construction that best effectuates the purposes of the legislative scheme, looking first to the plain language of the statute. If the language is clear and unambiguous, we must interpret it as written, Progressive Specialty Ins. Co. v. Hartford Underwriters Ins. Co., 148 P.3d 470, 472 (Colo.App.2006), and we need not resort to the interpretive rules of statutory construction. Denver jetCenter, Inc. v. Arapahoe County Bd. of Equalization, 148 P.3d 228, 230 (Colo.App.2006).
Section 6-1-904(1)(a), C.R.S.2006, states:
No person or entity shall make or cause to be made any telephone solicitation to the telephone of any residential subscriber or wireless telephone service subscriber in this state who has added his or her telephone number and zip code to the Colorado no-call list in accordance with rules promulgated under section 6-1-905.
(Emphasis added.)
"`Residential subscriber' means a person who has subscribed to residential telephone service with a local exchange provider, as defined in section 40-15-102(18), C.R.S. `Person' also includes any other persons living or residing with such person." § 6-1-903(9), C.R.S.2006.
Under the plain language of the Colorado No-Call List Act, if a person subscribes to a residential telephone service and has added that telephone number to the Colorado no-call list, that telephone number is protected *817 from receiving telephone solicitations. The statute contains no exceptions or qualifying language whereby a residential subscriber home telephone number loses the protection of the Colorado No-Call List Act if that telephone number is also used for business purposes or published as the contact telephone number for a person's business. Nor does the statute provide that using the residential subscriber home telephone number for business purposes transforms the telephone number's classification from a residential listing to a business listing. Rather, the Colorado No-Call List Act unambiguously provides that if a person registers a residential subscriber home telephone number on the Colorado no-call list, that telephone number is per se protected under the Colorado No-Call List Act.
Because the Colorado No-Call List Act does not exempt from protection residential subscriber home telephone numbers that are registered on the no-call list and are used for both personal and business purposes, we will not read into the statute such an exception. See Titan Indem. Co. v. Sch. Dist. No. 1, 129 P.3d 1075, 1077 (Colo.App.2005).
We conclude that the structure, context, and clear and unambiguous import of the language used in the Colorado No-Call List Act reveal an unmistakable intent on the part of the General Assembly to protect the statutorily defined classification of "residential subscriber," without inquiry into how the home telephone is being used. Accordingly, we conclude that the district court erred in ruling that defendants did not violate the Colorado No-Call List Act.
III.
Plaintiff requests attorney fees under section 6-1-113(2)(b), C.R.S.2006. This section mandates costs and reasonable attorney fees in favor of a successful CCPA claimant. Therefore, on remand plaintiff will have an opportunity to establish that he is a successful CCPA claimant, and if so, he is entitled to attorney fees. To award them here would be premature. Plaintiff is entitled to his appellate costs pursuant to C.A.R. 39(a).
The summary judgment on plaintiff's claim of violation of the Colorado No-Call List Act is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.
Judge VOGT and Judge HAWTHORNE concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614873/ | 604 P.2d 111 (1979)
SHERIFF, CLARK COUNTY, Nevada, Appellant,
v.
D'Arcy Livingston STANDAL, Respondent.
No. 12146.
Supreme Court of Nevada.
December 20, 1979.
Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. and Nikolas L. Mastrangelo, Deputy Dist. Atty., Las Vegas, for appellant.
Goodman, Oshins, Brown & Singer and William B. Terry, Las Vegas, for respondent.
OPINION
PER CURIAM:
Respondent was charged by indictment with aiding and abetting statutory rape and a crime against nature. A pretrial petition for a writ of habeas corpus was granted by the district court. The sheriff appeals.
The only counts in the indictment against respondent were counts VI and VII. These counts read as follows:
COUNT VI Statutory Rape
Defendant Darlene Faye Standal aka D'ARCY LIVINGSTON STANDAL, did, on or about November 8, 1975, then and there wilfully, unlawfully and feloniously aid and abet STANLEY WILLIAM STANDAL in the act of carnal knowledge of [the victim], a female person under *112 the age of 16 years, said Defendant D'ARCY LIVINGSTON STANDAL being over the age of 21 years.
COUNT VII Infamous Crime Against Nature
Defendant Darlene Faye Standal aka D'ARCY LIVINGSTON STANDAL, did, on or about November 5, 1975, wilfully, unlawfully and feloniously aid, abet, and induce STANLEY WILLIAM STANDAL in committing the infamous crime against nature upon the person of [the victim], to place the penis of the said STANLEY WILLIAM STANDAL in the mouth of said [victim].
Nowhere in the indictment is respondent told the manner in which she aided and abetted a statutory rape or an infamous crime against nature. NRS 173.075(1) expressly provides that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." It is indicated by NRS 173.075(2) that the indictment should either include the means by which the offense was accomplished, or show that the means are unknown.
In Simpson v. District Court, 88 Nev. 654, 660, 503 P.2d 1225, 1229-30 (1972), a murder indictment was found to be inadequate. We stated:
Accordingly, we believe the following formulation of the law, by one of the leading authorities, correctly states the principle that must govern our decision:
"Whether at common law or under statute, the accusation must include a characterization of the crime and such description of the particular act alleged to have been committed by the accused as will enable him properly to defend against the accusation, and the description of the offense must be sufficiently full and complete to accord to the accused his constitutional right to due process of law." 4 R. Anderson, Wharton's Criminal Law and Procedure, § 1760, at 553 (1957).
The indictment or information must specify the acts of criminal conduct upon which the state is relying. Bielling v. Sheriff, 89 Nev. 112, 508 P.2d 546 (1973). Conclusory allegations are insufficient. Earlywine v. Sheriff, 94 Nev. 100, 575 P.2d 599 (1978).
Smith v. State, 572 P.2d 262 (Okl.Cr.App. 1977), is similar to the present case. In Smith, an information charged that the defendant did "wilfully, unlawfully, wrongfully, feloniously and knowingly harbor, aid, assist and conceal" a fugitive from justice. The information did not specify how the defendant harbored, aided, assisted and concealed the fugitive. Because the information did not inform the defendant of the acts committed by him, the information was held to be fatally defective.
In the present case we are faced with unusual circumstances where a woman is charged, as a principal, with sex crimes committed against a 14 year old girl. The basis of the indictment against respondent is the allegation that she aided and abetted Mr. Standal in the statutory rape and infamous crime against nature. Under the circumstances of this case, the aiding and abetting language is conclusory. It fails to give defendant the slightest information as to the acts she performed which make her guilty of a crime. The indictment is phrased in statutory terms. See NRS 195.020. However, where the statutory language is conclusory, allegations phrased solely in such language are insufficient. See Sheriff v. Levinson, 95 Nev. 436, 596 P.2d 232 (1979); Earlywine v. Sheriff, supra.[1]
The state apparently contends that respondent's course of conduct makes her guilty of aiding and abetting. We see no reason why the state cannot set forth the course of conduct with reasonable clarity in the indictment. See State v. Cutshaw, 7 *113 Ariz. App. 210, 437 P.2d 962 (1968). In this context, the state may not rely on the Grand Jury transcript to supplement the indictment. Simpson v. District Court, supra.
The district court granted the writ of habeas corpus on the grounds that the indictment was not supported by sufficient evidence at the Grand Jury hearing. Because of our ruling above, it is not necessary to reach the issue of sufficiency of the evidence. It is also not necessary to decide other issues raised by the petition.
The granting of a writ of habeas corpus is affirmed solely on the ground that the charging allegations in counts VI and VII are insufficient, without prejudice to any right of the state to institute new proceedings against respondent.[2]
MOWBRAY, C.J., and THOMPSON, GUNDERSON, MANOUKIAN and BATJER, JJ., concur.
NOTES
[1] This rule is in conformity with other jurisdictions. In People v. Donachy, 586 P.2d 14 (Colo. 1978), the Supreme Court of Colorado said: "[I]f the statute does not sufficiently set out the facts which constitute the offense, so that the defendant may have notice with what he is charged, then a more particular statement of facts is necessary." Id. at 16. See also, State v. Anderson, 242 Or. 457, 410 P.2d 230 (Or. 1966).
[2] We express no opinion as to whether new proceedings would be subject to the applicable statute of limitations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614875/ | 604 P.2d 809 (1980)
SHERIFF OF WASHOE COUNTY, Nevada, Appellant,
v.
Thomas Gene VASILE, Respondent.
No. 12195.
Supreme Court of Nevada.
January 3, 1980.
Richard H. Bryan, Atty. Gen., Carson City, Calvin R.X. Dunlap, Dist. Atty. and R. Craig Lusiani, Deputy Dist. Atty., Washoe County, Reno, for appellant.
C. Frederick Pinkerton, Reno, for respondent.
OPINION
PER CURIAM:
Thomas Gene Vasile was charged with a violation of NRS 453.321, sale of a controlled substance. A preliminary examination was held in the justice's court, and Vasile was bond over to the district court. A timely petition for a pretrial writ of habeas corpus was granted by the district court. The state appeals from the subsequent dismissal of all charges. We affirm.
At the preliminary examination, Reno police officer, John Douglas testified that he was introduced to Vasile at a Reno hotel. Introduction was made by a person referred to by Officer Douglas as a "confidential informant."
*810 After the informant introduced Officer Douglas to Vasile, all three individuals walked together to the hotel parking lot. They got into an undercover police car, and a marijuana sale purportedly took place between Vasile and Officer Douglas. As Vasile got out of the car, Officer Douglas gave a prearranged signal to other officers in the area, and Vasile was apprehended.
During cross examination of Officer Douglas at the preliminary examination, defense counsel asked for the name of the person who introduced Officer Douglas to Vasile and who was seated in the car during the purported marijuana sale. The prosecutor's objection, based on the confidential informant privilege, NRS 49.335,[1] was sustained.
At the conclusion of the preliminary examination, defense counsel requested a dismissal of the charges due to the impairment of Vasile's right to confront and cross examine witnesses, especially with reference to the identity of the so-called confidential informant. The magistrate did not expressly rule on the request for a dismissal. Instead, the magistrate ordered Vasile to answer charges in the district court.
The state's privilege to refuse disclosure of the identity of an informant is not unlimited. Where there is a reasonable probability that the informant can give testimony necessary to a fair determination of the issue of guilt or innocence, the state's claim of the privilege may result in a dismissal. NRS 49.365.[2]
In addition, the accused at a preliminary examination has the right to cross examine witnesses against him and to introduce evidence in his own behalf. NRS 171.196(4). Denial of this right by the magistrate is error. See Routhier v. Sheriff, 93 Nev. 149, 560 P.2d 1371 (1977). Under such circumstances, a writ of habeas corpus is an appropriate remedy. See Routhier v. Sheriff, supra.
In Routhier v. Sheriff, supra, the magistrate required a prosecution witness to divulge the name of an informant who had set up and witnessed the transaction which led to criminal charges. The magistrate, however, refused to grant a continuance to permit Routhier to call and interrogate the witness. The refusal denied the accused his right to call and cross examine witnesses under NRS 171.196(4), and the district court's denial of Routhier's petition for a writ of habeas corpus was reversed.
In the present case the magistrate refused to require disclosure of any information as to the identity of the witness. The state contends, however, that the identity of the informant need not have been disclosed because he was not a percipient witness.[3] The identity of an informant need not be disclosed where he is not a material witness, because he can neither supply information constituting a defense nor rebut a necessary element of an offense. Twigg v. Sheriff, 95 Nev. 112, 590 P.2d 630 (1979); State v. Stiglitz, 94 Nev. 158, 576 P.2d 746 (1978).
In Routhier v. Sheriff, supra, the informant set up and witnessed the transaction which led to criminal charges. That was precisely the situation involved in the present case. The informant here was seated in the undercover police car with Officer Douglas and Vasile. He was apparently *811 the only independent witness who could hear and see the transaction in question. He was a material witness whose identity should have been disclosed. The magistrate's refusal to require disclosure or dismiss the charges was error. Thus, the district court correctly granted Vasile's habeas petition. NRS 171.196(4). See Routhier v. Sheriff, supra.
In light of our ruling, it is not necessary to decide other grounds for dismissal raised in the habeas petition.
Affirmed.
NOTES
[1] NRS 49.335 provides:
"The state or a political subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished to a law enforcement officer information purporting to reveal the commission of a crime."
[2] NRS 49.365 provides:
"If the state or a political subdivision elects not to disclose the identity of an informer and the circumstances indicate a reasonable probability that the informer can give testimony necessary to a fair determination of the issue of guilt or innocence, the judge shall on motion of the accused dismiss the proceedings, and he may do so on his own motion."
[3] At the preliminary examination the prosecutor argued that the informer was not a percipient witness. Rather, he was "merely someone who was there at the time things went down." In opposition to the petition for a writ of habeas corpus the state argued in District Court that the informant "merely observed the transaction." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2614876/ | 24 Wash. App. 917 (1979)
604 P.2d 522
COURTRIGHT CATTLE COMPANY, Respondent,
v.
THE DOLSEN COMPANY, Appellant, JOHN B. COTTEN, ET AL, Respondents.
No. 3083-3.
The Court of Appeals of Washington, Division Three.
December 20, 1979.
*918 John S. Moore and Velikanje, Moore & Shore, for appellant.
Daniel P. Pepple, Gordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, Charles T. Schillberg, and Schillberg & Sorlien, for respondents.
ROE, J.
This is an action between innocent purchasers of the same personal property. Warden Leasing Co. owned certain land in Grant County, Washington. In 1971 Warden leased this land for a term of 15 years at $13,333.33 per month. There was a second lease 1 month later to the same effect which mentioned one 35-foot primary sewage treatment "clearifier,"[1] which is an apparatus for treating waste from the potato processing system. Lessee of both leases was Country Spuds which manufactured french fried potatoes. There was a third lease from Warden to Country Spuds about 1 year later which did not mention the clarifier. The clarifier is affixed to a concrete foundation and has remained at all times on the Warden leased real estate. The parties treated it as personal property throughout the transactions, as do we.
It is arguable whether the first lease from Warden to Country Spuds mentioned the clarifier. The third lease did not. The latter two leases from Warden to Country Spuds were filed for record, one in 1971 and the second in 1972. It appears, though this is not clear, that this clarifier was constructed on the property sometime in late 1971 or early 1972.
Courtright Cattle Co., which was given a judgment for damages in this case, runs a feedlot. It was interested in obtaining from the lessee Country Spuds the waste from the clarifier as cattle feed. A clarifier is a necessary adjunct to a potato processing plant, but Warden Leasing did not have sufficient funds to buy and construct one nor did *919 Courtright have sufficient cash on hand to finance ownership of the clarifier. Consequently, it sought assistance from the Dolsen Company in Yakima, a business which leases personal property.
In a 7-day period, beginning in November of 1972, the following events took place in reference to the clarifier. The chronological order is not necessarily the logical one.
On November 10, Country Spuds sent Warden Leasing a check for $25,000. This was in payment for the clarifier. Rent was not delinquent; this sum was an addition to the monthly rent. There were no supporting data such as a bill of sale or accompanying letters. The testimony indicates Warden Leasing received that money given for the clarifier. At that time title passed from Warden Leasing to Country Spuds.
On the same date there appeared an invoice from Country Spuds, Warden's lessee, indicating: shipped to Dolsen at Yakima and sold to Dolsen, one clarifier located at Country Spuds, Warden, Washington, $25,000. Obviously the clarifier, on its concrete base on the original leased land, was not shipped to Dolsen. Title passed from Country Spuds, which had just received title from Warden Leasing, to Dolsen. Again, there were no supporting data or bill of sale.
However, the previous day, November 9, a personal property lease was executed for the clarifier from Dolsen to Courtright. Possession of the clarifier (on its cement block) was still with Country Spuds and Courtright never took physical possession. Dolsen purchased this personal property from Country Spuds and leased it to Courtright for 60 months, or 5 years, for $550 a month using one of its form leases. It gave Courtright an option at the expiration of the term to purchase the leased property for $2,500. The parties testified they thought this would probably be the value of the clarifier at that time. Such testimony is important in determining whether that price is a "nominal consideration" which may convert an ostensible lease to a security agreement.
*920 Mr. Courtright testified the waste from the clarifier was useful to him and if he received the amount contemplated for the 5-year period, he would transfer title back to Country Spuds. In effect, the value of the waste which he could use for his cattle during the 5-year period would be equal to his interest in the transaction. The value of this waste actually received was not reckoned in the damages awarded Courtright. Country Spuds went bankrupt the next year, 1973, and operations ceased. It was not a party to this action. Courtright then did not get any more waste for its cattle from this clarifier. However, Courtright continued to make the monthly payments to Dolsen in Yakima and 5 years later, in 1977, Dolsen wrote Courtright and reminded it that the option on the lease became due and stated, "If you wish to pick it up, please sign and return the white copy to us. The amount of the option and any sales tax applicable is filled out for your approval. The October payment is, of course, due as usual."
Courtright exercised the option to purchase the clarifier in October 1977, with a $2,500 check to Dolsen. Title then passed from Dolsen to Courtright for the clarifier. The clarifier was securely in cement on land once owned by Warden Leasing, which had been leased to Country Spuds, both of which were insolvent in 1977. There was no potato processing at this time.
There was no notice given by filing or recording by Warden Leasing that it had sold the clarifier to Country Spuds or by Country Spuds that it owned the clarifier, probably because Country Spuds was in possession and had no need to give notice. There was no notice given by Dolsen that it owned the clarifier which was in possession of Country Spuds. There was also no notice given by Courtright that it was a lessee with an option to purchase the clarifier from Dolsen. After Country Spuds went bankrupt and abandoned the premises and operation, still no notices were given. The clarifier remained securely attached to its original cement base.
*921 Dolsen seems to have been quite innocent in many respects. It did not know the operation had been abandoned. There would be no reason to inquire since it received its monthly rental check from Courtright. It seems strange that Mr. Courtright continued making monthly payments without complaint since he was getting no benefit from the leased property; no doubt he felt obliged because of the instrument he signed.
Unknown, apparently, to all the parties heretofore mentioned except Warden Leasing was the fact that the Small Business Administration (SBA) had guaranteed payments on the Country Spuds lease to Warden Leasing; if Country Spuds did not pay, SBA would. However, Warden Leasing too became insolvent.
In 1974, Warden Leasing purported to convey by bill of sale and a deed to SBA all realty and personal property including the "classifier" (clarifier) which had been the subject of the lease to Country Spuds in which Courtright and Dolsen were involved. The SBA, of course, did not want this potato processing plant and so-called classifier and "sold it to Cotten," respondent in this action, and gave him a bill of sale which disclaimed all warranties.
In 1975, Cotten took possession of the clarifier, and Courtright continued to make payments to Dolsen on the lease. It will be seen that Warden Leasing sold this clarifier to two parties: (1) Country Spuds in 1972, who sold it to Dolsen the same year, who leased it to Courtright at the same time; and (2) in 1974 to SBA, which then sold it to Cotten. The questions are as between Cotten, grantee of SBA, and Dolsen, grantee of Country Spuds: Who owns the clarifier? What is the effect of the lease-option between Dolsen and Courtright? The trial judge decided this case on a comparative innocence theory adjudging title to be in respondent Cotten and that Dolsen owed Courtright approximately $28,000 in damages for failure to deliver the clarifier, on exercise of the option.
The basis of the trial court's conclusion is expressed in finding of fact No. 12:
*922 By failing to place anything of record or do any other act which would indicate their interest in said clarifier, Dolsen and Courtright Cattle Company and J.C. Courtright maintained the impression that Warden Leasing was the owner of the clarifier and that the SBA could acquire good title thereto from Warden Leasing and could convey good title thereto to Cotten. By their failure to record or do any other act which would indicate their interest in the clarifier, Dolsen and Courtright Cattle Company and J.C. Courtright made possible the sales to the SBA and to Cotten without the SBA or Cotten having any knowledge or notice whatsoever of any outstanding claims against the clarifier.
The trial court's rationale was an expression of the old rule that if property sold remains in the seller's possession, then in order for the buyer to protect himself, he must record his bill of sale. It reasoned that since Courtright and Dolsen failed to place of record their interest in the clarifier which was restored to the possession of the original seller, Warden Leasing, upon the insolvency of Country Spuds, that made possible the sale to SBA and from it to Cotten.
It was not suggested that the lease from Dolsen to Courtright was a security transaction. Rather, it was a bona fide lease of personal property. Since the Uniform Commercial Code, RCW 62A.9, part 3, applies to security interests, it does not determine the outcome of this action.
Is there any method by which the lessors (Warden Leasing and Dolsen) of personal property may record or otherwise give constructive notice of ownership? We do not find it in the U.C.C. RCW 62A.1-201(37) states:
(37) "Security interest" means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (RCW 62A.2-401) is limited in effect to a reservation of a "security interest". The term also includes any interest of a buyer of accounts, chattel paper, or contract rights which is subject to Article 9. The special property interest of a buyer of goods on identification of such goods to a contract for sale under RCW 62A.2-401 is not a "security interest", but a buyer *923 may also acquire a "security interest" by complying with Article 9. Unless a lease or consignment is intended as security, reservation of title thereunder is not a "security interest" but a consignment is in any event subject to the provisions on consignment sales (RCW 62A.2-326). Whether a lease is intended as security is to be determined by the facts of each case; however, (a) the inclusion of an option to purchase does not of itself make the lease one intended for security, and (b) an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.
(Italics ours.) Dolsen, citing Swanson v. White, 83 Wash. 2d 175, 517 P.2d 959 (1973), states that there was no way Dolsen could have protected itself nor is it required to do so. Swanson v. White, supra, involved an action by a tenant who was the lessee of real estate and also a lessee of certain personal property. (The tenant had defaulted on both leases.) The landlord sought to foreclose for unpaid rent and levy on the third person lessor's personal property which was in the tenant's possession. The court held for the lessor of the personal property, stating on page 181:
[A] conditional vendor is given a means of protecting his interest he can file his contract ... But a lessor is afforded no such protection. We are unable to discover any statute which provides for the filing of a lease as a means of protecting the interest of the lessor. The Uniform Commercial Code requires the filing of ostensible leases which are in fact taken as security interests leases which give the lessee the option to purchase. See RCW 62A.1-201(37). The leases involved in this action are admittedly bona fide leases which require the return of the leased property at the expiration of the leasehold term.... Since the legislature has not seen fit to require the filing of leases (unless they are in fact security devices) in order to protect the interest of the lessor, it has at least impliedly recognized that the lessor's interest is not subject to claims of creditors of the lessee.
In the case at bench, the real question is how could Dolsen have protected itself against creditors and vendees (SBA *924 and Cotten) of Warden Leasing in whose possession Dolsen left his clarifier? This question was anticipated by U.C.C. commentators without resolution. See Comment, 13 U.C.L.A.L. Rev. 125 (1965).
[1] Neither Warden Leasing nor Country Spuds were merchants in the business of selling clarifiers.[2] Warden Leasing's mere possession of the goods after selling to Country Spuds who sold to Dolsen does not give Warden Leasing the authority to transfer title. Thus under RCW 62A.2-403(1)[3] which it is urged gives SBA all title which its transferor (Warden Leasing) had or had power to transfer is inapplicable. Even though the comparative innocence doctrine is generally applicable where there is a duty to record, it is not always applicable where property is left in the possession of a third person.
Dahl v. Stromberg, 31 Wash. 2d 884, 200 P.2d 495 (1948) is instructive. Bennett allowed Stromberg to have possession and use of his tools and equipment. Dahl bought Stromberg's gas station with tools and equipment from Stromberg after examining the records and finding no interest recorded. Dahl did not claim there were any documents or that he had made any inquiries as to the true owner of the tools. The court stated at page 888:
It has been held times without number that the owner of a chattel is not estopped to assert title to it by permitting another to use it in his business. See cases collected in note in 7 A.L.R. 676. A statement in Cox v. McGuire, 26 Ill. App. 315, is peculiarly appropriate, and we quote:
*925 "We are also referred to the effect upon the owner's rights of his clothing another with the indicia of ownership, and to the rule by which it is determined which of two innocent parties must suffer. If the law referred to applied to cases like this it would soon put an end to lending and all other forms of bailment."
Dolsen was a bona fide purchaser for value. It had no bill of sale. There was no duty to record the lease to Courtright, since it was not a security interest. Dolsen had no duty to ask for and record a bill of sale since the property was not left in the hands of a merchant in the business of selling clarifiers. Cotten obtained the clarifier presumably upon some notice since the conveyance to him from SBA expressly disclaimed any warranties. There is no showing of any inquiry by Cotten as to the ownership of the clarifier. Under these circumstances, since Dolsen is the owner of the clarifier, and has transferred title to Courtright Cattle, Courtright may take possession.
Judgment is reversed.
GREEN, C.J., and McINTURFF, J., concur.
Reconsideration denied January 14, 1980.
Review granted by Supreme Court March 21, 1980.
NOTES
[1] The treatment plant has been denominated by various names in the instruments and testimony: clearifier, clarifier, and classifier.
[2] RCW 62A.2-403(2):
"Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business."
[3] RCW 62A.2-403 reads in part:
"(1) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3097614/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-13-00830-CR
Herbert Vince ARCENEAUX,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR4163
Honorable Raymond Angelini, 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.
SIGNED July 9, 2014.
_____________________________
Catherine Stone, Chief Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1290828/ | 22 Cal. 3d 38 (1978)
583 P.2d 113
148 Cal. Rptr. 588
THE PEOPLE, Plaintiff and Respondent,
v.
JOSEPH R. ORTIZ, Defendant and Appellant.
Docket No. Crim. 20126.
Supreme Court of California.
August 30, 1978.
*40 COUNSEL
Paul N. Halvonik, State Public Defender, Charles M. Sevilla, Chief Assistant State Public Defender, Jonathan B. Steiner and Cheryl Lutz, Deputy State Public Defenders, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Lawrence P. Scherb II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOSK, J.
Defendant Joseph R. Ortiz appeals from a judgment of conviction for first degree armed robbery (Pen. Code, § 211) following a jury trial which also involved three codefendants accused of a crime distinct from the one in which defendant participated. Defendant contends that a pretrial motion to sever was improperly denied and, as a result, his defense was substantially prejudiced by the concurrent prosecution of a crime with which he was not charged.
On April 11, 1976, Beverly Fleming was approached by James Burris for the purpose of buying heroin. Burris had previously agreed with George Rivens that he would make a buy for the two of them, the latter having contributed $25 toward the purchase. Previously Fleming had an arrangement with one Willie Starling, an established drug dealer, whereby the latter would supply the needs of Fleming's $75-a-day heroin habit in exchange for sexual entertainment.
On the evening of the 11th, Fleming obtained narcotics from Starling and delivered them to Burris and Rivens, who became angry on discovering that the heroin had been diluted with lactose to the extent that it was valueless. After the two men appeared at her door early the following morning, Fleming drove Burris and Rivens to Starling's apartment. Fleming initially entered the apartment alone to speak with Starling, who stated he had no cash with which to make good the loss, but indicated he was due to receive a heroin delivery shortly.
Fleming left, but returned later, followed by Burris and Rivens. A lively argument ensued between Burris and Starling regarding the quality *41 of the heroin, and it quickly evolved into a wrestling match. Rivens did not participate in the confrontation and Fleming apparently left unobtrusively. Burris and Rivens departed, unsatisfied.
A short while later, Starling telephoned Fleming to express his anger because she had led Burris and Rivens to his apartment. He also told Fleming that he would "get even" with the two men by calling the police and alleging that a robbery had been committed, a threat Fleming initially mistook as jest. After Fleming's arrest, Starling again called to say that he would "cut her loose" from any complicity in the crime once the trial began.
Starling denied that he was an active drug dealer. He claimed he had not seen Fleming or Burris for more than a year prior to the date in question and that Fleming had enticed him into opening his apartment door, whereupon the two men forced their way in. An armed robbery allegedly followed in which Starling was repeatedly threatened at knife and gun point and ultimately tied up in the bedroom while his color television was removed.
The foregoing was the substance of the count I charges. Count II arose out of an armed robbery of Georgia Solomos, owner of the Santa Monica "Mini Mart," the events occurring a few hours after the robbery alleged in the first count. According to the People's witnesses, three men, including Rivens and defendant, were seen conferring in a blue Oldsmobile parked in an alley adjacent to the market on the afternoon of April 12. Rivens left the alley, entered the market, purchased some candy, and returned to the car. Shortly thereafter, defendant and Rivens reentered the store together.
In response to Solomos' inquiry regarding his need for assistance, defendant pointed a handgun at her and announced, "I don't want help. This is a hold-up." He asked for money, and Solomos complied by emptying the contents of her cash register approximately $150 into a current copy of the local newspaper, the Evening Outlook, which lay open on the counter. Defendant took the victim's purse, sweater, and the money, and left the premises with Rivens. A neighbor who had witnessed the activity of the men outside the store soon entered, and he and Solomos called the police.
Defendant, Rivens, Fleming and Burris were arrested together the same afternoon, minutes after the robbery of the market, on the basis of a *42 police radio call, which included a description of the perpetrators of the robbery and their vehicle. Officers observed the car parked on Rose Street in Venice and found that it was registered to one Barnado, a resident of apartment No. 3, 714 Rose Street.
Two officers covered the rear of the building while the remainder entered through the front door. Rivens' attempt at escape from a rear window was foiled. Defendant was discovered hiding in a large closet from which Solomos' purse was later recovered. The officers also found Solomos' sweater in the apartment as well as a popcorn can filled with coins wrapped in that day's copy of the Evening Outlook. Fleming, Burris, Rivens, and defendant were arrested. Defendant and Rivens were identified by Solomos at the preliminary hearing as the perpetrators of the robbery of the market.
Fleming, Burris and Rivens were charged with armed robbery in count I of the information, and defendant and Rivens were charged with armed robbery in count II. The three defendants charged in count I were found not guilty, but the jury could not agree as to Rivens' guilt on count II, and the court declared a mistrial. Defendant was found guilty of the crime charged in count II.
Defendant had made a timely motion to sever his trial from that of the other defendants upon the ground that he was not charged with the separate offense stated against Burris, Fleming and Rivens in count I, citing Dove v. Superior Court (1974) 39 Cal. App. 3d 960 [114 Cal. Rptr. 889]. The trial court denied the motion, and later denied defendant's motion for a new trial based upon the same ground.
(1a) On this appeal from the ensuing judgment of conviction, defendant asserts primarily that the trial court's denial of his motion for severance violated section 1098 of the Penal Code because he was not jointly charged with his codefendants in any count of the information. As we shall see, defendant is correct in this assertion.
At the threshold, we reject the contention of the People that defendant is precluded from claiming on appeal that the trial court erred in denying his motion for severance because the transcript of the oral arguments on the motion is not before us. Defendant has included in the record on appeal his motion to sever, of which we take judicial notice (Evid. Code, § 459, subd. (a)), and the denial of his motion is confirmed by the minutes included in the clerk's transcript. Since we shall conclude that *43 the trial court was required to grant the motion as a matter of law under section 1098 of the Penal Code, the failure to include in the record the transcript of the oral arguments does not preclude our consideration of defendant's claim.
Section 1098 of the Penal Code provides in part, "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials."[1] We construe the section to mean that a defendant may not be tried with others who are charged with different crimes than those of which he is accused unless he is included in at least one count of the accusatory pleading with all other defendants with whom he is tried.[2]
The requirement of the section that defendants jointly charged be jointly tried unless in the trial court's discretion separate trials are appropriate clearly implies that a joint trial is improper if there is no joint charge. Decisions interpreting section 1098 are consistent with this construction. Indeed, cases have consistently held that it is error to try together different defendants for different crimes unless at least one count of the accusatory pleading charges all the defendants with a single crime.
In Dove v. Superior Court (1974) supra, 39 Cal. App. 3d 960, a husband was charged in one count with selling cocaine, and his wife was charged in a different count with the same crime, occurring on a different date, but the two sales were made from the same location. The trial court refused to sever their trials, and this refusal was held to be erroneous. The appellate court determined that even if under the doctrine of constructive possession the husband and wife could have been charged together on each of the counts, they were in fact not jointly charged in one count, and such a charge is a prerequisite to a joint trial under section 1098. The present case is even more demanding of severance, since defendant could not have been charged in count I with the robbery of Starling.
*44 People v. Davis (1940) 42 Cal. App. 2d 70 [108 P.2d 85], also supports our conclusion. There, the defendant and George Miller were charged with two separate counts of robbery. A third count charged George and Doris Miller with another robbery. It was held that the trial of the counts charged against the defendant with the separate crime charged against the two Millers was erroneous because they were "separate and distinct crimes, occurring at different times, against different persons, and... charged against different defendants." (Id., at p. 74.)
Davis was followed in People v. O'Leary (1955) 130 Cal. App. 2d 430 [278 P.2d 933]. Watson and Weaver were charged with one count of robbery, Weaver and O'Leary with another, and O'Leary with a third. Each count involved a separate crime committed on a different date against a different victim. The court, relying upon Davis, held that it would have been erroneous and prejudicial to try Watson with his codefendants, but that since the codefendants pleaded guilty prior to trial and the jury was only aware of the substance of the accusatory pleadings against the codefendants, the error was not prejudicial.
Those cases which have allowed joint trial of different crimes committed by more than one defendant have done so upon the ground that "there was a joint charge as to one of the crimes...." (People v. Pike (1962) 58 Cal. 2d 70, 85 [22 Cal. Rptr. 664, 372 P.2d 656]; People v. Spates (1959) 53 Cal. 2d 33, 36 [346 P.2d 5]; People v. Chapman (1959) 52 Cal. 2d 95, 97 [338 P.2d 428].)[3]
The People do not directly traverse the assertions of defendant in this regard. They rely upon section 954 of the Penal Code, which allows consolidation of charges of different crimes in one accusatory pleading, under certain circumstances.[4] However, even if the two counts in the *45 information were properly joined under section 954, we cannot ignore the requirement of section 1098 that multiple defendants may not be tried together unless they are jointly charged with a crime. Here, since the robbery alleged in count I was not charged against defendant, it was undeniably a violation of section 1098 to consolidate his trial with the trial of those defendants charged in count I.
In any event, even if arguendo we were to agree that section 954 is applicable despite the absence of a joint charge, the requirements of that section were not met. The People rely primarily upon the fact that both offenses charged in the information were robberies, and it is claimed therefore they constituted "two or more different offenses of the same class of crimes or offenses" under section 954. Clearly, however, the mere fact that robberies were charged in both counts is insufficient to satisfy the requirements of the section where multiple defendants are involved. "Otherwise," as has been said, "every single person charged with a specific crime could be required to stand trial with any number of other defendants charged with independent, unrelated crimes of the same class." (People v. Biehler (1961) 198 Cal. App. 2d 290, 293 [17 Cal. Rptr. 862].)[5]Dove, Davis, and O'Leary also demonstrate the lack of merit in the People's contention. They all involved charges of the same class of crime against different defendants, in different counts of an accusatory pleading, yet joint trial of the defendants was held to be improper.[6]
We next inquire whether the error in denying defendant's motion for severance was prejudicial so as to require reversal of the conviction.
*46 (2) Defendant contends that his conviction must be reversed because as a matter of law there was no basis for a joint trial. However, in People v. Massie (1967) 66 Cal. 2d 899 [59 Cal. Rptr. 733, 428 P.2d 869], we rejected the notion that an error in denying severance requires automatic reversal by stating, "The question of the erroneous denial of a severance does not rise to jurisdictional magnitude, nor is the right to a separate trial so fundamental that its denial must occasion automatic reversal. We cannot say that in every case of an improper denial of a separate trial, a joint trial is necessarily so unfair as to amount to a miscarriage of justice. We must weigh the prejudicial impact of all of the significant effects that may reasonably be assumed to have stemmed from the erroneous denial of a separate trial." (66 Cal.2d at p. 923.)
Defendant seeks to distinguish Massie on the ground that we deal here with a severance motion which the trial court did not have the discretion to deny, while Massie related to an abuse of the trial court's discretionary authority to grant or deny a severance motion. But this distinction is without material significance. Defendant does not suggest why our reasoning in Massie rejecting per se reversal is any less compelling in the context of nondiscretionary severance. The theme of Massie was that the right to a separate trial is not so fundamental that its erroneous denial requires automatic reversal. We fail to see why this principle does not apply to all improperly joined trials.[7]
In Massie we analyzed the factors to be applied in considering whether the denial of severance was prejudicial. These factors include whether a separate trial would have been significantly less prejudicial to defendant than the joint trial, and whether there was clear evidence of defendant's guilt. (Id., at p. 921.) We further held that reversal would follow only upon a showing "of a reasonable probability that the defendant would have obtained a more favorable result at a separate trial." (Id., at pp. 922-923.)
(1b) It only remains to apply the analysis of Massie here. Regarding the first element, defendant persuasively argues that extensive emphasis during trial on the narcotics involvement of the three codefendants joined in count I adversely affected his ability to defend against the allegations *47 of count II. The evidence on count I was permeated with references to frequent narcotics use by the three codefendants. Substantial testimony was received demonstrating Starling's long-standing activity as a heroin user and dealer, as well as his drug-related association with defendants Fleming and Burris. The pervasive as well as the dramatic nature of the testimony regarding the use of narcotics by the defendants charged in count I[8] implied defendant's association with the illicit narcotics activity of the codefendants, and may have led the jury to conclude that defendant was addicted to heroin, thereby establishing a motive for the robbery of the market. Much of the evidence relating to narcotics use by the three codefendants charged in the first count would have been inadmissible in a separate trial of defendant. Yet even in oral argument before this court, the Attorney General emphasized the dominance of narcotics at the site where the defendants were arrested.
Defendant makes a second point to support his claim that he was prejudiced by the error. All three codefendants testified during the trial, and only defendant failed to take the stand. The court gave an instruction to the effect that, although a defendant is not required to testify, an adverse inference may be drawn from his failure to deny or explain certain facts if he does choose to take the stand, and that "[I]n this case defendant has elected to and has testified...."[9] That instruction could have adversely predisposed the jury in two respects: the jury may have drawn an unfavorable inference from the fact that only defendant failed to testify; or it may have been confused by the court's failure to note that defendant in fact did not testify and might have drawn an adverse inference from his failure to rebut the prosecution's evidence.
Regarding the second element of the Massie analysis the strength of the evidence supporting defendant's guilt there were significant deficiencies in the People's case. The predominant weakness is the uncertainty of the identification of defendant as the felon. Solomos described one *48 of the robbers to the police as a man of Mexican descent, wearing a blue cloth jacket, and she stated that he had a black moustache. However, at the trial she testified that the robber did not have a moustache. Furthermore, 20 minutes after the robbery, she was unable to identify defendant as the robber.[10] While she did identify defendant at the preliminary hearing, she could not recall the color of his eyes or hair.[11] Finally, her identification of defendant during trial was not persuasive.[12]
Other aspects of the People's case can be described as far short of overwhelming: no showing was made regarding defendant's dominion and control over any of the stolen items found in the apartment where he was arrested; none of his fingerprints was found at the market nor was his connection established with the gun recovered by police.
Under all the circumstances, we hold there was a reasonable probability that defendant would have obtained a more favorable result at a separate trial[13] (People v. Watson (1956) 46 Cal. 2d 818, 836 [299 P.2d 243]).
The judgment is reversed.
Tobriner, J., Clark, J., Richardson, J., Manuel, J., and Newman, J., concurred.
*49 BIRD, C.J., Concurring and Dissenting.
I reluctantly cannot sign the majority opinion, since it fails to articulate clear guidelines to trial courts which must rule on severance and joinder issues.
There are two statutes which deal with joinder, severance and consolidation in criminal prosecutions in our courts. Penal Code section 1098[1] sets forth when separate defendants may be tried together at one trial, and section 954 outlines when separate offenses or counts may be tried together (assuming the defendants may be joined under section 1098.)
These provisions operate in similar fashion. No joint trial is permissible except in certain prescribed situations: two or more defendants may be tried together only if they are "jointly charged" with a public offense (§ 1098); and two or more offenses or counts may be tried together if they are (1) "different offenses connected together in their commission," (2) "different statements of the same offense," or (3) "different offenses of the same class of crimes or offenses." (§ 954.) Unless these conditions exist, a joint trial of defendants or offenses is "`not authorized by statute and [does] not rest in mere discretion.'" (People v. Davis (1940) 42 Cal. App. 2d 70, 75 [108 P.2d 85], quoting from McElroy v. U.S., 164 U.S. 76, 81 [41 L. Ed. 355, 357, 17 S. Ct. 31].) However, the trial court may sever one or more defendants and/or counts even where a joint trial is permitted. "[T]he Legislature [has] left to the courts the determination of standards governing such [discretionary] severances." (People v. Aranda (1965) 63 Cal. 2d 518, 529 [47 Cal. Rptr. 353, 407 P.2d 265].) Generally, a severance in this situation will be granted where a joint trial would be potentially prejudicial to one (or more) defendant on any count. (Walker v. Superior Court (1974) 37 Cal. App. 3d 938 [112 Cal. Rptr. 767]; People v. Chambers (1964) 231 Cal. App. 2d 23, 31-32 [41 Cal. Rptr. 551].)
The present case involves a question of the propriety of the joinder of defendants. Therefore, only section 1098 is implicated. The majority hold that since "a joint trial is improper [under section 1098] if there is no joint charge," the trial court was forbidden by statute from trying appellant together with the codefendants not charged with him in the Mini Mart robbery. (Maj. opn., ante, at p. 43.) The majority opinion fails to give any guidance to the trial court as to where the severance line should have been drawn. There were three possibilities, as can be seen by referring to the following diagram:
*50
Count I Count II
(robbery (robbery of
of Starling) Mini Mart)
F (Fleming)
B (Burris) O (Appellant)
R (Rivens) R
A severance could have been granted between (1) appellant and Rivens; (2) count I and count II, or (3) Rivens and his two codefendants on count I (Burris and Fleming). Yet, these three options, while they each satisfy the strict letter of the majority opinion, do not equally carry out the purpose underlying section 1098. That section places limits on the joinder of defendants in order to minimize "the vices inherent in a mass trial." (People v. Biehler (1961) 198 Cal. App. 2d 290, 298 [17 Cal. Rptr. 862].) Among these are "the danger that the jury will find one or more defendants guilty as charged because of his association with evil men ..." (ibid.) and the likelihood that the jury will use evidence, admitted only as to a codefendant, to the detriment of the others. (Cf. maj. opn., ante, at p. 47.)
The third severance option would not effectuate these purposes since it would permit evidence of both of the charged robberies to be admitted at appellant's severed trial. This would include the Starling robbery in which Rivens, but not appellant, was accused. While Fleming and Burris would not appear as defendants in such a trial, virtually all the evidence relating to them and to the Starling robbery would still have been admitted to prove or disprove Rivens' guilt on that charge. Thus, unless this option is ruled out, the protections to be gained by section 1098's limitation on joinder of defendants is illusory.
The majority opinion, in failing to address these three options, leaves the trial courts and the prosecutors, who draw up the pleadings in criminal cases, without adequate guidance. The law should not remain in this state of confusion and uncertainty until costly litigation decides the issue at some future date.
NOTES
[1] The remainder of the section provides, "In ordering separate trials, the court in its discretion may order a separate trial as to one or more defendants, and a joint trial as to the others, or may order any number of the defendants to be tried at one trial and any number of the others at different trials, or may order a separate trial for each defendant; provided, that where two or more persons can be jointly tried, the fact that separate accusatory pleadings were filed shall not prevent their joint trial."
[2] As we shall see, infra, an indictment or information alleging more than one count must also comply with the provisions of section 954 of the Penal Code in order to justify a joint trial of more than one count.
[3] In these cases the joinder of multiple counts was also held to be proper under section 954 of the Penal Code.
[4] Section 954 provides: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court: provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count."
[5] The only cases cited by the People in support of their assertion involved the question whether the trial court was required to sever for trial several counts of an information charging different crimes against the same defendant. (People v. Matson (1974) 13 Cal. 3d 35, 37-39 [117 Cal. Rptr. 664, 528 P.2d 752]; People v. Moran (1973) 33 Cal. App. 3d 724, 726-728 [114 Cal. Rptr. 413]; People v. Meneley (1972) 29 Cal. App. 3d 41, 47-51 [105 Cal. Rptr. 432].)
[6] Section 954 also allows the joinder of separate counts in an information which charges "two or more different offenses connected together in their commission." The People contend that this standard is met here because "there appears at least the suggestion" that the same gun was used in both offenses. However, a motion for severance must be decided on the basis of the showing made at the time the motion is made, and not upon what transpired at the trial. (People v. Santo (1954) 43 Cal. 2d 319, 332 [273 P.2d 249].) There is no indication that the evidence upon which the People rely was before the trial court at the time the motion for severance was made. In any event, the evidence at the trial did not convincingly establish that the same gun was used in both offenses. Starling described the gun allegedly used in the robbery as a "blue steel automatic," while Solomos testified that the gun used in the robbery of the market was silver.
[7] Defendant relies on language in People v. Davis supra, 42 Cal. App. 2d 70, 74, which implies that a per se standard is appropriate. However, Davis also analyzed the factual circumstances presented to conclude that prejudice arose from the joint trial. (Id., at pp. 75-76.) In any event, our decision in Massie must prevail over the earlier Court of Appeal decision in Davis.
[8] Beverly Fleming testified that she offered sexual favors to Starling in exchange for heroin, and at one point she pulled up her shirt sleeves to reveal needle marks to the jury.
[9] The court gave CALJIC instruction No. 2.62 which provides in pertinent part: "It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. In this case defendant has elected to and has testified as to certain facts. If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable...."
[10] Solomos testified under cross-examination as follows: "Q. Isn't it a fact that at the time Mr. Ortiz was brought out you told the police that you weren't sure that he was the man? Is that a fact? A. Yes."
[11] At the preliminary hearing, Solomos was asked: "Q. What is it that makes you certain that he is the man? Is there anything particular about him that strikes your memory? A. I remember his eyes, the face. That's all.
"Q. What color were his eyes? A. I can't remember his eyes, what color.
".....................
"Q. What color was his hair? A. His hair? I don't remember."
[12] At the trial, Solomos identified defendant as the robber on direct examination but on redirect examination the following exchange occurred:
"Q. You are not sure Mr. Ortiz is the man, isn't that right? Maybe he is, maybe he isn't. Is that your testimony? A. I think he is. I don't know.
"Q. But you are not sure or are you sure? A. (No audible response.)
"Q. I am receiving no answer. Are you sure it is him or are you not sure it is him? A. I don't know....
"Q. And of all the people that you saw later on in handcuffs Mr. Ortiz is the only one that you think is maybe? A. Yes."
[13] There is no merit in the People's contention that no prejudice could have occurred because the three defendants charged in count I were found not guilty. Defendant's claims of prejudice are grounded in part on testimony regarding heroin use by the codefendants; it is irrelevant to this claim that the codefendants were not convicted of the robbery charge.
[1] All references hereinafter to statutes are to the California Penal Code, unless specifically stated otherwise. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2602128/ | 199 P.3d 410 (2009)
STATE
v.
GARLAND.
No. 81837-1.
Supreme Court of Washington, Department I.
January 6, 2009.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1329394/ | 116 S.E.2d 867 (1960)
EARL T. BROWDER, INC.
v.
COUNTY COURT OF WEBSTER COUNTY.
No. 12016.
Supreme Court of Appeals of West Virginia.
Submitted September 20, 1960.
Decided November 15, 1960.
*869 S. L. Flournoy, Roy S. Samms, Jr., Charleston, Brooks Callaghan, Richwood, for plaintiff in error.
Wysong & Wysong, Ernest V. Morton, Jr., Webster Springs, for defendant in error.
*868 CALHOUN, Judge.
This action of assumpsit arose in connection with a written contract by the terms of which Earl T. Browder, Inc., agreed to build a hospital for The County Court of Webster County. The case is before this Court on writ of error to the final judgment of the Circuit Court of Webster County, embodied in an order entered therein on May 27, 1959, by which the trial court set aside a verdict for $27,219.18 in favor of Earl T. Browder, Inc., the plaintiff, against The County Court of Webster County, the defendant.
Previously in the same case, upon writ of error prosecuted by the defendant, this Court set aside a verdict for $30,000 in favor of the plaintiff and granted the defendant a new trial. Earl T. Browder, Inc., v. County Court of Webster County, 143 W.Va. 406, 102 S.E.2d 425. Because of the detailed statement of pertinent facts in the previous opinion, the facts will be stated herein to a limited extent only.
The former opinion discloses that the plaintiff's claim was originally composed of three items: (1) A claim of $22,426.93 for certain excavating done by the plaintiff at the rear of the hospital. This item was disallowed by this Court, because it represented a claim of compensation for work which was not within the purview of the written building contract, plans and specifications, and because such "extra" work was not formally authorized by the county court. This portion of the original claim accordingly has been abandoned by the plaintiff and was not asserted at the second trial. (2) An item of $1,566.91, plus interest, representing a charge for hauling and storing certain hospital furniture and equipment. It is now conceded by the defendant that the county court formally authorized payment of this item and that it is proper. (3) The sum of $36,871.04, representing the cost of removing 2,458 5/72 cubic yards of rock, referred to in the former opinion and in the record of the second trial as "unclassified excavation", at $15 *870 per cubic yard. Inasmuch as the first of the three items as listed above has been held previously by this Court to be improper, and was not asserted at the second trial, and inasmuch as the second item of $1,566.91 is now recognized by the defendant to be correct and proper, there remains for our consideration at this time only the third item, representing a claim for the removal of 2,458 5/72 cubic yards of rock or "unclassified excavation", at $15 per cubic yard, amounting to the sum of $36,871.04.
The plaintiff at the trial claimed interest on both the item of $1,566.91 and the item of $36,871.04 from November 12, 1952, that being the date of a letter from the plaintiff making formal demand upon the defendant for payment. Apparently no question was raised at the trial relative to the propriety of interest. Plaintiff's Instruction No. 4, which was read to the jury, authorized the jury to include such interest in its verdict and no objection was urged to that feature of the instruction. See Code, 56-6-27; Morton v. Godfrey L. Cabot, Inc., 134 W. Va. 55, 63 S.E.2d 861; Bischoff v. Francesca, 133 W.Va. 474, 56 S.E.2d 865. In response to two special interrogatories, the jury found that rock was actually excavated by the plaintiff, and that the amount thereof was 1,229 cubic yards or a total yardage almost exactly one-half of that claimed by the plaintiff.
The base contract price for the construction of the hospital was $365,617. The specifications provided that the defendant was authorized to "make changes in the drawings and specifications of this contract" with proper adjustments of the contract price, resulting from such changes. "Change orders" of this nature were made so as to add $39,295.90 to the contract price. These "change order" items and the base contract price have been fully paid.
On November 12, 1952, the defendant mailed to the plaintiff a check for $56,348.91, bearing the notation "Balance due Contract." While such check was being transmitted by mail and before the plaintiff received it, the plaintiff directed a letter to the defendant stating that "it is expressly understood that such check can not be treated by us as a final and complete payment in the premises, but we reserve the full right of enforcement and collection of our additional claim". The prior opinion discloses that this Court held that the fact that the plaintiff accepted and deposited this check with such notation appearing thereon did not preclude the plaintiff from asserting the balance of its claim. At the second trial there was no controversy concerning the propriety of this check and no question concerning the charge thereby paid. It could have served only to confuse or prejudice the jurors and, therefore, the trial court properly refused to admit it as evidence proper for the jury's consideration.
The specifications which formed the basis of the bidding contained the following language: "The general contractor shall write on the bottom of the bid form the cost of unclassified excavation." The plaintiff's bid on the prescribed form contained the following language: "Unclassified excavation $15.00 C.Y." It is clear that the abbreviation "C.Y." means cubic yard. The difference between "classified excavation" and "unclassified excavation" appears clearly from the testimony. Earl T. Browder stated the distinction succinctly as follows: "Classified is what is called for on the plans and unclassified is anything else that might be excavated." See 12 Am.Jur., Contracts, Section 324, page 878.
Preparatory to the making of the plans and specifications, and in order to facilitate bidding in the customary manner, "test holes" were drilled in the area to be excavated in connection with the construction of the hospital. In relation thereto Earl T. Browder testified as follows: "It is protection for both the owner and the contractor. No one can tell us what is under that ground by examining it from the surface or walking cross it. The test holes set forth what they think is down there. We *871 are able to base our bid on what is shown by the test holes and knowing if we have to go deeper and hit something else our unclassified bid is what we get. Without that clause, the contractor gambles. It is one of the fairest things we have." These test holes, according to the plans, disclosed topsoil, loose stone and hard clay beneath the surface in the area to be excavated. Earl T. Browder testified that when he encountered "rock" in connection with the excavating, he called the fact to the attention of members of the county court and its architect. W. L. Workman, the building superintendent, employed by the plaintiff, defined "loose stone" as something which "could be handled with a shovel or by hand", and he defined "rock" as something "that has to be handled with heavy equipment in order to move it or break it up."
The testimony discloses indisputably that the plaintiff encountered "rock" in connection with the excavation involved in the construction of the hospital, though the amount thereof is a matter of controversy. W. L. Workman, the construction superintendent, testified that he kept day to day field notes which disclose the amount and dimensions of the rocks removed to the extent stated in the plaintiff's claim. Various witnesses for the defendant testified to rocks of considerable size and number. Kenney Hosey, a witness for the defendant, testified that one of such rocks was as large as an automobile. These questions of fact, dependent upon conflicting testimony and credibility of witnesses, were properly submitted to the jury for determination, and we can not say the finding of the jury in relation thereto was unwarranted.
After the jury returned its verdict for the plaintiff in the sum of $27,219.18, the defendant moved the court to set aside the verdict and grant the defendant a new trial upon grounds assigned in writing and entered of record. Thereafter the trial judge directed a letter to counsel for the respective parties which expressed his opinion that the verdict was excessive in amount, and that the jury must have "had some misconception of the evidence or its legal effect" in arriving at such verdict. The letter concluded as follows: "Unless the plaintiff files a remittitur reducing the verdict to the sum of $10,000.00 the Court will set aside the verdict of the jury." The trial judge made a statement, which is included in the record, in which he undertook to explain the intent and purpose of his letter. He stated, in effect, that previously he had discussed the matter with the prosecuting attorney, who stated that he would recommend to the defendant that it take no exception to the action of the court in permitting the remittitur to be filed. The trial judge stated further that it was his opinion that $10,000 would be ample compensation to the plaintiff; and that he was merely endeavoring to be "gracious toward the plaintiff" in giving the plaintiff the option to reduce the verdict to $10,000 rather than to have it set aside in its entirety.
The term "remittitur" is defined as follows in an article by Leo Carlin, who until his retirement was for many years an eminent and respected member of the faculty of the College of Law, West Virginia University: "The remittitur * * *, in its broadest sense, is the procedural process by which the verdict of a jury is diminished by substraction. * * * The term is used to describe generally any reduction made by the court without the consent of the jury; but the typical situation in which it is employed, * * * is where, on a motion by a defendant for a new trial, the verdict is considered excessive and the plaintiff is given an election to remit a portion of the amount or submit to a new trial." "Remittiturs and Additurs", 49 W. Va.Law Q. 1. In the same article at page 29, Professor Carlin states: "The West Virginia decisions have consistently adhered to the minority rule, the court refusing to allow a remittitur where the amount of damages recoverable is measurable by no definite standard and the amount of the excess is equally indeterminable."
*872 The soundness of the minority rule has been questioned in earlier opinions of this Court. Ohio River R. Co. v. Blake, 38 W.Va. 718, 724, 18 S.E. 957, 960; Watts v. Ohio Valley Electric Ry., 78 W.Va. 144, 150, 88 S.E. 659, 661. The remittitur may be employed where the amount of the excess is definitely ascertainable. Bragg v. C. I. Whitten Transfer Co., 125 W.Va. 722, 26 S.E.2d 217; O'Dell v. Criss & Shaver, 123 W.Va. 290, 14 S.E.2d 767; McCallam v. Hope Natural Gas Co., 93 W.Va. 426, 117 S.E. 148; Southern Billiard Supply Co. v. Lopinsky, 93 W.Va. 214, 116 S.E. 253; Taylor v. Sturm Lumber Co., 90 W.Va. 530, 111 S.E. 481; Chapman v. J. W. Beltz & Sons Co., 48 W.Va. 1, 35 S.E. 1013; and Ohio River R. Co. v. Blake, 38 W.Va. 718, 18 S.E. 957. See also 13 M.J., New Trials, Section 57, page 696; 66 C.J.S. New Trial § 209(3), page 522. But the Court has consistently held, on the other hand, that when there are no data before the court by which the amount of the excess may be definitely ascertained, a remittitur is not proper. Vinal v. Core and Compton, 18 W.Va. 1; Un fried v. Baltimore & O. Railroad Co., 34 W.Va. 260, 12 S.E. 512; Rodgers v. Bailey, 68 W.Va. 186, 69 S.E. 698; Hall v. Philadelphia Co., 74 W.Va. 172, 81 S.E. 727; Clark v. Lee, 76 W.Va. 144, 85 S.E. 64; Lutz v. City of Charleston, 76 W.Va. 657, 86 S.E. 561; Flanagan v. Flanagan Coal Co., 77 W.Va. 757, 88 S.E. 397; Watts v. Ohio Valley Electric R. Co., 78 W.Va. 144, 88 S.E. 659; Cox & Co. v. Carter Coal Co., 81 W.Va. 555, 94 S.E. 956; Thompson v. Davis Colliery Co., 104 W.Va. 493, 140 S.E. 489; and Larzo v. Swift & Co., 129 W.Va. 436, 40 S.E.2d 811. In the case now under consideration the amount which the plaintiff is entitled to recover is dependent upon the conflicting testimony and the credibility of witnesses on the question of the number of cubic yards of rock removed in connection with the necessary excavation. Under such circumstances it can not be said that the verdict is excessive in a definitely ascertainable amount and, therefore, the plaintiff could not be required to elect to submit to a remittitur or to a new trial. To the extent that the trial court undertook to compel such election, it was in error in the light of the prior decisions of this Court.
"Where, in the trial of an action at law before a jury, the evidence is conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong." French v. Sinkford, 132 W.Va. 66, pt. 2, syl., 54 S.E.2d 38. See also Morris v. City of Wheeling, 140 W.Va. 78, 82 S.E.2d 536. In any case in which the damages or the compensation to which the plaintiff is entitled to recover are indeterminate in character, the verdict of the jury will not be set aside as excessive unless it is not supported by the evidence or is so large that it indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case. Tennessee Gas Transmission Co. v. Fox, 134 W.Va. 106, 58 S.E.2d 584; Bailey v. De Boyd, 135 W.Va. 730, 65 S.E.2d 82. Where the damages or compensation which the plaintiff is entitled to recover are indeterminate in character, mere difference of opinion between the trial judge and the jury will not justify the court in setting aside the verdict. Ward v. Raleigh County Park Board, 143 W.Va. 931, 105 S.E.2d 881; Bailey v. De Boyd, 135 W.Va. 730, 65 S.E.2d 82; Tennnessee Gas Transmission Co. v. Fox, 134 W.Va. 106, 56 S.E.2d 584; Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410; Vest v. Chesapeake & O. Ry. Co., 117 W.Va. 457, 187 S.E. 358. Inasmuch as the amount of the verdict in this case turned upon conflicting testimony and the credibility of witnesses, there being nothing to justify a conclusion that the jury was actuated by improper motives or a mistaken view of the case, neither the trial court nor this Court is warranted in setting aside such verdict because of excessiveness.
While it does not appear that the action of the trial court in setting aside the verdict *873 was based on any ground other than the excessiveness in the amount of the verdict, no prejudicial error is perceived in relation to other grounds of error urged on behalf of the defendant. In its former opinion the Court disposed of a defense contention in relation to arbitration. In relation to defendant's contention that the rock excavation should be governed by the "change order" provisions of the contract rather than by the provisions dealing with "unclassified excavation", the Court stated: "Contracts of this nature are intended to be fair and mutual in the respective obligations of the parties, and even though the test hole data as to underlying earth strata was, we may assume, an unintentional and misleading provision, it is only reasonable to conclude that it must have been the express purpose of such contractual provision to cover just such a situation as developed here, and was for the purpose of avoiding the taking of any unfair advantage of the contractor. The offer or demand of the contractor to arbitrate the matter tends to evince the latter's good faith. It is true that there is considerable evidence as to the quantity and sizes of rock claimed in this item by the plaintiff to have been excavated, and that was a jury question, * * *." Earl T. Browder, Inc., v. County Court of Webster County, 143 W.Va. 406, 413, 102 S.E.2d 425, 430.
On behalf of the defendant it is urged that the court erred in refusing an instruction offered by the defendant which stated that any judgment rendered against the defendant "must be paid by the funds arising from the collection of the taxes assessed against the taxpayers of the County." It is urged that the court likewise erred in refusing to permit one of counsel for the defendant to make a similar statement in his argument before the jury. When such statement was made by counsel in his argument before the jury the court, upon objection in behalf of the plaintiff, expressed the opinion that such statement constituted argument contrary to the instructions and in that connection orally instructed the jury that: "* * * the County Court in this case is the defendant and any verdict returned here will be paid by the County Court of Webster County and you will disregard the statement that the taxpayers will have to pay any verdict returned here." Such argument could have served no useful purpose, but it was of such nature that it might have had a tendency to inflame or prejudice the jury. Rule VI, Rules of Practice for Trial Courts (116 W. Va. lxii) contains the following language: "`* * * Counsel may not argue against the correctness of any instruction * * * nor contend before the jury for any theory of the case that has been overruled." As has been stated herein, the court had previously refused an instruction containing language of like import. The trial court acted with complete propriety and committed no error in this respect.
Instruction No. 2, which was offered in behalf of the defendant and refused by the court, contained the following language: "* * * that it is the duty of every juror to consider all the evidence in the case, the instructions of the Court, the argument of counsel, and the argument of his fellow jurors. That no juror should give up or surrender his own opinion simply because other jurors are of a different opinion; and that no juror believing that the plaintiff has not proved its case by a preponderance of all of the evidence should join in a verdict against the defendant." The trial court committed no error in refusing to grant this instruction. Riddle v. Baltimore & O. Railroad Co., 137 W.Va. 733, 73 S.E.2d 793, 34 A.L.R. 2d 1228; State v. Taft, W.Va., 110 S.E.2d 727.
We have considered carefully each contention made on behalf of the defendant, but are, nevertheless, of the opinion that the trial court erred in setting aside the verdict and in awarding the defendant a new trial.
For the reasons stated herein, the judgment of the Circuit Court of Webster County *874 is reversed, the verdict of the jury is reinstated, and judgment for the plaintiff on such verdict is rendered in this Court. Code, 58-5-25. See also City of McMechen ex rel. Willey v. Fidelity and Casualty Co. of New York et al., W.Va., 116 S.E.2d 388; and Ward v. Raleigh County Park Board, 143 W.Va. 931, 105 S.E.2d 881.
Judgment reversed; verdict for plaintiff reinstated; judgment entered by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2602125/ | 199 P.3d 949 (2008)
2008 UT 84
UTAH LOCAL GOVERNMENT TRUST, Plaintiff and Respondent,
v.
WHEELER MACHINERY CO. and Does 1 through 50, inclusive, Defendants and Petitioner.
No. 20070084.
Supreme Court of Utah.
December 12, 2008.
*950 Scott M. Lilja, Nicole M. Deforge, Salt Lake City, Huey P. Cotton, Los Angeles, CA, for respondent.
Joseph C. Rust, Salt Lake City, for petitioner.
NEHRING, Justice:
INTRODUCTION
¶ 1 We are asked to determine whether the court of appeals erred in holding that the Utah Product Liability Act's two-year statute of limitations did not apply to the Utah Local Government Trust's claim against Wheeler Machinery Company. We hold that the court of appeals did not apply the correct test for determining whether ULGT's claim was a product liability claim. We therefore reverse and remand for application of the appropriate test.
FACTUAL BACKGROUND
¶ 2 Wheeler Machinery Company contracted with the City of Hurricane for the purchase of two diesel generators to supply emergency power and to supplement the existing electric power supply during periods of peak demand. The initial bid included a list of items Wheeler would provide as part of its "Turn Key" bid. These items included the generators, fuel tanks, all other equipment needed to install the generators, enclosures for the generators, setup of all the supplied items, and testing and commissioning of the entire system. Sometime after awarding the initial bid to Wheeler, the City decided it would house the generators in a larger building, which it would build. As a result of these changes, Wheeler made several oral revisions to its bid.
¶ 3 Wheeler supplied all the materials for the system but paid Richard Carlson, an independent welding contractor, to fabricate the exhaust pipe for the generators. Mr. Carlson also welded the rain caps to the exhaust system when the exhaust system was installed. Although Mr. Carlson's fabrication of the exhaust pipe was paid for by Wheeler, the City had agreed to install the exhaust pipe through the roof, connect it to the mufflers, and attach the rain caps to the exhaust pipe.
¶ 4 The purpose of the rain caps was to prevent moisture from entering the system. To attach the rain caps, Mr. Carlson had to modify them by cutting half an inch off each side so they would fit within the framework supporting the generators' mufflers. This modification was not part of the original plan for installing the generators. Before the modified rain caps were installed, the City performed some work on other parts of the generator system as agreed to in an oral modification of the bid.
¶ 5 About seven months after the generators were installed, a fire in the generator building occurred, causing extensive damage to the City's building and equipment. The modified rain caps were identified as the cause of the fire.
¶ 6 On July 10, 2003, ULGT sued Wheeler.[1] It alleged that "one of the generators *951 sold, supplied, assembled, and installed by Wheeler Machinery Co." caused the fire that damaged the City's property. Wheeler moved to dismiss the lawsuit. Wheeler argued that ULGT's complaint alleged a product liability cause of action and that the complaint had not been filed within the two-year product liability statute of limitations. ULGT amended its complaint and filed a motion in opposition to Wheeler's motion to dismiss. The district court denied Wheeler's motion to dismiss. Wheeler then moved for summary judgment. Wheeler reasserted its claim that ULGT's complaint alleged a product liability cause of action and should be dismissed because it was not filed within the two-year statute of limitations and claimed that it did not control the contractor who installed the rain caps. The district court found that if ULGT's claim had been a product liability claim, it would have been filed too late. For reasons the district court did not explain, the court did not rule on whether the claim actually was a product liability claim. The district court held that Mr. Carlson was acting under the direction of the City and not under the direction of Wheeler and granted summary judgment in favor of Wheeler. ULGT appealed to the court of appeals. On appeal, Wheeler again argued that ULGT's claim was a product liability claim and was barred by the statute of limitations. The court of appeals held that ULGT's claim was not a product liability claim because the installation of the rain caps occurred after the product was placed in the stream of commerce. It also held that there was sufficient evidence to create a question of fact regarding whether the City or Wheeler controlled Mr. Carlson. Wheeler petitioned for certiorari on the issue of whether the court of appeals applied the correct statute of limitations.
¶ 7 We granted certiorari and hold that the court of appeals applied the wrong test for determining whether ULGT's claim stated a cause of action in product liability. The appropriate test for determining whether ULGT's claim sounded in product liability is (1) whether the transaction primarily concerned a product and (2) whether the product was defective when it was sold. We reverse the determination of the court of appeals that ULGT's claim was not a product liability claim and remand for action consistent with this opinion.
STANDARD OF REVIEW
¶ 8 "On certiorari review, we review the decision of the court of appeals, not the decision of the district court." Nolan v. Hoopiiaina (In re Hoopiiaina Trust), 2006 UT 53, ¶ 19, 144 P.3d 1129. Whether the correct statute of limitations was applied is a question of law, which we review for correctness. Id.
ANALYSIS
¶ 9 The product liability statute of limitations states that "[a] civil action under [the Product Liability Act] shall be brought within two years from the time the individual who would be the claimant in the action discovered, or in the exercise of due diligence should have discovered, both the harm and its cause." Utah Code Ann. § 78B-6-706 (Supp.2008). The Product Liability Act does not define what constitutes "a civil action under [the Act]."
¶ 10 Although our statute does not define a product liability action, product liability encompasses all actions seeking money damages for injury to people or property resulting from defective products. See 1 David G. Owen et al., Madden & Owen on Products Liability § 1:5 (3d ed.2000). An action for damages resulting from a defective product can be based on claims of negligence, strict liability, tortious misrepresentation, and breach of warranty. Id. If the facts permit, a plaintiff can choose to bring claims under one or all of these theories in a single action. Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 8, 979 P.2d 317. Thus, by choosing one of the available legal theories, a claimant does not thereby foreclose bringing the claim under any other theory. Id. Because all of these claims share the common characteristic *952 of arising out of an injury caused by a product, they are often all alleged together.
¶ 11 Although the Product Liability Act does not define a product liability action, section 78B-6-703 provides some insight into the subject in its description of what may or may not be a defective product. The statute states:
In any action for damages for personal injury, death, or property damage allegedly caused by a defect in a product, a product may not be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.
Utah Code Ann. § 78B-6-703(1) (emphases added). What this statutory language makes clear is that in order to be governed by the two-year statute of limitations, the transaction must concern a product and that product must be defective when it is sold.
¶ 12 Thus, even if ULGT's claim were characterized as a claim for negligent manufacture of a product rather than for strict liability, the claim would still have to be brought within the product liability statute of limitations. See Strickland v. Gen. Motors Corp., 852 F. Supp. 956, 959 (D.Utah 1994). The court of appeals acknowledged the broad application of the product liability statute of limitations, and ULGT agreed that if its claim alleged that negligence caused a product defect, its claim would be governed by section 78B-6-706. Utah Local Gov't Trust v. Wheeler Mach. Co., 2006 UT App 513, ¶ 11, 154 P.3d 175.
¶ 13 Common to all of the claims that can be considered product liability claims is the fact that the damage was caused by a product. The law does not make clear, however, what constitutes a product and how the time of sale of that product is determined. Although the Restatement (Second) of Torts does not define product, the comments to its product liability section contain a list of items that are considered products. Restatement (Second) of Torts § 402A cmt. d (1965). One commentator has suggested that product was undefined in order to encourage and accommodate development of product liability law and to allow for the expansion of what might qualify as a product. David W. Lannetti, Toward a Revised Definition of "Product" Under the Restatement (Third) of Torts: Products Liability, 55 Bus. Law. 799, 808 (2000).
¶ 14 Defining product and sale under the Product Liability Act are issues of first impression for this court. Lacking guidance from our own statutes and cases, we turn for direction to the law of sister states and to other authoritative scholarship on the topic. We will first confront the dilemma of whether the subject of the transaction was a product or a service. Then we will turn to discerning the proper method for ascertaining the time of the sale.
I. TEST FOR DETERMINING WHETHER A PRODUCT WAS THE SUBJECT OF THE TRANSACTION
¶ 15 In product liability actions it is often easy to determine whether a product is present and what it is. For example, if a plaintiff alleges that faulty wiring in a toaster caused a fire that damaged a kitchen, it is clear that the toaster is a product. In some cases, however, it is more difficult to determine whether a product is involved. For example, where a furnace and its installation are part of the same transaction and improper installation makes the furnace dangerous, it is not clear that all elements of the transaction fall within the scope of product liability. See, e.g., O'Laughlin v. Minn. Natural Gas Co., 253 N.W.2d 826, 830-31 (Minn.1977) (holding that whether defective installation of a furnace was a sale of a good was a question for the jury). In some cases, however, installation, while clearly a service, is considered part of the product. Id.
¶ 16 We have previously noted that the Product Liability Act does not define product nor does it assist in determining whether a transaction that includes both a tangible item and a service will be treated as the sale of a product under the Act. We have held that a service alone cannot be considered a product. See Alder v. Bayer Corp., 2002 UT 115, ¶ 23, 61 P.3d 1068. Additionally, no controlling *953 Utah case law describes a test for defining product in cases where there may be both a traditional tangible good sale and a service present in the same transaction. Despite this deficit in Utah law, case law from other states and definitions of analogous terms in areas of law that overlap with product liability can assist us in formulating a test for determining when a hybrid transaction constitutes a product liability claim.
A. Tests Used by Other States
¶ 17 There are several different tests used by other courts to determine whether a product liability claim can be brought where a transaction is a hybrid of sale and service. Although cases discussing whether a hybrid transaction falls under product liability typically involve a plaintiff attempting to bring a product liability claim, the tests used in those cases are equally applicable where a defendant alleges that the plaintiff's claim is properly characterized as a claim for damages resulting from a defective product. See, e.g., Alder, 2002 UT 115, ¶ 23, 61 P.3d 1068 (denying a defendant's claim that moving and reinstalling a machine rendered the machine defective and therefore the claim should be governed by the two-year product liability statute of limitations). Additionally, although most often these tests are used to determine whether strict liability should apply, their focus is on determining the nature of the transaction; therefore, they are applicable to the question before us as well.
¶ 18 An important initial distinction often made in classifying hybrid transactions is whether the transaction was with a professional or a nonprofessional. Where a professional, such as a doctor, dentist, hospital, architect, or engineer, uses a defective item in their work, courts have refused to classify the action against the professional as a product liability action. See 2 David G. Owen et al., Madden & Owen on Products Liability § 20:3, p. 447 (3d ed.2000). For example, where a patient was injured by a hypodermic needle that broke as a dentist was injecting anesthetic into her jaw, the court held that a product liability action could not be brought against the dentist because the dentist was in no better position to inspect and discover the defect than the plaintiff. Magrine v. Krasnica, 94 N.J.Super. 228, 227 A.2d 539, 543 (Law Div.1967).[2] Even where a transaction with a professional involves the sale of a faulty object, the professional is generally protected from a product liability claim. See, e.g., Hoff v. Zimmer, Inc., 746 F. Supp. 872 (W.D.Wis. 1990) (holding that the doctor who used a faulty artificial hip was not subject to a product liability action). If it is not clear that a defendant is a professional, other aspects of the transaction besides the defendant's status must be examined to determine the nature of a hybrid transaction.
¶ 19 One test for determining whether a hybrid transaction should be treated as the sale of a product is whether the service aspect of the transaction occurred before the item being sold was placed in the stream of commerce. In Erickson Air-Crane Co. v. United Technologies Corp., the Oregon Supreme Court held that the product liability statute of limitations only applied to "acts, omissions or conditions existing or occurring before or at the date on which the product was first purchased for use or consumption." 303 Or. 281, 735 P.2d 614, 616 (1987) (internal quotation marks omitted). In Jamison v. Spencer R.V. Center, Inc., the stream of commerce test was applied to a hybrid transaction involving the sale and installation of a trailer hitch. 98 Or.App. 529, 779 P.2d 1091 (1989). The item being sold was the hitch, and the service being provided was installation of the hitch. The court held that when the service makes the product defective before the item is placed in the stream of commerce, the service becomes part of the product and is subject to the product liability statute of limitations. Id. at 1093. Additionally, the court held that the product enters the stream of commerce when it leaves the seller's hands, even if the contract for sale *954 was executed before the service work was performed on the product. Id.
¶ 20 This test is highly dependent on the definition of entry into the stream of commerce. In the Oregon cases applying this test, however, the time that the product entered the stream of commerce was not at issue. See generally Erickson Air-Crane, 303 Or. 281, 735 P.2d 614; Simonsen v. Ford Motor Co., 196 Or.App. 460, 102 P.3d 710 (2004); Kambury v. DaimlerChrysler Corp., 185 Or.App. 635, 60 P.3d 1103 (2003); Jamison, 98 Or.App. 529, 779 P.2d 1091. No standard for determining when something enters the stream of commerce is ever discussed. In the absence of such a standard, whether an item entered the stream of commerce would be a factual question for the district court.
¶ 21 The court of appeals used the stream of commerce test in its resolution of this case; they failed, however, to articulate a test for placement into the stream of commerce. The court of appeals decided that the participation of the City in some of the installation indicated that the product was already in the stream of commerce. Since the question of when an item was placed in the stream of commerce is one of fact, had this been the correct test for determining whether a hybrid transaction was governed by the product liability statute of limitations, the court of appeals should have remanded the case to the district court for application of the stream of commerce test.
¶ 22 The stream of commerce test, however, is not the best test for determining whether a transaction is the sale of a product or the provision of a service. There are two reasons for this. First, the test does not address the true nature of the transaction; rather, it focuses on when the sale occurs. Second, the test is overly broad because it could expand the scope of product liability law to transactions that are primarily for services but happen to involve the sale of an object. For example, an electrician hired to repair a fuse box may have to replace a piece of wiring in order to repair the box. If the wire was installed incorrectly, rendering it defective, and if the customer paid for the repair after the completion of the installation, the use of the wire could cause the entire transaction to be treated as a product liability action under the stream of commerce test. In contrast, had the electrician not needed to use a piece of new wiring, the transaction would have been a pure service transaction and the product liability statute of limitations would not apply. A test that would allow these two transactions to be treated differently does not further the goal of protecting people from dangerous objects.
¶ 23 The stream of commerce test is also at odds with the most frequently used test for classifying hybrid transactions, the essence of the transaction test. 2 David G. Owen et al., Madden & Owen on Products Liability § 20:3, p. 444 (3d ed.2000); see also Charles E. Cantu, A New Look at an Old Conundrum: The Determinative Test for the Hybrid Sales/Service Transaction Under Section 402A of the Restatement (Second) of Torts, 45 Ark. L.Rev. 913, 923 (1992-1993).
¶ 24 The essence of the transaction test is often applied in cases where the provision of medical service also involves the doctor or hospital dispensing a medical device. See generally San Diego Hosp. Ass'n v. Superior Court, 30 Cal. App. 4th 8, 35 Cal. Rptr. 2d 489 (1994) (holding that a physician who was injured while using a laser provided by the hospital could not bring a product liability action against the hospital because the hospital rendered service to physicians and patients and was not in the business of selling products); Hector v. Cedars-Sinai Med. Ctr., 180 Cal. App. 3d 493, 225 Cal. Rptr. 595 (1986) (holding that implanting a defective pacemaker was a service despite the device's defect). Courts in these cases have examined the nature of the relationship between the hospital and the patient and have found that the facts of the case support a finding that the transaction was for a service. In Hector, the court found that the fact that the hospital did "not stock, recommend, distribute or sell any pacemakers" supported a finding that it did not "play `an integral and vital part in the overall production or marketing' of pacemakers" and therefore provided a service rather than engaged in a sale. 225 Cal. Rptr. at 599 (quoting Silverhart v. Mount Zion Hosp., 20 Cal. App. 3d 1022, 98 *955 Cal.Rptr. 187, 190 (1971)). Generally, when courts must determine the essence of the transaction, they look at whether the defendant was "instrumental in moving a harm-producing `product' through the stream of commerce" or "whether the chain of distribution ended effectively with the defendant who was more of a product user than a supplier." 2 David G. Owen et al., Madden & Owen on Products Liability § 20:3, p. 445 (3d ed.2000). If the defendant was more a product user than supplier, then the transaction was more likely a service.
B. Standards From Analogous Doctrines
¶ 25 The theories of liability that are included within product liability lawnegligence, strict liability, tortious misrepresentation, and breach of warrantyshare the common characteristic of arising from an injury caused by a product. One of them, however, is unique because of its status as a contract cause of action. Breach of warranty is the general description of three causes of action that can be brought under the Uniform Commercial Code: breach of express warranty, breach of implied warranty of merchantability, and breach of warranty of fitness for a particular purpose. See 1 David G. Owen et al., Madden & Owen on Products Liability § 1:5, p. 17 (3d ed.2000). Including a contract claim in a family of claims that is otherwise composed entirely of tort claims appears misplaced at first, but further examination of these claims reveals that breach of warranty is one of the roots of strict product liability.
¶ 26 The tort of strict product liability evolved from the negligence cause of action and the contractual breach of warranty action. Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730, 734 (1995). A negligence action has always been available as a potential claim against a seller of a faulty product, although all of the elements of a negligence claim had to be proven, including the point in the process of manufacturing the product where the seller's conduct fell below the required standard of care. This particular requirement presented a substantial obstacle to recovery, especially in the case of mass-produced products. 1 David G. Owen et al., Madden & Owen on Products Liability § 1:5, p. 21 (3d ed.2000). Contract warranty was the original cause of action for recovering for injuries caused by defective products without having to prove negligence, but privity of contract between the injured party and the seller of the product was required. Denny, 639 N.Y.S.2d 250, 662 N.E.2d at 734. In response to the barriers to recovery presented by negligence and breach of warranty, the concept of strict liability in tort developed. See Greenman v. Yuba Power Prods., Inc., 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897 (1963). Strict product liability combined the concept from negligence that an action can be brought when there is no privity with the contract requirement that the defendant be a seller of the type of product that caused the injury. By combining these two concepts, the new strict product liability cause of action discarded the privity requirement and the need to establish a breach in a standard of care.
¶ 27 The combination of tort and contract concepts to form a new theory of liability demonstrates the substantial overlap between the two doctrines where safety of a product is concerned. In Davidson Lumber Sales, Inc. v. Bonneville Investment, Inc., we noted that in some cases, breach of warranty has been used to describe both the strict liability tort action and the contract action. 794 P.2d 11, 14 (Utah 1990). The ability to use breach of warranty to describe both a tort action and a contract action has tempted some jurists into applying the UCC statute of limitations to the tort portions of a plaintiff's complaint whenever the plaintiff alleges breach of warranty. Id. at 15-16. Conversely, some courts have argued for merging the contract cause of action into the strict liability cause of action. See, e.g., Denny, 639 N.Y.S.2d 250, 662 N.E.2d at 740 (Simons, J., dissenting). Both of these approaches, however, ignore the important conceptual differences between contract and tort that justify resisting their merger. See id. at 736 (explaining that contract law "directs its attention to the purchaser's disappointed expectations" and tort law "traditionally has concerned itself with social policy and risk allocation"). Additionally, application of the UCC statute of limitations to the tort portion *956 of a plaintiff's complaint has been specifically rejected by this court. See Davidson, 794 P.2d at 15-16.
¶ 28 In Davidson, Davidson Lumber brought an action for negligence, breach of implied warranty of merchantability and fitness for a particular purpose, indemnity, and contribution. 794 P.2d at 12. The action for which Davidson Lumber sought indemnity was a suit alleging strict product liability, breach of implied warranties of merchantability and fitness for a particular purpose, and negligence. Id. The trial court held that the UCC statute of limitations, Utah Code Ann. § 70A-2-725, barred Davidson Lumber's claims. Davidson, 794 P.2d at 12. We reversed, holding that the UCC statute of limitations only covers claims for damages recoverable under contract law and does not cover actions for personal injury or personal property damage. Id. at 16. Since only some of the claims for which Davidson Lumber sought indemnity were contract claims, we held that Davidson Lumber's claims for injury to persons or property were governed by the relevant tort statute of limitations. Id. at 18.
¶ 29 Davidson forecloses applying the UCC statute of limitations to ULGT's tort claim merely because it is alleged in the same complaint as ULGT's contract claim. The tort statute of limitations must be applied to the tort claim, and the contract statute of limitations to the contract claim. And we must still determine which statute of limitations is the relevant tort statute of limitations by determining what constitutes a product. However, the overlap between tort and contract pointed out in Davidson and the fact that contract and tort each contributed to the formation of the new theory of product liability indicates that elements of each body of law may be looked to in order to shape the law of product liability. In this instance, we can look to the UCC for assistance in defining product.
¶ 30 The UCC defines goods as "all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities ... and things in action." Utah Code Ann. § 70A-2-105 (2001). In contrast to the absence of law giving direction to a court facing a product-service hybrid transaction under product liability law, Utah law does address hybrid transactions under the UCC. In Beehive Brick Co. v. Robinson Brick Co., the court of appeals applied the predominant purpose test to determine the status of a hybrid transaction under the UCC. 780 P.2d 827, 832 (Utah Ct.App.1989); see also 1-3 Commercial Law and Practice Guide p. 3.02 (2007). The court stated that "if service predominates, and the transfer of title to personal property is only an incidental feature of the transaction, the contract does not fall within the ambit of [the UCC]." Beehive Brick, 780 P.2d at 832.
¶ 31 The predominant purpose test was also applied in Neilson Business Equipment Center, Inc. v. Monteleone, 524 A.2d 1172 (Del.1987). In that case, the Delaware Supreme Court addressed whether a contract for a turn-key computer system that included software specifically designed for Monteleone's business was a contract for goods or services. The court held that "[w]hen a mixed contract is presented, it is necessary for a court to review the factual circumstances surrounding the negotiation, formation and contemplated performance of the contract to determine whether the contact is predominantly or primarily a contract for the sale of goods." Id. at 1174. Using this test, the court found that where "[t]he hardware and software elements are combined into a single unitthe computer systemprior to sale[,] ... the computer system is predominantly `goods.'" Id.
¶ 32 The close association between tort and contract law in the area of product liability and the similarity of the Beehive Brick test and the product liability essence of the transaction test support using the Beehive Brick test to determine whether a hybrid tort claim concerns a product or a service. Therefore, it is appropriate to remand this case for a determination of the predominant purpose of the transaction at issue.
¶ 33 Having described the test for when a hybrid transaction is considered the sale of a product, we will now address the *957 test for determining when the product was sold. Even if the transaction was for the sale of a product, a claim for product liability may not lie if the product became dangerous after it was sold.
II. TEST FOR DETERMINING WHEN THE PRODUCT WAS SOLD
¶ 34 Like the definition of product, the Utah Product Liability Act has spawned no judicial or legislative answer to the question of when a product is sold. Based on the above-discussed overlap between tort and contract, however, the UCC definition of sale can also be borrowed to provide a method to answer the timing question posed by Utah product liability law.
¶ 35 Under the UCC, a sale occurs with "the passing of title from the seller to the buyer for a price." Utah Code Ann. § 70A-2-106(1) (2001). Section 70A-2-401(2) states that "[u]nless otherwise explicitly agreed, title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods." Id. § 70A-2-401(2) (Supp. 2008). What constituted the performance with respect to physical delivery of the goods is an issue of fact that will depend on what the parties agreed to.
¶ 36 In this case, there is no explicit agreement on when title to the generators would pass to the City. Determining when the sale occurred will require knowing what Wheeler had to perform, what constituted delivery, and whether Wheeler met its performance requirements. Because the answers to these questions are not evident in the record, we remand for action consistent with this opinion.
CONCLUSION
¶ 37 The Utah Product Liability Act applies to actions, in both tort and contract, arising from injury caused by a defective product. The two-year product liability statute of limitations will only apply if a claim alleges damage from a product and if that product was defective when sold. Because the tort and contract actions contained within product liability share common roots, whether a transaction involves a product can be determined by using the UCC test for determining whether the transaction was for goods. In cases involving hybrid transactions, this is done by examining the predominant purpose of the transaction. The overlap between tort and contract also allows the UCC definition of sale to be used to determine when a product is sold. Because we find these two tests from the UCC to be the appropriate tests for resolving the issue of whether ULGT's claim is for product liability, we reverse the decision of the court of appeals and remand for the application of these tests.
¶ 38 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice WILKINS, and Justice PARRISH concur in Justice NEHRING's opinion.
NOTES
[1] Utah Local Government Trust is an entity that underwrites the construction and maintenance of various state-owned properties, including the Hurricane City power plant. Hurricane City is ULGT's insured and the party that contracted with Wheeler Machinery Company.
[2] In making this distinction, the Magrine court acknowledged that a typical retail seller also has little opportunity to discover defects in goods; however, they distinguished the plaintiff's attempt to bring a product liability action from such cases by pointing out that strict liability claims against retailers draw in part from a legislative decision to adopt the UCC warranty action. Magrine, 227 A.2d at 543. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2611996/ | 77 Wash. 2d 174 (1969)
459 P.2d 787
MARJORIE K. BOWMAN, Respondent,
v.
J. BURTON BOWMAN, Appellant.[*]
No. 40378.
The Supreme Court of Washington, Department Two.
October 23, 1969.
O'Leary, Meyer & O'Leary and Ernest L. Meyer, for appellant.
Foster & Foster, for respondent.
LEAHY, J.[]
This is an appeal from an order modifying a previous decree of divorce with respect to alimony payments.
After 25 years of marriage, respondent wife, then 51 years of age, instituted divorce proceedings against the appellant. At that time respondent had two children from a prior marriage who had been adopted by appellant. Both children had reached their majority at the time of the divorce.
During the pendency of the divorce proceedings appellant *175 paid Mrs. Bowman $375 per month. By the terms of the property settlement agreement, respondent was awarded the family home, subject to two-thirds of the existing mortgage ($14,172.69), in the amount of $9,448.46, with payments of $100 per month, an automobile, certain stocks, and an insurance policy on her own life. The court ordered appellant to pay $375 per month for 2 years as support for respondent, it being the belief of the parties that respondent would become self-supporting by the end of that period of time.
During the 2-year period, respondent enrolled in a vocational school and also received the equivalent of a high school diploma. She was not in good health, either physically or emotionally, during this time, however, and was able to work only part-time, receiving an average monthly income of $150.
A month before the end of the 2-year period, respondent petitioned the court to modify the decree and award her $275 per month for an additional 2 years. The appellant was at this time earning $1,200 per month. Although the petition to modify the divorce decree was filed in January, 1967, the memorandum decision handed down after hearings on 4 separate days, was not filed until June 30, 1967. Six days previous to that date the respondent (seemingly unknown to the court) had remarried.
Following respondent's remarriage, appellant filed a motion to reopen the matter. The trial court then modified the decree to provide that appellant's obligation to support respondent be continued beyond the original 2-year period, for a period of 3 months (up to the date of respondent's remarriage). Respondent was to receive a total amount of $450 at the rate of $150 per month. The trial court found that at the entry of the original decree the parties anticipated that respondent would be employed and fully self-supporting at the end of the original 2-year period. However, the anticipated situation of being fully self-supporting had not materialized, through no substantial fault of respondent. The court found that this was a material change of conditions and that she was, therefore, entitled to the *176 continuation of alimony from the time she filed the petition of modification to the time of her marriage, particularly in view of the fact that she owed approximately $800 worth of debts accrued after the divorce and prior to her remarriage.
Appellant now appeals from the modification, alleging that the trial court erred in granting respondent any alimony other than that provided for in the original divorce decree. He contends that the allegation that respondent is not fully self-supporting is no longer material in view of her remarriage and that the payment of alimony should not be extended to pay respondent's preexisting debts, as that would be an attempt to retroactively modify the original order.
With these contentions we must disagree. The primary purpose of the payment of support to respondent by appellant for a period of 2 years was to enable her to become self-supporting by the end of that period through additional training and work experience.
There was ample evidence upon which the lower court could, and did find, that the anticipated self-supporting status did not come into fruition at the end of the 2-year period and that this occurred through no appreciable fault of the respondent. The court rightly concluded that this established a material change in conditions, and justified the modification of the decree by extending the alimony payments for 3 months.
[1] While the court took into consideration the presence of respondent's debts, which accrued during the original 2-year period, this did not mean that the court was attempting to retroactively modify the original 2-year support order. See Pishue v. Pishue, 32 Wash. 2d 750, 203 P.2d 1070 (1949).
Rather, the court, taking into consideration the presence of debts, whenever accrued, and respondent's current financial condition up to the time of her remarriage, simply extended the support on the basis of a material change of conditions for 3 months at the reduced amount of $150 per month.
*177 There is no question that the court had the authority to do this. In Ovens v. Ovens, 61 Wash. 2d 6, 9, 376 P.2d 839 (1962) this court held:
In the event that, at the end of the 2-year period, the evidentiary expectation upon which the trial judge premised his finding has not, in fact, materialized, and upon a showing of need, the continuance of the alimony allowance can be reviewed by the trial court at that time.
[2] As to the period of time for which the court made the extension effective, see Chase v. Chase, 74 Wash. 2d 253, 259, 444 P.2d 145 (1968):
In a situation warranting modification of child support or alimony, the court may make the modification effective either as of the time of filing the petition or as of the date of the decree of modification, or as of a time in between, but it may not modify the decree retroactively.
Appellant also assigns error to the trial court's judgment awarding respondent $125 for attorney's fees. The record indicates that there was adequate evidence of respondent's need, and of appellant's ability to pay, upon which the court could and did make this allowance. Taking into consideration the rather unusual number of hearings that this case consumed, the amount of $125 allowed was rather minimal.
In Christopher v. Christopher, 62 Wash. 2d 82, 90, 381 P.2d 115 (1963), this court stated:
The allowance of fees to either party is governed by the needs on the one hand and the financial ability to pay on the other. The same rule follows on appeals and proceedings to modify the divorce decree.
An attorney's fee of $100 will be allowed respondent in connection with the appeal to this court.
The judgment is affirmed.
HUNTER, C.J., FINLEY, ROSELLINI, and NEILL, JJ., concur.
NOTES
[*] Reported in 459 P.2d 787.
[] Justice Leahy is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. 4, § 2(a) (amendment 38). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2143567/ | 220 Cal. App. 3d 372 (1990)
269 Cal. Rptr. 447
In re CARLOS M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
CARLOS M., Defendant and Appellant.
Docket No. D009147.
Court of Appeals of California, Fourth District, Division One.
May 16, 1990.
*376 COUNSEL
Jan Stiglitz, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Robert M. Foster and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[1]]
OPINION
FROEHLICH, J.
Carlos M. appeals from an order adjudging him a ward of the court because, as a minor, he had committed an oral copulation by force, in violation of Penal Code[2] section 288a(d). (Welf. & Inst. Code, § 602.) He was placed on probation, ordered returned to Mexico (pursuant to Welf. & Inst. Code, § 738), and enjoined not to return to the United States without proper documentation.
Appellant raises several contentions on appeal. First, he argues the court erroneously denied his motion to suppress certain evidence, which he contended was the tainted fruit of an illegal search and seizure. Second, he contends certain pretrial and in-court identifications of him by the victim should have been suppressed, being the tainted products of an unnecessarily suggestive "one-person show-up." Finally, he argues the evidence is insufficient, as a matter of law, to show that he forced himself upon the victim or was aware that others had applied force to the victim or threatened her with bodily injury.
*377 For the reasons discussed below, we affirm.
I. Factual and Procedural Background
A. Prosecution's Case
The facts, viewed most favorably in support of the judgment (People v. Towler (1982) 31 Cal. 3d 105, 109 [181 Cal. Rptr. 391, 641 P.2d 1253]), indicate that at approximately 5:30 a.m. on August 22, 1988, the victim, Michelle D., was sitting alone near Balboa Park Drive and Laurel Avenue, waiting to meet a friend. She was approached by two Hispanic men, who had been sitting with four other Hispanic men on a nearby concrete wall, and asked if she wanted a beer. She agreed and began walking with the two men across a field toward a tree-lined area.
After walking a short distance, however, she sensed something was wrong, decided to turn back, and informed the two men she had changed her mind. The two men grabbed her, said "come on," and forced her to continue with them across the field. At the edge of the field the victim saw she was being led toward a trail into a bushy area and began struggling violently and screaming. The two men pulled her down the trail, ripping her pants off in the process. The older of the two men then pulled down his pants and ordered her to "give it to him," while the younger man pulled out a folding knife, released the blade, and began waving it in her face. When the victim saw the knife she began crying and pleading with the two men, but the older man forced her to her knees and then forced her to orally copulate him.
The victim continued struggling to escape, but the two men picked her up and carried her down the trail to what appeared to be a makeshift campsite. Although she continued to struggle and plead to be released, the two men ripped open her shirt, pushed up her bra, and forced her again to orally copulate the older of them. A few minutes later the victim became aware that the four other Hispanic men (whom she had seen sitting on the wall) were arriving at the campsite, laughing and talking. As these newcomers arrived, the victim continued screaming and struggling to escape.
Despite the victim's continued struggling and screaming, the first two men continued to hold the victim on the ground while the four newcomers laughed, pulled down their pants and began masturbating, and then three of the newcomers forced the victim to orally copulate them. A short time later *378 the victim was held down on the ground and her legs were forced apart; then one of the males, after putting on a condom, forced sexual intercourse on her. After he withdrew and motioned to another to take his turn, the victim began screaming more loudly. In response, a newcomer displayed the knife again, held it to the victim's neck, and told her to "shut up" or he would kill her. Thereafter, one of the newcomers forced her to orally copulate him while another of the newcomers forced intercourse on her.
The victim testified she was forced to have intercourse with five of the six men, the sixth man having unsuccessfully attempted penetration. The victim also testified she was forced into 10 separate episodes of oral copulation and 1 episode of anal penetration. During the incident, which lasted approximately one and one-quarter hour, the victim testified all of the men participated in pinning her to the ground and forcing her to orally copulate them and to engage in sexual intercourse. Eventually the men departed, leaving the victim alone. As she collected her clothes to leave, however, one of the men returned and tried to force her again to orally copulate him, but she vomited and began hitting him, driving him away.
The victim returned to Laurel Street, located a police officer at about 7:20 a.m., and reported the crime, first giving the officer generalized descriptions of the six assailants, and later giving him more detailed descriptions of their appearance and clothing. The victim was later taken to a nearby hospital for a medical examination designed for rape victims, arriving at approximately 8:45 a.m. The examination, which concluded at about 10:45 a.m., revealed the presence of sperm in her vagina, a lot of vegetation on her perineum, and bruises and scratches on her back, knees and breasts.
While receiving medical attention at the hospital, the victim was shown several men brought to that location by investigating officers. She identified several of the men as her attackers, basing such identifications on her recollections of the events surrounding the assault upon her. One of the persons identified was appellant. Appellant admitted to an investigating officer, during a custodial interrogation the following day, that the victim had orally copulated him.
At trial the victim again identified appellant as one of the four persons who had been sitting on the wall and who later joined in the assault. Although she could not recall which specific sexual act or acts appellant had forced her to perform, she recalled he was an active participant and had helped to restrain her. On cross-examination the victim conceded she was not "really able" to recognize appellant at trial and could not remember his *379 specific actions upon arriving at the crime scene, but she thought him to be one of the four who had been sitting on the wall and who had arrived later.
B. Defense Case
The defense did not dispute that the victim had orally copulated appellant. The defense instead contended appellant had neither forced the victim to engage in sexual acts nor was aware that others had forced sexual activity on her. Alvaran, a defense witness who had already pled guilty to raping the victim, testified he was one of the men who had initially contacted her. He further testified that after sharing liquor and marijuana with her, he and a companion offered her drugs in exchange for sex, to which she agreed. She voluntarily accompanied them to the campsite without protest or struggle. Alvaran testified there were four other men at the campsite when they arrived, one of them being appellant, who was asleep. Alvaran claimed the victim voluntarily had sex with him and his companion and raised no resistance or protest until three other men subsequently arrived. Alvaran claimed the only protest was the victim's saying "Can't you let me go," but that the victim never screamed, fought or was forcibly restrained while having sex with the group.
Alvaran claimed appellant was asleep during the only period when the victim resisted having sex with the group; that the victim had orally copulated appellant without refusing, fighting, screaming or being physically restrained; and that appellant had done nothing to force the victim to orally copulate him. Alvaran claimed the knife was only displayed after all of the sexual activity had ceased and the group had already departed the campsite.
C. Procedural History
Appellant was charged with four counts of rape in concert (§§ 261, 264.1), one count of penetration with a foreign object in concert (§§ 289, 264.1), and five counts of oral copulation in concert (§ 288a, subd. (d)). Appellant denied the allegations and unsuccessfully moved before trial to suppress certain evidence claimed to be products of an illegal search and seizure. Following a bench trial the court made a true finding as to one count of forcible oral copulation in concert (§ 288a, subd. (d)) and dismissed the remaining counts for lack of sufficient evidence. The court thereafter adjudged appellant a ward of the court, granted probation and ordered him turned over to the juvenile authorities in Mexico. This appeal followed.
*380 II. Appellant's Motion to Suppress Was Properly Denied Because He Was Lawfully Detained and Transported for Identification
Appellant unsuccessfully moved to suppress the hospital identification and the subsequent inculpatory statements made by appellant while in custody. He based his motion on the alleged unreasonably intrusive conduct of the police: both in the form of their detention of him in Balboa Park and then in terms of his transportation to the hospital where he was identified by the victim.
Appellant raises the same complaints on appeal. Because the reasonableness of an investigative detention and/or transportation is intimately tied to the facts and circumstances of each case (see, e.g., People v. Loewen (1983) 35 Cal. 3d 117, 123 [196 Cal. Rptr. 846, 672 P.2d 436]), our review necessarily encompasses an examination of the circumstances of this case.
A. Facts Relating to Detention and Transportation
At approximately 7:20 a.m. the victim had flagged down a police officer and reported she had been raped by 6 young undocumented aliens, aged 18 to 23, within the last hour. She described one of them as having long hair and wearing a red shirt and jeans. She said the others were wearing jeans and sweat tops. These cursory descriptions were immediately broadcast to other officers. Shortly thereafter more detailed descriptions of the six suspects were obtained and broadcast. The second broadcast contained fairly detailed descriptions of five of the males, including one male described as being twenty to twenty-three years of age, five feet eight inches in height, weighing one hundred fifty pounds, of medium build, having brown eyes and long brown hair, and wearing a red shirt and jeans. The sixth male was described only as Hispanic, with medium-length brown hair and brown eyes, wearing jeans.
The two broadcasts were monitored by a park service officer and by an Officer Ferko. Approximately one hour later the park service officer saw two Hispanic men, apparently matching the broadcast descriptions, sleeping in an area approximately one-quarter mile from the site of the incident. The park service officer called for assistance, and Ferko arrived about 8:30 a.m. to provide assistance. Ferko observed the two suspects, one of whom was appellant, and believed they matched the broadcast descriptions in several particulars: ethnicity, sex, age, attire (both in red shirts).
Ferko approached the two suspects, awakened them and requested identification. The men, responding in broken English, gave their names and *381 stated they lived in San Diego. However, neither produced any documentation bearing his name, and neither gave an address. Ferko believed the appearance of at least one of the suspects corresponded to broadcast descriptions, and noted that the suspects were found within one-half mile of the crime scene. Ferko contacted his dispatcher with this information and received instructions to transport the suspects to a nearby hospital for possible identification by the defendant, who was undergoing an examination. Ferko then conducted a brief patdown search, handcuffed both men, placed them in the back of his car and transported them to the hospital. The drive to the hospital took about four to five minutes; and the entire detention, from the time appellant was awakened until the victim identified him, took about one-half hour.
B. The Initial Detention Was Reasonable
(1) An investigative detention is justified when the facts and circumstances known or apparent to the officer, including specific and articulable facts, cause him to suspect (1) a crime has occurred and (2) the person he intends to detain is involved in the criminal activity. (In re Tony C. (1978) 21 Cal. 3d 888, 893 [148 Cal. Rptr. 366, 582 P.2d 957].) "Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith." (Ibid.)
(2) Appellant complains Ferko lacked sufficient specific and articulable facts reasonably to suspect appellant as a perpetrator, since his only match with the broadcast description was that he was a Hispanic wearing a red shirt.[3] A vague description does not, standing alone, provide reasonable *382 grounds to detain all persons falling within that description (In re Tony C., supra, 21 Cal.3d at p. 898 [description of "three male blacks" in day-old burglary report insufficient to permit detention of all those falling within description]). However, the more particularized descriptions here (including age, hair and eye color, and hair length of the sixth suspect) (compare, e.g., People v. Fields (1984) 159 Cal. App. 3d 555, 563-564 [205 Cal. Rptr. 888]), together with the additional circumstances known to the officer (i.e., appellant's presence within one-half mile of the crime site, within one hour of the crime report, and his being in the presence of another man who closely resembled a described suspect) amply justified the detention of appellant.
(3) Of course, a defendant's mere proximity to a person suspected of criminal conduct does not itself provide grounds also to suspect the defendant of wrongdoing. (Ybarra v. Illinois (1979) 444 U.S. 85, 91-92 [62 L. Ed. 2d 238, 245-246, 100 S. Ct. 338].) However, where (as here) a crime is known to have involved multiple suspects, some of whom are specifically described and others whose descriptions are generalized, a defendant's proximity to a specifically described suspect, shortly after and near the site of the crime, provides reasonable grounds to detain for investigation a defendant who otherwise fits certain general descriptions. (In re Lynette G. (1976) 54 Cal. App. 3d 1087, 1092 [126 Cal. Rptr. 898].)
C. The Transportation Was Not Unreasonable
(4a), (5) (See fn. 4.) Appellant next complains that, even if the initial detention was valid, the subsequent handcuffing and transportation was so overly intrusive that it exceeded the constitutionally permissible boundaries of an investigative detention.[4]
*383 In People v. Harris (1975) 15 Cal. 3d 384 [124 Cal. Rptr. 536, 540 P.2d 632], the court concluded that a so-called "transportation detention" (absent consent, probable cause to arrest or other unusual circumstances) impermissibly intruded on the detainee's constitutional liberties. Importantly, the rationale of the Harris court was that "[o]rdinarily there exist less intrusive and more reasonable alternatives to pre-arrest transportation. The officers may call or escort the witness to the detention scene for an immediate viewing of the suspect, or if they are able to procure satisfactory identification from the suspect, arrangements may be made for a subsequent confrontation with the witness. In addition, the consent of the suspect may be sought." (Id. at p. 391, italics added.) Indeed, Harris acknowledged factual situations could arise where it would be quite reasonable to transport the suspect to the witness: where the witness was "injured or otherwise physically unable to be taken promptly to view the suspect ... [or where] the surrounding circumstances may reasonably indicate that it would be less of an intrusion upon the suspect's rights to convey him speedily a few blocks to the crime scene, permitting the suspect's early release rather than prolonging unduly the field detention." (Ibid.)
(4b) We conclude, under the facts of this case, the transportation was reasonable. Because Ferko spoke no Spanish, the language barrier prevented him from attempting to obtain consent.[5] The absence of identification, or even a residential address, rendered the "arrangements for subsequent confrontation" option moot.
The only option reasonably available to Ferko was to bring the victim and the suspects together as expeditiously as possible. Ferko understood that at the time he wished to arrange an in-field identification, the victim was undergoing a rape-victim examination. Ferko (from prior experience) believed this would require about two hours. Although the victim was not suffering severe physical injuries, she was presumably "unable to be taken promptly to view the suspects" in light of the trauma she had endured and the exigencies a rape-victim examination entails. To bring the victim to the suspects probably would have required Ferko to detain them for two hours to await the completion of the examination, or to interrupt the examination and seek to transport the victim.[6]
*384 The option selected by Ferko transporting the suspects to the hospital rather than attempting to transport the witness from the hospital to the location of the suspects was eminently reasonable. Even assuming it would have been possible to interrupt the hospital examination, time would have been wasted in finding the victim and causing termination of the examination. Since transportation time in either event would be the same, the likely detention of the suspects would be less by virtue of the option selected by Ferko taking the suspects to the witness.
Even if we assume that other methods might have been available and less intrusive, we will not declare the methods chosen to be constitutionally unreasonable merely because "creative ... post hoc evaluation[s] [allow judges to] imagine some alternative [less intrusive] means by which the objectives of the police might have been accomplished." (United States v. Sharpe (1985) 470 U.S. 675, 686-687 [84 L. Ed. 2d 605, 616, 105 S. Ct. 1568].)
D. The Transport Detention Was Not an Unlawful De Facto Arrest
(6a) Appellant finally argues the transport detention was conducted in such a manner (i.e., during a 30-minute detention appellant was subjected to a patdown search, was handcuffed, and was driven to the hospital) that it amounted to a de facto arrest, unlawful because Ferko lacked probable cause to arrest appellant.
(7) The courts have long recognized that an investigative detention may, at some point, become so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. (United States v. Sharpe, supra, 470 U.S. at pp. 683-686 [84 L.Ed.2d at pp. 613-616].) When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause. (Dunaway v. New York (1979) 442 U.S. 200, 212 [60 L. Ed. 2d 824, 835-836, 99 S. Ct. 2248].) However, there is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably *385 available under the circumstances. (United States v. Sharpe, supra, 470 U.S. at pp. 685-688 [84 L.Ed.2d at pp. 614-617]; People v. Bowen, supra, 195 Cal. App.3d at p. 273.)
(6b) Appellant argues the length of the detention demonstrates it was a de facto arrest. However, the courts have refused to adopt "any outside time limitation" on a lawful detention (United States v. Place, supra, 462 U.S. at p. 709 [84 L.Ed.2d at p. 630]), focusing instead on whether the length of the detention was "no longer than is necessary to effectuate the purpose of the stop." (Florida v. Royer (1983) 460 U.S. 491, 500 [75 L. Ed. 2d 229, 238, 103 S. Ct. 1319].) As discussed above, the evidence clearly indicates Ferko acted with dispatch and selected "a means of investigation that was likely to confirm or dispel [his] suspicions quickly." (United States v. Sharpe, supra, 470 U.S. at p. 686 [84 L.Ed.2d at pp. 615-616].)
Appellant also argues the fact he was handcuffed and transported demonstrates it was a de facto arrest.[7] The fact that a defendant is handcuffed while being detained does not, by itself, transform a detention into an arrest. (People v. Bowen, supra, 195 Cal. App.3d at pp. 272-274.) Instead, the issue is whether the restraint employed exceeded that which was reasonably necessary for the detention. (People v. Campbell, supra, 118 Cal. App.3d at pp. 595-596.) Here, two men suspected of a violent crime were to be transported in the back of a police car by a single officer; the only thing separating the officer from the suspects was wire mesh, through which a suspect could place his fingers. Handcuffs were used to assure the officer's safety. Since a patdown search is not an infallible method of locating concealed weapons, the temporary use of handcuffs for safety purposes, used in this instance by a single officer briefly transporting two men suspected of a violent crime, did not exceed the restraint reasonably necessary to accomplish quickly the purposes of the detention.
*386 III. The Hospital Identification Was Not Impermissibly Suggestive
(8a) Appellant next complains the victim's identification was tainted because it was the product of an unnecessarily suggestive "one-person show-up" at the hospital. (9) (See fn. 8.) Appellant argues it was impermissibly suggestive because appellant was handcuffed when viewed by the victim, and because appellant was shown to the victim immediately after she had positively identified another suspect.[8]
(10a) A single-person show-up is not inherently unfair. (People v. Floyd (1970) 1 Cal. 3d 694, 714 [83 Cal. Rptr. 608, 464 P.2d 64].) The burden is on the defendant to demonstrate unfairness in the manner the show-up was conducted, i.e., to demonstrate that the circumstances were unduly suggestive. (People v. Hunt (1977) 19 Cal. 3d 888, 893-894 [140 Cal. Rptr. 651, 568 P.2d 376].) Appellant must show unfairness as a demonstrable reality, not just speculation. (People v. Perkins (1986) 184 Cal. App. 3d 583, 589 [229 Cal. Rptr. 219].)
(8b) Appellant fails to meet his burden. The record is devoid of any indication that police told the victim anything to suggest the people she would be viewing were in fact her attackers. While appellant claims the handcuffs influenced the victim to believe appellant was involved, the mere presence of handcuffs on a detained suspect is not so unduly suggestive as to taint the identification. (See In re Richard W. (1979) 91 Cal. App. 3d 960, 969-971 [155 Cal. Rptr. 11].) Appellant also argues the victim, having first been shown appellant's companion and having identified him, could well have assumed that appellant must also have been involved. This contention is both purely speculative and contrary to the record. Shortly before the victim identified appellant and his companion, she had been shown two other suspects together; the victim positively identified one suspect, but made no identification of his companion. The record thus demonstrates the victim was amply able to distinguish persons she recognized from persons she did not recognize, and the fact a recognized attacker was shown with a *387 companion did not influence her to assume that companion must also have been involved.
(10b) Appellant contends, incorrectly, that single-person show-ups are impermissible absent a compelling reason. To the contrary, single-person show-ups for purposes of in-field identifications are encouraged, because the element of suggestiveness inherent in the procedure is offset by the reliability of an identification made while the events are fresh in the witness's mind, and because the interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has been apprehended. (Id. at pp. 969-970.) The law permits the use of in-field identifications arising from single-person show-ups so long as the procedures used are not so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (Ibid.)
(8c) Our review of the totality of the circumstances (Manson v. Brathwaite (1977) 432 U.S. 98, 114 [53 L. Ed. 2d 140, 154, 97 S. Ct. 2243]) convinces us the victim's hospital identification was reliable, rather than the product of an unduly suggestive show-up. The victim's "opportunity to view appellant at the time of the crime" was shown, since she saw appellant as one of the four men sitting on the wall before the attack, and had ample opportunity to see him at close range during the seventy-five minutes of the incident. Her degree of attention, while perhaps marginally impaired by the chaos of the attack, was sufficient to enable her later to provide relatively detailed descriptions of most of her attackers. The accuracy of her description of appellant, while inaccurate as to the type of pants he was wearing, was an otherwise generally accurate description. The victim's level of certainty of her in-field identification was clear, since she was positive on the suspects she identified at the hospital.[9] Finally, the lapse of time between the crime and identification was less than three hours, a period not likely to impair her memory of the details of the attack.
IV. There Was Substantial Evidence to Support the Conviction[*]
.... .... .... .... .... .
*388 DISPOSITION
The judgment is affirmed.
Todd, Acting P.J., and Nares, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 16, 1990.
NOTES
[1] Pursuant to California Rules of Court, rules 976.1 and 976(b), this opinion is certified for publication with the exception of part IV.
[2] All statutory references are to the Penal Code unless otherwise specified.
[3] Appellant strongly emphasizes that the trial court's statement that appellant did not really match any of the descriptions demonstrates the unreasonableness of Ferko's actions. However, appellant ignores the context of that statement. The trial court found, as a factual matter, that the sixth suspect was only sketchily described, and that appellant did not appear to match "more than [the] generalized descriptions of the suspects." The court's statement that appellant did not "really match" the description of the sixth suspect was because appellant was wearing gray slacks, rather than the broadcast description of "jeans." In other respects, however, appellant did approximate the sketchy description of the sixth suspect, and Ferko stated "jeans" could be interpreted as including gray slacks. An officer, drawing on his training and experience (People v. Superior Court (1970) 3 Cal. 3d 807, 827 [91 Cal. Rptr. 729, 478 P.2d 449, 45 A.L.R. 3d 559]), could reasonably consider that the circumstances of the crime (involving a violent rape by multiple assailants during early morning light) might inhibit the victim's ability to describe the assailants' attire with a haberdasher's precision. We must assess the totality of the circumstances, rather than dwell on isolated discrepancies, to determine whether Ferko could reasonably have suspected appellant of possible involvement.
[4] Appellant also argues the detention, lasting one-half hour, was impermissibly lengthy. There is no hard and fast limit on the permissible length of an investigative stop. (United States v. Place (1983) 462 U.S. 696, 709 [77 L. Ed. 2d 110, 122, 103 S. Ct. 2637].) Rather, the test is whether the detention is temporary and whether the police acted with dispatch to quickly confirm or dispel the suspicions which initially induced the investigative detention. (People v. Bowen (1987) 195 Cal. App. 3d 269, 273 [240 Cal. Rptr. 466].) Here, nothing suggests Ferko dallied. In not more than thirty minutes (and perhaps in less than fifteen minutes), Ferko arrived and awakened two sleeping suspects; got them on their feet; attempted to obtain names and identifications; determined a language barrier existed and that they lacked identifications; called to determine the location of the only person (i.e., the victim) who could confirm or dispel his suspicions; conducted a patdown search; handcuffed both suspects; walked them to his car and placed them inside; made a five-minute trip to the hospital; and walked two men, one at a time, to the place where the victim could identify them. Ferko's actions show commendable dispatch.
[5] Appellant contends his companion spoke English, and he should have been used as a translator to obtain information or consent under the rationale of In re Dung T. (1984) 160 Cal. App. 3d 697 [206 Cal. Rptr. 772]. However, in Dung T. the arresting officer admitted knowing some members of the group understood English, and he simply ignored the opportunity to use them as a translator. (Id. at p. 716.) Here, Ferko testified he did not speak Spanish and suspects did not appear to understand his English. Dung T. has no application here.
[6] This option also could have impeded the investigation by permitting a deterioration of the extant physical evidence through lapse of time. In analogous situations the courts have recognized that police need not abandon a crime scene before a proper investigation has been completed, in order to transport a victim to the site where the suspect is located, when the transportation of the suspect to the victim involves only a minimal additional intrusion on the suspect's freedom. (People v. Gatch (1976) 56 Cal. App. 3d 505, 508-510 [128 Cal. Rptr. 481].)
[7] Appellant cites People v. Campbell (1981) 118 Cal. App. 3d 588 [173 Cal. Rptr. 442] and In re Jorge S. (1977) 74 Cal. App. 3d 852 [141 Cal. Rptr. 722] for the proposition that handcuffing a suspect, and then transporting him elsewhere while handcuffed, amounts to a de facto arrest. Neither case, however, involved a transportation for the limited purpose of an in-field identification. Instead, both cases involved restraining and transporting the defendant to a police station for purposes of custodial interrogation (In re Jorge S., supra, 74 Cal. App.3d at p. 856), or to the functional equivalent of a police station for further search of the detainee or his property (People v. Campbell, supra, 118 Cal. App.3d at p. 593). While the court in People v. Harris, supra, 15 Cal. 3d 384 noted some circumstances might justify transportations for in-field identifications (id. at p. 391), "`... it is only in a rare case where, absent probable cause for arrest, the removal of a suspect to a police station for further investigation is constitutionally permissible.' [citing People v. Courtney (1970) 11 Cal. App. 3d 1185, 1192 [90 Cal. Rptr. 370]]." (People v. Harris, supra, at p. 391, italics added.) Thus, Harris (as well as the United States Supreme Court see discussion in United States v. Sharpe, supra, 470 U.S. 683-685 [84 L.Ed.2d at pp. 613-615]) indicates a police station detention for custodial interrogation may well be so overly intrusive that it exceeds a permissible detention and becomes a de facto arrest. We are not confronted with a police station detention here.
[8] We rest our decision on the ground that the single-person lineup identification procedure was not unfair in this case. However, we have doubt that a defendant can complain of an unfair lineup when, at the time of trial, he has admitted identity, basing his defense on consent of the victim. The lineup process is not in and of itself a violation of constitutional rights; it is the use of evidence produced by an unfair lineup which constitutes the violation. Typically, a claimed due process violation for use of identification evidence derived from an unduly suggestive lineup arises in cases where the defendant denies any involvement in the incident. (See, e.g., People v. Nation (1980) 26 Cal. 3d 169, 178-181 [161 Cal. Rptr. 299, 604 P.2d 1051]; People v. Bisogni (1971) 4 Cal. 3d 582, 586-588 [94 Cal. Rptr. 164, 483 P.2d 780].) We are unaware of any case permitting a defendant who admits involvement to claim prejudicial error based on a faulty lineup.
[9] Appellant attacks the certainty of her identification because she had less certainty in subsequent identifications. While the victim may well have had less certainty in subsequent lineup and court identifications, numerous factors (i.e., lapse of time after the crime, coupled with a mental block of details of a horrific experience; change of the suspect's appearance and attire) could explain this later uncertainty without impugning the certainty she had at the hospital, when events were still fresh in her mind and the attackers' physical appearances remained unaltered.
[*] See footnote, ante, page 373. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1456659/ | 992 F.Supp. 913 (1998)
DEN NORSKE STATS OLJESELSKAP, A.S, Plaintiff and Counter-Defendant,
v.
HYDROCARBON PROCESSING, INC., Defendant and Counter-Claimant.
Civil Action No. H-97-731.
United States District Court, S.D. Texas, Houston Division.
January 23, 1998.
*914 Leon V. Komkov, Austin, TX, for Plaintiff.
John Victor Mastriani, Houston, TX, for Defendant.
Opinion on Summary Judgment
HUGHES, District Judge.
1. Introduction.
Two companies entered into contracts for the sale of propane. A broker arranged the contracts and confirmed them by telephone calls and facsimile transmissions to both companies. When the price of propane dropped, one of the companies repudiated the contracts. The other sued seeking damages. Because contracts were formed, confirmed, and breached, the damaged company will recover its loss.
2. Facts.
On September 24, 1996, Hydrocarbon Processing, Inc. (Hydro) agreed to sell Den norske stats oljeselskap, a.s. (Statoil), 10,000 barrels of propane at $0.4200 per gallon for delivery in February 1997. Gasteam USA, Inc., brokered the agreement, called both parties to confirm that the sale had closed, and confirmed the agreement by sending facsimiles to both parties.
On December 20, 1996, Statoil and Hydro agreed to trade February propane deliveries. Statoil agreed to sell Hydro 25,000 barrels of propane at $0.5725 per gallon; Hydro agreed to sell Statoil 25,000 barrels at a price to be calculated based on the average current month quotation in an independent report. Again, Gasteam brokered the transaction, called both parties to confirm that the sale had closed, and sent confirming faxes to them.
The faxes specified the seller, buyer, product, quality, quantity, delivery, price, payment, title, risk, distribution, confidentiality, and commission. They began by saying, "Further to recent conversations, we are pleased to confirm the following transaction . . . ." They did not require a response from the parties. Hydro never requested additional documents nor objected to the faxes. In none of seventy-two transactions brokered by Gasteam for Hydro and not involving Statoil in 1995-1996 did Hydro tell Gasteam that it required additional documents to close a deal.
In mid-February sixty days after the second deal and, coincidentally, at the time for performance of both deals Hydro sent letters to Statoil repudiating both contracts, contending that the faxes were mere offers. Propane had by then dropped to $0.38793 per gallon. Statoil covered the first contract. It made a profit of $6,300.00 on the first deal but lost $193,798.50 on the second. Statoil seeks its net loss of $187,498.50, Gasteam's brokerage fee of $1,050.00, attorneys' fees of $14,473.33, and pre- and post-judgment interest.
3. Contract Formation.
Texas law allows a contract to "be made in any manner sufficient to show agreement." *915 Tex. Bus. & Com. Code § 2.204(a) (1994). The confirming memoranda from the middle party reliably evinces agreement.
The only reasonable interpretation of the facts is that contracts were formed. Gasteam conveyed Statoil's offers to Hydro and Hydro's acceptance to Statoil. It then confirmed the transactions by telephone and fax. That is simple contract formation offer and acceptance occurring through a broker and documented in faxes.
In a similar situation, a contract between two grain dealers was formed through a broker who sent confirmation by wire and mail to the parties. The purchasing grain dealer made no complaints on receipt of the confirmation. Producers Grain Corp. v. Rust, 291 S.W.2d 477, 480 (Tex.Civ.App. Amarillo 1956, no writ). See also Louisiana Land & Exploration Co. v. Pilot Petroleum Corp., 900 F.2d 816, 817 n. 4 (5th Cir.1990) (noting, without comment, that parties had "contracted" for sale of jet fuel by buyer's contacting broker who transmitted confirmation telexes to seller). Under Texas law, therefore, Hydro and Statoil formed contracts. Hydro's argument that there is a genuine issue of material fact on propane industry standards for contract formation does not matter: a contract was formed under Texas law.
At a minimum, Hydro acquiesced to the contracts. Even if, as Hydro contends, the faxes were mere offers, Hydro's silence in the face of "confirming telefaxes" is acceptance.
It is true that, generally speaking, an offeree has a right to make no reply to offers, and hence that his silence is not to be construed as an acceptance. But, where the relation between the parties is such that the offeror is justified in expecting a reply, or the offeree is under a duty to reply, the latter's silence will be regarded as acceptance. Under such circumstances, "one who keeps silent, knowing that his silence will be misinterpreted, should not be allowed to deny the natural interpretation of his conduct," etc. Williston on Contracts, §§ 91, 91a.
Laredo Nat'l Bank v. Gordon, 61 F.2d 906, 907 (5th Cir.1932). Hydro had to object openly and promptly if it did not intend to perform. Because it remained silent, Hydro at least acquiesced to the contract.
4. Affirmative Defenses.
Hydro has asserted the affirmative defenses of failure of consideration, estoppel, fraud, and contributory negligence. Two of these defenses are legally impossible: one cannot negligently commit fraud. None of the defenses is convincing: no fact shows lack of consideration, estoppel, fraud, or contributory negligence.
In its response to Statoil's motion for summary judgment, Hydro raises the statute of frauds as an affirmative defense, which it had not asserted in its original answer and which it did not seek leave to add until seven months after filing its original answer. The claim is, therefore, procedurally deficient. It is also substantively defective. Gasteam's confirming faxes satisfy the statute:
[A] contract for the sale of goods for the price of $500 or more is not enforceable . . . unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.
Tex. Bus. & Com. Code § 2.201(a) (1994). Gasteam was the broker for both parties and acted with the authority of both parties. Statoil asked Gasteam to arrange the transactions. Gasteam arranged them with Hydro. Hydro conveyed its acceptance to Gasteam. Gasteam prepared, signed, and delivered the faxes to both parties. Each fax constitutes "a writing . . . signed by . . . [an] authorized agent or broker." Although Gasteam's president stated in his affidavit that Gasteam acted independently rather than as the agent for either of the parties, Gasteam was, nevertheless, authorized by both parties to broker the transactions. At the very least, Gasteam had the authority to convey information between the parties. Gasteam sent signed, confirming faxes to the parties. The statute of frauds requires nothing more.
*916 Even if the statute of frauds was not already satisfied, the faxes would fall within its "merchant's exception":
Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of [this law] against such party unless written notice of objection to its contents is given within ten days after it is received.
Tex. Bus. & Com. Code § 2.201(b) (1994). Hydro and Statoil are merchants. The faxes are good against Statoil since Gasteam functioned as Statoil's broker. Tex. Bus. & Com. Code § 2.201(a) (1994). They were plainly letters of confirmation ("[W]e are pleased to confirm the following transaction . . . ."); because they did not require further action by either party to form the contracts, they were not mere offers. See Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 706 (Tex.App. Houston [1st Dist.] 1988, writ denied) (holding that a writing was a mere offer rather than a confirmation of an oral contract because recipient was required to sign and return copy of letter). Hydro received the faxes and knew their contents. It did not object. The faxes satisfy the statute of frauds under its requirements for merchants.
5. Third-Party Complaint.
Hydro has sought leave to file a third-party complaint against Gasteam, asserting that Gasteam is liable to Hydro for some of Statoil's damages. Hydro did not seek leave until over two months after Statoil moved for summary judgment. Hydro knew of the brokerage arrangement when it received the faxes from Gasteam. It certainly knew that Statoil's claims involved Gasteam no later than Statoil's complaint. At the absolute latest, Hydro knew the facts that would give rise to a third-party complaint against Gasteam when Statoil moved for summary judgment. Hydro has had ample opportunity to assert the claim against Gasteam. Its motion for leave will be denied. Even if Hydro were allowed to complain against Gasteam, it would not be able to recover. There are no facts indicating that Gasteam did anything wrong no facts in the complaint, answer, motion for summary judgment, response to the motion for summary judgment, proposed first amended original answer, proposed third-party complaint, or any other pleading. The attack on Gasteam is a transparent attempt to foul the proceedings.
6. Conclusion.
The parties formed a contract; Hydro breached it. Statoil will recover its loss. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2255480/ | 29 Cal.Rptr.3d 144 (2005)
129 Cal.App.4th 1133
Anne TROP, Plaintiff and Appellant,
v.
SONY PICTURES ENTERTAINMENT INC., et al., Defendants and Respondents.
No. B174101.
Court of Appeal, Second District, Division Five.
May 31, 2005.
Review Denied August 24, 2005.
*146 Irving Meyer, Los Angeles, for Plaintiff and Appellant.
*147 O'Melveny & Myers, Scott H. Dunham, Los Angeles, Timothy B. McCaffrey, Jr., and Jennifer S. Vanse, Los Angeles, for Defendants and Respondents.
*145 KRIEGLER, J.
INTRODUCTION
Plaintiff and appellant Anne Trop was terminated from her position at Tall Trees Productions as an assistant for movie producer and director Betty Thomas. Trop, who was pregnant at the time of her termination, brought an action against defendants and respondents Sony Pictures Entertainment, Inc. and Tall Trees alleging, among other things, sexual discrimination based on pregnancy and wrongful termination in violation of public policy, also based on pregnancy.[1] Trop's pregnancy-related causes of action were based on statements Thomas allegedly made to Trop in the months prior to Trop's termination and at the termination meeting that demonstrated that Thomas did not want to employ a pregnant assistant.
Defendants obtained summary adjudication in their favor on Trop's causes of action for sexual discrimination and wrongful termination. Trop's other causes of action having been dismissed, the trial court entered judgment in favor of defendants. Trop argues on appeal that the trial court erred in granting summary adjudication. Because the record establishes that Thomas had no knowledge of Trop's pregnancy at the time Trop was fired, we conclude Trop failed to make out a prima facie case sufficient to withstand summary judgment.[2] Alternatively, assuming Trop did present a prima facie case of discrimination, we conclude the record establishes that Trop was fired for poor job performance and not due to discrimination based on pregnancy. We therefore affirm the judgment.
BACKGROUND
Defendants filed a motion for summary judgment on two separate grounds. First, defendants argued Trop failed to establish a prima facie case of discrimination because defendants did not know Trop was pregnant at the time she was fired, and her work performance was unsatisfactory. Second, defendants contended that if Trop did establish a prima facie case, the evidence was uncontraverted that Trop, an at-will employee, was fired because of her inadequate work, not due to her pregnancy.
Tall Trees, a general partnership between two corporations Tub O'Laughs, Inc. and Girls On Top, Inc., entered a three-year "first look" agreement with Columbia Pictures Industries, Inc., a division of Sony. Under the agreement, Tub O'Laughs, Inc. loaned Thomas to Tall Trees to provide services as a producer and director, and Girls On Top, Inc. loaned Jenno Topping to Tall Trees to provide *148 services as a producer. Sony agreed to pay a specific amount per year to Tall Trees for overhead, including the salaries and benefits of six staff employees plus an assistant for Thomas.
In May 2001, Thomas hired Trop as her assistant prior to beginning work on the movie "I Spy." Trop, who was not Thomas's first choice, was hired to replace Thomas's then current assistant with whose performance Thomas was dissatisfied. Trop signed a Sony Pictures' employment application, indicating she was an at-will employee.
In June 2002, Trop began trying to become pregnant. During the summer of 2002, Trop had a discussion with Elisabeth Peery, a Tall Trees producer, regarding her efforts to get pregnant. No one else was present during those conversations, and Peery did not disclose Trop's intent with any Tall Trees employee.
On September 28, 2002, Trop met with Lisa Sutton and Amy Lafayette, whom she believed to be herbal or Chinese doctors. Trop told them that she was trying to become pregnant and had a "session" with them during which they gave her acupuncture and herbs. Trop asked Sutton and Lafayette, who were good friends of Thomas and Topping, not to "tell anyone at Tall Trees about this." She wanted to be able to tell her fellow employees when she was pregnant.
The following week, Trop, Topping, and other Tall Trees employees were chatting in the office when Topping looked at Trop and said, "You had a good reading with [Sutton] and [Lafayette]." Trop asked Topping what she meant. Topping responded that the future looked good for Trop and "made this belly thing." Trop was shocked and wondered if Sutton and Lafayette had disclosed her plans to Topping.
By mid-October 2002, "I Spy" had concluded. According to Thomas, she noticed deficiencies in Trop's performance around that time. Trop began making mistakes with phone numbers and handling incoming calls. Thomas believed that Trop's attitude and enthusiasm for her work were declining. Thomas confronted Trop about her deficiencies and found her response to be "very cavalier."
In her deposition, Trop admitted that on four occasions she recorded telephone numbers incorrectly on phone messages for Thomas. She also admitted that she incorrectly recorded telephone numbers on three occasions on lists of frequently called numbers she prepared for Thomas. Trop contended, however, that she made those mistakes over her entire employment and not just in the final few months.
At the end of October 2002, Trop told Thomas that she needed to have a fibroid removed. Thomas consulted her calendar and confirmed that the date Trop wanted to have the procedure was convenient. Then, Thomas asked Trop, "What are you trying to do, get pregnant?" Trop responded, "Trying." Thomas "sarcastically" retorted, "Well, good luck."
In early November 2002, Thomas approved Trop's request for a three and a half-week vacation trip to England. Trop was to be off from December 14, 2002, through January 6, 2003. Although Thomas did not tell Trop that she would be fired for taking the trip, Thomas was very annoyed by Trop's extended absence, as Thomas was to begin pre-production on a new film, "Surviving Christmas," and a few other projects during that time.
Around this time, Vivian Cao, a receptionist and general assistant at Tall Trees, noticed that Thomas was "becoming more and more displeased with [Trop's] work." In the months prior to Trop's trip to England, Thomas spoke to Peery two or three *149 times about her dissatisfaction with Trop's work.
According to Thomas, her frustration with Trop's performance had reached the level in the beginning of November 2002 that she decided to fire Trop. In November and December 2002, Thomas spoke with Tony Peyrot, Tall Tree's business manager; Michael Wimer, her agent; and Topping about replacing Trop.
Thomas asked Peyrot to look for candidates to replace Trop. On December 10, 2002, Peyrot faxed "to Tall Trees the resume of a potential candidate with the intention that she ultimately replace" Trop as Thomas's assistant. The facsimile was sent to Trop's attention.
On December 13, 2002, Trop took a home pregnancy test. The test results were "light pink" or "light positive." Trop was "beyond thrilled." At the same time, she was "hopeful," but "not sure" that she was pregnant. Later that night, Trop went to the Tall Trees Christmas party at Thomas's home.
At some point during the evening, Trop went into the kitchen, where she saw and played with Topping's infant daughter, Mattie. According to Trop, in the presence of Thomas, Trop said, "It looks like I get to have one of my own." Thomas responded, "Not while you are working for me." Trop did not amplify upon that exchange.
Later that night, Sutton and Lafayette asked Trop if she was pregnant. Trop said that it looked like she was. She explained that she had taken a test that day and the results were "a sort of a positive." Sutton and Lafayette were happy and congratulatory. Both Sutton and Lafayette understood that Trop did not want them to tell anyone, and they did not.
Trop left for her trip to England the next day. She took "two more pregnancy tests with [her] and it was positive." Due to inclement weather, Trop was unable to return from England as scheduled returning to the office two or three days late. Trop attempted to call Thomas to alert her that she was delayed, but Thomas was not available. Instead, Trop left a message with Cao. Trop visited her doctor upon her return from England and confirmed that she was pregnant.
When Trop returned to work, she noticed a change in Thomas's attitude towards her. Thomas did not welcome her back and "was asking [other employees] to do things and it just seemed like she was sort of off me, that I had done something wrong, and I didn't really know what that was."
The day after Trop's return, Thomas left for a few days to teach a class at Ohio State University. A few days after her return from Ohio, Thomas was to leave for Chicago to begin filming the movie "Surviving Christmas." Trop asked Thomas if she could accompany her. Thomas said that she already had someone in Chicago who was going to help her and asked Trop to contact that person and explain how she (Thomas) liked things done. In the past, Trop had always traveled on such trips with the directors for whom she had worked. When Thomas declined to take her to Chicago, Trop knew "something was up."
After Thomas left for Chicago, Trop told Peery that she was pregnant. Trop did not ask Peery to keep her pregnancy a secret. Peery did not discuss Trop's pregnancy with Thomas, Topping, or any other Tall Trees employee prior to Trop's termination.
Early in the morning on January 17, 2003, after Thomas had returned from Chicago, Trop began to "spot" while at work. Trop went to her doctor, who told her that *150 "spotting" was normal and everything looked fine. Trop's doctor told her, however, that she should not lift anything and should go home and rest. Instead, Trop returned to work.
Later that day, as Trop was lifting a box into Thomas's car, she started crying, thinking to herself, "What are you doing? What's more important, your baby or lifting a box?" Cao saw Trop and asked her what was wrong. Trop explained that she was pregnant and should not have been lifting the box. Cao was "stunned." Trop asked Cao not to tell anyone, and Cao honored the request.
On about January 24, 2004, Thomas returned from a second trip to Chicago. According to Thomas, Trop had left a series of messages on Thomas's home phone detailing mistakes Trop had made. Each message included the phrase "my bad," acknowledging fault for the mistake addressed in the message. The messages reinforced Thomas's belief that Trop was making her work life more difficult and that she could not go on with Trop as her assistant.
On January 28, 2003, Thomas met with Trop and fired her. According to Trop, Thomas gave her three reasons. First, Thomas stated that she needed "somebody here who wants to be here and who doesn't have a life." Trop asked Thomas if she was talking about the vacation she had taken. Thomas said she was. Second, Thomas told Trop that she had taken a phone message from a particular person and had recorded the wrong number. Third, while Thomas was in a meeting with a writer on the movie "Valley of the Dolls 2," Trop had put through a call from the head of 20th Century-Fox concerning that movie, and Thomas had not wanted the writer to know that the studio head had called.
Thomas's and Trop's versions of what happened next differ markedly. According to Trop, after Thomas fired her, she began to cry. She took a moment to regain her composure and said, "You knew I was pregnant. You knew that," or "You know I am pregnant." Thomas then went "crazy," asking, "What were you thinking? How could you possibly be my assistant and be pregnant? How did you think that ever was going to work?" Trop responded, "I actually wasn't thinking about that." Thomas asked, "How could you possibly how was that going to work for you?" Trop said, "Women get pregnant every day." Thomas responded, "Well, that was never going to happen here. It would never happen here." Before Thomas left the meeting, she told Trop that she could have a month to find another job.
According to Thomas's version of the meeting, after she fired Trop, Trop began to cry. Trop said, "I don't want to." Thomas said, "What? What is it?" Trop said, "I don't want to tell you, because you're going to think I'm saying this because you fired me." Thomas said, "Say it. What is it? Say it." Trop said, "I'm pregnant." Thomas was shocked and said something to the effect of, "Do you want to be pregnant." Thomas thought that Trop might not have considered all of her "options" and that was why she was crying.
Thomas said she asked Trop why she had not told her. According to Thomas, Trop responded that she was not sure she was pregnant. Thomas said, "You're kidding. You're what are you thinking. How will you do this? What's your situation?" Thomas could not understand how Trop was going to lead her life. Thomas offered to give Trop a good recommendation and to help her find another job. According to Thomas, prior to that meeting, neither Trop nor anyone else had told *151 her that Trop was pregnant or trying to become pregnant.
Thomas told a human resources employee at Sony the reasons she fired Trop. As Thomas recalled at her deposition, she told the employee that she terminated Trop for "poor performance that had been going on for months ... a lack of enthusiasm about the job, which was reflected in desire to be at work, the lack of desire to be at work, the long vacation that she desired to take, the return from the vacation that was surprisingly longer." "Poor performance" included a number of perceived deficiencies. Thomas conceded she never expressly told Trop that her performance was poor.
After her termination, Trop asked Sutton if she had told Thomas that she was trying to become pregnant. Sutton denied telling Thomas. In declarations submitted with defendants' motion for summary adjudication, Sutton and Lafayette declared that they had not told anyone that Trop had sought medical treatment from them to become pregnant. They explained that they believed the physician-patient privilege precluded such disclosure and Trop had sworn them to secrecy. When Trop told Sutton and Lafayette that she was pregnant at the December 2002 Tall Trees holiday party, they understood the disclosure had been made in confidence. Sutton and Lafayette never discussed Trop's pregnancy, or her efforts to become pregnant, with Thomas or any other Tall Trees employee.
Trop also asked Peery if she had said anything to Thomas. Peery denied talking to Thomas about Trop's pregnancy or efforts to become pregnant. In a declaration submitted with defendants' motion for summary adjudication, Peery declared that she never discussed Trop's efforts to become pregnant or her pregnancy with Thomas, Topping, or any other Tall Trees employee prior to Trop's termination. Cao likewise declared that she had not discussed Trop's pregnancy with Thomas, Topping, or any other Tall Trees employee.
Trop filed an action alleging seven causes of action. Trop dismissed the first five causes of action. Defendants brought a motion for summary adjudication as to the sixth cause of action for sexual discrimination based on pregnancy and seventh cause of action for wrongful termination in violation of public policy based on pregnancy. The trial court granted defendants' motion, finding that Thomas fired Trop because she was dissatisfied with Trop's work performance and Thomas did not know that Trop was pregnant at the time she decided to fire Trop.
DISCUSSION
Standard of Review
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) On appeal from a summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]" (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223, 38 Cal. Rptr.2d 35.)
Although "[t]he purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493), our Supreme Court has *152 warned that the summary judgment "procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact" (Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 556, 122 P.2d 264). Accordingly, declarations of the moving party are strictly construed, those of the opposing party are liberally construe, and all doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on finding issues of fact; it does not resolve them. The court seeks to find contradictions in the evidence or inferences reasonably deducible from the evidence that raise a triable issue of material fact. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865-866, 247 Cal.Rptr. 504.)
A. General Principles of Law
California's Fair Employment and Housing Act (FEHA) prohibits an employer from terminating an employee because of her sex. (Gov.Code, § 12940, subd. (a).) "Sex" within the meaning of the FEHA includes "pregnancy, childbirth, or medical conditions related to pregnancy or childbirth." (Id., § 12926, subd. (p).) FEHA provisions may provide the policy basis for a claim for wrongful termination in violation of public policy. (Phillips v. St. Mary Regional Medical Center (2002) 96 Cal. App.4th 218, 227, 116 Cal.Rptr.2d 770.)
Because state and federal employment discrimination laws are similar, California courts look to pertinent federal precedent in applying California statutes. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (Guz).) California has adopted a three-stage burden-shifting test established by the United States Supreme Court for trying employment discrimination claims that are based on the disparate treatment theory. (Guz, supra, 24 Cal.4th at p. 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089, citing, inter alia, McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (McDonnell Douglas).) Under this "McDonnell Douglas test," (1) the plaintiff must establish a prima facie case of discrimination; (2) if the plaintiff is successful, the employer must offer a legitimate nondiscriminatory reason for its actions; and (3) if the employer produces evidence on that point, the plaintiff must show that employer's reason was a pretext for discrimination. (Guz, supra, 24 Cal.4th at pp. 354-356, 100 Cal.Rptr.2d 352, 8 P.3d 1089; Morgan v. Regents of University of California (2000) 88 Cal. App.4th 52, 67-68, 105 Cal.Rptr.2d 652 (Morgan).)
The McDonnell Douglas test "reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." (Guz, supra, 24 Cal.4th at p. 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089, italics added.)
The United States Supreme Court has held, however, that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523); see also Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151, 65 Cal.Rptr.2d 112, fn. 7 ["The McDonnell Douglas test is typically used in cases where the plaintiff lacks `direct' evidence of the employer's *153 discriminatory intent"].) Direct evidence is evidence which proves a fact without inference or presumption. (Morgan, supra, 88 Cal.App.4th at p. 67, 105 Cal. Rptr.2d 652.) "Where a plaintiff offers direct evidence of discrimination that is believed by the trier of fact, the defendant can avoid liability only by proving the plaintiff would have been subjected to the same employment decision without reference to the unlawful factor." (Morgan, supra, 88 Cal.App.4th at pp. 67-68, 105 Cal.Rptr.2d 652.)
B. Plaintiff Failed to Establish a Prima Facie Case of Discrimination
We conclude that Trop has failed to satisfy the first prong of the McDonnell Douglas test because Trop failed to raise a triable issue of fact that Thomas knew Trop was pregnant before Trop was fired. An employee cannot make out a prima facie case of discrimination based on pregnancy under FEHA in the absence of evidence the employer knew the employee was pregnant. (Geraci v. Moody-Tottrup Intern., Inc. (3d Cir. 1996) 82 F.3d 578, 581 (Geraci).) "When the pregnancy is apparent, or where plaintiff alleges that she has disclosed it to the employer, then a question of the employer's knowledge would likely preclude summary judgment. If the pregnancy is not apparent and the employee has not disclosed it to her employer, she must allege knowledge and present, as part of her prima facie case, evidence from which a rational jury could infer that the employer knew that she was pregnant." (Ibid.)
After establishing the employee's burden of demonstrating that the employer was aware of the pregnancy in order to establish a prima facie case, the court in Geraci applied the law to the facts as follows: "The application of this legal framework to the facts of Geraci's case need not detain us long. Geraci was not visibly pregnant; indeed, even Geraci herself did not know until shortly before she told her co-workers. She did not tell Moody management, and she requested that the six friends and co-workers to whom she disclosed her pregnancy not tell management. [¶] Geraci argues that, because she told six out of twenty co-workers that she was pregnant and that her pregnancy became a `common topic of discussion in the office,' management must have known it before it terminated her. Her managers, however, filed declarations disclaiming knowledge, and Geraci presented no evidence to the contrary. Geraci deposed only one of the co-workers whom she told of her pregnancy, and he testified that he did not tell management that she was pregnant. Thus, Geraci would have us remand this case for trial on the sheer speculation that one or more of the people she entrusted with highly personal information violated her confidence and that members of Moody management lied about their lack of knowledge. This is simply insufficient to create a genuine issue of material fact." (Geraci, supra, 82 F.3d at pp. 581-582.)
The facts in Geraci are remarkably similar to the instant case. Trop presented no evidence that she was visibly pregnant. She did not tell Thomas she was pregnant. While Trop did tell others at Tall Trees of her pregnancy, she either asked them to maintain her confidence, or they assumed Trop wanted the information kept confidential, and none of the employees told Thomas of the pregnancy. Trop's comments about having a fibroid removed and hoping to become pregnant fall far short of establishing that Thomas was aware of Trop's pregnancy. Trop's statement to Thomas at the December 2002 Christmas party ("It looks like I get to have one of these," referring to a baby) is so ambiguous as to be insufficient, as a *154 matter of law, to establish that Thomas knew Trop was pregnant. Trop only told Thomas she was pregnant after Thomas told Trop she was being terminated from employment. In the absence of credible evidence that Thomas knew Trop was pregnant, she failed to establish a prima facie case of discrimination and summary judgment was properly granted to the defendant.
C. The McDonnell Douglas Test
Assuming Trop's evidence can be construed as supporting a finding that Thomas was aware of Trop's pregnancy, we further hold that Thomas presented a nondiscriminatory basis for firing Trop based upon poor job performance, and that Trop did not present credible evidence to overcome the nondiscriminatory reason for the firing. In so ruling, we reject Trop's argument that she presented direct evidence of discrimination which would have rendered the McDonnell Douglas test inapplicable.
1. Lack of Direct Evidence of Discrimination
Trop argues she presented direct evidence of discrimination, taking the case outside of the McDonnell Douglas analysis. In her opening brief, Trop identifies the following as direct evidence of discrimination: (1) After Trop was fired, Thomas said, "I need somebody here who wants to be here and doesn't have a life"; (2) When Trop told Thomas she was pregnant after being fired, Thomas said: "What were you thinking? How could you possibly be my assistant and be pregnant? How did you think that ever was going to work?" "Do you want to be pregnant? I had thought maybe [Trop] hadn't considered all her options, that she had made a mistake somehow.... You know, there are things you can do. You could.... How was she going to take care of him?" "I couldn't understand how she was going to live her life"; (3) When Trop told Thomas, "Women get pregnant every day," Thomas allegedly replied, "Well, that was never going to happen here. It would never happen here"; and (4) At the December 2002 Christmas party Trop said, "It looks like I get to have one of my own," to which Thomas replied, "Not while you are working for me."
The statements relied upon by Trop do not constitute direct evidence. In Kennedy v. Schoenberg, Fisher & Newman, Ltd. (7th Cir.1998)140 F.3d 716 (Kennedy), the court held the following evidence did not constitute direct evidence of discrimination sufficient to take the court out of the McDonnell Douglas framework:
"Plaintiff argues that certain comments and conduct by Goldberg qualify as evidence of intentional discrimination. Specifically, plaintiff points to the following alleged remarks and conduct by Goldberg: (1) soon after Goldberg became aware that plaintiff was pregnant, he `repeatedly told [plaintiff] that "if you were my wife, I would not want you working after having children"' and told other SF & N employees that plaintiff `should be home with her kids now, with her child now, that she shouldn't be working'; (2) less than four weeks after plaintiff announced her pregnancy, Goldberg wrote a memorandum dated November 26, 1991, criticizing plaintiff's work performance; (3) Goldberg responded `Yes' to plaintiff's inquiry as to whether he was building a `case' against plaintiff; and (4) while Goldberg and plaintiff were friendly before plaintiff announced her pregnancy, plaintiff claims that `[s]hortly after Goldberg learned of Ms. Kennedy's pregnancy, [Goldberg] became distant, cold, and acrimonious toward Ms. Kennedy.' We agree with the district court's conclusion that none of the above comments and conduct by Goldberg constituted enough evidence to avoid summary *155 judgment on plaintiff's claim that her discharge was a result of intentional discrimination. [¶] Direct evidence is that which, `if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.' [Citations.] Direct evidence of discriminatory intent in pregnancy discrimination cases generally is in the form of an admission by a supervisor or decision maker that the employee was suspended because she was pregnant. [Citation.] To rise to the level of direct evidence of discrimination, this Court has stated that `isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process.' [Citation.]" (Kennedy, supra, 140 F.3d at pp. 723-724.)
"Here none of the comments and conduct by Goldberg indicate that at the time defendant SF & N made its decision to terminate plaintiff, it was motivated by plaintiff's pregnancy in deciding to discharge her. Specifically, the comment attributed to Goldberg, `if you were my wife, I would not want you working after having children,' does not demonstrate an acknowledgment of discriminatory intent in connection with defendant SF & N's decision to discharge plaintiff. The comment was made at least five months before plaintiff's termination and thus was not temporally related to her discharge. In addition, there was no causal nexus between the comment and plaintiff's discharge. The alleged remark, made while Goldberg and plaintiff were discussing the `joys of children,' occurred in a casual setting unrelated to discussions regarding the issues which led to plaintiff's dismissal." (Kennedy, supra, 140 F.3d at p. 724.)
The court in Kennedy cited with approval from its earlier holding in Geier v. Medtronic, Inc. (7th Cir.1996) 99 F.3d 238 (Geier), a case in which a supervisor said to an employee: "`Have all the kids you would like between spring, summer, and fall. I will not work your territory during the winter months.'" (Id. at p. 242.) Geier rejected the argument that the supervisor's statement constituted direct evidence of discrimination. "The comment, while awkward, insensitive and ungenerous, does not rise to the level of direct evidence of discrimination. To be probative of discrimination, isolated comments must be contemporaneous with the discharge or causally related to the discharge decision making process. [Citations.] [The supervisor's] comment was made a full year prior to Geier's discharge and thus not temporally related to Geier's dismissal. While the remark was made by Geier's supervisor, there is no causal nexus between the remark and decision to discharge. The comment was made in a casual conversation during a long car trip, a setting unrelated to discussions of Geier's repeated work deficiencies, which eventually led to her dismissal. Further, the comment indicated an unwillingness to accept absences due to child birth in the winter. Geier's second pregnancy would have come to term in August or September. If we accept [the supervisor's] remark as a serious threat or instruction, it would not apply to Geier's pregnancy. The comment, construed in the light most favorable to Geier, cannot meet the requisite temporal or causal criteria." (Ibid.)
As in Kennedy and Geier, the remarks by Thomas in the instant case do not rise to the level of direct evidence of discrimination based on pregnancy. Trop relies heavily on her statement at the Christmas party in December 2002 ("It looks like I get to have one of these") and Thomas's response ("Not while you are working for me") as direct evidence that she was fired due to discrimination based on her pregnancy. We disagree. Trop's ambiguous statement was made in a casual conversation at a Christmas party more than one *156 month before Trop was fired. This conversation was unrelated to Trop's work performance and there was no evidence of a causal relationship between Thomas's statement and the decision to terminate Trop's employment. As noted above, Trop presented no direct evidence that Thomas knew Trop was pregnant until after Thomas fired Trop. The comments Thomas made after firing Trop do not show that Thomas knew Trop was pregnant until after Trop was terminated from her job. Trop admitted in her deposition that Thomas gave her three reasons for the firing lost messages, lack of interest in work, and a phone call put through at an inopportune time none of which pertain to Trop's pregnancy. Consistent with Kennedy and Geier, we reject Trop's argument that the record contains direct evidence of discrimination based on pregnancy.
2. Application of the McDonnell Douglas Test to Trop's Termination
Having determined that the record lacks direct evidence of discrimination based on pregnancy, we now analyze the summary judgment motion under the McDonnell Douglas test, drawing largely on the application of that test as set forth in Guz. We begin by noting that Trop was an at-will employee, who could be terminated from employment at any time without case, for any or no reason, and subject to no procedure except the statutory requirement of notice. (Lab.Code, § 2292; Guz, supra, 24 Cal.4th at p. 335, 100 Cal. Rptr.2d 352, 8 P.3d 1089; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680, 254 Cal.Rptr. 211, 765 P.2d 373.) In order for Trop to defeat defendants' summary judgment motion, "there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's action." (Guz, supra, 24 Cal.4th at p. 361, 100 Cal.Rptr.2d 352, 8 P.3d 1089, citing St. Mary's Honor Center v. Hicks (1993) 509 U.S. 502, 510-520, 113 S.Ct. 2742, 125 L.Ed.2d 407.)
Defendants satisfied the second step of the McDonnell Douglas formula by presenting competent, credible, and admissible evidence of nondiscriminatory reasons for terminating Trop's employment. "If the employer produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination created by the prima facie case `"simply drops out of the picture."' [Citations.]" (Morgan, supra, 88 Cal.App.4th at p. 68, 105 Cal. Rptr.2d 652.) Defendant's reasons for terminating Trop's employment were creditable on their face her job performance did not meet Thomas's demanding standards. Indeed, Trop did not dispute that she mishandled telephone messages, took an extended vacation during a busy period of work, and returned to work late from the vacation. Defendants presented evidence that Thomas decided in November 2002 to replace Trop and solicited resumes before Trop knew she was pregnant. Thomas also expressed her dissatisfaction with Trop without knowing that Trop was pregnant. These nondiscriminatory factors constituted legitimate reasons for Thomas's decision to terminate Trop from her at-will position.
Trop could have defeated summary judgment under the third step of the McDonnell Douglas test by presenting evidence that decisions leading to Trop's firing were actually made on the prohibited basis of her pregnancy. (See Guz, supra, 24 Cal.4th at p. 360, 100 Cal.Rptr.2d 352, 8 P.3d 1089 [once employer showed nondiscriminatory basis for firing, burden shifted back to the plaintiff to show termination *157 was "actually made on the prohibited basis of his age"].) Trop failed to raise a triable issue that her termination was based on pregnancy. Plaintiff produced no evidence to rebut defendants' showing that: (1) Thomas made the decision to fire Trop before Trop learned she was pregnant; (2) Trop's job performance was unsatisfactory for Thomas's needs; and (3) Thomas did not know of Trop's pregnancy until after the firing. As a matter of law, defendants were entitled to summary judgment on Trop's claim.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
I concur: TURNER, P.J.
MOSK, J., Dissenting.
Because plaintiff Anne Trop presented direct evidence of discrimination (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523), the "McDonnell Douglas" test (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, 100 Cal. Rptr.2d 352, 8 P.3d 1089; see Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67-68, 105 Cal.Rptr.2d 652 [direct evidence is evidence which proves a fact without inference or presumption] (Morgan)) is not applicable. Evidence of the statements of Betty Thomas (Trop's supervisor at Tall Trees Productions) at Trop's termination, satisfied the direct evidence standard for statements disclosing a discriminatory bias against pregnant employees (Kennedy v. Schoenberg, Fisher & Newman, Ltd. (7th Cir.1998) 140 F.3d 716, 724 (Kennedy); Geier v. Medtronic, Inc. (7th Cir.1996) 99 F.3d 238, 242 (Geier)).
According to Trop, after Thomas fired her, Thomas asked, "How could you possibly be my assistant and be pregnant? How did you think that ever was going to work?" When Trop said, "Women get pregnant every day," Thomas replied, "Well, that was never going to happen here. It would never happen here." For purposes of summary judgment consideration, the evidence of these statements discloses a discriminatory bias against pregnant employees that was "contemporaneous" with Trop's termination within the meaning of Kennedy, supra, 140 F.3d 716 and Geier, supra, 99 F.3d 238.
Trop also submitted sufficient evidence to raise a triable issue of fact as to whether Thomas, at the time she decided to terminate Trop, knew Trop was pregnant. Thomas claims she decided to fire Trop at the beginning of November 2002. Her claim is supported by her own deposition testimony and declaration, and the declarations of Tony Peyrot (Tall Trees Productions's business manager) and Jenno Topping (a producer for Tall Trees Productions). Yet, despite this purported decision to fire Trop, Thomas allowed Trop to take a vacation that Thomas viewed as unusually long, at a time the end of December 2002 and beginning of January 2003 when Thomas claims she was particularly busy. Moreover, Thomas did not fire Trop in November. She fired her at the end of January 2003, nearly three months later. According to Thomas and Topping, Thomas's reasons for firing Trop included Trop's late return from her vacation, something that took place after Thomas claims she had already decided to fire Trop in November. Thus, the evidence of when Thomas decided to fire Trop is equivocal.
According to Trop, she told Thomas in October 2002 that she was trying to get pregnant. She also said that in December *158 2002, she suggested to Thomas that she was pregnant. Such evidence reasonably supports the conclusion that Thomas knew in October that Trop was trying to become pregnant and that she knew in December that Trop was pregnant, or at least that Trop believed she was pregnant. The suggestion may be subject to dispute, but at the summary judgment stage, all inferences should be viewed in favor of the party against whom the summary judgment motion is made. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520, 80 Cal.Rptr.2d 94.)
Defendants did not conclusively establish that Thomas decided to fire Trop in November 2002 and that she did not learn of Trop's pregnancy until after Trop's termination. Accordingly, the resolution of these facts is a matter for the finder of fact at trial. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223, 38 Cal.Rptr.2d 35.)
Trop also raised a triable issue of fact as to whether the alleged reasons for her termination were pretexts for the termination. As noted above, defendants claim that Thomas decided to fire Trop at the beginning of November 2002. Yet according to Thomas and Topping, one of Thomas's reasons for firing Trop Trop's late return from her vacation occurred in January 2003. Also, even if Thomas's statements at Trop's termination are not direct evidence of discrimination, they constitute evidence of a "discriminatory animus" against pregnant employees and establish pretext. (Morgan, supra, 88 Cal. App.4th at p. 75, 105 Cal.Rptr.2d 652.)
Trop's case may not appear strong. Nevertheless, I believe she has submitted enough evidence to have her case tried by a finder of fact judge or jury.
NOTES
[1] Trop did not allege in the sixth or seventh causes of action that she was fired because she was attempting to become pregnant. A cause of action may be based upon an adverse employment action directed at a woman who is trying to become pregnant (Kocak v. Community Health Partners of Ohio, Inc. (6th Cir. 2005) 400 F.3d 466, 470), but no such allegation is contained in Trop's complaint. Because the pleadings define the issues to be addressed at the summary judgment stage (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98, fn. 4, 93 Cal.Rptr.2d 820) and Trop pleaded she "was a pregnant woman terminated from her employment because of her pregnancy," the issue of discrimination on the basis of potential pregnancy is not before this court. To the extent Trop argues this theory on appeal, we reject it for the foregoing reasons.
[2] We deny Trop's motion to augment the record. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2250033/ | 907 F.Supp. 864 (1995)
Francis J. KELLY, Plaintiff,
v.
DREXEL UNIVERSITY, Defendant.
Civ. A. No. 94-5336.
United States District Court, E.D. Pennsylvania.
November 7, 1995.
Order Denying Reconsideration December 6, 1995.
*865 *866 *867 *868 *869 Mary Ann Hagan, Philadelphia, PA, for plaintiff.
Kathryn H. Levering, Maureen L. Hogel, Drinker, Biddle and Reath, Philadelphia, PA, for defendant.
MEMORANDUM
LOWELL A. REED, Jr., District Judge.
Plaintiff Francis J. Kelly ("Kelly" or "Plaintiff") brought this action against his former employer Drexel University ("Drexel"), alleging that Drexel terminated his employment and subsequently failed to rehire him on the basis of age and disability in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.Cons.Stat.Ann. §§ 951-963. In addition, plaintiff alleges that Drexel discriminated against him with respect to his compensation, terms, conditions, and privileges of employment because of his age. See plaintiff's complaint ¶ 26.
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") and a complaint with the Pennsylvania Human Relations Commission on July 1, 1993. On May 31, 1994 the EEOC issued a no-cause determination. Plaintiff filed this action on August 29, 1994.
Pending before this Court is the motion of Drexel for summary judgment pursuant to Fed.R.Civ.P. 56(c) (Document No. 6). This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1367. Upon consideration of the motion of defendant and the response of plaintiff thereto, and for the following reasons, the motion of defendant will be granted.
I. FACTUAL BACKGROUND[1]
In April, 1981 Drexel hired plaintiff, a 56-year-old college graduate, as a buyer in the purchasing department. Approximately twelve years later, when plaintiff was 68 years old, Drexel terminated plaintiff's employment as part of its university-wide reduction in force ("RIF"). At the time of plaintiff's termination, plaintiff was one of three buyers in the purchasing department. Each buyer had a specific area of responsibility: plaintiff supervised general purchases and held the title Senior Buyer; Thomas Tucker ("Tucker"), the Scientific Buyer (age 54), *870 handled the science departments; and 46-year-old John Dick ("Dick") dealt with the university's physical plant department and held the title Physical Plant Buyer. James Graham, age 50, acted as the director of the department, overseeing the three buyers and the Buyer Assistant, whose job involved administrative and clerical tasks.
In September, 1987 plaintiff suffered an injury to his hip, which causes him to limp. Plaintiff's orthopaedic specialist diagnosed plaintiff's condition as severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint (Plaintiff's Exhibit No. 37).
Because of financial difficulties in 1993, Freddie Gallot ("Gallot") instructed Graham to reduce the purchasing department's budget in the amount of $30,000. In order to comply, Graham eliminated plaintiff's position, which paid an annual salary of $32,340. Plaintiff received notice on January 26, 1993 that effective January 31, 1993 he no longer had a position in the department.
II. LEGAL STANDARD
The standard for a summary judgment motion in federal court is set forth in Fed.R.Civ.P. 56. Rule 56(c) states that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). In addition, a dispute over a material fact must be "genuine," i.e., the evidence must be such "that a reasonable jury could return a verdict in favor of the non-moving party." Id.
The moving party has the initial burden to identify evidence that it believes shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by `showing' that is, pointing out to the District Courtthat there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. at 2553. If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982). The court must consider the evidence of the non-moving party as true, drawing all justifiable inferences arising from the evidence in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. To defeat the motion for summary judgment, the non-moving party must offer specific facts contradicting those set forth by the movant, thereby showing that there is a genuine issue for trial. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990).
III. DISCUSSION
A plaintiff alleging discrimination in employment may present either direct or circumstantial evidence that would allow a reasonable factfinder to infer discrimination. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n. 4 (3d Cir.1995); see Price Waterhouse v. Hopkins, 490 U.S. 228, 244-46, 109 S.Ct. 1775, 1786-88, 104 L.Ed.2d 268 (1989) (establishing the framework for mixed-motives cases that involve direct evidence); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973) (establishing the framework for pretext cases that involve circumstantial evidence); Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1225-26 & n. 6 (3d Cir.1994). Although the two frameworks for analyzing direct and circumstantial evidence developed originally in the context of Title VII cases, courts utilize them in the *871 context of ADEA and ADA claims as well. See Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994) (using the mixed-motives framework to examine employer liability under the ADEA); Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir.1990) (noting that the Court of Appeals for the Third Circuit has adopted the pretext framework for ADEA cases); Zambelli v. Historic Landmarks, Inc., No. CIV.A.94-3691, 1995 WL 116669, at *8 (E.D.Pa. March 20, 1995) (employing the same burden shifting standards for an ADA case as used with other employment discrimination statutes).[2] Because plaintiff asserts in various portions of his memorandum that he has direct as well as circumstantial evidence, I will examine plaintiff's claims under both the mixed-motives framework and the pretext framework. The federal and state claims will be discussed together because the PHRA utilizes the same analytical framework as that established in the Title VII cases and, hence, the cases brought under the ADA and the ADEA. See Doe v. Kohn Nast & Graf, 862 F.Supp. 1310, 1323 (E.D.Pa.1994) (PHRA "was modelled after Title VII [and] is analyzed the same as Title VII cases. That analysis achieves the same result as the ADA claim."); see also Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860, 871 (1980) (PHRA, although an independent state statute, should be construed in light of principles of fair employment law which have emerged from federal anti-discrimination statutes).
A. Plaintiff's Termination
1. Mixed-Motives Framework
A mixed-motives case arises when the plaintiff alleges that the employer based the employment decision upon both legitimate and illegitimate factors. Miller v. Cigna Corp., 47 F.3d 586, 594 (3d Cir.1995). To proceed under the mixed-motives framework, the plaintiff initially must produce evidence "so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production." Armbruster, 32 F.3d at 778. In order to shift the burden to the employer, the plaintiff must present direct evidence that is more persuasive than that sufficient to satisfy the prima facie case in a pretext framework. Mardell, 31 F.3d at 1225 n. 6. To rebut a plaintiff's case-in-chief the defendant must prove that it would have made the same decision even if it had not allowed the illegitimate factor to play such a role. In essence, the employer must put forth an affirmative defense. Id.
Plaintiff contends that the record "contains abundant direct evidence of bias." Plaintiff's memorandum at 18. The Court of Appeals for the Third Circuit recognizes as direct evidence "policy documents or statements of a person involved in the decision-making process that reflect a discriminatory or retaliatory animus." Hook v. Ernst & Young, 28 F.3d 366, 374 (3d Cir.1994). The plaintiff's evidence must directly link the decisionmaker's discriminatory animus to the adverse employment decision. Most often, such evidence involves the decisionmaker's conduct or statements; however, stray remarks and isolated comments are not enough. Id. at 374-75.
Plaintiff's review of the evidence set forth in his memorandum of law in response to Drexel's motion for summary judgment does not reveal any instance where Graham, or any other Drexel employee, made statements or engaged in conduct that manifested a bias regarding plaintiff's hip injury or limp. Having a noticeable and apparent limp, plaintiff implies that Graham's mere awareness of the limp constitutes direct evidence of discriminatory animus. Plaintiff, however, does not set forth any evidence that Graham considered plaintiff's limp as a reason to eliminate plaintiff's position. See id.
Plaintiff also relies on the report of Dr. Richard S. Andrulis, Ph.D., who examined plaintiff's case file in the light of the principles of industrial and organizational psychology. Dr. Andrulis observed that the department in which plaintiff was employed *872 did not delineate job descriptions and did not have an objective methodology to determine the tasks associated with plaintiff's position. In addition, Dr. Andrulis noted that there was no structured system for performance evaluations, giving rise to the development of stereotypes in the workplace and the possibility that such stereotypes may play a role in employment decisions. Even assuming that Dr. Andrulis is a competent expert witness permitted to testify under Fed.R.Evid. 702,[3] I find that the substance of the doctor's report, in and of itself, does not constitute direct evidence. See Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1804 (O'Connor, J., concurring) (expert testimony about stereotyping in the workplace, standing alone, does not shift the burden to the employer in a mixed-motives case). Lacking sufficient direct evidence, plaintiff cannot proceed with a mixed-motives framework for his claims of discrimination based on disability.
In support of his age discrimination claim, plaintiff offers as direct evidence Graham's comment referring to plaintiff's retirement and a letter from Drexel's personnel department. In 1992, when plaintiff's son graduated from college, Graham asked plaintiff when he planned to retire. Plaintiff's memorandum at 13. Although Graham made the decision to eliminate plaintiff's position in early 1993, there is no evidence to link Graham's question to Graham's decisionmaking process, which resulted in the elimination of plaintiff's position. Comments regarding retirement often arise contemporaneously with a child's graduation from college, considering that most parents rejoice when tuition bills cease to arrive each semester. I find that Graham's inquiry about plaintiff's expected retirement was a stray remark that reflected a common and casual reference to the often-anticipated completion of a parent's financial obligations to his children and not age bias. See Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1804 (O'Connor, J., concurring) (statements by decisionmakers unrelated to the decisional process do not constitute direct evidence sufficient to shift the burden to the employer).
The letter plaintiff received from Drexel after his employment terminated, which referred to plaintiff as a retiree because he had worked more than 10 years and was presently over age 55, does not and cannot reflect age bias. This letter merely defines plaintiff's status as a retiree and explains the benefits to which he is entitled. Given that plaintiff's employment with Drexel began at age 56, there is no rational basis to interpret this corporate policy, which classified individuals over age 55 as retirees, as evidence of discriminatory animus. Therefore, neither Graham's casual comment nor the corporate letter constitute direct evidence sufficient to shift the burden to Drexel under a mixed-motives framework.
2. Pretext Framework
Pursuant to the Supreme Court's three step, burden-shifting analysis established in McDonnell Douglas Corp. v. Green, plaintiff must first set forth a prima facie case of discrimination by showing (1) plaintiff belongs to a protected class, (2) plaintiff performed his job satisfactorily, (3) plaintiff suffered an adverse employment action, and (4) defendant employer has treated similarly-situated employees more favorably.[4]See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.
Once plaintiff establishes a prima facie case, the defendant must articulate a legitimate nondiscriminatory reason for its action. This burden is minimal. See Mardell, 31 F.3d at 1225 n. 6. After defendant's showing, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons produced by the defendant are a pretext for discrimination. Id. The ultimate burden of proving intentional discrimination remains with the plaintiff, i.e., the plaintiff bears responsibility *873 to persuade the factfinder that the employer's proffered reason was not the true reason for the employment decision and that the plaintiff has been the victim of intentional discrimination. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).
a. Prima Facie Case. A prima facie case of disability discrimination[5] requires plaintiff to prove that (1) he is a member of a protected class, i.e., has a disability as defined by the statute; (2) his work performance met the employer's legitimate job expectations; (3) he was terminated; and (4) employees not in the protected class were treated more favorably. See Zambelli, 1995 WL 116669, at *7.
Plaintiff claims that he is disabled due to his hip injury and limp. The ADA defines disability as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2); see Fehr v. McLean Packaging Corp., 860 F.Supp. 198, 200 (E.D.Pa.1994) (stating that the definition of disability in the PHRA is coextensive with the ADA definition). Accordingly, plaintiff must prove that he cannot walk or that his limp substantially limits his ability to walk; there is a record that his condition substantially limits his ability to walk; or that defendant regards plaintiff's injury and limp as substantially limiting his ability to walk. Drexel argues that plaintiff is not disabled, and not a member of the protected class, because his hip injury does not "substantially limit" his ability to walk.[6]
The term "substantially limits" is defined as
(i) unable to perform a major life activity that the average person in the general population can perform; or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
29 C.F.R. § 1630.2(j)(1). The factors considered to determine whether an impairment is "substantially limiting" include:
(i) the nature and severity of the impairment;
(ii) the duration or expected duration of the impairment; and
(iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
29 C.F.R. § 1630.2(j)(2).
The Court of Appeals for the Seventh Circuit has recognized the dearth of cases addressing the application of the term "substantially limits" to the major life activity of walking. See Hamm v. Runyon, 51 F.3d 721, 724 n. 3 (7th Cir.1995). Perhaps this is why plaintiff fails to address Drexel's contention that plaintiff's limp does not "substantially limit" his ability to walk. During a deposition plaintiff stated that he cannot *874 walk "more than a mile or so" and must climb stairs at a slower pace while holding the rail. Defendant's memorandum at 14. The guidelines interpreting the ADA require a comparison of the plaintiff's ability to walk as compared to the ability of the average person in the general population. See 29 C.F.R. § 1630.2(j). Accordingly,
an individual who had once been able to walk at an extraordinary speed would not be substantially limited in the major life activity of walking if, as a result of a physical impairment, he or she were only able to walk at an average speed, or even at moderately below average speed.
29 C.F.R. Pt. 1630, App. § 1630.2(j). I find as a matter of law that plaintiff's trouble climbing stairs, which requires him to move slowly and hold the handrail, does not substantially limit his ability to walk. See Stone v. Entergy Servs., Inc., No. CIV.A.94-2669, 1995 WL 368473, at *4 (E.D.La. June 20, 1995) (finding that plaintiff's difficulty climbing stairs and inability to walk briskly did not substantially limit his ability to walk). The guidelines also state that "an individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking." 29 C.F.R. Pt. 1630, App. § 1630.2(j). Plaintiff has testified that he must limit his walking to approximately one mile. Although I recognize the likelihood that the average person in the general population is able to walk one mile without pain, one mile is not a "very brief period of time."
Plaintiff provides the Court with a letter from his treating physician, who diagnosed plaintiff with severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint, which causes "great difficulty in walking" (Plaintiff's Exhibit No. 37). At his deposition, however, plaintiff admitted that his physician had not specifically restricted his activities. See 29 C.F.R. Pt. 1630, App. § 1630.2(j); 2 EEOC Compl.Man. (BNA) § 902:0019, at 902-19 (recognizing that the effect of the impairment on the life of the individual, as opposed to the name or diagnosis of the impairment, is the key to determine whether the individual has a disability). Upon examination of the plaintiff's deposition, the physician's letter, and the relevant EEOC regulations, I find that plaintiff has not and cannot meet his burden of proving that he has a physical impairment that substantially limits a major life activity.[7]
The ADA and PHRA also provide that plaintiff may maintain an action if he is "regarded as having such an impairment." The EEOC regulations describe three instances in which an employee is regarded as having a disability:
1. [The individual] has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
2. [The individual] has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
3. [The individual] has none of the impairments defined [by the definition of impairment contained in the regulations] but is treated by the covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(l). Plaintiff must show that his supervisors knew of the hip injury and limp and perceived the impairment as disabling. See Hamm, 51 F.3d at 725. The record indicates that plaintiff's limp is noticeable and apparent. Thus, I find that Graham knew of plaintiff's impairment. However, mere awareness does not prove that Graham perceived plaintiff's impairment as disabling. Plaintiff has not produced any evidence to show that any Drexel employee treated him *875 as disabled. In fact, Graham stated in his deposition that he did not consider plaintiff to be disabled. Moreover, plaintiff concedes that he never asked for any kind of accommodation to his physical impairment at work. Plaintiff's memorandum at 15. I find that plaintiff has failed to set forth evidence that anyone at Drexel perceived him to be disabled. Therefore, plaintiff has not presented evidence from which a jury could reasonably conclude that plaintiff is disabled as defined by the ADA and the PHRA.[8]
b. Legitimate Nondiscriminatory Reason. By establishing a prima facie case, a plaintiff eliminates the most common nondiscriminatory reasons for the adverse employment action and creates a presumption of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). Once a prima facie case has been established, the defendant must produce some evidence that supports a legitimate, nondiscriminatory reason for the employer's action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994); accord Turner, 901 F.2d at 342. Assuming that plaintiff is a member of the protected class for both disability and age discrimination claims,[9] and that he has established a prima facie case for both claims, Drexel must proffer a legitimate nondiscriminatory reason for its decision to terminate plaintiff.
Drexel asserts that an RIF necessitated the elimination of plaintiff's position in the purchasing department. Economic necessity is a legitimate, nondiscriminatory reason for employment decisions. See Naas v. Westinghouse Elec. Corp., 818 F.Supp. 874, 879-80 (W.D.Pa.1993) (evidence that business dropped 30-40% during a 6-8 month period); Dolence v. United States Nat'l Bank, 797 F.Supp. 423, 425 (W.D.Pa.) (evidence of financial losses during one year and greater projected losses for the coming year), aff'd mem., 975 F.2d 1549 (3d Cir. 1992). During his deposition and in the letter to Gallot, Graham explained that he could reduce his budget by $30,000 only by eliminating one position in the department. Graham decided to eliminate plaintiff's position, rather than that of Tucker or Dick, based on the needs of the department after the reduction in staff and the relative computer skills of the employees. This, also, constitutes a legitimate business reason. See Healy v. New York Life Ins. Co., 860 F.2d 1209, 1213-14 (3d Cir.1988) (finding as a legitimate business reason an employer's selection for layoff based on determination that another employee was more qualified to handle the post-RIF responsibilities), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). Thus, Drexel has articulated a legitimate business reason for its employment determination.
c. Burden of Persuasion. After finding that Drexel has articulated a legitimate nondiscriminatory reason for its employment decision, the burden shifts back to the plaintiff to show that Drexel's proffered reasons are pretext for discriminatory animus and that Drexel terminated plaintiff *876 based on his age and/or disability. See Fuentes, 32 F.3d at 763. The plaintiff may survive a motion for summary judgment only by pointing to "some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Id. at 764. Plaintiff does not dispute Drexel's economic hardship. Instead, plaintiff contends that the evidence of record, viewed in the light most favorable to plaintiff, would allow a reasonable jury to infer that Drexel's proffered reason of computer deficiency is pretextual.
The evidence of record includes plaintiff's educational background, experience, and exemplary record of performance in the purchasing department. Plaintiff compares himself to Tucker, intimating that Tucker should have been discharged instead of plaintiff. For example, plaintiff highlights that he has a college degree and more experience than Tucker as a buyer, both in the Drexel purchasing department and from previous employment. Plaintiff recalls that he frequently advised Tucker when Tucker made purchase orders while working in the department. Plaintiff has provided affidavits from members of the Drexel faculty who compliment plaintiff's effective and efficient job performance (Plaintiff's Exhibit No. 26). Finally, plaintiff notes that during Graham's absence, he took command of the department's operations. Unfortunately, plaintiff fails to understand that his commendable record of service for Drexel is not in dispute. Drexel does not put forth as its legitimate nondiscriminatory reason plaintiff's job performance. In fact, Drexel specifically informed plaintiff that job performance was not a consideration when his position was eliminated.
Plaintiff asserts that it was improper for Graham to base the employment decision on the ability to adapt to the computerized purchasing system; that he possessed adequate computer skills to perform his job; that the bulk of computer work was handled by the Buyer Assistant; that he had computer training unbeknownst to Graham; and that he owned a home computer. With regard to discrediting an employer's proffered reason, the Court of Appeals for the Third Circuit has said the following:
To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons.
Fuentes, 32 F.3d at 765 (citations and internal quotation marks omitted) (emphasis in original). An employer is free to discharge an employee, as long as the employer's reason is not one precluded by federal or state statute. Drexel was free to choose any non-discriminatory criteria upon which to base its employment decision. Graham's decision to prioritize computer proficiency and the ability to adapt to an increased workload is a business decision not subject to review by this Court. Ramos v. Bethlehem Steel Corp., No. CIV.A.90-2594, 1991 WL 34239, at *5 (E.D.Pa. Mar. 12) ("Court does not sit as a super-personnel department that reexamines an entity's business decisions." (quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986))), aff'd, 945 F.2d 395 (3d Cir.1991).
Plaintiff disagrees with Graham's assessment of his ability to utilize the computerized purchasing system. From plaintiff's assertions that he participated in computer training, owned a home computer, and was never informed by anyone at the university that he lacked the requisite computer skills, it can be inferred that plaintiff utilized the computerized purchasing system in a satisfactory manner to adequately perform his job. But Graham considered computer proficiency in light of an RIF that the retained *877 employee would have to absorb the work of the eliminated employee and continue to perform at an efficient pace. It is permissible for an employer to consider the future adaptability of an employee once two positions are consolidated as the result of an RIF. See Healy, 860 F.2d at 1213-14. Moreover, plaintiff's estimations of his own qualifications and computer literacy do not prove that Graham has used his stated reason as a mask to cover discriminatory animus. In a letter dated January 30, four days after plaintiff was notified of his termination date, Graham explained his decision to eliminate one position within the department; the need to eliminate either the Scientific Buyer position or the Senior Buyer position; and that he made the decision upon consideration of the employees' abilities to absorb the extra work and their knowledge of the computerized purchasing system. The letter provides contemporaneous documentation of Graham's decisionmaking process. The court's task is not to determine whether the decision was prudent or factually correct, but whether a reasonable factfinder could infer that the employer's proffered reason masks a decision based upon an illicit factor.
Plaintiff's further arguments that the department did not systematically evaluate employees' work performance and that Dr. Andrulis observed the absence of methodology to determine job tasks, which creates the possibility that stereotypes are part of the decisionmaking process, do not bolster plaintiff's attempts to discredit Drexel's proffered reason for the termination or to show intentional discrimination. See id. Nor does the assertion that managers at Drexel did not have equal employment opportunity training prove that stereotypes or illicit factors were part of Graham's decision to eliminate plaintiff's position. Such evidence does not point to any inconsistencies, implausibilities, or incoherencies in Drexel's proffered reason for termination and a reasonable jury could not infer that the employer discriminated against plaintiff on the basis of age or disability. See Fuentes, 32 F.3d at 765.
Regarding the age discrimination claim, plaintiff adds to the evidence of record discussed above a letter regarding retirement benefits and the comment about retirement made by a supervisor.[10] As discussed above, the letter merely informed plaintiff of his status as a retiree, according to corporate policy, and the benefits to which plaintiff is entitled. I find that a reasonable jury could not find that the letter supports an inference of age bias.
On its face, the comment by plaintiff's supervisor, referring to plaintiff's retirement, does not suggest age bias. EEOC v. MCI Int'l, Inc., 829 F.Supp. 1438, 1449 (D.N.J.1993) ("[T]here is nothing per se discriminatory about an employer asking an employee about retirement plans."). Other circuits have found that comments less neutral have not showed pretext. For example, in Birkbeck v. Marvel Lighting Corp., the vice-president primarily responsible for the layoff decisions commented that "there comes a time when we have to make way for younger people." Birkbeck, 30 F.3d 507, 511 (4th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994). The Court of Appeals for the Fourth Circuit found that this statement reflects a truism and did not create an inference of age bias. Id. at 512. Similarly, the Court of Appeals for the Fifth Circuit found an employer's comment that "if he [the employer] were in [plaintiff's] position he would be out seeing the world" to constitute a "musing[] about eventual retirement," which "simply [does] not evidence discriminatory intent." Moore v. Eli Lilly & Co., 990 F.2d 812, 818 (5th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993). In Armbruster, the Court of Appeals for the Third Circuit found that several comments by individuals involved in the termination of the plaintiffs, in addition to documents containing age notations of employees, created a genuine issue of pretext. Armbruster, 32 F.3d at 783 (comments that employees to be transferred should be "senior people;" should be moved out of their offices quickly; and "should have seen the writing on the wall"). Unlike the plaintiffs in Armbruster, however, plaintiff in *878 this case has not presented additional competent evidence of pretext. I find that Graham's statement, standing alone, does not create a genuine issue of material fact as to whether age played a role in the employer's decisionmaking process and whether it had a determinative effect on the outcome of that process.[11]
B. Failure to Rehire
Plaintiff has alleged in his complaint that Drexel failed to rehire him on the basis of age and disability in violation of the ADA, the ADEA, and the PHRA. To establish a prima facie case, plaintiff must show (1) that he belongs to the protected class, (2) that he applied for and was qualified for the job; (3) that he was rejected despite his qualifications; and (4) that the employer either ultimately filled the position with someone sufficiently younger or someone who is not disabled, which permits an inference of age and/or disability discrimination, or continued to seek applicants from those having the claimant's qualifications. See Fowle v. C & C Cola, 868 F.2d 59, 61 (3d Cir.1989); MCI Int'l, 829 F.Supp. at 1482.
Even assuming that plaintiff falls within the protected class for both age and disability claims,[12] plaintiff's memorandum does not point to the position for which he applied. Plaintiff wrote a letter dated July 1, 1993 to Drexel requesting information about "appropriate openings within the purchasing department, or elsewhere in the University." (Plaintiff's Exhibit No. 4). There is no other evidence of record to show that plaintiff actually applied for a particular position for which he was qualified. Moreover, plaintiff does not present evidence to show that a younger or non-disabled person was hired for the same position despite plaintiff's qualifications. Therefore, plaintiff has not met his burden to establish a prima facie case and his claim alleging discrimination in failing to rehire must fail.
IV. CONCLUSION
In sum, plaintiff has failed to provide evidence that Drexel terminated his employment based upon his disability or age. Additionally, plaintiff has not established a prima facie case to support his claim that Drexel failed to rehire him on the basis of age or disability. Finally, plaintiff does not address and does not present any evidence to support his claim that Drexel discriminated against him with respect to his compensation, terms, conditions, and privileges of employment because of his age. Accordingly, summary judgment will be granted in favor of Drexel and against plaintiff.
An appropriate order follows.
ORDER
AND NOW, this 7th day of November, 1995, upon consideration of the motion of Drexel University for summary judgment pursuant to Fed.R.Civ.P. 56 (Document No. 6), and the response of plaintiff Francis J. Kelly thereto, upon consideration of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, and for the reasons set forth in the foregoing memorandum, it is hereby ORDERED that the motion of Drexel University is GRANTED and summary judgment is hereby entered in favor of Drexel University and against Francis J. Kelly. This is a final order.
ORDER
AND NOW, this 6th day of December, 1995, upon consideration of the motion of plaintiff Francis J. Kelly for reconsideration (Document No. 15) of this Court's Order of November 7, 1995, and the response of defendant Drexel University thereto, having made the following findings of fact and conclusions of law:
*879 1. In a Memorandum and Order dated November 7, 1995, this Court granted the motion of Drexel University for summary judgment in favor of Drexel University with regard to all counts of the complaint;
2. The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Therefore, such motion must rely on at least one of three grounds: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or to prevent manifest injustice. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986); Reich v. Compton, 834 F.Supp. 753, 755 (E.D.Pa.1993), aff'd in part and rev'd in part on other grounds, 57 F.3d 270 (3d Cir.1995);
3. Plaintiff argues in his motion for reconsideration that this Court (1) ruled inconsistently with precedent in the Third Circuit; (2) failed to consider the evidence in the light most favorable to the plaintiff; and (3) misconstrued the contentions asserted by the plaintiff in opposition to the motion for summary judgment by Drexel University. Although these three broad statements appear to fall within category three, the contentions made by plaintiff in his memorandum simply reargue issues already resolved by this Court. Therefore, these arguments do not provide a proper basis for reconsideration of the Order dated November 7, 1995;[1]
4. Even if the Court were to consider the arguments of plaintiff on the merits, these arguments are without substance and do not provide any grounds for reversing this Court's earlier decision to grant the motion of Drexel University for summary judgment,
it is hereby ORDERED that the motion for reconsideration is DENIED.
NOTES
[1] Pursuant to Fed.R.Civ.P. 56(c), these facts are based upon the evidence of record and considered in the light most favorable to plaintiff.
[2] The Zambelli court recognized that the summary judgment standards for claims brought under the ADA have not been established and stated its belief that "the Circuits will eventually read the ADA in pari materia with the other employment discrimination statutes." Zambelli, 1995 WL 116669, at * 8.
[3] Drexel argues that Dr. Andrulis' report is not admissible as expert testimony under Fed. R.Evid. 702. Defendant's reply memorandum at 4. For the purposes of this motion, I will consider the report of Dr. Andrulis in the light most favorable to plaintiff.
[4] The prima facie cases has been adapted to meet the specific allegations set forth in claims alleging age or disability discrimination. See infra Part III.A.2.a.
[5] Drexel does not dispute that plaintiff has met the requirements to establish a prima facie case under the ADEA and the PHRA for claims of age discrimination. Defendant's memorandum at 26. In the context of job elimination, a plaintiff may show a prima facie case of age discrimination by producing evidence that (1) he belongs to the protected class, i.e., is older than forty; (2) was qualified by training and experience for the job from which he was discharged; and (3) other workers not in the protected class were retained. Torre v. Casio, Inc., 42 F.3d 825, 830-31 (3d Cir.1994); Turner, 901 F.2d at 342. With regard to age discrimination claims, the third factor is met as long as the other workers that were retained were significantly younger than the plaintiff, even if these other workers might also be within the protected class, i.e., older than forty. See Torre, 42 F.3d at 831 (finding third factor of age discrimination prima facie case met even when some of the retained employees were 41); Turner, 901 F.2d at 342 (same).
[6] Drexel concedes to the first two components of the definition of disability: that plaintiff's hip injury is an impairment and that walking constitutes a major life activity. See 29 C.F.R. § 1630.2(i). Plaintiff admits that his limp does not affect his ability to work. Therefore, I need not consider whether plaintiff's limp substantially limits the major life activity of working. See 29 C.F.R. Pt. 1630, App. § 1630.2(j); 2 EEOC Compl. Man. (BNA) § 902:0018, at 902-18.
[7] Attached as an exhibit to Drexel's memorandum is a personnel form which asks employees to identify any disability. Defendant's memorandum at 16 n. 15. When asked to complete this form after the onset of his hip injury, plaintiff did not indicate that he had a disability. Plaintiff argues that he "never executed any form representing the lack of any disability and the form relied upon by Defendant contains a date that is clearly not in plaintiff's handwriting." Plaintiff's memorandum at 14. Pursuant to Fed.R.Civ.P. 56, I am obligated to consider the facts in the light most favorable to the plaintiff. Therefore, I have not considered this personnel form to reach my conclusion that plaintiff has not and cannot meet his burden of proving that he is disabled.
[8] Plaintiff argues, without any supporting case citations, that he is the member of a "discreet subclass": older workers with disabilities. Plaintiff's memorandum at 5. The Supreme Court of the United States has recognized that Title VII prohibits discrimination against the protected class as a whole and against a subclass within the protected class. Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971) (defining the protected class as women with preschool children). Phillips and its progeny involve Title VII claims alleging gender discrimination against a discrete group of individuals of one sex and are referred to as "sex-plus discrimination cases." See Arnett v. Aspin, 846 F.Supp. 1234, 1240 (E.D.Pa.1994). Although I recognized a "sex-plus-age" discrimination claim under Title VII in Arnett, I specifically stated: "It is important to remember that ... Arnett's complaint contains a claim for sex discrimination, not age discrimination." Id. I find no authority to recognize an "age-plus-disability" discrimination claim under the ADEA. Therefore, plaintiff is not entitled to protection as a member of a subclass of older workers with disabilities.
[9] Drexel has conceded for the purposes of its motion that plaintiff has met the burden of establishing a prima facie case for age discrimination. I have found that plaintiff has not met this burden for the disability claims; however, even assuming that plaintiff satisfies the prima facie case for the age and disability claims, further examination of the claims pursuant to the pretext framework under McDonnell Douglas warrants my decision to grant summary judgment in favor of Drexel.
[10] See supra Part III.A.1.
[11] Although plaintiff included in his complaint allegations that Drexel discriminated against him on the basis of age with respect to compensation, terms, conditions, and privileges of employment, plaintiff does not address these contentions. Nor is there any evidence in the record to indicate that such discrimination occurred. Thus, I find that plaintiff has not sustained his burden to defeat a motion for summary judgment with respect to this claim.
[12] For purposes of this motion, I have concluded that plaintiff is not disabled. See supra Part III.A.2.a.
[1] Other courts in this circuit have cautioned parties bringing a motion to reconsider to "evaluate whether what may seem to be a clear error of law is in fact simply a disagreement between the Court and the litigant." Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (N.D.Pa.1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2129728/ | 12 Cal. App. 3d 888 (1970)
91 Cal. Rptr. 142
PAUL J. BEZAIRE, Plaintiff and Appellant,
v.
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant and Respondent.
Docket No. 36450.
Court of Appeals of California, Second District, Division One.
November 9, 1970.
*890 COUNSEL
Neil S. Bezaire for Plaintiff and Appellant.
Maurice H. Wallbert for Defendant and Respondent.
*891 OPINION
GUSTAFSON, J.
In a prior action in the municipal court, plaintiff sought to recover $1,145.41 for labor and services rendered. A writ of attachment was issued against two defendants, one a corporation and one a partnership, each bearing the name of Computer Graphics, and assets of the defendants were seized. Those assets were released when the defendant in this action (Fidelity and Deposit Company of Maryland, hereinafter referred to as the surety) provided the attaching officer with an undertaking pursuant to section 540 of the Code of Civil Procedure. Plaintiff ultimately recovered judgment in the amount of $1,145.43 against the two defendants whose assets were attached, levied execution against those defendants which was returned unsatisfied, made demand upon the surety for payment of the judgment pursuant to the undertaking and filed this action when the demand was refused.
Three purported causes of action were embodied in the complaint against the surety. The first, for declaratory relief, is of no moment in this appeal. The second was for payment of the judgment pursuant to the undertaking. The third was for damages for fraud. It sought recovery of $1,147.43 (the amount of the judgment which the surety had undertaken to pay), $1,000 for attorney fees for bringing the instant action and $100,000 for punitive damages.
Plaintiff obtained summary judgment against the surety on the second cause of action. At the same time, judgment was entered on the third cause of action in favor of the surety. This was the result of the court's having previously stricken the entire third cause of action on motion of the surety. Plaintiff appeals from the judgment entered with respect to his third cause of action.
Preliminarily we note that the surety defends the judgment from which the appeal is taken on the ground that the third cause of action did not state a cause of action. The surety's motion to strike was not made on that ground and the surety did not interpose a general demurrer. (1) A general demurrer, not a motion to strike, is the appropriate method of attacking the sufficiency of a pleading. (White Lighting Co. v. Wolfson (1968) 68 Cal. 2d 336 [66 Cal. Rptr. 697, 438 P.2d 345].) On the other hand, plaintiff did not in the trial court, and does not here, claim that there are any additional matters which he would have alleged if given the opportunity to do so. In fact he states to us "that the court's action in effect was tantamount to sustaining a general demurrer without leave to amend." We therefore overlook the procedural irregularity and consider the matter as though judgment had been entered for the surety after plaintiff failed to amend upon the sustaining of a demurrer to his third cause of action.
*892 (2) Punitive damages, even in a fraud action, cannot be recovered unless there are "actual, substantial damages." (Goodwin v. Wolpe (1966) 240 Cal. App. 2d 874 [50 Cal. Rptr. 55].) (3) Attorney fees incurred by a plaintiff in bringing a fraud action are not recoverable. (Code Civ. Proc., § 1021; Heffernan v. Bennett & Armour (1952) 110 Cal. App. 2d 564 [243 P.2d 846]; Williams v. Williams (1922) 57 Cal. App. 36 [206 P. 650].) Thus the only item of alleged damage which would support a cause of action for fraud (which would then permit the recovery of punitive damages, but not attorney fees) is the failure of the surety to pay the judgment.
(4) Plaintiff alleged that the fraud of the surety consisted of the false statement in the undertaking that the surety would pay when obligated to do so. Plaintiff relies upon section 1572 of the Civil Code which characterizes a promise made without any intention of performing it as an actual fraud if "committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract." That reliance is misplaced because there was no contract between plaintiff and the surety. (5) While the undertaking is a statutory obligation in favor of plaintiff, it does not follow that plaintiff is a party to the undertaking in a contractual sense. (6) On the other hand, the surety's false promise (Civ. Code, § 1710), if made with the intent to induce plaintiff to alter his position to his injury or risk, renders the surety liable to the plaintiff if plaintiff relied thereon to his detriment. (Civ. Code, § 1709.)
(7) Plaintiff alleged that the surety's promise was made "to induce plaintiff from taking any further steps to secure any Judgment he might obtain" and that in reliance upon the false promise "plaintiff took no further action to secure any Judgment he might obtain." There is nothing in the complaint which indicates what plaintiff might have done to "secure" any judgment he might obtain or to put himself in a better position had he known the falsity of the surety's promise. (8) In his briefs before this court, plaintiff says only that he "would not have accepted and relied upon" the surety's undertaking if he had known the truth. But plaintiff did not "accept" the undertaking. The attaching officer was required to release the attached property when the undertaking was given. (Code Civ. Proc., § 540; Kanouse v. Brand (1909) 11 Cal. App. 669 [106 P. 120].) (9) The undertaking was by a corporate surety (Code Civ. Proc., § 1056) and challenge of the sufficiency of the surety may not be made upon the ground that the surety has no intent to pay the plaintiff when the plaintiff obtains judgment and levies an execution which is returned unsatisfied. (Code Civ. Proc., § 1057a.)
*893 (10) A fraudulent misrepresentation is not actionable unless plaintiff's conduct on reliance thereon caused the loss for which plaintiff seeks damages. (Rest., Torts, § 546.) In the case at bench, the alleged loss of $1,147.43 was not the result of plaintiff's having acted, or having failed to act, in reliance on the surety's false promise. The causative factor is missing since, as far as we are aware, plaintiff could have done nothing to improve his position had he known initially that the surety did not intend to pay pursuant to the undertaking the moment plaintiff met the conditions precedent to the obligation of the surety to pay.
It is obvious from his briefs that plaintiff is annoyed by the fact that had no undertaking been given, plaintiff could have executed upon the attached property without the necessity of filing a new lawsuit, but because the undertaking was given, plaintiff is in a worse position in that to enforce the undertaking he was required to sue the surety. (11) What plaintiff fails to recognize is that the undertaking is not simply the substitution of an obligation of the surety for the property which was attached. (Passow & Sons v. United States Fid. & Guar. Co. (1918) 177 Cal. 31 [170 P. 1124].) When judgment is obtained against a defendant whose property was attached and subsequently released from attachment by the giving of an undertaking, the defendant remains primarily liable and it is only when the plaintiff is unable to collect from the defendant that plaintiff may sue the surety. (Code Civ. Proc., § 552.) If this procedure is unfair in compelling the plaintiff to incur additional attorney fees for the suit against the surety, this is a matter which should be called to the attention of the Legislature, not this court.
The judgment is affirmed.
Lillie, Acting P.J., and Thompson, J., concurred.
A petition for a rehearing was denied December 7, 1970, and appellant's petition for a hearing by the Supreme Court was denied January 6, 1971. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2576788/ | 490 F. Supp. 2d 368 (2007)
ASTRAZENECA AB, et al, Plaintiffs,
v.
IMPAX LABORATORIES, INC. Defendants.
In re Omeprazole Patent Litigation.
No. 00 CIV. 7597(BSJ), 01 CIV. 2998(BSJ), M-21-81 (BSJ), MDL 1291.
United States District Court, S.D. New York.
May 25, 2007.
*369 *370 Errol B. Taylor, Fredrick M. Zullow, John M. Griem, Jr., Lawrence T. Kass, Milbank, Tweed, Hadley & McCloy LLP, New York, NY, for Plaintiffs.
Order
JONES, District Judge.
Presently before the Court is Impax Laboratories, Inc.'s Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, Impax's motion is DENIED.
Background
This is a patent infringement action brought by Plaintiffs AstraZeneca AB, Aktiebolaget Hässle, KBI-E Inc., KBI Inc., Astra Pharmaceuticals, L.P., and AstraZeneca, LP (collectively "Plaintiffs," "AstraZeneca," or "Astra") against Impax Laboratories, Inc. ("Impax"), a manufacturer of generic pharmaceutical products in the United States. Astra alleges infringement of U.S. Patent Numbers 4,786,505 and 4,853,230 (the "'505 Patent" and the "'230 Patent," respectively), which cover the Prilosec® formulation.
A. Statutory Background
Resolution of this matter requires the Court to analyze three distinct statutory provisions; therefore, the Court will provide a brief overview of the relevant provisions. For a detailed explanation, see Mylan Labs., Inc. v. Thompson, 389 F.3d 1272 *371 (D.C.Cir.2004); Barr Labs., Inc. v. Thompson, 238 F. Supp. 2d 236 (D.D.C.2002).
1. The Hatch-Waxman Amendments
21 U.S.C. § 355(j), a provision of the 1984 Hatch-Waxman Amendments to the Federal Food, Drug, and Cosmetic Act ("FDCA"), "creates an, approval shortcut for applicants seeking to market generic versions of approved drugs." Thompson, 389 F.3d at 1274-75. Section 355(j) permits a generic applicant to file an abbreviated new drug application ("ANDA") with the U.S. Food and Drug Administration ("FDA") certifying that the generic version is bioequivalent to an approved drug, and thus avoid having to conduct its own clinical trials. Id. at 1275. The ANDA must include "a certification, that for each of the patents applicable to the pioneer drug, the proposed generic drug would not infringe the patent because (I) the patent information has not been filed; (II) the patent has expired; (III) the patent will expire on a stated date; or (IV) the patent is invalid or will not be infringed by the manufacture, use or sale of the drug for which the abbreviated application applicant seeks approval." 21 U.S.C. § 355(j)(2)(A)(viii), cited in Mylan Labs., Inc. V. Leavitt, No. 07-579, 2007 WL 1241884, at *2 (D.D.C. Apr.30, 2007). These certifications are referred to as Paragraphs I, II, III, and IV, respectively.
35 U.S.C. § 271(e)(2), a patent statute, also enacted in the Hatch-Waxman Amendments, creates a cause of action for patent infringement based solely upon the filing of an ANDA containing a Paragraph IV certification. Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 676, 110 S. Ct. 2683, 110 L. Ed. 2d 605 (1990). Section 271(e)(4) sets out the exclusive remedies available in a patent infringement action under § 271(e)(2):
For an act of infringement described in paragraph (2)
(A) the court shall order the effective date of any approval of the drug or veterinary biological product in the infringement to be a date which is not earlier than the date of expiration of the patent which has been infringed,
(B) injunctive relief may be granted against an infringer to prevent the commercial manufacture, use, offer to sell, or sale within the United States or importation into the United States of an approved drug or veterinary biological product, and
(C) damages or other monetary relief may be awarded against an infringer only if there has been commercial manufacture, use, offer to sell, or sale within the United States or importation into the United States of an approved drug or veterinary biological product.
35 U.S.C. § 271(e)(4).
2. The Period of Market Exclusivity
In 1997, in an effort to encourage the pediatric testing of drugs, Congress passed the Food and Drug Administration Modernization Act, Pub.L. No. 105-115, 111 Stat. 2296 (1997), which grants manufacturers of drugs that agree to conduct pediatric studies, six months of market exclusivity for their products. Ass'n of Am. Physicians & Surgeons, Inc. v. U.S.F.D.A., 226 F. Supp. 2d 204, 206 (D.D.C.2002). 21 U.S.C. § 355a, the "pediatric exclusivity" provision, authorizes a patent holder to receive a six-month period of market exclusivity beyond the patent's expiration date, if the patent holder "has satisfactorily conducted pediatric testing of its drug upon the FDA's request." Thompson, 389 F.3d at 1275. This provision serves as an incentive for a drug patent holder to conduct expensive and difficult pediatric studies of a drug that the FDA believes may have a beneficial pediatric use. Thompson, 389 F.3d at 1276; cf. *372 Ass'n of Am. Physicians & Surgeons, 225 F.Supp.2d at 206 (noting that "[b]ecause of the expense and difficulty in finding substantial pediatric populations to undergo tests, along with the ethical complications associated with testing new drugs on children, many drugs are tested for safety and effectiveness in adults only").
"If the FDA makes a request and the NDA holder satisfies that request's requirement, pediatric exclusivity provides for a six-month delay in the effective date of the pending ANDAs." Barr Labs., 238 F.Supp.2d at 241. The effect of the grant of pediatric exclusivity depends on the type of certification included in the ANDA. If the drug is the subject of a Paragraph II or Paragraph III certification, "the period during which an application may not be approved under. . . . [21 U.S.C. § 355(j)(5)(B)] shall be extended by a period of six months after the patent expires (including any patent extensions)." 21 U.S.C. § 355a(c)(2)(A). If the drug is the subject of a Paragraph IV certification "and in the patent infringement litigation resulting from the certification the court determines that the patent is valid and would be infringed, the period during which an application may not be approved under [21 U.S.C. § 355(j)(5)(B)] shall be extended by a period of six months after the date the patent expires (including any patent extensions)." 21 U.S.C. § 355a(c)(2)(B).
As an initial matter, the Court notes that AstraZeneca is entitled to a six-month period of pediatric exclusivity under 21 U.S.C. § 355a(c)(2)(B). This period of pediatric exclusivity is set to expire on October 20, 2007.
B. The Present Case
In April 2000, Impax sent Astra notice that it had submitted an abbreviated new drug application ("ANDA") to the FDA seeking approval to engage in the commercial manufacture, use, or sale of its 10-mg and 20-mg omeprazole products, called "Omeprazole Delayed Release Capsules 10 and 20 mg," as generic versions of Astra's Prilosec® product. As part of its ANDA, Impax included a Paragraph IV Certification, as described in 21 U.S.C. § 355(j)(2)(A)(vii)(IV), stating that the '505 and '230 patents "[are] invalid or will not be infringed by the manufacture, use, or sale of the new drug." (Second Am. Compl. Against Impax (hereinafter "Second Am. Compl.") ¶¶ 12, 24.)
On May 15, 2000, Plaintiffs filed their initial Complaint alleging that Impax committed an act of infringement under 35 U.S.C. § 271(e)(2) with respect to the '505 and '230 patents, by filing its ANDA seeking approval from the FDA to engage in the commercial manufacture, use, or sale of its 10- and 20-mg Omeprazole Delayed Release Capsules, prior to the expiration of the '505 and '230 patents. (Second Am. Compl. ¶¶ 11, 16, 28.) On January 8, 2002, Impax sent Astra notice that it had "submitted an amendment to ANDA 75-785, providing for the addition of a 40mg strength" Omeprazole Delayed Release Capsule. (Trial Ex. 1128.)
On November 8, 2002, Impax obtained final approval of its ANDAs and in September 2004, began to market and sell its generic products. (Impax's Mem. of Law in Supp. of its Mot. to Dismiss Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction (hereinafter "Def.'s Motion") at 2.) With leave of Court, Plaintiffs filed a Second Amended Complaint on March 1, 2005, adding allegations of direct, contributory, and inducing infringement under 35 U.S.C. § 271(a), (b), and (c), respectively, and a demand for damages. (Second Am. Compl. ¶¶ 19a-20, 31a-32.) On February 14, 2005, Impax filed its Answer and Counterclaims to Plaintiffs' Second Amended Complaint. Impax asserted *373 counterclaims of invalidity and non-infringement, and demanded a jury trial on Plaintiffs' infringement claims and its counterclaims. (Impax Answer & Countercls. ¶ 235.) In order to include Impax in the consolidated Second Wave Bench Trial,[1] Plaintiffs agreed to dismiss with prejudice their claims for damages under § 271(a)-(c). In January 2006, the Court severed and stayed Impax's antitrust counterclaims pending the resolution of the patent infringement action, and ordered Plaintiffs to submit a voluntary dismissal of the damages claims.[2] (Order Denying Impax's Claim to Jury Trial, Jan. 13, 2006.)
The case was tried to the Court sitting without a jury for 42 trial days, starting April 3, 2006 and ending June 14, 2006. Post-trial findings of fact and conclusions of law were fully submitted on August 1, 2006. The '505 and '230 patents expired on April 20, 2007, while, a final decision was sub judice.
Discussion
On April 23, 2007, Impax filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Impax asserts that upon the expiration of the '505 and '230 patents on April 20, 2007, the Court was divested of jurisdiction over Plaintiffs' claims for patent infringement under 35 U.S.C. § 271(a)-(c) and § 271(e)(2).
A. Legal Standard for Dismissal
A motion to dismiss for lack of subject matter jurisdiction presents only a procedural question, and does not raise issues unique to patent law. Toxgon Corp. v. BNFL, Inc., 312 F.3d 1379, 1380-81 (Fed.Cir.2002). Accordingly, the Court must apply regional circuit law, in this case Second Circuit law, in resolving Impax's motion to dismiss. Id. Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim when the court "lacks . . . jurisdiction over the subject matter." F.R. Civ. P. 12(b)(1). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Plaintiffs bear the burden of establishing by a preponderance of the evidence that subject matter jurisdiction exists. Makarova, 201 F.3d at 113; Faggionato v. Lerner, No. 06 CV 2614, 2007 WL 959102, at *5 (S.D.N.Y. Mar. 30, 2007). "Jurisdictional allegations must be shown affirmatively and may not be inferred favorably to the party asserting them." Faggionato, 2007 WL 959102 at *5. In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may refer to evidence outside the pleadings. Makarova, 201 F.3d at 113.
B. Expiration of the '230 and '505 Patents Does Not Render Astra's Claims Moot
In support of its motion to dismiss, Impax argues that the Court lacks jurisdiction over the present controversy because "Astra has no remaining claim for *374 relief against Impax." (See Def.'s Motion at 3.) Impax's argument can be summarized as follows. Under the Patent Act, Plaintiffs are entitled to only two remedies for infringement of the '505 and '230 patents: damages under 35 U.S.C. § 284, or an injunction under 35 U.S.C. § 283. Because Astra dismissed with prejudice all of its claims for damages, the only remedy available to Astra was an injunction under 35 U.S.C. § 283. Upon expiration of the patents, Astra is no longer entitled to injunctive relief under § 283, and Astra's claims for infringement under 35 U.S.C. § 271(e)(2) "expired." Thus, Impax asserts that Astra's claims for patent infringement are now moot and the Court's subject matter jurisdiction over the claims has "dissolved[d]." (Def.'s Motion at 3).[3]
The Court disagrees. "Mootness" refers to "[t]he requisite personal interest that must exist at the commencement of the litigation (standing) [and] continue throughout [the] existence" of the litigation.[4]U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396-97, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980) (quoting Henry Paul Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). "[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack 395 U.S. 486, 496-97, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969) (citation omitted).
The Plaintiffs here have a legally cognizable interest, or "personal stake," in this litigation. See U.S. Parole Comm'n v. Geraghty, 445 U.S. at 396-96, 100 S. Ct. 1202. So we are concerned only with whether the issues before the court are still "live." The "central question . . . is whether a change in the circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief." 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3553.3 (2d ed.1984). In other words, whether the expiration of the '505 and '230 patents has rendered Plaintiff's claims moot depends on the availability of any judicial relief. See Earth Island Inst. v. United States Forest Serv., 442 F.3d 1147, 1157 (9th Cir.2006) (In deciding whether a case is moot, "[t]he question is not whether the precise relief sought at the time of the application for an injunction was filed is still available. The question is whether there can be any effective relief.").
No one disputes that if the patent holder is seeking damages, it may maintain a cause of action past the expiration of the patents. See Clark v. Wooster, 119 U.S. 322, 325, 7 S. Ct. 217, 30 L. Ed. 392 (1886) (expiration of the patents does not deprive the court of jurisdiction to grant monetary relief). But if the patent holder is seeking an injunction under § 283 "to prevent the violation of any right secured by patent," 35 U.S.C. § 283, the patent *375 must still be in effect in order for the court to grant relief because upon the expiration of the patent, the right to exclude others from practicing the claimed invention also expires. Kearns v. Chrysler Corp., 32 F.3d 1541, 1550 (Fed.Cir.1994) ("Thus, when the rights secured by a patent are no longer protectable by virtue of expiration or unenforceability, entitlement to injunctive relief becomes moot because such relief is no longer available."); see also Sears, Roebuck & Co. v. Stiffel, Co., 376 U.S. 225, 230, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964); Lans v. Digital Equip. Corp., 252 F.3d 1320, 1328 (Fed.Cir.2001) ("The District Court cannot enjoin the Computer Companies from infringing an expired patent."). Because the '505 and '230 patents have expired, Astra is no longer entitled to an injunction under § 283.
However, the unavailability of money damages or an injunction under § 283 does not automatically render the entire controversy before the Court "moot." For the reasons set forth below, the Court finds that because Plaintiffs are entitled to judicial relief either under the Court's equitable power or 35 U.S.C. § 271(e)(4)(A) the case is not moot, and the Court has jurisdiction over Plaintiffs' claims for patent infringement.
1. Equitable Relief
In Roche Prods., Inc. v. Bolar Pharm. Co. Inc., 733 F.2d 858 (1984), cert. denied, 469 U.S. 856, 105 S. Ct. 183, 83 L. Ed. 2d 117 (1984), the Federal Circuit held that the expiration of the patents did not render the case before it moot, nor did it deprive the court of the power to grant alternative forms of equitable relief. In Roche, the plaintiff requested a permanent injunction against infringement by Bolar, the defendant. Id. at 865. After the motion was fully briefed, but prior to oral argument, the patent at issue expired. Id. The Court held that the case was not moot "because although the initially requested order [was] no longer . . . necessary, other remedies can be fashioned to give Roche relief against Bolar's past infringement," such as "an order to confiscate and destroy the data which Bolar . . . generated during its infringing activity." Id. (citation omitted). In accordance with Roche, the Court finds that although the expiration of the '505 and '230 patents precludes it from granting Astra an injunction under § 283, the expiration of the patents has not divested the Court of the power to issue other forms of equitable relief.[5]
Contrary to Impax's assertion, Kearns does not dictate a different result. In analyzing its previous decision in Roche, the Federal Circuit in Kearns found that "[t]he post-expiration relief discussed in Roche was intended to return the parties to the status quo before infringement (e.g. destruction of data obtained as a result of infringement) and was not intended to prohibit future use of the invention." Kearns, 32 F.3d at 1550. The court noted that "[i]mportantly, the relief was also considered in the context of harm to a patent *376 owner that had been selling the patented product. Thus, deferral of competition by an infringer who had entered the market prematurely, i.e., before the patent expired, was considered as a means of equitably compensating the patent owner." Id. Similarly, in this case, were the Court to End the patents valid and infringed and issue an order pursuant to 35 U.S.C. § 271(e)(4)(A) directing Impax's ANDA to have a delayed effective date, such an order would have the effect of returning the parties to the status quo before infringement that is before Impax filed its ANDA with a Paragraph IV certification. As will be discussed in more detail below, an order directing withdrawal of final FDA approval of Impax's ANDA and delaying the effective date would require Impax to wait until the expiration of Astra's six-month period of pediatric exclusivity before it could reenter the market to sell its generic products. This remedy would put the parties in the position they would have been in had the act of infringement never occurred: It would subject Impax to Astra's six-month period of pediatric exclusivity, as it would have been had it filed an ANDA with a Paragraph II or Paragraph III certification. Moreover, such an order would give effect to, and is in accordance with the goal of the statutory scheme enacted by Congress when it authorized the grant of market exclusivity to patent holders who conduct pediatric studies. See Ass'n of Am. Physicians & Surgeons, 226 F.Supp.2d at 206 ("[I]n an effort to encourage pediatric testing, Congress passed the Food and Drug Administration Modernization Act," under which "[d]rug manufacturers that agreed to conduct these pediatric tests could receive six months of market exclusivity for their products.").
2. Relief under 35 U.S.C. § 271(e)(4)(A)
In addition to the judicial relief available under the Court's equitable power, 35 U.S.C. § 271(e)(4)(A) independently provides a remedy. Contrary to Impax's assertion the expiration of the patents does not "eliminate[] any Section 271(e)(2) claim that may have existed." (See Def.'s Motion at 3.) Section 271(e)(2) states that
it shall be an act of infringement to submit an application under 505(j) of the Federal Food, Drug, and Cosmetic Act or described in section 505(b)(2) of such Act for a drug claimed in a patent or the use of which is claimed in a patent, if the purpose of such submission is to obtain approval under such Act to engage in the commercial, use or sale of a drug claimed in a patent or the use of which is claimed in a patent before the expiration of such patent.
35 U.S.C. § 271(e)(2). Section 271(e)(2) creates "a new (and somewhat artificial) act of infringement" based solely upon the filing of an ANDA containing a Paragraph IV certification "that is in error as to whether the commercial, manufacture, use, or sale of the new product (none of which has actually occurred) violates the relevant patent." Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 676-79, 110 S. Ct. 2683, 110 L. Ed. 2d 605 (1990).
35 U.S.C. Section 271(e)(4) sets out the remedies that are available for an act of infringement under § 271(e)(2). In addition to injunctive relief under § 271(e)(4)(B), and damages or other monetary relief under § 271(e)(4)(C), Section 271(e)(4)(A) provides an alternative form of relief to which Astra is still entitled. Section 271(e)(4)(A) states that upon finding an act of infringement, "the court shall order the effective date of any approval of the drug or veterinary biological product in the infringement to be a date which is not earlier than the date of expiration of the patent which has been infringed." 35 U.S.C. § 271(e)(4)(A) (emphasis added).
*377 Impax asserts that the remedy under 271(e)(4)(A) is only available prior to the expiration of the patents. In support, Impax cites a section of legislative history from 1984, prior to the enactment of the statutory provisions authorizing the grant of pediatric exclusivity, which states that:
If the infringing party has begun commercial marketing of the drug, damages, and other monetary relief and injunctive may be awarded for the infringement and to prevent further infringement. In addition, the FDA would be mandated to change the effective date of the approved ANDA to the expiration of the infringed patent.
H.R.Rep. No. 98-857, pt. 1, at 46 (1984), U.S.Code Cong. & Admin.News 1974, pp. 2647, 2679. However, this is not the language contained in the statute. The statute states that "the court shall order the effective date . . . to be a date which is not earlier than the date of the expiration of the patent which has been infringed." 35 U.S.C. § 271(e)(4) (emphasis added). Had Congress intended to limit relief under 271(e)(4)(A) to an order mandating the effective date of the ANDA to be the date of the expiration of the patent, it could have written the provision to say that. But it did not. Rather, the clear and unambiguous language of the statute sets the date of the expiration of the patent only as the earliest effective date a court may order. The Court will not "accept [Impax's] invitation to ignore [the] language which Congress saw fit to enact" and search the legislative history for a contrary meaning. United States v. McGoff, 831 F.2d 1071, 1080 & n. 19 (D.C.Cir.1987) ("Only the most extraordinary showing of contrary intentions in the legislative history will justify departure from the plain and unambiguous language of the statute." (quoting United States v. Albertini, 472 U.S. 675, 680, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985))).
The statutory language of 271(e)(4)(A) also fails to limit the Court's power to issue a remedy to the term of the patent. Section 271(e)(4)(A) must be read in conjunction with 21 U.S.C. § 355a, the statutory provision governing the grant of a six-month period of market exclusivity to a patent holder who completes FDA-requested pediatric studies. 21 U.S.C. § 355a "authorizes an extra six-month `pediatric exclusivity' period following expiration of a drug patent for a patent holder that has satisfactorily conducted pediatric testing of its drug upon the FDA's request." Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1275 (D.C.Cir.2004) (emphasis added). The statute provides that if the drug is the subject of a Paragraph IV certification "and in the patent infringement litigation resulting from the certification the court determines that the patent is valid and would be infringed, the period during which an application may not be approved under [21 U.S.C. § 355(j)(5)(B)] shall be extended by a period of six months after the date the patent expires (including any patent extensions)." Id. at 1276. Nothing in the language of 21 U.S.C. § 355a(c)(2)(B) requires the Court to render its decision prior to the expiration of the patents.
Impax contends that "`pediatric exclusivity' does not rescue Astra's claims" because "pediatric exclusivity is a reward bestowed by the FDA on pharmaceutical companies for testing drug products on young patients[,] . . . [i]t does not, however, extend the terms of the patents." (Def.'s Motion at 4.) The Court agrees that the six-month period of pediatric exclusivity does not extend the term of the patents, but it does grant the patent holder a period of market exclusivity, which this Court has the power to enforce. Accordingly, the Court fords that relief under § 271(e)(4)(A) does not become moot when *378 the patents expire but the period of pediatric exclusivity is still in effect.
Such a result is in accordance with the Federal Circuit's decision in Alza Corp. v. Mylan Labs., Inc., 391 F.3d 1365 (Fed.Cir. 2004). In Alza, the patent was due to expire in July 2004. Id. at 1368. The Federal Circuit stated in a decision rendered on December 10, 2004 after the expiration of the patents that "following the Food and Drug Administration's approval of pediatric use of [the drug], the patent will now expire on January 23, 2005." Id. The parties conceded that the case would be moot after January 23, 2005. Id. at n. 3. Although the Vermont District Court's decision in Alza was rendered prior to the expiration of the patents, the Federal Circuit did not find that the case became moot upon expiration of the patent, nor did it find that it lost jurisdiction over the appeal upon expiration of the patent. Instead, the court asserted jurisdiction over the appeal and affirmed the district court's decision that the patents were neither anticipated nor obvious, and that the patent was not unenforceable due to inequitable conduct. Id. at 1373.
In support of its motion to dismiss, Impax asserts that the Court is powerless to enforce the period of pediatric exclusivity because section 355a requires a "court determin[ation] that the patent is valid and would be infringed" in order for the ANDA with a Paragraph IV certification to be subject to the period of pediatric exclusivity. Thus Impax contends that because the patents expired while the determination of validity and infringement was sub judice, Astra has lost its right to its six-month period of pediatric exclusivity under 21 U.S.C. § 355a. The Court declines to reach such an anomalous result.
Had Impax filed a Paragraph II or Paragraph III certification, it would have been automatically subject to Astra's six-month period of pediatric exclusivity prior to receiving final approval of its ANDA. See 21 U.S.C. § 355a(c)(2)(B). Instead, Impax filed a Paragraph IV certification, and while the patent litigation was pending, it obtained final approval of its ANDAs and began to manufacture and sell its generic products. Simply because the statutory provisions do not address the specific fact pattern before us does not mean that Astra is not entitled to the six-month period of market exclusivity that it earned by conducting the requested pediatric studies.
In this regard Ranbaxy Labs. Lim. v. United States Food & Drug Admin., 307 F. Supp. 2d 15 (D.D.C.2004), is instructive. In Ranbaxy, the generic drug manufacturer, Ranbaxy Labs., received tentative approval of its ANDAs during the course of litigation. Id. at 18. "After the summary judgment decision, . . . the court indicated to Ranbaxy and Pfizer [the patent holder], that the court's schedule would not allow for a trial until after the January 29, 2004, expiration of the '216 patent." Id. at 17. In response the parties entered into a stipulation of dismissal providing that because the '216 was set to expire before the court could accommodate a trial, the "actions would be dismissed as moot upon the . . . expiration of the '216 patent." Id. at 17.
Ranbaxy sought confirmation from the FDA that it would receive final approval of its ANDA upon expiration of the patent, irrespective of Pfizer's period of pediatric exclusivity. Id. at 18. Ranbaxy argued that because it had received tentative approval of its ANDAs, upon expiration of the patents the ANDAs "automatically gained or were entitled to gain, immediate effective approval . . . because the patent litigation became moot at the very instant the patents expired." Id. at 19. In addition, Ranbaxy asserted a similar argument to that made by Impax in support of the *379 present motion: Ranbaxy argued "that the preconditions for delaying an ANDA on the basis of pediatric exclusivity provided for in Section 505(a)(c)(2)(B) [and 21 U.S.C. § 355a(b)(2)(b)] (governing Paragraph W submissions) could not be satisfied unless Pfizer obtained a ruling that the [relevant] patent was valid and would be infringed, which it was unlikely to do in view of the district court's schedule." Id. at 18.
By letter dated January 28, 2004, "the FDA issued an administrative decision indicating that Ranbaxy's ANDA would not be approved until after the expiration of Pfizer's pediatric exclusivity on July 29, 2004." Id. "The FDA concluded that an ANDA applicant will be subject to any pediatric exclusivity that attaches to a patent where the ANDA applicant has filed a paragraph IV certification, was sued by the NDA holder or patent owner within 45 days, and the litigation is unresolved on the merits and the 30-month stay has not run when the patent expires." Id. at 18 (citation omitted).
Although the facts of Ranbaxy differ from the case before us, the Court finds that the FDA's reasoning is equally applicable to the case at bar. In Ranbaxy, "the FDA concluded that the absence of a [statutory] provision addressing unresolved patent litigations in the Paragraph IV certification context did not mean that Congress intended to exclude such circumstances from the pediatric exclusivity provision." Ranbaxy, 307 F.Supp.2d at 19. According to the FDA, Ranbaxy's "alternative reading . . . would undercut the purpose of the pediatric exclusivity and invite anomalies and manipulation of the statute." Id. Similarly, the Court finds that Impax's interpretation of the statutory provisions would create an anomalous result that is at odds with Congress's goal in enacting § 355a.
Accordingly, the Court concludes that if it determines that the '505 and '230 patents are valid and infringed, it may issue an order pursuant to 35 U.S.C. § 271(e)(4)(A) recognizing Astra's six-month period of pediatric exclusivity under 21 U.S.C. § 355a(c)(2)(B), and mandating that the effective date of approval of Impax's ANDA is no earlier than the date on which the pediatric exclusivity ends that is October 20, 2007. Such an order does not extend the term of the patents, but instead gives effect to a period of market exclusivity which Congress has bestowed upon brand manufacturers who incur the costly task of conducting pediatric studies of pharmaceutical drugs. See S. Report No. 105-43, at 51 (1997); see also Assoc. of Am. Physicians and Surgeons, Inc. v. U.S.F.D.A., 226 F. Supp. 2d 204, 206 (D.D.C.2002).
3. Impax's ANDA Did Not Automatically Convert from a Paragraph IV to a Paragraph II Certification
In support of its assertion that upon patent expiration, Astra no longer has a claim under § 271(e)(2), Impax contends that upon patent expiry, its Paragraph IV certification was automatically converted to a Paragraph II certification thereby eliminating Astra's claim for infringement under § 271(e)(2). Impax cites Ranbaxy in support of this proposition; however, Ranbaxy does not mandate such a result.
In Ranbaxy, the FDA determined that upon patent expiry, Ranbaxy was required to amend its certification pursuant to 21 C.F.R. § 314.94(a)(12)(viii)(C)(1), which requires an ANDA applicant to amend its certification "if, at any time before the effective date of approval of the application, the applicant learns that the submitted certification is no longer accurate." The FDA decided that upon expiration of *380 the patents, the Paragraph IV certification converted to a Paragraph II certification even though Ranbaxy failed to amend its certification and "under a Paragraph II certification, the statute provides for a delayed ANDA approval for six months beyond the expiration of the patent." Ranbaxy, 307 F.Supp.2d at 18. Thus, Ranbaxy was subject to the six-month period of pediatric exclusivity (even in the absence of a court order triggering § 355a(c)(2)(B)). The District Court for the District of Columbia affirmed this decision, finding that at the "magic moment" the patents expired "the Paragraph IV certification became invalid, and either converted as a matter of law to Paragraph II certifications or became inaccurate, thereby creating an obligation on Ranbaxy's part to amend its ANDAs to reflect patent expiry and an inability on the part of the FDA to approve the ANDAs in their inaccurate form." Id. at 21.
Ranbaxy's ANDA is distinguishable from Impax's ANDA. In Ranbaxy, the generic applicant had only received "tentative" approval prior to the expiration of the patent. In the case at bar, Impax received final approval of its ANDA on November 8, 2002, prior to the trial on the merits and the expiration of the patents. Once an application is finally approved, the applicant is no longer under an obligation to amend its patent certification. See 21 C.F.R. § 314.94(A)(12)(viii)(C)(i) (requiring amendments before the effective date of approval). Thus, the rationale behind the automatic conversion of a Paragraph IV certification to a Paragraph II certification does not apply. Accordingly, the Court finds that Impax's Paragraph IV certification did not convert to a Paragraph II certification upon expiration of the patents, and Astra still has a viable claim for infringement under 271(e)(2).[6]
* * * * * *
The Court concludes that this is not a case in which the court is powerless to "undo the effects of conduct that was not prevented by the time of decision." Wright, Miller & Cooper, supra (citing Roche and other cases). Instead, an effective remedy is possible and within the Court's power either under 35 U.S.C. § 271(e)(4)(A) or the Court's general equitable powers. Accordingly, the case is not moot and the Court has jurisdiction over Astra's claim for infringement under 35 U.S.C. § 271(e)(2).
Conclusion
For the foregoing reasons, Impax's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) is DENIED.
SO ORDERED.
NOTES
[1] The Second Wave Trial included the following defendant pharmaceutical corporations: Mylan Laboratories Inc., Mylan Pharmaceuticals Inc., Esteve Quimica, S.A., Laboratorios Dr. Esteve, S.A., Apotex Corp., Apotex Inc., Torpharm Inc., Lek Pharmaceutical and Chemical Company D.D., Lek USA, Inc., and Impax Laboratories, Inc.
[2] In addition, the Court ordered that, upon entry of Astra's dismissal, Impax's jury demand would be struck. (Jan. 13, 2006 Order at 9.) On February 26, 2006, this Court denied Impax's motion for reconsideration. On March 2, 2006, the Federal Circuit denied Impax's petition for a writ of mandamus. Impax has filed a petition for certiorari in the Supreme Court of the United States.
[3] In addition, Impax contends the Pennsylvania District Court's decision in Pfizer, Inc. v. Mylan Pharm., Inc., No.02:02 CV 1628, 2006 WL 2990398 (W.D.Pa. Oct. 18, 2006), dictates dismissal of Astra's claims against Impax. This Court disagrees. Pfizer v. Mylan is not binding precedent on this Court. Nor does it consider the detailed statutory analysis, upon which this Court relies.
[4] "The rule that [courts] lack jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies." Powell v. McCormack 395 U.S. 486, 497, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969) (citing Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968)). But see Honig v. Doe, 484 U.S. 305, 330, 108 S. Ct. 592, 98 L. Ed. 2d 686 (1988) (Rehnquist, C.J., concurring) (arguing that mootness doctrine is primarily prudential and not constitutionally based), cited in Erwin Chemersinky, Federal Jurisdiction § 2.5 (4th Ed.2003).
[5] Having properly obtained jurisdiction over the present controversy, the Court is not automatically divested of it upon the expiration of the patents. See John R. Kennel, Luchas Martin, et al., Corpus Juris Secundum Patents § 434 ("Where jurisdiction is once acquired, it is not ousted by the expiration of the patent during the pendency of the suit, but continues for the purpose of an accounting." (citing Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 49 S. Ct. 220, 73 L. Ed. 480 (1929)); see also Rice & Adams Corp., 278 U.S. at 514-15, 49 S. Ct. 220 ("Jurisdiction of the court sitting in equity, having been rightfully invoked, was not lost . . . by the expiration of the patent pending final decree. . . . [I]f the case was one for equitable relief when the suit was instituted, the mere fact that the ground for such relief expired by the expiration of the patent, would not take away jurisdiction, and preclude the court from proceeding to grant . . . incidental relief. . . . ")).
[6] An order pursuant to § 271(e)(4)(A) would have the effect of converting Impax's final approval to an approval with a delayed effective date, which under the FDA's own regulations is a "tentative" approval. See Mylan v. Thompson, 389 F.3d 1272, 1281 (D.C.Cir. 2004) (citing 21 C.F.R. § 314.105(a)). Whether such a change in the "factual and legal landscape" would impose an obligation on Impax to amend its Paragraph IV certification and subsequently convert the certification to a Paragraph II certification, is not a question before us. See Mylan, 389 F.3d at 1284. The Court properly leaves that issue, if it arises, to be resolved by the FDA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1806214/ | 991 F. Supp. 543 (1997)
PLAYBOY ENTERPRISES, INC., Plaintiff,
v.
WEBBWORLD, INC., d/b/a Netpics.Com, Bentley Ives, James Gurkin, and Benjamin Brian Ellis, Defendants.
No. Civ. 3-96-CV-3222-H.
United States District Court, N.D. Texas, Dallas Division.
December 11, 1997.
*544 *545 *546 *547 *548 David L. Hitchcock, Sidley & Austin, Dallas, TX, John D. Vandenberg & Scott D. Eads, Klarquist Sparkman Campbell Leigh & Whinston, Portland, OR, for Plaintiff.
Lawrence Brown and Denis L. Toothe, Fort Worth, TX, for Defendants.
MEMORANDUM OPINION AND ORDER
SANDERS, Senior District Judge.
On November 19, 1997, the Court conducted a non-jury trial of this case. After consideration of the admissible evidence presented therein, along with the arguments of counsel, the Court renders this decision.
Plaintiff Playboy Enterprises, Inc., has prevailed in its claim for direct and indirect copyright infringement against Defendants Webbworld, Inc., Bentley Ives, and Benjamin Brian Ellis, who owned or operated an Internet website that offered sexually-oriented photographs and images to subscribers for a monthly fee. The Court finds that those Defendants impermissibly reproduced, distributed, and displayed images substantially identical to ones appearing in Plaintiff's copyrighted publications. With regard to five of the copyrights, the infringement was willful. In addition to statutory damages of $310,000 awarded at summary judgment, the Court awards $129,000 in statutory damages, plus attorney's fees. A permanent injunction will issue. On all remaining claims, the Court finds for Defendants.
I. PROCEDURAL HISTORY
On December 2, 1996, Plaintiff Playboy Enterprises, Inc. ("PEI"), filed this action for copyright infringement, trademark infringement, and unfair competition. After a hearing on December 9, 1996, the Court granted a temporary restraining order, and on January 6, 1997, the Court entered an agreed preliminary injunction. Both orders forbad Defendants, owners and operators of an adult-oriented Internet website, from directly or indirectly infringing PEI's copyright and trademark registrations.
On June 27, 1997, Judge Dale E. Saffels, a visiting judge to whom the case was referred, granted summary judgment against Defendant Webbworld, Inc., for direct copyright infringement of sixty-two PEI images. See Playboy Enterprises, Inc. v. Webbworld, Inc., 968 F. Supp. 1171 (N.D.Tex.1997) ("Webbworld"). Moreover, Judge Saffels found two of the individual Defendants, Bentley Ives and Benjamin Brian Ellis, jointly and severally liable for vicarious infringement. Judge Saffels awarded $5,000 per infringement, for a total award of $310,000 to Plaintiffs on the copyright claims, plus reasonable attorney's fees. Finding material issues of fact, Judge Saffels declined to award summary judgment with regard to sixteen of the seventy-eight images at issue. Judge Saffels similarly reserved decision on the willfulness of the infringement. Finally, Judge Saffels summarily denied PEI's motion against Netpics for contempt of court. Following his decision, Judge Saffels referred the case back to this Court for trial.
In the present opinion, the Court disturbs neither the conclusion nor the reasoning of Judge Saffels's summary judgment. The issues remaining for decision after non-jury trial are PEI's claims for the following: (1) copyright infringement of twenty-nine PEI registrations the sixteen on which Judge Saffels reserved opinion, plus thirteen not included in PEI's motion for summary judgment; (2) vicarious liability of Defendants Ellis and Ives for the remaining twenty-nine alleged infringements, and of Defendant Gurkin for all of the alleged infringements; (3) willfulness; (4) trademark infringement and unfair competition under the Lanham Act; (5) Texas common-law unfair competition; (6) dilution of PEI's trademarks; and (7) contempt against Ellis for alleged violation of the preliminary injunction. PEI requests *549 statutory, actual, and punitive damages, a permanent injunction, and attorney's fees.
II. FACTUAL BACKGROUND
Since approximately 1953, Playboy Enterprises, Inc. ("PEI"), has published the monthly Playboy magazine and other publications. It is undisputed here that PEI owns valid trademark or service mark registrations for the famous "Rabbit Head" design, for the name "Playboy," for the name "Playboy's Playmate Review," and for the name "Playmate." It is also undisputed that PEI holds valid copyrights for the images in its magazine issues and other publications.
Defendant Webbworld, Inc. ("Webbworld"), is a Texas corporation that operated "Netpics," an adult-oriented site on the Internet's World Wide Web, from about May 1996 until February 1997. Webbworld ceased operating at that time upon seizure of their equipment in a raid by the Fort Worth police on charges of child pornography. Pretrial Order, Stips. ¶ 5. The gravamen of PEI's Complaint here is that the Defendants infringed certain copyrighted nude and seminude female images ("the images"), some of which bore PEI trademarks. Webbworld made those images available on the Netpics site to Internet users for a monthly subscription fee.
Webbworld had three principals, individual Defendants Bentley Ives ("Ives"), James Gurkin ("Gurkin"), and Benjamin Brian Ellis ("Ellis"). Ellis had the original idea for the Netpics site and wrote the software that allowed it to function. Gurkin and Ives contributed the start-up capital. Ives was, until the final month of the company's existence, sole shareholder and president of Webbworld. Gurkin worked as Webbworld's customer service representative. The net profits of the business were distributed 50% to Ellis, and 25% each to Gurkin and Ives.
The equipment for Webbworld's Netpics website consisted of fifteen personal computers, a modem, and three telephone lines, all of which were located in an office building in Dallas, Texas. One of the computers functioned as a news server; one handled accounting and administrative data; and the remaining twelve were used as web servers. The web servers were where the Netpics site "existed" on the World Wide Web. They were used to store, reproduce, display, and distribute adult images to Webbworld subscribers.
Webbworld obtained the images that it sold from selected adult-oriented Internet "newsgroups." A newsgroup is an Internet forum for the exchange of ideas by people of similar interests. Newsgroups exist on the Usenet, which like the World Wide Web is an aspect of the Internet. A newsgroup typically specializes in a certain subject area, such as sports, for example, or Cajun cooking. A substantial number of newsgroups are devoted to sexually explicit material. Newsgroups feature discrete collections of information called "articles." Newsgroup participants may "post" (upload) articles, which consist of text and/or images. Images may be posted by using hardware called a scanner to convert, for example, a photograph to a digital file, which may then be uploaded onto the newsgroup in the same way that text is transferred. Once online and within a newsgroup, a participant may post an article, may view one of many articles on the computer screen, and may download an article to his or her computer for later retrieval or printing. None of the Defendants here themselves posted any of the PEI images at issue to any of the newsgroups.
Webbworld obtained its images from selected newsgroups according to the following general method. Defendant Ellis selected the particular adult-oriented newsgroups to be downloaded. Periodically, Webbworld received a "news feed," which consisted of digital files from the selected adult newsgroups. The information was downloaded onto the news server computer. The feed consisted of both text and images, representing all of the new material that had been posted onto the newsgroup since the last feed.
The heart of the Webbworld operation was "ScanNews," software that Ellis had developed. ScanNews took the news feed, discarded most of the text, and retained the sexually-oriented images. A small amount of identifying text was sometimes retained. After the news feed was edited, the news server *550 would announce to the twelve web servers, via the ScanNews software, that its images were ready to be transferred. Each of the web servers would contact the news server computer and copy into memory the new adult images stored there. The news server then discarded that data to make room for the next news feed.
Besides discarding text, the ScanNews software altered the news feed in a second way. It created two "thumbnail" copies, one large and one small, for each of the adult images downloaded from the Usenet. The thumbnail images enabled Webbworld to display many images on a single screen. Moreover, the thumbnails could be downloaded more quickly than full-sized images. The thumbnails were not part of the news feed; they were created by the ScanNews software to facilitate Webbworld's sale of the images they represented.
After being loaded onto the web servers, the thumbnail and full-sized adult images were available to any Internet user willing to pay Webbworld a subscription fee of $11.95 per month. The subscription process could be completed online in about 30 seconds with a major credit card. Before gaining access to the Webbworld Netpics site on the World Wide Web, a potential user would first have had to gain access to the Internet via his or her Internet service provider ("ISP"), sometimes called an access provider ("IAP"). Then, the person would employ browser software to access various sites on the World Wide Web. Webbworld's Internet address was "http://www.netpics.com." That address would be typed into a user's browser software for immediate access to Webbworld's site.
Upon entering Netpics, a subscriber was given the choice whether to view images in large or small thumbnail format. After making that choice, the user could view a fullsized image by clicking on the corresponding thumbnail. Webbworld provided instructions to its subscribers about viewing images and about downloading them into the memories of their own computers for later retrieval.
Every day, Webbworld obtained between 5,000 and 10,000 new images. An approximately equal number were deleted to make room for the new arrivals. On average, an image was stored on Webbworld's computers and thus made available to subscribers for about six days before being deleted. Webbworld normally stored and displayed about 40,000 to 70,000 images at any given time.
During the time Webbworld was in operation, many hundreds of copyrighted PEI images appeared on the website. Some of those images appeared in close association with one or more of PEI's trademarks. PEI never authorized Webbworld to reproduce, display, or distribute any of those images or marks.
III. DIRECT COPYRIGHT INFRINGEMENT
Based on the facts related above, PEI alleges that Defendant Webbworld is directly liable for copyright infringement. For the reasons that follow, the Court agrees.
To prevail on a claim for direct copyright infringement, PEI must prove (1) ownership of the asserted copyrights, and (2) "copying" by Webbworld. See Lakedreams v. Taylor, 932 F.2d 1103 (5th Cir.1991); Central Point Software, Inc. v. Nugent, 903 F. Supp. 1057, 1059 (E.D.Tex.1995). Direct infringement does not require intent or any particular state of mind. Religious Tech. Center v. Netcom On-Line Comm. Servs., 907 F. Supp. 1361, 1367 (N.D.Cal.1995); see Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1559 (M.D.Fla.1993) ("Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable...."); Key Maps, Inc. v. Pruitt, 470 F. Supp. 33, 38 (S.D.Tex.1978) (explaining that intent to infringe need not be proved).
In this case, PEI has submitted to the Court twenty-nine copyright certificates of registration. See Plf's Trial Exhibit ("Exh.") 5. The parties have stipulated that the registrations are valid and enforceable. Supp. Stip. & Exh. A (filed November 18, 1997). Accordingly, the sole element of infringement remaining for PEI to prove is whether Webbworld "copied" the registered images.
"Copying" is a judicial shorthand for the infringement of any of a copyright *551 owner's exclusive rights. Worlds of Wonder, Inc. v. Veritel Learning Systems, Inc., 658 F. Supp. 351, 354 (N.D.Tex.1986); see 17 U.S.C. § 106 (setting forth a copyright owner's rights). Because direct proof of copying is rarely available to a copyright owner, copying is normally shown by proving (a) that a defendant had access to the copyrighted work; and (b) substantial similarity between the copyrighted work and the accused work. Lakedreams, 932 F.2d at 1107. Alternatively, where proof of access is absent, copying may be proved by showing a "striking similarity" between the copyrighted work and the accused work. Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th Cir.1978) (holding that if two works are so strikingly similar as to preclude the possibility of independent creation, copying may be proved without a showing of access).
In this case, Webbworld cannot claim to have lacked access to PEI's famous publications. The uncontroverted testimony at trial is that PEI's periodicals are widely distributed throughout the United States.
Even if proof of access were lacking, however, the Court would still find "copying" to exist. The electronic images downloaded from Webbworld's computers and offered as evidence at trial are not merely "strikingly similar" to PEI's photographs, but are virtually identical. See Exh. 5 (consisting of twenty-nine tabs with the relevant copyright registration, a photocopy of the copyrighted images, and copies of identical images downloaded from the Netpics site). Furthermore, a few of Netpics' electronic copies self-proclaim their origin by bearing a PEI title or emblem.
Having established that the accused electronic files are copies of PEI's photographs, PEI must establish that Webbworld has violated one or more of the five exclusive rights granted to a copyright holder. See Playboy Enterprises, Inc. v. Starware Pub. Corp., 900 F. Supp. 433, 437-38 (S.D.Fla. 1995); Frena, 839 F.Supp. at 1555-56; Meadowgreen Music Co. v. Voice in the Wilderness Broadcasting, Inc., 789 F. Supp. 823, 825 (E.D.Tex.1992). Under The Copyright Act, the bundle of rights enjoyed by a copyright owner includes, among other things, the exclusive right to do, or to authorize, any of the following:
(1) Reproduce the copyrighted work;
(2) Distribute copies of the copyrighted work to the public by sale or other transfer of ownership; and/or
(3) Display the copyrighted work publicly.
17 U.S.C. § 106. Using, or authorizing the use of, a copyrighted work in any one of these three ways, without permission of the copyright owner, constitutes actionable copyright infringement. Starware Publishing Corp., 900 F.Supp. at 438-39; Frena, 839 F.Supp. at 1555-56; Worlds of Wonder, 658 F.Supp. at 354; 17 U.S.C. § 501(a). In this case, PEI has established by a preponderance of the evidence that Webbworld violated all three of these rights.
First, Webbworld "reproduced" unauthorized copies of copyrighted PEI images. On each of the twelve Webbworld web server computers and for each of the images at issue, Webbworld created two thumbnail copies and also reproduced a full-sized image downloaded from the newsgroup. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir.1993), cert. dism'd, 510 U.S. 1033, 114 S. Ct. 671, 126 L. Ed. 2d 640 (1994) (holding that copying occurs when a computer program is transferred from a permanent storage device to a computer's random access memory).
Second, Webbworld "distributed" PEI's copyrighted works by allowing its users to download and print copies of electronic image files. Those files, stored on the web servers, contained virtually exact reproductions of copyrighted PEI images. Thus, Webbworld violated PEI's exclusive right to distribute its copyrighted works. See Central Point Software, Inc., 903 F.Supp. at 1061 (ordering forfeiture of all computer hardware used to distribute plaintiff's copyrighted software on an electronic bulletin board); Frena, 839 F.Supp. at 1556 (finding a similar violation).
Finally, Webbworld violated PEI's exclusive right to "display" its copyrighted works. To display a work means "to show a copy of it, either directly or by means of a film, slide, television image, or any other *552 device or process." 17 U.S.C. § 101. Webbworld allowed its paying subscribers to view PEI's copyrighted works on their computer monitors while online. Such action constitutes a display, as the Frena court explains:
The concept of display is broad. It covers "the projection of an image on a screen or other surface by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 64 (Sept. 3, 1976), reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5677. The display right precludes unauthorized transmission of the display from one place to another, for example, by a computer system. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 80 (Sept. 3, 1976), reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5694.
839 F.Supp. at 1556-57.
Defendant Ives testified that no image existed until the Netpics subscriber downloaded it. That assertion is disingenuous. The image existed in digital form on Webbworld's servers, which made it available for decoding as an image file by the subscriber's browser software. The subscriber could view the images merely by visiting the Webbworld site. The evidence unequivocally shows that Webbworld electronically reproduced, distributed, and displayed PEI's protected images.
Webbworld's primary defense to the claim of copyright infringement is that, as a provider of access to Usenet images, it served as a mere conduit between its subscribers and adult-oriented newsgroups. See Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F. Supp. 1361, 1372-73 (N.D.Cal.1995) ("RTC"). In RTC, the district court held that an Internet access provider and Internet bulletin board service operator were not directly liable for copyright infringement. Id. at 1366-72, 1381-82. The court reasoned, in part, that they were mere conduits for unaltered information, even though infringing files were temporarily stored on their computers. Id. Here, Webbworld principals testified similarly that the infringing images would have existed on the Usenet whether or not Webbworld provided access to them or not. They argue that to hold them liable would be to hold the entire Internet liable for activities that cannot reasonably be monitored or deterred.
Webbworld's argument was rejected at summary judgment and is similarly unavailing after the additional evidence presented at trial. See Webbworld, 968 F.Supp. at 1177. Unlike the defendant service provider in RTC, Webbworld did not function as a mere provider of access. To visit the Netpics site, a subscriber first was required to gain access to the Internet itself by using an Internet service provider such as the defendant in RTC. Webbworld did not sell access; it sold adult images.
Also unlike the Defendant in RTC, Webbworld did not function as a passive conduit of unaltered information. Instead, Webbworld functioned primarily as a store, a commercial destination within the Internet. Just as a merchant might re-package and sell merchandise from a wholesaler, so did Webbworld re-package (by deleting text and creating thumbnails) and sell images it obtained from the various newsgroups. In contrast to the defendants in RTC, Webbworld took "affirmative steps to cause the copies to be made." RTC, 907 F.Supp. at 1381. Such steps included using the ScanNews software to troll the Usenet for Webbworld's product.
Webbworld contends that it had no control over the information its software retrieved from the Usenet and no control over the images posted therein. See RTC, 907 F.Supp. at 1372 (finding no liability because the defendant access provider "does not create or control the content of the information available to its subscribers"). On the contrary, Webbworld exercised total dominion over the content of its site and the product it offered its clientele. As a shop owner may choose from what sources he or she contracts to buy merchandise, so, too, did Webbworld have the ability to choose its newsgroup sources. Clearly, a newsgroup named, for example, "alt.sex.playboy" or "alt.mag.playboy" might instantly be perceived as problematic *553 from the standpoint of federal copyright law. Alternatively, Webbworld might simply have refrained from conducting business until it had developed software or a manual system of oversight to prevent, or at least to minimize the possibility of, copyright infringement. In any event, having developed and launched the ScanNews software for commercial use, Webbworld cannot now evade liability by claiming helplessness in the face of its "automatic" operation.
For those reasons, the Court rejects Webbworld's defenses and holds it directly liable for infringing PEI's twenty-nine copyright registrations at issue in trial of this case.
IV. WILLFULNESS
PEI claims that Webbworld's infringement was willful. A defendant acts willfully if he knows his actions constitute an infringement; the actions need not have been malicious. Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 236 (5th Cir.1988). The practical significance of the issue of willfulness is to increase the amount of statutory damages available to a plaintiff up to $100,000 per infringement. 17 U.S.C. § 504(c)(2).
At trial, PEI offered evidence of certain images downloaded from the Webbworld site that infringed five of its copyright registrations. See Exhs. 5, 6. These images appeared on Netpics and were downloaded by PEI after Webbworld was on notice, by way of a temporary restraining order issued by this Court, that its site contained infringing material. Many of the images are instantly recognizable as belonging to PEI because of the trademark phrases or emblems printed on them. Furthermore, the images originated from a newsgroup called "alt.binaries.erotica.centerfolds." The title of that particular newsgroup, though not a PEI trademark, is sufficiently closely associated with PEI magazines to have put Webbworld on notice that the newsgroup potentially contained PEI images. Webbworld continued to carry that newsgroup until the business closed in February 1997.
Defendant Ives, president of Webbworld, testified at trial that anyone would have known that most of the images at issue belonged to PEI. Ives further testified that he knew that the "centerfolds" newsgroup contained infringing images and that he did not take any steps to prevent its use.
Defendants Ives and Ellis also testified, however, that the infringements were innocent. They maintained that identification and elimination of all PEI images was impossible and therefore that no infringement might be termed "willful."
The Court disagrees. Elimination by manual monitoring would have been difficult and expensive, but not impossible, particularly for images as obviously infringing as the ones at issue here. The evidence shows that Webbworld implemented substantial effort to combat the infringement. Notwithstanding its "compliance program," Webbworld chose to continue to copy from a newsgroup that essentially advertised by its "centerfolds" name that it carried PEI images. After it was on notice of infringement, Webbworld chose to stay in business without implementing a system that would reliably delete even such obvious transgressions. Such an action constitutes willful infringement. See Broadcast Music, Inc., 855 F.2d at 236 (holding that a music vendor's choice to stay in business and thereby to continue to infringe copyrighted music was patently willful). For the five copyright registrations infringed by the many images Webbworld copied from the "centerfolds" newsgroup after the TRO was entered in this case, the Court makes a finding of willfulness.
V. VICARIOUS INFRINGEMENT
PEI claims that each of the individual Defendants should be held vicariously liable for Webbworld's infringement. Participants in copyright infringement are jointly and severally liable as tortfeasors. Swallow Turn v. Wilson, 831 F. Supp. 575, 579 (E.D.Tex.1993). To show vicarious liability, a plaintiff must prove that a defendant (1) has a direct financial interest in the infringing activity, and (2) has the right and ability to supervise the activity which causes the infringement. Id. As with direct copyright infringement, intent or knowledge of the infringement is not an element of a claim for *554 vicarious liability. Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560, 565 (S.D.N.Y. 1995). "Innocence," therefore, is no defense. Swallow Turn Music, 831 F.Supp. at 578-79.
On summary judgment in this case, Judge Saffels held Defendants Ellis and Ives vicariously liable for the sixty-two direct infringements decided at that time. See Webbworld, 968 F.Supp. at 1177. Nothing in the evidence adduced at trial argues against holding these two similarly liable for the remaining infringements. Ellis testified that he had full control of the day-to-operations of the Netpics site throughout the relevant time period. Furthermore, he created and controlled operation of the ScanNews software that was the heart of the Webbworld enterprise, and he chose which newsgroups would serve as sources of material. In return, Ellis collected 50% of Webbworld's net profits. Ellis is vicariously liable for the infringements in this case.
Defendant Ives, until late January 1997, owned 100% of the outstanding Webbworld shares of stock and was Webbworld's president and director. He handled most of the legal and financial aspects of the business. Ives testified at trial that he had no involvement in the day-to-day operations of the business. He kept his full-time position with the United States Postal Service and devoted only about 20 hours per week to Webbworld. He viewed the Netpics site only a "couple of times" per week, typically when a change was made or a question raised. His testimony, corroborated by Defendant Gurkin, was that operational decisions were made only by consensus and that Ives did not and did not believe he had the authority to give orders to Ellis regarding operation of the business. Ives testified that he could "make suggestions" but could not control Ellis.
The reluctance of Ives to exercise his authority is not determinative of the issue. Courts that have examined the issue of vicarious liability have focused not on actual exercise of control but rather on the "right and ability" to exercise control. E.g., Softel, Inc. v. Dragon Medical and Scientific Comms., Inc., 118 F.3d 955, 959 (2d Cir.1997) (defining vicarious liability as the "right and ability to supervise [that] coalesce[d] with an obvious and direct financial interest in the exploitation of copyrighted materials") (citations omitted); Swallow Turn Music, 831 F.Supp. at 578-79 (defining liability as the "right and ability" to exercise control) (and cases cited therein). In this case, Ives's ownership of 100% of the business and his position, therefore, as Ellis's employer, invested him with supervisory authority over all Webbworld operations, including the infringing activities. Even though he declined to exercise such authority, his right and ability to exercise it is sufficient for vicarious liability to attach.
It is undisputed that Ives received a significant and direct financial reward of 25% of Webbworld net profits for his efforts. Accordingly, Ives, along with Ellis, is vicariously liable for each of the remaining infringements at issue in this case.
The analysis with regard to Defendant Gurkin reaches a different result. Gurkin, who formerly worked for the United States Postal service and owned a security agency, contributed start-up capital to Webbworld. He derived significant financial benefit from the business in the form of 25% of the net income. With regard to establishing the requisite supervisory authority over the infringing activity, however, PEI has not met its burden as to Gurkin.
Gurkin worked as Webbworld's customer service representative, spending approximately 3-5 hours per day fielding and responding to subscribers' e-mail. Although the parties have stipulated that Gurkin, along with Ellis and Ives, "had the right, authority and ability to control the operations of the Netpics website," the Court finds that Gurkin did not have authority or supervision over the actual infringing activities. He was not a Webbworld shareholder until the very end of the company's existence. Gurkin testified that he had no access to the ScanNews software. Moreover, PEI did not connect him to any decision-making ability regarding which newsgroups the site used as sources of material. Accordingly, the Court finds that Gurkin should not be held vicariously liable for any of the infringements.
*555 VI. TRADEMARK INFRINGEMENT
PEI is the undisputed owner of valid federal trademark and service mark registrations, including PLAYBOY®, PLAYMATE®, the RABBIT HEAD DESIGN®, and PLAYBOY'S PLAYMATE REVIEW®.[1] In this case, PEI claims that Webbworld has infringed those trademarks. The Court disagrees.
Under section 1114(1) of Title 15, United States Code, any person who uses in commerce an imitation of a registered mark, without the registrant's consent and in a way that is likely to cause confusion, is liable for trademark infringement. Likelihood of confusion is, therefore, the touchstone of trademark infringement. Soc. of Financial Examiners v. Nat'l Ass'n of Certified Fraud Examiners, Inc., 41 F.3d 223, 225 (5th Cir.), cert. denied, 515 U.S. 1103, 115 S. Ct. 2247, 132 L. Ed. 2d 255 (1995).
In the Fifth Circuit, likelihood of confusion is determined by analysis of the following "seven digits":
(a) the type of trademark at issue (i.e., the "strength" or distinctiveness of the mark);
(b) similarity of the trademark and the accused term or design;
(c) similarity of the products or services;
(d) identity of retail outlets and purchasers;
(e) identity of advertising media used;
(f) the defendant's intent; and
(g) actual confusion.
Id. at 228 n. 10.
A court must "evaluate the weight to be accorded the individual factors" and then make its ultimate decision thereon. AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1538 (11th Cir.1986), cert. denied, 481 U.S. 1041, 107 S. Ct. 1983, 95 L. Ed. 2d 822 (1987). These "seven digits" are not elements of a plaintiff's cause of action, but instead comprise a non-exhaustive collection of considerations that may be relevant to the ultimate factual determination. Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 150 (5th Cir.1985). The absence or presence of any one factor ordinarily is not dispositive; indeed, a finding of likelihood of confusion need not be supported by even a majority of the seven factors. Id. With these precepts in mind, the Court turns to an analysis of the evidence presented at trial of this case.
In the pre-trial order, the parties here have stipulated that the Playboy marks are "famous." Several courts, too, have recognized that PEI's marks are both strong and valuable. E.g., Playboy Enterprises, Inc. v. Chuckleberry Pub., Inc., 687 F.2d 563, 566 (2d Cir.1982); Frena, 839 F.Supp. at 1560-61. This Court agrees with the reasoning of the Frena court that the Playboy trademarks are distinctive and should be afforded a high degree of protection. See id. at 1559-60.
Nevertheless, the Court finds no significant likelihood of confusion to be present in this case. PEI presents no evidence of actual confusion by Webbworld subscribers or others. See Moore Business Forms, Inc. v. Ryu, 960 F.2d 486, 491 (5th Cir.1992) ("Evidence of actual confusion is often the best evidence of likelihood of confusion."); Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 263 (5th Cir.) (holding that actual confusion, though not required, is the best evidence supporting trademark infringement), cert. denied, 449 U.S. 899, 101 S. Ct. 268, 66 L. Ed. 2d 129 (1980); see also World Carpets, Inc. v. Dick Littrell's New World Carpets, 438 F.2d 482, 489 (5th Cir.1971). More significantly, the Court finds that any confusion would be unreasonable here. The number of images found at any one time on the Netpics site was between 50,000 and 80,000. Defendant Ives testified credibly that images infringing PEI copyrights comprised less than 1% of that total number. Of the infringed copyrighted images introduced as evidence at trial, the percentage bearing a PEI trademark *556 or service mark is even smaller.[2] Accordingly, the effect of PEI's marks on the overall tenor of the Webbworld site is, in the Court's view, de minimis.
Ironically, PEI established at trial that its "purchasers" are not the same as Webbworld's. PEI witness Gene Snyder testified he found primarily hard-core pornography on Webbworld's site. Robert Perkins, executive vice-president of PEI in charge of marketing, testified at trial that the vast majority of PEI customers are decidedly not consumers of pornography. Accordingly, the fourth digit weighs against confusion.
Finally, the Court agrees that the Webbworld home page is unequivocal in its purpose and affiliation, or lack thereof:
"Cyberporn on the Internet!?"
It's really out there, hundreds of Mega-Bytes of uncensorable new pictures from around the world every day! It's buried in so-called USENET news "articles." But it's very time consuming and requires lots of technical knowledge to find, download, decode, and view pictures from USENET news articles ... Now you don't have to put up with it anymore. Netpics has done all of the work for you; we've found the newsgroups, we comb them for pictures, and we present them to you right here, on the Web (or via FTP). All you have to do is sit back and click!
Exh. 7 (boldface and emphasis in original). The origin of Webbworld is clear; its lack of sponsorship by PEI is equally apparent. The weight of the credible evidence shows that Defendant's intent was neither to infringe PEI's trademarks nor to generate confusion. The presence of PEI's marks was, moreover, incidental and even irrelevant to the product that Webbworld offered and its subscribers bought. Cf. Universal Money Centers, Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1533-34 (10th Cir.1994) (affirming the trial court's finding of no likelihood of confusion where evidence of actual confusion was de minimis and where presence of allegedly infringing trademark was irrelevant to consumers).
It is true that some of the other "seven digits" are present here. Both PEI and Webbworld are in the business of entertainment publishing, and both publish and advertise on the World Wide Web. The marks found on Netpics are identical to PEI's. See Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500, 505 (5th Cir. 1980) (observing that the greater the similarity between marks, the greater the likelihood of confusion). On the other hand, Webbworld neither had nor used marks of its own to generate confusion. The Netpics marks are not confusingly identical imitations of PEI's marks; they are PEI's marks placed by PEI on its subsequently infringed photographic images. In that event, and in the presence of the other factors discussed above, the facts of this case weigh heavily against likelihood of confusion.
In a similar Internet case involving PEI's trademarks, a Florida district court found trademark infringement to exist. See Frena, 839 F.Supp. at 1560-61. In Frena the defendant was an Internet Bulletin Board Service operator that distributed unauthorized copies of PEI copyrighted photographs. Id. at 1554. After finding copyright infringement, the court also found infringement of the same trademarks at issue in this case. Id. at 1560-61. In the Frena case, the trademarks PLAYBOY® and PLAYMATE® were used to designate files containing the infringing photographs. Id. at 1559. Furthermore, PEI's text was often removed from the photographs and replaced with the defendant's name and telephone number. Id. The Frena court found that the defendant thus falsely suggested an affiliation with PEI. Id. at 1561.
Such is not the case here. Although Webbworld used the corresponding newsgroup name to identify the source of its files, the evidence shows that in only a very few of the 170-180 Usenet sources was a PEI trademark involved. Although other filenames may have referred to PEI publications, e.g., "covers" or "centerfolds," the registered *557 marks are not present. Here, unlike in Frena, there is no evidence that Defendants intended to usurp PEI's goodwill. See id. at 1561. PEI presented no evidence that Webbworld attempted to generate confusion by superimposing its own name on the PEI images, as did the Frena defendant. See id. at 1559. Furthermore, as explained previously, the evidence does not support any suggestion of affiliation or sponsorship of the site by PEI. Cf. id. at 1561 ("It is well established that `falsely suggesting affiliation with the trademark owner in a manner likely to cause confusion as to source of sponsorship constitutes infringement.'") (quoting Burger King v. Mason, 710 F.2d 1480, 1492 (11th Cir.1983), cert. denied, 465 U.S. 1102, 104 S. Ct. 1599, 80 L. Ed. 2d 130 (1984)). Accordingly, the Court holds that on the issue of trademark infringement, Frena is distinguishable from the facts and circumstances of this case.
PEI has not proved by a preponderance of the evidence that Webbworld infringed its trademarks phrases and image. Because there is no direct trademark infringement, PEI's claim of vicarious infringement by the individual Defendants fails as well.
VII. UNFAIR COMPETITION
A. Lanham Act
PEI brings a claim for "unfair competition" under Section 43(a) of the Lanham Act. See 15 U.S.C. § 1125(a).[3] As with trademark infringement, "likelihood of confusion" is the key test for determining whether such a false designation has occurred. Louisiana World Exposition, Inc. v. Logue, 746 F.2d 1033, 1039 (5th Cir.1984). The same "seven digit" test is determinative. See id. For the same reasons as in the preceding section, the court holds that PEI has not proved by a preponderance of the evidence that Defendants should be held liable for unfair competition under the Lanham Act.
B. Texas Common Law
PEI brings a similar claim for unfair competition under Texas common law. Unfair competition relates to "causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters." American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 14 (5th Cir.1974). Under Texas law, unfair competition involves the question "whether the defendant is passing off his goods or services as those of the plaintiff by virtue of a substantial similarity between the two, leading to confusion on the part of potential customers." Volkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474, 478 (5th Cir.1974). The plaintiff need not prove the defendant intended to deceive customers or that customers were in fact deceived. Line Enterprises, Inc. v. Hooks & Matteson, 659 S.W.2d 113, 117 (Tex.Ct.App.1983). Instead, it is sufficient to show that deception will naturally and probably result from the operation or that the public is likely to be deceived or confused. Id.
Under the same evidence discussed above, PEI has not shown unfair competition under Texas law. Neither the testimony nor the exhibits indicate that PEI sponsored, endorsed, or approved the images available on the website. See Jud Plumbing Shop on Wheels v. Jud Plumbing & Heating, Inc., 695 S.W.2d 75, 80-81 (Tex.Ct.App.1985). Nor does any evidence suggest that the Defendants were trying to "pass off" their site or product as belonging to PEI. Defendants are not liable under this formulation of common-law unfair competition.
*558 Unfair competition under Texas law also includes misappropriation of a business opportunity. United States Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 865 S.W.2d 214, 218 (Tex.App. Waco 1993, writ denied). The elements of that cause of action are (1) the creation of plaintiff's product through extensive time, labor, skill, and money; (2) the defendant's use of that product in competition with the plaintiff thereby gaining a special advantage in that competition because defendant is burdened with little or none of the expense incurred by the plaintiff; and (3) commercial damage to the plaintiff. Id. at 218.
In this case, the evidence tends to establish the first element of PEI's claim. With regard to the second element, however, the Court is not persuaded by the evidence at trial that Webbworld obtained any "special advantage" over PEI in business competition.
On the third element, PEI's claim fails conclusively. The testimony of Robert Perkins, PEI's executive vice-president for marketing, is that PEI did not see any drop in sales during the time period in which Webbworld operated. No evidence of relative stock price was offered. No probative evidence of diminution of value of PEI's copyrights was introduced. In short, the Court finds no evidence of actual "commercial damage" to PEI resulting from Webbworld's activities.
For those reasons, PEI has not met its burden to prove a state-law claim for unfair competition.
VIII. DILUTION
Under section 1125(c) of Title 15, United States Code, PEI brings a separate cause of action for "dilution" of its trademarks.[4] The owner of a famous mark may obtain relief under an anti-dilution statute if there is a likelihood of dilution due to (1) "blurring," a diminution in the uniqueness and individuality of the mark; or (2) "tarnishment," an injury resulting from another's use of the mark in a manner that tarnishes or appropriates the goodwill and reputation associated with the plaintiffs mark. See Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1072 (5th Cir.) (discussing the Texas statute), cert. denied, ___ U.S. ___, 118 S. Ct. 299, 139 L. Ed. 2d 231 (1997); see also The Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955, 965-966 (2d Cir.1996); Intermatic, Inc. v. Toeppen, 947 F. Supp. 1227, 40 U.S.P.Q.2d 1412 (N.D.Ill. 1996).
In this case, no probative evidence was presented at trial on the issue of "blurring." Instead, the evidence goes primarily to "tarnishment." PEI employee Gene Snyder testified that PEI images appeared on Netpics in close proximity to what he regards to be hardcore pornography images with "explicit sexual content."[5] Perkins testified that display of PEI images in such an environment serves to diminish the prestige of the marks. PEI's brand image is one of romance and joie de vivre, he testified; PEI's "core promise" to its consumers is that PEI images represent "tasteful nudity" in photography of the highest quality. Perkins opined that if the public were to perceive that PEI had gone into the pornography business, the effect on sales would be disastrous.
On cross-examination, however, Perkins admitted that PEI has a wide channel of *559 distribution that includes adult bookstores. Perkins also admitted that PEI cannot control where and how its publications or centerfolds are displayed by merchants and the public. Furthermore, as the Court has already found, the PEI marks and images had only a de minimis presence on the Netpics site. For these reasons and others previously stated, the Court finds no dilution to have occurred here.
IX. CONTEMPT
Finally, PEI moves for contempt of court against Defendant Ellis for alleged violation of the preliminary injunction in effect in this case. A party commits contempt when he violates a definite and specific order of the court requiring him to perform or to refrain from particular conduct and when he acts with knowledge of the court's order. Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir.1995); Securities and Exchange Comm'n v. First Financial Group of Texas, Inc., 659 F.2d 660, 669 (5th Cir.1981).
In a civil contempt proceeding, the movant bears the burden of establishing the elements of contempt by clear and convincing evidence. Petroleos Mexicanos v. Crawford Enterprises, Inc., 826 F.2d 392, 401 (5th Cir.1987). The "clear and convincing evidence" standard is higher than the "preponderance of the evidence" standard, common in civil cases, but not as high as "beyond a reasonable doubt." United States v. Rizzo, 539 F.2d 458, 465 (5th Cir.1976). In the context of a civil contempt proceeding, clear and convincing evidence is defined as the weight of proof that "produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts." Travelhost, 68 F.3d at 961 (citations omitted).
In this case, Defendant Ellis was restrained by order of January 6, 1997, from "directly or indirectly reproducing, distributing or displaying any computer file or image that is substantially similar to any copyrighted PEI image or photograph." PEI claims that Ellis has violated that proscription by his business relationship with a California company named Yehudi International Network Group, Inc. ("Yehudi").
It is undisputed that in about April 1997, three months after the preliminary injunction was entered, Ellis agreed to sell the Scan News software to Yehudi for $15,000. Before that, a licensing agreement was contemplated between Ellis and Yehudi, pursuant to which Ellis would receive 50% of Yehudi's profits. Furthermore, Ellis received some $20,000 for "consulting services" he performed for Yehudi during that time. Since then, PEI has filed an infringement lawsuit against Yehudi along lines similar to this one. In the California lawsuit, PEI claims that Yehudi began operating the Netpics site after Webbworld's demise under the same name, with the same ScanNews software, and on the same infringing basis. On September 10, 1997, PEI obtained a preliminary injunction against Yehudi based on the alleged Netpics infringements. PEI now claims that Ellis assisted Yehudi in its operations and is thus in violation of the preliminary injunction entered in this case.
At trial, Ellis testified that he did not assist Yehudi in any infringing activities. According to Ellis, his consulting work entailed loading the software, making sure the servers and e-mail were operating correctly, and setting up and backing up the system. He testified that the ScanNews software need not be used to access and copy images from adult newsgroups; rather, the subject matter might be anything from flowers to sound or video clips, depending on how the software is used. Ives indirectly confirmed the possibility of Ellis's innocent participation in that regard by referring to ScanNews as "percussive" software that would require a certain amount of consulting for proper operation regardless how it was used. See Ives Depo.
In his trial testimony, Ellis denied knowledge of Yehudi's activities and denied consulting with a view to reviving the "Netpics" site. Furthermore, he denied involvement with Yehudi's choice of newsgroups. Ellis disavowed any knowledge of the preliminary injunction in place in the California lawsuit. *560 He testified that he ceased consulting for Yehudi and sold them the software outright because Yehudi was not paying him 50% of its net profits as it had agreed to do in return for the ScanNews license. Although Ellis testified that he agreed to license the software to Yehudi under the terms above, the written agreement PEI admitted into evidence was unexecuted. Ellis testified that no signed agreement exists. Ellis Depo.
Based on this evidence, the Court believes it is more likely than not that Ellis violated the preliminary injunction in effect in this case. The standard for contempt, however, is more stringent. See Travelhost, 68 F.3d at 961. Although a preliminary injunction is in effect in the California case, and therefore a finding of PEI's substantial likelihood of success on the merits has been made, no final ruling of infringement has been adjudicated. PEI offers this Court no evidence from which to determine infringement independently. The Court declines to construe Ellis's knowledge and involvement by means of the terms of an unexecuted licensing contract that may or may not reflect Ellis and Yehudi's final agreement. Moreover, PEI offers no fact from which the Court can infer with "clear conviction, without hesitancy" that Ellis's involvement would of necessity have required him to have knowledge of any infringing content of Yehudi's site. Even if the Court could so infer, there is no clear and convincing evidence that Ellis had the requisite right and ability to supervise such infringing activity. Accordingly, PEI has not met its burden of establishing by clear and convincing evidence that Ellis directly or indirectly infringed PEI's images in violation of this Court's preliminary injunction.
X. RELIEF GRANTED
Pursuant to the claims on which PEI has prevailed, PEI asks for relief of statutory damages, a permanent injunction, and attorney's fees. For the reasons that follow, each request is granted.
A. Statutory Damages for Copyright Infringement
PEI has elected to pursue statutory damages for its established claim of copyright infringement. A copyright owner whose copyright has been infringed may, at any time before judgment, elect to recover either actual damages or statutory damages. 17 U.S.C. § 504; see Central Point Software, 903 F.Supp. at 1060-61. If statutory damages are elected, the Court may award any just remedy in an amount ranging from not less than $500 to not more than $20,000 for each copyrighted work found to be infringed. 17 U.S.C. § 504(c); see Central Point Software, 903 F.Supp. at 1061. For the violations the Court has found to be willful, the maximum statutory award is raised to $100,000 per infringement. See id.
Within the range defined by the statutory maximum and minimum, the court has virtually unfettered discretion in setting the damage award. F.W. Woolworth Co. v. Contemporary Arts, 344 U.S. 228, 231, 73 S. Ct. 222, 97 L. Ed. 276 (1952); see Broadcast Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 487-89 (7th Cir.1995) (holding that the standard of review for an award of statutory damages is even more deferential than an abuse of discretion standard) (citing Douglas v. Cunningham, 294 U.S. 207, 210, 55 S. Ct. 365, 79 L. Ed. 862 (1935)). Among the numerous factors considered by the courts in setting statutory damage amounts are the expenses saved and profits reaped by the infringer; the deterrent effect of the award on a defendant and on third parties; and the infringer's state of mind in committing the infringement. See, e.g., Nintendo of America, Inc. v. Dragon Pacific Intern., 40 F.3d 1007, 1011 (9th Cir.1994), cert. denied, 515 U.S. 1107, 115 S. Ct. 2256, 132 L. Ed. 2d 263 (1995); Fitzgerald Pub. Co. v. Baylor Pub. Co., 807 F.2d 1110, 1117 (2nd Cir.1986).
In this case, the evidence shows that in its 9-month existence, Webbworld generated approximately $670,000 after some but not all expenses, and before taxes. According to further testimony from Defendant Ives, Webbworld's net income was between $400,000 and $450,000 for the relevant period. The testimony is not clear to what extent, if at all, appropriating PEI images rather than generating original images served to decrease Webbworld's operating expenses.
*561 The weight of the evidence establishes that even after becoming aware of obvious infringements, Webbworld continued to operate overall at approximately the same pace, and with an increasing clientele, while declining to develop software or an effective manual monitoring plan to eliminate copying of PEI images. A simple reduction in the number of newsgroups covered would have facilitated lawful operation. Under those circumstances, continuing to operate virtually unrestrained showed, at best, reckless disregard of PEI's legal rights.
As a somewhat mitigating factor, the Court finds that Webbworld and its principals attempted to put a "compliance plan" in place after entry of the TRO to reduce the risk of infringement. Some steps were taken to accomplish that goal. Furthermore, the Court finds that the twenty-nine infringements at issue at trial are substantially less identifiable as PEI images than the ones submitted at summary judgment. Specifically, the images do not appear for the most part in proximity to a title, phrase or emblem connecting them to PEI. Accordingly, the Court regards these infringements as more difficult to detect and therefore as somewhat more likely to be "innocent" than the ones at issue in summary judgment.
PEI appears to find great negative significance in that Defendants made a relatively large amount of money for a relatively small investment of capital and time. On the contrary, the Court finds no reason to deter capitalism in the technological or any other arena.
Copyright infringement, however, must not be allowed to serve as the cornerstone of a profitable business. Under all of the circumstances of this case, the Court awards to PEI $1,000 for each of the 29 copyrights at issue at trial. For the 5 infringements found to be willful, the Court awards an additional $20,000 per infringement. Along with the $310,000 awarded at summary judgment, the total amount of statutory damages awarded in this case is $439,000.
B. Permanent Injunction
In addition to damages, PEI asks the Court to enter a permanent injunction. Under the Copyright Act, a court may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. 17 U.S.C. § 502(a). Permanent injunctive relief is "never lightly given." Posada v. Lamb County, Tex., 716 F.2d 1066, 1070 (5th Cir. 1983). To establish entitlement to permanent injunctive relief, a party must demonstrate the following: (1) actual success on the merits; (2) no adequate remedy at law; (3) that the threatened injury outweighs any damage to the defendant; and (4) that the injunction will not disserve the public interest. Caroline T. v. Hudson School Dist., 915 F.2d 752, 755 (1st Cir.1990); Picker Int'l v. Blanton, 756 F. Supp. 971, 978 (N.D.Tex. 1990); see also DSC Comms. Corp. v. DGI Tech., Inc., 81 F.3d 597, 600 (5th Cir.1996) (applying the traditional factors to a preliminary injunction application for copyright infringement).
In this case, PEI has prevailed in its case for copyright infringement. The burden that would be imposed on Defendants merely to refrain from further infringement is light in comparison to the threatened injury to PEI should such infringement occur. Furthermore, the Court finds that the public interest, to the extent it is involved at all in this private business matter, is affirmatively served by requiring continuing, strict adherence to intellectual property law in the relatively uncharted arena of Internet commerce.
It remains to be decided only whether PEI has an adequate remedy at law in this case. To prevail on this issue, PEI must show a significant threat of cognizable injury and that money damages would not fully repair the threatened harm. Humana, Inc. v. Avram A. Jacobson, M.D., P.A., 804 F.2d 1390, 1394 (5th Cir.1986); see Danden Petroleum, Inc. v. Northern Natural Gas Co., 615 F. Supp. 1093, 1099 (N.D.Tex.1985) ("Injuries which can be compensated by money damages at a later time are not irreparable and do not warrant the extraordinary remedy of an injunction.").
In analyzing the evidence in this case, the Court revisits Robert Perkins's testimony *562 that PEI's reputation would be damaged by continued display of PEI images in close conjunction with "hard-core pornography." Although the Court did not find the past harm to have risen to the level of tarnishment required for dilution of trademark under all the circumstances, the evidence is at least probative on the issue of potential harm for which legal remedy is inadequate. See Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1053-56 (5th Cir.1997) (holding potential damage to reputation to constitute irreparable harm). Additionally, the Court finds a strong suggestion that Defendants Webbworld, Ives, and Ellis may not be in a position to provide future monetary relief if required. The assets of Webbworld, its computers and files, have been seized; and the ScanNews software, the heart of Webbworld's business, has been sold to the Yehudi company in California. Of course, these facts may argue equally that no serious danger of recurrent violation exists. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303 (1953) (requiring for permanent injunction that there be "something more than the mere possibility which serves to keep the case alive").
On the other hand, a finding of willful infringement has been made in this case. Defendants have not shrunk from continuing their activities even when put on notice of infringement. See Dream Dealers Music v. Parker, 924 F. Supp. 1146, 1152 (S.D.Ala. 1996) (awarding a permanent injunction against the owner of a broadcast station who "willfully and flagrantly" persisted in infringing conduct). Moreover, Defendant Ellis, who wrote the ScanNews software, is capable of and amenable to re-creating it for the same purpose. See Ives Depo. (noting that Ellis continued to look for a way to profit from the ScanNews software before the sale to Yehudi); Ellis Depo II, at 41 (indicating that as of August 11, 1997, Ellis continues to write Internet-related software).
Under all of these circumstances, PEI has made a sufficient showing of the potential for irreparable harm and the substantial likelihood of further infringement. See Marvin Music Co. v. BHC Ltd. Partnership, 830 F. Supp. 651, 655 (D.Mass.1993) (noting that once liability for copyright infringement has been established, courts generally grant a permanent injunction if there is a substantial likelihood of continuing infringement). By separate order, Defendants Webbworld, Ellis and Ives will be permanently enjoined from infringing PEI's copyrighted images.
C. Attorney's Fees
PEI asks the Court to award its reasonable attorney's fees. Under the Copyright Act, a court may in its discretion award attorney's fees to the prevailing party in a suit for copyright infringement, 17 U.S.C. § 505; see Fogerty v. Fantasy, Inc., 510 U.S. 517, 522, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994). In this Circuit, attorney's fees "should be awarded routinely" to a party prevailing in a claim for copyright infringement. Micromanipulator Co. v. Bough, 779 F.2d 255, 259 (5th Cir.1985); see Meadowgreen Music Co., 789 F.Supp. at 828.
PEI has prevailed on its causes of action for copyright infringement against Webbworld and for vicarious copyright infringement against Defendants Ellis and Ives. Under the circumstances of this case, an award of reasonable and necessary attorney's fees is appropriate.
XI. CONCLUSION
For the reasons set out above, the Court rules as follows. Plaintiff has proved its claim for infringement of twenty-nine copyrights in addition to the sixty-two infringements found on summary judgment. Of those infringements, five were willful. The Court awards statutory damages of $129,000, in addition to the $310,000 awarded at summary judgment. Individual Defendants Ellis and Ives are vicariously liable for all infringements and are therefore jointly and severally liable for the damages awarded.
PEI did not meet its burden of proof at trial for the following claims against Defendants: trademark infringement, indirect trademark infringement, unfair competition, and dilution. PEI did not prove by a preponderance of the evidence that Defendant Gurkin should be held liable for vicarious copyright infringement. On the issue of contempt *563 against Defendant Ellis, PEI similarly did not meet its burden of proof.
PEI's request for a permanent injunction prohibiting future copyright infringement is GRANTED.
PEI's request for reasonable attorney's fees is GRANTED. Counsel for the parties are DIRECTED to confer in an attempt to reach agreement on the amount of such fees. Should agreement be reached, counsel are directed to file the appropriate papers with the Court on or before noon, December 22, 1997. If agreement cannot be reached, PEI is DIRECTED to file its attorney's fees affidavit and brief, applying the factors approved by this Circuit, by the same date. Defendants may file written opposition, if any, on or before noon, December 29, 1997.
PEI is DIRECTED to prepare a Final Judgment, which shall include a permanent injunction, consistent with this Memorandum Opinion and Order. PEI is further DIRECTED to confer with Defendants as to form of the proposed judgment and to file it with the Court on or before noon, December 22, 1997.
SO ORDERED.
NOTES
[1] At issue are Registration Numbers 643,926 (trademark RABBIT HEAD DESIGN for monthly magazines); 1,971,523 (service mark RABBIT HEAD DESIGN for on-line magazines in the entertainment field); 600,018 (trademark PLAYBOY for monthly magazines); 1,691,469 (trademark PLAYBOY'S PLAYMATE REVIEW for magazines); 1,733,661 (service mark PLAYBOY'S for entertainment services); and 721,987 (trademark PLAYMATE for calendars).
[2] The number of images submitted at summary judgment bearing PEI trademarks or service marks is higher than those in evidence at trial. Still, the overall effect in light of the huge number of images on the Netpics site is insignificant.
[3] 15 U.S.C. § 1125(a) provides:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
[4] Section 1125c of Title 15, United States Code, provides: "The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection."
[5] PEI also contends that its images were displayed in close proximity to child pornography, for which the individual Defendants were allegedly arrested in February 1997. PEI presents no evidence, however, of child pornography appearing on the Netpics site, which is the sole alleged source of infringement in this case. Webbworld computers were used for other pursuits associated with adult images that were not affiliated with the Netpics site. See Ellis Depo. Because the child pornography charges might just as easily have stemmed from one of the other pursuits, PEI has not proved that any child pornography appeared on the Netpics site in conjunction with PEI images. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551264/ | 86 B.R. 1016 (1988)
In re BELLMAN FARMS, INC., Case No. 384-00017,
and
Charles Jarl Bellman, Case No. 382-00053, Debtors.
Bankruptcy Nos. 384-00017, 382-00053.
United States Bankruptcy Court, D. South Dakota.
June 24, 1988.
*1017 Robert M. Ronayne, P.C., Aberdeen, S.D., for Federal Land Bank of Omaha.
William J. Pfeiffer, Aberdeen, S.D., for Bellman Farms, Inc., and Charles Jarl Bellman.
MEMORANDUM DECISION
PEDER K. ECKER, Chief Judge.
This matter is before the Court on the objection of The Federal Land Bank of Omaha (FLB-O) to confirmation of the debtors' Chapter 12 plan. The debtors' plan stated that the FLB-O's first mortgage on real estate belonging to Bellman Farms, Inc., was subject to the county's priority claim for real estate taxes. FLB-O objected to this reduction in the amount of its secured claim, claiming that the taxes should be treated as an unsecured post-petition administrative claim.
The debtors have a long history in this Bankruptcy Court. Bellman Farms, Inc., filed its first Chapter 11 bankruptcy petition on December 1, 1981. That bankruptcy *1018 case was dismissed on February 29, 1984. The individual debtor, Charles Jarl Bellman, filed a Chapter 11 petition on June 23, 1982. Bellman Farms, Inc., filed the present Chapter 11 petition on March 13, 1984. The corporation's second Chapter 11 case and that of the individual debtor are the cases presently consolidated for joint administration.
In December, 1987, this Bankruptcy Court entered its order converting the consolidated cases to Chapter 12. In the debtors' proposed Chapter 12 plan of reorganization, the secured claim of the FLB-O in 960 acres of real estate, owned by Bellman Farms, Inc., was reduced by the amount of real estate taxes, including interest and costs, due for the years 1981 through 1987. The FLB-O objected to this treatment of its secured claim, alleging that the taxes accrued post-petition and should be treated as an administrative claim, not as a lien with priority over the FLB-O's allowed secured claim.
Through pre-confirmation negotiation, the debtors and the FLB-O stipulated that the fair market value of the 960 acres of real estate, in which the FLB-O had a first mortgage, was $139,000. They also agreed that the total amount of taxes, interest, and advertising costs was $24,458.74, as of February 29, 1988 (March 1, 1988, was the effective date of the plan):
Real Estate Taxes
Interest/
Advertising
Year Principal Costs[*] Total
1981 $ 2,523.98 $2,087.68 $ 4,611.66
1982 2,312.96 1,543.93 3,856.89
1983 2,562.20 1,325.96 3,888.16
1984 2,362.10 868.11 3,230.21
1985 2,482.60 539.99 3,022.59
1986 2,896.05 209.99 3,106.04
1987 2,743.19 -0- 2,743.19
__________ _________ __________
Totals $17,583.06 $6,575.66 $24,458.74
On February 12, 1988, the debtors' plan was confirmed, reserving for later determination by this Court the question of the extent and amount of taxes, interest, and costs, if any, to be subtracted from the fair market value of the land, in order to determine the amount of the FLB-O's allowed secured claim. The Court finds that the matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L).
Issue: Whether the amount of real estate taxes due and owing should be deducted from the fair market value of the real property to determine the allowed amount of the FLB-O's secured claim, if the taxes are due and owing for the years 1981 through 1987.
Discussion: The debtors and the FLB-O seek a determination of the value of the FLB-O's secured claim in the Bellman Farms, Inc., bankruptcy case. This determination is governed by 11 U.S.C. § 506(a), which provides:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest, . . . is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, . . . and is an unsecured claim to the extent that the value of such creditor's interest . . . is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
There are three sources of limitation on the extent of a creditor's secured claim:
1) the allowed amount of the claim,
2) the value of the interest of the estate in the collateral, and
3) the value of the interest of the creditor in such interest of the estate.
3 Collier on Bankruptcy ¶ 506.04[1] at 506-16 (15th ed. 1988). The allowed amount of the claim generally is determined pursuant to 11 U.S.C. § 502. Id. The "value of the interest of the estate in the collateral" usually is the fair market value of the property, unless the debtor is a less-than-fee owner. See id. at 506-17, -18. In the present case, the parties agree on the allowed amount of the claim and the fair market value of the real property. Bellman Farms, Inc., also appears to own the real property in fee. The parties disagree, however, on the "value of the interest of the creditor" in the property.
*1019 The value of the creditor's interest in the collateral may be less than the fair market value of the collateral. Id. First, the amount of debt secured by any senior liens must be deducted from the value of the estate's interest in the collateral to determine the value of the creditor's secured claim. Id.; see also Matter of Moellenbeck, 83 B.R. 630, 632 (Bankr.S.D. Iowa 1988); In re Courtright, 57 B.R. 495, 498 (Bankr.D.Or.1986). Second, when an actual sale of the property is contemplated, the liquidation costs also must be deducted from the value of the estate's interest in the collateral. See In re Gerhardt, 88 B.R. 151(Bankr.S.D.Ohio 1987). But if the debtor remains in possession of the collateral, these hypothetical costs should not be deducted from the value of the collateral. See 11 U.S.C. § 506(a) (". . . value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property . . ."); see also Gerhardt, 1987 Bankr. Lexis at 1913; Courtright, 57 B.R. at 497; In re Cohen, 13 B.R. 350, 353 (Bankr.E.D.N.Y.1981). In the present case, no sale of the real estate is contemplated and, thus, the extent of the FLB-O's secured claim would be limited only by any senior liens, including property tax liens.
In the matter at issue, the amount of real estate taxes will reduce the FLB-O's secured claim, if the county taxing authority has a prior, perfected lien for the payment of these taxes. Contrary to the debtors' contention, the county must have a lien on the property for the payment of the taxes, because the creditor's secured claim can only be reduced by prior, secured claims. See In re Richardson, 82 B.R. 872, 873-74 (Bankr.S.D.Ohio 1987) (the amounts of the first and second mortgages must be subtracted from the value of property to determine the value against which a junior judicial lien could be asserted); In re Mitchell, 75 B.R. 593, 597 (Bankr.E.D.Pa. 1987) (the fair market value of the collateral must be reduced by prior city liens to determine the amount of the junior creditor's secured claim); In re Fluharty, 7 B.R. 677, 679 (Bankr.N.D.Ohio 1980) (the amounts of three prior mortgages must be subtracted from the value of the collateral to determine the value remaining for the satisfaction of junior judicial liens). State law determines whether a lien is properly perfected. In the Matter of Higgins, 304 F. Supp. 108, 110 (D.S.D.1969). Nonbankruptcy law also determines the priority of competing liens. In re Darnell, 834 F.2d 1263, 1269 (6th Cir.1987). Therefore, South Dakota law must be examined to determine if the county has any prior, perfected real estate tax liens on the 960 acres belonging to Bellman Farms, Inc.
The South Dakota statutes authorizing counties to assess, levy, and perfect real estate tax liens are found in Title 10 of the South Dakota Codified Laws. All real property subject to taxation shall be listed and assessed annually during the first six months of each year. S.D.C.L. § 10-6-2 (1982). Tax levies then are made by the county in September of each year. S.D.C.L. § 10-12-8 (Supp.1987). After the taxes are levied, the county auditor makes out a tax list for each assessment district. S.D.C.L. § 10-17-1 (1982). The auditor attaches to each tax list his warrant, requiring the county treasurer to collect the taxes levied. S.D.C.L. § 10-17-8 (1982). The tax lists then are delivered on or before the first day of January to the county treasurer for collection. S.D.C.L. § 10-17-7 (Supp.1987). On the first day of January, the taxes assessed for the previous year become due and owing and also become a lien upon the real property. S.D.C.L. § 10-19-1 (1982); see also Salvation Army v. Barnett, 80 S.D. 379, 382, 124 N.W.2d 365, 367 (1963). The tax lien that is created by virtue of S.D.C.L. § 10-9-1 is superior to all other liens except those liens in favor of the United States and the State of South Dakota. See S.D.C.L. § 10-19-2 (Supp.1987); see also Hughes County v. Henry, 48 S.D. 98, 104, 202 N.W. 286, 288 (1925), citing Miller v. Anderson, 1 S.D. 539, 543, 47 N.W. 957, 959 (1891). It is quite clear from the South Dakota statutes and case law that real estate tax liens do not arise and become superior liens until the time the taxes become due and owing, *1020 on January 1 following the year of assessment. See Lininger v. Black Hills Greyhound Racing Ass'n, 82 S.D. 507, 512, 149 N.W.2d 413, 416 (1967); Salvation Army, 80 S.D. at 382, 124 N.W.2d at 367.
No further steps, acts, or proceedings by the county are necessary to perfect the tax lien against the owner, prior encumbrancers, or subsequent lienors. Title 10 does not require the filing of a notice, certificate, or statement by the county. In contrast, mechanic's liens shall cease after 120 days unless a statement is filed with the county register of deeds or with the secretary of state. See S.D.C.L. § 44-9-15 (1983). In addition, federal tax liens on real property must be perfected by filing a notice in the office of the register of deeds of the county in which the real property, subject to the federal tax lien, is situated. S.D.C.L. § 44-7-1 (1983); see also 26 U.S.C. § 6321 (notice of federal tax lien on real property must be filed in an appropriate state office). But South Dakota law provides no procedure by which the county must perfect its real property tax lien on January 1, other than the delivery of the tax list to the county treasurer with the attached warrant of the county auditor. There is no indication here that the list was not delivered, with the appropriate warrant. Consequently, the tax lien, as provided in S.D.C.L. § 10-19-1, arises and is perfected automatically on that date.
In the instant case, debtor Bellman Farms, Inc., filed its first Chapter 11 bankruptcy petition on December 1, 1981. It appears that no tax liens existed against the 960 acres on that date. The 1981 property taxes had been assessed and levied, but did not become due and owing until January 1, 1982.
The filing of the Bellman Farms, Inc., petition created an automatic stay preventing the creation and perfection of any property tax liens. Pursuant to 11 U.S.C. § 362(a)(4), the filing of a bankruptcy petition operates as a stay of "any act to create, perfect, or enforce any lien against property of the estate. . . ." 11 U.S.C. § 362(a)(4). It is well established that this provision blocks the creation or perfection of a tax lien.[1]See In the Matter of Ballentine Bros., Inc., 86 B.R. 198 (Bankr.D. Neb.1988); In re Cummings Market, Inc., 53 B.R. 224, 225 (Bankr.D.Vt.1985); In re Carlisle Court, Inc., 36 B.R. 209, 214 (Bankr.D.D.C.1983). As a result, the county taxing authority was prevented from creating and perfecting a lien for unpaid property taxes for the years 1981, 1982, and 1983, throughout the pendency of the first Bellman Farms, Inc., Chapter 11 proceeding.
On February 29, 1984, the first Bellman Farms, Inc., Chapter 11 case was dismissed. The automatic stay of Section 362 was instantly lifted upon dismissal of the case. See 11 U.S.C. § 362(c)(2)(B); see also Norton v. Hoxie State Bank, 61 B.R. 258, 260 (D.Kan.1986); In re Carter, 74 B.R. 613, 617 (Bankr.E.D.Pa.1987); In re Johnson, 24 B.R. 832, 833 (Bankr.E.D.Pa.1982). At the time the case was dismissed, nothing prevented the lien of S.D.C.L. § 10-19-1 from attaching to the Bellman Farms, Inc., real property, and no affirmative acts were needed to perfect this lien against the FLB-O. The lien arises and is perfected by operation of law, but for the automatic stay, and, thus, Faulk County immediately, upon dismissal of the bankruptcy case, had a prior, perfected lien on the real property in question for unpaid real estate taxes from 1981, 1982, and 1983.
On March 13, 1984, debtor Bellman Farms, Inc., filed its second Chapter 11 bankruptcy petition. In this second case, the county taxing authority had a perfected lien for unpaid taxes from 1981 through 1983. But the filing of the second petition reinstated the automatic stay, preventing the creation and perfection of future tax liens. A lien could not arise for taxes due and owing for 1984, 1985, 1986, and 1987. Therefore, Faulk County is unsecured for the taxes due and owing during the pendency of this second bankruptcy proceeding.
*1021 Based on the above analysis, the amount of real estate taxes for 1981, 1982, and 1983, secured by the county's lien, will be deducted from the fair market value of the 960 acres, in order to determine the amount of the FLB-O's junior secured claim. Pursuant to 11 U.S.C. § 506(b), the county, as an oversecured lien creditor, is entitled to recover interest and costs on its secured claim. See In re Brandenburg, 71 B.R. 719 (Bankr.D.S.D.1987). Therefore, the interest and costs accruing on the 1981, 1982, and 1983 taxes until the effective date of the plan also are deducted from the fair market value of the real property. See In re Krump, No. 87-10230, slip op. at 8-10 (Bankr.D.S.D. June 7, 1988) (Hoyt, J.).
On the other hand, the amount of taxes due and owing for 1984, 1985, 1986, and 1987 is not deducted from the fair market value of the real property. The county does not have a secured claim for this amount because of the automatic stay, and, therefore, it is not a proper deduction in a Section 506(a) determination. This unsecured claim for Faulk County real estate taxes is governed by either 11 U.S.C. § 503(b)(1)(B)(i), as an administrative expense entitled to first priority of payment pursuant to 11 U.S.C. § 507(a)(1), or by 11 U.S.C. § 507(a)(7)(B), as a seventh priority claim. See Carlisle Court, 36 B.R. at 214-18. The issues of the proper classification and treatment of these post-petition taxes, and of the related interest and costs, however, are not properly before this Court. The present decision is limited to a determination of the allowed amount of the FLB-O's secured claim.
The debtors argued that the post-petition real estate taxes were a "reasonable, necessary cost and expense of preserving the estate" and they should recover the amount of the taxes from the value of the real property under 11 U.S.C. § 506(c). That section provides that "[t]he trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim." 11 U.S.C. § 506(c). Administrative expenses generally may not be charged against secured collateral. In re Cascade Hydraulics & Util. Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The payment of administrative expenses, however, will be allowed from the value of secured collateral when those expenses were incurred directly for the benefit of a secured creditor or when the secured creditor caused or consented to the expense. See id.; Brookfield Production Credit Ass'n v. Borron, 738 F.2d 951, 952 (8th Cir.1984); In the Matter of Trim-X, Inc., 695 F.2d 296, 301 (7th Cir.1982). The debtor-in-possession must show in quantifiable terms that it expended funds directly to protect and preserve the collateral. Cascade, 815 F.2d at 548; Brookfield, 738 F.2d at 952-53.
The debtors in this case have failed to specify how the FLB-O is directly benefited by the debtors' payment of post-petition unsecured real property taxes. "Preserving" the collateral implies that the debtor-in-possession was keeping the property safe from harm or destruction, or was maintaining it for some direct benefit to the FLB-O. Any "harm" to the real property could only have come from a lien of the county taxing authority, which would reduce the secured claim of the FLB-O. The county, however, was stayed from pursuing its remedies, including the creation and perfection of tax liens against the real property. Therefore, the FLB-O does not directly benefit by the payment of this unsecured claim, which is normally an administrative expense in the bankruptcy. See 11 U.S.C. § 503(b)(1)(B)(i).
The debtors also argued that the Farm Credit System would be required to take into account the amount of real estate taxes in determining the amount of debt to be restructured under the Agricultural Credit Act of 1987, Pub.L. No. 100-233, 101 Stat. 1568 (to be codified in scattered sections of 12 U.S.C.). Pursuant to the loan restructuring provisions of this act, the lender determines whether or not to restructure the loan, taking into consideration, among other factors, whether the cost to the lender of restructuring the loan *1022 is equal to or less than the cost of foreclosure. See id. at Section 4.14A(d)(1)(A) (to be codified at 12 U.S.C. § 2202a). This provision does not mandate the restructuring of the debt at the liquidation value of the collateral. It is only a threshold analysis to determine whether restructuring is economically feasible. Cf. In re Dilsaver, 86 B.R. 1010 (Bankr.D.Neb.1988) (restructuring will be required if that is the least-cost alternative, that is, if it will produce more return to the lender than foreclosure). In fact, no provision of the Agricultural Credit Act sets forth a calculation for the amount of the restructured debt. Thus, debtors' argument is not accurate and is irrelevant to a determination of the creditor's allowed secured claim pursuant to 11 U.S.C. § 506(a).
Accordingly, the above and foregoing hereby constitute the Court's findings of fact and conclusions of law in the above-entitled matter pursuant to Bankr.R.P. 7052 and 9014 and Fed.R.Civ.P. 52. Counsel for the debtors is directed to submit an appropriate order in accordance with Bankr.R.P. 9021.
NOTES
[*] Calculated through February 29, 1988.
[1] 11 U.S.C. §§ 362(b)(3) and 546(b) provide an exception to this general rule that is irrelevant to the final determination in this case. See Ballentine Bros., Inc., 86 B.R. 198; In re New England Carpet Co., Inc., 26 B.R. 934, 939 (Bankr.D.Vt.1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565444/ | 433 S.W.2d 229 (1968)
Billy MAXWELL, Appellant,
v.
ESTATE of James M. BANKSTON, W. O. Bankston, Executor, Appellee.
No. 7900.
Court of Civil Appeals of Texas, Texarkana.
September 24, 1968.
Rehearing Denied October 29, 1968.
*230 Henry Stollenwerck, Biggers, Baker, Lloyd & Carver, Dallas, for appellant.
Charles O. Shields, Anderson, Henley, Shields, Bradford & Pritchard, Dallas, for appellee.
FANNING, Justice.
A summary judgment case. Appellant sued upon an oral agreement evidenced by a written memorandum. The written memorandum, on the letterhead of a firm of accountants, signed by one of its members, Ralph A. Rouse, C.P.A., and also signed by James M. Bankston, dated May 10, 1963, and addressed to appellant Billy Maxwell, reads in part as follows:
"Dear Mr. Maxwell:
"At the request of Mr. Bankston, I am writing this letter confirming the amount due as shown on the books and records of Red Bankston Motors, Inc., and my understanding of the agreement between you and Mr. Bankston.
"As of the last audit, January 31, 1962, the books of Red Bankston Motors, Inc. shows an amount of $3,025.00 due to you.
"It is my understanding that Mr. Bankston guaranteed you a 100% return for the use of this money, or a total of $6,050.00 to be paid in cash or other satisfactory consideration from the A. V. Morrison land deal.
Yours truly,
/s/ RALPH A. ROUSE
Ralph A. Rouse
/s/ JAMES M. BANKSTON
James M. Bankston"
James M. Bankston died; his executor paid appellant Maxwell the sum of $3,025.00 prior to appellant's suit against Bankston's estate and executor for an additional $3,025.00. Defendant defended upon the ground of usury. Both parties filed motions for summary judgment. The trial court, after considering the pleadings, the second motions for summary judgment of the parties, affidavits, defendant's request for admissions and responses thereto, answer to interrogatories, and the stipulations made by the parties, denied in part and granted in part said second motions for summary judgment. The effect of the trial court's judgment was to deny plaintiff-appellant recovery for the $3,025.00 sued for but to grant plaintiff-appellant judgment against defendant-appellee for the sum of $363.00 as 6% interest on $3,025.00 for two years, and costs were taxed against defendant-appellee. Plaintiff-appellant has appealed.
Appellant presents one point on appeal as follows: "The trial court erred in granting the judgment denying appellant full recovery for $3,025.00 together with interest, for the reason that the contract was a fully enforceable contract and not prohibited by any statute or public policy of this state."
Appellee in his brief contends to the effect that the contract in question was *231 usurious and that the trial court correctly sustained appellee's motion for summary judgment denying appellant recovery of $3,025.00 in addition to the $3,025.00 principal which principal had been paid to appellant by the estate. Appellee does not complain of the award of $363.00 interest against it and costs, and appellee seeks an affirmance of the judgment of the trial court.
From the record made before the trial court the following matters are clearly shown: James M. Bankston received and retained for about two years the sum of $3,025.00 from Billy Maxwell, and guaranteed Maxwell "a 100% return for the use of this money or a total of $6,050.00 to be paid in cash or other satisfactory consideration from the A. V. Morrison land deal", as stated in the above quoted written memorandum; that later the Morrison land was sold; Maxwell made demand for payment of $6,050.00, and James M. Bankston having died, W. O. Bankston, Independent Executor of the Estate of James M. Bankston, paid the sum of $3,025.00 as repayment of the principal and denied the balance of the claim on the grounds that the contract was usurious. It is also clear from the record that Maxwell owned no interest in the A. V. Morrison land either at the time Bankston received the $3,025.00 from Maxwell or thereafter, and it is also clear that Maxwell was not in any character of joint venture with Bankston with reference to the Morrison land.
The Texas constitutional and statutory provisions relating to usury are referred to and summarized in 58 Tex.Jur.2d, Usury, § 2, p. 64-65, as follows:
"§ 2. Constitutional and statutory provisions.
"Under authority granted by the constitution, the legislature has enacted statutory provisions classifying loans and lenders and fixing maximum rates of interest in certain instances. The Texas Regulatory Loan Act provides with certain exceptions, for the licensing and regulation of persons and legal entities making consumer loans with cash advances of a certain prescribed sum or less, and fixing the maximum rate of interest and other charges that may be contracted for and received by the licensees. The maximum rate of interest authorized is set forth by a comprehensive schedule, depending, in general, on the amount and term of the loan. Except where otherwise specifically provided by the legislature, as in the Texas Regulatory Loan Act, the parties to any written contract are authorized by statute to agree to and stipulate for any rate of interest not exceeding ten per cent per annum on the amount of the contract. The constitution, however, provides that in the absence of legislation fixing maximum rates of interest all contracts for a greater rate of interest than ten per cent per annum are to be deemed usurious; and in contracts where no rate of interest is agreed upon, the rate may not exceed six per cent per annum. This provision of the constitution applies to all contracts, whether written, oral, or both.
"Penalties are prescribed by the statutes, which contemplate forfeiture of the interest charged, forfeiture of both principal and interest charged and fine and imprisonment, or payment to the debtor of double the amount of interest charged and attorney's fees, on action by the debtor."
In determining the question of usury all devices are disregarded, and whenever the courts are satisfied that there is a charge contracted for, merely for the use of money, in excess of that allowed by law as interest, they treat it as usurious, though usury may be covered under the guise of some additional and different consideration. See 58 Tex.Jur.2d, Usury, § 9, p. 73-6 and authorities therein cited.
Appellant contends to the effect that the contract was not usurious because the *232 contract does not show an understanding between the parties that the principal shall be repayable absolutely. Also, stated in other words, appellant contends to the effect that usury can not be predicated on a transaction whereby the repayment rests upon a contingency. Appellant cites only three cases in its brief, which are listed below.[1]
When money is advanced to enable one to engage in a business venture with the understanding that the advance and an added amount are to be returned, there is a loan; and the added amount is interest which may not exceed the statutory maximum. See 58 Tex.Jur.2d, Usury, § 14, p. 82, and authorities therein cited.
In Campbell v. Oskey, 239 S.W. 332 (Tex.Civ.App.1922, no writ), plaintiff alleged he borrowed $750.00 from the defendant to purchase some diamonds, agreeing to repay defendant $1,050.00, and sued for $600.00 by reason of usurious interest paid to defendant. We quote from the court's opinion in Campbell, supra, in part as follows:
"`The essential elements of a usurious contract consist of a loan with the understanding that the money loaned is to be returned, and that a greater rate of interest is paid than the statute allows. Whether this be done directly or indirectly or whatever may be the form or phase the contract assumes, is altogether immaterial.'
"In Jackson v. Cassidy, 68 Tex. 282, 4 S.W. 541, it was said:
"`In the ordinary affairs of life, money advanced upon such securities, with the understanding that both principal and interest may be collected by realizing upon the securities, is considered a loan. A debt is created; otherwise the party advancing the money has no right to recover principal together with interest on the amount advanced. Having the full effect of a loan, it must be treated as such, considered in reference to our usury laws, otherwise the few features of the transaction which give it a different appearance would furnish a devise by which these laws might be evaded altogether.'
"The evidence quoted shows an absolute obligation upon the part of Oskey to repay the $750 advanced to him by Campbell with the additional sum of $300. It matters not how the parties considered the matter. The controlling fact is that the evidence shows an agreement to repay the principal with an additional $300 for the use of the same. This, under the statute and decisions construing the same, is a usurious agreement.
"The appellant's position is thus summarized by him in his reply to the motion for rehearing:
"`Before "usury" in the legal significance of the term is established, the following elements and essentials must be proved by a preponderance of credible evidence:
"`1. A loan of money, as distinguished from an advance of working capital.
`2. An agreement between the parties that the principal shall be paid absolutely.
`3. The exaction of a greater compensation than allowed by law for the use of the money by the borrower, as such.
`4. The intention to violate the usury law.
`The absence of any one of these elements conclusively refutes the claim that the parties have been guilty of usurious practice.'
*233 "Tested by the rule relied upon by appellant, the evidence in our opinion conclusively evidences a loan as distinguished from an advance of working capital to a joint adventure, because there was an absolute agreement between the parties that the principal was to be repaid. As to the third element insisted upon by appellant, plainly the additional $300 was the compensation agreed upon for the `use' of the money.
"As to the intention to violate the usury law, the contract speaks for itself. The intent is apparent. See Bank of United States v. Waggener, 9 Pet. 378, 400, 9 L. Ed. 163, 171, where it is said:
"`Where, indeed, the contract upon its very face imports usury, as by an express reservation of more than legal interest, there is no room for presumption, for the intent is apparent; res ipsa loquitur.'"
We construe the written memorandum-agreement above quoted as revealing a clearly usurious contract wherein Maxwell and Bankston agreed that the principal of $3,025.00 was to be paid absolutely and $3,025.00 additional was to be paid "for the use of this money".
We think the three cases cited by appellant in his brief are clearly distinguishable from the facts in the case at bar. Korth, supra (73 S.W.2d 1048), cited by appellant is distinguishable because there was no agreement that the principal should be absolutely paid to the lender, and the evidence also showed that Korth was to receive the land in the event the land was not sold and the contract in Korth was, in fact, a joint venture in which the parties pooled their resources of making a profit. Pansy Oil Co., supra (91 S.W.2d 453), cited by appellant, is distinguishable because the repayment of the amount advanced was contingent on an oil well being drilled and also on the well producing oil in a certain quantity. Ragland, supra (245 S.W.2d 368), cited by appellant, we think is not in point with the facts in this case and is clearly distinguishable.
In Pickrell v. Alpha Pipe & Steel Co., Inc., 406 S.W.2d 956, (Tex.Civ.App.1966, wr. ref., n.r.e.), a borrower sued a lender upon an alleged usurious contract because of interest paid for the use and detention of money. The lender loaned $5,700.00 and collected $6,700.00 in less than one year. The court sustained a summary judgment for the borrower and in its opinion observed that under Rule 166A, Tex.R.Civ.P., the court should enter a summary judgment in a usury case if the proper evidence was present, and the court further observed that the question of intent became a question of law in that case by virtue of the summary judgment record showing that the lender had collected for more than 10% interest for the use of his money and cited in support thereof the case of Moser v. John F. Buckner & Sons, 292 S.W.2d 668 (Tex.Civ.App.1956, wr. ref., n.r.e.). We quote from the court's opinion in Pickrell, supra, in part as follows:
"There is no probative evidence that he had any interest in the steel business, and as stated above, his own testimony by deposition upon questioning of his own attorney stated appellee was going to use the money appellant loaned him to buy steel in Houston and build his (appellee's) business in Lubbock.
"Appellant cites some other cases which involved collateral or side agreements which took the transactions out of usury but no such situations are shown in the record here.
"It is true the note shows upon its face ten per cent interest, but: `The transaction is to be tested by its substance, not its form, and, if from all the facts its essence is found to be the receiving or contracting for a greater rate of interest than is allowed by law, the statutory consequences must be visited upon it.' Independent Lumber Co. v. Gulf State Bank, Tex.Civ.App., 299 S.W. 939 (Writ ref.).
"It has also been stated: `Parties cannot by entering into a form of contract *234 valid and free from the taint of usury on its face under the cloak of such form violate our usury law without incurring its penalty.' Commercial Securities Co. v. Rea, Tex.Civ.App., 78 S.W.2d 707, affirmed 130 Tex. 11, 105 S.W. 872.
"A study of this record forces one to the conclusion, regardless of which party instigated the transactions, that they constituted loans which were usurious and that the trial court properly visited upon appellant the statutory consequences thereof."
We hold that under the record in this case the judgment of the trial court should be affirmed. Appellant's point is overruled.
The judgment of the trial court is affirmed.
NOTES
[1] Korth v. Tumlinson, 73 S.W.2d 1048 (Tex.Civ.App.1934, no writ); Pansy Oil Co. v. Federal Oil Co., 91 S.W.2d 453 (Tex.Civ.App.1936, writ refused); Ragland v. Short, 245 S.W.2d 368 (Tex.Civ. App.1951, mand. overr.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1633482/ | 586 S.W.2d 849 (1979)
Marshall G. COCHRAN, Petitioner,
v.
AMERICAN SAVINGS AND LOAN ASSOCIATION OF HOUSTON, Respondent.
No. B-7892.
Supreme Court of Texas.
July 11, 1979.
Rehearing Denied October 17, 1979.
*850 Reynolds, Allen & Cook, Stanley B. Binion, Houston, for petitioner.
Butler, Binion, Rice, Cook & Knapp, Jonathan S. Day and William J. Moran, Houston, for respondent.
ON MOTION FOR REHEARING
PER CURIAM.
This is a usury action in which Marshall Cochran sued American Savings and Loan Association seeking to recover statutory penalties under Texas Revised Civil Statutes Annotated article 5069-1.06. American Savings denied the allegations of usury and counterclaimed for a deficiency judgment. After a jury trial, the court rendered judgment that Cochran take nothing and American Savings recover its deficiency. The court of civil appeals reversed the judgment and remanded the cause to the trial court in its entirety in the interest of justice. 568 S.W.2d 672.
We agree with the holding of the court of civil appeals that the jury's responses to the issues concerning American's intent to obtain interest in excess of ten percent are immaterial. Intent in usury cases does not mean intent to charge a usurious rate of interest. Rather, it means intent to make the bargain made. Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ. App.Fort Worth 1977), aff'd as modified, First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex.1978). The subjective intent of the lender is irrelevant if, in fact, the lender has contracted for, charged or received interest on a loan in excess of the maximum permitted by law. To avoid the penalties imposed by article 5069-1.06, the lender is required to plead, prove, and obtain a finding that his contract for, charge or receipt of usury was a result of accidental and bona fide error.
Having found error in the trial court judgment, the court of civil appeals is authorized, in a proper case, under Rule 434, Texas Rules of Civil Procedure, to remand the cause in the interest of justice. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Scott v. Liebman, 404 S.W.2d 288 (Tex. 1966). Rule 434, however, further provides "if it appears to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error ...."
This cause of action was submitted to the jury on fifty-four special issues involving both the usury allegations raised by Cochran and fraud/misrepresentation allegations raised by American Savings. The error asserted on appeal involves issues which concern only the usury allegations raised by Cochran. We view the usury issues as clearly separable from the fraud/misrepresentation issues. The trial upon remand should not include a retrial of the fraud issues which have already once been fairly tried.
Pursuant to Rule 483, Texas Rules of Civil Procedure, we grant Cochran's application for writ of error on motion for rehearing and, without hearing oral argument, reform the judgment of the court of civil appeals to remand the cause to the trial court for a retrial of the issues other than the fraud issues. As reformed, the judgment of the court of civil appeals is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2244353/ | 62 Cal. App. 4th 808 (1998)
In re NINFA S., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
v.
RUBEN S., Defendant and Appellant.
Docket No. D029325.
Court of Appeals of California, Fourth District, Division One.
March 4, 1998.
*809 COUNSEL
Mary Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Kathryn E. Krug, Deputy County Counsel, for Plaintiff and Respondent.
Thomas E. Nagle, under appointment by the Court of Appeal, for Minor.
OPINION
McDONALD, J.
Ruben S. (Ruben) appeals the order terminating his parental rights entered after a Welfare and Institutions Code[1] section 366.26 hearing (the .26 hearing). Ruben argues the trial court abused its discretion by denying his request for a continuance of the .26 hearing to permit the completion of paternity testing, and that by preventing him from establishing his paternity he was deprived of his due process right to participate in the .26 hearing.
*810 I. Factual and Procedural Background
In June 1996 Ninfa S. was declared a dependent after the court entered true findings on a petition alleging jurisdiction under section 300, subdivision (b). At the dispositional hearing the court found Ruben was the "natural alleged father" and gave Ruben 60 days within which to show he was a "presumed father."
From July 1996 through April 1997, Ruben had no contact with Ninfa, made no effort to prove presumed father status, and did not complete paternity testing. After two continuances, the six-month review hearing was held in April 1997. The court terminated reunification services and referred the case to the.26 hearing. This court affirmed that order. (Ruben S. v. Superior Court (July 29, 1997) D028510 [nonpub. opn.].)
The department of social services' assessment report filed at the .26 hearing stated Ruben had not seen Ninfa since she was placed in foster care and had made no efforts to develop a relationship with her. The report also stated Ninfa was adoptable, 40 to 50 homes were available for a child like her, and her foster parents wished to adopt her.
At the .26 hearing Ruben's counsel stated Ruben had finally completed the blood draw necessary for paternity testing. He requested a 25-day continuance of the .26 hearing to allow Ninfa's blood draw and to complete the paternity test. The court denied the continuance. It found that Ninfa would likely be adopted if parental rights were terminated, that none of the statutory exceptions to termination of parental rights applied, and that adoption was in Ninfa's best interests. The court terminated parental rights. Ruben appeals.
II. The Trial Court Did Not Abuse Its Discretion by Denying the Continuance, Because Establishment of Genetic Linkage Would Have Provided No Information Relevant to the Issues Adjudicated at the.26 Hearing
(1) Ruben argues it was error for the court to deny his request for a continuance of the .26 hearing. Section 352 provides that a continuance shall be granted only on a showing of good cause and shall not be granted if it is contrary to the minor's best interests. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).) Continuances are discouraged (Jeff M. v. Superior Court (1997) 56 Cal. App. 4th 1238, 1242 *811 [66 Cal. Rptr. 2d 343]) and we reverse an order denying a continuance only on a showing of an abuse of discretion (In re Gerald J. (1991) 1 Cal. App. 4th 1180, 1187 [2 Cal. Rptr. 2d 569]).
The only basis of the requested continuance was Ruben's wish to establish his genetic link to Ninfa. However, Ruben does not explain how this information would have been relevant to any issue decided at the .26 hearing. A .26 hearing is concerned only with a long-term placement plan for the child, the preferred alternative being adoption and termination of parental rights. The court first decides whether it is likely the child will be adopted if parental rights are terminated. If so, the court examines whether termination of parental rights will be detrimental to the minor based on four enumerated circumstances. "[T]here is no window of evidentiary opportunity for a parent to show that in some general way the `interests' of the child will be fostered by an order based on some consideration not set forth in section 366.26." (In re Jennifer J. (1992) 8 Cal. App. 4th 1080, 1090 [10 Cal. Rptr. 2d 813].)
Here, genetics is irrelevant to either the likelihood of Ninfa's adoption or any of the four enumerated exceptions which might make termination of parental rights detrimental to Ninfa. Because further delay of the hearing would have interfered with Ninfa's need for prompt resolution of her custody status and her right to a permanent placement, and the sole reason asserted for continuing the hearing was to adduce information irrelevant to the pending proceeding, the court did not abuse its discretion by denying the continuance.
III. Ruben's Due Process Claim Is Without Merit
Ruben argues that because he was prevented from establishing his biological paternity he was denied standing in these proceedings; denial of standing to contest termination of parental rights, he argues, is a violation of his due process rights. However, a biological father's rights are limited to establishing his right to "presumed" father status, and the court does not err by terminating a biological father's parental rights when he has had the opportunity to show presumed father status and has not done so. (In re Spencer W. (1996) 48 Cal. App. 4th 1647, 1652-1655 [56 Cal. Rptr. 2d 524].)
Ruben makes no claim that he was denied the opportunity to show his entitlement to presumed father status. He instead argues that by precluding the completion of paternity testing the court deprived him of his right to know if he was Ninfa's father, and also deprived Ninfa of her right to know, and perhaps develop ties to, her paternal heritage and relatives. *812 In In re Jasmine J. (1996) 46 Cal. App. 4th 1802 [54 Cal. Rptr. 2d 560], a biological father who had not attained presumed father status was denied a contested .26 hearing at which his parental rights were terminated. (Id. at pp. 1805-1806.) He argued his rights were violated because he could have shown at the .26 hearing that the minor's best interests would have been served by placement with a biological relative. The court rejected his claim because he had no standing to assert that the minor's best interests would be better served by placement with relatives. (Id. at pp. 1806-1808.) Similarly, Ruben has no standing to assert that Ninfa's rights were violated by the court's order terminating Ruben's parental rights.
Ruben's argument is at bottom a claim that he had the right to know whether he and Ninfa were biologically related. However, because this information was not germane to any issue decided at the .26 hearing and would not have conferred on Ruben any additional rights to notice of or opportunity for a hearing, the denial of the continuance did not deprive him of any due process right.
DISPOSITION
The order is affirmed.
Kremer, P.J., and Huffman, J., concurred.
Appellant's petition for review by the Supreme Court was denied May 13, 1998.
NOTES
[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8326571/ | Kern, Leila R., J.
The Commonwealth of Massachusetts has petitioned this court to commit the respondent, Edward C. Puopolo, as a sexually dangerous person under G.L.c. 123A. A probable cause hearing was conducted on April 20, 2011, as required under G.L.c. 123A, § 12(c). At the hearing the Commonwealth called one expert witness, Dr. Gregg Belle, and the respondent called Dr. Carol Ball as an expert witness.
Having considered the testimony at the probable cause hearing and the 14 exhibits offered into evidence at that hearing, this court finds there is probable cause to believe Puopolo is a sexually dangerous person as defined in G.L.c. 123A, §1, and orders that he be committed to the Treatment Center for a period not to exceed sixty days for the purpose of examination and diagnosis by two qualified examiners.
DISCUSSION
In Commonwealth v. Bruno, the Supreme Judicial Court defined the “sufficient showing” that permits a court to temporarily detain a respondent who is scheduled to be released from prison as probable cause to believe that the respondent is a sexually dangerous person within the meaning of the statute. 432 Mass. 489, 510-11 (2000). The Court in Bruno also determined that the standard for a “probable cause” hearing under G.L.c. 123A, § 12(c) is not the probable cause standard to arrest, but rather the “directed verdict” standard used in probable cause bind-over hearings under G.L.c. 276, §38. Id. at 510.
In Commonwealth v. Reese, the Supreme Judicial Court declared how hearing judges should implement this standard in § 12(c) hearings:
[T]he decision-making process ought to consist of a two-part inquiry, one quantitative and the other qualitative. “The judge must be satisfied, first, that the Commonwealth’s admissible evidence, if believed, satisfie[s] all of the elements of proof neces*612sary to prove the Commonwealth’s case. Second, she must be satisfied that the evidence on each of the elements is not so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof.”
438 Mass. 519, 524 (2003), quoting Commonwealth v. Blanchette, 54 Mass.App.Ct. 165, 175 (2002). The Commonwealth must furnish expert testimony to meet this “directed verdict” standard. Bruno, 432 Mass. at 511. However, the hearing judge, “in assessing the credibility of expert witnesses," is to “act with even more restraint than a judge assessing the credibility of Commonwealth witnesses in the context of a bind-over hearing,” because expert witnesses “will not yet have access to the most important sources of information in the case at the time they are called to testify . . .” Reese, 438 Mass. at 523-24.
In order for Puopolo to be declared a sexually dangerous person, the Commonwealth needs to prove three elements beyond a reasonable doubt, that:
(1) Puopolo has been convicted of a “sexual offense,” as that term is defined under the law;
(2) he suffers from a mental abnormality or personality disorder; and
(3) the mental abnormality or personality disorder makes him likely to engage in further sexual offenses if not confined to a secure facility.
There is no dispute that Puopolo has been previously convicted of a “sexual offense” on more than one occasion. Therefore this court’s focus turns to the two disputed elements.
Mental Abnormality or Personality Disorder
The Commonwealth’s expert, Dr. Gregg Belle, testified that, in his opinion, Puopolo suffers from a mental abnormality—pedophilia. A mental abnormality is defined in the law as a “congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” G.L.c. 123A, §1. The congenital or acquired condition must be “a compulsive, obsessive, or other mental condition that renders [Puopolo] likely to continue to commit sexual offenses in the future.” Dutil, petitioner, 437 Mass. 9, 15 (2002). “While this condition may often correlate with one or more clinically defined mental illnesses, the statute does not require express proof of a clinically defined mental illness, nor does the Constitution require that it do so.” Id., citing Kansas v. Hendricks, 521 U.S. 346, 359 (1997).
Here, Dr. Belle testified that, based upon Puopolo’s predicate offenses of sexually assaulting his stepson as well as two prepubescent girls who were students in his language classes, while he was sexually active with his wife, Puopolo suffered from pedophilia. Dr. Belle testified that the diagnostic criteria for pedophilia, as set forth in the DSM IV -TR include;
A. Over a period of at least six months, recurrent, intense sexual arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age 13 or younger).
B. The person has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
C. The person is at least 16 and at least 5 years older than the child or children in criterion A above.
Between 1984 and 1987, Puopolo sexually assaulted his stepson two to three times a week. During this period (1986), he also sexually assaulted two prepubescent females in his speech and language class. His offenses included exposing himself, fondling, and forced oral sex. Dr. Belle found noteworthy that these offenses occurred during a period of time when his son was born indicating his sexual activity with his wife. Based on the finding that his victims were both male and female children and he had peer age relationships as well, Dr. Belle placed Puopolo in a subtype of pedophilia called “non-exclusive.”1
This court does not find Dr. Belle’s finding of a mental abnormality to be “so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof’ on this element. Reese, 438 Mass. at 524, quoting Blanchette, 54 Mass.App.Ct. at 175.
Likelihood to Re-Offend if not Confined to a Secure Facility
As to the third criterion of the likelihood of re-offending if not placed in a secure facility, Dr. Belle testified that this criterion was also met. After analyzing both static and dynamic factors, Dr. Belle relied on the following bases for his conclusion: multiple child victims; male victim; unrelated victims; non-contact sex offense; and, failure to complete treatment. Also, Puopolo abused his authority as a step-parent and teacher to facilitate this offending.
Additionally concerning to Dr. Belle was Puopolo’s preying upon vulnerable victims. In prison he was disciplined for having sexually explicit mail correspondence with an underage female. While his actions were not criminal, they indicated poor judgment and lack of control in preying upon a vulnerable minor who had indicated to Puopolo that she had been previously sexually abused.
There is no dispute that Puopolo takes no responsibility for any of his sexual offenses and in all cases believes he was the one who was “set-up,” coerced into pleading guilty, etc. Further, he sees nothing wrong with his correspondence with the minor and insists he was just answering her questions although the content of the letters indicates otherwise.
*613There also is no dispute that Puopolo scores in the low to moderate risk range on the STATIC 99. The experts do not agree, however, upon the weight of that in assessing the probability of Puopolo re-offending. Dr. Belle concluded that Puopolo’s score was an underestimate as it is with all pedophiles. This is similar to the effect of respondent’s age alone.
While Dr. Ball reported many protective factors available to Puopolo upon his release, Dr. Belle concluded these would not, in fact, serve as protective factors in this case. Dr. Belle concluded that Puopolo “would remain an untreated pedophile and would be learning no interventions to mitigate his risk for sexual offending . . . Pedophilia is a chronic and enduring condition, and there is no cure for the disorder. This is especially the case with male victims. While pedo-philic interest might persist throughout the adult lifecycle, with treatment, pedophiles can learn how to manage and contain these deviant drives. Presently, this would not be the case with Mr. Puopolo.”
Dr. Belle also testified that Puopolo’s mental abnormality makes him likely to re-offend if not confined to a secure facility. Dr. Belle acknowledged that according to the actuarial tool commonly used in the prediction of sexual recidivism—the Static 99—Puopolo fell into the moderate to low risk category; still he opined that Puopolo was likely to sexually re-offend. “ ‘Likely’ indicates more than a mere propensity or possibility,” but need not meet “the statistical probability inherent in a definition such as ‘more likely than not’ . . .” Commonwealth v. Boucher, 438 Mass. 274, 277 (2002).
As commonly used and understood, “likely” is a word that encompasses a range of probabilities depending on the specific context in which it is used. We conclude that something is “likely” if it is reasonably to be expected in the context of the particular facts and circumstances at hand.
In assessing the risk of re-offending, it is for the fact finder to determine what is “likely.” Such a determination must be made on a case-by-case basis, by analyzing a number of factors, including the seriousness of the threatened harm, the relative certainty of the anticipated harm, and the possibility of successful intervention to prevent that harm.
Id. at 276.
Given this court’s required restraint in assessing the Commonwealth’s expert at this stage of the proceedings and the legal definition of “likely,” this court finds Dr. Belle’s opinion that Puopolo is likely sexually to re-offend to be credible, substantial, and of such a quality that a reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof on this element. Reese, 438 Mass. at 524.
ORDER
This court finds there is probable cause to believe that Edward Puopolo is a sexually dangerous person as defined in G.L.c. 123A, §1. Puopolo is to be committed to the Treatment Center for a period not to exceed sixty days for the purpose of examination and diagnosis by two qualified examiners.
Dr. Ball relied upon the results of her administration of the Abel Assessment Screen to Puopolo to reinforce her conclusion that the respondent is not a pedophile. The results of that screen indicated “Mr. Puopolo is a heterosexual man, with no deviant interest in children.” | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2602127/ | 199 P.3d 411 (2009)
STATE
v.
MOORE.
No. 81979-3.
Supreme Court of Washington, Department II.
January 7, 2009.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2602047/ | 45 Cal. 4th 577 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
ERIC WAYNE BENNETT, Defendant and Appellant.
No. S058472.
Supreme Court of California.
January 29, 2009.
*582 Tamara P. Holland, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly Wilkens and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MORENO, J.
A jury convicted defendant Eric Wayne Bennett of the first degree murder (Pen. Code, § 187, subd. (a))[1] of Marie Powell Evans and found two special circumstances to be truethat the murder was committed while engaged in the commission of rape (§ 190.2, former subd. (a)(17)(iii)) and burglary (id., former subd. (a)(17)(vii)). The jury also convicted defendant of several crimes related to his assault of Pamela B., including forcible oral copulation (§ 288a, subd. (c)), rape (§ 261, subd. (a)(2)), first degree robbery within an inhabited dwelling (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)), and first degree burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 461, subd. 1). The jury found that defendant personally used a knife when he committed the crimes against Pamela B. (§ 12022, subd. (b).) The jury returned a death verdict. The trial court sentenced defendant to death on the murder count and imposed and stayed a determinate term of 15 years four months for the crimes against Pamela B. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment.
*583 I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution's Case
a. Crimes Committed Against Pamela B.
In mid-September 1994, defendant installed flooring at the Costa Mesa home of Mary Beth Baughman. Shortly thereafter, defendant signed a rental contract for an adjoining unit and he, his wife, and two children moved in. Pamela B. lived alone in a small apartment directly behind Baughman's unit with a driveway separating her unit from defendant's.
On September 27, about 10:00 p.m., Pamela B. was home alone watching television in her bedroom. As it was a warm evening, Pamela B. had her front door, which opened into her bedroom, open with the screen door closed and latched. Pamela B. saw defendant standing outside on her front porch.[2] She watched him bend over, take his shirt off and wrap it around his head and face "ninja style" so that only his eyes were uncovered. Defendant then charged through the door with a four-inch knife in his hand. Wearing only a pair of black shorts, defendant charged at Pamela B. and pinned her down on top of the bed. Holding the knife to Pamela B.'s neck, defendant told her that he would not hurt her and that he only wanted her money. Pamela B. screamed.
Baughman was inside her living room and heard the scream. She walked out onto her patio and yelled across the fence, "Pam, are you all right?" Baughman thought she heard a response, but could not understand what Pamela B. had said so she called out again. Defendant still had a knife to Pamela B.'s neck and said, "Shit. Tell her you're okay." Pamela B. did so and Baughman did not come any nearer.
Defendant again told Pamela B. that he wanted her money. Afraid defendant would harm her if she did not comply, she told him where her purse was. Defendant stayed within a foot of Pamela B. while she retrieved her purse and got her money out of it. After defendant took her money, he got upset and asked for the "rest of it." Pamela B. told him that was all she had and defendant rolled the money up and put it in his shorts. The shirt began to fall from defendant's face and, as he tightened it back up, defendant warned Pamela B. not to look at his face. "If you look at my face, I've got to hurt you."
*584 Defendant told Pamela B. he was not done and directed her to get facedown on the bed. Defendant got behind her, put his left arm under her abdomen and pulled her up on her hands and knees. Defendant rubbed her breasts and hips and rubbed his penis against her body. Defendant had a partial erection that he lost when he heard a car drive by. Defendant became angry and said, "Now, you got to suck it." Although terrified, Pamela B. refused. Defendant told her he would not hurt her, pushed her head onto his penis, and then insulted her about the manner in which she was orally copulating him. After defendant obtained an erection, he pulled Pamela B. to her hands and knees, got behind her, threw her nightgown over her head, and put his penis into her vagina.
After defendant ejaculated, Pamela B. ran out the front door. She ran outside her gate and turned left, near her car. Defendant gave chase and cornered Pamela B. by her car. He lunged at her, causing her to scream, at which point defendant ran away. Pamela B. lost sight of defendant.
Pamela B. ran to Baughman's unit and banged on her back door. After Baughman opened the door, Pamela B. entered and called 911. City of Costa Mesa Police Officer Mitchell Johnson responded within minutes. Officer Johnson did not see any cars leave the area and felt that the suspect must still be nearby. He quickly searched the area and set up a perimeter within a block of the location. When Officer Johnson met with Pamela B., she was "borderline hysterical" and crying. After calming her down, Officer Johnson was able to obtain a statement after which he took Pamela B. to the hospital for a sexual assault examination.
While Officer Johnson was obtaining a statement from Pamela B. at the apartment, Baughman was outside and saw defendant. Defendant asked what the police activity was about. Defendant said he had been sleeping on the sofa with his baby and the lights woke him up. Baughman told defendant she would rather not say. Defendant was insistent and, after he inquired several more times, Baughman told defendant Pamela B. had been raped. Defendant said that was terrible and left.
A sexual assault examination showed Pamela B. had suffered an abrasion near her vaginal opening and that there was sperm present in the secretions from her vagina. DNA was extracted from the semen.
After the rape, Pamela B. was in physical pain, could not move her right thumb for a week, and had a large bruise on the side of her thigh. She never slept at her apartment again and moved out at the end of October.
*585 b. Evans's Murder[3]
On September 27, 1994, the same day defendant assaulted Pamela B., he installed flooring at Marie Powell Evans's new townhouse in Laguna Hills.
On October 13, Evans went to the home of her daughter and son-in-law, Christine and John Hougan, to bring her son-in-law a birthday present. Evans had a dark leather purse with her. Evans left their home around 8:30 p.m. Around 11:00 a.m. the next morning, Christine received a phone call from Evans's boss, who told her that her mother had not shown up for work that morning, which was highly unusual. The Hougans worked for the City of Newport Beach Police Department, Christine as a police dispatcher and John as a police officer. Christine called someone from work and requested her mother's license plate be run to see if there had been a reported traffic accident. Upon discovering that there was no report of an accident involving Christine's mother, the Hougans went to Evans's house.
They entered Evans's patio area and saw that the window screen was off the kitchen window. John Hougan noticed that dust on the windowsill had been disturbed and a plant had been knocked over into the sink leading him to think someone had crawled in through the window. Upon closer inspection, he observed a large amount of blood and a pillowcase on the kitchen floor. He took his wife back to the car and had her wait while he retrieved his gun and returned to the house. John entered the house through the front door, which was closed, but unlocked. There was a bloody bare footprint on the entryway throw rug that was facing downward toward the stairs. John then went downstairs and, when halfway down, saw Evans's seminaked body on the floor of the bathroom. After checking the other bedrooms to see if anyone was in the house, he phoned 911.
A rear sliding glass door leading into the master bedroom was found open with the screen door closed; the screen had a cut from top to bottom, leaving an opening large enough for a person to walk through. There was blood on the bed in the master bedroom and signs of a struggle, including a porcelain clock that had been knocked over. In the bathroom next to the master bedroom, Evans was lying on her back with her robe pulled up over her chest. There was blood on the bathroom door, floor, and wall. There was a bloody footprint next to the body and a wet towel, a television, and a pillow on top of Evans's head. The television's cord was plugged into a socket in the master bedroom and the television was still on.
There was a bloody footprint in the kitchen and another at the top of the stairs facing downwards, along with some potting soil. In the living room, *586 there were shelves holding several glass decanters. On one of the shelves, there was a ring-shaped impression in the dust as if something had been taken. On the kitchen counter there was a notepad with the name Eric (the same as defendant's first name) and a phone number, later determined to be defendant's, written on it. Missing from the house were Evans's purse and a glass decanter.
An autopsy showed Evans had suffered multiple major injuries. The autopsy determined she died as a result of bruising to her brain due to blunt force trauma. There were pattern marks on her face between the left eye and ear consistent with a blow from a heavy, patterned object. There were multiple skull fractures and tears in Evans's scalp. Her hands had skin breakage, lacerations, swelling and discoloration, which may have been from an attempt to ward off a blow. There were also marks in Evans's vaginal area that could have been injuries.
A sexual assault examination recovered sperm from Evans's anal, perianal, and perivaginal areas as well as her vagina. Sperm was also found on the bedsheets in the master bedroom. DNA was extracted from the sperm.
c. Defendant's Arrest
Defendant did not return to his job after October 14. On October 18, aware that he had installed carpet in Evans's home, the police obtained defendant's fingerprints in an effort to exclude him as a suspect in the murder. Shortly afterwards, defendant and his wife moved out of his apartment without notifying his landlord that he would be moving.
For reasons not explained to the jury at the guilt phase, defendant was arrested on an unrelated charge by the San Diego County Sheriff's Department. While in custody, defendant's blood was drawn by a nurse and his DNA was compared to DNA recovered from the two crime scenes and found to match. The probability of a random match with semen and blood recovered from Pamela B. and her home was 1 in 1.2 billion within the general population. The probability of a random match with semen recovered from Evans's body was 1 in 17 million within the general population. The probability of a random match with semen recovered from Evans's bedsheets was one in seven million within the general population.
Defendant was arrested on October 31. The prosecutor presented the case to a grand jury, which returned an indictment on January 11, 1995.
2. Defense Case
At a live lineup two and a half months after the attack, Pamela B. was unable to pick defendant as the person who assaulted her. She instead picked *587 another man out of the lineup as the person most resembling her attacker. Nor could she make an in-court identification of defendant as the man who assaulted her. She described her attacker to the police as having a dark complexion, possibly black, with dark brown eyes while defendant had blond-to-brown hair and blue eyes. Defendant presented evidence that none of the fingerprints that were taken at Evans's house matched his. Defendant also challenged the reliability of the DNA evidence and the probability estimates given by the prosecutor's DNA experts.
B. Penalty Phase
1. Prosecution's Case
The prosecution's case in aggravation consisted of two witnesses: Alice Ware, Evans's 82-year-old mother, and Christine Hougan. They described the impact Evans's death had on them. Additionally, Hougan testified about the impact it had on her to be present when her mother's body was found and Ware testified about finding out about Evans's murder over the phone from Hougan.
2. Defendant's Case
The defense presented testimony about defendant's childhood. He was raised as a Jehovah's Witness, although he stopped attending church on a regular basis when he was a teenager and began using drugs. There was testimony of a family history of alcohol and drug abuse. Defendant himself had a significant problem with alcohol and drugs throughout his life. He was diagnosed in grade school as dyslexic. Defendant ultimately dropped out prior to completing high school.
Defendant's cousin testified that, when she was 11 or 12 years old and defendant was four or five years old, she was taking care of him and gave him a bath. She dried him off and then tried, unsuccessfully, to have sexual intercourse with him. After this incident, defendant engaged in other instances of inappropriate, precocious sexual behavior.
Defendant married Karen Bennett, his second marriage, in December 1991. They had a child together and she had a child from a previous relationship that defendant treated as his own. She testified that she still loved defendant and did not want to see him executed. She also testified that defendant was a good father to their two boys and she wanted him to continue his relationship with the children. Karen Bennett also testified that their marriage had been rocky at times due to, among other things, defendant's drug use. She testified that she demanded or asked defendant to commit to stopping his drug use.
*588 Dr. Nancy Kaser-Boyd, a clinical psychologist, testified defendant had expressed guilt about his crimes and the effect his crimes had on his family and the families of the victims. She also testified that defendant exhibited risk factors for acting out sexually. Among the factors were his sexual molestation at the hands of his cousin; defendant's drug use; his dyslexia and attention deficit hyperactive disorder; and his dysfunctional family. Dr. Kaser-Boyd also testified extensively about the relationship between defendant and his stepson, opining that the child was attached to defendant and identified defendant as his father.
Defendant conceded that he had raped Pamela B. and killed Evans and presented evidence of his remorse. While he was in custody after his October 31 arrest, he returned to the Jehovah's Witness faith. Within weeks of his arrest, he confessed to his wife that he had killed Evans and raped Pamela B. and told her he wanted to plead guilty to spare those involved the pain of a trial. He cried and said he was sorry to her, their children, his parents, and the families of the victims. Defendant subsequently told his mother the same thing. He also expressed a desire to plead guilty to his attorneys but they, together with his family, sought to convince him to proceed to trial. Defendant's wife and her grandmother contacted James Waltz, an attorney and a Jehovah's Witness, and asked him to talk to defendant about whether to plead guilty. Defendant told Waltz that he wanted to plead guilty, but Waltz told defendant to cooperate with his attorneys. Rick Wentworth, an elder in the Jehovah's Witness church, testified that he had visited defendant in jail numerous times and that they had engaged in Bible study and talked about family. Jenks Janes, a Jehovah's Witness and recovering addict, testified he took defendant to an Alcoholics Anonymous meeting in August or September 1994. Janes testified that defendant sincerely desired to change his lifestyle and overcome his addiction to drugs.
II. DISCUSSION
A. Pretrial and Guilt Phase Issues
1. Failure to Record Portions of Grand Jury Proceedings
The district attorney sought an indictment from the grand jury. Defendant contends critical portions of the grand jury proceedings were not recorded, thereby violating state law and the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, defendant argues reversal is required because of the failure to record the superior court's interview of prospective grand jurors and an alleged meeting between the prosecutor and the grand jury. We disagree.
(1) At the time of defendant's trial, section 190.9 required that, "[i]n any case in which a death sentence may be imposed, all proceedings conducted in *589 the . . . superior courts . . . shall be conducted on the record with a court reporter present." (Stats. 1993, ch. 1016, § 3, p. 5739.) Defendant cites Dustin v. Superior Court (2002) 99 Cal. App. 4th 1311, 1321-1323 [122 Cal. Rptr. 2d 176] for the proposition that section 190.9 applies as well to grand jury proceedings in capital cases.
While the federal Constitution does not require that all proceedings be transcribed, it does require that there be a record adequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal. 4th 1132, 1165-1166 [5 Cal. Rptr. 2d 268, 824 P.2d 1315].) A record is inadequate "only if the complained-of deficiency is prejudicial to the defendant's ability to prosecute his appeal." (People v. Alvarez (1996) 14 Cal. 4th 155, 196, fn. 8 [58 Cal. Rptr. 2d 385, 926 P.2d 365].) It is defendant's burden to show that any deficiencies are prejudicial. (People v. Young (2005) 34 Cal. 4th 1149, 1170 [24 Cal. Rptr. 2d 112, 105 P.3d 487].) Inconsequential inaccuracies or omissions are insufficient to constitute prejudice. (Ibid.) Nor will mere speculation suffice. (Ibid.)
a. Interviews of Prospective Grand Jurors
(2) On May 18, 1994, the Orange County Superior Court selected 19 individuals from a roster of 29 nominees to comprise the 1994-1995 grand jury (§ 895). Section 896 requires that the superior court personally interview each prospective grand juror to ascertain whether they possess the qualifications required by section 893.[4] As part of the appellate record completion process, defendant sought to augment the record with transcripts of the superior court's interview and selection of the grand jury. Neither the interviews nor the selection process were recorded.[5] Defendant argues this constitutes reversible error. We disagree.
Section 190.9 requires that all proceedings be reported in a "case in which a death sentence may be imposed." The Court of Appeal concluded in Dustin that section 190.9 applies to grand jury proceedings in death penalty cases where indictments are returned. (Dustin v. Superior Court, supra, 99 Cal.App.4th at p. 1322.) That case is unlike this one. There, the Court of Appeal considered a defendant's pretrial claim that the prosecutor violated section 190.9 by ordering the court reporter to leave while he gave his opening and closing statements to the grand jury. (99 Cal.App.4th at *590 pp. 1314-1315.) Even assuming Dustin was correctly decided, section 190.9 cannot reasonably be interpreted to apply before a "case" even exists. Defendant did not commit his crimes until September 1994, he was not arrested until October 1994, and the case was not presented to the grand jury until January 1995. The "case" could not have been said to exist in May 1994 when the 1994-1995 grand jury was interviewed, selected, and empaneled. Section 190.9 does not impose a duty to record the personal interviews of prospective grand jurors. Nor is there a constitutional violation, as defendant has failed to establish that the absence of the sought record prejudices his ability to prosecute his appeal. (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.)
b. Alleged Meeting Between Prosecutor and Grand Jury
On Thursday, January 5, 1995, Deputy District Attorney Carolyn Kirkwood presented the state's case to the grand jury. The next morning, Friday, January 6, Kirkwood gave her closing argument and answered the grand jury's questions. The foreperson then excused Kirkwood and the court reporter so the jury could begin deliberating. Later that afternoon, Kirkwood and District Attorney Guy Ormes returned to address several written questions the jury had submitted. Afterwards, the grand jury resumed deliberations, but recessed for the day without returning an indictment.
On Wednesday, January 11, Ormes and Kirkwood returned to address more questions submitted by the grand jury. Ormes noted the jury had recessed Friday without returning an indictment and said, "Since that time you presented me with aactually several questions . . . ." Ormes indicated the People were prepared to address the questions by calling additional witnesses. Ormes and Kirkwood first addressed several questions themselves. When addressing one of the questions, Kirkwood remarked, "We received a note from the grand jury on [Monday,] January 9, 1995 . . . ." The People then examined several witnesses, after which Kirkwood made concluding remarks and the jury resumed its deliberations. Later that afternoon, it returned an indictment against defendant.
Defendant moved to dismiss the indictment. He argued that the grand jury indicted him only after the prosecution presented additional, allegedly inadmissible, evidence on January 11. At a hearing on the motion, counsel for both sides discussed whether the jury "refused" to return an indictment on January 6, whether it deliberated on January 9 and 10, and how it transmitted its questions to the prosecution. Defendant asked to examine Ormes and the foreperson about whether the jury deliberated on January 9 and 10, whether it had taken a vote prior to January 11, and whether there were any unreported *591 discussions between it and the prosecutors. The court denied the request, but ordered the prosecutor to produce the jury's written questions for in camera review.
The court reviewed the written notes in chambers with only the prosecutors present. One note, written by the foreperson, was dated January 9 and contained questions about the People's DNA evidence, whether there was any non-DNA evidence implicating defendant, and about exculpatory evidence. Another note, also written by the foreperson, was dated January 10 and began, "These 4 points are what I told the panel I had discussed with you." The note then listed points regarding the DNA evidence, the existence of corroborative evidence, and exculpatory evidence. The note concluded by informing the prosecutor that the grand jury would be convening at 8:45 a.m. on January 11.
As part of the appellate record completion process, defendant sought to augment the record with an explanation of the procedure followed for transmitting the grand jury's questions to the district attorney, any record of when grand jury proceedings took place, and transcripts of any communications between the grand jury and any prosecutor other than remarks contained in existing transcripts. At a hearing, the superior court appellate clerk explained that there were no other transcripts to produce. She indicated that the district attorney had told her the jury had been deliberating on January 9 and 10, so there was no transcript for those days. The jury wrote questions down on those days, transmitted the questions to the district attorney, and the questions were answered on January 11. The People indicated there was no set procedure for communicating questions from the grand jury to the district attorney and it could therefore not say how it was done in this case.
(3) Defendant contends the record suggests the prosecutor had a number of unreported communications with the grand jury in violation of section 190.9 and Dustin v. Superior Court. He first relies on the January 9 and January 10 written questions, which he claims suggest unreported communications took place because the grand jury had to give the written questions to the prosecutor. He also places great weight on the prosecutor's readiness to answer the questions on January 11 with live testimony, arguing this demonstrates the existence of unreported communications. We conclude that neither establishes an unreported communication took place. It is just as likely that the grand jury transmitted its notes to the district attorney in an innocuous manner without direct communication, putting the district attorney on notice that it needed to present more evidence to answer the jury's questions. Moreover, even assuming unreported communications took place, defendant has failed to identify anything other than mere speculation to support his contention that he has suffered prejudice, i.e., that the grand jury's decision to *592 indict may have been in some way influenced by the alleged unreported communications. (People v. Young, supra, 34 Cal.4th at p. 1170.) A defendant seeking postconviction reversal for irregularities in grand jury proceedings must establish that the complained-of errors were structural or resulted in actual prejudice relating to his conviction. (People v. Jablonski (2006) 37 Cal. 4th 774, 800 [38 Cal. Rptr. 3d 98, 126 P.3d 938].) Defendant does not establish the existence of an irregularity justifying postconviction reversal.
Defendant also points to the opening sentence of the January 10 note. In it, the foreperson wrote "These 4 points are what I told the panel I had discussed with you." This statement does indicate the foreperson had an unreported conversation with the district attorney. However, even assuming this constitutes error, defendant fails to establish the necessary prejudice to warrant postconviction reversal. (People v. Jablonski, supra, 37 Cal.4th at p. 800; People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) The statement indicates that the topic of conversation was memorialized in the note. Moreover, the contents of the January 10 note are nearly identical to the substance of the January 9 note, suggesting that the four topics identified in the two notes constitute the extent of the jury's interest.[6]
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during the guilt phase of the trial when, in the course of examining a prosecution witness, she implied defendant could, and should, have had the DNA evidence retested. Defendant argues reversal is required because his rights under state law and the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
Mary Hong, a crime lab forensic scientist put on by the prosecution, testified extensively about DNA, the DNA testing in the case, and on the methods and reliability of DNA testing. On cross-examination, defense counsel elicited that the crime lab, which did the DNA testing, was affiliated with the Orange County Sheriff's Department. Defense counsel also elicited that the crime lab performed analyses for other police agencies, but that it was not open to the public nor could a private person come in and ask for assistance in doing an analysis.
On redirect examination, the prosecutor explicitly referenced defense counsel's question about private persons not being able to obtain the crime lab's *593 assistance in analyzing DNA. The prosecutor then asked, "Are you familiar with a procedure where the defense can come in and actually get a split of the sample of evidence and have it tested privately in any lab that they choose?" Hong answered, "Yes," and the prosecutor followed up by asking whether "any split [was] asked for in this particular case so that the defense could have retested any particular sample or any particular test ...?" Defense counsel objected and asked to approach.
The trial court excused the jury for the day and then heard counsel's argument. Defense counsel argued that the question was irrelevant and was substantially more prejudicial than probative as the jury would infer that defendant's failure to retest meant he agreed with the results of the People's DNA testing. The prosecutor responded that the question was relevant to demonstrate that the evidence was available for retesting if defendant so desired. The trial court said, "That's in." The prosecutor then pointed out defense counsel had opened the door by eliciting testimony about the inability of a private person to seek assistance with analysis. The court said there was a difference between the ability of a private person to request a split of a sample of evidence and whether such a split was sought by defendant in this case. The latter area of inquiry would lead to questions about the credibility and competence of defense counsel and why they did not seek a split for retesting. Accordingly, the trial court ruled the probative value was substantially outweighed by the risk of prejudice and sustained the objection to the question of whether defendant sought a split.
The next morning, defense counsel moved for a mistrial on the basis of prosecutorial misconduct. Defense counsel argued that the prosecutor's question had implied to the jury that it was defendant's burden to provide evidence. Failing a mistrial, defense counsel requested an admonition. The trial court denied defendant's motion for a mistrial, explaining that the brief question did not cause such prejudice that it could not be sufficiently cured with an admonition. Further, the trial court declined to conclude the prosecutor had committed misconduct. The trial court indicated it would admonish the jury, and upon resumption of redirect examination, did in fact admonish the jury that the court had sustained defendant's objection, that questions are not evidence, and that it should not speculate as to what the answer might have been.
Later, during the redirect examination of Ed Buse, another crime lab forensic scientist, the prosecutor asked, "And there are samples available in the crime lab on this case, so that if there were more probes." Defense counsel objected and asked to approach. Defense counsel argued the prosecutor's question again insinuated that defendant had the burden to retest the DNA sample. The prosecutor responded that she, consistent with the court's *594 earlier ruling, was not asking whether the defense sought a sample, but rather whether there was evidence available for retesting at all. The trial court nonetheless sustained the objection, ruling that the question improperly implied defendant should have retested the available sample. The prosecutor could ask whether there was a sample available for the crime lab to test, but could not imply defendant could use it to retest if he wanted to.
During the cross-examination of Dr. Bruce Kovacs, the prosecution expert called to testify about the reliability of DNA evidence, defense counsel challenged the testing protocol followed in this case. The defense also asked Dr. Kovacs whether one of the DNA tests had gone wrong because the printout did not show a control blank. Dr. Kovacs responded that, in the specific sample counsel cited, it could not be determined whether something had gone wrong. In her redirect examination the prosecutor asked, "Would there be a wayif somebody wanted toto see if there was a problem, that they could go back and run a control blank on this?" Defense counsel objected that the question was irrelevant and speculative, and the trial court sustained the objection as speculative. The prosecutor then asked, "Doctor, are you familiar with ways in which a sample can be tested months or years later to determine if there was any problem that existed at the time?," to which Dr. Kovacs responded, "Yes." Dr. Kovacs explained how DNA evidence was frozen and kept, allowing retesting. Defendant did not object.
During the cross-examination of defense DNA expert witness, Dr. William Shields, the prosecutor asked whether he, had he been asked to, could have taken evidence, such as the evidence in this case, and run an analysis. Dr. Shields testified that he could do that. The prosecutor then asked whether a National Research Counsel report recommended retesting to ensure quality control, and Dr. Shields agreed that retesting was recommended. The prosecutor continued, "In other words, retesting is a wrongly accused person's best insurance against the possibilities of being falsely." Defense counsel objected and the trial court sustained the objection.
During closing arguments, the court granted defense counsel's request for an order prohibiting the prosecutor from commenting on defendant's failure to retest the DNA evidence.
Defendant claims the prosecutor's questions constituted reversible misconduct because they allegedly insinuated defendant should have retested the DNA evidence. We disagree.
(4) A prosecutor's conduct violates a defendant's federal constitutional rights when it comprises a pattern of conduct so egregious that it infects "`the trial with unfairness as to make the resulting conviction a denial of due *595 process.' [Citation.]" (Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L. Ed. 2d 144, 106 S. Ct. 2464].) The focus of the inquiry is on the effect of the prosecutor's conduct on the defendant, not on the intent or bad faith of the prosecutor. (People v. Crew (2003) 31 Cal. 4th 822, 839 [3 Cal. Rptr. 3d 733, 74 P.3d 820].) Conduct that does not render a trial fundamentally unfair is error under state law only when it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."' [Citation.]" (People v. Espinoza (1992) 3 Cal. 4th 806, 820 [12 Cal. Rptr. 2d 682, 838 P.2d 204].)
To preserve a claim of prosecutorial misconduct for appeal, "`the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' [Citations.]" (People v. Earp (1999) 20 Cal. 4th 826, 858 [85 Cal. Rptr. 2d 857, 978 P.2d 15].) When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones (1997) 15 Cal. 4th 119, 168 [61 Cal. Rptr. 2d 386, 931 P.2d 960].) Whether misconduct warrants a mistrial is a decision which is within the sound discretion of the trial court. (People v. Price (1991) 1 Cal. 4th 324, 430 [3 Cal. Rptr. 2d 106, 821 P.2d 610].)
(5) Defendant first argues the prosecutor violated the work product privilege by asking questions that sought to invade defense counsel's impressions or thought process. We initially note that the claim is forfeited because defendant failed to invoke the work product privilege as the basis of his objection or to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Furthermore, we conclude the prosecutor's questions did not violate the work product privilege. In rejecting a nearly identical claim, we recently explained that section 1054.6 provides that the privilege applies in criminal cases only to materials or information that are work product as defined in Code of Civil Procedure section 2018.030, subdivision (a).[7] (People v. Zamudio (2008) 43 Cal. 4th 327, 351-356 [75 Cal. Rptr. 3d 289, 181 P.3d 105].) That subdivision defines work product as a "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." (Code Civ. Proc., § 2018.030, subd. (a), italics added.) The prosecutor's questions at issue here merely sought to clarify that, contrary to defense counsel's implication, DNA samples were available for independent testing. As such, the prosecutor's questions did not elicit or attempt to elicit evidence of a "writing" reflecting defense counsel's "impressions, conclusions, opinions, or legal research or theories" and therefore did not violate the work product privilege.
*596 Defendant also argues the prosecutor committed misconduct by blatantly ignoring the trial court's rulings. To the contrary, the record established that the prosecutor was trying to follow what was, at times, less than clear guidance from the court. The prosecutor first asked Hong whether the defense had requested a split for retesting. The court sustained defendant's objection, but told the prosecutor she could ask whether evidence was available for retesting. During her examination of Buse, the prosecutor asked whether samples were available for further testing. Even though the question was consistent with the court's prior ruling, the court sustained defendant's objection and suggested the prosecutor only ask whether evidence was available for the crime lab to retest. After defense counsel elicited testimony from Dr. Kovacs about a problem with one of the DNA tests, the prosecutor asked whether it would be possible to retest a sample to determine whether there had been any problems. Nothing about the question suggested the prosecutor was talking about retesting by defendant, as opposed to the crime lab. Finally, when examining Dr. Shields, following up on the witness's testimony that a report recommended retesting to ensure quality control, the prosecutor asked whether, therefore, retesting was a wrongly accused person's best insurance against being falsely convicted. An objection was sustained and the prosecutor moved on. While the last question could be interpreted as having violated the court's rulings, the record demonstrates that, overall, the prosecutor was attempting to follow the court's instructions regarding what was permissible.
(6) Defendant makes a number of other arguments that we briefly address. Defendant claims the prosecutor's questions violated Griffin v. California (1965) 380 U.S. 609 [14 L. Ed. 2d 106, 85 S. Ct. 1229], in which the high court held the prosecution may not comment on a defendant's failure to testify. (Id. at p. 615.) However, Griffin does not prevent a prosecutor from commenting upon the evidence or upon the failure of the defense to introduce material evidence. (People v. Bradford (1997) 15 Cal. 4th 1229, 1339 [65 Cal. Rptr. 2d 145, 939 P.2d 259].) Nor did the prosecutor's questions, as defendant asserts, violate his attorney-client privilege. (7) The privilege protects the disclosure of "a confidential communication between client and lawyer." (Evid. Code, § 954.) Asking whether there was evidence available for retesting, and even whether the defense sought a split of the sample, did not violate the privilege. (People v. Coddington (2000) 23 Cal. 4th 529, 605 [97 Cal. Rptr. 2d 528, 2 P.3d 1081].) Nor did the prosecutor's questions shift the burden of proof onto defendant. The prosecutor did not state or imply that defendant had a duty to produce evidence. The complained-of questions merely asked whether there was evidence for retesting. Moreover, the jury was instructed that the prosecution bears the burden of proof. We presume the jury followed the instructions it was given. (People v. Prince (2007) 40 Cal. 4th 1179, 1295 [57 Cal. Rptr. 3d 543, 156 P.3d 1015].)
*597 We conclude the prosecutor's questions did not constitute reversible misconduct.
3. Jury Instructions Regarding Felony Murder
Defendant claims the trial court violated state law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it failed to properly instruct the jury on first degree felony murder. Specifically, defendant contends the court failed to instruct the jury that, to find him guilty of first degree felony murder, it must find a concurrence of act and intent. Defendant also argues the instructions failed to properly limit the first degree felony-murder doctrine. We disagree.
The prosecutor's theory was that defendant was guilty of first degree murder both because he had committed premeditated and deliberate murder and because he had murdered Evans during the course of the felony of rape or burglary. The prosecutor's theory for the burglary was that defendant entered Evans's condominium with the intent to steal from her and/or rape her.
After the closing arguments, the jury was instructed pursuant to CALJIC No. 8.21 that "[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of rape or burglary is murder of the first degree when the perpetrator had the specific intent to commit such crime. The specific intent to commit rape or burglary and the commission or attempted commission of such crime must be proved beyond a reasonable doubt." The jury was also instructed pursuant to CALJIC No. 3.30 that, for the crimes of forced oral copulation and rape, "there must exist a union or joint operation of act or conduct and general criminal intent." The jury was instructed pursuant to CALJIC No. 3.31, that, for the "crimes of burglary and robbery and the special circumstance allegations of murder during the commission of burglary and murder during the commission or attempted commission of rape, there must be a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator."
(8) Defendant contends these instructions failed to convey that, in order to find him guilty of first degree murder, the jury needed to find a concurrence of act and intentnamely, that defendant formed the intent to commit rape or burglary before or during, rather than after, the application of force to the victim. We disagree. We have previously rejected an identical attack on similar instructions. In People v. Pollock (2004) 32 Cal. 4th 1153 [13 Cal. Rptr. 3d 34, 89 P.3d 353], the defendant was charged with first degree felony murder and, like defendant here, claimed the trial court had erroneously failed to instruct the jury "on the concurrence of act and specific intent *598 required for first degree felony murder . . . ." (Id. at p. 1175.) The Pollock trial court gave the jury the same standard instructions given here, namely CALJIC Nos. 3.31 and 8.21. (32 Cal.4th at pp. 1175-1176.) We concluded that the instructions given were sufficient. (Id. at p. 1176.) "More specific instructions on this issue are considered pinpoint instructions that the trial court is required to give only upon request [citation] . . . ." (Ibid.) As in Pollock, defendant did not request more specific instructions, nor did he object to the instructions given by the court.
Moreover, even assuming the trial court erred, any error was harmless beyond a reasonable doubt as any defect clearly did not affect the verdict. (People v. Harris (2008) 43 Cal. 4th 1269, 1300 [78 Cal. Rptr. 3d 295, 185 P.3d 727].) In addition to finding defendant guilty of first degree felony murder, the jury returned a true finding on the charged special circumstances. In order to find true the special circumstance allegations of murder during the commission of burglary and murder during the commission or attempted commission of rape, which it ultimately did, the jury was instructed it had to find there was "a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator."
Defendant also argues the instructions did not convey that the felony cannot be "incidental" to the murder. However, we concluded in Pollock that the standard instructions adequately inform the jury "that the defendant must apply the force for the purpose of accomplishing the taking." (People v. Pollock, supra, 32 Cal.4th at p. 1176, italics added.) Defendant contends the instructions failed to inform the jury that the murder and the felony must be part of a "continuous transaction." To the contrary, the instructions properly informed the jury that, to find defendant guilty of first degree murder, it had to find the killing "occur[red] during the commission or attempted commission of rape or burglary...." (Italics added.) Finally, defendant argues the instructions did not adequately convey that the intent to steal must have been formed before or during the application of force to the victim. We rejected this very argument in Pollock. (Ibid.)
We accordingly conclude the trial court adequately instructed the jury on first degree felony murder.
4. Cumulative Error
Defendant contends the cumulative effect of the various errors committed during the guilt phase requires reversal of his conviction. As we have rejected the individual claims of error, we conclude there is no cumulative error requiring reversal.
*599 B. Penalty Phase Issues
1. Request to Empanel a Separate Jury
Defendant claims the trial court violated state law and his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it denied his motion to empanel a separate jury for the penalty phase. We conclude the trial court did not err.
Defendant's guilt phase strategy was to argue the state had failed to meet its burden of proving beyond a reasonable doubt that he had committed the charged crimes. After defendant was convicted, his counsel moved to empanel a new jury for the penalty phase, arguing that his penalty phase defense would be inconsistent with what was argued at the guilt phase. At the penalty phase, defendant intended to establish that he had admitted his guilt to his family and counsel early on in the proceedings, that he felt remorse, and that he had wanted to plead guilty, but was talked out of it by his attorneys. Defense counsel argued that, in light of the strategy employed during the guilt phase, the currently empaneled jury would disbelieve defendant and his attorneys.
The trial court denied defendant's motion, noting that his guilt and penalty phase strategies were not inconsistent, different defense attorneys would be handling the guilt and penalty phases, the court would admonish the jury that defendant's exercise of his right to a trial was not to be considered during deliberations,[8] and that, even if the two strategies were arguably in tension with one another, tactical decisions do not constitute good cause to empanel a separate jury. The trial court concluded that a new jury was not warranted under state law or under the federal Constitution.
(9) Section 190.4, subdivision (c) provides that the same jury that decided guilt in a death penalty case "shall consider ... the penalty to be applied, unless for good cause shown the court discharges that jury . . . ." (Italics added.) While a trial court retains discretion to empanel a separate jury, there is a "`"long-standing legislative preference for a single jury to determine both guilt and penalty."' [Citation.]" (People v. Catlin (2001) 26 Cal. 4th 81, 114 [109 Cal. Rptr. 2d 31, 26 P.3d 357]; see People v. Yeoman (2003) 31 Cal. 4th 93, 119 [2 Cal. Rptr. 3d 186, 72 P.3d 1166]; People v. Kraft (2000) 23 Cal. 4th 978, 1069 [99 Cal. Rptr. 2d 1, 5 P.3d 68].) We review a trial court's ruling on a motion to empanel a separate penalty phase jury for abuse of discretion. (People v. Kraft, supra, 23 Cal.4th at p. 1069.)
*600 Defendant contends that his desire to employ allegedly "conflicting" strategies constituted good cause to empanel a separate penalty phase jury. We disagree. Even assuming defendant's guilt and penalty phase strategies were in tension with one another, a counsel's tactical decision to present inconsistent defenses "do[es] not, without more, constitute good cause." (People v. Catlin, supra, 26 Cal.4th at p. 115; see People v. Pride (1992) 3 Cal. 4th 195, 252 [10 Cal. Rptr. 2d 636, 833 P.2d 643]; People v. Taylor (1990) 52 Cal. 3d 719, 737-738 [276 Cal. Rptr. 391, 801 P.2d 1142].) Additionally, defendant's assertion that his and his counsel's credibility would be undermined was too speculative to establish sufficient good cause. (People v. Pride, supra, 3 Cal.4th at p. 253; People v. Taylor, supra, 52 Cal.3d at p. 738.)
Nor were defendant's constitutional rights violated by having the same jury decide the guilt and penalty phases. The high court has repeatedly rejected such claims, explaining that the federal Constitution permits "the same jury [to] sit in both phases of a bifurcated capital murder trial." (Lockhart v. McCree (1986) 476 U.S. 162, 180 [90 L. Ed. 2d 137, 106 S. Ct. 1758]; see Buchanan v. Kentucky (1987) 483 U.S. 402, 417 [97 L. Ed. 2d 336, 107 S. Ct. 2906].) This court has reached the same conclusion. (People v. Catlin, supra, 26 Cal.4th at p. 115; People v. Johnson (1992) 3 Cal. 4th 1183, 1244 [14 Cal. Rptr. 2d 702, 842 P.2d 1]; People v. Balderas (1985) 41 Cal. 3d 144, 204-205 [222 Cal. Rptr. 184, 711 P.2d 480].) Nothing warrants revisiting the issue.
We therefore conclude the trial court did not err when it denied defendant's motion for a separate jury.
2. Exclusion of Defendant's Execution-impact Evidence
Defendant contends the trial court violated state law and his constitutional rights when it excluded an expert's testimony about the impact defendant's execution would have on his son and stepson. Defendant argues that the testimony should have been permitted as mitigation evidence indirectly relevant to his character. We disagree.
During the penalty phase, the defense indicated its intent to have Dr. Kaser-Boyd testify about the effect defendant's execution would have on his children. The prosecutor indicated she would object to such testimony because it would be speculative and would constitute irrelevant execution-impact evidence. After some discussion between counsel and the court, defense counsel asked the court to defer ruling so that he could talk with Dr. Kaser-Boyd to get a better sense of the possible testimony.
The next morning, defense counsel told the court Dr. Kaser-Boyd would testify that, when a child loses a parent for any reason, "there is a feeling of *601 abandonment and grief . . . that often can interfere with normal development" and result in feelings of anxiety or distrust, whereas those feelings would be less if the defendant were sentenced to life without parole. The prosecutor objected to the proposed testimony because it would constitute impermissible execution-impact evidence and would be speculative. The prosecutor also argued that the effect that losing one's parent would have on a child was not a proper subject for expert testimony because the jury was capable of considering the impact on its own. The trial court sustained the prosecutor's objection and excluded the evidence, but it made clear that the defense would still be able to solicit testimony from Dr. Kaser-Boyd regarding defendant's character, nature, and potential for future contribution.[9]
(10) We conclude the trial court did not err. The impact of a defendant's execution on his or her family may not be considered by the jury in mitigation. (People v. Smith (2005) 35 Cal. 4th 334, 366-367 [25 Cal. Rptr. 3d 554, 107 P.3d 229]; People v. Smithey (1999) 20 Cal. 4th 936, 1000 [86 Cal. Rptr. 2d 243, 978 P.2d 1171]; People v. Ochoa (1998) 19 Cal. 4th 353, 454-456 [79 Cal. Rptr. 2d 408, 966 P.2d 442] (Ochoa).) In Ochoa, we explained it is a defendant's background and character, and "not the distress of his or her family," that is relevant under section 190.3. (19 Cal.4th at p. 456.) We distinguished between "evidence that [a defendant] is loved by family members or others, and that these individuals want him or her to live . . . [and evidence about] whether the defendant's family deserves to suffer the pain of having a family member executed." (Ibid.) The former constitutes permissible indirect evidence of a defendant's character while the latter improperly asks the jury to spare the defendant's life because it "believes that the impact of the execution would be devastating to other members of the defendant's family." (Ibid.)
In arguing that the trial court erred when it excluded part of Dr. Kaser-Boyd's testimony, defendant contends it constituted permissible evidence of defendant's character. We disagree. As defense counsel told the trial court, Dr. Kaser-Boyd intended to testify that defendant's execution would have a "damaging effect" on his children and the children would have "a feeling of abandonment and loss" requiring therapy and intervention. Such testimony, rather than "illuminat[ing] some positive quality of the defendant's background or character" (Ochoa, supra, 19 Cal.4th at p. 456), was impermissible execution-impact evidence intended to make the jury feel "sympathy for . . . defendant's family."[10] (19 Cal.4th at p. 456.)
*602 Defendant alternatively argues that, even if the testimony constituted execution-impact evidence, the trial court should have nonetheless allowed it. Defendant acknowledges we rejected an identical claim in Ochoa, but he argues our decision was wrongly decided for several reasons. None is persuasive.
Defendant first asserts that Ochoa conflicts with the high court's decision in Payne v. Tennessee (1991) 501 U.S. 808 [115 L. Ed. 2d 720, 111 S. Ct. 2597]. There, the high court held that victim-impact evidence is admissible during the penalty phase. (Id. at pp. 811, 829.) Defendant argues the high court's decision contains an implicit recognition capital defendants have the right to introduce execution-impact evidence. To the contrary, the high court made clear, consistent with Ochoa, that a defendant must be allowed to introduce mitigating evidence "concerning his own circumstances." (Payne, supra, 501 U.S. at p. 822, italics added.) As we have explained, execution-impact evidence is irrelevant under section 190.3 because it does not concern a defendant's own circumstances but rather asks the jury to spare defendant's life based on the effect his or her execution would have on his or her family. (Ochoa, supra, 19 Cal.4th at p. 456.) We further concluded that nothing in the federal Constitution requires a different result (Ochoa, at p. 456) and defendant identifies no reason to reconsider our conclusion.
Defendant next argues section 190.3, which permits the prosecutor and defendant to introduce evidence "as to any matter relevant to aggravation, mitigation, and sentence," should be construed to permit execution-impact testimony as evidence relevant to mitigation and sentence. We rejected this construction in Ochoa, supra, 19 Cal.4th at page 456, and we see no reason to revisit the issue. Defendant's argument rests on the use of the word "mitigation" in statutes governing determinate sentencing (§ 1170) and probation (§ 1203). Neither statute is analogous to section 190.3. Unlike those statutes, section 190.3 identifies examples of matters relevant to aggravation, mitigation, and sentence including, but not limited to, the "circumstances of the present offense, any prior felony conviction ..., and the defendant's character, background, history, mental condition and physical condition." We concluded that, "[i]n this context, what is ultimately relevant is a defendant's background and characternot the distress of his or her family." (Ochoa, supra, 19 Cal.4th at p. 456, italics added.) The statutes cited by defendant have no bearing upon this court's construction of section 190.3.
*603 We conclude the trial court did not err when it excluded the portion of Dr. Kaser-Boyd's testimony concerning the effect defendant's execution would have on his children.[11]
3. Other Penalty Phase Evidentiary Rulings
Defendant contends the trial court made four erroneous evidentiary rulings that allowed the prosecutor to wrongly impeach defendant's mitigation witnesses. Defendant claims these rulings violated state law and the federal Constitution requiring reversal of the penalty verdict.[12] We disagree.
(11) While a capital defendant must be permitted to offer any relevant mitigating evidence (§ 190.3; People v. Marlow (2004) 34 Cal. 4th 131, 152 [17 Cal. Rptr. 3d 825, 96 P.3d 126]; Skipper v. South Carolina (1986) 476 U.S. 1, 4-8 [90 L. Ed. 2d 1, 106 S. Ct. 1669]), this does not "`abrogate[] the California Evidence Code.' [Citation.]" (People v. Phillips (2000) 22 Cal. 4th 226, 238 [92 Cal. Rptr. 2d 58, 991 P.2d 145].) The trial court retains the discretion to exclude irrelevant evidence. (People v. Marlow, supra, 34 Cal.4th at p. 152.) We address each challenged ruling in turn.
a. Direct Testimony of Defendant's Mother
Defendant's mother was the first defense witness. She testified after Christine Hougan testified about the impact her mother's death had on her. Defense counsel asked defendant's mother whether there was "something you wanted to say first before we got to the formal questioning?" The prosecutor objected that there was no question pending and the trial court sustained the objection. Defense counsel then asked, "Did hearing Christine Hougan's testimony move you to want to say something?" Defendant's mother responded "Yes" and defense counsel inquired "What's that?" The prosecutor objected and the trial court sustained the objection on relevance grounds. The parties then approached the bench.
The trial court said it suspected that defendant's mother, like everyone in the courtroom, felt bad for Christine Hougan, but the fact that she felt sorry for the victim's family was neither relevant nor admissible as mitigating evidence. Defense counsel argued that the testimony was relevant to the *604 credibility of defendant's mother. Counsel explained that defendant's mother would testify that it was very hard and that "if she could undo it herself, she would." The trial court ruled that defense counsel was trying to demonstrate the character of defendant's mother, which was irrelevant.
(12) Defendant contends the trial court erred by excluding relevant evidence concerning the credibility of defendant's mother, violating his rights under state law and the federal Constitution. We disagree. Evidence Code section 780 permits credibility evidence "that has any tendency in reason to prove or disprove the truthfulness of [the witness's] testimony." (Italics added.) Defendant does not explain how his mother's desire to "undo" the murder was relevant to her truthfulness. The trial court did not abuse its discretion in concluding the testimony was irrelevant. (People v. Marlow, supra, 34 Cal.4th at p. 152.)
b. Direct Testimony of Rick Wentworth
Rick Wentworth, an elder in the Jehovah's Witness church, was called as a defense witness. Wentworth testified that he was asked to visit defendant in jail and that they established a relationship. He testified that defendant expressed an interest in Bible study and that he visited defendant about three times a month over the previous year and a half. Wentworth and defendant discussed family, friends in the congregation, and then had a formal study. Defense counsel then asked Wentworth whether defendant discussed any concerns about his own plight and Wentworth answered "no." Defense counsel asked "What areas has he expressed concern about to you?" The prosecutor objected and asked to approach the bench. Defense counsel said that Wentworth would testify that defendant had "expressed concern about his familythat's alland how they're handling it." The prosecutor said the testimony constituted improper testimony about the impact on defendant's family and was also hearsay. The trial court agreed that it appeared to be hearsay. Defense counsel replied that the testimony fell into the state of mind exception (Evid. Code, § 1250). The trial court responded that even so, it was irrelevant.
Defendant argues that the trial court erred and we agree. Evidence that defendant was concerned about how his family was doing was relevant in mitigation "because it constitutes indirect evidence of the defendant's character." (Ochoa, supra, 19 Cal.4th at p. 456.) However, even assuming the error violated defendant's constitutional rights, the erroneous exclusion of the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 87 S. Ct. 824]; People v. Cole (2004) 33 Cal. 4th 1158, 1195 [17 Cal. Rptr. 3d 532, 95 P.3d 811].) Defendant introduced ample alternative evidence of his relationship with his family. *605 Defendant's wife testified extensively about her love for him, how he had wanted to plead guilty to avoid causing more pain for his family, his character, and his relationship with her and with his children. Additionally, Dr. Kaser-Boyd testified at length about the children's bond with defendant, their love for him, and how they would benefit from a continuing relationship if he were allowed to live. Thus, even without the excluded testimony, the jury was presented with substantial evidence of defendant's relationship with his family and his concern for them. There is no reasonable possibility that the jury would have returned a different sentence even if Wentworth had been permitted to testify that defendant had inquired after his family's well-being.[13]
c. Cross-examination of Defendant's Wife
During the prosecutor's cross-examination of defendant's wife, the prosecutor asked whether she was encouraging the relationship between defendant and his children because she thought it would help him and she answered, "No, not true at all." The prosecutor then asked whether she had ever brought the children to court and she said that, while she had not, someone else had. The prosecutor asked "Was the purpose of bringing your children here to court to give," at which point the court interjected that the prosecutor's question called for speculation because the witness had testified that she did not bring the children to court. The prosecutor continued cross-examining defendant's wife who testified that she was aware the children had been brought to court. The prosecutor then began, "You relinquished the children to somebody," whereupon defense counsel objected and asked to approach the bench.
Defense counsel argued the prosecutor was improperly insinuating that the children were "brought to court to be spectacles to the jury which I think is improper and prejudicial and has very little probative value." The prosecutor countered that, "If she allowed the children to be brought to court and knew that was the purpose it goes to her bias and goes to her willingness to use her kids for show." The prosecutor also pointed out that defense counsel had mentioned the children's presence in court in the opening statement. The trial court ruled that the prosecutor could ask whether defendant's wife allowed the children to be brought to court, but not whether they were brought by another person. The prosecutor continued his cross-examination, asking whether defendant's wife had allowed the children to be brought to court, to which she answered "Yes."
*606 Defendant argues the trial court erred in admitting irrelevant testimony that was more prejudicial than probative. We disagree. The question was relevant to the witness's credibility. Defendant's wife had testified that she encouraged the contact between defendant and his children and that she wanted to stay married because she thought it would help defendant. Whether she also intended to help him by encouraging his relationship with his children or allowing them to be brought to court was relevant to her credibility. (Evid. Code, § 780, subd. (f).) We also disagree that the question and witness's response were more prejudicial than probative. There was no risk of prejudice since, even without the testimony, the jury could have inferred from the children's presence in court that their mother had allowed them to attend. The testimony, on the other hand, was probative of the witness's credibility. The trial court did not err.
d. Cross-examination of James Waltz
James Waltz, an attorney and a Jehovah's Witness, was called by the defense and testified on direct examination that he had been asked by defendant's wife's grandmother to speak with defendant in jail regarding a disagreement between defendant and his attorneys over whether defendant should plead guilty. Waltz testified that he advised defendant of the legal and religious aspects of going to trial, ultimately recommending that defendant cooperate with his attorneys.
On cross-examination, Waltz acknowledged that he knew defendant had been charged with a capital crime when he went to meet with him. He also testified that he was a devout member of the Jehovah's Witness church. The prosecutor then asked a series of questions about whether Waltz was personally opposed to the death penalty. Defense counsel objected on relevance grounds, but the objection was overruled. In response to a question asking whether he would "ever vote for the death penalty?," Waltz answered "No." The prosecutor continued, "And isn't that, in part, your Jehovah Witness connection with the defendant and your opposition to the death penalty, aren't those really the reasons why," to which Waltz responded, "I'm not opposed to the death penalty." The prosecutor followed up, "You just personally would never vote for it. Is that right?" and Waltz answered, "Correct."
Defendant contends the trial court erred in permitting the prosecutor to ask these questions, arguing that the testimony was irrelevant and more prejudicial than probative. We disagree. The witness's personal philosophical opposition to the death penalty is relevant to his credibility. (Evid. Code, § 780, subd. (f); see People v. Mickle (1991) 54 Cal. 3d 140, 196 [284 Cal. Rptr. 511, 814 P.2d 290] [expert's philosophical views on capital punishment might disclose bias].) Defendant's claim that the testimony was more prejudicial *607 than probative is forfeited by his failure to object on that ground at trial. (People v. Ashmus (1991) 54 Cal. 3d 932, 972, fn. 10 [2 Cal. Rptr. 2d 112, 820 P.2d 214].) Even were the claim not forfeited, it is without merit. The value of giving the jury a full and accurate view of Waltz's credibility was not substantially outweighed by the probability of a substantial danger of undue prejudice. (Evid. Code, § 352.)
Defendant claims the above evidentiary rulings, singly and cumulatively, violated his constitutional rights. We disagree. The trial court's exclusion of Wentworth's statement was the only error and it does not require reversal.
4. Prosecutorial Misconduct During Cross-examination
Defendant argues that, during the cross-examination of two defense witnesses, the prosecutor committed misconduct by improperly insinuating defendant had committed other crimes. He contends the alleged misconduct violated state law and the federal Constitution requiring reversal. We disagree.
a. Background
Defendant identifies four alleged examples of misconduct. The first instance occurred during the prosecutor's cross-examination of Jenks Janes, a Jehovah's Witness and recovering addict who testified on direct examination that he took defendant to an Alcoholics Anonymous meeting in August or September 1994. On cross-examination, Janes testified that defendant wanted to go to the meeting because he wanted to turn his life around and that Janes believed defendant to be sincere. The prosecutor then asked whether defendant had expressed any other reason for going to the meeting and whether defendant had told Janes that he had been ordered to attend such meetings. Janes answered "no" to both questions. The prosecutor sought to have a document marked as an exhibit and the court asked the attorneys to approach the bench.
At sidebar, the prosecutor said she had a certified copy of a court order, dated October 11, 1994, requiring defendant to attend two Alcoholics Anonymous meetings per week. She intended to ask the witness whether defendant had ever told him that he had been ordered to attend meetings. Defense counsel argued the document was hearsay and pointed out that the order's date was after the meeting discussed by the witness. The prosecutor noted the timing did not mean defendant was not aware, prior to the order, that he would be ordered to attend the meetings. Defense counsel argued it was irrelevant and requested an admonition because the reference to the order had "created a false impression of the facts." The prosecutor said defendant had been *608 arrested for driving under the influence in August 1994 and one could infer he had a motive for attending the meetings other than turning his life around.
The court was dubious of the prosecutor's rationale and was concerned about the order being dated months after the Alcoholics Anonymous meeting about which the witness was testifying. The trial court said it would admonish the jury that there was no order that defendant attend an Alcoholics Anonymous meeting in August 1994. While the court acknowledged that evidence of defendant's arrest was relevant to defendant's motivation for attending the meetings, it concluded that the prosecutor's mention of a court order suggested that not only had defendant been arrested, but that he had also been convicted and had a prior crime. Accordingly, the court concluded that further testimony about the arrest or the order would be more prejudicial than probative.
The trial court admonished the jury, reminding it that questions are not evidence and that it should not make any assumptions based on a question being asked. Additionally, the court told the jury that "[s]pecifically as to any court orders, you should disregard any question with respect to that and not draw any inferences that there was ever any court order." In response to defense counsel's request, the court further clarified that, "[y]ou should not assume that because there is no evidence that there was such a court order." The cross-examination proceeded and the prosecutor did not return to the topic.
The second alleged instance of misconduct occurred later the same day during the prosecutor's cross-examination of defendant's wife. On direct examination, defendant's wife testified defendant told her, after he had been arrested for murdering Evans, that he had also raped Pamela B. On cross-examination, the prosecutor inquired about the night defendant raped Pamela B. After asking some initial questions about the events of the evening, the prosecutor asked whether the witness suspected defendant had committed the rape and defendant's wife answered "No." The prosecutor then asked, "Does he have a ninja mask?" The witness answered, "No."
The third alleged instance of misconduct also occurred during the cross-examination of defendant's wife. The prosecutor questioned defendant's wife about defendant's drug use. The witness testified defendant used drugs throughout most of her pregnancy with their younger child and during his relationship with his stepson. The prosecutor asked whether defendant was "spending the money that he made at work, in part, on drugs." The witness responded, "Some of it." After eliciting testimony that defendant and his wife had been experiencing financial problems and that it was expensive to raise *609 two children, the prosecutor asked, "[b]ut he was spending some of the money on his choice, which was methamphetamine. Is that right?" The witness answered, "Yes." The prosecutor asked, "How was he getting all this money to support this drug habit that he had?" and the witness responded, "From work." Later the prosecutor asked a series of questions about defendant's conduct around the time of the rape and the murder in an effort to show that defendant was not remorseful or affected by the crimes he had committed. As evidence, the prosecutor elicited testimony that defendant had, in the days after killing Evans, purchased a brand new Toyota, was not "crying himself to sleep at night," and took his wife out for a romantic dinner.
The fourth alleged instance of misconduct also came during the cross-examination of defendant's wife. The prosecutor asked defendant's wife a series of questions about photographs of defendant and his family that had been admitted into evidence. The prosecutor elicited that one of the photographs, taken in 1991, showed defendant with long hair. The prosecutor then began to show the witness a photograph to see whether it accurately reflected the way defendant used to look. Defense counsel requested a sidebar at which she challenged the relevance of the photograph. The prosecutor explained the photographs showed defendant had changed his appearance, including the length and color of his hair, from time to time. The prosecutor argued defendant's altering of his appearance "shows a manipulative kind of character." The trial court was unconvinced, but did not rule on the objection nor did defendant press for a ruling. Back in front of the jury, the prosecutor asked the witness whether defendant had changed his appearance. Defense counsel objected on relevance grounds and the trial court sustained the objection.
At the conclusion of the day's testimony, after the jury had been excused, the trial court indicated it had some concerns. The trial court said that, during the guilt phase closing arguments, the prosecutor told the jury, "I'm sure you have many questions in your mind. If you don't now, you will in the course of deliberation. And at the conclusion of this phase, the nextI won't be able to talk to you at the conclusion of this phase. But at the end of your service on this case, I'll be available to answer any questions that you have." The next day, defense counsel objected and requested an admonition, arguing that the prosecutor's closing argument had implied that there was additional evidence indicating defendant's guilt that the prosecutor could discuss with the jury at the conclusion of the case. The prosecutor explained that she was merely referring to a general ability to talk to the jury and answer any procedural questions. The trial court credited the explanation and denied defendant's request for an admonition and a mistrial.
The trial court now expressed its concern that, in light of the prosecutor's comments during the guilt phase closing argument, the questions about *610 defendant changing his appearance and about the source of his money could invite a defense argument that the jury was being urged to speculate whether there were other crimes. The prosecutor responded that, regarding defendant's finances, she was merely trying to show that defendant was choosing to spend his income from work on drugs rather than on his children, and not to imply anything else. Regarding her comments at sidebar about how defendant's change in appearance could be evidence of manipulative behavior, the prosecutor said she noticed the way the court looked at her and she decided to "rethink that area." Regarding the questions about the "ninja mask," the prosecutor argued that whether defendant's wife noticed a mask went to the witness's credibility. Defense counsel pointed out that there had never been testimony about a mask, but rather of a T-shirt that was tied around defendant's face "ninja style." The court indicated it had no problem with the ninja question in light of Pamela B.'s testimony. Defense counsel explained that she did not object to the question about defendant's spending of money because it was phrased in a way that made it clear that it referred to defendant's decision to spend money on drugs rather than his children and "the answer was not a problem." The court adjourned for the day.
The following morning, defense counsel moved for a mistrial based on prosecutorial misconduct. Defense counsel identified four alleged instances of misconduct: (1) the prosecutor's mention of a court order in relation to defendant's motive for attending an Alcoholics Anonymous meeting; (2) the prosecutor's question about a ninja mask; (3) the prosecutor's questions regarding where defendant got the money to purchase drugs and regarding his purchase of a new Toyota; and (4) the questions regarding defendant changing his appearance. Defense counsel argued that, cumulatively, the prosecutor's questions invited the jury to draw an inference that "this person is going out with a ninja mask and other crimes are being done . . . and there are all kinds of crimes nobody knows about...."
The prosecutor responded that the questions regarding defendant's motive for going to the Alcoholics Anonymous meetings were relevant and reasonable in light of the timing of defendant's arrest and Janes's memory of the timeline. She also pointed out that the trial court had admonished the jury to disregard the mention of the court order. Regarding the reference to the ninja mask, the prosecutor pointed out that Pamela B. had herself described the face covering defendant was wearing during the rape in similar terms. With regard to defendant's spending, the prosecutor explained that she wanted to show defendant was choosing to spend his money on drugs, rather than on his children, and that her question about where the money came from was merely to see whether defendant had been taking the money from other sources such as a savings account or an inheritance. With regard to defendant changing his appearance, the prosecutor pointed out that Pamela B.'s neighbor had told the police that she thought defendant's wife dyed his hair after the rape. The *611 prosecutor thought evidence of defendant changing his appearance, especially with his wife's help, went both to defendant's lack of remorse as well as his wife's bias.
After listening to both counsel's arguments, the trial court concluded that there was not sufficient evidence to demonstrate prosecutorial misconduct and denied the request for a mistrial. The trial court concluded that evidence of defendant spending money on drugs instead of his children despite limited financial resources was probative. Additionally, evidence that defendant changed his appearance immediately after the rape was probative of his lack of remorse. While the court felt that evidence of defendant's motivation for attending Alcoholics Anonymous meetings was relevant, it concluded that evidence about the court order was more prejudicial than probative. However, the court noted that it had already adequately admonished the jury. Defense counsel asked the court to admonish the jury that there was no other criminal activity related to other factors in the case and, in response, the court invited defense counsel to submit a proposed special instruction. The court, at defense counsel's request, also directed the prosecutor to limit questions about defendant's finances to the limited nature of the resources, rather than the source of the money. The court also excluded any further questioning with respect to defendant's occasional changing of his appearance, but concluded that evidence of defendant changing his appearance immediately after the rape was permissible. The penalty phase proceeded.
Defendant did not submit a proposed instruction to the trial court admonishing the jury that there was no other criminal activity related to other factors in the case.
b. Analysis
Defendant argues that the prosecutor committed prejudicial misconduct by asking questions of Jenks Janes and defendant's wife that improperly implied defendant had committed other crimes. He further argues the trial court erred by denying his motion for a mistrial and concludes that the misconduct and denial of his motion for a mistrial require reversal of the penalty verdict. We disagree.
At the outset we note defendant has forfeited this claim. After the trial court denied his motion for a mistrial, defendant asked the court to admonish the jury that there was no other relevant criminal activity. In response, the court invited defendant to submit a proposed instruction to give to the jury. Such an instruction could have cured any potential harm by informing the *612 jury there was no evidence defendant had committed other crimes. Defendant's failure to submit an instruction, even after the court invited him to do so, forfeits the claim.[14] (People v. Earp, supra, 20 Cal.4th at p. 858.)
Even were the claim not forfeited, we conclude it is without merit. Regarding the cross-examination of Janes, defendant argues the prosecutor committed misconduct by attempting to elicit inadmissible evidence about defendant's conviction for driving under the influence. We disagree. The point of the prosecutor's question was to establish that defendant had an alternative motive for going to Alcoholics Anonymous meetings, not to prove he had been convicted of another crime. This was, as the trial court acknowledged, a logical inference that reasonably could be drawn from the evidence. (People v. Stewart (2004) 33 Cal. 4th 425, 491-492 [15 Cal. Rptr. 3d 656, 93 P.3d 271].) Additionally, even if the question was improper, defendant suffered no prejudice. The trial court sustained defendant's objection and admonished the jury to disregard the question and not draw any inferences from it. We assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones, supra, 15 Cal.4th at p. 168.) Moreover, while the question made reference to defendant being "ordered" to go to meetings, it made no mention of a court order.[15] Further, the court specifically admonished the jury there was no evidence of a court order. Thus, there is no "`reasonable likelihood that the jury construed or applied any of the [prosecutor's] complained-of remarks in an objectionable fashion.' [Citation.]" (Ochoa, supra, 19 Cal.4th at p. 427.)
Regarding the prosecutor's mention of a "ninja mask," defendant argues the prosecutor insinuated defendant kept a mask to "disguise himself while committing more crimes." To the contrary, the brief reference obviously alluded to Pamela B.'s description of the disguise defendant used during the sexual assault.[16] For that reason, the trial court stated, "I don't see the ninja mask question being particularly significant." The question did not constitute misconduct. Nor is there a reasonable likelihood the jury interpreted the question to mean defendant kept a ninja mask for use in a crime spree.
Regarding the question about defendant's money, defendant argues the prosecutor implied defendant "was out committing other robberies and burglaries" to obtain money. We disagree. With regard to the source of *613 defendant's money, in context it is clear the question was part of an effort to show defendant chose to spend his limited resources on drugs rather than on his children. Indeed, in explaining her decision not to object to the question, defense counsel admitted as much. The question therefore did not constitute misconduct. Moreover, defendant suffered no prejudice. It was a single, brief question, defendant's wife's answer indicated the source of defendant's money was his job, and the prosecutor moved on without following up.
The same is true of the prosecutor's reference to defendant purchasing a new Toyota. The prosecutor was asking questions in an effort to show defendant was not acting remorseful or as if he had been affected by his commission of the crimes. To that end, the prosecutor elicited that defendant had taken his wife out for a romantic dinner, was sleeping well at night, and purchased a new Toyota. The reference to defendant purchasing a new Toyota was clearly intended to establish defendant was living a normal life, not that he was spending money other than that earned at work. The statement did not constitute misconduct. Additionally, there is no reasonable likelihood that the jury construed the stray reference to the new Toyota to mean defendant was engaged in a crime spree to get more money.
Regarding the question about the change in appearance, defendant argues the prosecutor committed misconduct by insinuating defendant was disguising himself in order to commit other crimes. We disagree. At sidebar, the prosecutor explained she thought defendant's changes in appearance were probative of his "manipulative kind of character." While the trial court was doubtful of the prosecutor's theory of relevance, it did not rule on defendant's objection nor did defendant press for a ruling. Back in front of the jury, the prosecutor asked the witness whether defendant had changed his appearance over the course of their relationship. Defense counsel immediately objected and the trial court sustained the objection. There was no misconduct. First, the prosecutor did not insinuate defendant was disguising himself to commit other crimes and there is no reasonable likelihood the jury construed her question in such a fashion. Second, the prosecutor did not violate a court order as the trial court did not rule on defendant's objection and defendant failed to press for a ruling. Third, even if the prosecutor's question was misconduct, defendant suffered no prejudice. It was a brief question, defendant's objection was immediately sustained before the witness answered, and the prosecutor did not return to the subject.
Because we conclude the complained-of remarks did not constitute misconduct, either cumulatively or on their own, we also conclude the trial court did not err in denying defendant's motion for a mistrial. That decision is within the sound discretion of the trial court (People v. Price, supra, 1 Cal.4th at p. 430) and the trial court did not abuse its discretion here.
*614 5. Prosecutorial Misconduct During Closing Argument
Defendant identifies numerous alleged examples of prejudicial misconduct committed by the prosecutor during her penalty phase closing argument. Specifically, defendant claims reversal is required because the prosecutor mischaracterized the evidence, speculated about defense strategy, ignored the trial court's rulings, and argued facts not in evidence. We disagree.
The prosecutor began her closing argument by discussing defendant's rape of Pamela B. The prosecutor argued that, when Pamela B. tried to escape from defendant, he "lunged toward her with the knife." Defense counsel objected that the argument misstated the evidence. The trial court did not rule on the objection, but nonetheless admonished the jury that it was "the exclusive judge of the evidence." The argument did not misstate the evidence. Pamela B. testified that defendant had a knife in his hand during the entire assault and that, after she escaped and ran outside, defendant chased after her and "lunged at [her]." The prosecutor correctly recounted the testimony or, at a minimum, drew reasonable inferences from the testimony. (People v. Williams (1997) 16 Cal. 4th 153, 221 [66 Cal. Rptr. 2d 123, 940 P.2d 710].) Additionally, we assume the jury followed the court's admonition, avoiding any prejudice. (People v. Jones, supra, 15 Cal.4th at p. 168.)
(13) The prosecutor later addressed Dr. Kaser-Boyd's testimony. Discussing the expert's statement that defendant had been "the victim of a child molest[er] ... the victim of a social system ... the victim of a dysfunctional family," the prosecutor argued defendant "wants to be the victim. He wants you to see him as the victim." Defense counsel objected. At sidebar, the trial court stated that, so long as the argument was about the defense, rather than defendant, the prosecutor's attack on the mitigation evidence was permissible. We agree. Prosecutors are allowed "wide latitude in penalty phase argument, so long as the beliefs they express are based on the evidence presented. [Citation.]" (People v. Cook (2006) 39 Cal. 4th 566, 613 [47 Cal. Rptr. 3d 22, 139 P.3d 492].) The prosecutor's argument was a fair comment on defendant's mitigation evidence, specifically Dr. Kaser-Boyd's testimony, and did not constitute misconduct.
The prosecutor continued to address Dr. Kaser-Boyd's testimony, telling the jury it should reject her opinion because of her failure to use certain tests in assessing defendant. The prosecutor suggested Dr. Kaser-Boyd might have chosen not to give certain tests because she knew they would hurt the defense. Defense counsel objected and the trial court sustained the objection, ruling, "You can't speculate as to defense counsel strategy." The prosecutor then argued that the expert's failure to give certain tests and to talk to defendant about his crimes undermined the value of her opinion. The *615 prosecutor also argued that, as a result, certain relevant questions could not be asked. Defense counsel objected and the trial court again told the prosecutor not to speculate as to counsel's reasoning process.
The prosecutor continued, specifically identifying particular questions she could have asked the expert had the expert talked to defendant about his crimes. Defense counsel objected and the court asked both counsel to approach and told the prosecutor that she was not permitted to speculate "as to why the defense did this or that." Defense counsel complained that the prosecutor had ignored several of the court's rulings and moved for either a mistrial or an admonition. The trial court indicated that it did not believe the prosecutor had violated a court order, but that she had kept to addressing what the expert had or had not said in her testimony. The trial court ruled the prosecutor could argue that the expert's failure to give certain tests prevented the prosecutor from asking critical questions and, therefore, that the expert's testimony should be given less weight. The trial court agreed that the prosecutor should not speculate about why the information was not offered. The trial court denied defendant's motion for a mistrial, but admonished the jury that it should decide the case "based on the evidence and the law" and not "speculate as to why counsel did or did not do something or what they knew or did not know either in evidence or in argument."
Defendant contends the prosecutor committed misconduct by improperly commenting on defense strategy and ignoring the trial court's rulings. We disagree. After the trial court sustained defendant's objection to the prosecutor's hypothesizing about why the expert did not give certain tests, the prosecutor did not return to the subject. She subsequently argued that the expert's testimony should be given less weight due to her failure to give certain tests. As the trial court concluded, such argument was not improper. "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] . . . [A]nd counsel can argue from the evidence that a witness's testimony is unsound, unbelievable, or even a patent lie. [Citation.]" (People v. Dennis (1998) 17 Cal. 4th 468, 522 [71 Cal. Rptr. 2d 680, 950 P.2d 1035].) Even assuming the prosecutor's comments were improper, the trial court sustained defendant's objection and admonished the jury not to speculate about defense counsel's strategy. We assume any prejudice was thereby avoided. (People v. Jones, supra, 15 Cal.4th at p. 168.)
Later in the closing argument, the prosecutor argued that defendant's efforts to stop using drugs and make changes to his life were insincere and hypothesized that defendant's wife "gave him an ultimatum." Defense counsel objected and the trial court sustained the objection. The prosecutor continued, "[d]id he want to appease her. Did he want toshe was contemplating leaving him." Defendant argues the prosecutor improperly argued *616 facts outside the evidence. We disagree. Initially we note that defendant forfeited this claim because he failed to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the argument was fair comment on defendant's wife's testimony that she and defendant were having martial problems, she was contemplating leaving him, and she demanded he quit using drugs. Additionally, the prosecutor is afforded wide latitude in penalty phase closing argument and her argument about defendant's possible motivation for making changes was based on permissible inferences from the evidence. (People v. Cook, supra, 39 Cal.4th at p. 613; People v. Williams, supra, 16 Cal.4th at p. 221.)
While discussing the testimony of defendant's family members and arguing the witnesses were biased, the prosecutor commented on defendant's failure to call "his best friend Troy Clark" as a witness. The prosecutor reminded the jury of testimony that Clark was the person who knew defendant best, "but they didn't call his best friend who if they were going to try to portray to you." Defense counsel objected, noting "[w]e don't know where Mr. Clark is." The trial court told the prosecutor she could not speculate about why witnesses were not called or suggest that she knew why witnesses were not called. The prosecutor continued, arguing that "there are individuals out there that know the defendant, have had more exposure to the defendant than the people the defense called as witnesses, and if you didn't hear from those people you have to ask yourselves why not." Defendant's failure to request an admonition when doing so would have cured any prejudice forfeits this claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, the prosecutor did not commit misconduct by arguing that defendant's family members were biased and by commenting on defendant's failure to call witnesses that knew defendant best. (People v. Davis (1995) 10 Cal. 4th 463, 539 [41 Cal. Rptr. 2d 826, 896 P.2d 119].)
Defendant next claims the prosecutor committed misconduct by misstating the testimony regarding defendant's confession to his mother, Rita Bennett. Not so. The pages of the record cited by defendant relate to defendant's confession to his wife, Karen Bennett, not his mother, Rita Bennett. Although the prosecutor's reference to "Ms. Bennett" could be understood to mean either defendant's wife or his mother, the prosecutor clearly identified defendant's wife, Karen Bennett, as the subject of that portion of her argument. Moreover, in response to defendant's objection that the prosecutor had misstated the evidence, the trial court admonished the jury that it should follow the evidence as the jury believed it to be. We assume the jury followed the court's admonition avoiding any prejudice. (People v. Jones, supra, 15 Cal.4th at p. 168.)
*617 The prosecutor next addressed testimony about defendant's confession to his wife. Recounting the wife's testimony, the prosecutor noted that she said defendant had not given her many details about his crimes, but had told her that Evans had hit him in the head with a clock. Reminding the jury that defendant had allegedly confessed the rape and murder within the space of an hour-long conversation, the prosecutor remarked that it would have been odd for defendant to have told his wife the detail about being hit with a clock. The prosecutor then argued, "Now, more than likely she made that up because there had been testimony about the photo and the clock." Defense counsel objected that the argument was improper, and the court ruled that "the more than likely is improper." Defendant forfeited the misconduct claim by failing to request an admonition. (People v. Earp, supra, 20 Cal.4th at p. 858.) In addition, the prosecutor's argument did not constitute misconduct. It was permissible to argue based on the evidence that the testimony was not credible. (People v. Dennis, supra, 17 Cal.4th at p. 522; People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor then addressed the testimony of James Waltz, arguing that he was biased because "[h]e's involved with this family here and he doesn't believe in the death penalty." Defense counsel objected that the prosecutor had misstated the evidence, and the trial court sustained the objection. The prosecutor continued, arguing that Waltz "doesn't support the death penalty. He said he could never vote for the death penalty regardless of what the case was." Defendant did not request an admonition and thus forfeited the claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, the prosecutor did not commit misconduct. Waltz testified that he would never vote for the death penalty under any circumstances, and the prosecutor's argument that Waltz was biased because of his ties to defendant's family and his stance on the death penalty constituted fair comment on the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor returned to discussing the circumstances of the crime and invited the jury to speculate about Evans's final moments. "That poor woman was raped and bludgeoned, beaten. Don't you think she begged for mercy, if she couldn't verbally, don't you think she cried out with her eyes." Defense counsel objected that the argument was speculative and the court said that, unless it was supported by the evidence, the prosecutor could not argue it. The prosecutor continued, "We know she was alive during this period of time. We know she didn't consent to her murder and her bludgeoning." Defendant failed to request an admonition and so forfeited the misconduct claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the prosecutor's argument did not constitute misconduct. As she explained, her argument that the victim likely sought mercy was a reasonable inference from evidence in the record. (People v. Williams, supra, 16 Cal.4th at p. 221; People v. Scott (1997) 15 Cal. 4th 1188, 1220 [65 Cal. Rptr. 2d 240, 939 P.2d 354].)
*618 At the close of her argument, the prosecutor anticipated defendant's closing argument by saying, "Now he's going to come in through his defense attorneyswhen I sit down here sometime today. They'll talk to you tomorrow and ask you through the defense attorneys [sic] do him a favor of not giving him the death penalty and I ask you please don't do that. Do not give this man what he wants." Defense counsel objected that there was no evidence about what punishment defendant wanted and the trial court sustained the objection. The misconduct claim is forfeited due to defendant's failure to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, arguing that defendant did not want to be sentenced to death did not constitute an unreasonable inference from the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.) Moreover, while prosecutorial comment on what punishment a defendant wants may not be proper, no conceivable prejudice could have resulted from the brief remark.
Accordingly, we conclude the complained-of remarks did not constitute reversible misconduct.
6. Cumulative Effect of Prosecutorial Misconduct
Defendant contends the numerous alleged instances of prosecutorial misconduct rendered his trial fundamentally unfair, in violation of his federal constitutional right to due process and a reliable verdict. We disagree. Having found no prosecutorial misconduct, we conclude there was no cumulative effect.
7. Cumulative Error
Defendant contends the cumulative prejudicial effect of the various penalty phase errors he has raised on appeal requires reversal of his death sentence. With the exception of a single erroneous evidentiary ruling, which was harmless beyond a reasonable doubt, we have rejected all other claims of error; thus there is no cumulative error.
C. Juror Misconduct Issues
1. Juror No. 84
(14) Defendant contends the trial court erred by failing to excuse Juror No. 84, thereby violating state law and the Eighth and Fourteenth Amendments to the federal Constitution. Specifically, defendant argues reversal is required because the trial court should have excused Juror No. 84 for being unable to perform her duty. We disagree.
*619 After the trial commenced, the court told the jury it anticipated the trial would conclude by the end of Labor Day week. On August 16, 1996, during the penalty phase, the trial court told the jurors that closing argument would likely occur the day after Labor Day, with deliberations to begin thereafter, and if any of the jurors had any problem with the case going into the week of September 9, they should notify the bailiff. The court then recessed until August 26.
On August 29, the jurors were excused early and told to call the court clerk after 4:00 p.m. to see whether they should return on Friday, August 30 or Tuesday, September 3. After the jury exited the courtroom, the trial court advised counsel that Juror No. 84 indicated that, because she was the office manager of an elementary school, it would be difficult on the new students and the staff if she were not at school when the teachers returned on September 9. Defense counsel, concerned that deliberation might be affected if Juror No. 84 remained, requested that the juror be excused and an alternate be seated. The prosecutor asked the trial court to wait and see whether a problem would actually arise. Ultimately, the trial court agreed with the prosecutor and decided not to excuse the juror.
When the jurors called on August 29 to see when they should return, they were informed they should return on September 3. When Juror No. 84 called, the juror told the court clerk she was not happy that she had to return on Tuesday. The court clerk surmised the juror was unhappy because she had wanted to come back on Friday, August 30, and the court described the juror as being disappointed that the jury was not returning until September 3, instead of August 30. Defense counsel asked the court to voir dire the juror and the court agreed.
When the jury returned on September 3, the court told Juror No. 84 that it needed to talk to her, but would do so during a break. At the end of the day, outside the presence of the other jurors, the trial court told Juror No. 84 that it received her note and appreciated her concerns. "Your commitment to your job and your concerns about your job demonstrate you're a responsible person and when you've got a job to do you're going to do it, so that tends to cause us to believe you'd be a good juror because you understand your obligations and are true to them, but I'm very concerned with respect to divided attention, and the law sets up certain standards for me to review in terms of whether a juror should be excused on the basis of hardship, and I guess what I need to know from you is . . . whether you'll be distracted.
"Juror No. 84: No, I just felt like I've already given up my summer vacation for this and I've got almost seven hundred students to worry about and a staff of sixty.
*620 "The court: When you say I've already given up my summer vacation for this, it has been a hardship and I need to know either based on that you think subconsciously you would move more quickly either towards reaching a verdict or more quickly towards declaring an impasse saying we can't reach a verdict. Again, I know you won't consciously do that, but
"Juror No. 84: I don't even think subconsciously that would be a problem.
"The court: Because I know sometimes if I'm in a hurry to get out of here on Friday afternoon when I come back Monday and look at something I wrote, I think I didn't spend a
"Juror No. 84: I understand what you're saying. That's not a problem.
"The court: So if you are required to remain to the conclusion of the case, it could be two or three weeks into the school year.
"Juror No. 84: I understand.
"The court: You still feel you'd be able to approach this task with the same commitment you've had throughout the trial?
"Juror No. 84: Sure.
"The court: You won't be distracted wondering what's happening in school?
"Juror No. 84: Of course I'll be wondering what's happening at school, but it's justreally, I feel strongly about continuing.
"The court: Continuing on the jury?
"Juror No. 84: Yes
"The court: And maintaining your focus on the jury?
"Juror No. 84: Yes."
The next day, after defense counsel finished their closing argument, the court excused the jury and asked counsel for feedback regarding Juror No. 84 while indicating that it "thought [Juror No. 84] made it pretty clear that she would continue to perform her duties as a juror in a competent fashion . . . ." Defense counsel continued to believe the juror should be excused and the prosecutor thought the juror should remain. The court decided not to excuse *621 the juror, explaining that, "Based on what she said yesterday, although I initially had some concerns, after talking with her yesterday I think she appreciates the seriousness of her duties in connection with this case. And I'm not concerned that she will rush to a verdict or rush to an impasse in an effort to end her jury service." The jury began deliberating later that day, continued to deliberate on Thursday, September 5 and Friday, September 6, stopped for the weekend, and reached a verdict on Monday, September 9.
(15) Defendant claims the trial court erred when it decided not to excuse Juror No. 84. We disagree. Section 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is "found to be unable to perform his or her duty." A trial court "has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve." (People v. Millwee (1998) 18 Cal. 4th 96, 142, fn. 19 [74 Cal. Rptr. 2d 418, 954 P.2d 990].) A juror's inability to perform "`must appear in the record as a "demonstrable reality" and bias may not be presumed.' [Citations.]" (People v. Beeler (1995) 9 Cal. 4th 953, 975 [39 Cal. Rptr. 2d 607, 891 P.2d 153].) We review the trial court's determination for abuse of discretion and uphold its decision if it is supported by substantial evidence. (People v. Boyette (2002) 29 Cal. 4th 381, 462 [127 Cal. Rptr. 2d 544, 58 P.3d 391].)
Here, the juror never indicated at any point that her ability to deliberate would be affected by her concern about the impending school year. To the contrary, on numerous occasions, she affirmatively indicated she would not be distracted, would not feel pressure to reach a decision, and would not lose focus because of her job. Indeed, she told the court she felt strongly about remaining on the jury. The court was in the position to observe the juror's demeanor (People v. Schmeck (2005) 37 Cal. 4th 240, 298 [33 Cal. Rptr. 3d 397, 118 P.3d 451]) and the court was persuaded that the juror could perform her duties. Defendant speculates the juror was biased; however, nothing in the record supports his assumption. (People v. Beeler, supra, 9 Cal.4th at p. 975.) Accordingly, we conclude the court did not abuse its discretion in declining to excuse Juror No. 84.
2. Juror No. 20
Defendant argues the trial court erred when it allegedly failed to adequately examine Juror No. 20, failed to excuse Juror No. 20, and declined to reinstruct the jury. Defendant contends reversal is required because his rights under state law and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
*622 At 10:00 a.m. on September 9, the jury informed the court it had reached a verdict. The court excused the jury until 2:00 p.m. Before taking the verdict, the court called counsel into chambers and told them that, at 1:40 p.m., Juror No. 20 called the courtroom and spoke with the bailiff. The bailiff, who was in chambers, recounted that "The gist of the phone call was that [Juror No. 20] had a concern as to what was taking place in the jury room. At that point I told him if there's any problems you need to write them down and I will forward them up and he said he just didn't feel right and once again I told him to write it down and, you know, if he had any problems he had to put it on paper and I would pass it on." The trial court then indicated that Juror No. 20 did not give the bailiff a note when he, along with the other jurors, assembled in the jury room.
The trial court was unsure whether it should inquire of Juror No. 20. Defense counsel felt an inquiry was necessary and the prosecutor wanted to take the verdict without doing so, reasoning that the juror's failure to write a note must mean any concerns had been resolved. There was a lengthy discussion about how best to proceed and, ultimately, it was decided to bring Juror No. 20 into chambers, reference his phone conversation with the bailiff, and invite him to write down any concerns should he have any. Once Juror No. 20 had been brought into chambers, the court inquired and advised him to write any concerns on a note. The juror did so and then returned to the jury room. The court read the note aloud to counsel: "I have reached a verdict as to the proper verdict. It is just very hard for me to verbally say it when being polled. In my mind I do believe my verdict is true and correct, but my heart tells me I cannot do this. It's very difficult. I don't want this trial to go on any longer, but is there any way that an alternate can take my place to reach a verdict so I won't have to verbally say it. I know I said I could do it, but it's a lot harder than I thought, and if I must do it I will."
The court and counsel discussed the note and discussed what action to take. Defense counsel argued that the note meant Juror No. 20 could not fulfill his oath and asked that he be excused and replaced by an alternate. Alternatively, defense counsel asked the court to tell Juror No. 20 that he should not have signed the verdict form unless he was prepared to state it was his verdict in open court. Defense counsel also asked the court to reinstruct the entire jury, pursuant to CALJIC No. 8.88, that it should only impose the sentence that each juror personally felt was warranted. The prosecutor asked the court to bring the juror into chambers and inquire what he intended to do when polled in open court. Because a verdict had been reached, if the juror intended to agree when polled, there was no problem to resolve. The prosecutor felt further intervention was warranted only if the juror said he intended to disagree when polled. The court ultimately concluded that there were not sufficient grounds to excuse the juror. It instead decided to tell the juror that the jury would be individually polled after the verdict was *623 announced and to ask him whether he could answer yes. If not, the court could deal with it then. Then, referring to the bailiff's recounting of Juror No. 20's phone call, defense counsel noted that the juror had made reference to "some things going on in the jury room" and asked the court to conduct an inquiry into his concerns. The court pointed out that the statement was merely part of the bailiff's best effort to paraphrase the conversation.
The court then brought Juror No. 20 into open court and told him that, as in the guilt phase, the jurors would be collectively and individually polled after the court clerk read the penalty phase verdict to determine whether the verdict expressed their votes. The court said it did not want to know what the verdict was, but wanted to know if the juror could give an answer when polled. The juror responded, "I think I could do it. It's just, I guess, the nervousness if you want to call it. It would be easier for meall the jurors. It's not an easy thing. It's difficult to do it, but I can do it. It's just the nervousness was part of my concern." The court followed up, "But when asked in open court if this expresses your verdict you can answer either yes or no?" The juror responded, "Yes" and was returned to the jury room. Defense counsel renewed his motion to excuse the juror and replace him with an alternate and to reinstruct the jury. Finding no good cause, the trial court denied the motion. The jury returned a death verdict and, when polled, Juror No. 20 responded that the verdict reflected his penalty determination.
Defendant argues the trial court erred. He contends the trial court's inquiry was too limited, that the court should have excused Juror No. 20 for inability to fulfill his duty as a juror, and that the court should have reinstructed the entire jury. We disagree.
First, the court did not err when it concluded Juror No. 20 could fulfill his duty. (People v. Boyette, supra, 29 Cal.4th at p. 462.) The juror's note and the court's subsequent inquiry established that the juror's concern was about having to state in open court that he felt a death sentence was appropriate. Any such anxiety was understandable given the consequences of his vote. However, the juror subsequently told the court that, while difficult, he could fulfill his duty by verbally affirming that he concurred in the jury's penalty determination. Indeed, the juror ultimately did so. There is no evidence in the record to support the conclusion that the juror was unable to perform his duty.[17] (People v. Beeler, supra, 9 Cal.4th at p. 975.)
(16) Second, the court did not abuse its discretion in determining the scope of its inquiry. Defendant argues that Juror No. 20 communicated a *624 broader concern about jury deliberations and it was incumbent upon the court to inquire. The record does not support his contention. The bailiff, in what the trial court described as his best effort to paraphrase the conversation with Juror No. 20, made a vague reference to "a concern as to what was taking place in the jury room." However, despite being instructed to do so by the bailiff, Juror No. 20 did not write a note about any concerns. Even after the trial court brought the juror into chambers and invited him to write down any concerns, the juror's note made no mention of concerns about anything taking place in the jury room. Nor, during the court's subsequent inquiry, did the juror mention any other concerns. "`The decision whether to investigate the possibility of juror bias, incompetence, or misconductlike the ultimate decision to retain or discharge a jurorrests within the sound discretion of the trial court. [Citation.]'" (People v. Cleveland (2001) 25 Cal. 4th 466, 478 [106 Cal. Rptr. 2d 313, 21 P.3d 1225].) Moreover, trial courts should use caution when making inquiries because of the need to protect the sanctity and secrecy of jury deliberations. (Id. at p. 475.) In light of the juror's failure to raise concerns about anything taking place during jury deliberations, the court did not abuse its discretion when it chose not to conduct a broader inquiry.
Third and finally, the court did not abuse its discretion when it declined defendant's request that it reinstruct the entire jury with CALJIC No. 8.88. The jury had already been so instructed and nothing suggests the trial court needed to do so again. The jury had already reached a verdict. Nothing in Juror No. 20's note nor in his answers during the court's inquiry called the validity of the verdict into question. Accordingly, the court's decision not to reinstruct the jury was not error.
3. Defendant's Motion for a New Trial
Defendant claims Juror No. 20 committed prejudicial misconduct during the penalty phase deliberations and that the trial court erred when it denied his motion for a new trial. Defendant further contends that reversal of both his conviction and penalty is required under state law and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. We disagree.
On December 6, 1996, defendant filed a motion for a new trial, alleging Juror No. 20 had committed misconduct. Exhibit A to the motion was a November 26, 1996 declaration, signed by Juror No. 20 under penalty of perjury, in which he stated that, "In 1993 or 1994, I was arrested for my role in a bar fight. I spent two days in jail. The charges were eventually dropped. That experience was very difficult for me." Exhibit B to the motion was the juror's May 8, 1996 voir dire questionnaire, also signed under penalty of perjury, in which he stated that he had never been arrested. Defendant argued Juror No. 20 had committed prejudicial misconduct by lying during voir dire.
*625 At a hearing on the motion, defense counsel indicated that a number of jurors indicated Juror No. 20 had said during deliberations that he had previously been arrested. Defense counsel asked the prosecutor to check whether the juror had any criminal arrests. The prosecutor opposed the request, unsure that he had the authority to obtain the juror's arrest record and provide it to the defense. Moreover, the prosecutor argued that, even assuming the juror had committed misconduct, defendant had not established any prejudice. The trial court concluded further inquiry was warranted.
At subsequent hearings, both the prosecution and defense indicated they had inquired with several law enforcement agencies, but had been unable to locate any booking records for Juror No. 20. Defense counsel indicated that several jurors remembered Juror No. 20 talking about having been arrested. Juror No. 20 had also allegedly expressed "how horrible jail was." Defense counsel argued that one could infer from such a statement either that the juror was advocating a life sentence verdict or that "it's a lot easier to sentence somebody to death if you think jail is so bad anyway." Defense counsel also acknowledged that it was alternatively possible that the "juror made up a story in deliberations then lied on a declaration." The prosecutor indicated that "we have received some information that in fact the juror may not have been arrested in the sense of the word that we would consider an arrest." It was decided that the prosecutor would obtain a declaration from Juror No. 20 addressing the apparent inconsistencies.
At the next hearing on the matter, the court discussed Juror No. 20's most recent declaration, obtained by the prosecution. The court noted that the juror's declaration "appears to suggest that he was not arrested, that he was detained, and he believes it might have beenit was with private security guards who detained him in an office, and it might have been overnight." The court noted that the most recent declaration conflicted both with his previous declaration and with the recollection of the other jurors who clearly remembered Juror No. 20 mentioning "jail." In light of counsel's inability to verify that the juror had been arrested and of the new declaration, the court concluded Juror No. 20 did not lie on his juror questionnaire, but did lie to the other jurors when he told them he had spent time in jail and it was a horrible experience. Addressing whether defendant had suffered any prejudice, the court said its "initial take on it is [Juror No. 20] exaggerated his experience for attention getting." Defense counsel was concerned about exactly what Juror No. 20 said to the other jurors and indicated that Juror No. 20's behavior possibly indicated something about "his state of mind." It was agreed that the court would have the juror come in and the court would further inquire.
At the next hearing, the court questioned Juror No. 20 at length under oath. In addition to inquiring about the alleged incident, the court asked what Juror *626 No. 20 had said to other jurors during deliberations regarding his experience and Juror No. 20 responded that he had, on two occasions, told a juror in the presence of other jurors, "have you ever been in jail, it's a very difficultit was for me when I was there." The court took a brief break to allow counsel to propose any additional questions. Upon resumption of the examination, the court asked additional questions about the alleged incident with the security guards.
At the conclusion of the hearing, after considering the evidence and hearing argument from both counsel, the court found that the juror did not lie on his juror questionnaire, but that he did lie when he told jurors he had been arrested and been in jail. The court further found that the juror had made only a brief "mention" of the alleged experience and did not have a "conversation" about it. The court found that the juror had not been truthful when he signed either of the posttrial declarations. The court concluded that the juror committed misconduct when he made a false statement during deliberations. The court further concluded, however, that there was no evidence of prejudice. In addition to the statement being brief, the court explained that jail is commonly known by the public to be a bad place. The court also noted that jail is portrayed as awful in popular media and that the defense had introduced testimony in the penalty phase about the difficulties of life in jail. The court denied defendant's motion for a new trial.
(17) Defendant contends the trial court erred when it denied his motion for a new trial. We disagree. At the outset, we note that the trial court found that the juror did not lie on his juror questionnaire and we accept that factual determination, as it is supported by substantial evidence, including the lack of any records indicating defendant had been arrested. (People v. Ramos (2004) 34 Cal. 4th 494, 520 [21 Cal. Rptr. 3d 575, 101 P.3d 478].) As for the juror's posttrial declarations, the court found that the juror had lied in them. However, a juror's postverdict lying to cover up misconduct, "although certainly improper, does not show bias during the trial, deliberations, and verdict." (In re Carpenter (1995) 9 Cal. 4th 634, 657 [38 Cal. Rptr. 2d 665, 889 P.2d 985].) Accordingly, only the juror's comments during deliberation constitute potentially prejudicial misconduct. While the court concluded these comments constituted misconduct, it nonetheless decided defendant had not established prejudice.
Misconduct by a juror raises a rebuttable presumption of prejudice. (People v. Danks (2004) 32 Cal. 4th 269, 302 [8 Cal. Rptr. 3d 767, 82 P.3d 1249].) However, we will set aside a verdict only where there is a substantial likelihood of juror bias. (Id. at p. 303.) We will find such bias if the misconduct is inherently and substantially likely to have influenced the jury. (Ibid.) Alternatively, even if the misconduct is not inherently prejudicial, we *627 will nonetheless find such bias if, after a review of the totality of the circumstances, a substantial likelihood of bias arose. (Ibid.) While the existence of prejudice is a mixed question of law and fact subject to this court's independent determination, we accept a trial court's credibility determinations and factual findings when they are supported by substantial evidence. (Id. at pp. 303-304.)
We conclude Juror No. 20's comments did not create a substantial likelihood of juror bias. First, the trial court found Juror No. 20's comments were brief, and its finding was supported by substantial evidence including both the juror's answers to the court's questions as well as the other jurors' declarations. For example, while Juror No. 17 said Juror No. 20 had stated he had spent a "very short stay" in jail, she indicated she could not recall any specific comments made by Juror No. 20. Similarly, Juror No. 94 told the defense investigator that Juror No. 20 had "mentioned only that he had `an experience' in jail and that it was horrible," and that the other jurors did not ask for any details nor did she recall any other information on the subject. In short, as the trial court concluded, Juror No. 20's reference to being in jail was merely a fleeting comment.[18]
Second, the trial court concluded that the substance of the juror's brief commentthat jail was "scary" and "horrible"did not create a substantial likelihood of juror bias. The court noted that jail is already widely understood to be a bad place to be and that it is portrayed as such in "novels, movies, television programs, . . . documentaries." The court also pointed out defense witnesses testified in the penalty phase about unsavory jail conditions. For example, Emedio Sandoval, a convicted child molester, testified that defendant had been attacked by another inmate in jail and also testified about the social hierarchy among inmates. Considering the totality of the circumstances, Juror No. 20's comment that jail was scary and horrible did not create a substantial likelihood of juror bias.
Alternatively, defendant also argues the trial court should have granted his motion for a new trial because Juror No. 20 was unfit to sit on the jury. Citing the juror's numerous lies, defendant claims "something was off with Juror [No.] 20" and that he engaged in "bizarre" and "pathological" behavior. Nothing supports this interpretation. To the contrary, the record suggests the juror first lied to his fellow jurors about having been in jail in order to garner attention and then, once the defense investigator approached him about his comments, the juror understood he had committed misconduct and engaged *628 in a series of contradictory explanations in an effort to get out of trouble. Nothing other than mere speculation supports defendant's contention that Juror No. 20 was "pathological" or otherwise incapable of performing his duty as a juror. (People v. Beeler, supra, 9 Cal.4th at p. 975.) The trial court did not err when it denied defendant's motion for a new trial.
D. Other Issues
1. Denial of Application to Modify the Penalty Verdict
Once the jury returned a death verdict, the trial court considered an automatic motion for a modification of the sentence (§ 190.4, subd. (e)), which the trial court denied. Defendant contends the trial court's decision constituted error. Specifically, defendant asserts the trial court's failure to "take into account the proportionality aspect of the death penalty" requires reversal. We disagree.
(18) A trial court's duty under section 190.4, subdivision (e), is to "independently reweigh the evidence of aggravating and mitigating factors presented at trial and determine whether, in its independent judgment, the evidence supports the death verdict." (People v. Steele (2002) 27 Cal. 4th 1230, 1267 [120 Cal. Rptr. 2d 432, 47 P.3d 225].) The record demonstrates that the trial court did so here. In aggravation, the trial court discussed the calculated nature of the crimes, the fact that defendant likely chose the women he attacked because he was aware they lived alone, and the brutality of the attacks. The court next identified numerous mitigating factors including, among other things, defendant's lack of criminal history, his addiction to drugs, his childhood, and his devotion to his children. The trial court then independently reweighed the evidence and ultimately concluded that the circumstances of the crime were "so compelling that [their] weight alone substantially outweighed the totality of the mitigating factors." The trial court carefully performed its duty under section 190.4, subdivision (e).
Defendant also argues that the circumstances of this crime were not so bad as to place defendant among "the worst of the worst." To the extent defendant is claiming the trial court erred by failing to compare the crimes in this case with other death penalty cases, we have held such intercase proportionality review is not required by either the state or federal Constitution. (People v. Lenart (2004) 32 Cal. 4th 1107, 1130 [12 Cal. Rptr. 3d 592, 88 P.3d 498]; People v. Sapp (2003) 31 Cal. 4th 240, 317 [2 Cal. Rptr. 3d 554, 73 P.3d 433].) To the extent he is arguing that his sentence was disproportionate to his personal culpability, we disagree. (People v. Steele, supra, 27 Cal.4th at p. 1269.) As the trial court explained, "[defendant] did not randomly select his victims but rather used his special knowledge as a workman or as a *629 neighbor to assess their vulnerability before he preyed upon [them] . . . . [¶] There was unusual emotional brutality in the rape and forced oral copulation of the first victim. And there was unusual physical brutality in the killing of [Evans]." Defendant's sentence "is not disproportionate to [his] personal culpability. It does not shock the conscience." (People v. Steele, supra, 27 Cal.4th at p. 1269.) The trial court did not err when it declined to modify the sentence.
2. Equal Protection Challenge to Imposition of the Death Penalty
Defendant argues that the death penalty in California violates the California Constitution and the Eighth and Fourteenth Amendments to the United States Constitution because it is imposed arbitrarily and capriciously depending on the county in which the case is prosecuted. As defendant concedes, we have repeatedly rejected substantially similar claims, concluding that "prosecutorial discretion to select those eligible cases in which the death penalty [would] actually be sought does not . . . offend principles of equal protection, due process, or cruel and/or unusual punishment. [Citations.]" (People v. Keenan (1988) 46 Cal. 3d 478, 505 [250 Cal. Rptr. 550, 758 P.2d 1081]; see People v. Brown (2004) 33 Cal. 4th 382, 403 [15 Cal. Rptr. 3d 624, 93 P.3d 244]; People v. Williams, supra, 16 Cal.4th at p. 278.) Defendant does not identify a reason to reconsider our prior holdings and we decline to do so.[19]
3. Delay in Appointment of Appellate Counsel
Defendant contends that the four and a half years it took to appoint appellate counsel to represent him violates his rights under the United States Constitution. We have previously considered and rejected identical claims. (People v. Dunkle (2005) 36 Cal. 4th 861, 942 [32 Cal. Rptr. 3d 23, 116 P.3d 494]; People v. Snow (2003) 30 Cal. 4th 43, 127 [132 Cal. Rptr. 2d 271, 65 P.3d 749]; People v. Welch (1999) 20 Cal. 4th 701, 775-776 [85 Cal. Rptr. 2d 203, 976 P.2d 754]; People v. Holt (1997) 15 Cal. 4th 619, 708-709 [63 Cal. Rptr. 2d 782, 937 P.2d 213].) Defendant relies on federal authority in noncapital cases, but as we have explained, "[n]one of those decisions address the unique demands of appellate representation in capital cases." (People v. Holt, supra, 15 Cal.4th at p. 709.) Additionally, "defendant fails to demonstrate that the delay inherent in the procedures by which California recruits, screens, and appoints attorneys to represent capital defendants on appeal, is not necessary to ensure that competent representation is available for indigent capital *630 appellants." (Ibid.) Defendant has identified no reason to reconsider our prior holdings and we decline to do so.
4. Eighth Amendment Challenge to Preexecution Delay
Defendant argues that executing defendant after his "lengthy confinement under sentence of death"[20] would constitute cruel and unusual punishment in violation of the federal Constitution, the California Constitution, and international law. We have repeatedly rejected this claim and do so again here. As we have explained, "the delay inherent in the automatic appeal process `is not a basis for finding that either the death penalty itself or the process leading to it is cruel and unusual punishment.' (People v. Hill [(1992)] 3 Cal.4th [959,] 1016 [13 Cal. Rptr. 2d 475, 839 P.2d 984]....)" (People v. Massie (1998) 19 Cal. 4th 550, 574 [79 Cal. Rptr. 2d 816, 967 P.2d 29], italics omitted; see People v. Jones, supra, 29 Cal.4th at p. 1267; People v. Anderson (2001) 25 Cal. 4th 543, 606 [106 Cal. Rptr. 2d 575, 22 P.3d 347]; People v. Frye (1998) 18 Cal. 4th 894, 1030-1031 [77 Cal. Rptr. 2d 25, 959 P.2d 183].)
5. Other Constitutional Challenges to Death Penalty Statute and Instructions
Defendant contends a number of California's death penalty provisions violate the federal Constitution. He acknowledges that this court has repeatedly rejected identical claims in prior decisions but argues that we should reconsider our holdings. Having found no reason to do so, we reject these claims without extensive discussion.
Defendant argues that California's death penalty statute does not meaningfully narrow the pool of murderers eligible for the death penalty. We have repeatedly held that section 190.2 "does not contain so many special circumstances that it fails to perform the constitutionally mandated narrowing function. [Citations.]" (People v. San Nicolas (2004) 34 Cal. 4th 614, 677 [21 Cal. Rptr. 3d 612, 101 P.3d 509]; see People v. Morrison (2004) 34 Cal. 4th 698, 729 [21 Cal. Rptr. 3d 682, 101 P.3d 568]; People v. Crittenden (1994) 9 Cal. 4th 83, 154-156 [36 Cal. Rptr. 2d 474, 885 P.2d 887].)
Defendant contends section 190.3, factor (a) is unconstitutional because it has been applied in such a "wanton and freakish manner," without the application of any reasonable limiting construction, that it results in the arbitrary and capricious imposition of the death penalty. To the contrary, *631 section 190.3, factor (a) "instructs the jury to consider a relevant subject matter and does so in understandable terms." (Tuilaepa v. California (1994) 512 U.S. 967, 976 [129 L. Ed. 2d 750, 114 S. Ct. 2630].) Defendant further complains that factor (a) unconstitutionally permits circumstances to be considered aggravating in one case while neutral or mitigating in another case. We have rejected this precise claim, explaining that "there is no constitutional requirement that the sentencer compare the defendant's culpability with the culpability of other defendants. [Citation.]" (People v. Jenkins (2000) 22 Cal. 4th 900, 1051 [95 Cal. Rptr. 2d 377, 997 P.2d 1044].)
Defendant argues that California's death penalty statute violates the federal Constitution because it fails to incorporate certain "safeguards" against the arbitrary imposition of death. We address each alleged omission in turn.
First, citing Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L. Ed. 2d 435, 120 S. Ct. 2348] and Ring v. Arizona (2002) 536 U.S. 584 [153 L. Ed. 2d 556, 122 S. Ct. 2428], defendant claims that jurors must find aggravating factors true beyond a reasonable doubt, unanimously agree on the presence of a particular aggravating factor, and find that the aggravating factors outweighed mitigating factors. We have repeatedly rejected such claims. (People v. Bell (2007) 40 Cal. 4th 582, 620 [54 Cal. Rptr. 3d 453, 151 P.3d 292]; People v. Rogers (2006) 39 Cal. 4th 826, 893 [48 Cal. Rptr. 3d 1, 141 P.3d 135]; People v. Morrison, supra, 34 Cal.4th at pp. 730-731.)
Second, defendant contends the state and federal Constitutions require that the jury be instructed that it may impose a death sentence only if it determines, beyond a reasonable doubt, that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. We have rejected this contention on numerous occasions. (People v. Bell, supra, 40 Cal.4th at p. 620; People v. Avila (2006) 38 Cal. 4th 491, 614 [43 Cal. Rptr. 3d 1, 133 P.3d 1076]; People v. Morrison, supra, 34 Cal.4th at p. 730.)
Third, defendant argues that the failure to assign the state a burden of proof renders unconstitutional California's death penalty statute. Defendant claims that, at a minimum, a jury should have to find, by a preponderance of the evidence, that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate sentence. We disagree. We have previously concluded that no burden of proof or burden of persuasion is required during the penalty determination. (People v. Elliot (2005) 37 Cal. 4th 453, 487-488 [35 Cal. Rptr. 3d 759, 122 P.3d 968]; People v. Lenart, supra, 32 Cal.4th at pp. 1135-1136.) Defendant identifies no reason to revisit our prior decisions.
*632 Fourth, defendant contends that some burden of proof is constitutionally required at the penalty phase to break ties for those jurors who find themselves torn between imposing a death sentence and sentencing the defendant to life without the possibility of parole. As discussed above, no burden of proof or burden of persuasion is required during the penalty phase. (People v. Elliot, supra, 37 Cal.4th at pp. 487-488; People v. Lenart, supra, 32 Cal.4th at pp. 1135-1136.) Additionally, the jury was instructed it could return a sentence of death only if it "conclude[d] that the aggravating circumstances substantially outweigh the mitigating circumstances." Accordingly, no "tie-breaking rule" was necessary.
Fifth, defendant alternatively argues that the jury should have been instructed that there was no burden of proof. We have repeatedly rejected identical claims. (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Cornwell (2005) 37 Cal. 4th 50, 104 [33 Cal. Rptr. 3d 1, 117 P.3d 622].)
Sixth, defendant contends the failure to require written or other specific findings by the jury regarding aggravating factors violates the federal Constitution. We have rejected that contention on numerous occasions. (See People v. Elliot, supra, 37 Cal.4th at p. 488.)
Seventh, defendant claims that the lack of intercase proportionality review for death penalty cases is unconstitutional. We have, as defendant acknowledges, repeatedly held that intercase proportionality review is not required. (People v. Williams (2006) 40 Cal. 4th 287, 338 [52 Cal. Rptr. 3d 268, 148 P.3d 47]; People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Anderson, supra, 25 Cal.4th at p. 602.)
Defendant argues that the California sentencing scheme denies capital defendants equal protection by denying procedural safeguards to capital defendants that are afforded to noncapital defendants. As we have previously explained, "[t]he death penalty law does not deny capital defendants equal protection because it provides a different method of determining the sentence than is used in noncapital cases." (People v. Smith, supra, 35 Cal.4th at p. 374.)
Defendant contends the death penalty statute violates international law, a contention we have repeatedly rejected. (People v. Elliot, supra, 37 Cal.4th at p. 488.) Nor, contrary to defendant's argument, does the death penalty violate the Eighth and Fourteenth Amendments to the United States Constitution. (People v. Blair (2005) 36 Cal. 4th 686, 754-755 [31 Cal. Rptr. 3d 485, 115 P.3d 1145].)
*633 III. DISPOSITION
The judgment is affirmed.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
NOTES
[1] All further unlabeled statutory references are to the Penal Code.
[2] Although Pamela B. was unable to identify defendant as her attacker, DNA evidence obtained during a sexual assault examination was later matched to defendant's DNA. At the penalty phase, the defense acknowledged defendant had assaulted and raped Pamela B.
[3] Throughout the trial, Marie Powell Evans was referred to interchangeably as Powell and Evans. For the sake of uniformity, we use Evans when referring to the victim.
[4] Among other things, section 893 requires that grand jurors be United States citizens, 18 years or older, a resident of the county for at least one year before being selected, and "in possession of [their] natural facilities, of ordinary intelligence, of sound judgment, and of fair character." (§ 893, subd. (a).)
[5] Section 896 does not require that the superior court's interview of potential grand jurors be recorded or transcribed.
[6] Citing Dustin v. Superior Court, supra, 99 Cal. App. 4th 1311, defendant argues we should apply a reversal per se standard. We disagree. Unlike in this case, Dustin involved a pretrial challenge where the Court of Appeal ordered the superior court to dismiss the indictment. As the court noted in Dustin, in a post-conviction case a defendant must show actual prejudice. (Id. at p. 1325.) Defendant fails to do so.
[7] The voters enacted section 1054.6 in 1990 by passing Proposition 115. Defendant's crimes and trial occurred well after 1990.
[8] The trial court ultimately instructed the jury that it was not to "draw any adverse inferences against the defendant for exercising his constitutional right to a trial by jury." We presume the jury followed the instructions it was given. (People v. Prince, supra, 40 Cal.4th at p. 1295.)
[9] Indeed, Dr. Kaser-Boyd testified at length about defendant's relationship with his children, the children's feelings for defendant, and how defendant's relationship with his children would likely continue should he live.
[10] By contrast, the trial court permitted the expert to testify about the children's bond with defendant, their love for him, and how they would benefit from a continuing relationship if he were allowed to live. Such testimony "constitute[d] indirect evidence of the defendant's character." (Ochoa, supra, 19 Cal.4th at p. 456.)
[11] In light of this conclusion, we need not consider whether the trial court was correct in excluding the proposed testimony as speculative and as the improper subject of expert testimony.
[12] While defendant did not object at trial on constitutional grounds, these claims are not forfeited on appeal. (People v. Partida (2005) 37 Cal. 4th 428, 433-439 [35 Cal. Rptr. 3d 644, 122 P.3d 765].) Defendant merely contends that the rulings, in addition to being wrong for reasons actually presented to the trial court, also violated the federal Constitution.
[13] As we noted in People v. Jones (2003) 29 Cal. 4th 1229, 1264, footnote 11 [131 Cal. Rptr. 2d 468, 64 P.3d 762], "[o]ur state reasonable possibility standard is the same, in substance and effect, as the [Chapman] harmless beyond a reasonable doubt standard . . . ."
[14] Alternatively, defendant could have pressed the trial court to rule on the request for an admonition regarding the absence of other criminal activity.
[15] Similarly, while the prosecutor said in open court that she had "a document" she wanted marked as an exhibit, she did not say, in front of the jury, the document was a court order.
[16] Pamela B. was asked to describe how defendant covered his face with a T-shirt. Pamela B. responded, "I've used the term `ninja style' before. It'sit covered his head completely."
[17] The juror made clear that his concern was not about the jury's penalty determination. His note said he felt he had reached the "proper verdict" and that the "verdict [was] true and correct."
[18] Defendant contends Juror No. 20 also committed misconduct by holding himself out as a "jail veteran" and "played expert" on what jail was like. The evidence does not support defendant's claimto the contrary, it establishes the comments were brief and were not the subject of further discussion.
[19] Defendant urges this court to reexamine our prior cases in light of the high court's voting rights decision in Bush v. Gore (2000) 531 U.S. 98 [148 L. Ed. 2d 388, 121 S. Ct. 525]. That case does not warrant revisiting our prior holdings.
[20] Defendant was sentenced to death on January 9, 1997. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2604245/ | 68 Wash. App. 521 (1993)
843 P.2d 1121
851 P.2d 1241
MICHAEL WAITE, ET AL, Appellants,
v.
BILL MORISETTE, ET AL, Defendants, NORTHWEST PROPANE SALES, INC., Respondent.
Nos. 27092-3-I; 27212-8-I.
The Court of Appeals of Washington, Division One.
January 25, 1993.
As amended by order April 8, 1993.
As amended by order May 4, 1993.
*522 Philip E. Rosellini and Smith, Rosellini & Kosanke, for appellants.
Malcolm L. Edwards and Edwards, Sieh, Wiggins & Hathaway, P.S.; Robert Burns, for respondent.
Gary N. Bloom and Bryan P. Harnetiaux, amici curiae.
[As amended by orders of the Court of Appeals April 8 and May 4, 1993.]
SCHOLFIELD, J.
Following a jury verdict in a tort action, Michael Waite and his wife (Waite) appeal the trial court's judgment reducing a jury award against Northwest Propane Sales by amounts Waite received in settlement from other parties. We reverse.
In 1983, Waite leased a home in Bellingham from Bill Morisette that was heated by a liquid propane furnace. When Waite tried to light the furnace on October 12, 1986, an explosion severely injured him, causing burns over 40 percent of his body.
Waite filed a complaint in Whatcom County, naming four defendants: Morisette, the landlord; Northwest Propane, the *523 retail supplier of the propane gas; Feller, the installer of the furnace; and Whatcom County, which approved the installation of the furnace despite a statute prohibiting propane furnaces in basements.
After Whatcom County lost its argument that the public duty doctrine immunized it from liability,[1] it settled with Waite before trial for $450,000. At all times Whatcom County denied liability. On August 22, 1990, the trial court held a reasonableness hearing in which it approved the settlement and dismissed the County as a party defendant.
The case proceeded to trial. At the close of the plaintiffs' case, the court granted Feller's motion for a directed verdict of dismissal. On September 17, 1990, Waite and Morisette agreed to settle for $10,000, which the court approved following a reasonableness hearing.
At the end of trial against the only remaining defendant, Northwest Propane, the court instructed the jury to apportion fault among Waite and the four original defendants. The jury determined that Waite was 75 percent at fault, Northwest Propane 20 percent at fault, and Northwest Propane's serviceman 5 percent at fault. Whatcom County, Morisette, and Feller were exonerated.
On October 1, 1990, the court entered a judgment offsetting the settlement amounts received by Waite against the verdict of $337,500 against Northwest Propane. Because the amounts received by Waite in settlement exceeded the judgment against Northwest Propane, the court determined Waite should recover nothing from Northwest Propane.
Waite appeals, contending that where proportionate liability applies under RCW 4.22.070, nonsettling defendants should not receive credit for moneys recovered from settling defendants.
This issue requires an analysis of the proportionate fault statute, RCW 4.22.070, adopted in 1986.
Under common law, if more than one concurrent or successive tortfeasor defendant caused plaintiff's injuries, liability *524 was joint and several and each defendant was liable for the whole injury. A plaintiff could sue one or all of the tortfeasors to obtain a full recovery, and there was no right of contribution among joint tortfeasors. See W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts §§ 46-52 (5th ed. 1984); Washburn v. Beatt Equip. Co., 120 Wash. 2d 246, 291, 840 P.2d 860 (1992); Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash. 2d 230, 588 P.2d 1308 (1978). The common law was altered in 1981 with the enactment of the contributory fault statute, RCW 4.22.005 et seq., which set forth a settlement procedure in multiple tortfeasor cases and provided for contribution, but left intact joint and several liability. One of the provisions, RCW 4.22.060(2), requires that a claim against a nonsettling defendant be reduced by any amount received in settlement from other defendants:
A release ... entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement....
This requirement of RCW 4.22.060(2) was logical so long as joint and several liability remained in effect, because a nonsettling defendant could be liable for 100 percent of the damages regardless of the degree to which that party was at fault. Thus with joint liability, fairness dictated that credit be given for amounts paid to the claimant by settling defendants.
In 1986, the Legislature established proportionate liability by passing RCW 4.22.070, but did not repeal RCW 4.22.060. RCW 4.22.070(1) requires the trier of fact to determine the percentage of fault attributable to "every entity which caused the claimant's damages", and requires that judgment be entered for each party's proportionate share of the claimant's total damages.
The statute specifies exceptions to proportionate liability, however. Joint and several liability, as modified by the 1981 *525 provisions (including RCW 4.22.060), continues to apply where defendants act in concert, a person acts as an agent or servant of a party, or a claimant is not at fault. RCW 4.22.070(1)(a), (b). It is under these exceptions that RCW 4.22.060 has continued effect:
If a defendant is jointly and severally liable under one of the exceptions listed in subsections (1)(a) or (1)(b) of this section, such defendant's rights to contribution against another jointly and severally liable defendant, and the effect of settlement by either such defendant, shall be determined under RCW 4.22.040, 4.22.050, and 4.22.060.
RCW 4.22.070(2).
RCW 4.22.030 continues joint and several liability unless otherwise provided in RCW 4.22.070.
[1] The statutory scheme adopted with passage of RCW 4.22.070 makes it plain that RCW 4.22.060 is only applicable to those few exceptions contained in RCW 4.22.070(1)(a) and (b). Because this case does not concern those exceptions, we find RCW 4.22.060 is irrelevant to resolution of the issue in this appeal.
[2, 3] Another argument for disallowing a credit for amounts received in settlement is that the Legislature, despite its reference in RCW 4.22.070(2) to RCW 4.22.060, omitted any analogous credit provision in RCW 4.22.070(1), thus signifying its intention that no such provision apply where liability is proportionate. If the omission was inadvertent, "[a] court may not read into a statute those things which it conceives the Legislature may have left out unintentionally." Addleman v. Board of Prison Terms & Paroles, 107 Wash. 2d 503, 509, 730 P.2d 1327 (1986). While this may be sufficient reason to rule in appellants' favor, there are other arguments as well.
Where proportionate liability applies, as here, a defendant can never be liable for more than his percentage share, because recovery is limited to his proportionate share of the total damages. The reasons for allowing credits where the liability is joint and several are not present where liability is proportionate:
*526 In a jurisdiction with pure several liability, a non-settling defendant should not receive a credit. Credits address two concerns. They reimburse a non-settling defendant for an extinguished contribution claim. They also prevent a claimant from securing more than one full recovery.
(Footnotes omitted.) Harris, Washington's 1986 Tort Reform Act: Partial Tort Settlements After the Demise of Joint and Several Liability, 22 Gonz. L. Rev. 67, 76 (1986-1988). Because a nonsettling defendant cannot be held liable for more than his proportionate share, no credit is needed to prevent a defendant from bearing an unfair burden of more than its share. Similarly, no credit is needed to prevent the claimant from securing more than full recovery, because even in the best of circumstances, if the claimant recovers from all the defendants he will recover no more than 100 percent.[2] As the court in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 431 (Tex. 1984) stated:
The reasoning behind the one recovery rule no longer applies.... Because each defendant's share can now be determined, it logically follows that each may settle just that portion of the plaintiff's suit. The settlement does not affect the amount of harm caused by the remaining defendants and likewise should not affect their liability.
Duncan, at 431.
Other courts have followed this reasoning. In Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987), the court ruled that settlement moneys paid by a tortfeasor in excess of its proportionate share of damages as determined by jury did not relieve a nonsettling tortfeasor of its obligation to pay a full, pro rata share. The court recited the policy reasons for supporting settlements, and stated that:
The inducements for a defendant to settle are the certainty of the agreed-upon obligation and the avoidance of the vagaries of trial.... Any subsequent trial against the remaining defendants *527 should not disturb the resolution reached between the plaintiff and the settling tortfeasor. It would be an equal disservice to a supportive settlement policy to provide a windfall to a non-settling tortfeasor where the settlement proves to be more generous than the subsequent verdict....
....
[It is a] fallacy that the jury's verdict represents a measurement of damages superior to that agreed upon by the settling parties....
Charles, at 477-78. In light of the strong policy reasons for supporting settlements, one court pointed out the danger that if the rule were contrary, settlements would be less likely:
If the plaintiff knew that any settlement reached would be deducted from the proportionate share owed to the plaintiff by another tortfeasor, the plaintiff would be less likely to settle. Similarly, tortfeasors might refuse to settle, hoping that their just share of damages would be reduced by the settlement amount paid by another tortfeasor.
Kussman v. City & Cy. of Denver, 706 P.2d 776, 782 (Colo. 1985).
Finally, there is the question of symmetry. If a claimant settles "low" in light of the eventual decision at trial, the claimant bears that consequence. "[S]ymmetry requires that if the disadvantage of settlement is [the claimant's,] so ought the advantage be." Roland v. Bernstein, 171 Ariz. 96, 828 P.2d 1237, 1239 (App. 1991). As the Roland court pointed out, it would be anomalous to give the benefit of an advantageous settlement to the nonsettling tortfeasor rather than to the plaintiff who negotiated it.
Here, the trial court's ruling erroneously provided Northwest Propane with a windfall simply because Waite happened to secure a settlement with Whatcom County that turned out to be generous in light of the jury's decision.
The trial court's determination that Waite was the prevailing party for the purposes of costs is correct in light of the above analysis.
The trial court judgment is reversed, and the case is remanded to the trial court with instructions to enter judgment *528 for the plaintiff for the full amount of the verdict against Northwest Propane.
WEBSTER, C.J., and AGID, J., concur.
After modification, further reconsideration denied April 8, 1993.
Review denied at 122 Wash. 2d 1006 (1993).
NOTES
[1] See Waite v. Whatcom Cy., 54 Wash. App. 682, 775 P.2d 967 (1989).
[2] Recovery could be more than 100 percent of the eventual judgment if the claimant was fortunate enough to settle high with some of the defendants. Of course, the claimant also runs the risk of settling low with any given defendant, that is, for an amount less than that defendant's proportionate share of 100 percent of the jury's determination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608410/ | 432 P.2d 386 (1967)
Dale BROWN, Plaintiff and Appellant,
v.
Warren L. THORNTON, and Gertrude L. Thornton, Defendants and Respondents, and
Dale Thornton and Lillian Thornton, Intervenors.
No. 11297.
Supreme Court of Montana.
Submitted September 11, 1967.
Decided October 10, 1967.
*387 Robert Hurly (argued), Glasgow, for appellant.
Paul E. Hoffmann, Glasgow, Alexander, Kuenning & Hall, John Hall (argued), Great Falls, for respondents.
Francis Gallagher, Glasgow, for intervenors.
JOHN C. HARRISON, Justice.
This is an appeal from a judgment for the defendant entered following an order granting a motion for summary judgment. The judgment was entered in the District Court at Glasgow, the Honorable Tom Dignan, District Judge, presiding.
As a result of intervention, there are two sets of parties named "Thornton." The defendants and respondents are Warren L. Thornton, and his wife Gertrude. These will be referred to as "defendants." *388 Dale Thornton, the son of defendants, and his wife Lillian will be referred to as "intervenors." The plaintiff and appellant, Brown, will be referred to as "plaintiff."
The trial court had the pleadings, the depositions of plaintiff and defendant, and certain exhibits before it from which to make its decision. It appears from these documents that the intervenors bought certain real property described in the complaint in about September 1957. Between October 1957, and October 1960, plaintiff sold and delivered building materials and supplies to the intervenors which were used in the construction of improvements on this property.
About April 17, 1959, the intervenors mortgaged the property to defendants to secure loans made to them by defendants in the approximate amount of $45,000.00. Intervenors were unable to meet the mortgage payments, and the property was conveyed by them to defendants about January 31, 1961, at which time the mortgage was satisfied of record.
Shortly before intervenors conveyed the property to defendants, plaintiff filed a mechanic's lien, dated January 26, 1961, upon the property in question for the same amount claimed due from defendants in this action. This mechanic's lien names the intervenors as the owners of the property. Plaintiff admits that no foreclosure action was instituted on this lien and that it has lapsed.
In October 1962, intervenors filed a petition in bankruptcy. Plaintiff received notice of this petition, which included the debt to him that is involved here. At this time plaintiff did not appear in the bankruptcy action, and did not assert that the debt was that of the defendants.
The plaintiff alleges in his complaint, filed February 17, 1965, that defendants were co-owners of the property and had financial interests therein, and had agreed to and did in fact advance funds for the improvements on the property. Plaintiff also alleges, that as owners of the property, defendants received the use and benefit of the materials furnished by the plaintiff and thus must pay to the plaintiff their value.
In his deposition, however, plaintiff says that he "never did check into it to see whether the names [defendants' and intervenors'] were tied up together on the purchase of the land." The evidence that the land was owned solely by intervenors and that the only interest defendants had in the premises was a mortgage to secure a debt is uncontroverted. Concerning ownership of the land the plaintiff further testified:
"Q. What ownership you claim that Warren and Gertrude Thornton [defendants] had in the land described in the complaint? A. All I can say about it is that Dale [intervenor] told me that they were in it together.
"Q. Does this answer apply also to your allegations about the financial interests that the defendants might have had in the described property? A. I would say so."
In regard to the alleged agreement between defendants and plaintiff, that defendants would pay for the materials, the plaintiff stated:
"Q. All right. Now then, Dale [intervenor], in his dealings with you, represented that his father was going to make certain advances to help defray the costs of improvements. Is that right? A. Right.
"Q. Did the father [defendant] ever make any such representations to you? A. I can't say that he did, no.
"Q. Your dealings, then, with reference to the credit arrangements, the deliveries and the purchases here, were conducted with Dale Thornton [intervenor]? A. Dale Thornton.
"Q. And when you are referring here in paragraph 2 [of the complaint], being the paragraph I read, to the agreements to advance funds, this is a matter in which you relied entirely upon the word of Dale Thornton that his father was backing him up or was, in one way or another interested *389 in the property? A. Well, of course, Dale at one time went to his father and made some arrangements to get me some money, told him he would, which he did. He didn't get me all he was supposed to, but he got me part of it.
"Q. Again, Dale [plaintiff], what you have just related is a fact situation which in turn had been related to you by Dale Thornton. Isn't that true? A. Yes.
"Q. You didn't directly make any financial arrangements with Mr. Warren Thornton [defendant] nor with his wife, Gertrude? A. No.
"Q. In no stage of the proceedings here under complaint did they promise to pay on behalf of their son to you, did they? A. No.
"Q. They didn't represent that they would make payment if you would make a delivery of certain merchandise? A. No.
"Q. This was simply your acceptance of the word of your customer, Dale Thornton? A. Right."
The defendant, Warren Thornton, in his deposition, testified that he made no agreement of any kind with the plaintiff. He said that he loaned money to his son, with a mortgage on the property in question as security, and that there was no agreement as to what his son was to do with the money. A mortgage creates no estate or interest in land. It is simply security for the performance of an act. Federal Land Bank of Spokane v. Green, 108 Mont. 56, 90 P.2d 489; Morrison v. Farmers' & Traders' State Bank, 70 Mont. 146, 225 P. 123.
On the basis of the depositions and exhibits it is clear that defendants did not own the property in question and that they made no agreement with plaintiff to pay for the materials he supplied.
Rule 56(c), M.R.Civ.P., provides that summary judgment shall "be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file 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."
On a motion for summary judgment the issues presented by the pleadings are not controlling. The court must consider the depositions, answers to interrogatories, admissions on file, oral testimony and exhibits presented, and other similar material to determine whether any of the issues are real and genuine. Hager v. Tandy, 146 Mont. 531, 410 P.2d 447. When the complaint is considered next to the plaintiff's own testimony, it is apparent that there has been no genuine factual issue presented.
Plaintiff argues on appeal that had he been allowed to go to trial he would have presented further proof that defendants were co-owners of the property and made an agreement to pay for the materials. Notice was given and a hearing had before the motion for summary judgment was granted and again notice was given and a hearing had before plaintiff's motion to vacate judgment was denied. Nowhere in the record is there any hint of this further proof. When on the record there is no genuine issue as to any material fact before the court the burden is on the party opposing the motion for summary judgment to present facts of a material and substantial nature raising a genuine issue. The trial judge has no duty to anticipate possible proof that might be offered. To impose such a duty would be to demand clairvoyance not possessed by even a trial judge. Silloway v. Jorgenson, 146 Mont. 307, 406 P.2d 167; Naegeli v. Daniels, 145 Mont. 323, 400 P.2d 896. As to the requirement that there be no genuine issue as to any material fact the granting of the motion for summary judgment was correct.
It remains to be shown that on the facts the defendants are entitled to judgment as a matter of law. The plaintiff testified as to the basis of his cause of action:
"Q. Now, will you please tell me how you understand they [defendants] became obligated to pay this sum of money to you? *390 A. Well, the main thing is that they reaped the benefits from all them improvements. As far as I can see, the place is pretty much intact, and it was switched over to Mr. Thornton. They rented it and they have got the benefit out of it, are using it."
Also, the plaintiff states in his appeal brief that the action was brought on a quantum meruit theory. Since it appears that plaintiff never had any dealings at all with defendants he must rely, as he does, on a contract implied in law or quasi-contract. The obligation in such a contract arises not from consent of the parties but from the law of natural justice and equity, and is based on the doctrine of unjust enrichment. Keith v. Kottas, 119 Mont. 98, 172 P.2d 306; French v. County of Lewis & Clark, 87 Mont. 448, 288 P. 455. For a contract to be implied at law on the basis of unjust enrichment the plaintiff must show some element of misconduct or fault of some sort on the part of the defendant, or that he was in some way taken advantage of. See Butler v. Peters, 62 Mont. 381, 205 P. 247; and 17 C.J.S. Contracts § 6, p. 573.
We find no element of misconduct shown on the part of defendants in this action. When defendants took title to the property, in partial repayment of the debt owed to them, the plaintiff had an apparently valid lien on the premises as security. The defendants are not to be blamed because this lien was allowed to lapse. The mere fact that defendants were benefited by plaintiff's materials is not of itself sufficient to require defendants to make restitution therefor. Restatement of the Law of Restitution, § 1(c), p. 13; 17 C.J.S. Contracts § 6, p. 573; Chandler v. Washington Toll Bridge Authority, 17 Wash.2d 591, 137 P.2d 97.
It appears that plaintiff had a contract with intervenors to supply building materials and supplies. He delivered on credit. He cannot now collect from intervenors as the debt is barred in bankruptcy. He received notice of the petition in bankruptcy but ignored it. Plaintiff also had a remedy against the premises where his goods were used. He has allowed this to lapse. Like the trial court we can see no reason in law or equity why plaintiff should be allowed to recover on a judgment in personam against defendants who now own the land.
Having given careful consideration to the entire case, we hold that the judgment of the lower court was correct and it is affirmed.
JAMES T. HARRISON, C. J., and HASWELL, CASTLE and ADAIR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608412/ | 248 Or. 1 (1967)
432 P.2d 323
STATE OF OREGON, Respondent, v. RICHARD ALLEN GUSTAFSON, Appellant.
Supreme Court of Oregon.
Argued June 6, 1967.
Affirmed October 4, 1967.
*2 Hayes Patrick Lavis, Astoria, argued the cause for appellant. On the brief were Anderson, Fulton & Lavis, Astoria.
Frank J. Coumont, District Attorney, Astoria, argued the cause and filed a brief for respondent.
Before PERRY, Chief Justice, and McALLISTER, GOODWIN, DENECKE, HOLMAN, LUSK and FORT,[*] Justices.
AFFIRMED.
McALLISTER, J.
The defendant, Richard Gustafson, was indicted for the crime of rape, was convicted of assault with intent to commit rape, and appeals. He assigns as error the denial of his motion for a judgment of acquittal, the *3 denial of his motion for a mistrial on account of alleged misconduct of the district attorney, and the action of the trial court in submitting to the jury the lesser offenses included within the crime of rape.
1. It is unnecessary to set out the evidence in detail. The defendant, who was 24 years of age and married, admitted that he had intercourse with a 16-year-old girl, who was a houseguest in the home of defendant's wife's parents. The defendant testified that the prosecutrix not only consented to but cooperated in the sexual relationship. The prosecutrix, on the other hand, testified that she was ravished by force and without her consent. Although the testimony was in sharp conflict, there was substantial evidence to support the finding of the jury and we are bound by that finding. The trial court did not err in denying defendant's motion for a judgment of acquittal.
Defendant called as a witness one Goozee, in whose apartment the alleged rape occurred, and who in some measure corroborated defendant's testimony. During the cross-examination of this witness the following occurred:
"BY MR. EDISON [the district attorney]:
"Q. Mr. Goozee, You ever been convicted of a crime?
"A. Yes.
"Q. It is your privilege at this time, Mr. Goozee, you can state the circumstances if you wish.
"A. Well, couple of juvenile things and once for drunk and that is it.
"MR. LAVIS [counsel for defendant]: Was this drunk in the City of Seaside?
"A. Right."
*4 The defendant's counsel, out of the presence of the jury, then moved for a mistrial on the ground that the district attorney had acted in bad faith in asking the witness whether he had been convicted of a crime when he was not prepared to prove a prior conviction if the question was answered in the negative. Defendant's counsel contended that convictions in juvenile court and the violation of municipal ordinances are not convictions of crime within the meaning of ORS 45.600. He further pointed out that the state had earlier called Goozee as its own witness and could easily have determined whether the witness's record included a criminal conviction admissible to impeach his credibility.
After some colloquy between the court and counsel, the following occurred:
"THE COURT: Well, let me ask you this, Mr. Edison, Do you have any reason to doubt the truthfulness of the witness' statement?
"MR. EDISON: Yes, Your Honor. I think there is some sort of vagrancy or disorderly conduct charge which I will be happy to look for in the record and find. But maybe he is, if he is stating the truth now, well, obviously that stuff cannot come in. I will agree with counsel to that statement."
After further colloquy the court instructed the jury as follows:
"* * * Ladies and gentlemen of the jury, just before you were excused the District Attorney put a question to this witness to the effect of asking him whether or not he had ever been convicted of a crime, and the witness answered `Yes.' That he had a juvenile conviction and that he had also been convicted in the City of Seaside as I recall. Now I instruct you that juvenile convictions do not constitute convictions of crime and convictions of city ordinances do not constitute convictions of *5 crimes. Therefore, I now instruct you to disregard the question of the District Attorney put to this witness in asking him if he had been convicted of a crime and all that part of the witnesses [sic] answer wherein he related the juvenile conviction or to the conviction of a municipal ordinance in the City of Seaside. That is stricken from the record and the jury is instructed to disregard it. You may proceed."
The state made no further attempt to prove that the witness had been convicted of a crime, and the incident was closed with the above instruction to the jury by the court.
2, 3. It is proper to impeach a witness by showing "by his examination or by the record of the judgment, that he has been convicted of a crime." ORS 45.600. State v. Gilbert, 138 Or 291, 4 P2d 923 (1932). This method of impeaching a witness must be used in good faith. The right to impeach a witness by proving prior convictions may not be used as a subterfuge to blacken the character of the witness by insinuating criminal convictions that cannot be proved. State v. Rollo, 221 Or 428, 434, 351 P2d 422 (1960). Other courts have also condemned cross-examination about prior convictions unless the prosecution is prepared to prove the convictions if they are denied. State v. Stago, 82 Ariz 285, 312 P2d 160 (1957); People v. Perez, 58 Cal2d 229, 23 Cal Rptr 569, 373 P2d 617, 3 ALR3d 946 (1962); People v. Wallenberg, 24 Ill2d 350, 181 NE2d 143 (1962); State v. Glenn (Mo 1924), 262 S.W. 1030, 1033; State v. Herrera, 8 Utah2d 188, 330 P2d 1086 (1958); Anno. 3 ALR3d 963.
4. In the case at bar there was no showing of bad faith, and, on the contrary, the record indicates that there was some justification for the district attorney's *6 belief that Goozee had been convicted of a crime. The inquiry was not pursued when it appeared that the crimes admitted were not within the purview of the statute, and the court emphatically instructed the jury to disregard the testimony. The trial court did not abuse its discretion in denying the motion for a mistrial. State v. Ponton, 240 Or 30, 32, 399 P2d 30 (1965), cert. den. 382 U.S. 1014, 86 S. Ct. 626, 15 LEd2d 529 (1966); State v. Gardner, 231 Or 193, 196, 372 P2d 783 (1962).
5. The defendant also contends that the court erred in instructing the jury that it could find the defendant guilty of the included offenses of assault with intent to commit rape or of assault. Since the jury found the defendant guilty of assault with intent to commit rape, we are not concerned with the instructions concerning simple assault. Assault with intent to commit rape is an included offense in the charge of rape. State v. Cook, 242 Or 509, 518, 411 P2d 78 (1966); Cannon v. Gladden, 203 Or 629, 631, 281 P2d 233 (1955). ORS 136.660 provides that "the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged in the indictment." Since there was evidence tending to prove an assault with intent to commit rape, the court did not err in instructing the jury that it could find the defendant guilty of that included offense. State v. McLain, 74 Ariz 132, 245 P2d 278 (1952); Harrison v. State, 222 Ark. 773, 262 S.W.2d 907, 909 (1954); State v. Swolley, 215 Iowa 623, 244 N.W. 844 (1933); State v. Green, 246 NC 717, 100 SE2d 52 (1957); Daniel v. Maxwell, 176 Ohio St 207, 198 NE2d 657 (1964); Johnson v. United States, 350 F2d 784 (DC Cir 1965).
The judgment is affirmed.
NOTES
[*] Fort, J., did not participate in the decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608413/ | 432 P.2d 128 (1967)
William Francis KNOTT, Plaintiff in Error,
v.
The STATE of Oklahoma, Defendant in Error.
No. A-13990.
Court of Criminal Appeals of Oklahoma.
September 20, 1967.
Robert W. Booth, Tulsa, for plaintiff in error.
G.T. Blankenship, Atty. Gen., Charles L. Ownes, Asst. Atty. Gen., for defendant in error.
*129 BUSSEY, Judge.
William Francis Knott, hereinafter referred to as defendant, was convicted for the crime of Manslaughter in the First Degree, and appeals.
The single assignment of error urged on appeal is that the trial court erred in failing to give defendant's requested instruction relating to exculpatory statements.
As part of the State's case in chief, Officer Tom Yerton testified in part as follows:
"Q. At that time what did he say to you?
A. `I [the defendant] killed him, it was an accident. I wish someone would shoot me. I killed him. His ex-wife lives at 542 South Norfolk. I called police. I am sorry. I shot him with a shotgun.'
Q. These were the words he used?
A. Yes."
The instruction requested by defendant was:
"DEFENDANT'S REQUESTED INSTRUCTION NO. 1.
`You are instructed that an exculpatory statement is defined as an explanation, or statement, tending to explain or to clear defendant from alleged fault or guilt, and you are further instructed that an exculpatory statement is one that tends to excuse or justify one's actions or presence.
In this connection, you are further instructed that when an exculpatory statement, by the defendant, is introduced into evidence by the State, the State is bound by the exculpatory statement, unless said statements are shown by the evidence to be untrue, and the burden of proving the falsity of said exculpatory statement is upon the State.
*130 You are further instructed that unless exculpatory statement of the defendant in this case is shown to be false, either by direct or circumstantial evidence, that the State of Oklahoma is bound thereby, and the defendant is entitled to be acquitted by you.'"
It is the position of the defendant that under the authority of Dean v. State, Okl.Cr., 381 P.2d 178 and Mitchell v. State, Okl.Cr., 408 P.2d 566, the trial court erred in refusing to give the requested instruction above set forth.
In Dean v. State, supra, this Court, speaking through the Honorable Kirksey Nix, cited with authority the views expressed by the Court of Criminal Appeals of the State of Texas. In the Dean case the following language appears in the Syllabi:
"1. Where the defendant does not testify in the case, and where the state, in developing its case in chief, introduces in connection with a confession or admission of the defendant, an exculpatory statement which, if true, would entitle him to an acquittal, the jury should be told that he is entitled to a verdict of not guilty unless such exculpatory statement has been disproved or shown to be false by other evidence in the case.
2. Where the state introduces in evidence the confession of accused, it is bound by exculpatory statements contained therein unless they are shown by the evidence to be untrue; but the falsity of such exculpatory statements may be shown by circumstances as well as direct evidence.
3. In order for a statement to come within the category of an exculpatory nature, it must be a tangible, affirmative, defensive, factual matter capable of specific disproof, and not extending to a mere recitation of innocence embroidered in the plea of not guilty."
In the instant case the conclusion of the defendant that the homicide was an accident was not a sufficient recitation of facts to bring it within the rule requiring the court to grant the requested instruction. Even if such statements were sufficient to authorize the giving of an instruction, when the defendant took the stand and offered evidence tending to establish self defense, the necessity for giving such an instruction was obviated.
In Rios v. State, 162 Tex. Crim. 609, 288 S.W.2d 77, the following language appears:
"Where defendant testified as a witness in his own behalf in murder prosecution, and his testimony was to the same effect as the part of the confession claimed to be exculpatory, and issue of self defense raised by defendant's testimony was fully presented to and passed on by jury, court did not err in omitting a charge on exculpatory statements."
Under the record before us we are of the opinion that the evidence amply supports the verdict of the jury and that the trial court fully and meticulously instructed the jury and that the judgment and sentence should be, and the same is hereby,
Affirmed.
BRETT, J., and NIX, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608415/ | 432 P.2d 887 (1967)
In the Matter of INTEGRATION OF the BAR OF the State of HAWAII.
No. 4527.
Supreme Court of Hawaii.
October 20, 1967.
Dwight M. Rush and James S. Campbell, Honolulu, Bar Ass'n representatives (pro).
Tobias C. Tolzmann and George L. Dyer, Jr., Honolulu, Bar Ass'n representatives (con).
Morton King, Deputy Atty. Gen. (Bert T. Kobayashi, Atty. Gen., and Roy M. Miyamoto and Nobuki Kamida, Deputy Attys. Gen., with him on the brief), for the Attorney General, amicus curiae.
Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.
PER CURIAM.
This matter is before this court pursuant to a communication from the Bar Association of Hawaii recommending:
1. That there be an association to be known as the "Bar Association of Hawaii," composed of persons licensed to practice law in this State, and except as otherwise provided in sections 217-2 and 217-11 of the Revised Laws of Hawaii 1955, as amended, membership in such association shall be a condition precedent to the privilege of practicing law in Hawaii.
2. That the Supreme Court of the State of Hawaii by appropriate orders provide for the organization and government of the association and define the rights, obligations and conditions of membership therein, to the end that such association shall promote the public interest by maintaining high standards of conduct in the legal profession and by aiding in the efficient administration of justice.
The recommendation is based on a resolution adopted at an annual meeting of the association and also on the result of a mail poll of resident members of the bar. The vote on the resolution was 76 ayes and 59 noes. Of those responding to the poll, 208 favored, and 157 opposed, the recommendation.
Subsequent to the receipt of the communication, without passing upon its inherent power to act on the recommendation by rule or order, this court expressed to the association the consensus of its members that it appeared preferable that the matter be submitted initially to the legislature.
Accordingly, the association attempted to obtain legislative action but failed in its *888 attempt because the chairman of the Judiciary Committee of the House of Representatives was of the opinion that the matter was within the responsibility of the judicial, rather than the legislative, branch of government.
Thereafter, this court ordered an adversary hearing directed to the following issues:
(a) whether this court has the power to require membership in a state bar association organized pursuant to its authorization as a condition to the privilege of practicing law in this State; and
(b) whether this court has the power to prescribe an annual fee for membership in such association.
These two features, compulsory membership in a state bar association and payment of prescribed membership fee, constitute the basic requirements of an integrated bar.
At the present time, an integrated bar exists in 29 states. Three methods have been used in accomplishing integration, namely:
(a) enactment of detailed statutes;
(b) enactment of statutes conferring upon the highest state courts the authority to integrate;
(c) court action, without statutory authorization.
In those states where the courts have integrated the bar without statutory authorization, they have done so in the exercise of the court's inherent power of control over members of the bar and the practice of law. Petition of Florida State Bar Association, 40 So. 2d 902 (Fla. 1949); Application of Montana Bar Association, 140 Mont. 101, 368 P.2d 158; In re Integration of Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265, 114 A.L.R. 151; In re Integration of State Bar of Oklahoma, 185 Okl. 505, 95 P.2d 113.
We perceive no difference in the inherent power of this court from the inherent power lodged in the courts of other states with respect to matters affecting the bar and the practice of law.
The only question before us in this proceeding is the power of this court to integrate the bar without any statutory authorization. We hold that this court has the inherent power to do so at least to the extent of requiring of every attorney licensed to practice in this State compulsory membership in a bar association organized pursuant to its rule or order and payment of reasonable membership fee to provide funds for such association. See Lathrop v. Donohue, 367 U.S. 820, 81 S. Ct. 1826, 6 L. Ed. 2d 1191.
In their presentation, opponents of integration have questioned the legality of some of the powers which an integrated bar might exercise and some of the activities in which an integrated bar might participate. Such questions are not now before this court.
The Bar Association of Hawaii may draft a detailed plan of organization of an integrated bar and present the draft to this court for consideration and action, upon ascertaining the desires of the members of the bar with respect thereto. Until such draft is presented, the matter will be kept in abeyance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608416/ | 19 Utah 2d 409 (1967)
432 P.2d 41
DALE W. CORBRIDGE AND DORLENE CORBRIDGE, PLAINTIFFS AND APPELLANTS,
v.
M. MORRIN AND SON, INC., A CORPORATION, DEFENDANT AND RESPONDENT.
No. 10853.
Supreme Court of Utah.
September 22, 1967.
Froerer, Horowitz, Parker, Richards, Thornley & Critchlow, Richard Richards, Ogden, for appellants.
Hanson & Baldwin, H. Wayne Wadsworth, Salt Lake City, for respondent.
ELLETT, Justice:
Plaintiffs appeal from a summary judgment rendered at the close of a pretrial conference. Dorlene Corbridge sued for injuries received when she fell into an unlighted excavation in a highway, and her husband, Dale, sued for lost wages he claims to have sustained when he ceased his employment to provide for his children while his wife was in the hospital and for sums of money paid to baby sitters during his wife's convalescence.
We believe the motion was properly granted as to the husband because of the language of Section 30-2-4, U.C.A. 1953, which is as follows:
A wife may receive the wages for her personal labor, maintain an action therefor in her own name and hold the same in her own right, and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.
The wife, if anybody, should recover the expenses incurred in connection with her injuries. The reasonable value of the services which she was unable to perform as a result of her injuries and which she otherwise would have performed would be part of her recovery if any she is entitled to.
The record shows that the court had before it an affidavit of the injured plaintiff, who will hereafter be referred to as the plaintiff, together with her deposition taken by the defendant. It seems that the court believed the plaintiff was guilty of contributory negligence as a matter of law and hence he granted the motion for summary judgment. If there were any admissions made at the pretrial hearing other than those contained in the affidavit and deposition, they are not before this court. The defendant filed no affidavits, and so the summary judgment must be granted, if at all, in the light of the undisputed statements contained in plaintiff's affidavit and deposition.
The facts as revealed in the two documents mentioned are as follows:
Plaintiff, a thirty-eight-year-old mother of four children, took those four children and three neighbor kiddies to Lagoon, a local amusement resort some eighteen miles distant from her city of Ogden. On the way out it was daytime, and she passed by a place in the highway where some sort of construction required her to detour to one side of the roadway. She returned about ten thirty p.m., and when she was some distance from the construction area, her motor ceased to function. Because she was going downgrade, she was able to coast past the nearest detour sign, where she parked on the highway to the side of the detour road. She was in a quandary as to what to do. The night was very dark, and she was several miles from home. She had seven children in her automobile with her. A lady motorist stopped and offered to take plaintiff to a phone where she could call for aid. Traffic was heavy, and the detour road was only wide enough to accommodate one lane of traffic in each direction. Plaintiff said she would go back and advise the children and warn them to stay in the car while she went to phone. The lady motorist being aware that she was blocking traffic said she would pull around a ways because she was afraid of being hit if she stayed where she was.
After plaintiff had talked to the kiddies, she looked ahead and could see the tail lights on the car of the lady motorist who was waiting for her. She walked directly toward those lights and fell into an unlighted pit with no barricades around it. Plaintiff could not see the ground under her feet, nor did she know there was a pit in the construction area. She feared to walk on the narrow detour road because of the traffic and walked down the main highway. Her screams brought help, and she was taken to a hospital, where she was treated for a period of over three weeks.
These are the facts which the court had before it when it made its determination that plaintiff could not recover as a matter of law.
Rule 56(c), Utah Rules of Civil Procedure, insofar as material here, provides as follows:
* * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
In the case of Singleton v. Alexander et al, decided by this court on August 15, 1967, 19 Utah 2d 292, 431 P.2d 126, it was said:
Summary judgments are more frequently given in contract cases because of greater ease in determining the factual issues. In tort claims defendants frequently rely on affirmative defenses of accord and satisfaction, res adjudicata, collateral estoppel, etc., and such defenses are just as easy to establish as are matters of contract. However, when it comes to determining negligence, contributory negligence, and causation, courts are not in such a good position to make a total determination for here enters a prerogative of the jury to make a determination of its own, and that is: Did the conduct of a party measure up to that of the reasonably prudent man, and, if not, was it a proximate cause of the harm done? See Moore, Federal Practice, paragraphs 56.15[1.-0], p. 2285, and 56.17[42], p. 2583; Barron and Holtzoff, Fed.Pr. & Procedure, § 1232.1, p. 106.
The defendant cites cases from this court where summary judgment has been sustained against plaintiffs who stepped into dark places when they could not see what lay ahead. However, it is a different matter when one is in a dark place and cannot see any better in one direction than in another. Here the plaintiff was in total darkness, and except for the tail lights of the car ahead of her she had nothing to guide her steps. Should she stand still by the car and hope other help might come along to pick her up from where she stood, or should she go to the car of the lady who was waiting for her a short distance ahead and whose tail lights marked a course for her to follow along what appeared to be a smooth road? Should she have left her headlights on, so she could more clearly see, and risk having a dead battery when she returned with help to start the car? The jury might think she acted as a reasonably prudent person. At least, the jury should have the opportunity of determining whether under all of the surrounding circumstances she acted as a reasonably prudent person would have done. It should also determine if the circumstances were such as to require the defendant to place barricades around the pit or to give some form of illumination to warn of its presence.
We do not think the case of the injured plaintiff can be settled by a summary judgment, and we remand the case to the district court for further proceedings not inconsistent with this opinion. Costs to plaintiff.
CROCKETT, C.J., and CALLISTER, TUCKETT and HENRIOD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608418/ | 432 P.2d 618 (1967)
John R. VAARA, Appellant,
v.
KETCHIKAN SPRUCE MILLS, Appellee.
No. 829.
Supreme Court of Alaska.
October 30, 1967.
*619 Lloyd I. Hoppner, of Rice & Hoppner, Fairbanks, for appellant.
No appearance for appellee.
Before NESBETT, C.J., DIMOND and RABINOWITZ, JJ.
OPINION
RABINOWITZ, Justice.
Involved in this appeal is construction of our mechanic's and materialmen's statutes.[1] The superior court entered a judgment in favor of appellee Ketchikan Spruce Mills establishing a materialmen's lien in its behalf and decreeing that the lien be foreclosed against appellant Vaara's interest in certain real property. We have concluded that the case must be remanded to the trial court for more detailed and explicit findings of fact and conclusions of law.
The crux of this litigation concerns the applicability and interpretation of AS 34.35.065(a) and (b) of our lien laws. Under this statute, before an owner's interest in land can be subjected to a statutory materialmen's lien the owner must have had "knowledge" of the construction.[2]
The evidence presented at the trial shows the following: The real property in question was conveyed to appellant on February 24, 1964.[3] Prior to April 24, 1964, appellant engaged Jewel Jolley, a salesman for Sullivan Realty, to find a buyer for the property.[4] Thereafter, Jolley obtained a $500 check from Richard Fuller as a down payment on an agreed $6,500 purchase price for the property.[5] As part of this transaction Jolley obtained Fuller's signature to an "Earnest Money Receipt," and then mailed the partially executed document to appellant for his approval and signature.[6]
This "Earnest Money Receipt" in part provided that "Seller will post property & record copies of non-liability notices and post copies of same on premises."[7] According to both Jolley's testimony and the text of the "Earnest Money Receipt," the contemplated sale to Fuller included "The lot, full concrete basement and other minor improvements and some materials like logs to put up a log house."[8] When *620 asked by appellee's counsel whether it was understood that Fuller was going to complete the existing structure, Jolley testified:
Well there wasn't necessarily any * * * agreement to that effect. The * * * buyer was supposed to buy the property he put up a $500 check and he was supposed to pay the balance in cash and within 90 days.[9]
Subsequent to the execution of the "Earnest Money Receipt," Fuller entered into an oral contract with appellee Ketchikan Spruce for the delivery of building materials which were delivered to and used by Fuller to make improvements upon the existing structure on the lot in question.[10] On July 22, 1965, appellee Ketchikan filed a mechanic's and materialmen's lien against the subject property in the amount of $1,046.68 for labor and materials furnished.[11]
Concerning the crucial knowledge issue, the record discloses the following: Appellee does not assert that appellant played any part in the ordering of the materials which were used by Fuller. During the period in question (and in particular between May 10 and May 12, 1965), appellant was in Seattle, Washington. Appellant's testimony in brief is that until he was served with process in connection with this litigation he had no knowledge of the delivery to his real property of any materials and supplies by appellee.[12] Appellant's agent, Mr. Jolley, testified that subsequent to April 24, 1965, he had occasion to visit the premises. Approximately ten days after April 24, 1965, he went to appellant's property and at that time did not "observe any construction work being performed on this house." About one month later, he again went to the site and this time observed that "there was construction * * * quite a bit had been done."[13] Jolley also testified that he never notified appellant that materials "had been purchased by Mr. Fuller or that materials had been delivered to the premises of Lot 6 Block 2 Lemeta." Jolley further stated that he did not notify appellant "that construction was taking place on this house prior to * * * May 10th or May 12th of 1965."
Essentially on the basis of the foregoing evidence, the superior court found in appellee's favor. The only finding of the trial court which pertains to the "knowledge" requirements of AS 34.35.065(a) and (b)[14] reads as follows:
That the defendant, John R. Vaara, did not avail himself of the protections *621 of the lien laws of our State by posting the property as required by law, or by posting the property within three days after learning of the construction and improvements on the above described property. And that no other person or persons have a claim or lien on said property described hereinabove superior and prior to that of the plaintiff.
On the basis of our study of the record we are of the opinion that there is substantial evidence in the record to support the conclusion that appellant did not at any pertinent time post the premises with notices of nonresponsibility. On the other hand, we are not informed as to the factual basis of, or legal ground upon which the superior court determined that appellant had the requisite "knowledge" of Fuller's construction under AS 34.35.065(a) and (b).[15] On the state of the record before us, it is not apparent what rule of law the superior court applied in reaching its conclusion that appellant possessed the necessary knowledge of Fuller's construction.
Rather early in our precedents it was established that the landowner must have actual knowledge of the construction before his interest could be subjected to a materialmen's lien.[16] As yet undetermined in this jurisdiction is whether knowledge of intended construction would be sufficient to bring into operation the provisions of AS 34.35.065(a) and (b).[17] We *622 are not informed as to whether the trial judge decided that appellant Vaara had actual knowledge of Fuller's construction, or of Fuller's intention to commence construction on the premises.[18]
A third approach to the "knowledge" issue in this litigation is suggested by Labay v. Northern Mining & Trading Co.[19] In that case Judge Tucker said in part:
It may be true that actual or positive knowledge is not shown by the evidence to have been brought home to the defendant company, but in our view of the law and of section 694 that is not necessary. Such a construction of the statute is too narrow. Knowledge in a legal sense may be positive or implied. The implication of knowledge arises when the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him by the exercise of due diligence to a knowledge of the principal fact. This is the general rule especially applicable to the case here.
Again we are uncertain as to whether the trial court adopted a rule of law analogous to Judge Tucker's reasoning in the Labay case, and therefore concluded that AS 34.35.065's requirements were met because appellant possessed such knowledge as would have put a reasonable man on inquiry.[20]
Another unanswered aspect of this issue concerns knowledge acquired by appellant's agent, Mr. Jolley. From the findings of fact and conclusions of law we cannot tell whether the trial judge imputed to appellant the knowledge of construction which *623 Jolley obtained approximately forty days after April 24. Nor do we know whether the trial court viewed Jolley's agency as being general or limited in scope.[21]
Before we can make a proper appellate adjudication of the merits of the case, we consider it essential that the trial judge articulate in his findings of fact the factual basis of appellant's knowledge under AS 34.35.065. We also consider it important that the trial judge's conclusions of law be expanded to reflect what rule or rules of law he relied upon for his conclusion that appellee's lien should attach to appellant's interest in the real property (in other words, the ground upon which appellant was held to have had knowledge).
The case is remanded for further proceedings not inconsistent with the foregoing.[22]
NOTES
[1] See generally AS 34.35.050 and AS 34.35.120.
[2] AS 34.35.065(a) reads:
A building or improvement mentioned in § 50 of this chapter constructed with the knowledge of the owner of the land or the person having or claiming an interest in the land is considered to be constructed at the instance of the owner or person having or claiming the interest.
AS 34.35.050 provides for the establishment of a materialmen's lien. This statute reads in part:
A person or firm * * * furnishing material for the construction of, or furnishing material for the construction, alteration, or repair, either in whole or in part of a building * * * has a lien on it for the work done or material furnished at the instance of the owner of the building or other improvement, or his agent.
[3] Appellant did not record this warranty deed until November 18, 1965.
[4] The property is described as "Lot Six (6), Block Two (2) of the LEMETA SUBDIVISION of the Bridget O'Connor Homestead."
Jolley testified that appellant authorized him "to sell the property" and that he was not given any other authority.
[5] The check was made payable to Sullivan Realty.
[6] At the time of the Jolley-Fuller negotiations, appellant was living in the State of Washington.
[7] This language was typed in the body of the "Earnest Money Receipt." The bulk of the remaining portions of the instrument were in printed form.
The documents also provided that "A reasonable time not exceeding 90 days is to be allowed for the execution of said deed, mortgage, or contract, from the date hereof."
[8] By the terms of the "Earnest Money Receipt," the sale was to include "Lot 6, Block 2, Lemeta. Including all inventoried buildings material [sic] on site."
[9] The sale to Fuller was never consummated because, according to Jolley's testimony, "the bank wouldn't honor the check, so as far as I was concerned the earnest money agreement * * * wasn't any good * * *."
[10] The delivery of the materials took place between May 10 and May 12, 1965.
[11] Appellant does not contest the value of the materials and labor claimed nor does he dispute that these items were delivered and rendered to Fuller in connection with construction of the premises in question. It is also undisputed that in selling the materials to Fuller, appellee Ketchikan Spruce thought that Fuller was the owner of the premises in question. Appellee did not make a title search prior to delivery of any materials to the site.
[12] Appellee filed suit in the superior court on September 13, 1965. Appellant was personally served with copies of the summons, notice to absent defendant, and complaint, in Orange County, California, on November 16, 1965.
[13] These visits were motivated by Jolley's desire to collect the $500 down payment from Fuller.
[14] In the event the owner has the requisite "knowledge" under AS 34.35.065(a), he can still avoid the impact of the lien upon his real property by complying with the notice of nonresponsibility section of AS 34.35.065(b). This subsection provides:
The interest owned or claimed is subject to a lien filed in accordance with § 50-120 of this chapter, unless (1) the owner or person having or claiming an interest in the land gives notice within three days after he obtains knowledge of the construction, alteration or repair that he will not be responsible for it, by posting a notice to that effect in writing in some conspicuous place upon the land or upon the building or other improvement located on the land; (2) the notice is signed by him in the presence of two attesting witnesses or acknowledged by him before a notary public; (3) the posting of notice is attested to by a witness; and (4) an attested or notarized copy of the notice is recorded with the recorder of the recording district in which the land, building or other improvement is located within three days after the posting of the notice.
[15] In Patrick v. Sedwick, 413 P.2d 169, 174 (Alaska 1966), we cited our decision in Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962), where we said that:
[U]nder Rule 52(a), it is the duty of the trial court by sufficiently detailed and explicit findings `to give the appellate court a clear understanding of the basis of the trial court's decision, and to enable it to determine the ground on which the trial court reached its decision.'
[16] See Russell v. Hayner, 130 F. 90 (9th Cir.1904) and Cribb v. Caskey, 4 Alaska 250, 254 (D.C.Alaska 1910), both of which were decided under statutory predecessors substantially similar to AS 34.35.050 and AS 34.35.065(a).
Our mechanic's lien laws were derived from those of Oregon. In Gabriel Powder & Supply Co. v. Thompson, 163 Or. 623, 97 P.2d 182, 184 (1939), the Oregon court said the following in regard to its mechanic's lien laws:
It is incumbent upon the lien claimant to show knowledge of the `construction, alteration, or repair' on the part of the owner. After knowledge has thus been established, the burden then rests upon the owner to show that the notice was posted within the statutory period.
[17] As to whether knowledge of intended construction will suffice, it is stated in Annot., 123 A.L.R. 7, 45 (1939) that:
Whether or not knowledge on the part of the owner of land or a claimant of an interest therein that the person in the occupancy of the premises intends to make improvements thereon is such knowledge of the improvements that his failure to give or post a notice of nonresponsibility within the prescribed period after his acquisition of such knowledge will result in the attachment of a lien against his interest in the property depends primarily upon the wording of the controlling statute. Some statutes require the posting of a notice within a prescribed period after the owner receives knowledge of construction on or repair of the property and others require such a notice after the owner receives knowledge of construction or repair or intended construction or repair, and the view is generally taken that, under the first type of statute, knowledge of intended improvements is insufficient to charge the owner with the necessity of giving notice in order to prevent the attachment of a lien against his interest in the land, while under the second type of statute such knowledge is, of course, sufficient to charge the owner.
[18] As has been pointed out, AS 34.35.065 (b) reads "knowledge of the construction, alteration or repair."
Under California's lien statute, Code Civ.Proc. § 1183.1(b) which reads in part "within 10 days after he shall have obtained knowledge of such construction * * *." it has been held that the owner's knowledge of intended construction is insufficient. Arthur B. Siri, Inc. v. Bridges, 189 Cal. App. 2d 599, 11 Cal. Rptr. 322 (1961); Hayward Lumber & Inv. Co. v. Orondo Mines, 34 Cal. App. 2d 697, 94 P.2d 380 (1939).
[19] 5 Alaska 134, 137 (D.C.Alaska 1914).
[20] At the conclusion of the trial, the trial judge made the following oral comments in the course of announcing his decision:
Well I think that the defendant could have also protected himself by filing a notice of non-responsibility under the statute. And I think that that's really the key to this; that there are at least two pertinent times that he could have filed a notice of non-responsibility and protected himself under the statute, and that would have been 90 days after the earnest money receipt was executed between Mr. Vaara and Mr. Fuller, 90 days being the reasonable time to be allowed for the execution of said deed. At that he would not be selling this property and could have protected himself by posting a notice of non-responsibility on the property. But even if he hadn't done that, that I think as Mr. Miller has indicated and this Court would believe that had he filed it within 3 days after the filing of the complaint or service of the summons and complaint on him * * *.
As to whether the posting by appellant of notice of nonresponsibility after he had been served with copies of the summons and complaint could have affected the merits of this case, it was stated in Johnson v. Butler, 7 Alberta L.R. 427, 22 D.L.R. 347 (1915), Annot., 123 A.L.R. 7, 45-46, that:
The two-fold purpose of the section is obvious. It is to give to a contractor, who otherwise might have the mistaken idea that he was doing the work in hand for the owner of the land, notice to the contrary so that he may, with his eyes open to the facts, elect whether or not he will proceed with it on the personal liability of him by whom he is employed, and at the same time to work a statutory estoppel against an owner who stands by while the work is being done to his knowledge, and says nothing. It surely never was the intention to make necessary the posting of such a notice by an owner to whom knowledge of the construction comes only after its completion. * * * It might happen that the first knowledge that the work claimed for was done might come to an owner through the service upon him of process for the enforcement of the lien. How absurd it would be to say in such a case that unless he, within three days after such service, posted the notice called for by the section, it must be held that the work was done at his request.
[21] See generally Annot., 123 A.L.R. 7, 52 (1939); Sandberg v. Palm, 53 Minn. 252, 54 N.W. 1109 (1893).
[22] Pursuant to our remand, the trial judge is empowered, if he so determines, to hear additional evidence or order a new trial. In the event the case is again appealed to this court, it is suggested that appellee Ketchikan Spruce participate in the appellate proceedings. In our view there are potential questions of first impression concerning our mechanic's and materialmen's lien laws which are deserving of adversary presentation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608419/ | 432 P.2d 93 (1967)
The STATE of Montana ex rel. Arnold A. BERGER, Special Assistant County Attorney of Big Horn County, Montana, Relator,
v.
The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR the COUNTY OF BIG HORN, and the Honorable E.E. Fenton, Presiding Judge, Respondent.
No. 11376.
Supreme Court of Montana.
Submitted September 7, 1967.
Decided September 28, 1967.
Rehearing Denied October 17, 1967.
Arnold Berger (argued), Billings, for relator.
Charles F. Moses (argued), Billings, for respondent.
PER CURIAM.
This is an original proceeding brought by the prosecuting attorney of Big Horn County for a writ of supervisory control seeking this court's jurisdiction to reverse an order of the District Court of July 28, 1967, in District Court Cause 962, State of Montana v. Clara Thomas and Robert G. Thomas. The order referred to suppressed a certain oral statement made by defendant Clara Thomas as will appear hereinafter. The order was made by the District Judge granting a motion of the defense to suppress.
On June 7, 1967, this court in an order and memorandum ruled that the district court was in error in suppressing a written statement used in a previous trial. (See *94 State v. Thomas, 147 Mont. 325, 327, 328, 413 P.2d 315, for the written statement, and see our Order and Memorandum reported in State ex rel. Anderson v. District Ct., 149 Mont., 429 P.2d 633.) (We also note that our Order was the subject of an application by Clara Thomas to enjoin the use of the written statement in the United States District Court, Billings Division, in Civil Cause No. 669. Therein the Court in an Order and Memorandum opinion reported in 24 St. Rep. 541 declined jurisdiction because State procedures had not been completed.)
The oral conversations or statements, the subject of the instant application, were made prior to the written statements referred to above. A hearing was had before the district judge, a transcript of the proceedings made, findings of fact and conclusions of law made, and the order herein referred to resulted.
We issued an order to show cause directed to the district court, such order being in the alternative to either vacate the order or appear and show cause why it was not vacated. A return and answer were filed and oral argument had.
Basically two issues were argued. The first that our previous decision as to the written statement is the law of the case. We shall not dwell upon this. The second, that the motion to suppress the oral statement was improperly granted because the testimony demonstrated that the oral statement was voluntarily made by Clara Thomas at a time prior to any "focus" as a particular suspect; and that, furthermore she was properly advised of her constitutional rights and knowingly and intelligently waived them.
To relate the fact situation with as much brevity as possible we shall quote the trial court's findings one through ten:
"1. The Information herein charges the defendants with Murder in the Second Degree committed by killing Frank Tschirgi on or about the 10th day of March, 1963.
"2. The official investigation of the death of Frank Tschirgi was conducted by Roy G. Reilly, the then Sheriff of Big Horn County, Montana, commencing on the morning of March 11, 1963, and on the afternoon of that date said Sheriff became convinced that death was not caused by suicide, that Frank Tschirgi had been shot by some other person, and that his death was caused by two gunshot wounds in his breast.
"3. That said Sheriff interviewed all of the persons who, on either March 10, 1963, or March 11, 1963, were present on the ranch where the death occurred, and he arrived at the conclusion that none of these persons interviewed by him had any connection with the death of Frank Tschirgi.
"4. That Clara Thomas was present on the above-mentioned ranch on March 10, 1963, but she was not present there when the Sheriff arrived on the morning of March 11, 1963, and that the Sheriff was then informed that she had been taken to a hospital at Sheridan, Wyoming, because of having taken sleeping pills.
"5. That during said investigation a Mrs. Jackson, `the last person to see Frank Tschirgi alive,' related to the Sheriff a conversation she had had with the deceased on the evening of March 10, 1963, and stated to the Sheriff that as Frank Tschirgi was leaving her home he told her he was going to see Clara about a dog; that Mr. Reilly was uncertain whether, in relating another part of this conversation to him, Mrs. Jackson's exact words were that `Frank Tschirgi told her that he was going over to fight with the damn sister', and that he did not know whether the word `damned' or the word `fight' was used by her.
"6. That on March 12, 1963, Sheriff Reilly stated to Robert G. Thomas and David Thomas that he wished to talk to Clara Thomas and asked them when it would be possible to talk to her; that he also talked with them about Frank's passing and according to his best recollection of the conversation they said, `Yes, when Clara gets well she wants to tell you.' That on March 13, 1963, Robert G. Thomas called Sheriff Reilly by telephone and informed him that he could talk to Clara Thomas.
*95 "7. That Clara Thomas had not authorized Robert G. Thomas to call the officers and tell them they could question her, that Robert G. Thomas had no conversation with her concerning the interview by Mr. Reilly and Mr. Wilson, and that she had no knowledge of such interview prior to the arrival of the officers at the hospital.
"8. That following said telephone call, Mr. Reilly and Robert H. Wilson, the then County Attorney of Big Horn County, Montana, went to Sheridan, Wyoming, arriving at the hospital between five and six o'clock on the afternoon of March 13, 1963; that after a conversation in the hospital with Robert G. Thomas and David Thomas, the Sheriff and County Attorney went to the room of Clara Thomas, and Mr. Wilson told her that they were down there investigating the death of Frank Tschirgi, `and he told her of her rights, that she didn't have to say anything if she didn't want to and that she could have the aid of an attorney.'
"9. That at the time she was questioned in the hospital by the Sheriff and County Attorney, Clara Thomas had not been placed under arrest and was not in official custody, but that she was confined as a patient in the hospital where she had been in a state of unconsciousness, and that the progress of her recovery was such on the morning of the day on which she was interrogated her attending physician then stated that if she made normal progress he felt she would be coherent enough or recovered enough to answer some limited questions.
"10. That neither the said County Attorney or the Sheriff informed Clara Thomas that she had the right to have a lawyer present with her during their interrogation, and that she was not informed by either said County Attorney or said Sheriff that if she was indigent a lawyer would be provided for her prior to any interrogation."
Finding No. 11 was as follows:
"That, as testified by Mr Reilly, he did not have any knowledge of who had killed Frank Tschirgi, but that his investigation had disclosed nothing that would suggest any incrimination of any person who was present at the ranch at the time of the homicide, other than Clara Thomas; and that by reason of the incriminating circumstances pointing to Clara Thomas, hereinbefore set forth in these Findings, together with the fact that the Sheriff's investigation had revealed no reason to suspect any other person, his investigation was then necessarily focused upon Clara Thomas."
That portion of Finding No. 11 concluding that the investigation had necessarily "focused" upon Clara Thomas is what we find erroneous. This so-called finding of fact is necessarily a conclusion of law based upon the District Court's concept of the meaning of the United States Supreme Court's decisions in the Escobedo and Miranda cases which will be hereinafter discussed.
First, it is clear that Clara Thomas was not "in custody" in any legal sense of the word. Nor do we find that the defendant, at the time, was otherwise deprived of her freedom of action in any significant way. Finding No. 9 above-quoted does no more than suggest that confinement as a patient might somehow have limited her action in a significant way, but we find otherwise. Indeed, however, our specific inquiry narrows down to, not whether Clara Thomas was confined or her action limited in any significant way; but rather whether in the investigatory process the "accusatory stage" or "focus" had been reached.
In Escobedo v. State of Illinois, 378 U.S. 478, 490, 84, S.Ct. 1758, 1765, 12 L. Ed. 2d 977, the court said:
"We hold, therfore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not affectively warned him of his absolute constitutional right to remain silent, the accused has *96 been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, at 342, 83 S. Ct. 792, at 795, 9 L. Ed. 2d 799 and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."
In Miranda v. State of Arizona, 384 U.S. 436, 444, 457, 86 S. Ct. 1602, 1612, 1619, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974, the Court said:
"Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. * * *
"The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features incommunicado interrogation of individuals in a police-dominated atmosphere resulting in self-incriminating statements without full warnings of constitutional rights. (Emphasis added.) * * *
"It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice."
We narrow our inquiry here because, with the findings and conclusion of the district judge a well-written memorandum was filed and made available to us. The judge dwelled upon the position of the prosecution in this manner:
"It is the position of the prosecution that Miranda v. State of Arizona, and Escobedo v. State of Illinois, 378 U.S. 487, 490, 84 S. Ct. 1758, 12 L. Ed. 2d 977, are to be construed as holding that, before interrogating a person suspected of crime, the officers of the law are legally bound to protect the constitutional rights of the suspect by giving him the above-quoted warning if he has been taken into custody; but that the same officers, interrogating the same person, suspected of the same crime are not legally bound to protect the constitutional *97 rights of the suspect by giving him the above-quoted warning, or any warning if the suspect has not been taken into custody. This position of the prosecution gives to the officer the power to either grant or withhold the constitutional rights of the suspect, depending upon whether the officer elects to interrogate before or after taking the suspect into official custody.
"It is the view of the undersigned that no such arbitrary and capricious standard was intended by the United States Supreme Court as the test for granting or withholding constitutional rights, and that any suspect questioned by the officers when an official investigation is focused upon that suspect, is entitled, even though he or she is not in custody, to the same warning and the same constitutional rights as the suspect who has been taken into custody."
The court then went on to reason that the interrogation had "focused" on Clara Thomas and that since the "magic words" of Miranda were not spoken the oral statements became inadmissible as evidence and thus were suppressed.
At the hearing on the motion to suppress, the sheriff was examined in great detail concerning his investigation. Defense counsel was obviously trying to have the sheriff eliminate all other suspects than Clara Thomas, so that finally when the sheriff and county attorney interviewed her, the "focus" had been achieved under the Escobedo and Miranda rules.
In Miranda, supra at p. 477 of 384 U.S., at p. 1629 of 86 S.Ct., the court said:
"Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S. Ct. 1758, 1765, 12 L. Ed. 2d 977, 986. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding."
The sheriff testified, in response to questions by the prosecution, that:
"Q. Then the following day, the 12th, after you had reached some tentative conclusion that he was shot by other than or killed by other than self inflicted wound, you then proceeded to the ranch to commence your investigation to carry it forth, is that right? A. That is true.
"Q. Now as you talked to the various persons you apparently eliminated them in your mind, did you not, as perpetrators of the deed, is that correct? A. Yes, to a certain extent I did.
"Q. At least you found nothing in anything any of them had said that would be suggestive of incrimination of that particular individual, did you? A. No, I didn't find out anything.
"Q. And this includes David and Robert Thomas too when you talked with them? A. That's right.
"Q. And for all practical purposes at those times you had no reason to suspicion them, did you? A. No.
"Q. Now did that same thing prevail, I mean was your attitude the same when you went to talk to Clara Thomas up until the time that she had made certain admissions to you? A. Yes. I don't know, didn't have any idea who.
"Q. In other words there are hundreds of thousands of other people that could have committed this offense as far as you were concerned up until that time, is that right? A. That's right.
"Q. And you had, and you were doing this investigation to see if anybody knew anything about it? A. That's right."
To accept the district court's finding No. 11 would be to say that the last person questioned in an investigation would be the "focal" one. Up until Clara's statement, the officers were groping for information, narrowing the field it is true; but certainly not achieving a "focus" in a "police dominated *98 atmosphere"; nor in any manner coercing a statement. This, we feel is just a part of the "inquiry of persons not under restraint" as discussed in Miranda.
In this opinion, we have not attempted to fully discuss rules pronounced in Escobedo and Miranda. Indeed, as we read those cases, the standard involved still remains whether or not the statement was voluntarily made in an intelligent manner, or put another way whether any coercion was used to overcome the freedom of choice.
We find then that the district court was in error in ordering the oral statements suppressed, and that a writ of supervisory control should issue; such writ to set aside the order of suppression.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2608421/ | 248 Or. 143 (1967)
432 P.2d 516
STATE OF OREGON, Respondent, v. JOSEPH FRANK GUSE, Appellant.
Supreme Court of Oregon.
Argued October 10, 1967.
Affirmed October 18, 1967.
*144 Donald A. Dole, Roseburg, argued the cause for appellant. With him on the brief was Harrison R. Winston, Roseburg.
Doyle L. Schiffman, District Attorney, Roseburg, argued the cause and filed a brief for respondent.
Before McALLISTER, Presiding Justice, and O'CONNELL and HOLMAN, Justices.
AFFIRMED.
McALLISTER, J.
The defendant, Joseph Guse, was convicted of burglary, and appeals. He assigns as error the denial of his motion for a judgment of acquittal, and the failure of the court to give one of his requested instructions.
In reviewing the record we find ample evidence to support the verdict of the jury. In the middle of a summer night, two deputy sheriffs on patrol west of Roseburg, became suspicious, investigated, and found that a rural school had been broken into. The school had been entered by breaking a glass pane in the rear door. Shattered glass was lying at the bottom of the door both immediately inside and outside the building. The drawers in the teachers' desks in both classrooms had been pulled open and the contents of the desks and of a supply cabinet had been rummaged. An empty money bag was missing from one of the desks. An adjacent building used as a cafeteria was also entered by breaking a pane of glass in the front door. A pair of rubber gloves and four half-pint cartons of milk were missing from the cafeteria. The officers found the milk cartons lying in the schoolyard and saw spilled milk which had not yet been absorbed into the ground.
1. In their search the officers also found the defendant *145 lying face down in a field about 50 feet from the corner of the schoolyard. The defendant was concealing beneath his body a pair of yellow rubber gloves, a flashlight, and a pry bar. An expert testified that glass imbedded in the defendant's shoes was identical with the glass from the broken panes in the two school doors. An employee of the cafeteria testified in substance that the gloves found under defendant were similar to a pair of gloves used by her in the cafeteria, which were missing after the robbery. The jury could properly infer defendant's guilt from this evidence. The court did not err in denying the motion for a judgment of acquittal.
Defendant also assigns as error the failure of the court to give the following requested instruction:
"I instruct you that the fact that a crime has been committed, the corpus delicti, and that it was done by the Defendant may be lawfully established by circumstantial evidence alone. But I instruct you that the evidence must be satisfactory. Mere suspicion, or mere probability of guilt is insufficient. The evidence must be of the most cogent and convincing nature. Each fact necessary to establish guilt must be proved to your satisfaction as a jury and beyond a reasonable doubt. The evidence upon which the State relies for conviction must not merely coincide with, render probable, and be consistent with, the guilt of the accused, but it must be inconsistent with any reasonable theory of innocence and incapable of explanation upon any other rational hypothesis than that of guilt."
This requested instruction was copied almost verbatim from State v. Dennis, 177 Or 73, 77, 159 P2d 838, 161 P2d 670 (1945). The trial court used much of the same language in its instruction concerning circumstantial *146 evidence, but did not use the following sentences:
"Mere suspicion, or mere probability of guilt is insufficient. The evidence must be of the most cogent and convincing nature."
Defendant's real complaint is the failure of the court to instruct the jury in the language of the two quoted sentences, and particularly the second.
2-4. The court was not required to instruct in the precise language of State v. Dennis, supra, and rightly declined to do so. In criminal cases guilt must be proved beyond a reasonable doubt. In the case at bar the jury was repeatedly told that defendant's guilt must be established beyond a reasonable doubt, and the term "reasonable doubt" was fully explained. The court did not err in declining to also tell the jury that to warrant a conviction the evidence must be "of the most cogent and convincing nature." Such an instruction would have defined the required degree of proof in language different than "reasonable doubt," and might have confused the jury as to which test to apply.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
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